text:
    Albert L. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4142.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2014.
    Albert L. James, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Albert L. James [“James”] appeals the denial of his motion for correction of jail credits as untimely. We reverse.

On November 19, 1990, James pled guilty to robbery with a deadly weapon and kidnapping. Appellant was sentenced to life as a habitual felony offender. James appealed the convictions and sentence. The court per curiam affirmed. James v. State, 583 So.2d 436 (Fla. 5th DCA 1991).

On October 31, 2013, James filed a Florida Rule of Criminal Procedure 3.801 motion for correction of jail credit, alleging that he did not receive jail credit for the seventeen days in which he was not released from the Orange County jail due to a detainer from Brevard County. On November 5, 2013, the trial court dismissed James’ motion as untimely because Florida Rule of Criminal Procedure 3.801(b) provides: “No motion shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final.” Because James’ sentence became final in 1991, the trial court found the motion untimely. However, Rule 3.801(b) was later amended to include an exception: “For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.”

The State concedes that because James’ sentence was imposed prior to July 1, 2013, his October 31, 2013 motion was timely and that the jail credit issue should be remanded for the trial court to determine on the merits. See Reidy v. State, 136 So.3d 1245, 39 Fla. L. Weekly D816 (Fla. 5th DCA Apr. 17, 2014).

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeremy W. BILLUPS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4023.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2014.
    Jeremy W. Billups, Lowell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to file a timely Rule 3.801 Motion for Additional Jail Credit, which shall not be treated as successive by the trial court.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    Robertus F. OOMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3539.
    District Court of Appeal of Florida, First District.
    May 5, 2014.
    Robertus F. Ooms, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Robertus F. Ooms, appeals an order summarily denying his motion for return of property. The State properly concedes that because the motion was facially sufficient, the trial court was required to either conclusively refute Appellant’s claim or hold an evidentiary hearing. See Wilson v. State, 121 So.3d 1175, 1175 (Fla. 1st DCA 2013) (reversing and remanding the order summarily denying the appellant’s motion to return property and reasoning that “[b]ecause the motion was facially sufficient, the trial court was required to either conclusively refute the allegations or hold an evidentiary hearing”); Dawson v. State, 104 So.3d 1290, 1291 (Fla. 2d DCA 2013) (reversing and remanding the summary denial of the appellant’s motion for return of property because the trial court erred by failing to attach portions of the record that conclusively refuted her claim); West v. State, 35 So.3d 175, 176 (Fla. 2d DCA 2010) (reversing and remanding the summary denial of the appellant’s motion to return seized property because “[t]he postconviction court erred in basing its denial of the motion on the factual representations of an attorney for the sheriffs department”). Accordingly, we reverse the order denying Appellant’s motion for return of property and remand the case to the trial court with directions to either attach portions of the record that conclusively refute Appellant’s claim or hold an evidentiary hearing.

REVERSED and REMANDED with directions.

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


text:
    Antrone MALLORY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0136.
    District Court of Appeal of Florida, First District.
    May 6, 2014.
    Antrone Mallory, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    Winston Leo MURPHY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1697.
    District Court of Appeal of Florida, First District.
    May 6, 2014.
    Winston Leo Murphy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    Allington DOTTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5121.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
   PER CURIAM.

Affirmed. See § 775.087(2)(d), Fla. Stat. (2001); Reeves v. State, 957 So.2d 625 (Fla. 2007); State v. Sousa, 903 So.2d 923 (Fla. 2005); State v. Christian, 692 So.2d 889 (Fla.1997); Scott v. State, 42 So.3d 923 (Fla. 2d DCA 2010); Mobley v. State, 983 So.2d 630 (Fla. 5th DCA 2008).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Roger L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5143.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P 3.801; Hall v. State, — So.3d — (Fla. 2d DCA Jan.24, 2014); Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986); Harris v. State, 483 So.2d 111 (Fla. 2d DCA 1986).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Reginald DAWES, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5190.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
    Reginald Dawes, pro se.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla.2011); State v. Williams, 667 So.2d 191 (Fla.1996); Vemold v. State, 376 So.2d 1166 (Fla.1979); Steadman v. State, 23 So.3d 811 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Williams v. State, 734 So.2d 1113 (Fla. 2d DCA 1999); Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991); Murray v. State, 36 So.3d 792 (Fla. 1st DCA 2010); Mills v. State, 840 So.2d 464 (Fla. 4th DCA 2003); Rodriguez v. State, 645 So.2d 98 (Fla. 3d DCA 1994).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    James L. CALDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5243.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
    James L. Caldwell, pro se.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


author: ' SUAREZ, J.

text:
    Jacqueline ROIG, Appellant, v. Arturo MOSQUERA, D.M.D., Appellee.
    No. 3D13-390.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.
    William F. Souza, North Miami Beach, for appellant.
    James J. McNally, Miami, for appellee.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   ' SUAREZ, J.

Appellant Jacqueline Roig appeals an order dismissing her motion for rule nisi, which was filed in an attempt to enforce an order issued in a related proceeding before a Judge of Compensation Claims (“JCC”). We reverse.

In connection with an earlier workplace injury, Appellant obtained a December 2007 JCC ruling which required Appellee, her former employer, to provide orthopedic care for her in Palm Beach County where she now resides. In February 2009, a second JCC ruled that Appellee had failed to comply with the 2007 ruling. In September 2009, the JCC entered another order which found that the 2007 order was “in full force and effect” and directed Appellant to seek enforcement “from a tribunal that has authority to enforce same.” That order was affirmed by the First District in Roig v. D.M.D. Arturo Mosquera, 48 So.3d 57 (Fla. 1st DCA 2010) (table). As a result of those proceedings, the question of whether Appellee had complied with the 2007 order was fully resolved and not subject to re-litigation.

Appellant then filed the present rule nisi action. After numerous proceedings, the trial court entered an order dismissing the action based on lack of jurisdiction due to alleged factual disputes as to whether Ap-pellee complied with the 2007 order. The action should not have been dismissed.

Section 440.24(1), Florida Statutes (2008), provides:

In case of default by the employer or carrier in the payment of compensation due under any compensation order of a judge of compensation claims or other failure by the employer or carrier to comply with such order within 10 days after the order becomes final, any circuit court of this state within the jurisdiction of which the employer or carrier resides or transacts business shall, upon application by the department or any beneficiary under such order, have jurisdiction to issue a rule nisi directing such employer or carrier to show cause why a writ of execution, or such other process as may be necessary to enforce the terms of such order, shall not be issued, and, unless such cause is shown, the court shall have jurisdiction to issue a writ of execution or such other process or final order as may be necessary to enforce the terms of such order of the judge of compensation claims, (emphasis added).

In interpreting that statute, this Court stated in Alvarez v. Kendall Associates, 590 So.2d 518 (Fla. 3d DCA 1991):

Because there was a valid workers’ compensation order in full force and effect which had established the claimant’s entitlement to the care, it was the responsibility of the trial judge, once it was determined that the care had not been provided, to enforce that order by awarding the claimant payment for the unpaid medical benefits.

Id. at 519. See also Navarro v. Sugarcane Growers Coop. & Prof 'l Adm’rs, Inc., 661 So.2d 946 (Fla. 4th DCA 1995); Ross v. Sec. Ins. Co. of Hartford, 743 So.2d 604 (Fla. 4th DCA 1999).

Based on that authority, and because the question of Appellee’s compliance with the 2007 order had already been resolved, the trial court erred in determining that an alleged factual dispute precluded a ruling on Appellant’s motion for rule nisi. We therefore reverse and remand for further proceedings consistent with this opinion.

      . To the extent Appellee seeks to ensure that the payment for care in Palm Beach County is limited to care resulting from the earlier workplace injury, he must seek modification of the 2007 order in the administrative proceedings before the JCC.


author: EMAS, J.

text:
    Martine LiFLEUR, Appellant, v. Nathaniel WEBSTER, Jr., Appellee.
    No. 3D13-2732.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.
    Rehearing Denied May 28, 2014.

      Catherine A. Riggins, for appellant.
    Gregory A. Samms, Coral Gables, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

Martine LiFleur (“LiFleur”) appeals from a 2013 order which 1) denied her emergency motion to terminate an agreed temporary order of custody/parental responsibility; and 2) vested temporary custody and parental responsibility in the minor child’s stepmother. For the reasons that follow, we reverse.

FACTUAL BACKGROUND

LiFleur and Nathaniel Webster, Jr. (“Webster”) had a child, N.W., in 1999. LiFleur had custody of N.W. following his birth. Beginning in 2000, LiFleur began experiencing mental difficulties which caused her to be admitted to a mental health center. Thus, Webster filed a motion for custody of N.W. based on LiFl-eur’s mental condition at that time. N.W. went back and forth between LiFleur and Webster for the next few years due to LiFleur’s mental health issues.

In 2003, LiFleur was diagnosed for the first time with bipolar disorder. In 2004, LiFleur sought to regain custody of N.W. She established that she was compliant with a medication regimen and had resolved her mental health issues. Webster and LiFleur entered into a settlement agreement (the “2004 Settlement Agreement”), in which LiFleur was made the primary residential parent of N.W. and agreed to notify Webster if she experienced any recurring mental health issues. The 2004 Settlement Agreement provided that Webster would be entitled to immediate custody of N.W. if LiFleur’s mental health issues presented again. In November of 2004 the court ratified the 2004 Settlement Agreement.

