author: ALTENBERND, Judge.

text:
    Dana McGUINNESS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2284.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Dana McGuinness appeals the trial court’s order withholding adjudication after a jury found her guilty of theft, a felony of the third degree. The trial court sentenced Ms. McGuinness to two years’ probation and ordered her to pay $1000 in restitution to the victim. Because the State failed to prove that Ms. McGuinness possessed the intent to commit theft when she accepted payment from the alleged victim to perform a services contract, we reverse and remand for discharge.

Ms. McGuinness has experience obtaining loan modifications. In October 2010, she was employed at an appliance repair store. A coworker approached her seeking help with a loan modification because he and his wife were having difficulty paying their mortgage. Ms. McGuinness orally agreed to help the couple if they paid her $1000. The couple believed that Ms. McGuinness would file the paperwork necessary to modify their loan so that their home would not go into foreclosure.

The couple paid Ms. McGuinness $1000 in three installments. The husband testified that the couple paid Ms. McGuinness $270 cash in mid-October and then issued a check for $230 on approximately October 30, 2010. The couple made a final cash payment of $500, but the State did not prove when that payment was made. After the couple had paid the entire $1000, they unsuccessfully attempted to contact Ms. McGuinness. She did not return then-emails or phone calls. Ms. McGuinness claimed that she had abruptly left Florida and had traveled to New York because of problems she was experiencing in her marriage.

In December 2010, after being unable to reach Ms. McGuinness, the wife contacted Ms. McGuinness’s mother-in-law. The mother-in-law had owned a loan modification business, and Ms. McGuinness had worked for her as an independent contractor. The mother-in-law testified that, at some point, Ms. McGuinness came to her house explaining that the husband and wife were her clients and that they were in trouble; they needed help with a loan modification. The mother-in-law informed Ms. McGuinness that she was not taking clients at that time, and because Ms. McGuinness accepted money from the couple, she needed to work on the file herself. After Ms. McGuinness left for New York, the mother-in-law was also unable to contact Ms. McGuinness. The mother-in-law voluntarily helped the couple complete the paperwork necessary to modify their loan, but she did not file the paperwork on their behalf.

Ultimately, the wife filed the paperwork necessary to modify the loan herself. She admitted, however, that Ms. McGuinness: (1) provided the paperwork to modify the loan; (2) explained what forms she should gather; (3) instructed her on how to fill out certain forms, some of which were ultimately submitted in order to modify the loan; and (4) contacted the mortgage company on the couple’s behalf. Subsequent to the wife’s submission of the proper paperwork, the loan was modified and the home did not go into foreclosure.

Section 812.014, Florida Statutes (2010), defines theft, in pertinent part, as follows:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

“Even though a promise to perform in the future may serve as the basis of a theft ... the defendant must have the specific intent to commit the theft at the time of, or prior to, the commission of the act of taking.” Frazier v. State, 114 So.3d 461 (Fla. 2d DCA 2013) (emphasis omitted) (quoting Stramaglia v. State, 603 So.2d 536, 537-38 (Fla. 4th DCA 1992)). Here, Ms. McGuinness accepted the money with a promise that she would perform services thereafter.

This case is similar to Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984). In Crawford, the victim hired the defendant to perform a roofing job and paid him $240 to enable him to purchase materials. Id. at 1140. The defendant showed up for work the next day with a helper but with only a bucket of tar and without adequate roofing materials. The defendant told the victim that the materials had not yet been delivered. The victim became upset, fired the defendant, and asked for her money back. Id. at 1140-41. The defendant later admitted to police that he used the deposit to buy food for his family instead of materials. Ultimately, the defendant was convicted of theft. Id. at 1141.

The Crawford court reversed the conviction, finding that showing up with the helper after receiving the down payment “negate[d] the criminal intent of theft.” Id. at 1142. The court found that “[although there may be a serious question as to whether his performance was adequate, this appears to be a civil rather than a criminal issue.” Id. The court further held that the defendant’s “poor performance ... does not equate with any criminal intent for theft by stealing.” Id. See also Segal v. State, 98 So.3d 739 (Fla. 4th DCA 2012) (finding insufficient evidence of intent to commit theft following nonperformance of a construction contract).

The State failed to establish that Ms. McGuinness had an intent to steal from the couple when she agreed to do this work and took their money. The evidence establishes that she partially performed on the contract. She helped collect and prepare paperwork, made contact with the mortgage company on the couple’s behalf, and reached out to her mother-in-law for their benefit. Although she left for New York in the middle of performing this contract, the evidence does not present a jury question that she fled for the purpose of stealing the couple’s money. While the question of the adequacy of Ms. McGuinness’s performance may be at issue, that is an issue for a civil court, not a criminal court. See Crawford, 453 So.2d at 1142.

Reversed and remanded for discharge.

VILLANTI and KHOUZAM, JJ., Concur.

      . See § 812.014(2)(c), Fla. Stat. (2010).


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    Shirley FINTAK, as Personal Representative of the Estate of Edmund P. Fintak, Appellant, v. Thomas S. FINTAK and John B. Fintak, individually and as Cotrustees, and Kathleen F. Dunn, David P. Fintak and Matthew P. Fintak, individually, Appellees.
    No. 2D12-3407.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.

      James L. Essenson and Barbara J. [Welch of the Law Firm of James L. Es-senson, Sarasota, for Appellant.
    Kimberly A. Bald, Adam Mohammad-bhoy and Brian L. Trimyer of Harllee & Bald, P.A., Bradenton, for Appellees Thomas Fintak and John Fintak.
    No appearance filed for remaining Ap-pellees.
   SLEET, Judge.

Shirley Fintak, as personal representative of the estate of Edmund Fintak, appeals an order of the trial court entering final summary judgment on Counts I and II of her second amended complaint against Thomas Fintak and John Fintak, individually and as cotrustees of the Edmund P. Fintak Irrevocable Trust. Because we find that the settlor of a self-settled trust funded with his own assets is not required to renounce any benefits received under the trust before he can challenge its validity, we conclude that the trial court erred in granting final summary judgment for Thomas and John on Counts I and II. We also find that the trial court erred in ruling that Thomas and John were entitled to summary judgment on Counts I and II under various estoppel theories. Thus, we reverse and remand this case to the trial court for further proceedings.

I. FACTUAL BACKGROUND

This is a particularly contentious case involving the dangerous amalgam of family and money. Amidst the family warmongering, this court was able to suss out the following facts relevant to this appeal.

Edmund Fintak and Shirley Fintak married in 1998. Edmund had six children from a previous marriage, including Thomas Fintak, John Fintak, Kathleen Dunn, David Fintak, Matthew Fintak, and Michael Fintak. But the issues in this case find their genesis in Edmund’s visits to the office of attorney Jason DePaola in September 2006. During one of these visits, Edmund, accompanied by his son Thomas, executed the Edmund P. Fintak Sr. Irrevocable Trust (the Trust), prepared by Mr. DePaola. The Trust is self-settled, i.e., created by Edmund for the benefit of Edmund, and was initially funded entirely by Edmund’s assets, which consisted of a substantial portion of his life savings. The Trust named Edmund, Thomas, and John as cotrustees.

As stated in the Trust, its purpose was to provide for Edmund’s health, education, and support in reasonable comfort. Article III of the Trust governs the administration of the Trust during Edmund’s lifetime. In addition to providing for regular payments from the income of the Trust, Article 111(A) of the Trust provides that during the lifetime of Edmund the cotrus-tees “shall pay to or apply for the benefit of [Edmund] such part of the principal of the trust as [Edmund] shall request in writing from time to time.” In the event that Edmund became incapacitated or unable to properly manage his affairs, Article III(B) requires the cotrustees to exercise their discretion to use the income and principal of the Trust for Edmund’s “care, support and comfort ... or for any other purpose the [cotrustees] deem[ ] to be for the best interest of [Edmund].”

Article VI of the Trust governs the administration of the Trust following Edmund’s death and provides that the remaining income and principal of the Trust should be divided in six equal shares and distributed to Edmund’s children. The Trust makes no provision for, and no mention of, Shirley.

Beginning in January 2007, Edmund received income from the Trust on a periodic basis and also received funds from principal invasions made at his written request. But in February 2007, suspecting that Edmund was incapacitated, Edmund’s children initiated incapacity proceedings in Sarasota County. The petition for incapacity was subsequently dismissed in favor of Edmund. Afterward, rather than making disbursements to Edmund, Thomas and John used the principal of the Trust to directly pay Edmund’s bills.

On August 3, 2007, Edmund filed the initial complaint against Thomas and John to compel payment of a particular written demand for $30,000 and to set aside the Trust based upon coercion. In March 2010, Edmund executed a codicil, exercising a power of appointment under the Trust, to bequeath the remainder of the Trust assets to Shirley. On March 11, 2010, Edmund filed a second amended complaint raising five counts against Thomas and John, including: (1) undue influence (Count I); (2) lack of testamentary capacity (Count II); (3) a request for judicial modification of the irrevocable trust (Count III); (4) breach of trust (Count IV); and (5) a request for declaratory judgment (Count V).

At this point, the facts diverge. On the one hand, Edmund and Shirley accuse Thomas and John of undue influence and coercion in selecting Jason DePaola rather than Edmund’s regular attorney, Michael Reiter, to prepare the Trust. According to Edmund and Shirley, this alleged undue influence caused “Edmund’s hard-earned assets” to come under the control of Thomas and John and caused an increase in the shares of Edmund’s estate to the remainder of Edmund’s children. Edmund and Shirley also alleged that Thomas and John encouraged Edmund to drink alcohol with the knowledge that Edmund was taking prescribed medication for Parkinson’s Disease and that the combination of alcohol and prescription drugs would “exacerbate Edmund’s confusion and forgetfulness” to the point that when he executed the Trust, he did not understand its nature and extent. These allegations provide the basis for Edmund’s claims for undue influence and lack of testamentary capacity.

