author: DAMOORGIAN, J.

text:
    Robert BEDWELL, Marc A. Berenfeld, Madeline Elias, Mike Everett, Isabel H. Goldberg, Monte S. Gordon, Jeffrey Lefcourt, Ana Martinez, Michael F. O’Rourke, Gustavo Perez, John J. Schoendorf, Philip J. Schecter, Emery B. Sheer, Vicki Simmons-Hinz, Michael Spritzer, Gregory Tait, Jack I. Yesner and Tracy Weintraub, Appellants, v. Charles E. RUCKS, individually and as Trustee of the Glen R. Rucks Revocable Trust and as Co-Trustee of the Charles E. Rucks Trust, and Susan D. Rucks, individually and as Co-Trustee of the Charles E. Rucks Trust, and Cherry, Bekaert & Holland, L.L.P., Appellees.
    No. 4D11-3532.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.

      Nancy C. Ciampa of Carlton Fields, P.A., Miami, and Joseph Ianno, Jr., of Carlton Fields, P.A., West Palm Beach, for appellants.
    Tim B. Wright of Wright, Ponsoldt & Lozeau Trial Attorneys, L.L.P., Stuart, for appellees.
   DAMOORGIAN, J.

Appellants appeal the trial court’s order denying their motion to transfer venue. We reverse.

By way of background, Appellants are all individual accountants associated with the same accounting firm. Appellants joined a new accounting firm when their old firm voluntarily liquidated. Charles E. Rucks and Susan D. Rucks (“Appellees”) are clients of the former accounting firm who filed a professional malpractice complaint against it in Okeechobee County.

While the malpractice action was pending, Appellees filed a second complaint against Appellants and their new accounting firm alleging a violation of the Uniform Fraudulent Transfer Act (“the Fraudulent Transfer Act”). See § 726.106(1), Fla. Stat. (2010). The Fraudulent Transfer Act provides remedies for creditors in the event a debtor transfers assets to avoid payment. §§ 726.105-.108, Fla. Stat. (2010); Freeman v. First Union Nat’l Bank, 865 So.2d 1272, 1276-77 (Fla.2004). The alleged fraudulent transfers resulted when the new accounting firm purchased certain liquidated assets from the former accounting firm. Appellees also filed this suit in Okeechobee County.

In their complaint, Appellees asserted venue was proper there, on the grounds that the cause of action arose in Okeechobee County. Appellants moved to transfer venue, claiming they resided in, and all asset transfers and other actions giving rise to the claim occurred in, either Miami-Dade or Broward County. Additionally, neither accounting firm maintained offices or agents in Okeechobee County. Appellees opposed the transfer arguing that Appellants failed to meet their burden to prove that the cause of action did not accrue in Okeechobee County. The trial court denied the motion. This appeal follows.

Venue is proper “in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” § 47.011, Fla. Stat. (2010). Inasmuch as Appellants reside in Miami-Dade or Broward County, and no property is at issue, our resolution of the issue in this case requires us to determine where the action accrued.

A cause of action accrues when the last element necessary to complete it occurs. § 95.031(1), Fla. Stat. (2010); State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla.1996) (holding that breach of contract claim for recovery of insurance benefits accrued when insurer failed to pay, not when accident occurred); Margolis v. Andromides, 732 So.2d 507, 509 (Fla. 4th DCA 1999) (holding that breach of implied warranty action accrued upon principal’s repudiation, not when the plaintiff understood the extent of damages).

Appellees argue that their fraudulent transfer claim accrued in Okeechobee County, since their damages at issue in the underlying malpractice claim happened there. We reject that argument because proof of damages in the underlying “claim” is not an element of a Fraudulent Transfer Act claim. See Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 192 (Fla.2003). The Fraudulent Transfer Act only requires that a creditor’s claim arise before the alleged transfer. § 726.106(1), Fla. Stat. (2010) (“A transfer made ... by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made.”). A “claim” under the Fraudulent Transfer Act “means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” § 726.102(3), Fla. Stat. (2010); see also Friedman, 863 So.2d at 192. Indeed, the Fraudulent Transfer Act does not even require that the creditor first obtain a judgment against the debtor for the underlying claim. Id. at 193. (“[T]the statute automatically endows plaintiffs ... with ‘creditor’ status ... [while] their substantive underlying claims are also being litigated and resolved.”). Accordingly, the place where damages occurred in the underlying claim is irrelevant to determining when and where a fraudulent transfer claim accrued.

For purposes of determining when a Fraudulent Transfer Act claim accrues, we are guided by the applicable statute of limitations. The limitations period for claims arising out of the Fraudulent Transfer Act expires “within 4 years after the transfer was made or the obligation was incurred.” § 726.110(2), Fla. Stat. (2010) (emphasis added); see also § 95.031, Fla. Stat. (2010) (“[T]he time within which an action [begins] ... runs from the time the cause of action accrues.”). Thus, a Fraudulent Transfer Act claim accrues at the moment the alleged transfer occurs. Therefore, where the alleged fraudulent transfers take place is relevant to determining where venue lies.

In this case, Appellants presented evidence that the alleged fraudulent transfers took place in either Miami-Dade or Broward County. This was sufficient to shift the burden back to Appellees to demonstrate that venue was proper in Okeechobee County. See I-Net Techs., Inc. v. Salazar, 82 So.3d 1007, 1008 (Fla. 4th DCA 2011) (explaining that the filing of affidavits challenging venue shifts the burden to show proper venue back to the plaintiff). To rebut Appellants’ evidence establishing that the action accrued in either Miami-Dade or Broward County, Ap-pellees relied only on facts relevant to the underlying professional malpractice claim. We hold this was insufficient to meet their burden of “establishing] the propriety of the venue selection.” Drucker v. Duvall, 61 So.3d 468, 471 (Fla. 4th DCA 2011).

Accordingly, we reverse and remand with directions to transfer venue to the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, or to the Seventeenth Judicial Circuit in and for Broward County, Florida.

Reversed and Remanded.

HAZOURI and CIKLIN, JJ., concur.

      . Appellants also requested transfer of venue on the grounds that Okeechobee County was not the most convenient forum. We need not address that issue.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Keith VANDER VOORT and Nina Vander Voort, Appellants, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D11-3361.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.
    Jerome A. Pivnik of The Chartwell Law Offices, LLP, Miami, for appellants.
    Richard B. Doyle, Jr. of Loughren and Doyle, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The insureds appeal a final summary judgment in favor of their insurance company upholding the insurer’s denial of coverage. The trial court determined that the insurance company was entitled to summary judgment because the insureds could not prove that the damage and loss occurred during the policy term. We conclude, however, taking all inferences from the facts most favorably to the insureds, that disputed issues of fact remain. We therefore reverse.

The insureds, the Vander Voorts, made arrangements to store their furniture between moving out of one home and moving into a new home. They hired Weston Moving & Storage to pick up their household belongings on July 6, 2009. Weston stored them in safekeeping until April 2010, when the Vander Voorts were ready to move into their new home. Anticipating their move into the new home, the Vander Voorts purchased homeowners insurance from Universal on March 15, 2010. That insurance provided coverage for damage and loss to home furnishings, but only for such damage and loss occurring within the policy period. The policy period ran from March 15, 2010, to March 15, 2011.

When Weston delivered the furniture to the Vander Voorts’ home on April 10, 2010, several pieces were missing and several others were damaged. The Vander Voorts filed a claim for damage and loss to home furnishings with Universal, which denied the claim. The company contended that the loss and damage did not occur during the policy period, as it could have occurred earlier than March 15, 2010. The Vander Voorts then filed suit for breach of contract.

During discovery, the depositions of the Vander Voorts, as well as the manager of Weston, Brian McGary, were taken. McGary explained that the company packed up the Vander Voort furnishings at their home in July 2009. Weston employees then drove them to the storage facility. The items were not unpacked, but rather, placed into three vaults. The vaults were stacked in the warehouse with a forklift. Without a forklift, the vaults were inaccessible. McGary carried the only key to the forklift. Upon returning the Vander Voorts’ property in April 2010, Weston removed the vaults from their storage place with the forklift. There were no signs that they had been tampered with, as the clips placed on the outside of the vault were still in place. On April 9, 2010, Weston loaded the furnishings onto two trucks. The trucks remained in an unsecured yard outside the warehouse overnight. McGary did not know if the trucks were locked.

Weston delivered the furnishings to the Vander Voort home on April 10, 2010. After observing damage to some of their property as well as noticing some items missing, the Vander Voorts called McGary. Both McGary and Garcia, the employee in charge of the move, went to the home and noticed damage to several pieces of furniture. Garcia maintained that he had not seen the damage when the pieces were loaded onto the truck the day before.

