author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Daniel KIRER, Appellee.
    No. 4D12-3324.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented for our review is whether the trial court erred in granting a motion to suppress, where appellee failed to stop in response to the deputy’s siren, lights, and multiple orders to stop communicated over the deputy’s P.A. system. We find the deputy had probable cause to stop appellee for the offense of fleeing or attempting to elude a law enforcement officer, and therefore reverse the granting of the motion to suppress.

A deputy sheriff was called to an address based on an anonymous call reporting a “suspicious incident” regarding people inside a vacant house. When the deputy arrived, he noticed appellee standing in or near a vehicle in the vacant house’s driveway. The deputy activated his overhead lights and aimed his spotlight on appellee’s vehicle. The deputy’s vehicle was not blocking appellee’s vehicle, since at this point appellee backed out and started to drive southbound. The deputy followed appellee as appellee drove forward.

The deputy switched on his siren, kept his police vehicle’s lights on, and on multiple occasions ordered appellee to stop over his vehicle’s P.A. system. Meanwhile, despite the siren, lights, and orders, appellee kept driving and made five turns while the deputy followed one or two car lengths behind. Neither appellee nor the deputy went over approximately “10 miles an hour.” The deputy followed appellee for just under five minutes. Another marked unit came behind the deputy’s vehicle. Eventually a third marked unit blocked appellee’s vehicle after appellee drove into a townhouse community. Once appellee was stopped, the deputy was then able to see, and later identify appellee. Subsequently, appellee was charged with one count of fleeing or attempting to elude a law enforcement officer while in a motor vehicle.

Appellee moved to suppress his identification, arguing that the post-stop observation of appellee was the result of an improper stop. The state argued that ap-pellee’s conduct, although not constituting reasonable suspicion for a burglary, did constitute the crime of fleeing or attempting to elude. The trial court granted the motion to suppress the post-stop identification of appellee, and stated the following: '

In this case there was a tip of somebody’s breaking into a house. There’s a car in the driveway. The person who called in the tip said there was a pickup truck. The defendant was in a Mustang, completely different car. The car pulled out, travels at 10 miles per hour. Police officer followed with lights on, siren on and off and PA. There were five turns, and the car was stopped in five minutes when it went into a neighborhood and that the car pulled in front of [appellee], but there’s no reasonable suspicion for the stop, and I’ve got to look at the Ray opinion [Ray v. State, 40 So.3d 95 (Fla. 4th DCA 2010) ], and I have to look at the rationality of— in Green [Green v. State, 530 So.2d 480 (Fla. 5th DCA 1988) ] and Judge Co-war[t]’s — in the Green opinion. It just makes no sense that you can — when someone doesn’t pull over in 5 minutes, justifying an unlawful stop by charging them with fleeing and eluding. It just doesn’t make sense.

The trial court entered an order granting the motion to suppress. The state appeals the trial court’s granting of appel-lee’s motion to suppress.

When reviewing a trial court’s decision on a motion to suppress, we defer to the trial court’s findings of fact if they are supported by competent, substantial evidence, although we review conclusions of law de novo. Atac v. State, - So.3d -, 38 Fla. L. Weekly D610, 2013 WL 950052 (Fla. 4th DCA 2013); Springer v. State, - So.3d -, 38 Fla. L. Weekly D547, 2013 WL 811673 (Fla. 4th DCA 2013).

Appellant was charged with violating section 316.1935(1), Florida Statutes (2012), which, in pertinent part, provides:

It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order ... and a person who violates this subsection commits a felony of the third degree.

We find Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012), to be most instructive. In Henderson, a United States Marshal requested assistance from a deputy to stop an armed homicide suspect, who was driving in front of the Marshal on the roadway. Deputies eventually drove behind the armed suspect, and put on their lights and sirens to get the suspect to stop. The suspect slowed, but then continued to drive for one to two miles. The suspect never sped or violated any traffic laws. The suspect stopped only when he was approached by deputies driving from the opposite direction. A firearm was found in the suspect’s vehicle.

The court in Henderson rejected other potential grounds to justify the stop by the deputies. The court found that a warrant issued five hours later did not justify the stop, nor did the application of the “fellow officer rule” since there was no record evidence that the Marshal believed the armed suspect had committed a homicide. However, the Henderson court affirmed the denial of the suspect’s motion to suppress “because appellant’s act of fleeing or attempting to elude [the deputy] and the other officers obviates the necessity of determining whether there was reasonable suspicion or probable cause for the initial attempt to stop.” Id. at 1062 (footnote omitted).

The Henderson court reasoned further that

Ray [v. State, 40 So.3d 95 (Fla. 4th DCA 2010),] is distinguishable, because the court did not characterize the defendant’s brief act of running the stop sign before pulling over as flight, and there was no charge of fleeing or attempting to elude. In our case, when the officers attempted to pull appellant over with lights and sirens activated, appellant continued to drive for nearly two miles, providing probable cause to stop him for violating section 316.1935(2). [The deputy’s] stated reason for the stop has no bearing on whether there was probable cause for the stop.
In the case at bar, had appellant pulled over immediately after [the deputy] activated his lights and siren, there would have been insufficient evidence in the record to justify the stop. When appellant continued driving, however, long after the officers had activated their lights and sirens, in combination with the request from the Marshal[ ] to assist in stopping a homicide suspect and the Marshal[ ]’s signal that the gold Kia contained the suspect, [the deputy] did have a reasonable suspicion that a crime had been or was being committed sufficient to warrant the stop.

Id. at 1063.

We find that, like the suspect in Henderson, had appellee remained in the driveway or pulled over after the deputy had activated his lights and siren and utilized the P.A. system, there would have been “insufficient evidence in the record to justify the stop.” Id. Further, we agree with the Henderson court that the Ray decision is “distinguishable.” Id. In Ray, as the trial court recognized, there was no allegation of fleeing or attempting to elude.

In Ray, the defendant stopped his vehicle in the middle of the road, and an officer observed a hand-to-hand transaction between the vehicle and an unknown person. As the defendant drove away, the officer activated her lights. The defendant drove through a stop sign and was pulled over by the officer. The defendant dropped cocaine out of the car window. On appeal, this court found, regarding the hand-to-hand drug transaction, that “there were not enough factors present to support a finding of reasonable suspicion.” Ray, 40 So.3d at 98. Concerning the state’s alternative argument, this court addressed whether the defendant’s running of the stop sign justified the stop. This court found it did not, because “the arresting officer stated she pulled over [the defendant] because of the alleged drug transaction, not because of a traffic law violation.” Id. Further, this court found that the officer’s use of emergency lights evidenced an investigatory stop. This court stated, “When the arresting officer activated her emergency lights to pull over [the defendant], she commenced an investigatory stop without reasonable suspicion. [The defendant’s traffic infraction occurred after the officer turned on her lights.” Id. at 99.

In the present case, appellee argues that, in Ray, the defendant’s act of running the stop sign did not constitute fleeing. However, this was not a conclusion we reached in Ray. Again, the defendant in Ray was not charged with fleeing or attempting to elude, and the argument that the officer had probable cause to stop the defendant for that particular offense was not presented.

The trial court also relied on the “rationale” of the dissent in Green v. State, 530 So.2d 480 (Fla. 5th DCA 1988) (en banc). The trial court was persuaded by the dissent, which would have found that the only way for a defendant not to violate the fleeing or attempting to elude statute, after an officer unlawfully orders a defendant to stop, is by waiving “his constitutional right to freedom from illegal police action.” Id. at 483 (Cowart, J., dissenting).

The majority in Green, in contrast, held that the legality of the initial action by the police became irrelevant when the defendant committed the crime of fleeing or attempting to elude. The majority in Green stated that “[irrespective of the illegality of the initial stop ... the applicable statute ... relating to the offense of fleeing and eluding a police officer, does not require lawfulness of the police action as an element of the offense.” Id. at 481 (quoting Jackson v. State, 463 So.2d 372, 373 (Fla. 5th DCA 1985)). In Green, the majority concluded that, even though the defendant was stopped initially due to an illegal checkpoint, since the defendant did not stop despite hand signals and verbal orders to stop from the police, “[h]is stop for fleeing a police officer pursuant to section 316.1935 ... was valid.” Id.

Lastly, though in a different context, this court has interpreted section 316.1935, Florida Statutes, consistently. Ward v. State, 59 So.3d 1220, 1223 (Fla. 4th DCA 2011). In Ward, this court found that evidence of an uncharged collateral crime prejudiced the defendant, who was convicted of fleeing or attempting to elude law enforcement. Pertinent to our analysis, regarding the two types of fleeing or attempting to elude, this court stated:

Neither of these crimes requires the state to prove the validity of or show the reason for the original pursuit. Instead, the focus is on whether law enforcement’s lights and sirens were activated and whether the defendant knew he or she was being ordered to stop by law enforcement and whether the person chose to defy that order by failing to stop. Simply stated, the underlying reason for the stop itself — at least in this case — was patently irrelevant to the charge of fleeing or attempting to elude.

Id.

We find the trial court erred in suppressing the post-stop identification where the deputy had probable cause that appellee committed the crime of fleeing or attempting to elude in violation of section 316.1935(1), regardless of whether probable cause initially justified the stop of ap-pellee. To accept the trial court’s view in this case would mean that any vehicle signaled to stop by the police, where the vehicle’s driver believes, rightfully or wrongfully, that the stop is improper, would feel justified in not stopping despite the command of law enforcement. See United States v. Orisnord, 483 F.3d 1169, 1182-83 (11th Cir.2007) (explaining the potential for danger involved in vehicular fleeing situations).