On the other hand, Thomas and John allege that Shirley was controlling Edmund and that Edmund originally sought advice from Jason DePaola regarding a divorce from Shirley. According to Thomas and John, Shirley threatened that they would never see their father again if they did not set aside the Trust. They contend that Shirley moved Edmund to Michigan and refused to provide his children with his location. Thomas and John assert that they used the Trust assets to pay for Edmund’s care by paying his expenses directly. Based on these accusations, Thomas and John filed an answer and affirmative defenses to the second amended complaint alleging that Shirley manipulated Edmund into filing this action, Edmund lacked the mental capacity to prosecute this action, and Edmund was estopped from bringing his claims because of an improper conversion of the Trust assets. Thomas and John also filed several counterclaims, which included an action to construe and declare the meanings of Article III and X of the Trust, an action for reformation of the Trust, and an action for conversion of the Trust assets against Shirley and Edmund.

While the action was pending in the trial court, Edmund passed away. Shirley, as the personal representative of Edmund’s estate, was substituted as the plaintiff. Thereafter, Shirley filed a petition for probate of Edmund’s estate in Luce County, Michigan. The petition acknowledges and includes the Trust as a beneficiary of Edmund’s estate. Additionally, Shirley filed an inventory of Edmund’s estate that listed the Trust as an asset.

Thomas and John moved for summary judgment on Counts I and II of the second amended complaint, arguing that Shirley, substituted for Edmund, was barred from bringing actions for undue influence and lack of testamentary capacity because Edmund failed to renounce benefits received under the Trust and because Shirley took inconsistent legal positions by listing the Trust as a beneficiary and asset of Edmund’s estate in the probate action filed in Michigan. In ruling on the motion, the trial court found that Edmund received and accepted benefits under the Trust and never returned or offered to return any of the Trust assets he received. The trial court also concluded that Shirley’s act of listing the Trust as a beneficiary and asset of Edmund’s estate in the Michigan probate proceeding was inconsistent with her assertions in this action that the Trust is invalid. Because the trial court concluded that renunciation was a condition precedent to challenging the Trust’s validity, it entered final summary judgment in favor of Thomas and John on the claims for undue influence and lack of testamentary capacity.

On appeal, Shirley contends that the trial court erred in granting summary judgment on Counts I and II because neither the renunciation rule nor estoppel applies to the facts of this case. We agree.

II. ANALYSIS

A. The Standard of Review

A party is entitled to summary judgment if no genuine issues of material fact exist and if the moving party is entitled to a judgment as a matter of law. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); see also Fla. R. Civ. P. 1.510(c). Although the parties intensely dispute the overall facts of this case, they do not dispute that Edmund received distributions from the Trust that he did not return or offer to return. Nor do the parties dispute that Shirley listed the Trust as a beneficiary and asset of Edmund’s estate. Because the parties do not dispute the facts relevant to the issues on appeal, the only dispositive questions on appeal are strictly questions of law. Thus, the applicable standard of review is de novo. Aberdeen at Ormond Beach, 760 So.2d at 130-31.

B. The Renunciation Rule

First, the trial court ruled that Thomas and John were entitled to summary judgment because renunciation of the benefits received under the Trust was a condition precedent to Shirley’s claims for undue influence and lack of testamentary capacity, and, therefore, a lack of renunciation was fatal to those claims.

The “renunciation rule,” established by the English ecclesiastical courts, originally provided that “a legatee, who has received a legacy by virtue of a will, must [return] the legacy before being permitted to contest the will.” Hamblett v. Hamblett, 6 N.H. 333, 337 (1833). The rule was interpreted by American courts to require that “one who receives and retains a gift under a ... will or other instrument is estopped to contest the validity of the instrument under which he derives his interest.” Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535, 536 (Fla.1950). In Barnett National Bank, the Florida Supreme Court articulated three rationales for the renunciation rule: (1) to protect the trustee in the event the trust is held invalid; (2) to demonstrate the sincerity of the contestant and to demonstrate that the suit is not merely vexatious; and (3) to have the property readily available for disposition at the outcome of the challenge. See id. at 537. In reaching its decision the court also reasoned that “before the plaintiff will be permitted to contest the trust agreement through which he has derived [his] interest he must do equity.” Id. (emphasis added). Clearly, the renunciation rule as adopted into Florida law is an equitable doctrine.

Here, Thomas and John successfully argued to the trial court that the Trust owned the assets and that as a result Edmund was merely a beneficiary whose interests in the Trust assets derived from the Trust itself. They also contended that renunciation was required to protect them as cotrustees in the event the Trust is declared invalid, to prevent vexatious claims, and to preserve the assets of the Trust. However, all of the cases cited by Thomas and John concerning the renunciation rule involve the receipt of benefits from an instrument executed by a third party, and which, upon that third party’s death, the validity of the instrument was challenged by a legatee, devisee, or beneficiary whose interest derived solely from the instrument itself. See Carman v. Gilbert, 641 So.2d 1323 (Fla.1994) (legatee challenging a will); Barnett Nat’l Bank, 49 So.2d 535 (beneficiary challenging validity of trust created by third party); Pournelle v. Baxter, 151 Fla. 32, 9 So.2d 162 (1942) (legatee challenging validity of a will); In re Estate of Filion, 353 So.2d 1180 (Fla. 2d DCA 1977) (same); In re Estate of Harby, 269 So.2d 433 (Fla. 2d DCA 1972) (same); In re Estate of Pellicer, 118 So.2d 59 (Fla. 1st DCA 1960) (same).

Thomas and John concede that no case in Florida, nor any case in another jurisdiction, has held that a settlor of a self-settled, inter vivos trust must renounce any benefits received before he can challenge the validity of a trust that he himself created and funded with his own assets. We believe no legal precedent exists for this proposition because it is axiomatic that one who funds a trust with his or her own assets does not have to renounce any benefits received as a condition precedent to instituting a challenge to the validity of the trust. The renunciation rule is inapplicable in this scenario because there can be no gift or devise to a set-tlor/beneficiary of a self-settled trust because his or her interest does not derive from the trust itself. This is especially true when the settlor has simply transferred what he or she already legally owns into a trust in which he or she is the sole beneficiary during his or her life.

Unlike the cases wherein a beneficiary’s interest derives solely from an instrument executed by another party, in this case, Edmund was legally entitled to receive the benefits of the Trust even if the Trust never existed. In the event the Trust is declared invalid, no other party besides Edmund (and now Shirley on his behalf) would have an interest or claim in the assets held under the Trust. Under Barnett National Bank, one reason articulated for the renunciation rule was to protect the assets of the trust or other instrument to ensure the assets would be free from adverse claims and available for distribution to the rightful owner or beneficiary. 49 So.2d at 537. However, such a concern does not exist in this case; there are no claimants who could be adversely or injuriously affected by Edmund’s receipt of his own assets from the Trust. Thus, the third rationale for the renunciation rule as articulated in Barnett National Bank is inapplicable to this situation.

In light of the fact that no claimants exist who have an interest superior to that of Edmund’s in the Trust assets, Thomas and John have not alleged a single cognizable claim that could be instituted by Edmund, as the sole beneficiary and sole party with an interest in the Trust assets, against them as cotrustees in the event the Trust is declared valid. We conclude that no such claim exists because regardless of the outcome, Edmund will still receive the assets of the Trust; the only differentiating factor is Edmund’s level of control over the assets. Therefore, the protections afforded to trustees by the renunciation rule are unnecessary where the settlor of a self-settled, inter vivos trust, who is the sole beneficiary during his lifetime, initiates a challenge to the validity of the trust. Hence, the first rationale for the renunciation rule is also inapplicable to the present case.

As to the second rationale, the risk that an individual initiated an insincere or vexatious claim is present in every action. Standing alone, this risk is an insufficient reason to require renunciation. Additionally, this risk is mitigated by the fact Edmund is challenging the validity of his own prior act in executing the Trust rather than the act of another party. Such a self-deprecating action is inherently less suspect.

Last, because Edmund owned all of the assets within the Trust prior to its creation, he would be entitled to the income and principal in any event, and the renunciation rule would not do equity. Under the facts of this case, requiring renunciation would be to elevate form over substance. See Medary v. Dalman, 69 So.2d 888, 890 (Fla.1954). The case of Medary v. Dalman is illustrative of this point. In Medary, the husband was a devisee of a one-fourth interest in certain property bequeathed to him under his deceased wife’s will. Id. at 889. When the will was admitted to probate, the husband filed suit in equity to have a trust declared in his favor as to the entire property because he supplied all the funds to purchase the property and the title was taken in his wife’s name for convenience only. He did not intend for the property to be a gift or advancement to the wife. The husband did not renounce the devise to him under his wife’s will prior to filing suit and the action was dismissed. On appeal, the Florida Supreme Court held that the husband was not required to renounce the devise to him of the one-fourth interest in the same property prior to filing suit because the husband

either owns the entire property, or title to one-fourth of it has vested in him by virtue of his wife’s will. This is a case where the donee would not receive under the will a benefit to which he would not be entitled except for the will, in which event no election is required. A renunciation in such a case would be more of form than of substance, for even if he lost in his suit to establish a resulting trust on the theory that the property is not part of the wife’s estate and consequently not subject to devise, he would still be entitled to take under the will.

Id. at 890 (internal quotation marks and citations omitted).

In light of the foregoing, we find that the renunciation rule is inapplicable to the facts of this case and the trial court erred in granting summary judgment for Thomas and John on the ground that Shirley’s claims were barred by the renunciation rule.

C. Estoppel by Acceptance of Benefits

The trial court’s second justification for granting Thomas and John’s motion for summary judgment was its finding that Shirley was estopped from asserting claims for undue influence and lack of testamentary capacity because Edmund received and accepted disbursements from the Trust.