In their depositions, the Vander Voorts both testified that they did not know the exact date their furniture was lost or damaged. Both stated that they did not know if it occurred prior to March 15, 2010. Based upon this testimony, Universal moved for summary judgment on the ground that the insureds could not prove that the loss occurred during the policy period.

In opposition to the motion, the Vander Voorts filed several affidavits of Weston employees. First, Holbrook, the employee who packed and transported the furniture from the old Vander Voort home to the warehouse storage facility, attested that “[a]ll the items that were packed and moved from [the Vander Voorts’] home were put on the truck operated by me and were delivered to Weston’s warehouse without any loss or damage, other than, I believe, a glass table which broke at the warehouse.” He placed all the items in vaults, where they remained untouched, to Holbrook’s knowledge. Holbrook stopped working for Weston several months later. Papke, the employee who removed the furnishings from the vault and packed them in the moving truck on April 9, 2010, also furnished an affidavit. Papke swore that he did not “recall any signs that the Vaults had been tampered with nor broken into, and had contained only the Vander Voorts’ goods.” He said he believed he would have recalled the kind of damage described to him by the manager had the goods been in such a condition while loading them onto the trucks. Finally, Garcia, who was in charge of the move, swore in his affidavit that only he and the manager, McGary, had access to the vault where the Vander Voorts’ furnishings had been stored, and no signs of tampering on the vault were evident. Moving the furnishings from the vault to the truck occurred without incident. The loaded truck, however, was parked in an unsecured area. In his final paragraph, Garcia stated that he did not believe that the furniture was damaged when it was loaded onto the truck, which he had told McGary.

Universal contended that the affidavits were insufficient to provide evidence of a disputed issue of fact, particularly in light of the testimony of the Vander Voorts that they did not know when the damage occurred. The trial court agreed and granted summary judgment. This appeal follows.

The standard of review for an order granting summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). An appellate court must examine the record in the light most favorable to the non-moving party. Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012).

Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011). Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law. Id. It is the moving party’s burden to conclusively prove the non-existence of a material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966); Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). Further, the court must draw every possible inference arising from the evidence in favor of the nonmoving party. See Schooner Oaks Ltd. Co. v. Schooner Oaks Condo. Ass’n, Inc., 776 So.2d 304, 306 (Fla. 4th DCA 2000); Cont’l Concrete, Inc. v. Lakes at La Paz III Ltd. P’ship, 758 So.2d 1214, 1217 (Fla. 4th DCA 2000); McDonald v. Fla. Dep’t of Transp., 655 So.2d 1164, 1168 (Fla. 4th DCA 1995) (“If the evidence raises any issues of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by the jury.”).

In its brief, Universal contends that the insured has the burden of proving that the loss occurred within the policy period. Because the insureds could not determine when the loss occurred, they failed in meeting their burden. While it is certainly true that the insured must prove the essential elements of its cause of action at trial, on a motion for summary judgment, it is Universal’s burden to prove the nonexistence of a material fact. In this case, it was Universal’s burden to conclusively prove that the loss did not occur during the policy period. Taking all reasonable inferences from the evidence, Universal failed to carry its burden.

The affidavits of the Weston employees show that they picked up the Vander Voorts’ furniture on July 9, 2009 undamaged. They placed the furnishings in three vaults at the warehouse. The vaults were not opened or tampered with until the Vander Voorts asked Weston to return their furniture in April 2010. When the furniture was taken out of the vault on April 9, 2010, damage was not observed. Weston left the furniture unsecured in two trucks on the night of April 9th. When it was delivered the next day, pieces were damaged and some items, such as a TV and electronics, were missing.

Based on these facts, there is a reasonable inference that the property was damaged during the process of returning the goods to the Vander Voorts, which occurred during the policy period. The affidavits and testimony of the manager showed an unbroken chain of custody of the property in an undamaged condition until it was delivered to the Vander Voorts’ home within the policy period.

This case is similar to Murray v. Traxxas Corp., 78 So.3d 691 (Fla. 2d DCA 2012). In Murray, parents of a minor sued the manufacturer and distributor of a gas can for an explosion which injured their son. They claimed negligent design of the can, which had been discarded before suit was filed. The can apparently was designed for a particular type of fuel. The evidence showed that the gas can had been resting on a shelf in a shed owned by the child’s uncle for several years after its purchase and prior to the incident. On a motion for summary judgment by the manufacturer and distributor, the trial court concluded that the parents could not meet their burden, because they could not prove that the same fuel was in the can, as it had been stored in an unsecured facility with access by anyone.

The Second District disagreed, because the parents presented testimony showing circumstantial evidence that the can had not been tampered with. Testimony revealed that the uncle had purchased the can with the fuel in it, placed the can on the shelf in the shed two years prior to the incident, and had not used it since. The shed was generally locked when not in use. In concluding that disputed issues of fact remained because an inference was permitted that the fuel was the same as the uncle had purchased two years before, the court said:

On the defendants’ motion for summary judgment, the Murrays were entitled to that inference. The defendants presented no evidence that suggested otherwise, and speculation about what might have happened to the fuel if some unknown person had gained access to the locked shed was not a proper basis for a summary judgment. Cf. Carter v. Cessna Fin. Corp., 498 So.2d 1319, 1321 (Fla. 4th DCA 1986) (noting that “speculation, surmise and conjecture are inadmissible at trial and legally insufficient to create a disputed issue of fact” in a summary judgment proceeding).
The upshot of the court’s theory was that it failed to construe the evidence in the light most favorable to the Murrays, as it was required to do on the defendants’ motion for summary judgment .... Further, the court relieved the defendants of their burden to demonstrate through competent evidence the nonexistence of a material fact concerning the identity of the fuel in their can.

78 So.3d at 694-95 (additional citations omitted) (emphasis supplied).

Similar to Murray, there was evidence that the Vander Voorts’ furnishings were undamaged when delivered to the storage facility, that no one entered or tampered with the vault at the storage facility, and that the goods were damaged upon returning the goods to the Vander Voorts. Thus, the Vander Voorts were entitled to the inference that the goods were damaged sometime between April 9, 2010, when they were removed from the vault, and April 10, when they were delivered to the Vander Voorts. As in Murray, the trial court failed to construe the evidence in a light most favorable to the non-moving party.

Universal also attacks the affidavits of the employees on the ground that they were based upon their “belief’ rather than knowledge. All three affidavits, however, were based upon the employees’ personal knowledge, because they participated in the moving of the furnishings. Florida Rule of Civil Procedure 1.510(e) requires affidavits to be made on personal knowledge and to set forth facts admissible in evidence. These affidavits complied with the rule.

Moreover, where the affidavits used the term “belief,” they did so in a manner that actually expresses personal knowledge. For example, Holbrook swore: “All the items that were packed and moved from their home were put on the truck operated by me and were delivered to Weston’s warehouse without any loss or damage, other than, I believe, a glass table which broke at the warehouse.” Here, Holbrook shows his personal knowledge that the items were packed and placed in vaults. The phrase, “other than, I believe, a glass table” reflects the level of his certainty, not his lack of personal knowledge. In addition, this affidavit was necessary to show only that the items were shipped and entered the storage facility vaults in good condition, not that a glass table was broken.

Likewise, Papke, who loaded the furniture from the vault into the truck, swore: “I do not recall any signs that the Vaults had been tampered with nor broken into.... I do not recall any unusual damage to their goods, and I believe that I would have recalled the kind of damages described to me by Brian McGary....” Again, this statement merely offers insight into the personal knowledge of Papke — an absence of any recollection of tampering and a belief that he would recall extensive damages described by the Vander Voorts. Papke’s affidavit also provides evidentiary support that the Vander Voorts’ items were safely stored at Weston’s facility.

Finally, Garcia’s affidavit also provides personal knowledge that the storage vaults had no signs of tampering. He was present when the furnishings were removed from the vault and loaded onto a truck parked outside. This testimony, as well as other corroborating statements from McGary, completes the chain that links the Vander Voorts’ loss to April 9, 2010, thereby raising a genuine issue of material fact that the loss occurred during the policy period.