In summary, we find that the deputy had probable cause to stop appellee for the crime of fleeing or attempting to elude, justifying the stop of appellee in this ease. We, therefore, reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

MAY and GERBER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul A. SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-56.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Paul A. Small, South Bay, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

More than four years after his sentence became final on direct appeal, appellant Paul Small filed a Motion to Correct Illegal Sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court granted the motion awarding appellant credit from the date the Palm Beach Sheriffs Office’s records showed he was taken into custody. Appellant moved for rehearing, arguing that he was entitled to five more days of jail credit from the date he was first arrested in Miami-Dade County on the warrant for this case. The trial court denied rehearing.

Appellant’s motion alleged that jail records would show his entitlement to the additional jail credit. Under prior case-law, this claim would appear sufficient and reversal would be required because the court did not review the foreign county’s jail records and attach the records refuting the claim. See Phillips v. State, 839 So.2d 893, 894 (Fla. 4th DCA 2003); Wright v. State, 830 So.2d 263, 264 (Fla. 5th DCA 2002); Hidalgo v. State, 729 So.2d 984, 984 (Fla. 3d DCA 1999).

In Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011), however, the Florida Supreme Court made clear that a trial court is not required to attach records to refute a Rule 3.800(a) jail credit claim. The above cases requiring a court to review and attach jail records to refute a claim brought under Rule 3.800(a) — and outside the Rule 3.850 time limit — have been overruled. See Villar v. State, 110 So.3d 503, 504 (Fla. 4th DCA 2013); Jarrett v. State, 89 So.3d 293 (Fla. 5th DCA 2012) (recognizing that Johnson overruled cases requiring a trial court to attach records to refute a Rule 8.800(a) claim).

Because appellant’s motion was filed outside the time for seeking relief under Rule 3.850, and because the entitlement to additional jail credit is not apparent from the face of court records, the trial court properly denied the claim for additional credit.

Affirmed.

TAYLOR, CIKLIN and LEVINE, JJ„ concur.

      . Florida Rule of Criminal Procedure 3.801, effective July 1, 2013, requires that jail credit claims be raised within one-year of the sentence becoming final. See In re Amendments To Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 112 So.3d 1234, 1237 (Fla.2013).


text:
    Randall LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4230.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Randall Leonard, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Randall Leonard appeals orders entered September 18, 2012; September 19, 2012; November 7, 2012; November 16, 2012; and November 15, 2012, summarily denying several rule 3.850 motions for postcon-viction relief and one petition for writ of habeas corpus. We dismiss as to the first two notices of appeal, pertaining to the September 18 and 19 orders, for failure to comply with this court’s untimeliness order, and otherwise affirm.

Dismissed in Part and Affirmed in Part.

DAMOORGIAN, C.J., CIKLIN and LEVINE, JJ., concur.


text:
    Stacy FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4130.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      No brief filed for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 378 So.2d 898 (Fla.1979).

WARNER, LEVINE and FORST, JJ„ concur.


text:
    Patrick THOMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3485.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Patrick Thompkins, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tal-lahasse, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Patrick Thompkins, was originally charged with first-degree murder with a firearm in counts one, two, and three, and attempted first-degree murder with a firearm in counts four, five, six, and seven. He later entered into a negotiated plea agreement, where he pled guilty to second-degree murder with a firearm. The other counts were nolle prossed. Appellant then filed a rule 3.850 motion for postconviction relief, alleging four claims of ineffective assistance of counsel, including a claim of affirmative misadvice of counsel, and a claim of illegal sentencing. We affirm the trial court’s summary denial of all claims except claim three, in which he alleged affirmative misadvice of counsel that if he were convicted on the first three counts as originally charged, the only possible sentence he could receive would be the death penalty.

Appellant alleged in his motion that but for this affirmative misadvice, he would have proceeded to trial on the charges. He also alleged that but for this misadvice, he would have rejected the plea offer and proceeded to trial instead. His claim is legally sufficient. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Grosvenor v. State, 874 So.2d 1176 (Fla.2004). A claim of entry of a plea based on defense counsel’s affirmative misadvice about sentencing can constitute grounds for -withdrawal of the plea. Nelfrard v. State, 34 So.3d 221, 222 (Fla. 4th DCA 2010).

The trial court summarily denied this claim based on the plea colloquy, but we find nothing in that colloquy which actually refuted this claim. The fact that the trial court advised appellant that if convicted, he faced the possibility of the death penalty did not overcome his claim that his counsel affirmatively misadvised him that this was the only sentencing possibility if he were convicted.

Accordingly, we reverse only as to the trial court’s summary denial of appellant’s claim three, and remand for either an evi-dentiary hearing or attachment of portions of the record refuting the claim other than the portions of record already attached to the State’s response filed below and incorporated by the trial court. We would also note that if appellant is permitted to withdraw his pleas, the State may proceed to trial, with appellant facing a sentence harsher than the one he is now serving, including a potential death sentence. Guajardo v. State, 1 So.3d 406 (Fla. 2d DCA 2009).

Affirmed in part, reversed in part, and remanded.

TAYLOR, MAY, and LEVINE, JJ„ concur.


text:
    Primitivo R. MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3180.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Primitivo R. Morales, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Primitivo Morales appeals the summary denial of his six point postconviction motion. See Fla. R.Crim. P. 3.850. Because the record does not refute one of the claims raised, we reverse, in part, and affirm the remaining claims without further discussion.

Following a jury trial, Morales was convicted of one count of Sexual Battery by a Person in a Position of Familial or Custodial Authority (Count I) and one count of Lewd or Lascivious Molestation (Count II) with a victim older than twelve but younger than sixteen years old. He was sentenced to thirty years imprisonment on Count I, followed by fifteen years sex offender probation on Count II.

Morales alleges, in Claim 5, that counsel misadvised him that the jury would learn the nature of his prior convictions had he chosen to testify in his own defense. He ultimately decided not to testify based upon this alleged advice. See Curtis v. State, 689 So.2d 423, 423 (Fla. 4th DCA 1997); Hicks v. State, 666 So.2d 1021, 1023 (Fla. 4th DCA 1996). The State concedes that an evidentiary hearing is warranted on this claim. We remand for further proceedings.

Affirmed in Part, Reversed in PaH and Remanded.

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


author: PER CURIAM'.

text:
    Donovan McFARLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2713.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM'.

Affirmed. California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Perez v. State, 620 So.2d 1256 (Fla.1993)

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


text:
    Michael WIDEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-314.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Michael Widel, Chipley, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant appeals the trial court’s summary denial of his pro se motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 which raised two grounds. We affirm without comment the trial court’s order denying relief in this case. However, the clerk’s office sentencing disposition order erroneously lists the offense for which appellant was convicted after a jury trial as “solicitation to commit armed robbery” (as does the Broward Clerk website at www.clerk-17th-flcourts.org). In fact, appellant’s jury found him guilty of robbery with a weapon, a first degree felony, section 812.13(2)(b), Florida Statutes (2007). In order to prevent this scrivener’s error from potentially impacting future legal proceedings in this case, we remand for correction of this error in the sentencing documents prepared in this case. Sirota v. State, 977 So.2d 700, 701 (Fla. 4th DCA 2008). Newson v. State, 867 So.2d 603, 603 (Fla. 2d DCA 2004).

Affirmed; remanded for correction of scrivener’s error.

WARNER, TAYLOR and CIKLIN, JJ., concur.


text:
    Todd M. GLOR, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D12-5322.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Stephen D. Hurm, General Counsel, and Douglas D. Sunshine, Assistant General Counsel, Tallahassee, for Respondent.
   ON MOTION TO ENFORCE THIS COURT’S MANDATE AND FOR A WRIT OF PROHIBITION

PER CURIAM.

DENIED. See Dodson v. Dep’t of Highway Safety & Motor Vehicles, 120 So.3d 69 (Fla. 1st DCA 2013) (opinion on motion to enforce this court’s mandate). This case is remanded to the circuit court whereupon by either party’s filing of a proper motion requesting same, the circuit court shall remand to the Department for a new hearing that meets the essential requirements of the law. See Broward County v. G.B.V Int’l Ltd., 787 So.2d 838, 843-44 (Fla.2001); See also Clay County v. Kendale Land Dev., Inc., 969 So.2d 1177, 1180-81 (Fla. 1st DCA 2007).

PADOVANO, CLARK, and SWANSON, JJ., concur.


text:
    John P. DODSON, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D12-5321.
    District Court of Appeal of Florida, First District.
    July 26, 2013.

      David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Damaris E. Reynolds, Lake Worth, for Respondent.
   ON MOTION TO ENFORCE THIS COURT’S MANDATE AND FOR A WRIT OF PROHIBITION

PER CURIAM.