First, we conclude that the concept of estoppel based upon the acceptance and retention of benefits is practically identical to the renunciation rule. And, in fact, the only differentiating feature is the context in which the two doctrines developed. Generally, the doctrine of estoppel holds “that a person should not be permitted to unfairly assert, assume or maintain inconsistent positions.” Head v. Lane, 495 So.2d 821, 824 (Fla. 4th DCA 1986) (emphasis added). One “form of estoppel occurs where a person attempts to repudiate the obligations and validity of a transaction after accepting the benefits resulting from it.” Id. However, as we held in the context of the renunciation rule, an individual cannot be estopped from challenging an instrument by accepting that which he or she is legally entitled to receive regardless of whether the instrument is sustained or overthrown. Cf. Medary, 69 So.2d at 890; see also Ford v. Yost, 299 Ky. 682, 186 S.W.2d 896, 900 (1944) (“As a general rule of the doctrine [of estoppel], one cannot be estopped by reason of accepting that which he is legally entitled to receive in any event.”); In re Will of Smith, 158 N.C.App. 722, 582 S.E.2d 356, 358 (2003) (finding that estoppel did not bar a challenge to the validity of a will because the devisee would have been entitled to the property even if the will was declared invalid); In re Will of Peacock, 18 N.C.App. 554, 197 S.E.2d 254, 255 (1973) (concluding that it would not be inequitable to allow a party to challenge the validity of a will even though he already accepted a benefit under the will because the party would be entitled to the benefit even if the will was declared invalid).

We have considered the legal authority cited by Thomas and John, but conclude that the eases are inapplicable. See, e.g., AVVA-BC LLC v. Amiel, 25 So.3d 7, 11 (Fla. 3d DCA 2009); Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So.2d 1089, 1092 (Fla. 3d DCA 1979); Scocozzo v. Gen. Dev. Corp., 191 So.2d 572, 579 (Fla. 4th DCA 1966). First, the creation, termination, and invalidation of trusts is governed by the Florida Trust Code and the equitable principles pertinent to trusts, not general contract law. Second, any and all cases discussing estoppel by the acceptance of benefits submitted by Thomas and John refer to a party accepting benefits under a contract; that is, the benefits referred to are conferred solely by operation of a contractual agreement. Such is not the case here. As discussed at length above, Edmund would have been legally entitled to the assets of the Trust if the Trust was never created and in the event the Trust is declared invalid.

Under these circumstances, the trial court erred in granting summary judgment on Counts I and II based on the doctrine of estoppel by the receipt and acceptance of benefits.

D. Estoppel by Demand for Performance

As a third justification for granting summary judgment in favor of Thomas and John, the trial court found that Edmund was estopped from attempting to have the Trust declared invalid because he made demands for performance under the Trust. Similarly, Thomas and John also argue that Edmund’s execution of a codicil exercising the power of appointment under the Trust constitutes an inconsistent position that should likewise bar his claims for undue influence and lack of testamentary capacity.

As noted previously, the doctrine of estoppel precludes an individual from maintaining inconsistent positions. However, estoppel applies only when the act of taking inconsistent positions results in prejudice to another party who relied on such conduct. See Pelican Island Prop. Owners Ass’n, Inc. v. Murphy, 554 So.2d 1179, 1181 (Fla. 2d DCA 1989) (“The doctrine of estoppel should be applied with great caution and is applied only where to refuse its application would be virtually to sanction a fraud.”). A party is permitted to plead in the alternative during litigation, and it follows that a party may also take inconsistent actions in his or her own affairs as a mechanism for “hedging the bets,” so long as that action does not result in prejudice to another party. See Fla. R. Civ. P. 1.110(g) (“A party may ... state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.”). Here, Thomas and John have not alleged any prejudice resulting from Edmund’s allegedly inconsistent positions.

As such, we find that Edmund’s demand for performance and execution of the power of appointment under the Trust do not act to bar his claims that the Trust was invalid, and, hence, the trial court erred in granting summary judgment on this ground.

E. Estoppel by Taking Inconsistent Legal Positions (Judicial Estoppel)

Last, the trial court ruled that Shirley was estopped from challenging the validity of the Trust because she took an inconsistent legal position when she filed a petition for probate and appointment of personal representative for Edmund’s estate in Luce County, Michigan, in which she listed the Trust as a beneficiary and asset of Edmund’s estate. According to the trial court, such action constituted an admission that the Trust was valid, estop-ping Shirley from alleging that the Trust was invalid in the current proceeding.

“ ‘Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings.’ ” Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001) (quoting Smith v. Avatar Props., Inc., 714 So.2d 1103, 1107 (Fla. 5th DCA 1998)). The doctrine of estoppel against inconsistent positions in judicial proceedings

“is based upon the theory that, where a party has made a record of his own case, upon which record he has sought and secured from a court a final judicial order or judgment based on the allegation made by him that the facts of his case as alleged by him in his own pleadings are true, which allegations as to the issuable facts have been likewise accepted by the opposite party as true, for the purpose of having rendered by the court its final decision or judgment on such record, thereafter each of the parties is estopped to alter his position on the record to the prejudice of an adverse party, where the parties and the subject-matter involved in the litigation remain the same.”

Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41-42 (Fla. 1st DCA 1970) (quoting Palm Beach Co. v. Palm Beach Estates, 110 Fla. 77, 148 So. 544, 548 (1933), abrogated by Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 506 (Fla.1992) (departing from Palm Beach Co. to the extent that it prohibited amendments of pleadings to plead in the alternative)). Judicial estoppel applies when the following elements are met: (1) the party against whom estoppel is sought must have asserted a clearly inconsistent or conflicting position in a prior judicial proceeding; (2) the position assumed in the former proceeding must have been successfully maintained; (3) both proceedings must involve the same parties and same questions; (4) the party claiming es-toppel must have relied on or been misled by the former position; and (5) the party seeking estoppel must have changed his or her position to his or her detriment based on the representation. See Blumberg, 790 So.2d at 1066 (quoting Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610-11 (1934)); In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005).

First, in this case, Shirley’s act of listing the Trust as a devisee on the petition for administration and as an asset of Edmund’s estate does not constitute an inconsistent legal position because, as the personal representative of Edmund’s estate, the probate rules of Michigan required her to list all beneficiaries and assets of the estate. See Mich. Comp. Laws §§ 700.3301(l)(a)(ii) & 700.3706 (2011). Moreover, under Michigan law, an inventory does not provide conclusive evidence of the assets of an estate and may subsequently be corrected. See Peckham v. Hoag, 57 Mich. 289, 23 N.W. 818, 819 (1885). Merely listing the Trust in these documents did not constitute an admission that the Trust is valid, and the position asserted by Shirley in the probate proceeding cannot be deemed an affirmation as to the validity of the Trust.

If we were to hold otherwise, the practical effect of such a holding would lead to an untenable result. When Shirley filed the petition for probate and inventory, no court had ruled that the Trust was invalid and unenforceable, and Shirley could not proceed as though a court had so determined. We decline to discourage individuals from making a full and fair disclosure to a court in a probate proceeding. Furthermore, the record contains no evidence that the Trust was deemed valid by judicial decree or other official court action in the Michigan probate proceeding. As such, the second element of judicial estop-pel, i.e., that the inconsistent position assumed must have been successfully maintained in another proceeding, has not been met. See Olin’s Inc. v. Avis Rental Car Sys. of Fla., Inc., 104 So.2d 508, 511 (Fla.1958).

Second, even if the act of listing the Trust as a devisee or asset of Edmund’s estate constituted an admission that the Trust was valid, Thomas and John have not alleged that they relied on that representation or that they changed position on such admission to their detriment. Thus, the fourth and fifth elements of judicial estoppel have not been met either.

Consequently, the trial court erred in granting final summary judgment in favor of Thomas and John on the basis of judicial estoppel.

III. CONCLUSION

For the foregoing reasons, we conclude that the trial court erred in granting final summary judgment in favor of Thomas and John on Shirley’s claims for undue influence (Count I) and lack of testamentary capacity (Count II). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

SILBERMAN and WALLACE, JJ„ Concur.

      . The motion for summary judgment at issue in this appeal was filed by Thomas and John; therefore, for clarity's sake we do not refer to Appellees Kathleen Dunn, David Fintak, and Matthew Fintak in this opinion.

      . The parties do not dispute that until the creation of the Trust, Edmund had regularly consulted attorney Michael Reiter to conduct his legal affairs.

      . Edmund was removed as cotrustee by court order in October 2008.

      . Article X of the Trust also provides that if disbursements must be made from the Trust to "a person under legal disability or to a person not adjudicated legally incapacitated but who, by reason of illness or mental disability, is in the opinion of the [cotrustees] unable to properly administer such amounts, then such amounts shall be used by the [co-trustees] directly for the beneficiaryf].” The interplay of Articles III(B) and X form the basis of several of the disputes below, but is not relevant to the issues raised in this appeal.

      . Although Article VI of the Trust provides for distribution to Edmund's children in six equal shares, Michael was mistakenly omitted from the distribution list. This omission forms the basis of Thomas and John's counterclaim for reformation of the Trust to include Michael as a named beneficiary.

        . A second petition for incapacity was filed by Edmund's children in March 2010 after Edmund relocated to Michigan. This petition was also dismissed in favor of Edmund.

      . The basis of this claim arises from Edmund and Shirley's impermissible withdrawal of certificates of deposit from Wachovia Bank, N.A., titled in the name of the Trust. These allegations also formed the basis of an action initiated by Thomas and John in 2008 against Wachovia in the United States District Court for the Middle District of Florida. In that action, Wachovia impleaded Shirley and Edmund. The case was settled in June 2010 with Wachovia contributing $49,000 to the Trust and Edmund and Shirley contributing an additional $10,000. As part of the settlement agreement, Thomas and John retained the right to pursue a claim against Edmund and Shirley for the remainder of the funds improperly removed from Wachovia Bank.


author: BLACK, Judge.

text:
    James Peter TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5921.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.