Universal makes much of the fact that in Garcia’s affidavit, he crossed out “know” and added “believe” as follows: “I know do not believe that [the items] were not damaged that way when I they loaded them into the truck the night before. I told this to Mr. McGary.” This statement, however, does not show that his entire affidavit was based upon information or belief. Rather, the remainder of his affidavit shows the factual basis of his knowledge. Therefore, the affidavit was sufficient. See Myrick v. St. Catherine Laboure Manor, Inc., 529 So.2d 369, 371-72 (Fla. 1st DCA 1988) (affidavit is sufficient if it is clearly apparent from its face that it is made with personal knowledge of the facts to which the affiant is testifying). That he stated he did not believe, rather than stating he did not “know,” reflects the level of certainty as to his memory. Taken in context, the phrase did not relieve the affidavit of personal knowledge. Cf. Farrington v. State, 884 So.2d 1094, 1097 (Fla. 4th DCA 2004) (equivocal identification in which witness stated he “believed” that the defendant was the suspect is admissible and it was for the jury to resolve its credibility). Finally, just as with the Hol-brook affidavit, even if we ignore the last statement, Garcia’s remaining statements, as well as the other affidavits, provide ample proof based upon personal knowledge of facts which show that a material issue of fact exists. Therefore, the affidavits were legally sufficient for purposes of opposing the summary judgment.

For the foregoing reasons, we reverse the final summary judgment and remand for further proceedings.

TAYLOR and CONNER, JJ, concur.


author: PER CURIAM.

text:
    Cesar A. VIDAL and Ruth Vidal, Appellants, v. LIQUIDATION PROPERTIES, INC., Appellee.
    No. 4D10-3358.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.

      Karen J. Barnet-Backer and John H. Ruiz of John H. Ruiz, P.A., Miami, for appellants.
    Andrea Shelowitz and Jesse Davidson of Gladstone Law Group, P.A., Boca Raton, for appellee.
   PER CURIAM.

Cesar and Ruth Vidal (“the Vidals”) appeal the trial court’s order granting summary judgment and entering a final judgment of foreclosure in favor of Liquidation Properties, Inc. (“Liquidation”). The Vi-dals claim the trial court erred in finding: (1) Liquidation had standing to seek foreclosure of their note and mortgage, and (2) their affirmative defenses for fraud, misrepresentation, and violation of the federal Truth in Lending Act were legally insufficient. We reverse on the issue of standing and the rejection of the Vidals’ affirmative defense of Truth in Lending violations. We affirm on the remaining issues.

The Vidals executed two notes and mortgages in favor of Option One Mortgage Corporation for the purchase of their home. On February 5, 2009, Liquidation filed a complaint for foreclosure on one of the mortgages, to enforce a lost note, and to reestablish a lost mortgage. The Vidals answered and raised fifteen affirmative defenses. Subsequently, the affirmative defenses were amended down to seven. In the amended affirmative defenses, the Vi-dals alleged Liquidation lacked standing to foreclose. They asserted equitable estop-pel and fraud barred the complaint due to the lender’s placing false income and other financial information on the mortgage application. They also alleged, for the first time, violations of the federal Truth in Lending Act and related regulations, seeking rescission of the mortgage and recoupment of damages based on the lender’s failure to comply with federal disclosure requirements, for misrepresenting that the loan terms were fixed, and for failing to disclose the actual payment terms.

At the final hearing on summary judgment, the trial court held that Liquidation met its initial burden to establish standing to foreclose on the note and mortgage. To demonstrate standing, Liquidation produced the original note and mortgage, an undated allonge endorsed in blank, and a mortgage assignment executed on February 6, 2009, with an effective date of January 15, 2009. The trial court then held there was no material issue of fact as to standing because the Vidals could not introduce evidence to dispute the assignment took place. The Vidals argue the trial court erred in this finding because (1) the original note and mortgage were not produced at least twenty days prior to the summary judgment hearing, as required by rule 1.510(c), and (2) the back-dated assignment does not demonstrate, as a matter of law, that a legal or equitable transfer of the note and mortgage occurred prior to the filing of the complaint.

Regarding the violation of rule 1.510(c), the transcript reflects that counsel for the Vidals waived this rule, instead deciding to oppose the motion for summary judgment on the merits. As the issue was waived, it cannot be grounds for reversal on appeal. Azanza v. Private Funding Group, 24 So.3d 586, 587 (Fla. 4th DCA 2009).

We have held that the one who owns and holds the note is entitled to foreclose on the mortgage. See, e.g., Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010). In filing a mortgage foreclosure suit, as well as seeking a summary judgment, it is incumbent on the plaintiff to be in a position to prove he, she, or it owns and holds the note as of the date suit is filed.

“[T]he plaintiff must prove that it had standing to foreclose when the complaint was filed.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “Standing may be established by either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint.” Id. In McLean, the bank filed a complaint for foreclosure on May 11, 2009. Id. at 171. The mortgage reflected the mortgagee as a third party. When ordered to provide proof of assignment, the bank filed an assignment of mortgage reflecting an effective date of May 14, 2009. The bank moved for summary judgment and filed an affidavit in support of summary judgment. The affidavit did not state when the note or mortgage was transferred to the bank. Id. The trial court granted summary judgment, but this Court reversed, holding the record evidence was insufficient to demonstrate the bank had standing to foreclose at the time the complaint was filed. Id. at 173.

The McLean court’s reasoning is pertinent to this case and bears repeating:

Even where an assignment of mortgage does not occur until after the complaint is filed, there are several ways a plaintiff may establish its standing to foreclose at the inception of the suit. Where the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred pri- or to the inception of the lawsuit. If the note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish standing, [citation omitted] Similarly, if the plaintiff relies upon an affidavit of ownership to prove its status as a holder of the note on the date the lawsuit was filed, it is sufficient if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed. Alternatively, if the affidavit itself is executed before the lawsuit is filed, the allegation that the plaintiff is the “owner and holder of the note” is sufficient to establish the plaintiffs standing at the inception of the lawsuit....
While the original note contained an undated special endorsement in Chase’s favor, the affidavit filed in support of summary judgment did not state when the endorsement was made to Chase. Furthermore, the affidavit, which was dated after the lawsuit was filed, did not specifically state when Chase became the owner of the note, nor did the affidavit indicate that Chase was the owner of the note before suit was filed. Therefore, Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed.

Id. at 174 (emphasis added) (citation omitted).

While Liquidation filed the original note and an allonge to the note endorsed in blank, the allonge is not dated, and Liquidation did not file an affidavit demonstrating that the note was transferred pri- or to the filing of the complaint. The assignment of mortgage reflects transfer of only the mortgage, not the note. Although the Assignment of Mortgage was sworn to on February 6, 2009, and states “ASSIGNMENT EFFECTIVE AS OF 01/15/2009,” two inferences can be drawn from the effective date language. One could infer that ownership of the note and mortgage were equitably transferred to Liquidation on January 15, 2009, but one could also infer that the parties to the transfer were attempting to backdate an event to their benefit. Because the language yields two possible inferences, proof is needed as to the meaning of the language, and a disputed fact exists. Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc., 981 So.2d 654, 655 (Fla. 4th DCA 2008).

Therefore, we find the trial court erred in ruling there was no issue of material fact regarding standing, as the record does not reflect as a matter of law that Liquidation had standing on the date the complaint was filed.

The trial court held the affirmative defense of violations of the Truth in Lending Act was legally insufficient because the statute of limitations under that Act had run. Federal law imposes a three-year statute of limitations from the consummation of the transaction on any action for rescission under the Truth in Lending Act. 15 U.S.C. § 1635(f) (2006); Dove v. McCormick, 698 So.2d 585, 587 (Fla. 5th DCA 1997). A one-year statute of limitation from the date of violation of the Act applies to actions for recoupment. 15 U.S.C. § 1640(e). However, when re-coupment and setoff are raised as a de fense, the one-year statute of limitations does not apply. Title 15 U.S.C. 1640(e) states:

This subsection does not bar a person from asserting a violation of this sub-chapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by re-coupment or set-off in such action, except as otherwise provided by State law.

The Vidals’ affirmative defense seeking re-coupment damages and set-off for Truth in Lending violations was not barred by the statute of limitations set forth in the Truth in Lending Act. Liquidation filed no sworn statements showing the defense was not valid. The failure to rebut a properly raised affirmative defense precludes the entry of summary judgment in favor of Liquidation. Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010).

The Vidals raised two “fraud” claims as affirmative defenses, both of which were legally insufficient as a matter of law.

Boiled to its essence, the first fraud claim says that the lender falsely inflated the Vidals’ income in the loan application that they signed to get the loan; had the lender taken steps to verify their income then the exaggerated income would have been revealed. Of course, the Vidals want damages caused by the lender’s treachery. The Vidals were obviously in a position to know their own income. Signing off on their own fraudulent loan application precludes them from raising this fraud as an affirmative defense. “The recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.” M/I Schottenstein Homes, Inc. v. Azam, 813 So.2d 91, 93 (Fla.2002) (quoting Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980) (quoting Restatement (Second) of Torts (1977) § 541)).