In a prior proceeding, this Court quashed the lower court decision that found a hearing officer did not depart from the essential requirements of the law during the petitioner’s driver’s license suspension hearing. The petitioner, John Dodson, has now filed a Motion to Enforce This Court’s Mandate and for a Writ of Prohibition. In sum, petitioner seeks an order from this Court directing the Department of Highway Safety and Motor Vehicles (the Department) to invalidate the petitioner’s driver’s license suspension. In this instance, the remedy sought is not warranted. This Court quashed the decision of the lower court because the hearing officer did not consider the lawfulness of the arrest. See Dodson v. Dep’t of Highway Safety & Motor Vehicles, Case No. 1D12-5321 (Fla. 1st DCA June 2013). We remand this case to the circuit court whereupon by either party’s filing of a proper motion, the case shall be remanded to the Department for a new hearing that meets the essential requirements of the law. This is an action consistent with the law. See Broward Cnty. v. G.B.V. Int’l Ltd., 787 So.2d 838, 843-44 (Fla.2011) (finding that an appellate court only determines whether or not the tribunal or administrative authority’s order or judgment has departed from the essential requirements of the law); see also Clay Cnty. v. Kendale Land Dev., Inc., 969 So.2d 1177, 1180-81 (Fla. 1st DCA 2007) (finding that when the appellate court is considering a petition for writ of certiorari, it has only two options — deny or grant the petition, and quash the order at which the petition is directed).

DENIED.

PADOVANO, CLARK, and SWANSON, JJ., concur.


author: BLACK, Judge.

text:
    Christy OCHOA, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5111.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 2013.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Christy Jo Ochoa appeals from her judgments and sentences for grand theft and dealing in stolen property, imposed after an open plea of no contest to these charges and others, including three drug possession offenses. She raises two issues: (1) that she was improperly convicted of and sentenced for both grand theft and dealing in stolen property when those offenses both arose from a single course of conduct; and (2) that her possession convictions should be vacated because applicable sections of chapter 893, Florida Statutes, the Florida Comprehensive Drug Abuse Prevention and Control Act (2010), are facially unconstitutional. Ms. Ochoa’s first issue has merit; the second has none. The Florida Supreme Court rejected Ms. Ochoa’s theory of unconstitutionality in State v. Adkins, 96 So.3d 412 (Fla.2012), and this court is bound by that decision.

However, as to her first issue, Ms. Ochoa correctly argues that a person cannot be convicted of both grand theft and dealing in stolen property in connection with one scheme or course of conduct. See § 812.025, Fla. Stat. (2010) (providing that a defendant may, “under proper circumstances,” be charged with “theft and dealing in stolen property in connection with one scheme or course of conduct ..., but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts”); Hall v. State, 826 So.2d 268, 271 (Fla.2002) (holding that section 812.025 also prohibits a trial court from adjudicating a defendant guilty — pursuant to a plea — of both theft and dealing in stolen property in connection with one scheme or course of conduct); Roman v. State, 73 So.3d 796 (Fla. 4th DCA 2011) (holding that the defendant’s convictions and sentences for both theft and dealing in stolen property in connection with a single scheme or course of conduct were proscribed by section 812.025, Florida Statutes (2010), not by the prohibition against double jeopardy). The State has appropriately conceded error.

Accordingly, we reverse Ms. Ochoa’s conviction and sentence for grand theft in circuit court case no. 2010-CF-4168 and remand for the trial court to vacate them. Ms. Ochoa’s remaining convictions and sentences imposed in various Polk County cases on October 23, 2012, are affirmed.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KELLY, JJ„ Concur.


author: WARNER, J.

text:
    D.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1893.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Howard Finkelstein, Public Defender, and Sarah Sandler, Assistant Public Defender, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

D.B., a 16-year-old juvenile in delinquency proceedings in Broward County, seeks a writ of prohibition to prevent the trial court from exercising any further jurisdiction over a 2009 pending delinquency ease because of D.B.’s continuing incompetency. Based upon the rules and statutory provisions, dismissal is mandatory. The state concedes that dismissal is warranted. We therefore grant the writ.

After a petition for delinquency of D.B. was filed, he was declared incompetent on May 11, 2010. More than three years have passed, and, according to all the experts, the child remains incompetent.

Florida Rule of Juvenile Procedure 8.095(a)(7) provides:

(7) Continuing Jurisdiction and Dismissal of Jurisdiction.
(A) If a child is determined to be incompetent to proceed, the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency, with reviews at least every 6 months to determine competency. If the court determines at any time that the child will never become competent to proceed, the court may dismiss the delinquency petition or petition alleging violation of juvenile probation.
(B) If, at the end of the 2^year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the delinquency petition.

(Emphasis supplied). Section 985.19(5), Florida Statutes (2012), provides:

(5)(a) If a child is determined to be incompetent to proceed, the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency, with reviews at least every 6 months to determine competency.
(c) If the court determines at any time that the child will never become competent to proceed, the court may dismiss the delinquency petition. If, at the end of the 2-^year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the delinquency petition. If appropriate, the court may order that proceedings under chapter 393 or chapter 394 be instituted. Such proceedings must be instituted not less than 60 days prior to the dismissal of the delinquency petition.

(Emphasis supplied). The provisions of the statute at issue are self-executing. The statute places the duty on the court to conduct the review hearings and to dismiss the charges if the defendant has not been restored to competency within two years, and there is no evidence that the child will attain competency within the following year. Thus, after three years, the court must dismiss the proceedings if the child has not achieved competency.

The statutory requirements exist to protect the juvenile’s due process right not to be tried while incompetent. The legislature has placed jurisdictional time limits on how long a court may retain jurisdiction over an incompetent juvenile. In this case, the trial court was presented with evidence that the child remained incompetent after three years. Therefore, the court was required to dismiss the proceedings.

Petition granted with directions to dismiss the delinquency petition.

DAMOORGIAN, C.J., and FORST, J., concur.


text:
    Zaida LAGO, Julio Lago, Juan Carlos Lago and Alberto N. Moris, P.A., Appellants, v. KAME BY DESIGN, LLC, Appellee.
    No. 4D12-3838.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Ross D. Kulberg of Alberto N. Moris, P.A., Miami, for appellants.
    Lee B. Gartner of Lee B. Gartner, P.A., Coral Springs, for appellees.
   PER CURIAM.

The defendants below, Zaida Lago, Julio Lago, and Juan Carlos Lago, and their counsel, Alberto N. Moris, P.A., (collectively “appellants”) seek review of a final judgment awarding fees and costs against them pursuant to section 57.105(1), Florida Statutes. The final judgment imposed sanctions against appellants for filing a motion for attorney’s fees that the trial court found was not supported by the material facts or the application of then-existing law to those material facts. We reverse the final judgment as to all appellants and remand for further proceedings.

Generally, the standard of review of a trial court’s order awarding section 57.105(1) attorney’s fees is abuse of discretion. Ferere v. Shure, 65 So.3d 1141, 1144 (Fla. 4th DCA 2011). However, to the extent a trial court’s order on fees is based on an issue of law, this court applies de novo review. Id.

Here, appellee’s first motion for section 57.105sanctions alleged that the Lagos’s fee motion was frivolous because there was no contractual or statutory basis for the Lagos to recover an award of attorney’s fees. Appellee’s second motion for section 57.105sanctions included the same arguments as the first motion, but also raised the additional argument that under Stockman v. Downs, 573 So.2d 835 (Fla.1991), the Lagos had waived any right to recover attorney’s fees by failing to request attorney’s fees in a pleading.

The trial court entered an order granting appellee’s second motion for section 57.105 sanctions and imposing sanctions against appellants. However, because appellee’s second motion for section 57.105sanctions did not comply with the twenty-one-day “safe harbor” provision of section 57.105(4), the trial court erred in granting that motion. We must therefore reverse. See § 57.105(4), Fla. Stat. (2012) (“A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”); Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (a party’s failure to comply with the requirements of the 21-day “safe harbor” provision of section 57.105(4) requires reversal of an order granting a motion for sanctions under section 57.105).

We hold that if a party files a subsequent or amended motion for sanctions under section 57.105 and raises an argument that was not raised in the original motion for section 57.105 sanctions, the subsequent motion must independently comply with the twenty-one-day “safe harbor” provision of section 57.105(4). To hold otherwise would allow a party to raise a new ground for sanctions in a subsequent motion under section 57.105 without giving the other side the opportunity to withdraw the offending claim or defense within twenty-one days after receiving notice of the new ground for sanctions.

Nonetheless, on remand, the trial court may consider appellee’s first motion for section 57.105 sanctions. That motion did comply with section 57.105(4)’s safe harbor provision, but the trial court never ruled on it. The trial court may consider only the grounds alleged in appellee’s first motion for section 57.105 sanctions. Furthermore, if the trial court concludes that an award of fees under section 57.105 is an appropriate sanction, “it should recite in its order the facts upon which it bases that conclusion. Regions Bank v. Gad, 102 So.3d 666, 667 (Fla. 1st DCA 2012).

For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR, LEVINE and FORST, JJ., concur.

      . We conclude that the Lagos were ' the losing party” on their fee motion, regardless of the fact that the trial court did not enter an order explicitly denying the motion. The Lagos voluntarily withdrew their fee motion at a hearing on appellee's request for section 57.105 sanctions. A withdrawal of a motion for attorney’s fees is tantamount to a voluntary dismissal of the claim. Rehman v. ECC Int'l Corp., 698 So.2d 921, 923 (Fla. 5th DCA 1997). Moreover, a party's voluntary dismissal of a claim after the expiration of the 21-day safe harbor period may subject the party to sanctions under section 57.105(1) if the requirements of that statute are otherwise satisfied. Cf. Pino v. Bank of New York, 121 So.3d 23, 2013 WL 452109 (Fla. Feb. 7, 2013) ("If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within twenty-one days of a defendant's request for sanctions under section 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney's fees under that provision if appropriate, regardless of the plaintiff's subsequent dismissal.”).


text:
    S.L., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D13-138.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Antony P. Ryan, Director, and Andrea H. Dueñas, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Stephanie C. Zimmerman, Tampa, for appellee Department of Children and Families.
    Hillary S. Kambour, Tavares, for appel-lee Guardian ad Litem Program.
   PER CURIAM.