Between 2005 and 2008, LiFleur was twice admitted to mental health facilities. In 2008, LiFleur returned custody of N.W. back to Webster, and N.W. stayed with Webster until after completion of the 2008 school year. Thereafter, N.W. returned to LiFleur.

In September of 2009, however, LiFleur was arrested on a charge of child neglect, after which Webster filed an Emergency Motion for Temporary Sole Custody and Parental Responsibility, seeking temporary custody of N.W. due to LiFleur’s arrest. On February 4, 2010, the court entered an order granting temporary sole custody and primary responsibility to Webster and temporarily requiring supervised visitation with LiFleur (the “2010 Temporary Order”). As part of the 2010 Temporary Order, LiFleur agreed it would be in N.W.’s best interests for LiFleur to undergo a complete psychiatric evaluation prior to having any unsupervised, overnight time sharing, and that Webster shall have “temporary sole custody/time sharing rights and sole parental responsibility over the minor child until such time as [LiFl-eur] undergoes a complete psychiatric evaluation and the Court permits reunification.” Following the 2010 Temporary Order, N.W. was in the continuous custody of Webster (or Webster’s wife and N.W.’s stepmother, Jennifer (“Stepmother”)).

In 2011, LiFleur’s mental health difficulties resurfaced and she concedes that she was not compliant with her medication and treatment at this point in time. Also in 2011, LiFleur was charged in Palm Beach County with conspiracy to commit racketeering, conspiracy to traffic in oxycodone, and trafficking in oxycodone. LiFleur was released, and the charges against LiFleur remained pending at the time of the final order in this case.

During this same period of time, Webster was indicted in Ohio on seven counts of unlawful sexual conduct with a minor. In April 2012, Webster was convicted of four counts of unlawful sexual conduct with a minor, and in June of 2012, Webster was sentenced to twelve years in Ohio state prison. Despite Webster’s incarceration, however, N.W. remained in Ohio, where he was being cared for by Stepmother.

On February 21, 2012, LiFleur moved to dissolve the 2010 Temporary Order on the grounds that the child neglect charges against her were dropped and that Father had been arrested and was being held in custody on the charges of unlawful sexual conduct with a minor. The court denied the motion.

In October of 2012, following Webster’s conviction and twelve-year prison sentence, LiFleur filed a renewed motion to dissolve the 2010 Temporary Order on the grounds that Webster now stood convicted of four counts of unlawful sexual conduct with a minor and was serving a twelve-year prison sentence. Given Webster’s long-term incarceration, LiFleur contended, the 2010 Temporary Order (which granted Webster temporary sole custody and parental responsibility) was rendered unenforceable.

The court denied the motion. The court found that it was in N.W.’s best interest to be with his Stepmother and his paternal grandmother, Linda Webster (“Grandmother”), who had been caring for N.W. since the time of Webster’s arrest and incarceration. The court ordered that all parental responsibility and decision-making would “remain” with Stepmother and Grandmother until further order of the court. The court also determined that LiFleur had not complied with the 2010 Temporary Order’s requirement that she undergo a complete psychiatric examination and provide the results to the court. The court further found that LiFleur’s pre-trial release status on pending felony drug trafficking charges had done nothing to alleviate the court’s concerns about her fitness to parent.

In November of 2012, LiFleur filed a verified motion for a referral to Family Court Services for a psychiatric evaluation. LiFleur alleged she was ready, willing and able to submit to a complete psychiatric evaluation, consistent with the court’s previous order. The court entered an order referring LiFleur to Family Court Services, but only for the purpose of a psychological evaluation. As directed by the court, LiFleur completed the psychological evaluation with Beraja Counseling Center, and the report concluded that LiFleur was emotionally stable and compliant with her psychiatric and psychological treatment. At a status conference on July 10, 2013, the trial court acknowledged it had reviewed the evaluation report and that it was “a favorable report of the Mother.”

On July 28, 2018, following the psychological evaluation, LiFleur filed her Emergency Motion to Terminate Temporary Custody/Time-Sharing and Parental Responsibility vested in the Paternal Family and for a Child Pick-Up Order (the “Emergency Motion”). This Emergency Motion is the subject of the instant appeal and was grounded on LiFleur’s contention that the 2010 Temporary Order could not continue to remain in force, that custody/parental responsibility was improperly delegated to Stepmother and Grandmother, and that LiFleur is a fit parent with the constitutional, fundamental right to resume parental responsibility of the minor child.

The court conducted an evidentiary hearing on the Emergency Motion on August 19 and 23, 2013. At the hearing, LiFleur testified that since her arrest in 2009 she has accepted the fact that she suffers from bipolar disorder; that she began regular treatment with Dr. Poitier, a psychiatrist she has been seeing for more than a year; and that she has resumed a regular course of therapy and a medication regimen with which she has been compliant for more than a year. LiFleur also testified that she is employed as a Physician’s Assistant and lives in a four-bedroom, three-bath home in Plantation. LiFleur stated she was prepared for N.W. to return home to Florida and to resume her responsibilities as N.W.’s primary residential parent.

Dr. Artiles, a licensed psychologist, and Dr. Croskey, a private therapist, also testified on behalf of LiFleur. Both opined that LiFleur was a fit parent capable of caring for N.W. After LiFleur rested her case, Stepmother and Grandmother testified on Webster’s behalf. Stepmother admitted she was not a party to the action and had never sought to intervene or take other formal steps to seek custody of N.W. Stepmother testified about LiFleur’s mental history and noted that N.W. was doing well in Ohio. Grandmother testified that N.W. was happy and thriving in Ohio but that she would like to see N.W. reunified with LiFleur. Grandmother has not sought to intervene in the action and testified at the evidentiary hearing that she does not want custody of N.W.

On September 25, 2013, the court entered an order denying LiFleur’s Emergency Motion and directed that N.W. “remain” with his Stepmother. The court found in pertinent part:

Given that it appears that the child is doing well with his stepmother and step-siblings at present in Ohio, given that the court has not yet heard from the Guardian ad Litem, given that the court does not have a recent psychiatric report, and given that the court wishes to hear from the child directly, in camera, about what his wishes are regarding timesharing, the request for emergency relief is hereby DENIED.

The trial court ruled that “the child will, until further order of this court, remain with his stepmother, with the mother permitted supervised time-sharing as previously ordered.” (Emphasis supplied).

This appeal followed.

ANALYSIS

We review the trial court’s factual findings for an abuse of discretion, and we review the trial court’s application of law de novo.

A parent’s “right to make decisions regarding the care, custody, and management of his [or her] children’s lives is a fundamental liberty interest of constitutional dimensions.” In re N.Z.B., 779 So.2d 508, 511 (Fla. 2d DCA 2000). See also Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998). When a dispute is between two natural parents, both of whom are fit and share equal rights to custody, the test to be applied in a custody dispute involves the determination of the child’s best interests. In re Guardianship of D.A. McW., 460 So.2d 368 (Fla.1984).

On the other hand, where a custody dispute is between a natural parent and a non-parent, a “natural parent of a child born out of wedlock should be denied custody only where it is demonstrated that the parent is disabled from exercising custody or that such custody will, in fact, be detrimental to the welfare of the child.” Id. at 870. See also, Webb v. Webb, 546 So.2d 1062 (Fla. 3d DCA 1989) (finding the trial court abused its discretion in awarding custody to stepmother, in the absence of clear and convincing evidence that the child’s natural mother was unfit or had abandoned her son). “To hold otherwise would permit improper governmental interference with the rights of natural parents who are found fit to have custody of and raise their children.” D.A. McW., 460 So.2d at 370. There is a strong public policy in favor of the natural family unit. Id. Thus, a trial court cannot engage in a “best interests of the child” analysis unless and until there is sufficient proof to establish parental unfitness or substantial threat of significant and demonstrable harm to the child. Richardson v. Richardson, 766 So.2d 1036 (Fla.2000); Von Eiff, 720 So.2d at 514.

Here, by virtue of the 2004 Settlement Agreement, LiFleur was designated as N.W.’s primary residential parent, with instructions that Webster be granted immediate custody over N.W. if LiFleur’s mental health deteriorated. After LiFleur was arrested on child neglect charges and her mental health was shown to have deteriorated, Webster — and Webster alone— was granted temporary sole custody and primary responsibility over N.W. pursuant to the 2010 Temporary Order. As described previously, LiFleur and Webster agreed, as part of the 2010 Temporary Order, that it would be in N.W.’s best interests for LiFleur to undergo a complete psychiatric evaluation prior to having unsupervised, overnight time sharing with N.W., and that Webster would have temporary sole custody and parental responsibility over N.W. until such time as LiFleur successfully completed a psychiatric evaluation and sought reunification.

The 2010 Temporary Order adjudicated the issue of temporary custody as between LiFleur and Webster. Significantly for our purposes, the 2010 Temporary Order was the result of an agreed modification of the 2004 Settlement Agreement between LiFleur and Webster, and neither Stepmother nor Grandmother was a party to the paternity action, the 2004 Settlement Agreement, or the 2010 Temporary Order.

Had the Emergency Motion to terminate the 2010 Temporary Order (and the court’s subsequent order entered thereon) involved a determination of custody as between N.W.’s two parents, application of the best-interests-of-the-child test would have been appropriate. D.A. McW., 460 So.2d at 369. However, such was not the case. Instead, the Emergency Motion sought to terminate the 2010 Temporary Order and return N.W. to LiFleur based on the fact that Webster was legally and practically incapable of fulfilling his role under the 2010 Temporary Order. Webster’s long-term incarceration rendered the 2010 Temporary Order unenforceable, leaving LiFleur as the only parent who could be the primary residential parent of, and have parental responsibility for, N.W. We agree with LiFleur that the court erred in not granting the motion to terminate the 2010 Temporary Order.