The second claim of “fraud” is that the lender orally misrepresented the loan to be a fixed rate loan. However, the note and other documents the Vidals signed at the closing plainly indicate that the note had an adjustable rate. “A party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.” Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053, 1056 (Fla. 4th DCA 1999).

We reverse the entry of summary judgment and remand for further proceedings.

Reversed and remanded for further proceedings.

POLEN, GROSS and CONNER, JJ., concur.

      . Allowing assignments to be retroactively effective would be inimical to the requirements al pre-suit ownership for standing in foreclosure cases.


author: CONNER, J.

text:
    Regino MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2509.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Regino Martinez appeals his conviction and sentence imposed for armed burglary of a dwelling with assault or battery and attempted second-degree murder with a deadly weapon. The sole issue on appeal is whether the trial court abused its discretion in allowing a recording of Martinez’s interrogation conducted in Spanish to be played and translated for the jury for the first time after the jury began deliberation. The recording was introduced into evidence but not played or translated during the presentation of evidence. We reverse.

Factual Background

On the morning of the incident, Martinez went to his former girlfriend’s trailer. They had previously been involved in a long-term relationship, but had broken up a few months before the incident. They had four children together. After the breakup, the former girlfriend lived with one of Martinez’s children and several other relatives. Her new boyfriend (the victim) was at the trailer eating breakfast that morning.

According to the victim, Martinez knocked on the front door. The girlfriend, believing Martinez had arrived to pick up their daughter, opened the door and let him in. Martinez initially walked in and went to his daughter. He then put her down and attacked the victim from behind by stabbing him in the head, neck, and arm with a kitchen knife while the victim was seated. The girlfriend and her brother restrained Martinez. Martinez threatened to kill the victim. After the attack, Martinez fled. He was arrested and charged with burglary and attempted first-degree murder.

After Martinez was arrested, he was interviewed by a detective. The interview was conducted in Spanish and recorded on CD. The CD was introduced into evidence without objection. It was not played to the jury during the presentation of evidence. Instead, the detective testified to a summary of the interview. As summarized to the jury, Martinez admitted that he was having a hard time accepting that his éx-girlfriend was having relations with another man. He confessed to the stabbing, admitting that he took a kitchen knife to his former girlfriend’s trailer with the intent to harm the victim and attacked him. Defense counsel cross-examined the detective on his recollection of the interview and on his qualifications to interpret Spanish. He admitted he could not give an exact translation without reviewing the recording.

Martinez testified in his own defense. His account of the incident differed from other witnesses’ testimony in that he claimed the victim first stood up, threw hot chocolate on him, and threatened to kill him. Martinez became upset, took a knife off the kitchen table, and attacked the victim. Martinez claimed that the detective misunderstood him when he said that he brought a knife to the trailer.

At the conclusion of closing arguments, but before the jury was charged, the trial judge asked the prosecutor what the jury was going to do with a recording in Spanish. The prosecutor responded that if the jury wanted to play it, they could be brought to the courtroom and the recording could be played with an interpreter translating. The interpreter stated that she could not guarantee the accuracy of a live translation of a recording. The trial court decided that since the recording was entered into evidence without objection, if the jury requested it, it would be played with an interpreter interpreting. Defense counsel objected but reserved her arguments until the jury actually requested to hear the recording.

The jury ultimately did request a translation of the recording into English. Defense counsel made several arguments in opposition: (1) the jury was required to rely on the evidence as admitted and a translation would be an alteration of the evidence; (2) defense counsel relied on the state’s failure to provide a translation when preparing her defense; (3) the State could not introduce an untranslated recording at trial and then demand the recording be translated during deliberations; and (4) there was no opportunity for cross-examination of the statements on the recording. The trial court overruled these objections, but decided that the interpreter should have the ability to review the recording prior to translating for the jury to aid in her translation. The recording was played for the jury with the interpreter translating.

On the recording, Martinez admitted seeing his former girlfriend with the victim prior to the incident and becoming angry. On the day of the incident, Martinez went to his former girlfriend’s trailer to see his daughter, but she was asleep. The girlfriend gave Martinez a cup of hot chocolate, and he left. Once he was some distance away, Martinez saw the victim arrive at the girlfriend’s trailer. He saw the girlfriend and the victim kiss and became angry, so he went back to the trailer. Martinez entered the trailer and saw the girlfriend and the victim sitting at the kitchen table. Martinez gave the cup back to the girlfriend, took out a knife, and stabbed the victim while he was seated at the kitchen table. Martinez claimed the victim then picked up a knife from the table, stood up, and threatened to kill Martinez. Martinez stabbed him again, which caused the victim to fall. Martinez then fled from the trailer.

The jury returned a verdict of guilty for burglary and the lesser offense of attempted second-degree murder.

Legal Analysis

Martinez argued to the trial court and on appeal that a translation of a recording already admitted into evidence constitutes “new evidence.” He further argued before both courts that the presentation of such “new evidence” after the jury begins deliberation violates Florida Rule of Criminal Procedure 3.430.

Rule 3.430 states: “After the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence.” The only published case that cites and directly applies rule 3.430 is Scott v. State, 664 So.2d 3 (Fla. 3d DCA 1995). In Scott, a videotape of the defendant was shown during trial to prove he was involved in a drug transaction. Id. at 4. During deliberations, the jury requested that they be allowed to view the defendant’s right profile. Over defense counsel’s objection, the request was granted. The Third District held that “[t]he display of the right profile of defendant’s face constitutes non-testimonial ‘real or physical’ evidence which the jury, as expressly found by the trial court, had not seen during the trial.” Id. Therefore, requiring the defendant to display his profile constituted new evidence which was improper to present once the case had been submitted to the jury. Id.

As the trial judge anticipated, what Martinez actually said during the interview became important to the jury. When the recording was played and translated, it largely confirmed the detective’s recollection and interpretive abilities, undermining the strategy employed by defense counsel. Aside from corroborating the detective’s testimony, the translation of the recording was much more harmful to the defense. There was much more detail of the circumstances in the recorded interview than in the summary of the interview given during the detective’s testimony.

We agree that the translation of Martinez’s interview constituted new evidence. The presentation of the translation to the jury for the first time after the jury began deliberations violates Rule 3.430. Because the interview provided many more details of the circumstances and events of the incident than the detective’s summary of the interview, the error was not harmless, and reversal is required.

Reversed and remanded for a new trial.

POLEN and GROSS, JJ., concur.

      . The victim denied throwing hot chocolate on Martinez, and none of the other witnesses corroborated Martinez’s testimony that hot chocolate was thrown on him.

      . The detective's testimony before the jury, summarizing Martinez’s interview consumes eight pages of trial transcript. The pertinent portions of the interview played and translated for the jury describing the circumstances and details of the incident consume twenty-one pages of trial transcript. We also note the trial transcript of the detective's testimony is typed in the standard question-and-answer format, whereas, the transcript of the recorded interview is typed as if it is one long paragraph. If the translation of the recorded interview had been typed in a standard question-and-answer format, it would have consumed many more pages of trial transcript.


text:
    Isaiah CAMERON, Petitioner, v. STATE of Florida and Al Lamberti, as Sheriff of Broward County, Respondent.
    No. 4D12-3165.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.
    Howard Finkelstein, Public Defender, and Sarah Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for respondent.
   WARNER, J.

Criminal defendant, Isaiah Cameron, petitions for a writ of habeas corpus seeking to reinstate his initial bond and conditions, as the trial court sua sponte added additional pretrial release conditions after Cameron had been declared incompetent and then restored to competency. We grant the writ, concluding that the trial court does not have authority to sua sponte modify petitioner’s bond.

In July 2011, Cameron was arrested for four crimes, and the first appearance magistrate set bonds for each charge. No special conditions were attached to his pretrial release at that time. Cameron could not post bond and remained incarcerated. In March 2012, the court found Cameron incompetent to proceed and committed him to the state hospital. In May 2012, the court found Cameron competent. He was returned to court. At a July 2012 bond hearing, the court reinstated the original monetary conditions but added, over defense objection, “Standard Pretrial Release” supervision and no contact with the victim. The pretrial program requires, among other tasks, reporting to a Pretrial Services Specialist by telephone twice a week; a prohibition on petitioner, restricting him from leaving the tri-county area or changing his address; paying for any urinalysis drug testing, if requested; and, advising his pretrial specialist if he is hired for or fired from a job. He must also report to the pretrial specialist before and after every court appearance. Following the imposition of these conditions by the trial court, Cameron filed this petition for writ of habeas corpus.