The Mother appeals the order terminating her parental rights to her two children. We affirm the order of termination, but reverse as to one ground, and remand for modification of the order as explained below.

After the children were sheltered based on the Mother’s drug abuse and the Mother entered a plea of consent to the dependency petition, an order of adjudication of dependency was entered and a case plan was approved. The case plan provided for numerous conditions, many of which were related to the Mother’s drug addiction issues. The Department of Children and Families (Department) ultimately filed a petition for termination of parental rights as to both children, based on abandonment, section 39.806(l)(b), Florida Statutes (2011), and continuing abuse, neglect or abandonment as evidenced by failure to substantially comply with the case plan, section 39.806(l)(e), Florida Statutes (2011). After a trial, the court found that the Department proved abandonment and continuing abuse, neglect or abandonment, and it entered an order terminating the Mother’s parental rights.

We have carefully reviewed the record and find no error in the court’s termination based on continuing abuse, abandonment or neglect. The court did not simply find that the Mother failed to comply with her case plan. It found that the Mother failed to comply with conditions related to the reasons the children were sheltered in the first place — the Mother’s addiction issues — and it found that because of the noncompliance, the children would not be safe if returned to the Mother. This was a sufficient basis for termination under section 39.806(l)(e). See N.F. v. Dep’t of Children & Family Servs., 82 So.3d 1188, 1192 (Fla. 2d DCA 2012) (“[Ejvidence of neglect or abuse can only be based on a failure to ‘substantially comply,’ i.e., fail in a case plan task that bears on the circumstances that caused the creation of the case plan.”).

The Mother also argues that the court erred in basing termination on abandonment under section 39.806(l)(c). With this we agree. “To terminate parental rights because of abandonment, there must be clear and convincing evidence.” T.G. v. Dep’t of Children & Families, 8 So.3d 1198, 1199 (Fla. 4th DCA 2009) (citations omitted). Here the court based abandonment on lack of visitation and failure to provide for the children’s necessities. However, the evidence reflects that the Mother had at least twenty-six visits between February of 2011 and February of 2012. Moreover, the Department’s records and trial testimony indicate there may have been other visits by the mother that were not memorialized in the Department’s records. There was also evidence the Mother had telephone communications with the older child (although the foster mother curtailed some of those communications) and that the Mother brought the children clothing, shoes, snacks, food, money and other gifts.

Based on this evidence, it was error for the court to find the Mother abandoned her children. Contra T.G., 8 So.3d 1198 (affirming finding of abandonment where mother did not visit children for more than a year prior to the final hearing).

We affirm the termination of parental rights based on section 39.806(l)(e), but reverse the portion of the order terminating the Mother’s parental rights based on a finding that she abandoned the children. We reverse and remand for modification of the order.

Affirmed in part, reversed in part, and remanded for modification of order.

LEVINE, FORST, JJ., and KLINGENSMITH, MARK W., Associate Judge, concur.


text:
    ATTAWAY ELECTRIC, INC., Appellant, v. KELSEY CONSTRUCTION, INC. and Travelers Casualty and Surety Company of America, Appellees.
    No. 4D13-710.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Alan C. Brandt, Jr. and Laura A. Baker of Ferencik Libanoff Brandt Bustemante & Williams, P.A., Fort Lauderdale, for appellant.
    Kevin P. Robinson of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for appellees.
   WARNER, J.

Appellant, Attaway Electric, Inc., appeals the trial court’s non-final order, entered in favor of appellees, Kelsey Construction, Inc., and Travelers Casualty and Surety Company of America, changing venue for a suit on claims of lien transferred to a bond pursuant to section 713.24, Florida Statutes. The court directed that the suit, filed in Broward County, where the liened property is located, be changed to Orange County, which was designated as the proper venue in the contracts between Kelsey and Attaway. We reverse, because section 713.24 provides that any claim on the bond must be brought in the circuit court of the county where the security is deposited, and contract claims involving the same matters should be brought in the same place to avoid inconsistent rulings.

Attaway contracted with Kelsey to perform remodeling work on two Winn-Dixie stores located in Broward County, Florida. The written contracts between the parties provided that suits brought on any disputes must be filed in Orange County, Florida, the corporate home of Kelsey. In summer 2012, Attaway filed a claim of lien for unpaid sums on both of the subcontracts. Thereafter, the liens were transferred to bonds pursuant to section 713.24. In both cases, Travelers wrote the surety bonds, which were deposited with the Clerk of the Court in Broward County.

Subsequently, Attaway filed a complaint in Broward County against Kelsey and Travelers, alleging four counts. Counts I and II were actions on the lien transfer bond against Kelsey and Travelers. Counts III and IV were breach of contract claims as to Kelsey only. Appellees moved to dismiss the complaint or, in the alternative, to transfer venue, citing the mandatory forum selection clause in each of the subcontracts. Attaway opposed the motion based upon the mandatory provision of section 713.24(3). After a full hearing on the issue, the trial court granted the motion to change venue on the ground that the venue provision of the contract required the transfer to the contractually agreed venue, and Travelers had stipulated to the transfer, so that there was no possibility of multiple suits or conflicting results. From this order, Attaway appeals.

Section 713.24 addresses transfer of liens to security. The statute provides:

Any lien claimed under this part may be transferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by ... [fjiling in the clerk’s office a bond executed as surety by a surety insurer licensed to do business in this state.

§ 713.24(l)(b), Fla. Stat. The statute also provides that “[a]ny party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited .... ” § 713.24(3), Fla. Stat. (emphasis added). The issue in this case is whether the contractually mandated venue provision or the above statutory language controls.

We have already held that section 713.24(3) is mandatory with respect to venue. In Morganti South, Inc. v. Hardy Contractors, Inc., 397 So.2d 378, 379 (Fla. 4th DCA 1981), we held that “this statute is mandatory to the extent that any suit to recover on such security must be brought in the county where the security is deposited,” since “[i]t would be totally unworkable and impractical to have suits pending in different counties which might well result in inconsistent rulings regarding additional security, reduction of security, payment or discharge.”

In Miller & Solomon General Contractors, Inc. v. Brennan’s Glass Co., 837 So.2d 1182 (Fla. 4th DCA 2003), we also held that the statute prevailed over a contractual venue provision. There, a subcontractor-appellee sued the contractor-appellant for breach of contract and to enforce a claim of lien. The claim of lien had been transferred to a bond pursuant to section 713.24. The contractor argued to the trial court that correct venue was in Dade County under the terms of the subcontract. We held that venue on the bond count was proper in Broward County where the bond was posted. The trial court did not abuse its discretion in denying transfer of the contract action to Dade County, because allowing transfer of part of the cause of action could result in multiple suits with conflicting results.

The Fifth District followed our analysis from Morganti in Halls Ceramic Tile v. Tiede-Zoeller Tile Corp., 522 So.2d 111 (Fla. 5th DCA 1988). A sub-subcontractor sued its subcontractor on a claim of lien which was transferred to a bond in Orange County, the site of the construction project. The contract between the parties had a forum selection clause specifying that suit must be brought in New York. The Fifth District reversed the trial court’s dismissal of the suit on the authority of Morganti, stating: “[I]n litigation involving improvements to real property where bonds have been posted to exempt the property from foreclosure of mechanics liens, the proper forum to settle all such actions or claims is the court where the real property is located and the security is posted.” Id. at 112.

We reaffirm our holdings in Morganti and Miller that the provision of section 718.24(3) is mandatory and requires suits on the lien transfer bonds to be brought in the county in which the bond is filed and the property in question is located. The bond is held by the clerk of court of the county in which the property is located. The court may order reduction or increase in the bond amount which would require additional activity by the clerk of court. It may also order disbursement of proceeds or discharge of the bond. The Clerk of Broward County, however, is not subject to the jurisdiction to the court in Orange County, where the action has been transferred. Moreover, other claims could be made against the bond. Section 713.24(3) states that “[a]ny party having an interest in such security or the property from which the lien was transferred ” may file an action for payment from the security. That may include parties other than the two parties to the contract. For instance, a supplier might make a claim against the proceeds of the bond for materials supplied to the lienor. That person may be entitled to look to the proceeds of the bond but is not bound by the venue provision of the contract between the main litigants.

For all these reasons, the Morganti interpretation of the rule is sound, even if the surety joins in the request to transfer venue. Because the bonded lien claims must be brought in Broward County, Miller & Solomon and Halls Ceramic Tile both teach that the contractual claims must be brought in the same county to avoid multiple suits and potentially conflicting results.

We recognize that Walbridge Aldinger Co. v. Roberts Plumbing Contractors, Inc., 800 So.2d 285 (Fla. 3d DCA 2001), held that a contractual venue provision required transfer of an action on a bonded lien from the county in which the property is located and the bond is posted to the county designated in the contractual venue provision. We disagree with Walbridge for all of the reasons in this opinion.

Reversed with directions to vacate the order granting transfer of this action to Orange County.

STEVENSON and TAYLOR, JJ., concur.

      . The general contractor, Miller & Solomon, had secured a payment bond for the construction project pursuant to section 713.23. Appellants claimed that this distinguished the case from cases on transfer bonds. However, our court noted that the case involved both a claim against the payment bond as well as a claim of lien transferred to a bond; thus, section 713.24 applied.


text:
    Rebecca SHIBA, Appellant, v. Mark GABAY, Appellee.
    No. 4D13-959.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Michael D. Cirullo, Jr. of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, and Joshua K. Friedman and Jason Brodie of Brodie & Friedman, P.A., Boca Raton, for appellee.
   WARNER, J.