Given the existence of the 2004 Settlement Agreement, the now-unenforceable 2010 Temporary Order, and LiFleur’s constitutional and fundamental right as N.W.’s natural parent, the trial court was required to return custody to the natural parent in the absence of proof, by clear and convincing evidence, that the natural parent is unfit or has abandoned the child. Webb, 546 So.2d at 1065. No such proof was presented at the hearing.

Additionally, the trial court appeared to rely on the “best interests of the child” standard, required LiFleur to establish compliance with a 2010 order that was no longer enforceable, and misallocated the burden of proof. The court required LiFl-eur to prove fitness, rather than requiring Webster to prove by clear and convincing evidence that LiFleur was unfit to parent N.W. or had abandoned him. As a result, rather than returning to the provisions of the 2004 Settlement Agreement, the court found that LiFleur had not provided the court with a complete psychiatric evaluation, that N.W. appeared to be doing well with Stepmother in Ohio, and that the court wanted to hear from the child directly as to his wishes. The court’s articulation of, and reliance upon, these factors was erroneous.

Finally, the court erred in ordering that temporary custody of N.W. “remain” with Stepmother, who is not a natural parent of N.W., was not a party to the action, and had not sought to intervene. There is no provision in the 2004 Settlement Agreement or the 2010 Temporary Order which awarded temporary custody or parental responsibility of N.W. to Stepmother, nor could such an order properly be entered on the record presented. While we are not unmindful of the difficult and challenging circumstances facing the trial court, we are compelled to hold, under the facts of this case, that the court erred in denying the motion to terminate the 2010 Temporary Order and in ordering that Stepmother have temporary custody and parental responsibility of N.W.

Based on the foregoing, we reverse the trial court’s order denying LiFleur’s Emergency Motion, with instructions that the trial court vacate the 2010 Temporary Order, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

      . In October 2008, the Florida Legislature amended Chapter 61, Florida Statutes, and changed the term "custody” to "parental responsibility” and "visitation” to "timeshar-ing.” See Ch. 2008-61, Laws of Fla. The term "custody” was retained in Chapter 61 when used in the context of awarding custody to a non-parent. See § 751.01 et seq., Fla. Stat. (2013). Because the relevant facts of this case took place both before and after the amendments to Chapter 61, this opinion sets forth the history of this case using the terms as they were used by the parties and the court during the course of the proceedings below.

      . The child neglect charge against LiFleur was nolle prossed after LiFleur completed a pretrial program.

      . None of these allegations or charges involve N.W.

      . Unlike the prior order, the order on appeal did not include Grandmother as a joint custodian, an apparent result of Grandmother’s testimony that she did not wish to have temporary or permanent custody of N.W.

      . We note also that neither party, nor the Stepmother or Grandmother, had initiated any action pursuant to section 39.301, et seq., Florida Statutes (2013).

      . As discussed earlier, LiFleur requested a psychiatric evaluation prior to the evidentiary hearing. The only reason why LiFleur had not completed a psychiatric evaluation at the time of the evidentiary hearing is that, despite LiFleur’s request, the trial court referred LiFl-eur for a psychological evaluation instead.

      .Nor had Stepmother or Grandmother filed a petition for temporary custody pursuant to Chapter 751 ("Temporary Custody of Minor Children by Extended Family”).


author: SALTER, J.

text:
    HIBACHI GRILL, INC., Appellant, v. ARKI CONSTRUCTION, INC., Appellee.
    No. 3D13-2876.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.
    Sergiu Gherman, Bartow, for appellant.
    Sheldon R. Rosenthal, Miami, for appel-lee.
    Before ROTHENBERG, SALTER and LOGUE, JJ.
   SALTER, J.

This is an appeal from a final summary judgment in a construction case. The appellant, a restaurant (Owner), appeals a judgment for approximately $32,000.00 in favor of the appellee (Contractor). The Owner alleges that the damages were incorrectly computed by the trial court. We conclude that the Owner was entitled to a reduction in the contract balance because the Owner directly paid certain subcontractors, thereby reducing project-related payment obligations of the Contractor. The Contractor’s amended complaint acknowledged that such payments had been made and were to be subtracted from the balance otherwise due from the Owner. We therefore reverse and remand the final summary judgment for further proceedings to reduce the amount due the Contractor by the amount of the Owner’s payments to the subcontractors that would otherwise have been payable by the Contractor.

The case began as a breach of contract claim by the Owner against the Contractor. The Contractor counterclaimed for the unpaid balance of $32,104.36, and also asserted a third-party claim against the Owner’s landlord to foreclose on its alleged mechanic’s lien.

The parties settled the Owner’s claim against the Contractor and the Contractor’s third-party claim against the landlord, but they stipulated that the Contractor’s claim against the Owner “may proceed forward.” The trial court approved the settlement and stipulation. The Contractor then filed an amended counterclaim for the unpaid balance, alleging in paragraph 9 that the Owner was indebted to the Contractor “in the total sum of $32,104.36, less whatever amounts paid directly by the [Owner] to other subcontractors, plus prejudgment interest and costs of this action” [sic].

The Owner asserted affirmative defenses to the amended counterclaim, including a right to set off “sums paid by [Owner] directly to subcontractors for work performed under the contract between [Owner] and [Contractor].” The Contractor moved to strike the affirmative defenses on the grounds that they were barred and released by the earlier settlement agreement and dismissal of the Owner’s claim for breach of contract. The trial court granted the motion and struck the affirmative defenses.

The Contractor then filed a motion for summary judgment for the total amount claimed to be due from the Owner, with no deduction for amounts paid directly to subcontractors by the Owner. The Owner’s principal filed an affidavit in opposition to the motion for summary judgment detailing five payments he made to project subcontractors, for a total of $14,810.80. The affidavit was not contradicted by the Contractor. The trial court granted the Contractor’s motion for final summary judgment and did not reduce the unpaid contract balance by the amounts paid directly to subcontractors by the Owner. This appeal ensued.

Analysis

The Owner raises two arguments here: that it was error to award the Contractor a windfall by failing to deduct those liabilities of the Contractor to subcontractors that were directly paid by the Owner; and that the Contractor should only have been awarded its anticipated net profit on the job rather than the unpaid contract balance.

The Owner’s first argument is well taken. At the hearings on the motions to strike affirmative defenses and for summary judgment, counsel for the Contractor persuaded the trial court that the prior partial settlement and dismissal of the Owner’s complaint precluded any setoff or reduction of the unpaid balance claimed by the Contractor. The doctrine of res judi-cata can, in a case unlike this one, preclude post-settlement, post-dismissal defenses. W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79 (Fla. 4th DCA 2010). The Contractor argued that the Owner did not replead the affirmative defense of setoff after it was stricken, with the result that the claimed reduction should not be allowed. JoJo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So.2d 503, 504 (Fla. 4th DCA 2003) (affirmative defense of setoff is waived if not pled).

In fact, however, the Contractor’s own amended complaint — filed after the partial settlement and dismissal of certain claims — acknowledged that the unpaid contract balance was to be reduced by “whatever amounts” were paid by the Owner directly to the subcontractors. The Owner’s affidavit established those amounts without contradiction by the Contractor. The Owner is correct that it would be a windfall to the Contractor to allow the Contractor to recover the gross amount remaining payable to the Contractor without deduction for the amounts paid by the Owner to subcontractors for the benefit of the Contractor. The Contractor’s attempt to exceed the strictures of its own pleadings ends here, as it should, in reversal. Homestead-Miami Speedway, LLC v. City of Miami, 828 So.2d 411, 413 (Fla. 3d DCA 2002) (court may not grant relief that has not been pled).

The Owner’s second argument, that there should be a further reduction of the Contractor’s claim to “lost profit” rather than the unpaid (net) contract balance, is not well taken. The Owner’s reliance on Del Monte Fresh Produce Co. v. Net Results, Inc., 77 So.3d 667 (Fla. 3d DCA 2011), is misplaced. In Del Monte and other cases cited by the Owner, contracts were allegedly breached by the defendant before substantial performance occurred, such that the non-breaching party would have incurred expenses in performing the balance of the work required by the contract. In the present case, the Contractor substantially performed the buildout and is entitled to be paid the contract price less only those amounts due from the Contractor to subcontractors but paid instead by the Owner. Wm. Dejon Developers, Inc. v. Panhandle Grading & Paving, Inc., 538 So.2d 88 (Fla. 1st DCA 1989).

Conclusion

The final summary judgment is reversed in part and remanded for a re-computation of damages. The contract balance payable by the Owner to the Contractor, $32,104.36, shall be reduced by those liabilities of the Contractor to five subcontractors which were directly paid by the Owner, apparently $14,810.80,The final summary judgment is reversed in part and remanded for a re-computation of damages. The contract balance payable by the Owner to the Contractor, $32,104.36, shall be reduced by those liabilities of the Contractor to five subcontractors which were directly paid by the Owner, apparently $14,810.80,with prejudgment interest recomputed accordingly. The final summary judgment is affirmed as to liability and as to the rejection of a “lost profits” methodology for damages.

Affirmed in part, reversed in part, and remanded for further proceedings on damages.

      . This amount is documented in attachments to the Owner’s affidavit, but if controverted by the Contractor may be determined in an evi-dentiary hearing on damages.


author: ALTENBERND, Judge.

text:
    Alexander W. McCLAMMA, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3523.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.