A trial court is without authority to sua sponte increase a bond. Montgomery v. Jenne, 744 So.2d 1148, 1149 (Fla. 4th DCA 1999). See also Griffin v. McRay, 890 So.2d 341, 341 (Fla. 3d DCA 2004); Plummer v. State, 65 So.3d 524 (Fla. 2d DCA 2011); Faella v. State, 90 So.3d 995, 996 (Fla. 5th DCA 2012). While in this case, the court did not increase the amount of the bond, it added significant and substantial conditions on Cameron’s release, the violation any of which could result in Cameron’s pretrial detention. Florida Rule of Criminal Procedure 3.131(b)(1) provides that “bail is defined as any of the forms of release stated below,” which includes various restrictions on travel, and residence, as well as any other conditions necessary to insure appearance by the defendant. Florida Rule of Criminal Procedure 3.131(d)(2) provides for applications for modification of bail by either the defendant or the state on three hours notice. It does not provide authority for the trial court to increase bail without such application. Here, the state never requested any modification of the original undertaking.

The petition is therefore granted, and the court is directed to remove the “standard pretrial release” program as a condition of release. This is without prejudice to the state filing a motion to modify bail, should it be able to satisfy the provisions of the rules.

STEVENSON and CIKLIN, JJ„ concur.

      . He has since posted the bail amount.


text:
    Dr. Heldo GOMEZ, Jr. and Lisa O’Keefe, Petitioners, v. The TJX COMPANIES, INC., d/b/a TJ Maxx, and Tina Terrell, Respondents.
    Nos. 4D12-734, 4D12-917.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.
    Gregory A. Kummerlen of Wiederhold, Moses, Kummerlen & Waronicki, P.A., West Palm Beach, for petitioners.
    G. William Bissett, Jr., and Angela Flowers of Kubicki Draper, P.A., Miami, for respondent The TJX Companies, Inc.
   PER CURIAM.

We consolidate these two petitions for writs of certiorari compelling production of discovery in the personal injury action pending in the circuit court. Our review of the two circuit court orders challenged in the petitions reveals that the circuit court did not have the opportunity to apply Katzman v. Ranjana Corp., 90 So.3d 873 (Fla. 4th DCA 2012), which limited and discussed the modified opinion in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011), review dismissed, 88 So.3d 149 (Fla.2012). Our decision in Ranjana issued after the circuit court issued its discovery orders here. Based on both cases, we grant the petitions, quash the orders and direct the circuit court to reconsider the issues in light of the two cases.

Petitions Granted.

STEVENSON, HAZOURI and CIKLIN, JJ., concur.


text:
    Scott KATZMAN, M.D. and Advanced Orthopaedics, P.A., Petitioners, v. Irvin KOERNER and Ashley Burkett, Respondents.
    No. 4D11-4201.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.
    Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, for petitioners.
    Patrick B. Flanagan of Flanagan & Ma-niotis, P.A., West Palm Beach, for respondent Irvin Koerner.
   PER CURIAM.

We grant the non-party deponents’ petition for writ of certiorari which seeks to quash an order denying petitioner’s motion for protective order and ordering the deponents to produce discovery. When ruling, the trial court did not have the benefit of this court’s modified opinions in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011), rev. dismissed, 88 So.3d 149 (Fla.2012), or Katzman v. Ranjana Corp., 90 So.3d 873 (Fla. 4th DCA 2012), both of which were issued after the trial court’s order on review in this case. Based upon those cases, we grant the writ and quash the order, directing the trial court to reconsider the issues in light of Rediron and Ranjana.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Stanley BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5047.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2012.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Torrence v. State, 574 So.2d 1188 (Fla. 3d DCA 1991).

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


text:
    B.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4346.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

B.L. appeals the denial of his motion to suppress physical evidence and statements, arguing each was obtained in violation of the Fourth Amendment. We agree and reverse.

B.L. was initially charged with carrying a concealed weapon and trespassing. After the denial of his motion to suppress, he pleaded no contest to carrying a concealed weapon, reserving his right to appeal the denial of the motion to suppress. The State dropped the trespassing charge.

The arresting officer, Officer M.D., testified during the suppression hearing. He explained that on the night B.L. was arrested, he and another officer were parked at the northwest corner of a park observing those who entered the park after dark.

Officer M.D. noticed three people enter the park. He shined the spotlight attached to his vehicle on them and approached. Only his spotlight, and not his sirens or flashing lights, was activated. As he approached, he recognized the three people were juveniles. He said, “I need to speak with you for a minute.” While he was still about five feet away from the juveniles, he noticed a sweatshirt being handed by B.L. to his female companion. He explained that his response to the circumstances was: “Whoh, what are you doing?” He further explained:

I didn’t know why [B.L.] was handing a sweatshirt over to the female, for what reason, I don’t know. To allay my fears if anything was going on that shouldn’t have been going on, I just went and grabbed it and said, hold on to that. When I grabbed it, I felt a large metal object.

When the sweatshirt was grabbed, both B.L. and the female had their hands on the sweatshirt. As soon as Officer M.D. grabbed the sweatshirt, he felt that it contained a metal object, which he believed was a gun. Upon uncovering the object, he realized it was a knife. At that point, he ordered the three juveniles to get down on the ground.

Officer M.D. testified that nothing, prior to touching the sweatshirt, indicated that a weapon was present. However, he testified that in the past month he had experienced a similar situation in the same park: a female stopped in a similar manner was carrying a .22 caliber handgun.

Officer T.L., the other officer at the scene, explained that when he arrived on the scene, Officer M.D. had the sweatshirt in his hand and was ordering the suspects to the ground. No other witnesses testified.

The State’s theory was that the encounter was consensual and that B.L. began to abandon or actually abandoned the property. Essentially, the State claimed that the seizure was proper because it violated the rights of the female, rather than B.L., and therefore, a motion to suppress evidence initiated by B.L. could not properly be granted because he did not have a privacy interest in the sweatshirt. The trial court agreed and denied the motion, explaining that B.L. was in the process of abandoning the sweatshirt with the knife in it and therefore did not have standing to raise a constitutional violation of the female’s rights.

A trial court’s ruling on a motion to suppress is reviewed by a mixed standard. State v. Holland, 76 So.3d 1032, 1034 (Fla. 4th DCA 2011). Questions of law are subject to de novo review, and a trial court’s determination of historical facts will be upheld if supported by competent, substantial evidence. Id.

Standing

The State argued below and before this court that B.L. was in the process of abandoning the sweatshirt when Officer M.D. seized it. Regarding the abandonment argument, we note that for Fourth Amendment analysis, it is the expectation of privacy that is controlling. We have said, “Implicit in the concept of abandonment is a renunciation of any reasonable expectation of privacy in the property abandoned.” State v. Schultz, 388 So.2d 1326, 1329 (Fla. 4th DCA 1980) (citation omitted) (internal quotation marks omitted).

If an individual gives up his or her privacy interest in an item, then he or she is without standing to raise a Fourth Amendment violation. J.W. v. State, 95 So.3d 372 (Fla. 3d DCA 2012). In J.W., the Third District analyzed Fourth Amendment privacy expectations when one person hands an object to another person. Id. at 374-75. J.W. walked into the front yard of a house and handed a pouch to a gentleman outside the house. Id. at 374. The gentleman placed the pouch under the house. Id. A police officer who was driving by saw the interaction, got out of his car, and asked the two to sit on the porch. Id. J.W. complied, but then attempted to go inside the house. Id. At that point, he was seized, and the pouch was searched. Id. A motion to suppress followed; the State argued that the pouch had been abandoned. Id.

Whether J.W. abandoned the pouch and its contents was not the pertinent question according to the Third District. The pertinent question was whether, by giving the other gentleman the pouch, J.W. abandoned his reasonable expectation of privacy in the pouch and its contents and with it any legal standing to challenge the subsequent seizure and search. Id. at 376. The Third District opined that when J.W. gave the pouch to the other gentleman he relinquished his reasonable expectation of privacy in it by giving “exclusive possession, custody and control over the object and its contents.” Id. The Third District concluded that J.W. did not have standing to contest the search.

Because B.L. had not yet let go of the jacket, he retained some control and possession of it. Therefore, his reasonable expectation of privacy had not yet been relinquished. As a result, B.L. did have standing to contest the seizure of the sweatshirt and subsequent search.