The mother appeals trial court orders requiring the return of the parties’ child to Florida from Illinois and establishing a temporary time-sharing schedule, pending final disposition of the petitions for paternity and custody filed by the father. She claims that the court erred in ruling without sufficient evidence of the child’s best interest in ordering the child’s return to Florida without statutory authority. We conclude that the court did not abuse its discretion in its rulings on these temporary relief orders.

The mother and father were not married. The child was born in 2009 and lived in Florida with his parents until January 19, 2012, when the mother moved out of the parties’ home while the father was out of town. She did not advise the father prior to her leaving, and he found out only when he came home and discovered that she and his child were gone. The mother moved to Illinois and immediately filed a petition for emergency order of protection, alleging abuse of both her and the child by the father. The Illinois court granted the ex parte request.

Several days later, the father filed a petition for establishment of paternity in Florida, including a request for custody and/or time-sharing with the child. He also moved for an order requiring the child’s return to Florida. Multiple hearings occurred to establish jurisdiction, and the Illinois court finally dismissed the proceedings there in favor of the Florida proceedings, as Florida was the child’s home state. The Florida court also rejected the mother’s contention that Florida was an inconvenient forum to adjudicate paternity and custody.

Delays resulted from the competing proceedings in Illinois. The hearing on the father’s motion to require the return of the child to Florida, as well as establishment of a time-sharing plan pending final disposition, did not commence until nearly eleven months after the child’s removal from the state. Because of limited time, the hearing was not concluded. The court reset the continuation of the hearing for March, giving the parties five months notice. Between that time, the original judge transferred to a different division.

Although having notice of the March hearing, the mother did not attempt to secure the testimony of Illinois witnesses until the end of February. The mother moved to continue the March proceedings, to which the father vehemently objected as he had been deprived of contact with the child for over a year. The court denied the mother’s motion.

Before the start of the second day of hearing, the parties stipulated that the successor judge could review the transcript of the first day of hearing and consider the previous testimony of the father and the maternal grandmother. The mother and father also testified on the second day of hearing, as well as the child’s Florida pediatrician, who had treated the child from birth until his removal from Florida. The evidence presented revolved around three main themes: 1) the father’s contention that the mother had surreptitiously removed the child from Florida as well as his prior good relationship with the child and his ability to provide for the child, while the child was in Florida; 2) the mother’s claim of extreme abuse by the father towards both her and the child, supported by her testimony and the testimony of her mother, but denied by the father; and 3) the child’s diagnosis and treatment in Illinois for several medical problems, testified to only by the mother. As to the last issue, in contrast, the child’s Florida physician testified that he had not observed any disorders in the child or any evidence of abuse.

After hearing the evidence, the trial court ordered the immediate return of the child to Florida and set a time-sharing schedule. If the mother remained in Florida, the court required a 50/50 arrangement. If the mother did not remain in Florida, she would be entitled to a weekend visitation with the child every month. This appeal follows.

We review both the order on time-sharing as well as the order directing the return of the child to the jurisdiction for an abuse of discretion. See Hoff v. Hoff, 100 So.3d 1164, 1168 (Fla. 4th DCA 2012) (time-sharing); Gallivan v. Gallivan, 743 So.2d 1185, 1186 (Fla. 4th DCA 1999) (return of child). As we noted in Hoff, “in proceedings where trial judges are required to determine interim timesharing schedules, the limited nature of a temporary hearing and necessity for quick action by the trial judge require us to defer to the trial court’s exercise of its discretion and not pick apart a trial court’s order for technical infirmities.” 100 So.3d at 1168.

The mother complains that the trial court ruled on the return of the child to Florida without hearing evidence from Illinois witnesses who could testify to the child’s current condition and best interests. The reason that those witnesses did not testify, however, was due to the mother’s failure to secure their testimony in a timely fashion. The trial court denied the mother’s request for a continuance, which was not an abuse of discretion, given the length of time the mother had to prepare for the hearing as well as the prejudice to the father by continuing to be deprived of access to his child. See Ryan v. Ryan, 927 So.2d 109, 111 (Fla. 4th DCA 2006). Furthermore, both the mother and the maternal grandmother testified as to the child’s situation in Illinois and his medical disorders and treatment. Therefore, the court did have evidence regarding the care and treatment of the child in Illinois.

The mother also argues that the trial court limited her testimony regarding the father’s abuse of her, as well as disregarding the maternal grandmother’s testimony on that issue from the prior hearing. When the mother was called by the father to testify, her counsel cross-examined her on the domestic violence she alleged. She described at length the types of abuse she suffered. When she testified on direct as part of her case, she attempted to provide even more details of specific acts of violence, to which the father’s counsel objected as cumulative. The trial court sustained the objection, noting that the court had a clear recollection of her answers and did not want to get into matters already covered.

Given the fact that the hearing was for the purposes of return of the child to Florida pending final determination in the paternity and custody litigation, the trial court did not abuse its discretion in limiting the mother’s testimony. We noted in Hoff: “Contested temporary relief hearings are not and should not be as lengthy as contested final hearings. The parties need to obtain temporary relief expeditiously. Shorter hearings are required to accomplish that goal.” 100 So.3d at 1168. The trial court had listened to the mother’s testimony of abuse in some detail and the father’s denial of those allegations. As to the maternal grandmother’s testimony, while the mother objected to the successor judge’s disregard of it, the parties stipulated that the court could consider the transcript of that testimony. After reviewing it, the court ultimately gave it little weight (as it did to the child’s Florida physician). The mother had the opportunity to be heard on the issue of abuse and presented substantial testimony regarding her relationship with the father. For the purposes of the temporary hearing, the trial court did not abuse its discretion in sustaining the objection to the cumulative nature of the mother’s testimony.

On the second day of hearing, the mother sought to introduce her diary into evidence as a prior consistent statement after she cross-examined the father on her allegations of abuse, and he testified that the allegations were a fabrication. The trial court denied its admission, which we uphold. In general, “prior consistent statements of a witness are hearsay and not admissible to corroborate or augment the witness’s trial testimony.” Keller v. State, 586 So.2d 1258, 1259 (Fla. 5th DCA 1991) (citations omitted), abrogated on other grounds, State v. Smith, 840 So.2d 987 (Fla.2003). However, a statement “is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication.” § 90.801(2)(b), Fla. Stat. Nevertheless, “[a] prior consistent statement is not admissible merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.” Monday v. State, 792 So.2d 1278, 1280 (Fla. 1st DCA 2001). “[S]ection 90.801(2)(b) contemplates an initial attempt on cross-examination to show ... recent fabrication, and only after such an attempt can evidence of the witness’s prior consistent statement be introduced.” Wise v. State, 546 So.2d 1068, 1069 (Fla. 2d DCA 1989). “Admissibility of the prior statement is addressed to the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of that discretion.” Jenkins v. State, 547 So.2d 1017, 1020 (Fla. 1st DCA 1989) (citing Kelley v. State, 486 So.2d 578, 583 (Fla.1986)).

The mere fact that the father contested the truth of the mother’s statements, under cross-examination by the mother’s counsel, does not render admissible the mother’s prior consistent statements. As in Jenkins, all that occurred in this case is that the father contested the credibility of the mother, as occurs in any adversarial proceeding. The father’s counsel did not cross-examine the mother as to any motive to lie or fabricate the allegations of abuse. It appears that the mother’s counsel tailored her examination of the father, using words such as “recent fabrication” solely to try to establish a predicate to admit the otherwise inadmissible hearsay (ie., the diary). The court did not abuse its discretion in denying admission.

For the purposes of these interim orders regarding return of the child and time-sharing, the trial court conducted an adequate hearing and afforded both parties the opportunity to be heard on the important issues. The court heard the allegations of abuse as well as the child’s circumstances in Illinois. The father testified to his interaction with the child and his ability to provide for the child in Florida. At the close of the evidence, the judge ruled and specifically noted that he had considered the factors contained in section 61.13, as well as the relocation statute, section 61.13001. What the court felt most important was the testimony of the parents. The court determined that its ruling was in the best interests of the child, stating “I’m not concerned about [the mother’s and father’s] feelings, and what’s in their best interest. I’m just not. You nailed it in your closing, [mother’s attorney]. It’s all about [the child].” Further, as noted in Hoff, the lack of specific findings on each factor is not reversible error in a temporary order. 100 So.3d at 1168. In this case, however, the court made the oral finding that it was acting in the child’s best interest.

The mother further argues that because the relocation statute does not apply to these circumstances, the trial court had no authority under section 61.13 to order the return of the child. Irrespective of the fact that the mother did not object to the trial court’s authority to order the return of the child under section 61.13, we find this point without merit. In Decker v. Lyle, 848 So.2d 501 (Fla. 2d DCA 2003), on similar facts, the court concluded that even though the case was not strictly a relocation, the relocation factors should be considered in determining the best interests of the child under section 61.13. Even prior to the adoption of the relocation statute, trial courts had the authority to order relocation, although it was discouraged pri- or to final hearing. See Garone v. Parks, 668 So.2d 307, 308 (Fla. 4th DCA 1996). We conclude that the court had the authority to order return of the child.

Finally, the mother challenges the time-sharing order as being vague. This issue is moot, as after the entry of the orders, the mother moved back to Florida with the child and entered into an agreed order specifying the time-sharing arrangement.