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

Alexander W. McClamma appeals his judgments and orders of probation entered as a result of a negotiated plea after the denial of his dispositive motion to suppress. We reverse. Mr. McClamma’s case demonstrates that a valid arrest for loitering or prowling typically occurs in combination with a Terry stop for a crime that is occurring or is about to occur. But loitering or prowling is not the crime of attempting to commit some other crime. Under the modern statute, a defendant must intentionally commit conduct that the defendant knew or with substantial certainty should have known would cause an objectively reasonable observer to have reasonable alarm or imminent concern that the defendant’s conduct was creating a safety risk for person or property in the vicinity. See § 856.021, Fla. Stat. (2011). This conduct must occur in the presence of the officer who orders the stop. See D.L.B. v. State, 685 So.2d 1340, 1342 (Fla. 2d DCA 1996); Freeman v. State, 617 So.2d 432, 433 (Fla. 4th DCA 1993).

A stop that is only for loitering or prowling must almost always be an arrest for that offense and rarely, if ever, can be justified as a Terry stop for this misdemeanor. There are often times when an officer may engage in a consensual encounter prior to making a loitering arrest or may even conduct a welfare check prior to an arrest for loitering, but the facts of this case do not involve such a preliminary encounter. The sheriffs deputy who ordered the stop of the taxi cab in which Mr. McClamma was a passenger was not performing a Terry stop and did not have an objectively reasonable belief, based on specific and articulable facts, to conclude that the misdemeanor of loitering or prowling had occurred in his presence. See B.A.A. v. State, 356 So.2d 304 (Fla.1978).

I. THE FACTS

At approximately 1:30 a.m. on September 1, 2011, a Pinellas County deputy sheriff was dispatched to a trailer park to handle a report of a suspicious person. The woman who had called in the report told him that she had seen a shirtless, bushy-haired, light-skinned, African-American, male teenager walking suspiciously in the trailer park, which had primarily older residents. The woman had seen the teenager walking between the trailer park office and one of the trailers. She did not report seeing any activity other than a teenager walking late at night. At no time during the events described in this opinion did anyone report any burglary, theft, or other crime in the trailer park. The deputy called in a second deputy with a dog, but the dog could not follow a scent.

There had been a series of burglaries in a nearby commercial area in which other deputies were conducting a stakeout. As a result, the first deputy issued a BOLO for the nearby deputies to be alert for the shirtless teenager. About twenty minutes later, those deputies briefly saw someone run across a street. They thought the person fit the description in the BOLO. They attempted to catch that person without success. The deputies used a dog to track a scent to a nearby residential neighborhood but not to a specific house. A deputy who had seen the person run across the street remained in an unmarked car to observe the neighborhood.

About thirty minutes later, the deputy waiting in the unmarked car observed Mr. McClamma, a tall, tan, white teenager, running from a house to a taxi. He was not wearing a shirt and his clothing otherwise generally matched the description of the African-American teenager who had been seen walking in the trailer park. Accordingly, the deputy arranged for a marked patrol car to stop the taxi. A corporal was involved in the stop. He approached the passenger side of the taxi and immediately questioned Mr. McClam-ma about what he was doing and why he was in the neighborhood. There is no evidence that he provided a Miranda warning to Mr. McClamma prior to this investigation. After questioning him, the deputy ordered Mr. McClamma out of the taxi. He frisked Mr. McClamma for officer safety and found a marijuana pipe in a pants pocket, although he admitted that he had no reasonable suspicion that Mr. McClamma was armed. The corporal concluded that Mr. McClamma had not dispelled alarm and arrested him for loitering or prowling. He took a backpack from Mr. McClamma, which was at some point searched. The deputy, who eventually read Mr. McClamma his Miranda rights prior to a more extensive interview, explained that the pack had been searched before he arrived. The search of the pack revealed illegal contraband. During the interview with the deputy, Mr. McClamma apparently admitted to breaking into several cars in the neighborhood.

Ultimately, Mr. McClamma was charged as an adult with trafficking in hydroeo-done, possession of a controlled substance, three counts of burglary of a conveyance, possession of paraphernalia, and loitering or prowling. Mr. McClamma filed a motion to suppress, challenging his stop. When the trial court denied that motion at the conclusion of an evidentiary hearing, Mr. McClamma entered into a negotiated plea. He agreed to adjudications of guilt for the charged offenses in exchange for terms of probation as a youthful offender, which included drug treatment. When imposing the agreed-upon sentence, the trial court determined that the motion to suppress was dispositive of the charges. Mr. McClamma appealed.

II. INTRODUCTION TO THE LEGAL ANALYSIS IN THIS CASE

The trial court’s decision to deny the motion to suppress hinges on whether the deputy had lawful authority to stop the taxi. The stop of this vehicle, of course, could not be a consensual encounter. The State has never argued in this case that the deputy had a reasonable suspicion, justifying a Terry stop, for a crime other than loitering or prowling. Thus, the disposi-tive issues in this case are whether the deputy had either a lawful basis to arrest Mr. McClamma when he pulled over the taxi or perhaps whether he had a valid basis for a Terry stop for loitering or prowling at that time. In this appeal we accept the historic facts as found by the trial court but review the legal issues de novo. See P.R. v. State, 97 So.3d 980, 982 (Fla. 4th DCA 2012). As a matter of law, we conclude that this stop was unauthorized.

In the 1970s, when Florida made a concerted effort to preserve a constitutionally legitimate misdemeanor of loitering or prowling, the legislature created a statute with an unusual and complex criminal intent and with an odd defense. As a result, the statute can be particularly difficult for law enforcement officers to understand and enforce. To explain why the stop in this case was not authorized, we will first examine the creation of the statute and limitations that the supreme court immediately placed on it to assure its constitutionality. We will then examine the criminal intent required for this offense and the basis for the “defense” of “dispelling alarm.” Next, we will explain why the deputy had no authority to stop the taxi to arrest Mr. McClamma for loitering or prowling. Finally, we will explain why the deputy had no authority to conduct a Terry stop for loitering or prowling in this case.

III. A BRIEF HISTORY OF LOITERING OR PROWLING: A MISDEMEANOR ON THE “OUTER LIMITS” OF CONSTITUTIONALITY

Prior to 1972, Florida had a statute that regulated “rogues and vagabonds,” “common night walkers,” “habitual loafers,” and other “vagrants” on our public streets. See § 856.02, Fla. Stat. (1971). In the early 1970s, the United States Supreme Court began striking down similar ordinances for vagueness and overbreadth. See Palmer v. City of Euclid, Ohio, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971).

The Florida Legislature responded with the modern loitering or prowling statute, which was based on the Model Penal Code of the American Law Institute. Ch. 72-183, at 414-16, Laws of Fla.; Model Penal Code § 250.6. Except for an amendment to achieve gender neutrality, the current law is the same as the law enacted in 1972. It provides:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

§ 856.021.

Subsection (1) of the statutes creates the substantive requirements of the offense, which are normally described as having two elements: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) such loitering or prowling was under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. See State v. Ecker, 311 So.2d 104,106 (Fla.1975).

Subsection (2) describes circumstances that undoubtedly were added in an effort to overcome the anticipated argument that the statute would be vague or overbroad. It also creates a police procedure that allows a person who is stopped for this offense to “dispel” alarm.

The constitutionality of this statute was quickly challenged. In a split opinion, the supreme court held that the statute was constitutional, “subject to the conditions and limitations herein expressed.” Ecker, 311 So.2d at 106.

In explaining its conditions and limitations, the court stated:

In justifying an arrest for this offense, we adopt the words of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968): “... the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” a finding that a breach of the peace is imminent or the public safety is threatened.

Id. at 109. We emphasize that the court did not adopt the standard for a Terry stop, i.e., reasonable suspicion, as the standard for use in this context. It merely borrowed the language of “specific and articulable facts” that would “reasonably warrant” as terms to describe not suspicion but, rather, a “finding” (by a judge or jury) that the elements of the offense had occurred.

Although the court did not adopt the standard for a Terry stop in Ecker, the above-quoted language created an interesting parallel. If an officer can point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened, then the officer is almost always allowed to a conduct a Terry stop for some other crime in which harm to person or property is an element. Under section 901.151(2), Florida Statutes (2011), an officer can conduct a stop and frisk, i.e., a Terry stop, when the circumstances reasonably indicate that the suspect “is about to commit a violation of the criminal laws of this state.” For an officer, the parallel between loitering or prowling and a Terry stop is undoubtedly confusing because the stop — as an arrest for the substantive offense of loitering or prowling — and the stop — as a procedural investigation of a likely greater offense— become intertwined.

To avoid problems with the Fifth Amendment of the United States Constitution and self-incrimination, the Florida Supreme Court explained that the procedure in the second subsection of the statute is in the nature of an “additional defense to the charge.” Ecker, 811 So.2d at 110. The court explained:

We recognize that a defendant cannot be required to “explain his presence and conduct,” this being constitutionally prohibited. We hold the provision in the statute which affords a person charged thereunder an opportunity to explain his presence and conduct is an additional defense to the charge. Clearly, an accused cannot be compelled to explain his presence and conduct without first being properly advised under Miranda standards. If the accused voluntarily explains his presence and such explanation dispels the alarm, no charge can be made.

Id.