      James Peter Turner, pro se.
   BLACK, Judge.

James Turner pleaded guilty to aggravated assault, carrying a concealed weapon, and possession of marijuana and was sentenced to two years’ probation on May 19, 2010. On June 13, 2011, his probation was terminated. Upon discovery that his criminal record could not be sealed or expunged, contrary to the information he alleges he received from his trial attorney, Turner filed a timely motion to vacate his conviction pursuant to Florida Rule of Criminal Procedure 3.850(b). The motion was twice dismissed without prejudice to amend for failure to properly swear to allegations in the motion. On October 23, 2012, Turner’s second amended motion was dismissed as moot, based on the termination of Turner’s probation. On appeal, Turner challenges the dismissal of his motion, arguing that the collateral consequences of his convictions prevent his motion from being moot.

Turner raised various claims in his motion, none of which were addressed by the postconviction court. Citing Raines v. State, 14 So.3d 244 (Fla. 2d DCA 2009), and State v. Lasley, 513 So.2d 1372 (Fla. 2d DCA 1987), the postconviction court dismissed the motion. However, Turner is not challenging the legality of his sentence; he is collaterally attacking his conviction. Cf. Raines, 14 So.3d at 246 (stating that “a sentence cannot be challenged after it has been fully served” (emphasis added)). Further, the postconviction court’s reliance on Lasley is misplaced. While the holding of Lasley is that “[i]n the absence of any form of current incarceration, it is manifest that rule 3.850 is not an available platform from which [the defendant] can launch a collateral attack,” 513 So.2d at 1373, the postconviction court failed to recognize that the language of rule 3.850 has changed since the 1987 Lasley ruling and no longer requires that the prisoner be in custody. See Fla. R. Crim. P. 3.850(a) (“The following grounds may be claims for relief from judgment or release from custody ....” (emphasis added)); Wood v. State, 750 So.2d 592, 595 (Fla.1999); see also Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (recognizing Florida courts hold that “an otherwise moot case will not be dismissed if collateral legal consequences that affect the rights of a party flow from the issue to be determined”); Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003) (“[T]he appeal was not moot even though the defendant had completed his sentence because the ‘possibility of removing the stigma of a conviction represents a significant practical purpose demonstrating the continuing viability of the appeal.’ ” (quoting Lamb v. State, 526 So.2d 998, 998 (Fla. 1st DCA 1988))).

The supreme court has expressly held that “both custodial and noncustodial movants may rely on and be governed by” rule 3.850. Wood, 750 So.2d at 595; see also State v. Green, 944 So.2d 208, 213-14 (Fla.2006) (“In Wood, this Court eliminated the requirement in rule 3.850 that the defendant be in custody_”). Thus, “[r]ule 3.850 is an appropriate vehicle to seek postconviction relief regardless of whether the movant is ‘in custody.’ ” Auritt v. State, 958 So.2d 1052, 1053 (Fla. 1st DCA 2007).

We reverse the dismissal of Turner’s motion and remand for the postconviction court to consider the motion on the merits.

WALLACE and CRENSHAW, JJ., Concur.


author: GRIFFIN, J.

text:
    AGIC, INC., Petitioner, v. NORTH AMERICAN RISK SERVICES, INC., et al., Respondent.
    No. 5D13-1533.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    John E. Johnson, Shutts & Bowen, LLP, Tampa, for Petitioner.
    Phillip S. Howell and Stephen A. Mes-ser, of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Tampa, for Respondent, Irvin B. Green and Associates, Inc.
    Daniel A. Martinez and Inguna Varsla-vane-Callahan, of Callahan Martinez, LLC., St. Petersburg, for Respondent, North American Risk Services, Inc.
   GRIFFIN, J.

Petitioner, AGIC, Inc. ([“AGIC”], seeks certiorari review of the order granting Respondent, Irvin B. Green & Associates, Inc.’s [“IBGA”], motion to disqualify its counsel, Shutts & Bowen, LLP [“Shutts & Bowen”]. In February 2010, prior to the filing of the lower court action, IBGA retained attorney Ellen Novoseletsky [“Novoseletsky”] to provide some drafting advice for the amendment to the Managing General Agency agreement [“MGA”]) between IBGA and AGIC. Novoseletsky spent approximately five billable hours on the assignment. Novoseletsky subsequently joined Shutts & Bowen in October 2011.

Respondent, North American Risk Services, Inc. [“NARS”], originally filed the underlying action against AGIC on August 27, 2012. The complaint included claims against AGIC for breach of contract and against IBGA for indemnity. The legal dispute arose out of the relationship between the parties pursuant to two contracts, the amended MGA and a Claims Service Agreement [“CSA”]. In the original MGA, IBGA contracted with AGIC (an insurance company in Florida) to serve as AGIC’s managing general agent. In the CSA, NARS contracted with both AGIC and IBGA to process insurance claims for AGIC. Pursuant to the terms of the CSA, NARS was responsible for processing claims and IBGA was responsible for originating policies for AGIC.

On June 7, 2012, AGIC terminated both NARS and IBGA on the basis of their gross negligence and inaction in the performance of their duties in handling policies, including administration, underwriting, and adjusting. NARS then filed suit against AGIC for not making payments under the terms of the contract and for wrongful termination. As IBGA was also sued by NARS for indemnity, IBGA on September 13, 2012, filed a counterclaim against NARS and a cross-claim against AGIC.

Prior to the filing of its answer/affirmative defenses and cross-claim/counterclaim, IBGA learned that the law firm of Shutts & Bowen was representing AGIC with regard to the present legal dispute. Because Ellen Novoseletsky, a partner at Shutts & Bowen, previously represented IBGA with regard to the drafting of the amended MGA, IBGA moved to disqualify Shutts & Bowen at the same time it filed its answer.

IBGA’s executive vice-president, Tom Johnston, submitted an affidavit which states, in part:

In or about February 2010, attorney Ellen Novoseletsky was retained by Irvin B. Green & Associates, Inc. to help draft a Managing General Agency Agreement.
During the time that attorney Novose-letsky was retained by Irvin B. Green & Associates, Inc., internal, confidential information was discussed between myself, attorney Novoseletsky and a select few management-level employees at Irvin B. Green & Associates, Inc. These discussions were directly related to the terms and intent of the Managing General Agency Agreement that attorney Novoseletsky was helping to revise and draft.

Ms. Novoseletsky submitted an affidavit on behalf of AGIC which stated, in part:

Prior to joining Shutts & Bowen, I was employed by Hicks Porter Ebenfeld & Stein, P.A. (“Hicks Porter”) from April 2001 to August 2011.
While at Hicks Porter, I represented Irvin B. Green & Associates, Inc. (“IBGA”) in connection with the review of and revisions to an agreement between IBGA and AGIC, INC. (“AGIC”), the Management General Agency Agreement (the “MGA”).
During the course of my representation of IBGA, I had no involvement whatsoever with the instant litigation between IBGA, AGIC and North American Risk Services, Inc. (“NARS”). I have had no involvement with the litigation between the parties and have no access to any files in that case.
During the course of my representation of IBGA, I had no communication with representatives of IBGA about the actual performance or breach of any obligation by any party to the MGA or any other agreement involving AGIC.

On March 13, 2013, the trial court heard argument on IBGA’s motion to disqualify counsel, but did not conduct an evidentiary hearing. On March 28, 2013, the trial court entered its order disqualifying Shutts & Bowen.

At the outset, we note that the order contains a factual error:

From April 2001 through August 2011, Attorney Ellen Novoseletsky represented IBGA.

Neither party asserted that Novoseletsky represented IBGA for over ten years. Novoseletsky’s affidavit stated: “I was employed by Hicks Porter Ebenfeld & Stein, PA from April 2001 to August 2011.” She only represented IBGA during the month of February 2010, as verified by Johnston’s affidavit. Her supplemental affidavit clarified that her representation of IBGA took place in February 2010, was limited exclusively to reviewing and revising the MGA, and involved about five hours of attorney time. She added that she joined Shutts & Bowen in October 2011, and reiterated that she had no knowledge or information as to any matters involving breach or performance under the MGA.

In its order granting the motion to disqualify, the trial court found that during the time of representation as IBGA’s attorney:

Ellen Novoseletsky was privy to confidential information directly related to the terms and intent of the MGA.

AGIC asserts that Novoseletsky has never worked on the instant litigation and has no access to the files of the case. Nor does the instant litigation involve the interpretation of the MGA. AGIC argues that the trial court departed from the essential requirements of law by disqualifying Shutts & Bowen, as Novoseletsky did not possess any confidential information of IBGA that is material to the underlying action. In the alternative, AGIC argues that an evidentiary hearing should have been conducted since the affidavit filed on behalf of IBGA indicated that confidential information was disclosed to Novoseletsky, while the affidavit filed on behalf of AGIC indicated that no material, confidential information was disclosed.

Rule 4-1.10(b) of the Florida Rules of Professional Conduct deals with a lawyer who formerly represented a client in another firm, providing:

Imputation of Conflicts of Interest; General Rule
(b) Former Clients of Newly Associated Lawyer.
When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

Although Johnston’s affidavit asserted that confidential disclosures were made during Novoseletsky’s representation of IBGA, it is not clear from the affidavit whether these confidential communications would be material to the issues in the underlying litigation. Johnston’s affidavit states only that the discussions concerned the intent and terms of the MGA. At the non-eviden-tiary hearing the trial judge observed:

I think there has to be an evidentiary hearing because there’s no way for this Court to know when you have competing affidavits. One’s saying that the only information obtained is not material to this lawsuit and I’m not involved in the lawsuit. And the other affidavit doesn’t specifically say that but may infer that.