Nature of Encounter: Consensual or Investigatory

Whether an encounter rises to the level of an investigatory stop or remains a consensual encounter is a question of fact. O.A. v. State, 754 So.2d 717, 719 (Fla. 4th DCA 1998). “A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996).

Three levels of police-citizen encounters exist, ranging from a consensual encounter, to an investigatory stop, to an arrest. Gentles v. State, 50 So.3d 1192, 1196 (Fla. 4th DCA 2010). Investigatory stops require articulable suspicion; arrests require probable cause. Id. at 1197. A consensual encounter does not invoke constitutional safeguards. Popple v. State, 626 So.2d 185, 186-87 (Fla.1993). Because here the State conceded that Officer M.D. did not have reasonable suspicion to exceed a consensual encounter and because the record reflects no articulated reasonable suspicion, the encounter would be improper if it transitioned into an investigatory stop. Gentles, 50 So.3d at 1198. Whether a police-citizen encounter has transitioned from consensual into investigatory is determined by the totality of circumstances. O.A., 754 So.2d at 720.

“It is well established that an officer does not need to have a founded suspicion to approach an individual to ask questions. However, even an initially consensual encounter can escalate into a stop.” State v. R.H., 900 So.2d 689, 692 (Fla. 4th DCA 2005) (citations omitted) (internal quotation marks omitted). In R.H., this court explained that a couple of officers approaching and asking “Hey, how you doing? What’s your name? Your date of birth?” continued to be a consensual encounter. Id. at 691. Similarly, here, Officer M.D.’s statement — “I need to speak with you for a minute” — did not raise the level of restrictiveness or represent a show of authority. Although slightly more authoritative than a question, his statement was not an order. Rather, it was a request that, standing alone, a reasonable individual would have felt free to decline and therefore would not constitute a seizure.

If an officer uses his or her authority to restrict an individual’s freedom, then the interaction is not consensual and requires a minimum of reasonable suspicion. Popple, 626 So.2d at 187-88. Illuminating individuals with a police vehicle’s spotlight may increase the level of restrictiveness. Leroy v. State, 982 So.2d 1250, 1253 (Fla. 1st DCA 2008). In Leroy, the First District explained that when an officer “lit up” a suspect’s vehicle and approached in a confined space the suspect was detained. Id. at 1252. This court has previously said that use of a spotlight or flashlight is one factor to be considered in evaluating whether a seizure has occurred, but this factor alone is not dispositive. See Smith v. State, 87 So.3d 84 (Fla. 4th DCA 2012); State v. Goodwin, 36 So.3d 925 (Fla. 4th DCA 2010).

Physical touching or grabbing of an individual’s person or possessions will also raise the level of restrictiveness. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Stephens v. State, 656 So.2d 531, 532 (Fla. 2d DCA 1995). In Copeland v. State, 717 So.2d 83 (Fla. 1st DCA 1998), the First District found that a consensual encounter was ended and an investigatory stop began when an officer briefly grabbed Copeland’s jacket pocket, squeezing to feel what made up the visible bulge. Id. at 84-85. The court explained: “The act of reaching, touching, feeling, and squeezing Appellant’s jacket constituted a show of authority which restrained Appellant’s freedom to move, comply, or otherwise terminate the encounter.” Id. at 85.

Evaluating the totality of circumstances here, we conclude that B.L. was seized at the moment the sweatshirt he was jointly holding with a female was grabbed by Officer M.D. The circumstances which elevated this police-citizen encounter to an investigatory stop include a police spotlight illuminating B.L.’s person and the officer grabbing an item still in his hands. Both of these circumstances transformed a consensual encounter into an encounter a reasonable person would not feel free to end. The State conceded Officer M.D. did not have articulable suspicion for an investigatory stop.

Conclusion

Having concluded that B.L. had standing to contest the seizure of the weapon and the seizing officer did not have grounds for an investigatory stop, we reverse the denial of B.L.’s motion to suppress and remand the case for the trial court to vacate the determination of delinquency and the disposition order.

Reversed and Remanded.

GROSS and TAYLOR, JJ., concur.

      . The parties and the trial court agreed the motion to suppress was dispositive.

      . Entering the park at night was a violation of a city ordinance; however, the State conceded at the hearing that it was not arguing that the officer had probable cause to arrest B.L. because he was trespassing in the park.


text:
    William E. BYNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4508.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.

      William Earl Bynes, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s denial of appellant’s motion to correct illegal sentence and remand for resentencing. The trial court failed to address ground two of appellant’s motion. Appellant correctly argued in this ground that his violent career criminal (VCC) sentences on count three (aggravated fleeing and eluding) and count seven (grand theft) are illegal. These offenses are not enumerated by the VCC statute. See § 775.084(l)(d), Fla. Stat. (2002) (enumerating qualifying and predicate offenses, including “any forcible felony, as described in s. 776.08”). Nor are these offenses enumerated as a forcible felony. See § 776.08, Fla. Stat. (2002).

As the State concedes, grand theft clearly does not qualify for VCC sentencing. See Ubilla v. State, 8 So.3d 1200, 1202 (Fla. 3d DCA 2009).

Applying the statutory elements test as required by State v. Hearns, 961 So.2d 211, 216 (Fla.2007), and Perkins v. State, 576 So.2d 1310. (Fla.1991), we conclude that the aggravated fleeing and eluding conviction does not fall within the “catchall” provision of the final clause of the statute defining a forcible felony. Section 776.08, Florida Statutes, defines a “forcible felony” as follows:

“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Id. (emphasis supplied). Pursuant to Hearns and Perkins, we must look strictly to the statutory elements of the offense in determining whether the offense necessarily involves the requisite use or threat of physical force or violence against a person. Hearns, 961 So.2d at 216 (quoting Perkins, 576 So.2d at 1313) “If ‘the use or threat of physical force or violence against any individual’ is not a necessary element of the crime, ‘then the crime is not a forcible felony within the meaning of the final clause of section 776.08.’ ”).

In Hearns, the court held that battery on a law enforcement officer did not fall within the “catchall” provision because the offense could be committed by a mere intentional touching. 961 So.2d at 218-19. The court explained that such a reading would lead to outrageous results, such that a mere touching would constitute a forcible felony which was incomparable to the other more serious types of felonies expressly enumerated in the statute — such as murder, sexual battery, and home invasion robbery. Id. at 219.

Appellant was convicted of aggravated fleeing and eluding pursuant to section 316.1935(3), Florida Statutes (2002), which provides in relevant part:

Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated, and during the course of the fleeing or attempted eluding drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property commits a felony of the second degree.

Id. While this offense often poses a great risk of physical harm to others, we conclude that this offense can be committed without the use of physical force or violence against an individual. The offense can be committed merely by driving at high speed or by driving in a manner showing wanton disregard for “property.” To determine whether a crime falls within the definition of a “forcible felony,” Hearns and Perkins require us to look at the statutory elements of the crime and not to the actual circumstances of this case. Because this offense can be committed in a manner that does not necessarily require the use or threat of physical force or violence against an individual, the offense does not qualify under the final clause of the VCC statute. Hearns, 961 So.2d at 218.

Accordingly, we reverse and remand with instructions that the trial court resen-tence appellant.

STEVENSON, GROSS and CONNER, JJ., concur.


text:
    Derek McKINZIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1464.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.
    Derek McKinzie, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

POLEN, HAZOURI and CIKLIN, JJ., concur.


text:
    Juan GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-820.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.
    Juan Carlos Gomez, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

GROSS, HAZOURI and GERBER, JJ., concur.


text:
    Richard SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-788.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.
    Richard Smith, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

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


text:
    Norman BEECH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-408.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.

      Norman Beech, Milton, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s untimely and successive motion for postconviction relief. In a document filed in this court, appellant has attempted for the first time to excuse his untimely filing. Appellant alleges that he could not timely challenge his 2002 conviction due to his mental illness and because he was in a suicide crisis unit and under the care of a psychiatrist from 2002 until 2012.

Appellant has improperly attempted to raise this issue for the first time on appeal in this court. If appellant had a valid exception to the two-year time limit, the proper course was to raise that matter with the trial court. See Fla. R.Crim. P. 3.850(b); Steele v. Kehoe, 747 So.2d 931 (Fla.1999).

We determine that appellant’s claim is not only procedurally improper but without merit as well. Appellant’s allegation that he was unable to timely file a motion is belied by the fact that appellant actually filed a postconviction motion within the time limit and that motion was denied on the merits.

Further, appellant’s arguments in the motion for postconviction relief are without merit. His claim that the procedures for determining competency were not followed because he was examined by only one expert before he entered his plea cannot be raised in a postconviction motion. Nelson v. State, 43 So.3d 20, 33 (Fla.2010); Thompson v. State, 88 So.3d 312, 317 (Fla. 4th DCA 2012).