The supreme court’s decision to require a Miranda warning before the defendant is given his or her opportunity to dispel alarm is interesting. As we discuss in greater detail later in this opinion, the elements of this offense must occur in the presence of the officer who orders the arrest. Before the stop is ordered, that officer must observe conduct that creates the requisite alarm in the officer’s mind. Unlike a Terry stop for a possible felony, the officer is rarely, if ever, stopping a loiterer to develop more facts to establish grounds to arrest for loitering.

The Miranda warning is needed because the defendant is in custody for the misdemeanor of loitering or prowling and that offense usually overlaps with a reasonable suspicion of another offense, typically a felony or attempted felony. Thus, a person stopped for prowling because he is hiding in the bushes late at night under alarming circumstances may make a statement while dispelling alarm that is relevant to convict him of a recent burglary. Likewise, in dispelling alarm that he is not a threat to person or property, a defendant may need to explain that he was hiding in the bushes to engage in prohibited use of drugs.

As a result of the limitations placed on this statute by the supreme court in Ecker to avoid its unconstitutionality on the basis of vagueness or overbreadth, there has been a tendency to make every suppression hearing and trial of this offense appear to be an as-applied constitutional challenge to the statute. Relying on D.A. v. State, 471 So.2d 147, 153 (Fla. 3d DCA 1985), the court has explained: “[Bjecause the loitering or prowling statute does not proscribe particular conduct, it reaches the outer limits of constitutionality and must be applied with special care.” Carroll v. State, 573 So.2d 148, 148 (Fla. 2d DCA 1991).

In the next section, we suggest that the “special care” required for this offense can most easily be achieved if the law enforcement officer who makes the stop, and the lawyers and judges thereafter, give close attention to the criminal intent required by this statute and also understand the nature of the defense of dispelling alarm.

IV. THE CRIMINAL INTENT REQUIRED FOR LOITERING OR PROWLING AND THE DEFENSE OF NEGLIGENTLY APPEARING TO BE A THREAT

Because the conduct constituting the misdemeanor of loitering or prowling is usually grounds for a Terry stop for some other offense, it is easy to think of loitering or prowling as the crime of attempting to commit another crime. But an examination of the statute clearly demonstrates that prowling is not accurately described as a preliminary attempt to commit another crime. As a result, law enforcement officers invariably create problems when they try to justify a stop based on loitering or prowling because they are a little short of the reasonable suspicion needed for a Terry stop for some other offense.

Section 856.021(1) requires the defendant to commit conduct that “warrantfs] a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” But justifiable and reasonable alarm is not created in a vacuum; it is created in a human mind. Typically, that alarm is created in the mind of a trained law enforcement officer. The limitation that the alarm or imminent concern be “justifiable and reasonable” makes it very clear that the standard is not subjective; the issue is whether an ordinary reasonable law enforcement officer would have alarm for the safety of person or property upon viewing the conduct.

This offense is not a strict liability crime. See generally State v. Giorgetti, 868 So.2d 512, 518 (Fla.2004) (noting that strict liability crimes contain no intent or mens rea requirement); see also State v. Smith, 638 So.2d 509, 511-13 (Fla.1994) (Kogan, J., concurring) (discussing the constitutional and public policy concerns regarding the intent element of criminal acts). To avoid the vagueness and over-breadth of earlier vagrancy statutes, the legislature has clearly created a crime involving a general intent. But that criminal intent, in light of the language of the statute, is not directly an intent to commit some other crime.

Loitering or prowling is actually more similar to the offense of assault, except that the person threatened or alarmed by the conduct is normally unknown to the defendant and not a direct target of the crime. By virtue of the language of the statute and the limitations created by the supreme court in Ecker, the defendant must intentionally commit conduct that the defendant knows or with substantial certainty should know would cause an objectively reasonable observer to have reasonable alarm that the defendant’s conduct is creating an imminent safety risk for person or property in the vicinity. Cf. Pinkney v. State, 74 So.3d 572, 576 (Fla. 2d DCA 2011) (“[T]o satisfy the intent element [of assault] the State must prove that the defendant did an act that was substantially certain to put the victim in fear of imminent violence, not that the defendant had the intent to do violence to the victim.”).

In the express language of the statute, the harm to be prevented by this offense is not the possible harm to person or property; it is the alarm to the observer. Peo-pie, especially trained law enforcement officers, take risks when they think they are called upon to prevent imminent harm to person or property. Efforts to prevent such harm sometimes cause injury to the officers or to bystanders. The legal justification for this offense is a desire to minimize the number of occasions when law enforcement officers suffer this type of alarm. Even if the legislature was attempting to solve another problem, this is the rational basis that renders the statute constitutional.

Accordingly, immediately prior to the arrest, the officer is not actually determining whether the circumstances look like a possible crime in the making. The officer is determining whether he or she is viewing conduct that is reasonably causing the officer alarm or imminent concern that harm to person or property will likely occur in the very near future unless the officer intercedes.

Once a person has been stopped for this offense, the person must be allowed to give a statement to “dispel any alarm or immediate concern which would otherwise be warranted.” § 856.021(2). As explained earlier, the supreme court has described this as a “defense” and requires the officer to provide a Miranda warning prior to the statement.

This defense is a little unusual. The crime has already occurred because the officer has already been alarmed and has already taken at least some of the stressful and dangerous steps necessary to prevent damage to person or property. But the criminal intent for this crime, which is a sufficient intent to permit an arrest, includes intentionally committing conduct that one should with substantial certainty know to create alarm. Thus, the intent required for this offense can occasionally be close to negligent conduct. The defense assures that a person arrested for this offense can be excused from any conviction or penalty by establishing that the person was not in fact intending any such harm.

Hypothetically, assume an elderly woman loves the flowers planted beside her old, wooden home. The local government has a watering ban in place. Although the woman does not want to publicly disobey the law, she wants her flowers to survive. So on a cool evening after dark she puts on her hooded sweater and fills up a large red can to water her flowers. The can is the old gasoline can that her deceased husband once used for the lawnmower. When a police officer drives by and witnesses this person in the dark pouring liquid from a gasoline can next to the house, he quite reasonably believes that the person might be attempting arson. He has justifiable and reasonable alarm for the safety of property. He also has grounds for a Terry stop for attempted arson.

When he questions the old woman after a Miranda warning, if she explains that the can contains water and that she is very sorry for violating the local ordinance, her defense is not a claim that she caused no alarm. Her defense is that she negligently appeared to be creating a risk when she was not in fact creating the risk. Statutorily, so long as the reality of her actions is not what those actions reasonably appear to be, she has a defense to this crime. The officer, of course, conducted a proper and lawful arrest for loitering when he stopped her; the officer simply releases her from a lawful arrest when he or she is convinced by the explanation that dispels alarm.

V. THE ARRESTING DEPUTY COULD NOT ARREST BASED ON A MISDEMEANOR THAT DID NOT OCCUR IN HIS PRESENCE

In this case, we are not entirely clear when the State maintains that the crime of loitering or prowling occurred. This crime is a misdemeanor that must occur in the presence of the officer who orders the arrest. See D.L.B., 685 So.2d at 1342. There is no evidence in this case that the deputy reasonably believed that Mr. McClamma was about to commit immediate harm to person or property while sitting in the back of a taxi. The deputy never articulates any reasonable “alarm” arising from this conduct.

Running from the house or the area adjacent to the house and getting into a taxi might arguably create some level of suspicion that Mr. McClamma had recently committed an offense such as burglary or theft, but it would not create a reasonable basis to believe he was intending to commit harm to person or property in the very near future. Admittedly, the statute suggests that fleeing an officer is an indicator that a person is about to jeopardize the safety of person or property. See § 856.021(2). It is far from clear in this case that Mr. McClamma knew the officer was sitting in the unmarked car or that he was fleeing the officer when he ran to the taxi. Running to catch a taxi at night is not enough to create specific and articula-ble facts creating an objectively reasonable fear that a breach of the peace is imminent.

The act of running across the street at night, assuming that Mr. McClamma is the same person who performed that conduct, is not enough by itself to create such an objectively reasonable fear of harm to person or property. See D.G. v. State, 714 So.2d 644 (Fla. 4th DCA 1998); see also Patmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980). Nor is walking in a trailer park at night outside of the officer’s presence enough to create such fear. The report of such conduct by a citizen might establish some background information that could heighten an officer’s reasonable concern, but it does little by itself. We do not see any way to combine these-events to create a moment in time where an officer could reach the conclusion that he reasonably had alarm for an imminent threat to person or property in the vicinity.

Accordingly, accepting the historic facts as found by the trial court, we conclude that it erred as a matter of law when it concluded that the deputy had the lawful authority to order a stop of the taxi as an arrest for loitering or prowling.

VI. THE ARRESTING DEPUTY COULD NOT CONDUCT A TERRY STOP FOR THIS MISDEMEANOR

The State has never argued in this case that the deputy who ordered the stop of the taxi had reasonable suspicion that an occupant of the vehicle had committed, was committing, or was about to commit an offense that would authorize a Terry stop under section 901.151, with the exception of loitering or prowling. Admittedly, there are numerous cases that discuss whether a law enforcement officer had “reasonable suspicion” to stop a person for loitering or prowling. See, e.g., Mills v. State, 58 So.3d 936 (Fla. 2d DCA 2011); T.R.T. v. State, 982 So.2d 1209 (Fla. 2d DCA 2008). When read, most of those opinions are not actually discussing “reasonable suspicion” in the Terry stop context but, rather, are determining whether the officer obseiwed circumstances giving him an objectively reasonable sense of alarm. As explained earlier, we conclude that it would be very unusual to have a set of circumstances in which a Ten~y stop for loitering or prowling could occur in the absence of grounds permitting a Terry stop for another offense.