For the foregoing reasons, we affirm the trial court’s order granting return of the child. The order on time-sharing is rendered moot by the parties’ subsequent agreement on time-sharing reflected in an agreed order.

Affirmed.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . The mother did not appeal this ruling.


author: STONE, BARRY J., Senior Judge.

text:
    Harry SARGEANT, III, Mustafa Abu-Naba’a, and International Oil Trading Company, LLC, Appellants, v. Mohammad Anwar Farid AL-SALEH, Appellee.
    Nos. 4D11-3851, 4D12-760.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Roger S. Robert and Marc C. Pugliese of Rafferty, Robert, Tenenholtz, Bounds & Hess, P.A., Miami, Christopher M. Rise of Foley & Lardner LLP, Tallahassee, and Raoul G. Cantero, David P. Draigh, and Laura M. Reich of White & Case LLP, Miami, for appellants.
    Allison Davis and Louis M. Silber of Silber & Davis, West Palm Beach, Michael D. Kibler of Simpson, Thacher & Bartlett LLP, Los Angeles, California, and Barry R. Ostrager of Simpson Thacher & Bartlett LLP, New York, New York, for appel-lee.
   ON MOTION FOR REHEARING

STONE, BARRY J., Senior Judge.

We deny Defendant’s motion for rehearing but withdraw our opinion of May 15, 2013, and substitute the following:

Defendants appeal a judgment entered following a jury verdict in the sum of $28.8 million on a multi-count complaint. Plaintiff cross-appeals for pre-judgment interest.

The case was submitted to the jury on three counts sounding in fraud and on three counts based upon the law of the country of Jordan. It is undisputed that Jordanian law applies to those claims.

Six weeks before the start of the trial calendar, Defendants moved to amend their defenses. The motion was denied but without prejudice to Defendants introducing evidence at trial on the defenses requested in the motion. Of significance is that the motion did not seek leave to include an affirmative defense of a failure of condition precedent. This affirmative defense is relevant only to the Jordanian law claims. Under Jordanian law, pre-suit notice to a Jordanian ministry was allegedly required before suit could be brought.

The only issue on appeal directly relating to Defendants’ liability under the three Jordanian law claims is Defendants’ assertion that it was an abuse of discretion to exclude expert testimony concerning whether there is a condition precedent, under Jordanian law, that notice had to be given to a certain Jordanian ministry, prior to Plaintiffs instituting suit. We conclude that, under the totality of the circumstances, it was not an abuse of discretion to sustain Plaintiffs objection to the defense offer of expert testimony on the law of Jordan as to the claimed condition precedent. Such affirmative defenses must be specifically pled. See Fla. R. Civ. P. 1.120(c). The condition precedent claim was not raised in Defendants’ motion for leave to amend the Answer and was addressed to the Court for the first time mid-trial. Further, all jury instructions on Jordanian law had been extensively negotiated and were presented to the Court by stipulation, thereby removing any battle of experts on Jordanian law, and Plaintiff had relied on that stipulation in withdrawing his Jordanian law expert. The Defendants also failed to comply with the disclosure requirements of the pre-trial order.

The verdict form asked the jury to answer yes or no to six questions: (1) whether Defendants committed fraud; (2) whether Defendants conspired to commit fraud; (3) whether Defendants Abu-Naba’a and IOTC USA aided and abetted fraud; (4) whether Defendants breached a fiduciary obligation; (5) whether Defendants tortiously injured Plaintiff; and (6) whether Defendants breached Jordan’s unfair competition law. The jury answered “yes” to each question.

Defendants also argue that a new trial on damages should be granted because the jury’s damage award does not distinguish between the fraud claims and the Jordanian law claims. As to damages, the verdict form asked only one question: “What is the total amount of money damages sustained by [Plaintiff] that was caused by Defendant(s)?” The jury gave a single sum of $28.8 million.

All of Plaintiffs counts arose out of the parties’ agreements, acts, and communications relating to two U.S. government procurement contracts, identified as contracts # 0483 and # 0497. The parties stipulated to the verdict form that did not distinguish between liability counts. The measure of damages, Plaintiffs lost profits under the two contracts, was undisputed to be the sum awarded by the jury, $28.8 million. This damage sum was sought under all six counts and was agreed by the damage experts for both sides to be the amount of lost profits. We do note that Plaintiff additionally sought an upward adjustment from this base figure to charge Defendants with certain claims of self-dealing; however, the jury patently rejected those claims by Plaintiff for additional damages. This does not, however, take away from the fact that the basic lost profits were, as claimed and not disputed, the sum awarded.

We need not address the issues on appeal arising out of Defendants’ fraud counts. As the parties stipulated to the verdict form and the verdict was for the precise amount sought regardless of count, the $28.8 million would, in any event, be due to Plaintiff under the affirmed Jordanian law claims.

On the cross-appeal, we find error in the denial of pre-judgment interest. The record reflects the end dates of each of the two contracts. Therefore, even without a verdict form breakdown, it is clear that the total sum for lost profits is, at a minimum, fixed as of the end of the last contract, on August 31, 2009.

Therefore the final judgment is affirmed as to the issues on direct appeal and reversed as to the cross-appeal. We remand for the award of pre-judgment interest from August 31, 2009.

WARNER and GROSS, JJ., concur.


author: KLINGENSMITH, MARK W., Associate Judge.

text:
    STATE of Florida, Appellant, v. Jarvis JACKSON, Appellee.
    Nos. 4D11-4887, 4D12-625.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Sept. 13, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Gregg Lerman, West Palm Beach, for appellee.
   KLINGENSMITH, MARK W., Associate Judge.

The state appeals an order granting a motion to suppress statements made by the defendant during the course of an investigation. For the reasons set forth below, we reverse the order suppressing the defendant’s statements.

The defendant, Jarvis Jackson, gave incriminating statements to law enforcement regarding two separate criminal matters. After making the statements, Jackson was charged in one case with second-degree murder with a firearm and possession of a firearm or ammunition by a felon. In another case, he was charged with three counts of first degree murder with a firearm and three counts of attempted first degree murder with a firearm.

At the time those charges were filed, Jackson was already in federal prison serving a fifteen-year sentence on unrelated charges. While serving the sentence, Jackson requested a meeting with a detective from the Palm Beach County Sheriffs Office to discuss a shooting Jackson claimed he had witnessed at a CVS store. Jackson wanted to provide substantial assistance in the investigation of the shooting for purposes of obtaining a reduction of his current sentence under Federal Rule of Criminal Procedure 35 (hereinafter “Rule 35”). Based on the request, the detective, a sergeant, and an ATF agent went to meet with him at the Federal Detention Center in Miami.

Upon their arrival, the investigators conducted a taped interview of Jackson. Although Jackson was not given a Miranda warning before the interview, Jackson concedes that a Miranda warning was not required under these circumstances inasmuch as he invited law enforcement to interview him at the prison. Jackson told the investigators that he wanted to provide information to them regarding the CVS shooting, and made it clear that his motivation in doing so was to obtain a sentence reduction. After a brief discussion, Jackson was told that the information he provided was already known, and therefore, would not qualify him for a sentence reduction under Rule 85.

The detective testified it was not his intent to obtain inculpatory information from Jackson during this interview. However, law enforcement had previously identified Jackson as a possible suspect in two other homicide cases, including a shooting that occurred at a funeral wake for Jackson’s brother. After getting no new information regarding the CVS shooting, the investigators asked Jackson questions about the shooting at the wake, indicating to him that they knew he was somehow involved.

Jackson again asked whether the investigators could assist in obtaining a sentence reduction for him. The detective told Jackson “we can’t help you unless ... there’s complete honesty.”

At that point, the ATF agent explained the Rule 35 process. He told Jackson that if the information was lucrative, it would be presented to the U.S. Attorney. He also explained, however, that the decision on any possible sentence reduction was in the hands of the U.S. Attorney as well as the judge. The investigators confirmed to Jackson that they could not guarantee he would receive a sentence reduction, but it would only be possible if he provided information to them that they did not already have. Specifically, the sergeant told Jackson, “The only way we can ... do anything at all is you got to give us something to go to the attorneys with. We can’t promise you anything. ... The only way for you to do anything is to find a way to put somebody else where you are. That’s all there is to it. It’s got — it’s a trade.” (Emphasis added). As the ATF agent further described, “you gotta give [substantial assistance] to get [a sentence reduction].” (Emphasis and alterations added). Following this exchange, Jackson then made statements implicating himself in the crimes for which he is now charged. At no time did the investigators promise Jackson he would get a sentence reduction by implicating himself.

During the pendency of these proceedings, Jackson filed a motion to suppress those inculpatory statements. At the hearing on the motion to suppress, the detective and the ATF agent both testified, and both denied promising any benefit to Jackson in exchange for answering the questions. The trial court granted the motion to suppress, holding that under the totality of the circumstances the state failed to satisfy its burden of proving that the confession was voluntary and not the product of an unlawful promise by law enforcement. The court further found that the investigator’s statement “you gotta give to get” constituted an impermissible quid pro quo rendering the confession involuntary. In support of its finding that the confession was involuntary, the trial court relied heavily upon Day v. State, 29 So.3d 1178 (Fla. 4th DCA 2010), and Ramirez v. State, 15 So.3d 852 (Fla. 1st DCA 2009).