In the same vein, the trial judge later stated, “I just don’t think I have enough,” and decided to defer ruling on the motion to disqualify. However, the trial judge later entered the order granting the motion to disqualify without first conducting an evidentiary hearing. The judge’s first instincts were correct.

In Solomon v. Dickison, 916 So.2d 943 (Fla. 1st DCA 2005), a medical patient and her parents filed a petition for writ of certiorari challenging the trial court’s order disqualifying their attorney and his law firm from representing them in a medical malpractice action against a hospital based on the attorney’s former association with the hospital’s law firm. The First District Court of Appeal quashed the trial court’s order. The First District found that the case was controlled by Rule 4-1.10(b) because it involved a motion for disqualification of opposing counsel who transferred from one firm to another. The court held that since the plaintiffs’ attorney did not represent the hospital with respect to the plaintiffs’ claim before switching firms, the proper standard was whether the attorney acquired confidential information that was material to the instant claim while working for the former firm. Because there was conflicting evidence as to that issue, the trial court departed from the essential requirements of law in disqualifying the law firm without resolving the factual dispute. The trial court in that case merely presumed that confidences were disclosed based on the attorney’s prior representation of the hospital.

Although IBGA asserts that the competing affidavits are not in conflict, there is a factual issue that the trial court needs to resolve by an evidentiary hearing before the Shutts & Bowen can be disqualified. The trial court must receive evidence to determine if, during her limited representation of IBGA, Novoseletsky received confidential information material to the issues in the underlying litigation. We accordingly grant the petition for certiorari, quash the order disqualifying counsel and remand for an evidentiary hearing to determine the facts.

Petition GRANTED; Order QUASHED; and REMANDED.

TORPY, C.J., and ORFINGER, J„ concur.

      . An order granting a motion to disqualify counsel may be reviewed by certiorari. See Holland v. Tenenbaum, 360 So.2d 493 (Fla. 4th DCA 1978) (certiorari petition granted where counsel was removed from case without an evidentiary hearing, and affidavits filed by the parties did not agree on the issue presented).

      . This supplemental affidavit was filed in connection with the motion for reconsideration.


author: COHEN, J.

text:
    Tyler KIRTON, Appellant, v. Chris McKISSICK, Appellee.
    No. 5D13-1180.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    David D. Fuller and Lauren Y. Koleilat of Koleilat & Miller, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   COHEN, J.

Appellant, Tyler Kirton, appeals from the amended final judgment granting an extension of an injunction for protection against repeat violence. On appeal, Kirton argues that the trial court abused its discretion in determining that Appellee, Chris McKissick’s continuing fear of violence by Kirton was reasonable. We disagree and affirm.

Kirton is currently married to McKis-sick’s ex-wife. In March 2012, McKissick obtained a final judgment of injunction for protection against repeat violence against Kirton after Kirton physically attacked McKissick on two occasions. The injunction was set to expire on April 1, 2013, prompting McKissick to file a motion seeking to extend it. The trial court held an evidentiary hearing on the motion. The testimony revealed that Kirton was prosecuted for the initial battery upon McKis-sick and placed into a pretrial diversion program. Upon Kirton’s completion of the program, McKissick began receiving harassing phone calls at his home in the middle of the night. McKissick also testified that, the week before the hearing, Kirton confronted McKissick’s current wife at a grocery store, calling her names and making an obscene gesture at her. After the hearing, the trial court extended the injunction until April 1, 2015.

On appeal, Kirton argues that the trial court erred in granting the extension because he had not committed additional acts of violence against McKissick during the pendency of the initial injunction. In fact, Kirton had no direct contact with McKis-sick during that time.

In determining whether to grant an extension of a repeat violence injunction, the trial court’s analysis is not limited to determining whether the respondent committed additional acts of violence during the pendency of the initial injunction. Rather, the appropriate analysis focuses on whether the petitioner’s professed continuing fear of future violence is reasonable under the circumstances. See Patterson v. Simonik, 709 So.2d 189, 190 (Fla. 3d DCA 1998). In making this determination, the trial court looks to both the respondent’s conduct during the pendency of the injunction as well as the circumstances that led to the granting of the initial injunction. See id. at 191.

While we acknowledge that this case presents a close call, we conclude that the trial court did not abuse its discretion in granting the requested extension. Although neither the grocery store incident nor the late night phone calls alone would justify the granting of an injunction, the trial court acted within its discretion in determining that the timing of those incidents, coupled with Kirton’s prior violent behavior, gave McKissick a reasonable fear of future violence. See id.; see also Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001).

We find the remaining issue raised to be without merit. Accordingly, we affirm.

AFFIRMED.

TORPY, C.J., and ORFINGER, J., concur.

      . Those phone calls were answered by McKis-sick's current wife, who could not identify the caller.

      . We agree with the Third District's view, as set forth in Patterson, that the standard applied in determining whether to extend a domestic violence injunction is equally applicable in the repeat violence injunction setting.


text:
    Charles C. MOORE, Appellant, v. Sandra L. MOORE, Appellee.
    No. 5D12-2234.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.

      James F. Keedy and Barry P. Burnette, of Keedy & Burnette, P.A., Tavares, for Appellant.
    Kimberly T. Van Der Riet, of Killgore, Pearlman, Stamp, Ornstein & Squires, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Charles C. Moore, Jr. [“Former Husband”] appeals a final judgment of dissolution of marriage, asserting multiple errors. We find merit in only two. We agree that the trial court erred in determining the net income of Sandra L. Moore [“Former Wife”], and that the trial court also erred in setting off equitable distribution monies that Former Husband owed to Former Wife against Former Wife’s bridge-the-gap alimony obligation.

Former Husband asserts on appeal that the trial court erred in determining Former Wife’s net income by excluding sums of money paid by her into her 401 (k) and health savings account. Former Wife contends that her 401 (k) contributions were properly deducted as mandatory retirement payments.

Section 61.30(3), Florida Statutes (2011), addresses the calculation of net income for purposes of child support:

Net income is obtained by subtracting allowable deductions from gross income. Allowable deductions shall include:
(a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities.
(b) Federal insurance contributions or self-employment tax.
(c) Mandatory union dues.
(d) Mandatory retirement payments.
(e) Health insurance payments, excluding payments for coverage of the minor child.
(f) Court-ordered support for other children which is actually paid.
(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.

Prior to trial, the parties stipulated that Former Wife’s 2011 net income was $70,925.15, after federal tax, Medicare, disability, dental, health insurance, pretax medical, and 401(k) withholdings. Former Husband objected, however, that Former Wife’s contribution to her 401 (k) account and to her health savings account were not statutorily authorized allowable deductions from gross income for purposes of calculating her net income. In the final judgment, the trial court utilized the $70,925.15 figure to determine Former Wife’s net income.

During the trial, Former Wife testified regarding her 401(k) contributions and the money that she placed in a flexible spending account:

Q. Okay. Now, your — your 401(k) contributions for 2010 you have as — it was $6,921.75 that you were paying for your 401 (k) throughout that year; correct?
A. Yes.
Q. Okay. And you continue to contribute that much to your 401(k)?
A. I’ve made no changes in it. That— that’s right.
Q. And you also have—
THE COURT: Just because I’m not as familiar with the numbers as you guys are, if I’m not mistaken — I just want to understand — the contribution you made to your 401 (k), you get to designate that amount every year; correct?
THE WITNESS: Yes. You can change it.
THE COURT: All right.
THE WITNESS: Yes, sir, you can.
BY MR. MCCOURT:
Q. So the FSA is $1700?
A. Yes. That’s the — this is — that’s the flexible spending, is the 1700.
Q. Okay. And that’s — and the way that works is you tell your employer, hey, I want to put, say, two percent of my annual income into this particular account. It then goes into an account without being taxed; correct?
A. You pick a fixed dollar amount and you — if you — you know, you try to estimate what your out-of-pocket medical expenses will be. And at the end of the year, hopefully you have exhausted them, because if you haven’t exhausted them, then there’s nothing refunded to you. So you try to estimate it as best you can. That’s your, like, copayments and your copayments on your prescriptions—

Additionally, on direct examination by her counsel, Former Wife testified about her 401(k) contributions as follows:

Q. Okay. And with regard to your 401 (k), is there a certain minimum percentage that you have to contribute each month in order to maintain the 40100?
A. Four percent.
Q. So in that sense, even though it’s voluntary, it’s mandatory to enable—in order to be able to maintain it?
A. Yeah. Uh-huh. Yeah. To get the employer contribution. Yes.

Based on this testimony, it is apparent that neither the 401 (k) contribution nor the health savings account qualifies as an authorized deduction for calculation of net income under section 61.30(3), Florida Statutes (2011). See Geoghegan v. Geoghegan, 969 So.2d 482, 486 (Fla. 5th DCA 2007) (“[T]here [was] no indication that the trial court considered including the income earned by the Husband that was annually contributed by him to his 401K plan, SERP account, or medical saving account in the calculation of the Husband’s income,” and that “[a]s these payments [were] voluntary contributions (albeit for valid and beneficial purposes) on the part of the Husband, and as they reduce the apparent annual income available to the Husband, they should have been considered by the trial court in making the ability-to-pay alimony calculation” (footnote omitted)).

These sums that were erroneously deducted amount to $8,621.75 worth of net income available to Former Wife annually, or $718.48 worth of income available to Former Wife monthly. It is unclear whether this additional available income would have affected the final judgment; however, we are bound to remand for reconsideration of the judgment in light of the correct net income of Former Wife.