In the case of a misdemeanor such as possession of marijuana, an officer may observe circumstances in his presence that create a reasonable suspicion that a person is in possession of marijuana. The officer can temporarily detain the person, not to establish probable cause as one would for a felony, but to establish that the item possessed was marijuana and not a lawful substance. The Terry stop leads to evidence sufficient to establish that all elements of the misdemeanor occurred in the officer’s presence, thereby permitting an arrest.

But in the case of loitering or prowling, the objectively reasonable alarm takes place in the officer’s own mind. Normally, the officer has no need to stop the person to obtain additional facts about the officer’s level of alarm. The questioning at the stop is only the questioning to “dispel alarm,” which occurs after the initial arrest.

Assuming, without deciding, that an officer might on rare occasion be unable to conclude that his or her sense of alarm was objectively reasonable and that the reasonableness of the alarm could be clarified by a conversation with the suspect, it is conceivable that a “reasonable suspicion” of alarm might warrant a Terry stop. In our hypothetical case, for example, if the elderly woman was using a large red can that looked similar to a gasoline can, perhaps the officer could conduct a Terry stop to determine if the can was a gasoline can. Again, presumably this would also be a Terry stop for attempted arson. If the can proved to be a gasoline can, then the stop would transform into an arrest and the woman could dispel alarm by explaining that she was watering her plants.

But the officer in this case did not stop the taxi to get information to clarify his degree of alarm. The State has not and cannot articulate any additional factual information that the officer needed from Mr. McClamma to determine whether his own sense of alarm at that time was objectively reasonable. The officer did not make this stop to develop the final evidence needed to establish that all elements of this misdemeanor had occurred in the officer’s presence. Accordingly, Mr. McClamma’s stop cannot be justified as a Terry stop for the offense of loitering or prowling.

Because the stop was neither a lawful arrest nor a valid Terry stop, the trial court should have granted the dispositive motion to suppress. Accordingly, we reverse the judgments and orders of probation and remand for Mr. McClamma to be discharged.

Reversed and remanded.

SILBERMAN and LaROSE, JJ„ Concur.

      . Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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

      . See ch. 97-102, § 1384, at 1488, Laws of Fla.

      . Two of the three circumstances described in subsection (2) have been limited by case law. The fact that a person "takes flight” may be of consideration, but it does not establish a pri-ma facie case of loitering or prowling. See In re O.W., 423 So.2d 1029 (Fla. 4th DCA 1982); see also Woody v. State, 581 So.2d 966 (Fla. 2d DCA 1991). More significantly, a refusal to identify oneself is limited by the fact that a person cannot be required to provide identification during a consensual encounter, during which the person is always free to leave. See Caldwell v. State, 41 So.3d 188, 195 (Fla. 2010); see also Ecker, 311 So.2d at 110 (requiring a Miranda warning prior to a police investigation at a stop for loitering or prowling).

      . See Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1 (1989).

      .We recognize that many cases describe loitering in this fashion. For example in D.S.D. v. State, 997 So.2d 1191, 1193 (Fla. 5th DCA 2008), the court said: "The gist of the first element is aberrant and suspicious criminal conduct that comes close to, but falls short of, the actual commission or attempted commission of a substantive crime.” We do not disagree that this may be the "gist” of the crime, but this description does not account for the criminal intent that must necessarily underlie this offense. We are not in conflict with those cases; we merely conclude that the legal explanations within those cases are not entirely accurate.

      . See § 784.011, Fla. Stat. (2011).

      . We recognize that the legislature probably hoped that this statute would prevent harm and stop crime at its inception. However, in order to enact a constitutional statute the legislature relied on the concept of "alarm.” Thus, the primary harm to be avoided under the language of the statute is the alarm.

      . There are numerous cases, including cases from the members of this panel, that discuss whether an officer has "probable cause” to arrest someone for loitering or prowling. See, e.g., S.K.W. v. State, 112 So.3d 775 (Fla. 2d DCA 2013); Rucker v. State, 921 So.2d 857 (Fla. 2d DCA 2006). These cases use this phrase loosely. The concept is not the same as the "probable cause” that allows a war-rantless arrest for a felony. An officer who orders the arrest of someone for loitering must have observed all of the elements of the offense or perhaps relied on the observations of a fellow officer. Essentially, that officer needs to have the ability to testily to a prima facie case of the offense when he makes the arrest. In a felony context, probable cause allows the officer, when making a warrantless arrest, to rely on evidence from other witnesses and to arrest before completing an entire investigation. In most, if not all of the cases that discuss probable cause for loitering or prowling, the concept of a "lawful arrest” could be substituted for the concept of "probable cause” without affecting the outcome of the case.

      . There is nothing improper with an officer who has concerns that fall short of an objective alarm attempting to engage in a consensual encounter to better define the sense of alarm. Reasonable suspicion is not required for such an encounter.


author: CASANUEVA, Judge.

text:
    Martin CALDERON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5146.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
   CASANUEVA, Judge.

Martin Calderon filed a motion under Florida Rule of Criminal Procedure 3.800(a) seeking jail credit and prison credit for forfeited gain time. The postconvietion court dismissed the motion, finding that Mr. Calderon should have raised his claims under rule 3.801 but concluding that such a motion would have been untimely. We reverse and remand for further proceedings.

The postconviction court’s order presents two problems. First, Mr. Calderon’s claim that he was entitled to credit “for gain time that he earned during his seventy-eight month term of imprisonment” is clearly not a jail credit claim but a claim for time served in prison. Rule 3.801(a) specifies that the rule applies only to claims for credit for time “spent in the county jail before sentencing as provided in section 921.161, Florida Statutes.” Accordingly, the postconviction court should have considered this claim of illegal sentence under rule 3.800, and we remand for it to do so.

Second, Mr. Calderon’s motion is not untimely under rule 3.801(b), although it appeared to be so at the time the post-conviction court entered its order. Mr. Calderon’s sentence became final on March 30, 2012, well before rule 3.801 went into effect on July 1, 2013, and over a year before Mr. Calderon filed his motion on September 10, 2013. Rule 3.801, when originally enacted, included a blanket time limit of one year to file a motion after the sentence becomes final. But on December 5, 2013, the supreme court revised the rule, nunc pro tunc, to include a one-year grace period for defendants whose sentences became final before July 1, 2013, so those in Mr. Calderon’s situation would have until July 1, 2014, to file a motion for correction of jail credit. See In re Amendments to Fla. Rules of Criminal Procedure & Fla. Rules of Appellate Procedure, 132 So.3d 734 (Fla.2013). Thus, Mr. Calderon is not yet foreclosed from seeking-relief under this rule.

However, as the postconviction court correctly noted, Mr. Calderon’s motion was not facially sufficient to be considered under rule 3.801 in any event. Accordingly, on remand, Mr. Calderon shall be permitted to file a motion, under oath, that includes the content required by rule 3.801(c), on or before July 1, 2014.

Reversed and remanded for partial reconsideration under rule 3.800 without prejudice for Mr. Calderon to file a timely rule 3.801 motion.

WALLACE and CRENSHAW, JJ., Concur.


author: EVANDER, J.

text:
    Timothy GROSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1780.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Timothy Gross appeals his judgment and sentences for attempted second-degree murder with a destructive device and possession and discharge of a destructive device. We affirm, without discussion, the attempted second-degree murder conviction. However, we conclude that double jeopardy principles require us to vacate Gross’ conviction for possession and discharge of a destructive device.

Gross was charged by amended information with attempted first-degree murder with possession and discharge of a destructive device (Count I) and possession of and discharge of a destructive device (Count II) after placing an “improvised explosive device” in a package at the front door of the victim’s residence. On Count I, the jury found Gross guilty of the lesser included offense of attempted second-degree murder with a special finding that Gross actually possessed and discharged a destructive device in the course of committing the offense. Gross was found guilty as charged on Count II.

The trial court enhanced the attempted second-degree murder charge from a second-degree felony to a first-degree felony for use of a weapon pursuant to section 775.087(l)(b), Florida Statutes (2009), and sentenced Gross to thirty years’ imprisonment in the Department of Corrections. Pursuant to section 775.087(2)(a)2., Florida Statutes (2009), twenty of those years were imposed as a minimum mandatory sentence. Gross was sentenced to a concurrent twenty-year minimum mandatory sentence on Count II.

A. double jeopardy violation does not have to be preserved for appeal because it is fundamental error that can be raised for the first time on appeal. Thomas v. State, 101 So.3d 917, 918 (Fla. 5th DCA 2012).

On appeal, Gross argues that because his conviction for attempted second-degree murder was reclassified based on his possession of a destructive device, double jeopardy precluded his conviction on Count II. We agree. See, e.g., Mendoza v. State, 941 So.2d 523 (Fla. 3d DCA 2006) (double jeopardy rights of defendant were violated where use of firearm was basis for enhancing attempted first-degree murder conviction from first-degree felony to life felony and defendant was then independently convicted for possession of firearm during commission of felony); Law v. State, 824 So.2d 1055 (Fla. 5th DCA 2002) (where defendant’s felony convictions were reclassified and enhanced due to defendant’s use of firearm in committing the crimes, single act of using that same firearm in the commission of those felonies as basis of separate sentence and conviction for use of firearm while committing a felony violated double jeopardy clause); Bradshaw v. State, 528 So.2d 473 (Fla. 1st DCA 1988) (upon enhancement of murder and attempted murder convictions based on application of firearms enhancement statute, charge of possession of firearm during commission of felony became lesser-inelud-ed offense and thus, defendant could not properly be convicted of firearm possession charge).