When reviewing a ruling on a motion to suppress an incriminating statement, an appellate court accords a presumption of correctness to the trial court’s factual findings, but independently reviews mixed questions of law and fact that ultimately determine constitutional issues. Connor v. State, 803 So.2d 598, 608 (Fla.2001). Whether statements by law enforcement officers constitute coercion is a matter of law reviewed de novo. State v. Walter, 970 So.2d 848, 851 (Fla. 2d DCA 2007).

We hold the trial court erred in granting the motion to suppress Jackson’s statements. It is axiomatic that a confession is inadmissible if it is involuntarily given. To establish that a statement is involuntary, there must be a finding that there was coercive police conduct of a nature sufficient to overcome the free will of the defendant. Baker v. State, 71 So.3d 802, 814 (Fla.2011); Schoenwetter v. State, 931 So.2d 857, 867 (Fla.2006). Statements offered by a suspect after direct or implied promises by law enforcement can, in some circumstances, be rendered inadmissible at trial if obtained as a result of those promises. Johnson v. State, 696 So.2d 326, 329 (Fla.1997). However, interrogation that might arguably be interpreted as including a “promise” to a suspect is not per se improper, nor does such questioning automatically render any resulting statements inadmissible. See Blake v. State, 972 So.2d 839, 844 (Fla.2007).

The statements made by Jackson to the investigators herein were not induced by improper quid pro quo promises. Other courts considering similar statements made by law enforcement to suspects during questioning have found that any information so obtained is admissible when investigators are unequivocal that they are not in a position of authority to make any binding promises in exchange for information. See Maqueira v. State, 588 So.2d 221, 222-23 (Fla.1991) (statement admissible where officer agreed to “do whatever possible to help”, but advised the defendant that he had “no authority to make promises”); United States v. Davidson, 768 F.2d 1266, 1271 (11th Cir.1985) (confession was voluntary where agent stated that “he couldn’t promise anything,” but that if the defendant did cooperate with substantial assistance the U.S. Attorney could recommend a shorter sentence); see also State v. Carroll, 103 So.3d 929, 931 (Fla. 2d DCA 2012) (detective’s statement that he would “see what it is that we can do to help you out” was not a promise of leniency in return for confession).

We find the decisions in both Day and Ramirez to be inapplicable to this case. Here, unlike the circumstances presented in those cases, Jackson freely and voluntarily initiated the discussions with the investigators by calling and inviting them to speak with him. During this discussion, the investigators explained to Jackson the limits of their authority. There was no express or implied promise of leniency made to Jackson in return for his statements. Further, the investigators expressly told Jackson prior to obtaining his statements that they were not the decision-makers regarding any possible leniency or sentence reduction, and in fact specifically identified to him who those decision-makers were. The only “promise” the investigators conveyed to Jackson was that they would present whatever information he gave them to the U.S. Attorney’s office, which in turn would have the authority to consider the information toward any possible recommendation to the U.S. District Judge for a reduced sentence. Furthermore, the investigators’ statements to Jackson would not have reasonably led him to believe that he would be shielded from prosecution because of information he provided.

Because we conclude that the investigators’ conduct never rose to the level of coercion, we reverse the order of suppression and remand for further proceedings.

Reversed and Remanded.

LEVINE and FORST, JJ., concur.

      . The detective had known Jackson and his family for approximately twenty years.

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


author: CIKLIN, J.

text:
    Geoffrey CHOY and Meric Homes, L.L.C., d/b/a Vocelli Pizza, LP, Appellants, v. Sandra FARALDO, Appellee.
    Nos. 4D12-877, 4D12-878.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Anna D. Torres and Jamila V. Alexander of Powers McNalis Torres Teebagy Luongo, West Palm Beach, for appellant Geoffrey Choy.
    Elaine D. Walter and Mark R. Antonelli of Gaebe, Mullen, Antonelli & DeMatteo, Coral Gables, for appellant Meric Homes, L.L.C., d/b/a Voeelli Pizza, LP.
    Walter G. Campbell, Jr. and Kelley B. Stewart of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A., Fort Lauderdale, for appel-lee.
   CIKLIN, J.

The defendants below, Geoffrey Choy and Meric Homes, L.L.C. (“Meric”), appeal the trial court’s order granting plaintiff Sandra Faraldo’s motion for new trial on the issues of both liability and damages. We find that the trial court acted within its discretion in granting a new trial on the issue of damages and finding that defense counsel offered inflammatory closing argument which had an unduly prejudicial effect upon the jury. However, we also hold that the court erred in granting a new trial on the issue of liability in that the improper argument was directed exclusively toward the extent of injuries allegedly sustained by Faraldo — and not anything connected to the question of liability.

Facts

This case arose from an automobile accident in which a vehicle driven by Choy collided with Faraldo’s vehicle. Faraldo brought suit against Choy alleging that Choy negligently caused the accident. Faraldo also sued Cho/s employer, Meric, and alleged that Meric was vicariously liable for Cho/s actions because Choy was acting -within the scope of his employment as a pizza delivery driver for Meric at the time of the accident. Choy filed an answer denying liability for the accident. Meric filed a separate answer denying liability for the accident and denying that Choy was acting within the scope of his employment at the time of the collision.

The case proceeded to a trial by jury during which the parties presented extensive and conflicting evidence regarding whether Choy was acting within the scope of his employment and the damages claimed by Faraldo.

During closing argument, Meric’s attorney began to discuss Faraldo’s alleged damages. In disputing Faraldo’s contention that the automobile accident rendered her incapable of earning future income (for which Faraldo’s attorney had suggested damages of $85,000 per year), counsel for Meric displayed a Sports Illustrated magazine to the jury. The cover story prominently portrayed Marc Buoniconti in a wheelchair. As Meric’s attorney was holding up the magazine and displaying its cover to the jury, the following exchange took place:

Meric’s counsel: You all have had an opportunity to sit here for four days to see Mrs. Faraldo. You know her education, you know her training, you know her background, you know her experience. And the response given [by Faraldo’s medical expert witness] was, she can’t do anything.
You know, yesterday in the mail I got the latest issue of Sports Illustrated, August 24, 2009. Nick Buoniconti, his son—
Faraldo’s counsel: Your Honor—
The court: I’m going to sustain the— wait. Let me go ahead and let you make your objection.
Faraldo’s counsel: Okay. For the record, first of all, that’s not in evidence. The court: Yes, that’s correct.
Faraldo’s counsel: You’re not supposed to come out with something like this, and he knows that that was totally improper.
Meric’s counsel: Your Honor, I’m allowed to use demonstrative aids.
The court: Not — first of all, that’s very inflammatory. I’m going to sustain the objection, and ask the jury just to disregard the comment and the photograph.
Meric’s counsel: [T]here are people that are in wheelchairs, that do not have limbs, that are blind. You have to evaluate in terms of a big picture, big picture, all of the evidence in this case.

Outside the presence of the jury, Faral-do moved for a mistrial. The trial cburt denied the motion.

The jury returned a verdict finding that Choy was 100% liable for the accident because he was not acting within the scope of his employment at the time of the accident. The jury awarded damages to Far-aldo, but in an amount far less than she sought.

Faraldo moved for a new trial arguing, among other things, that a portion of Meric’s counsel’s closing argument was sufficiently prejudicial and inflammatory to require a new trial. Meric’s counsel acknowledged that the comment was “ill-framed” and “ill-advised,” but Choy and Meric opposed the motion for new trial asserting that a new trial was not warranted. Additionally, Meric argued that even if the court were to grant a new trial on the issue of damages, the court should not disturb the jury’s findings regarding liability because the allegedly improper argument related only to damages. After the hearing, the trial court granted Faral-do’s motion and ordered a new trial against both defendants on all issues. The court rendered a written order which stated in pertinent part:

[ T]he arguments of [Meric’s] counsel during closing were inflammatory, directly appealing to the juror’s [sic] passions and prejudices and based upon matters outside the evidence.... In particular the arguments regarding Marc Buoniconti were intended to and did in fact improperly influence the jurors in their deliberations in this case.... Although the Court instructed the jury to disregard the argument and photograph of Mr. Buoniconti in a wheelchair ... [the court] find[s] the effect of that inflammatory influence was so great that a new trial is required.

Choy and Meric appeal the order granting a new trial.

Analysis

“The decision on a motion for new trial is within the broad discretion of the trial judge, and an order granting such a motion should not be disturbed on appeal absent a showing of a clear abuse of that discretion.” Leyva v. Samess, 732 So.2d 1118, 1121 (Fla. 4th DCA 1999) (citations omitted); see Saunders v. Dickens, 103 So.3d 871, 877 (Fla. 4th DCA 2012). “[A] stronger showing is required to reverse an order allowing a new trial than to reverse an order denying a motion for new trial.” State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 1006 (Fla. 4th DCA 2001) (citation and quotation marks omitted).

We affirm the trial court’s decision to grant a new trial on the issue of damages. The trial judge acted within the discretion afforded to him when he determined that the comment was improper to the extent that it tainted the verdict as to damages. The trial court witnessed the improper argument and expressly determined that the argument had an inflammatory and prejudicial effect on the jury. From our position as appellate judges reviewing a “cold” record, we ordinarily defer to the trial judge’s rulings on motions for a new trial. See Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005) (“[Florida appellate courts] are also mindful of the superior vantage point enjoyed by the trial judge, which this court and other appellate courts have traditionally deferred to when considering a motion for new trial.” (citation omitted)); Higgins, 788 So.2d at 1006 (“A heavy burden rests on appellants who seek to overturn such a ruling [granting a new trial], and any abuse of discretion must be patent from the record.”) (quoting Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975)). In this case, we affirm because we find that reasonable minds could differ regarding the inflammatory and prejudicial impact of the improper argument. See Leyva, 732 So.2d at 1121 (“If reasonable [persons] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.”) (quoting Baptist Mem’l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980)).