Affirmed.

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    Frank J. GARARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2212.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.
    Frank J. Garard, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Frank J. Garard appeals an order denying his motion filed under Florida Rule of Criminal Procedure 3.850. Garard’s motion contained four points. We affirm points two, three and four, and remand for further review of Garard’s first point concerning jail credit associated with his violation of community control. See Davis v. State, 88 So.3d 1055 (Fla. 4th DCA 2012).

MAY, C.J., STEVENSON and GROSS, JJ., concur.


text:
    Dennis COX, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-1393.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2012.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence for robbery with a firearm and attempted second degree murder with a firearm. He raises four issues on appeal, none of which we find has merit. However, in his fourth issue, the defendant argues the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter. We disagree and affirm. See Williams v. State, 40 So.3d 72, 73 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011).

In Williams, we held that the giving of the standard jury instruction on attempted manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder. All the other districts have held contrary to Williams. See Houston v. State, 87 So.3d 1, 4 (Fla. 2d DCA 2011); Burrows v. State, 62 So.3d 1258, 1259 (Fla. 3d DCA 2011); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009); Burton v. State, 125 So.3d 788, at 789 (Fla. 5th DCA 2011).

The parties agree Williams is controlling in this district until our supreme court resolves the conflict. We affirm, but certify conflict with the other districts on this issue. See Coriolan v. State, 77 So.3d 840, 840 (Fla. 4th DCA 2012).

Affirmed. Conflict certified.

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


text:
    Robert LUNDBERG, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4902.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2012.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The defendant appeals the denial of his motion for postconviction relief from his convictions and sentences for attempted sexual battery and lewd or lascivious molestation. We affirm and write to address two issues. Defendant alleged that his trial counsel was ineffective for failing to move to suppress the videotape of defendant’s conversation at the police station with his girlfriend. Based upon the totality of circumstances in this case, we conclude that defendant has not shown that the police violated a reasonable expectation of privacy in recording his conversations. Second, defendant alleged that counsel was ineffective in failing to object to testimony which was tantamount to victim bolstering. Although the court found that the evidence was part of counsel’s trial strategy, we also conclude that the introduction of the evidence did not create Strickland prejudice. We affirm as to all issues raised.

Defendant Robert Lundberg was convicted of attempted sexual battery on a child under the age of twelve by a perpetrator eighteen years of age or older, and lewd or lascivious molestation on a child under the age of twelve by an offender eighteen years of age or older. These charges were based on testimony that defendant molested his minor niece on one occasion by penetrating her vagina with his finger and on another occasion by touching her vagina. He was sentenced to thirty years in prison for the first count and a consecutive term of fifteen years in prison for the second. He appealed, arguing trial court erred in the denial of his motion to suppress statements he made to his girlfriend in a police interview room. We affirmed in Lundberg v. State, 918 So.2d 444 (Fla. 4th DCA 2006), rev. denied, 932 So.2d 193 (Fla.2006). Although the trial court had suppressed statements defendant had made to the police because of coercion, we rejected his argument that the statements to his girlfriend were obtained through an exploitation of the initial coercion and were “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). While he also made a claim on appeal that the statement should be suppressed because the police induced him into a reasonable expectation of privacy, we found that the issue had not been properly preserved for appellate review. Lundberg, 918 So.2d at 445.

Defendant filed a motion for postconviction relief raising twenty-three claims of ineffective assistance of counsel. In one claim, he maintained that counsel erred in not moving to suppress his statements to his girlfriend on the grounds that the police created a false belief that his conversation would be private. Defendant had voluntarily appeared for questioning when the child’s parents reported the incidents with their daughter. The detective interviewing the defendant read him his rights even though she told him he was not in custody. He agreed to speak to her without an attorney. Through the course of the interview he admitted at least one of the events, but he claimed that the touching was accidental when he was carrying the child to bed. Defendant then asked to see his girlfriend who was at the station. The detective agreed and turned off the tape recorder on the interview room table. She told him that she would not tell the girlfriend anything but that it was up to him what to tell her. Then the detective brought the girlfriend into the interview room and as she left said, “I’m going to give you all privacy.” Defendant then told his girlfriend what had just transpired and that he thought that he might have touched the little girl when he was drunk. Essentially, what he told his girlfriend coincided with what he told the detective. This conversation was recorded on the video camera in the interview room.

In his postconviction motion, defendant claimed that because the detective had told him that he was giving him “privacy,” counsel should have moved to suppress the conversation based upon a violation of privacy and that counsel’s failure to do so constituted ineffective assistance.

The state responded to this claim by arguing that no defendant has any expectation of privacy in the interview room of a police station. The trial court summarily denied the claim, agreeing with the state. It ordered an evidentiary hearing on other claims. During the evidentiary hearing, however, the issue of the failure to suppress the statement to the girlfriend was addressed. Defense counsel testified that he did not move to suppress the conversation because there was no expectation of privacy in the interrogation room. The trial court did not readdress the issue in its ruling following the evidentiary hearing.

Ineffective assistance of counsel requires the defendant to prove two requirements:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The first prong is established by showing that “counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. at 2064-65. The second prong is established by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

The question presented in this case is whether counsel was ineffective for failing to move to suppress the recorded conversation between the defendant and his girlfriend as violating the Fourth Amendment, because of an invasion of the defendant’s reasonable expectation of privacy. In Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008), we set forth the test to be applied:

A citizen’s right to privacy under the Fourth Amendment of the Constitution of the United States is determined by a two prong test: 1) whether the citizen had a subjective expectation of privacy; and 2) whether that expectation was one that society recognizes as reasonable. State v. Smith, 641 So.2d 849, 851 (Fla.1994) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Under this test, a prisoner does not have a right to privacy because areas of confinement do not share the same attributes as a private car, home, office, or hotel room. Id.

In the present case the trial court summarily denied this claim of ineffective assistance, because it concluded that no reasonable expectation of privacy had been violated. Defendant was well aware of his previous conversation in the interview room having been recorded. Therefore, he had no reasonable expectation of privacy. The trial court concluded that the surreptitious taping of the conversation in this case was not employed to circumvent the exercise of the defendant’s right to remain silent, as he had already relinquished that right when interviewed with the detective.

The court cited Boyer v. State, 736 So.2d 64 (Fla. 4th DCA 1999), in which this court held that a defendant had no subjective expectation of privacy in conversations occurring at the jailhouse. There, the defendant had voluntarily relinquished his right to remain silent by speaking with the detectives at the police station, but he did not confess to the crimes. After his interview, he requested to speak to his sister-in-law. The officer allowed the sister-in-law to come in, saying that he would get out of the room so that the defendant could talk to her. The subsequent conversation with the sister-in-law was recorded, and the defendant made incriminating statements to her. In upholding the denial of the motion to suppress, our court found that the defendant had no subjective expectation of privacy nor reasonable expectation of privacy, because the defendant did not ask for privacy and the police did nothing to foster a sense of privacy in the conversation. Id. at 67.

Defendant relies primarily on State v. Calhoun, 479 So.2d 241 (Fla. 4th DCA 1985), to establish that counsel’s failure to move to suppress the recorded conversation with his girlfriend on grounds of police creating a false sense of privacy in the conversation was ineffective assistance. In Calhoun, we suppressed a videotaped jailhouse conversation between an inmate and his brother. The facts, however, are markedly different than the facts of this case. Calhoun, the defendant, was in jail on unrelated charges when officers sought to question him about another charge. He was taken to an interview room equipped with a concealed video camera. Although the officers read him his Miranda rights, they did not inform him that he was a suspect in the new case. The defendant did not waive his rights but asked to speak to his brother. The brother was brought into the interview room for a private conversation with the defendant, which the officers were able to monitor through the video hookup. Neither brother was aware that the officers could hear their conversation. After about five minutes, the lead detective terminated the brothers’ conversation and again informed the defendant of his Miranda rights. The defendant invoked his right to remain silent and asked to see the public defender. The detective then terminated the interview, but he left the defendant in the room. The detective allowed his brother to re-enter the room so that his conversation with his brother could now be monitored for “investigative” purposes. Neither brother consented to the monitoring or taping of their conversation. During the conversation, the defendant made several incriminating statements.

The trial court granted a motion to suppress the statements. Our court upheld the court’s ruling. While acknowledging that a defendant would normally have no reasonable expectation of privacy in the interview room, the defendant’s expectation of privacy was deliberately fostered by the officers after the defendant had invoked both his right to remain silent and right to counsel. “To rule that under these circumstances the defendant’s statements to his brother are admissible is to make a mockery of the Miranda rights.” Id. at 243.