Accordingly, Gross is entitled to have his conviction for possession and discharge of destructive device vacated.

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

COHEN and WALLIS, JJ„ concur.

      . § 790.161(2), Fla. Stat. (2009).

      . Fortunately, the subsequent explosion of the device did not cause any personal injuries.

      . Section 775.087(1) provides:
      Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

      (b) In the case of a felony of the second degree, to a felony of the first degree.

      .Section 775.087(2)(a)2. provides that:
      Any person who is convicted of [an enumerated] felony, regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.


author: COHEN, J.

text:
    Kionn ALLS, Petitioner, v. DEPARTMENT OF REVENUE o/b/o Sharita Denise Gosa, et al., Respondent.
    No. 5D13-3711.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    Mikaela N. Nix, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Respondent.
   COHEN, J.

Kionn Alls seeks certiorari review of an order requiring him to submit to a paternity test. We grant the petition.

This case has an unusual procedural posture, in large part because Alls ignored a previous court order requiring him to submit to a paternity test. As a result, there is a judgment finding Alls to be the legal father of M.C., even though the child’s mother was married to another man at the time of the child’s conception and birth, and her husband is listed as the child’s father on the birth certificate. The trial court entered the paternity judgment without considering the child’s best interests, appointing a guardian ad litem, or conducting a hearing, as required by Department of Health & Rehabilitative Ser vices v. Privette, 617 So.2d 305 (Fla.1993). Alls appealed from that judgment, but later voluntarily dismissed his appeal and filed a motion to set aside the judgment pursuant to Florida Rule of Civil Procedure 1.540. In that motion, he argued that the trial court’s lack of subject matter jurisdiction and its failure to conduct a Privette hearing rendered the paternity judgment void.

The trial court deferred ruling on Alls’s motion, and instead entered another order requiring that Alls submit to a paternity test. Alls filed a notice of appeal from that order, which we treated as a petition for writ of certiorari. In response, Alls filed an amended petition arguing that the circuit court departed from the essential requirements of law by ordering another paternity test without first complying with Privette, and by failing to first rule on whether the original paternity judgment is void. The Department of Revenue concedes that the trial court erred in ordering a paternity test since the previous judgment of paternity has not been vacated. Accordingly, we grant the petition and quash the lower court’s order. The trial court must first vacate the original paternity judgment and conduct a Privette hearing before ordering a paternity test.

PETITION GRANTED; ORDER QUASHED.

LAWSON and WALLIS, JJ„ concur.


text:
    Elbert John NETTLES III, Petitioner, v. Jennifer HOYOS, Respondent.
    No. 5D14-683.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    Adam H. Sudbury of Sudbury Law, Orlando, for Petitioner.
    Martin G. White, Orlando, for Respondent.
   PER CURIAM.

Elbert John Nettles III has filed a petition for writ of certiorari seeking review of the trial court’s order granting Respondent, Jennifer Hoyos’s motion for protective order. That order denied Nettles the opportunity to conduct discovery. We grant the petition.

Nettles and Hoyos are both law enforcement officers with the St. Cloud Police Department; Nettles is also a First Sergeant in the Florida Army National Guard. On October 22, 2013, Hoyos filed a petition for a temporary injunction against Nettles for protection against stalking. The trial court granted the temporary injunction and set a hearing date, which was continued to March 5, 2014, per Nettles’s request. When Nettles attempted to engage in discovery prior to the hearing, Hoyos filed a motion for protective order, requesting the court to quash all of Nettles’s discovery requests. In granting the motion, the trial court seems to have been persuaded that section 784.0485(5)(c), Florida Statutes, combined with this Court’s decision in Bacchus v. Bacchus, 108 So.3d 712 (Fla. 5th DCA 2013), required it to conclude that Nettles was not entitled to engage in discovery. We disagree.

Section 784.0485(5)(c), Florida Statutes, provides that a full hearing on an injunction against stalking should be held on or before fifteen days from the entry of the temporary injunction, unless good cause is shown. Recently, we addressed an almost identical provision in the domestic violence injunction statute — section 741.30(5)(c) — in Bacchus, 108 So.3d 712. Bacchus involved a scenario where the trial court, following an evidentiary hearing, extended a temporary injunction for one year instead of ruling on the petitioner’s right to a permanent injunction. We reversed the lower court’s ruling, noting that section 741.30 “does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction.” Id. at 716. Because that case involved a completely different factual scenario and procedural posture, and it did not involve discovery, it is distinguishable from the instant case.

Nettles argues that the trial court departed from the essential requirements of law when it entered “a blanket protective order” quashing all discovery. At the heart of this issue lies the tension between section 784.0485(5)(c)’s requirements and the due process rights of a litigant to be prepared for the hearing. Cf. Furry v. Rickles, 68 So.3d 389, 390 (Fla. 1st DCA 2011) (“To satisfy due process requirements at an injunction hearing, the parties must have a reasonable opportunity to prove or disprove the allegations made in the complaint.” (citing Ohrn v. Wright, 963 So.2d 298 (Fla. 5th DCA 2007))). Both are legitimate concerns. Hoyos would like to limit discovery to only that which could be conducted within the fifteen days prior to the return hearing. Nettles, on the other hand, apparently believes that he is entitled to continuances until he completes the full panoply of discovery. Neither position provides a practical solution. The court must balance the need to expedite the hearing and the need to ensure that the parties’ due process rights are not violated. The trial court is imbued with discretion to limit the time frame and nature of discovery in such cases and can do so by examining individual discovery requests on a case by case basis. However, under the particular circumstances of this case, we conclude that the trial court abused its discretion and departed from the essential requirements of law by entering an order that completely quashed Nettles’s right to conduct any discovery.

PETITION GRANTED.

SAWAYA, EVANDER and COHEN, JJ., concur.

      . Specifically, that section states:
      Any such ex parte temporary injunction is effective for a fixed period not to exceed 15 days. A full hearing, as provided in this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. An injunction shall be extended if necessary to remain in full force and effect during any period of continuance.
      § 784.0485(5)(c), Fla. Stat. (2013) (emphasis added).


text:
    Leonard Ditron MICKENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4634.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Leonard Ditron Mickens appeals his judgment for battery and the resulting sentence. We must reverse because the trial court committed a fundamental error affecting the jury instructions on Mr. Mickens’ only defense. The court used the charged offense and its lesser offense as the forcible felonies when explaining the forcible felony exception to the defense of justifiable use of nondeadly force.

Mr. Mickens was charged with two counts: (1) battery, § 784.03(1), Fla. Stat. (2011), of a female victim, and (2) felony battery, § 784.041(1), of her male friend. The charges arose from events on October 16, 2011. The alleged female victim claimed that Mr. Mickens came into a bedroom of an apartment and tried to batter her. She left the apartment and returned with her male friend. A fight ensued during which the male friend was injured by Mr. Mickens. Mr. Mickens defended, claiming that battery on the female did not occur. He admitted that the battery on the male friend occurred but claimed he had acted in self-defense. The jury acquitted Mr. Mickens of the battery on the female and convicted him of the lesser offense of battery as to her male friend. See § 784.08(1).

The problem in this case arose during the jury instruction conference. It was agreed that Mr. Mickens was entitled to a jury instruction on justifiable use of non-deadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(g). The standard instruction contains an exception explaining that self-defense is not an available defense for a person who is committing a forcible felony. The commentary accompanying the standard instruction explains that the exception should be given only if the defendant is charged with an independent forcible felony. Id; see also Martinez v. State, 981 So.2d 449, 453-54 (Fla.2008) (“[A]n independent forcible felony is required for the forcible-felony instruction to apply.”). The standard form contains a space for the trial court to add the description of the independent forcible felony involved in the specific case. But in this ease the space was filled in with “Felony Battery or Battery.” Felony battery is the charged offense as it relates to the male friend, and battery is its category one lesser offense. The alleged battery on the female might be a separate offense, but that event was over at the time Mr. Mickens committed the battery on the male victim. It was not a crime that Mr. Mickens “was attempting to commit, committing, or escaping after the commission of’ as described in the standard instruction. Thus, the charged battery on the female victim could not be used as an independent forcible felony in this case.

Thus, in a nutshell, Mr. Mickens was charged with felony battery, for which battery was a necessary lesser offense. He raised self-defense as his only defense. The jury was told that the use of nondeadly force by Mr. Mickens was not justified if he was committing felony battery or battery. As read, the instruction eliminated Mr. Mickens’ only defense.

During the jury instruction conference, the attorneys had a rather long discussion with the trial court about this instruction. Their arguments were confusing. The court asked them: “Have either of you lawyers even looked at the case law that interprets this very-poorly worded instruction from our Florida Supreme Court?” Both lawyers responded that they had not. The court replied: “Why not? This is your job. This is important. This is potentially a game-over event.”

Here, the “game” is not over, but it gets to be replayed with simple battery as the highest charge. The forcible felony exception has application to both the use of deadly and nondeadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(f); Fla. Std. Jury Instr. (Crim.) 3.6(g); Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). An error in the forcible felony instruction does not necessarily rise to the level of fundamental error, but when the instruction negates the defendant’s only defense to the charge of which he is convicted, it is typically determined to be a fundamental error. See Vowels v. State, 32 So.3d 720, 721 (Fla. 5th DCA 2010); see also Stewart v. State, 113 So.3d 914 (Fla. 2d DCA 2013) (finding fundamental error where forcible felony instruction negated defendant’s only defense for his use of deadly force); Crimins v. State, 113 So.3d 945, 948-49 (Fla. 5th DCA 2013) (same); Sloss v. State, 45 So.3d 66 (Fla. 5th DCA 2010) (same); Smith v. State, 76 So.3d 379, 387 (Fla. 1st DCA 2011) (finding fundamental error where forcible felony instruction negated defendant’s key defense for his use of nondeadly force).