The trial court also erred by setting off the equalization payment, which Former Husband was required to make to Former Wife pursuant to the partial settlement agreement, against Former Wife’s bridge-the-gap alimony obligation.

Alimony is not considered an ordinary debt; and in the absence of compelling equitable considerations, a trial court errs in allowing a set off of debt against alimony. See Glaeser v. Glaeser, 449 So.2d 428, 429-30 (Fla. 2d DCA 1984); Chappell v. Chappell, 253 So.2d 281 (Fla. 4th DCA 1971). It would seem to be a matter of common sense that this rule would apply with special force when the alimony at issue is expressly designed to provide immediate funds to the financially disadvantaged spouse with legitimate identifiable short term needs in order to cushion the transition away from being married to being single. § 61.08(5), Fla. Stat. (2011). Here, the award of $10,900 bridge-the-gap alimony was set off by a $7,772.28 equitable distribution credit, reducing bridge-the-gap alimony payable to Former Husband to $3,127.72. This set-off is inconsistent with the purpose of a bridge-the-gap alimony award.

We accordingly affirm in part and reverse in part the final judgment and remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY, C.J., and WALLIS, J., concur.

      . She does not appear to address the money placed into the health savings account.

      . $6,921.75 (annual 401(k) contributions) + $1,700.00 (amount of money placed in health savings account per year) = $8,621.75.

      . $8,621.75 / 12 months = $718.48.


author: SAWAYA, J.

text:
    William Andrew PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3085.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.

      James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

In order to ensure that an individual’s constitutional right to be free from unreasonable searches and seizures is not violated, an investigatory stop by the police must be based on reasonable suspicion that the individual has committed or is committing a crime. United States v. Ar-vizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The question presented is whether the police had the requisite reasonable suspicion when they stopped the appellant, William Andrew Price, and found the drugs that led to his convictions of sale of a Schedule IV substance and possession of cocaine. The answer to this question will determine the answers to the questions of whether the trial court properly denied Price’s Motion to Suppress and whether his convictions should be affirmed.

The convictions are the result of an open plea Price made to the court after he reserved his right to appeal the denial of the Motion to Suppress he had previously filed. In that motion, which the trial court found and the State stipulated is dispositive, Price contended that his constitutional rights were violated when he was improperly detained and the drugs improperly seized during an illegal investigatory stop conducted by the police.

An investigatory stop, which is often referred to as a Terry stop (this moniker derives from the seminal case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), is a level of police encounter that occurs when an officer temporarily detains an individual for “investigatory purposes.” State v. Leonard, 103 So.3d 998, 1000 (Fla. 3d DCA 2012); Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006). Because an investigatory stop constitutes a seizure, once the defendant properly raises the issue, the burden falls upon the State to establish the validity of the investigatory stop by showing that it was based on reasonable suspicion. § 901.151, Fla. Stat. (2010); Arvizu; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry; United States v. Longmire, 761 F.2d 411 (7th Cir.1985); Caldwell v. State, 41 So.3d 188 (Fla.2010); Leonard; Nettles v. State, 957 So.2d 689 (Fla. 5th DCA 2007); Huffman.

Reasonable suspicion is a less demanding standard than probable cause, see Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), but defining exactly what it is has proved difficult, primarily because reasonable suspicion may be the result of many different factors emanating from a vast array of cases with widely differing facts and circumstances. See Arvizu. Although there are common factors that permeate many cases, and we will consider some of them later, the courts have consistently recognized that the concept of reasonable suspicion is not a compendium of precise legal rules that apply with equal precision to the myriad factors (common or otherwise) that may be present in any particular case. Id. Drawing on the principles established in cases subsequent to Terry, the Court in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), explained that “the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. at 417-18, 101 S.Ct. 690 (citation omitted). Since Cortez, the courts have consistently applied this standard when reviewing reasonable suspicion determinations. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744; United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Dapolito, 713 F.3d 141 (1st Cir.2013); Hilton v. State, 961 So.2d 284 (Fla.2007); Tamer v. State, 484 So.2d 583 (Fla.1986).

The particularity requirement dictates that reasonable suspicion be “ ‘grounded in specific and articulable facts.’” Dapolito, 713 F.3d at 148 (quoting United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). The objective requirement dictates that the courts view the facts and circumstances through the lens of a reasonable police officer giving due consideration to his or her training and experience. Terry; Dapolito. Therefore, inchoate (meaning in this context partial, unfinished, or imperfectly formed) and unparticularized suspicions or hunches will not suffice. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581; see also Arvizu, 534 U.S. at 274, 122 S.Ct. 744 (“[A]n officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop .... ” (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868)).

The whole picture derives from the following evidence and testimony presented at the suppression hearing. The police commenced surveillance of a strip mall at the request of a business owner who suspected illegal drug activity emanating from a pharmacy located in the mall. The police surveillance did result in a few arrests near the vicinity of the pharmacy. This mall, however, is not in a known high crime area. On December 16, 2010 (a weekday), around 11:30 a.m., a vehicle drove into a parking area adjacent to the pharmacy. Price was in the back seat and two others occupied the front seats. They were not known to the officers, the officers had no information that would lead them to believe the occupants were drug dealers, and the vehicle was not familiar to the officers. The officers, seated in unmarked vehicles parked in various locations in the parking lot, observed “mannerisms” of a front seat passenger in the form of head and arm movements that made it appear the passenger was making hand-to-hand movements towards Price in the back seat. The officers could not see below the occupants’ heads and arms, so they only observed these “mannerisms.” The officers did not see a hand-to-hand exchange take place, and they did not see any item pass between anyone in the vehicle.

Thereafter, Price got out of the vehicle, entered the pharmacy and, a short time later, walked out holding a white bag. The police did not know whether Price obtained the contents of the white bag from the section where prescription drugs are dispensed or whether he obtained it from the part of the store where other items are sold. They did not know what was in the bag, but assumed it was a pharmacy bag and therefore contained drugs. They never saw Price open the bag or take anything out of it. When Price got back in the vehicle, the police observed the same “mannerisms” as before: head and arm movements by the front seat passenger that made it appear as though there were hand-to-hand movements toward Price in the back seat. As before, the officers did not see a hand-to-hand exchange and never saw any item passing to or from Price. The officers simply assumed that a hand-to-hand transfer took place and further assumed it involved prescription drugs Price purchased from the store.

The vehicle left the parking lot and the police followed. The driver of the vehicle committed no traffic infraction that the police observed as they continued to follow. The police pulled the vehicle over and had Price step out. He was searched, the drugs were discovered, and he was arrested and ultimately charged with the crimes previously mentioned. At the suppression hearing, the trial court made the following findings: Price and the other occupants were strangers to the police and were not known drug dealers; the area was not a high crime area; the incident occurred at 11:30 a.m. as opposed to the middle of the night; Price walked out of the pharmacy with a white bag, but many businesses use white bags; and the police testified they saw movement that appeared to be hand-to-hand movement, but never saw anything being exchanged. No findings were made regarding the experience and training of the police officers. The trial court concluded that although it was a close call, there was sufficient evidence to “at least think” there was a drug transaction going on.

Looking at the mosaic of this “whole picture,” we do not see a particularized and objective basis for reasonable suspicion that a crime was committed by Price or anyone else in the vehicle. The foundation of the State’s argument is that Price (a person unknown to the police) went inside a pharmacy, came out with a white bag (contents unknown), and got back in the car (which was unfamiliar to the police), and the police observed the front seat passenger (also unknown to the police) display “mannerisms” of head and arm movements that appeared as though the passenger was making hand-to-hand movements toward Price. As Price correctly points out in his brief, “no witness testified that they actually saw any ‘hand-to-hand’ exchange — they merely ‘assumed’ it.” From their observations, the officers formed an inchoate and unparticularized suspicion of criminal activity based on two assumptions: that the bag contained prescription drugs (remember that they were unable to see or know what was in the bag and they never saw anyone take anything out of it), and that the front seat passenger was engaging in a hand-to-hand exchange with Price (although they admittedly never saw any hand-to-hand exchange of anything between any of the occupants in the vehicle). If walking out of a pharmacy with a white bag and “mannerisms” of head and arm movements of passengers in a vehicle are sufficient to form a reasonable suspicion on the part of the police that criminal activity is taking place, then the demarcation between reasonable suspicion and the forbidden hunch, see Sokolow, has been eviscerated.

Adverting to the common factors previously mentioned, because reasonable suspicion eludes precise definition, the tendency of the courts has been to compile a list of factors that are particularly relevant in informing reasonable suspicion determinations by the police. No one factor is determinative, but we believe they are illuminating and supportive of our conclusion, so we will consider those recognized by this court. They include “the time and day, the location, the physical appearance of the suspect, the suspect’s behavior, the appearance and manner of operation of any vehicle involved, and anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.” State v. K.N., 66 So.3d 380 (Fla. 5th DCA 2011) (citing State v. Quinn, 41 So.3d 1011, 1014 (Fla. 5th DCA 2010)); State v. Allen, 994 So.2d 1192, 1194 (Fla. 5th DCA 2008). For examples of invocations of these factors by other courts, see State v. Reyes, 4 So.3d 46, 49 (Fla. 3d DCA 2009), and State v. Lennon, 963 So.2d 765, 768-69 (Fla. 3d DCA 2007). The time of the alleged offense was in the morning hours on a weekday (Thursday) and in daylight as opposed to the darkness of night. The location was not a high crime area, although the pharmacy was being surveilled based on suspicion of illegal drug activity. The police never saw Price or the other occupants act nervous or look around in a suspicious manner. The police never saw the vehicle being operated in an illegal or unusual manner and never observed it commit any traffic infraction. There was nothing incongruous or unusual about the entire episode. Although the list of factors just quoted is not all-inclusive, in light of the holistic approach we have taken to our analysis and our consideration of the entirety of the circumstances, we do not believe it necessary to trudge through additional factors that may be found elsewhere in the case law.