Despite our acknowledged deference to the trial court regarding its decision to grant a new trial, we must reverse the court’s decision to grant a new trial as to the issue of liability. See Werneck v. Worrall, 918 So.2d 383, 388 (Fla. 5th DCA 2006) (“Although a trial court has considerable discretion on motions for mistrial or new trial, when reasonable [persons] cannot differ as to the propriety of the action taken by the trial court, the trial court cannot be affirmed.” (citation omitted)). The jury returned a verdict finding Choy solely liable for the accident, and the improper argument of Meric’s counsel could not possibly be construed as affecting any issue related to liability or whether Choy was acting within the scope of his employment when the accident occurred. Additionally, the argument could not reasonably be interpreted as an attempt to somehow shift liability from Meric to Choy.

Accordingly, we reverse the trial court’s order granting a new trial on the issue of liability, and remand the case for a new trial against Choy on the issue of damages. We caution that our holding in this opinion should not be misconstrued as requiring a new trial when a party makes an improper argument similar to that made by Meric’s counsel in this case. If the trial court had denied Faraldo’s motion for new trial under the facts of this case and Faraldo appealed the denial, we would have held that the court did not abuse its discretion in denying the motion.

Affirmed in part, reversed in part, and remanded.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . Marc Buoniconti is the son of Nick Buoni-conti, a former star NFL linebacker. Marc Buoniconti was severely injured in a college football game and was rendered a quadriplegic. The Sports Illustrated article detailed Marc Buoniconti’s current work as the president of the Miami Project to Cure Paralysis. See generally S.L. Price, Three Lives, Two Hits, One Happy Ending, Sports Illustrated, Aug. 24, 2009 (describing the life and work of Marc Buoniconti).


text:
    Maurice WALKER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-1591, 4D12-1599.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Maurice Walker appeals the trial court’s order revoking his probation and claims that several of the trial court’s findings rest upon legally insufficient grounds. The State properly concedes that one of the grounds supporting the probation violation order is insufficient but argues that the remaining violations being attacked on appeal were legally sufficient. For the reasons set forth below, we reverse and remand.

Walker previously pled no contest to several crimes and was sentenced to three years of probation. While out on probation, he was suspected of being involved in another crime and a warrant was issued for his arrest. Police officers observed his vehicle idling at a red light and attempted to initiate a traffic stop. When the officers activated their lights and sirens, Walker accelerated through the red light and began swerving in and out of traffic in an attempt to avoid capture. During the chase, Walker’s vehicle twice struck one of the pursuing patrol vehicles, ultimately causing Walker’s vehicle to lose control and crash into a median. Soon thereafter, Walker was apprehended.

The State filed an eight-count affidavit alleging that Walker violated his probation by committing various acts while attempting to escape the officers, including aggravated battery on a law enforcement officer with a deadly weapon, refusing to stop when ordered by law enforcement, resisting arrest with violence, disobeying a traffic control device, and possessing a firearm.

The State proceeded on these violations at the probation violation hearing. Walker argued, inter alia, that a noncriminal traffic citation, i.e., disobeying a traffic control device, could not constitute grounds for a violation of probation. Further, he argued there was no evidence that Walker battered a police officer because no evidence was submitted by the State that the driver of the police cruiser was ever jostled, injured, or otherwise affected by the two collisions with Walker’s vehicle.

The trial court found that Walker willfully violated his probation by committing an aggravated battery against a law enforcement officer, refusing to stop when ordered, resisting arrest with violence, disobeying a traffic signal, and possessing a firearm. The court revoked Walker’s probation and imposed a sentence of five years in state prison with credit for time served. However, no written order on the probation violation was ever entered by the court.

On appeal, Walker first alleges that the trial court erred by finding that he violated his probation by committing a non-criminal traffic offense. After the chase, Walker was cited for running a red light in violation of section 316.075, Florida Statutes, (2012). While a trial court may properly find that a defendant violated his or her probation by committing a criminal traffic infraction, see, e.g., Cox v. State, 816 So.2d 160, 160-61 (Fla. 2d DCA 2002), a defendant may not be found to have violated probation for committing a non-criminal traffic violation absent a special condition of probation proscribing such conduct. Reyes v. State, 3 So.3d 1267, 1267 (Fla. 5th DCA 2009). A condition of probation that simply requires a probationer to “obey all laws” may not be used to support a revocation of probation in the case of a noncriminal traffic offense. See id.; accord State v. Sheehan, 167 Ariz. 370, 807 P.2d 538, 540 (1991). An order of probation stating that a defendant must not commit a new law violation must specifically include civil traffic citations within its terms before the court can properly consider it as a ground for revocation. See Reyes, 3 So.3d at 1267. Here, the conditions of Walker’s probation contained no express provision defining a civil traffic offense as a new law violation for the purpose of subjecting him to criminal sanctions. Therefore, the trial court erred in relying upon Walker’s traffic citation as grounds for revoking his probation.

The trial court also found that Walker violated his probation by committing a battery on a law enforcement officer when he struck the police car twice with his vehicle during the chase. Generally speaking, the circumstances of any given case will determine whether a vehicle is sufficiently closely connected to a person so that the striking of the vehicle would constitute a battery on that person. Clark v. State, 783 So.2d 967, 969 (Fla.2001). A sufficient connection exists where there is evidence of touching as required for a battery, evidence that the impact of the vehicles injured the occupants, or evidence that the collision caused the occupants to brace themselves, jostled them about, spun them, or moved them about within the vehicle. See Rosa v. State, 847 So.2d 495, 497 (Fla. 3d DCA 2003)(citing V.A. v. State, 819 So.2d 847, 849 (Fla. 3d DCA 2002)). Under some circumstances, it may be sufficient for the State to meet its burden of proof on this issue by demonstrating that the magnitude of the impact was so severe that it can be reasonably inferred that the occupants of the vehicle were indeed battered. V.A., 819 So.2d at 849.

At the revocation hearing, photographs were introduced into evidence that showed only minor damage to the exterior of the police vehicle. While there was evidence that a police dog was “injured” as a result of Walker’s vehicle colliding with one of the officer’s police cruisers, the State presented no other testimony or evidence showing that the officer was physically affected in any way by the collision. The officer did testify that he was “scared” by the impact, but he also admitted that he suffered no physical injuries whatsoever as a result. Whether the officer was “jostled” as a result of his vehicle being struck twice is a matter of speculation. The State failed to present any competent evidence to satisfy its burden of proof on this charge. The officer testified that Walker’s vehicle “lost control” and “went over a little median.” There was no testimony presented that the officer’s car struck anything other than Walker’s vehicle during the pursuit. Thus, there was insufficient evidence presented at the hearing to support the trial court’s finding that Walker violated probation by committing a battery on a law enforcement officer. Cf. Yarn v. State, 106 So.3d 39, 40-41 (Fla. 2d DCA 2013)(testimony that impact threw police dog against the wall of his cage and officer against steering wheel was sufficient for court to find that a battery against the officer had occurred).

On appeal, the State concedes that there was no competent substantial evidence presented at the revocation hearing showing that Walker ever possessed a firearm while on probation. Since the court found a violation of probation on this ground and considered same in its determination of Walker’s sentence, this was error.

Because it is unclear from the record whether or not the trial court would have revoked Walker’s probation- and sentenced him to five years of imprisonment solely based upon the remaining violations, we remand with instructions that the trial court reconsider Walker’s probation revocation and subsequent sentence, and then enter a written order consistent with this opinion. Brown v. State, 12 So.3d 877, 879-80 (Fla. 4th DCA 2009); see also Oertel v. State, 82 So.3d 152, 157 (Fla. 4th DCA 2012). We express no opinion as to what sentence, if any, Walker should receive on remand, and leave that issue to the trial court’s discretion. See Davis v. State, 474 So.2d 1246, 1246-47 (Fla. 4th DCA 1985); see also Figueroa-Montalvo v. State, 10 So.3d 173, 175-76 n. 3 (Fla. 5th DCA 2009).

Reversed and Remanded.

LEVINE, FORST, JJ., and KLINGENSMITH, MARK W., Associate Judge, concur.

      . The record does not reflect that Walker was ever charged with a violation of probation related to an injury purportedly suffered by the police dog during the chase. The only battery charged by the State against Walker was allegedly committed against the law enforcement officer, not the police dog. This court has previously held that a battery to a police dog is separate and distinct as a matter of law from a battery on a police officer. Bass v. State, 791 So.2d 1124, 1124-25 (Fla. 4th DCA 2000). A revocation of Walker’s probation cannot be premised on an uncharged violation. Thomas v. State, 902 So.2d 900, 900 (Fla. 4th DCA 2005) (citing Ray v. State, 855 So.2d 1260, 1261 (Fla. 4th DCA 2003)).


text:
    Raymond WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1229.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Raymond Williams, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013); Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012); Perie v. State, - So.3d - (Fla. 2d DCA 2013).

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    Karii L. IVORY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1042.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Karii L. Ivory, Daytona Beach, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Mauldin v. State, 9 So.3d 25, 27 (Fla. 4th DCA 2009).

GROSS, CIKLIN and LEVINE, JJ., concur.


text:
    Wilter SIMEUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1026.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Wilter Simeus, North Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Chaidez v. United States, - U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, - So.3d - (Fla.2012).

WARNER, LEVINE and CONNER, JJ., concur.