Even though Mr. Mickens was convicted of the misdemeanor and not the charged felony, self-defense was his only defense to the offense for which he stands convicted. Having reviewed the record, we conclude that we must reverse his conviction and remand for a new trial.

Reversed and remanded.

WALLACE and MORRIS, JJ., Concur.


text:
    Lillian E. BILLEWICZ, Appellant, v. Marcus MacRAE, as Personal Representative of the Estate of Robert Billewicz, and Julia MacRaebillewicz, Appellees.
    Nos. 2D12-5933, 2D13-786.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
    Michelle M. Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale, for Appellant.
    Reuben A. Doupé, of Klaus Doupé, P.A., Naples; and Dallas Haines, III, Ames-bury, Massachusetts, for Appellee Marcus MacRae.
    Julia MacRae-Billewicz, pro se.
   PER CURIAM.

In these consolidated appeals, Lillian E. Billewicz (Ms. Billewicz) challenges three orders entered in the circuit court: (1) an order denying her motion to intervene in an action for the dissolution of the marriage of Robert Billewicz and Julia Mac-Rae-Billewicz; (2) an order quashing a quitclaim deed executed by Robert Billew-icz purporting to transfer property commonly known as 165 Sunrise Court, Naples, Florida, to Lillian E. Billewicz; and (3) an order denying Ms. Billewicz’s motion to “intervene regarding joint motion of Julia MacRae-Billewicz and Marcus MacRae, Executor of the Estate of Robert Warren Billewicz, to finalize title to the Canadian condominium.” We find no reversible error in any of the three orders entered by the circuit court. Accordingly, we affirm the circuit court’s orders.

Nevertheless, we note that the order quashing the deed to the Sunrise Court property in Naples states that the “[o]wn-ership of said real estate is now held by MARCUS MACRAE, duly appointed Executor of the Estate of Robert W. Billew-icz.” We also note that additional language appearing in an order denying one of Ms. Billewicz’s multiple motions to intervene states that the Canadian condominium “belongs solely to Julia MacRae-Billewicz and is not subject to any claim of Lillian E. Billewicz.” To the extent that Lillian E. Billewicz has claims to these properties, we regard this language as sur-plusage. The circuit court never entered an order authorizing Ms. Billewicz to intervene in the proceedings below, and she never became a party to the litigation. Thus Ms. Billewicz never had notice or an opportunity to be heard on her claims to ownership of the Sunrise Court property and the Canadian condominium, and the circuit court had no personal jurisdiction over Ms. Billewicz to adjudicate her claims to these properties. It follows that the circuit court’s rulings about the ownership of or title to the Sunrise Court property and the Canadian condominium are not binding on Ms. Billewicz. See Gen. Elec. Capital Corp. v. Shattuck, 132 So.3d 908 (Fla. 2d DCA 2014). Undoubtedly, Ms. Billewicz may pursue her claims to these properties in an appropriate forum.

Affirmed.

ALTENBERND, WALLACE, and MORRIS, JJ., Concur.


author: KELLY, Judge.

text:
    William SPENCE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2297.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.

      Howard L. Dimmig, II, Public Defender, and Simone A. Lennon, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

William Spence was convicted of the offenses of driving while license is permanently revoked (habitual offender), fleeing or eluding, resisting arrest without violence, refusal to submit to testing, and leaving the scene of a crash involving property damage. He argues that he is entitled to a new trial on the driving with a revoked license charge because the trial court failed to give a jury instruction on the necessarily included lesser offense of no valid driver’s license. We agree.

A trial court commits reversible error when it fails to give a jury instruction on a necessarily included lesser offense when the defendant requests it. See Hagood v. State, 824 So.2d 252, 253 (Fla. 4th DCA 2002) (citing State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) (“The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense.”)). Recognizing the jury’s pardon power, the supreme court has stated that, “ ‘[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.’ ” Sanders v. State, 946 So.2d 953, 957 (Fla.2006) (alteration in original) (quoting Reddick v. State, 394 So.2d 417, 418 (Fla.1981)). Because the crime of no valid driver’s license is a necessarily included lesser offense of driving while license, is permanently revoked (habitual offender), see Fla. Std. Jury Instr. (Crim.) 28.11(a), the trial court erred in failing to give the instruction. The defense repeatedly objected when the trial court stated during the charge conference that it was not going to give an instruction on the lesser offense. Therefore, the issue was preserved for appellate review.

Accordingly, we reverse Spence’s conviction for driving while license is permanently revoked and remand for a new trial on that count. We affirm Spence’s remaining convictions and sentences.

Affirmed in part; reversed in part.

WALLACE and KHOUZAM, JJ., Concur.


text:
    Harold MANESS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-503.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Harold Maness appeals his judgment and sentence entered following a violation of probation. We affirm the judgment and sentence without discussion. We remand, however, with instructions that the court remove certain language from the order of revocation of drug offender probation. In paragraph 2 the order reads: “At hearing, the defendant admitted to all the allegations of violations of probation.” In paragraph 3, the order states “the Court accepts the admissions to the violations, finds the violations to be willful and substantial, and revokes and terminates the defendant’s probation.” A review of the hearing transcript reveals that Mr. Maness did not admit to violating probation. To the contrary, when asked whether he admitted or denied violating probation he explicitly answered “I deny it.” Mr. Maness presented a defense at'the hearing and testified on his own behalf. He claimed that his actions — which eventually triggered revocation — were justified because he did not believe that he could fulfill the original terms of his probation. He did not, however, wilfully admit to violating probation.

On remand, the court shall remove from the order of revocation of drug offender probation paragraph 2, and amend paragraph 3, to reflect that Mr. Maness did not admit violating probation.

Affirmed and remanded with instructions.

ALTENBERND, SILBERMAN, and MORRIS, JJ., Concur.


author: SLEET, Judge.

text:
    Ricardo R. RIVERO, Appellant, v. Sheila LEAL, Appellee.
    Nos. 2D13-5079, 2D13-5080.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
    Ricardo R. Rivero, pro se.
    Diane J. Zelmar of Zelmar Law, Ft. Lauderdale, for Appellee.
   SLEET, Judge.

Ricardo R. Rivero appeals the circuit court’s denial of his “motion to challenge jurisdiction and dismiss for lack of subject matter and personam jurisdiction” and “motion for relief from void judgment.” Both motions seek relief from a 2005 order finding Rivero in arrears of more than $14,000 for his child support obligation and ordering ongoing child support. We affirm the orders denying postjudgment relief without further comment. However, we write to caution Rivero against further repetitious and frivolous filings.

Since 2005, Rivero has made considerable, but ultimately fruitless, efforts to avoid paying his support obligation. Although he initiated multiple proceedings in both Florida state and federal courts since 2005, Rivero ultimately failed to raise any claims that would entitle him to relief from the 2005 support order. See, e.g., Rivero v. Taylor, 465 F. App’x 839, 840 (11th Cir.2012) (noting that “nothing in [Rive-ro’s] correspondence would compel a different outcome in the case”). Further abuse of the judicial process may result in sanctions. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999).

Affirmed.

SILBERMAN and BLACK, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Nixon JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5704.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
   SILBERMAN, Judge.

We reverse the postconviction court’s order denying Nixon Joseph’s motion filed under Florida Rule of Criminal Procedure 3.801 as untimely filed.

Mr. Joseph’s sentence became final on April 28, 2012, before the enactment of rule 3.801 on July 1, 2013. He filed his motion on September 25, 2013. At the time that Mr. Joseph filed his motion, rule 3.801(b) recited that “[n]o motion shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final.” When the posteonviction court entered its order on October 15, 2013, the rule had not yet been amended to extend the filing limit for defendants whose sentences became final before July 1, 2013. Defendants in Mr. Joseph’s position, rather than being foreclosed from seeking correction of jail credit, now have until July 1, 2014, to file their motions. See In re Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 272 Ala. 517, 132 So.2d 734 (Fla.2013) (“The rule provides a one-year grace period for sentences imposed prior to July 1, 2013.”).

Accordingly, we reverse the order denying Mr. Joseph’s motion and remand for the postconviction court to consider the merits of the motion.

Reversed and remanded.

WALLACE and CRENSHAW, JJ„ Concur.


author: DAMOORGIAN, C.J.

text:
    Brian D. KABLITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-226.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Carey Haughwout, Public Defender, and PauíE. Perillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

DAMOORGIAN, C.J.

We reconsider on remand our opinion in Kablitz v. State, 134 So.3d- 969 (Fla. 4th DCA 2011), which was quashed by the Florida Supreme Court following its decision in Blackmon v. State, 121 So.3d 535, 548-49 (Fla.2013) (holding that a trial court’s error in failing to instruct the jury pursuant to section 812.025 was “not fundamental error such that we would require a new trial.”). In accordance with the supreme court’s holding in Blackmon, we reverse Kablitz’s conviction for petit theft and remand with directions that the trial court vacate that conviction and resentence him on the dealing in stolen property conviction. We affirm in all other respects.

Remanded for further proceedings.

WARNER and GERBER, JJ., concur.