The State’s reliance on Wallace v. State, 8 So.3d 492 (Fla. 5th DCA 2009), is misplaced. Not only is Wallace clearly distinguishable from the instant case, it is so inapposite as to tell us why reasonable suspicion was not established here. In Wallace, the police observed the defendant pull up to a convenience store located in a known high crime area, get out, and go inside. Id. at 492. The defendant appeared very nervous; he was wide-eyed and looked around a lot as if he were looking for someone else. Id. When another vehicle pulled up to the vehicle in which the defendant had been seated, the defendant walked out of the store and up to the other vehicle. Id. He then made a hand-to-hand exchange with the occupant of the other car, which immediately sped away. Id. In concluding that the motion to suppress was properly denied, this court held that an officer’s observation of a hand-to-hand exchange in a location known as high crime area is a specific and articu-lable fact that a reasonable officer, based on his training and experience, may objectively consider in formulating reasonable suspicion that an illegal drug transaction occurred. Id. at 495. But in the instant case, the officers never saw a hand-to-hand-exchange of anything and the location was not a known high crime area. The facts in Wallace elevate the suspicion of the officers beyond a mere hunch to the level of reasonable suspicion; no such facts are present in the instant case.

We conclude that the police did not have the requisite reasonable suspicion to make the investigatory stop. Having answered the first question, we must necessarily answer the second by concluding Price’s dis-positive motion should have been granted and the drugs suppressed. We answer the third question regarding the validity of Price’s convictions for sale of a Schedule TV substance and possession of cocaine with comparable brevity by concluding that those convictions must be reversed and the case remanded with directions to discharge Price.

REVERSED; REMANDED with directions.

COHEN and BERGER, JJ., concur.

      . See U.S. Const. amend. IV; Art. I, § 12, Fla. Const. The Florida Constitution expressly requires that this right be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See Art. I, § 12, Fla. Const.; see also G.M. v. State, 19 So.3d 973, 977 (Fla.2009) (“Items obtained in violation of Florida’s constitutional protection shall be excluded from evidence if those items would be excluded pursuant to the jurisprudence of the United States Supreme Court.” (citation omitted)).

      . §§ 893.13(l)(a)2. and 893.13(6)(a), Fla. Stat. (2010).


author: LAWSON, J.

text:
    Thomas C. LAURITO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3511.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.

      Thomas C. Laurito, Defuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Thomas Laurito appeals the denial of his motion for postconviction relief after an evidentiary hearing. We find that the trial court should have granted relief with respect to the claim that Laurito’s trial counsel was ineffective for not seeking to suppress Laurito’s statements to law enforcement on grounds that the interviewing officer failed to honor Laurito’s unequivocal request for a lawyer. Had counsel raised this issue, Laurito’s confession — which served as the primary evidence against him at trial — should have been suppressed. No other issue merits discussion.

Laurito was charged and convicted of aggravated battery with a firearm, two counts of aggravated assault with a firearm, and shooting into an occupied vehicle. At trial, the State had no difficulty establishing that the crimes were committed when shots were fired from a vehicle in which Laurito was one of three passengers. But, the State relied mainly on an admission made by Laurito during a custodial interview to prove that Laurito was the shooter. At the beginning of the interview, immediately after reading Miranda rights, the investigating detective asked Laurito if he would like to talk to him. Laurito responded: “Can I make a phone call so I can get a lawyer?”

Prior to trial, Laurito’s counsel filed a motion to suppress, arguing that Laurito’s statements were not voluntary. Counsel’s motion and argument at the suppression hearing focused on the coercive nature of the interrogation under the totality of the circumstances, with counsel arguing that the detective minimized the meaning of the Miranda rights, denied Laurito a phone call, called Laurito “a little girl,” told him to stop being a stupid ‘¾*⅜⅜⅜,” said he would be “proud” of him if he admitted shooting the “motherf*****,” told him everyone had turned on him (which was not true), and threatened to charge Laurito with attempted murder. Although counsel discussed the fact that Laurito had asked to make a phone call, he misquoted Lauri-to’s request and ignored the fact that Lau-rito had asked to call a lawyer.

In the postconviction proceedings below, Laurito correctly argued that his trial counsel missed or misunderstood the legal significance of his request to call a lawyer. As explained in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), if a suspect makes an unequivocal request for counsel, police must honor that request and cease their questioning “until counsel has been made available to him.” Id. at 484-85, 101 S.Ct. 1880. Failure to do so requires suppression of any statements obtained after the suspect’s invocation of his right to counsel. Id. The issue of whether a defendant invoked his or her right to counsel is “entirely distinct” from the issue of whether a defendant voluntarily waived his or her Miranda rights, “and the two [issues] must not be blurred by merging them together.” Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

Whether a suspect has invoked the right to counsel is an “objective inquiry” that requires “ ‘at a minimum, some statement that can be reasonably construed to be an expression of a desire for the assistance of an attorney.’ ” Davis v. United State, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). “A statement either is such an assertion [of the right to counsel] or it is not.” Smith v. Illinois, 469 U.S. at 97-98, 105 S.Ct. 490. This is an objective determination that will look to the understanding of a reasonable officer in light of the circumstances. Davis, 512 U.S. at 458-59, 114 S.Ct. 2350. In this inquiry, the court does not consider the totality of the circumstances of the interrogation. Smith, 469 U.S. at 97-98, 105 S.Ct. 490. In fact, it is error to consider any statements subsequent to the request, which are only relevant to the question of waiver. Id. at 98-100, 105 S.Ct. 490.

Applying these standards, we conclude that Laurito’s request to call a lawyer in direct response to the Miranda warnings constituted an unequivocal request for counsel. Cf. State v. Soto, 954 So.2d 686, 688 (Fla. 4th DCA 2007) (finding that defendant’s statement to police officer during custodial interrogation, “I can’t make a phone call or nothing, no?” to be a clear and unambiguous request for a lawyer in context); Bean v. State, 752 So.2d 644, 646 (Fla. 5th DCA 2000) (viewing the statement “I should be able to talk to a lawyer” as an unequivocal request for counsel); see also State v. Dahlen, 209 Or.App. 110, 146 P.3d 359, 363-64 (2006) (holding question “When can I call an attorney?” to be an unequivocal request for counsel); United States v. Hughes, 921 F.Supp. 656, 657-58 (D.Ariz.1996) (finding question “Can I call a lawyer?” — asked in response to the defendant being advised of his Miranda rights — to be an unequivocal assertion of defendant’s right to counsel); United States v. Taft, 769 F.Supp. 1295, 1301-03 (D.Vt.1991) (holding that question “can we call — use your phone to call an attorney?” constituted an unequivocal request for counsel).

Even if Laurito’s inquiry was viewed as an equivocal question about whether he could call a lawyer, the investigating detective was legally required to cease his questioning and give a “simple and straightforward” answer in good faith. Almeida v. State, 737 So.2d 520, 525 (Fla.1999). Instead, the detective told Laurito that he could not call anyone at that time, suggested that he should not do so anyway, and told him that he would lose the opportunity to clear things up if he did not answer the detective’s questions immediately. Given these facts, we conclude that Laurito’s confession would have been suppressed by the trial court if the issue had been raised or, absent a correct ruling at that point, could have been raised as an issue on appeal. See Anthony v. State, 927 So.2d 1084, 1085 (Fla. 4th DCA 2006) (explaining that a motion to suppress only preserves for appeal the specific grounds raised in the motion and argued to the trial court, such that trial counsel’s failure to raise a viable suppression issue can be raised in a timely rule 3.850 motion). As previously alluded to, there is a reasonable probability that suppression of the confession would have changed the outcome of Laurito’s trial given that his statements served as the primary evidence of his guilt. For these reasons, we find that trial counsel’s failure to raise the invocation issue was both constitutionally deficient and prejudicial, such that the trial court should have granted relief on this claim. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Finally, we note that both the State and the trial court cite Duhart v. State, 778 So.2d 462, 463-64 (Fla. 3d DCA 2001), for the proposition that when there is a “full suppression hearing at which defense counsel argued but lost” a defendant cannot later overcome the presumption that counsel provided effective representation with respect to issues surrounding the motion to suppress. Our decision here does not conflict with Duhart. First, Laurito cannot be said to have had a “full suppression hearing” when his counsel failed to raise the legal issue that should have warranted relief. Additionally, the court in Duhart further elucidated its holding by explaining that Duhart had only made “general allegations” that his trial counsel was ineffective and failed to explain how additional evidence presented at the suppression hearing could have changed the outcome of his trial. Here, Laurito has demonstrated a reasonable probability that the outcome of his trial would have been different if his counsel had moved to suppress his confession based upon the detective’s failure to honor Laurito’s invocation of his right to counsel.

Accordingly, we reverse the order on appeal as it relates to the suppression issue, and remand for additional proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

GRIFFIN and COHEN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The record contains two conflicting transcripts from this interview. In the first, Lau-rito’s response to detective’s question was exactly as quoted above. In the other, Laurito is quoted as having uttered exactly the same question ("can I make a phone call so I can get a lawyer"), preceded by the words: "How long ...” Although this discrepancy is perplexing, it does not change our analysis.

      . In his original postconviction motion, Lau-rito raised other issues related to his pretrial suppression motion that he later abandoned. At the hearing, Laurito amended his claim (with leave of court) to attack trial counsel’s failure to seek suppression of his confession based upon his unequivocal request for counsel. Then, after the trial court denied his postconviction motion, Laurito timely filed a motion for rehearing, arguing that the trial court had overlooked this issue in its ruling. The trial court denied rehearing, and this appeal followed.


author: ORFINGER, J.

text:
    Croix Michael CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3570.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.

      Matthews R. Bark, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Croix Michael Carter appeals his convictions for possession of cocaine and possession of cannabis with intent to sell or deliver. Carter argues that the trial court should have granted his motion to suppress because the State failed to prove that the police had reasonable suspicion to stop his vehicle. We agree and reverse.

Orlando Police Officer Reinaldo Rivero, the only witness to testify at the suppression hearing, was on patrol with Officer Frank Sikos when they pulled over Carter’s vehicle. Officer Rivero testified that “we saw ... the vehicle c[o]me to a stop sign. It didn’t stop before making a turn.” On cross-examination, Officer Rivero candidly admitted that he could not recall if he personally observed the traffic infraction, testifying:

Q: Who was driving the [police] vehicle?
A: Officer [Sikos],
Q: And did you write a report about the events as they unfolded that evening?
A: Yes, sir.
Q: All right. And did you personally observe the vehicle run the stop sign?
A: I don’t recall.
Q: Okay. Because you’ve read your report. It seems to indicate it was Officer [Sikos] who saw that. Does that refresh your recollection?
A: I remember the language in the report, sir, but I don’t remember if I put that we observed it or if Officer [Sikos] observed it. I don’t recall.
Q: So you don’t recall today whether you observed this vehicle run the stop sign, correct?
A: At this time, no, sir, I don’t recall.

Based solely on this testimony, the trial court denied the motion to suppress, finding there was reasonable suspicion to pull over Carter’s vehicle for failing to come to a complete stop.

Orders on motions to suppress come with a presumption of correctness, and all reasonable inferences and deductions from the evidence should be construed in support of the order. E.g., Kelly v. State, 77 So.3d 818, 821 (Fla. 4th DCA 2012). In reviewing an order on a motion to suppress, an appellate court is bound by the trial court’s findings of fact that are supported by competent, substantial evidence; however, the application of the law to the facts is reviewed de novo. E.g., Pagan v. State, 830 So.2d 792, 806 (Fla.2002); State v. Thomas, 109 So.3d 814, 817 (Fla. 5th DCA 2013). “Competent, substantial evidence has been defined as ‘such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred.’” C.M. v. Dep’t of Children & Families, 823 So.2d 182, 183 (Fla. 5th DCA 2002) (quoting Duval Util. Co. v. Fla. Pub. Serv. Comm’n, 380 So.2d 1028, 1031 (Fla.1980)). Substantial evidence must be something more than a “mere iota or scintilla,” must have real probative value, and must be “real, material, pertinent and relevant.” Rahyns v. State, 752 So.2d 617, 620 (Fla. 4th DCA 1999).

To make a valid traffic stop, law enforcement must have a reasonable suspicion that a traffic violation has occurred. See Dep’t of Highway Safety & Motor Vehicles v. Roberts, 938 So.2d 513, 514 (Fla. 5th DCA 2006). Reasonable suspicion is a less demanding standard than probable cause in that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Still, like probable cause, reasonable suspicion depends on both the content of information that law enforcement possesses and its degree of reliability. Both quantity and quality of information are considered in the “totality of the circumstances — the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Here, there was no competent, substantial evidence to support the trial court’s finding that the officers had reasonable suspicion. While Officer Rivero testified that “we” saw Carter’s vehicle roll through a stop sign, on further questioning, he candidly admitted that he could not recall observing the* traffic infraction himself, and he did not testify to what information, if any, he received from Officer Sikos.

As the State argues, the “fellow officer” rule allows one officer’s observations to provide a reliable basis for a traffic stop initiated by another officer who receives that information. Observations of fellow law enforcement officers engaged in a common investigation are plainly a reliable basis for initiating a traffic stop. United States v. Ventresca, 380 U.S. 102, 110, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Certainly, Officer Rivero would have been justified in relying on Officer Sikos’s observations, if those observations had been communicated to him. E.g., State v. Peterson, 739 So.2d 561, 564-65 (Fla.1999). This is especially true for “a search or seizure in which the officer was a direct participant.” State v. Bowers, 87 So.3d 704, 710-11 (Fla.2012). Still, the rule can only justify the traffic stop “if the collective knowledge of all the officers involved supports a finding” of reasonable suspicion. Id. at 711. Such a finding must be based on competent, substantial evidence. Thomas, 109 So.3d at 817. An officer can testify in a suppression hearing as to his own knowledge and information received from other reliable sources, such as fellow officers. Bowers, 87 So.3d at 710; see Reed v. State, 114 So.3d 969, 970 n. 4 (Fla. 5th DCA 2012) (noting that suppression hearing was flawed in part because officer observing traffic infraction did not testify); see also State v. Adderly, 809 So.2d 75, 75-77 (Fla. 4th DCA 2002) (reversing suppression in part because officer who witnessed vehicle run stop sign actually testified at suppression hearing). However, that did not occur here. In this case, Officer Rivero received no information from Officer Sikos (or, at least, did not testify as to any) and could not recall seeing the traffic violation. Consequently, there was no competent, substantial evidence to support the trial court’s order validating the stop and subsequent search. Therefore, we reverse Carter’s convictions based upon the erroneous denial of the dispositive motion to suppress.

REVERSED and REMANDED.

TORPY, C.J., and PALMER, J., concur.


text:
    Gomaa ELSAID, Appellant, v. Karen ELSAID, Appellee.
    No. 2D13-92.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.
    Lisa P. Kirby of Cavanaugh, Kirby & Cavanaugh, P.A., Naples, for Appellant.
    Karen Elsaid, pro se.
   SLEET, Judge.

Gomaa Elsaid (the Husband) appeals a nonfinal order of the trial court granting temporary alimony to Karen Elsaid (the Wife) in the amount of $2500 a month, increasing temporary child support from $392.48 to $800.64 a month, and imposing sanctions for willful noncompliance with the trial court’s previous child support order. The Husband raises six issues on appeal. We affirm the order in its entirety but remand to the trial court for correction of scrivener’s errors in paragraphs 17 and 18, which provide the incorrect date for calculating the Husband’s temporary alimony and child support arrears. It is apparent from the record that the Husband owes arrears through November 2012, not November 2011.

We write further to encourage the trial court to schedule a final hearing on this matter to finally resolve these issues between the parties and prevent any potential inequities. Cf. George v. George, 32 So.3d 651, 652 (Fla. 2d DCA 2010) (encouraging the “trial court to take all reasonable steps to bring th[e] case to a final hearing because, if [the] temporary [support] award proves to have been unnecessary or too high, the trial court will have limited options to make an equitable adjustment in the final order”).

Affirmed in part, reversed in part, and remanded with directions.

WALLACE and MORRIS, JJ., Concur.


author: PER CURIAM.

text:
    John H. LANCASTER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-78.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    John H. Lancaster, Lake City, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 05-2011-CF-37830-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    SUPERIOR HOSPITALITY MANAGEMENT, LLC, Appellant, v. PACIFIC GATEWAY CONCESSIONS, LLC, Appellee.
    No. 5D12-4925.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Wayne C. Golding, Sr., of The Golding Law Group, PLC, Orlando, for Appellant.
    Robert M. Miller, Coral Gables, for Ap-pellee.
   PER CURIAM.

Appellant, Superior Hospitality Management, LLC, appeals the order denying its Motion to Dismiss or Stay on Grounds of Forum Non Conveniens. A hearing on the motion was not held, so we do not have a transcript to review. Moreover, the order does not reveal whether the trial court engaged in the substantive four-step analysis as mandated in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), and rule 1.061(a), Florida Rules of Civil Procedure. We, therefore, reverse the order under review and remand this case to the trial court to either hold a hearing or render an order showing that the trial court applied the analysis under Kinney and rule 1.061(a). See Camperos v. Estrella, - So.3d -, -, 2013 WL 1629255, 38 Fla. L. Weekly D855, D855 (Fla. 3d DCA Apr. 17, 2013) (stating that an order on a motion to dismiss on the grounds of forum non conveniens is “subject to reversal and remand as insufficient where, as here, there is neither (1) ‘meaningful analysis’ in the order, nor (2) a transcript reflecting ‘an adequate analysis of the Kinney factors during the hearing itself (quoting ABA Capital Mkts. Corp. v. Provincial De Reaseguros C.A., 101 So.3d 385, 388 (Fla. 3d DCA 2012))); Levinson & Lichtman, LLP v. Levinson, 35 So.3d 182, 182-83 (Fla. 3d DCA 2010); Wood v. Bluestone, 9 So.3d 671, 673-74 (Fla. 4th DCA 2009); Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830, 831 (Fla. 4th DCA 1997) (“Neither the trial court’s order granting defendants’ motion nor its pronouncements during the hearing on the motion provide this court with enough information to determine whether the trial judge adequately considered each step of the Kinney test in reaching his conclusion.”).

REVERSED; REMANDED for proceedings consistent with this opinion.

SAWAYA and BERGER, JJ., concur.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent because, in my view, the motion and supporting documents are legally insufficient for a Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), analysis to be made.

      . This court has jurisdiction pursuant to rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure.


text:
    Dominique J. TOLBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1399.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Dominique J. Tolbert, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Dominique J. Tolbert, seeks another appeal, alleging ineffective assistance of appellate counsel. See generally Fla. R.App. P. 9.141(d). We deny the petition. See Contreras-Mayahua v. State, 40 So.3d 861, 863 (Fla. 4th DCA 2010) (finding that erroneous manslaughter by act instruction as lesser included offense of second-degree murder was not fundamental error where defendant was convicted of lesser included offense of manslaughter).

PETITION DENIED.

PALMER, ORFINGER and BERGER, JJ., concur.

      . We disregard the State's concession of error as it fails to recognize that Petitioner’s conviction for manslaughter makes the concerns that were noted in State v. Montgomery, 39 So.3d 252 (Fla.2010), inapplicable to the present case.