For further support, defendant cites to Allen v. State, 636 So.2d 494 (Fla.1994). In Allen, the supreme court refused to suppress recordings of statements made by Allen to his co-defendant in a murder case when they were both placed in the holding cell at the jail. Prior to that, detectives had interviewed Allen about the murder after reading him his Miranda rights, but he did not confess. In conversing with the co-defendant in the cell, Allen made incriminating statements. Because voluntary jailhouse conversations were not entitled to a reasonable expectation of privacy, the court refused to suppress the statements, noting that there was no improper police involvement. Acknowledging Calhoun, the court said that “police impropriety would exist if police deliberately fostered an expectation of privacy in the inmates’ conversation, ... especially where the obvious purpose was to circumvent a defendant’s assertion of the right to remain silent.” Id. at 497 (internal citation omitted). See also Larzelere v. State, 676 So.2d 394 (Fla.1996) (suppression of conversation between co-defendants, mother (the appellant) and son, not required even though the mother had invoked right of silence, where the mother had not requested to speak to son in private and they were merely placed in holding cell together before a hearing where conversation was recorded).

The deliberate fostering of an expectation of privacy led our court to reverse an order denying suppression of a taped conversation between a defendant and his co-defendant in Cox v. State, 26 So.3d 666 (Fla. 4th DCA 2010). There, the defendant had invoked his Miranda rights and refused to discuss the crime for fear that his statements would be recorded. The detective then offered the co-defendant leniency in sentencing if the co-defendant could elicit incriminating statements from the defendant. The investigating detective brought the co-defendant into the room and first interviewed both the defendant and the co-defendant together. When the co-defendant implicated the defendant, the detective exited the room and left the two defendants alone. Having earlier been assured that the room was not wired, the defendant began a conversation with the co-defendant in which he made incriminating statements. Because the defendant had invoked his Miranda rights, and because the detective had assured him that his conversations were not being recorded, the detective orchestrated a situation in which his actions created a reasonable expectation of privacy in the room. The detective’s conduct was specifically designed to circumvent the defendant’s assertion of his Miranda rights.

In Calhoun, Allen, Larzelere, and Cox, the defendants had all invoked their rights of silence. Despite the invocation of those rights, the detectives in Calhoun and Cox deliberately fostered an expectation of privacy in the conversation in order to overcome each defendant’s assertion of his constitutional right of silence. On the other hand, even though rights were invoked in Allen and Larzelere, statements in the jailhouse were not suppressed where the police did not record them as part of a deliberate attempt to circumvent the defendants’ assertions of the right of silence. A determinative factor, therefore, appears to be whether the conduct of the detectives deliberately creates a false sense of privacy for the purpose of overcoming the assertion of constitutional rights in order to obtain incriminating statements from the defendant.

In this case the defendant waived his Miranda rights and made admissions to the detective. The defendant then asked to speak to his girlfriend. The detective handcuffed the defendant and went through his wallet, for security purposes. Before she brought the girlfriend in, she told the defendant that she was ending the tape recording. He asked what he would be charged with, and the officer told him that the charges would be two sexual batteries. She would not directly answer his question of whether he would have to do “time” for the crimes. She told him that she would not tell the girlfriend anything and that it was up to him what he would tell his girlfriend. She then brought the girlfriend in and left the room saying the she would give them privacy. The defendant told his girlfriend that he was going to jail for sexual battery. He then apologized to her and related essentially the same information that he told the detective, as well as what the detective had told him about the two incidents. In addition, however, he admitted to her that he might have touched the victim when he was drunk, an admission he did not make to the detective.

Although the detective used the word “privacy” when leaving the room, we find this hard to distinguish from Boyer where the officer told the defendant that he would get out of the room so the defendant could talk to his sister-in-law. That, too, could foster a notion in a defendant that people would not be listening to his conversation. Yet, in Boyer we held that the statement should not be suppressed. Here, the defendant had already made admissions to the detective and had specifically asked to see his girlfriend. He had not asked for privacy, even though the officer did vacate the room. And all he apparently wanted to do was to tell his girlfriend how sorry he was for the situation and explain what he had told the detective. The officer’s statement that she wanted to give them privacy more likely conveyed to the defendant that he could tell his girlfriend about his arrest out of the public eye — to save embarrassment to them both. This conduct is not the type of deliberate fostering of an expectation of privacy in order to avoid the defendant’s assertion of his constitutional rights which led the trial court to suppress the recorded conversation in Calhoun and Cox.

The defendant asks us to follow State v. Munn, 56 S.W.3d 486 (Tenn.2001), which held that a juvenile murder suspect had a subjective expectation of privacy which the court recognized as reasonable when detectives asked the juvenile if he wanted to talk alone with his mother, then left the room and closed the door, after having turned off the tape recorder at the juvenile’s request even though another hidden camera picked up the conversation. However, in that case not only had the juvenile not been read his Miranda rights, but he had not incriminated himself in his earlier statements to the detectives. The court found that the detectives had deceived both the juvenile and the parents that their conversations were private. In this case, however, the defendant had already confessed and had not been assured that his conversations were private. Munn is thus distinguishable from this case.

While we acknowledge that this is a close case factually, and each case turns on its specific facts, for that very reason we cannot conclude that counsel made a serious error such that he was not functioning as counsel within the Sixth Amendment. As he stated at the evidentiary hearing, “I think it’s well founded in the case law that you don’t have a reasonable expectation of privacy under those conditions.... You’re in an interrogation room, you’re in handcuffs .... ” Counsel did try to get the statements suppressed under Wong Sun, but both the trial court and this court rejected that approach. And while this issue was at least arguable, meaning that he could have filed a motion to suppress in good faith and made an argument based upon Calhoun, that does not mean that he was ineffective under the Strickland standard for failing to do so. We thus affirm the trial court’s denial of postconviction relief on this ground.

The court held a hearing on several of the claims of ineffectiveness. In particular, defendant alleged that counsel was ineffective in failing to object to repeated bolstering of the child victim’s credibility by various witnesses. The victim was allowed to testify that both of her parents repeatedly asked her if her allegations of abuse were true, and she told them they were. Likewise, her aunt, to whom she first reported the abuse, as well as both her parents, each testified that they asked the victim if she was telling the truth, and she swore that she was. Her father even testified that he took her to a counselor who said that “without a doubt” her story was true. The detective also testified that the victim was not deceptive when questioned.

At the hearing, defense counsel testified that, given the fact that the state would produce defendant’s incriminating statement to his girlfriend, he had to formulate a strategy to discredit the victim’s testimony. He intended to do this by showing where there were differences in her various statements that she made both to law enforcement and to her family. Part of that strategy was to show that her own family was not sure she was telling the truth — that the contacts may have been unintentional or fabricated. It also required showing that there may have been some manipulation of the victim by both family and law enforcement. In particular, the defendant and the aunt had a very acrimonious relationship. Counsel attempted to show that the aunt had a motive to manipulate the victim’s testimony. Revealing to the jury all the efforts the parents made to determine that the victim was telling the truth, could permit the jury to conclude that reasonable doubt would exist if the parents had a hard time believing their own child. Additionally, the victim told the detective she was penetrated, yet other witnesses testified that the victim did not say she was penetrated. Therefore, allowing the detective to testify that she believed the victim was telling the truth as to the statement she. made to the detective could also discredit the victim’s testimony, when it was apparent that there were various versions of the “truth.”

In its order the trial court found that counsel’s trial strategy of showing that the victim’s own family did not initially believe her allegations was a reasonable trial strategy. “The issue as to [the victim’s] veracity or capacity for truthfulness was essentially two sides of the same coin: the family questioning her truthfulness versus bolstering the victim’s statements and testimony.” Although it found that the evidence could have cut both ways, either for or against the defendant, that the defendant was not convicted of sexual battery but of attempted sexual battery showed that counsel’s tactics could have partially succeeded, because the victim testified that defendant’s fingers penetrated her vagina. Based upon the court’s review of the totality of the evidence, it was convinced that the decisions did not constitute ineffective assistance.

Strickland establishes a strong presumption that counsel’s strategic choices are reasonable:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

466 U.S. at 689, 104 S.Ct. 2052 (citations omitted). In addition, review of this issue involves a mixed question of law and fact. The trial court made the factual finding that counsel had made a tactical, strategic decision to allow some of the questioning in order to build a case to discredit the victim. This was supported by counsel’s testimony. Based upon our own review of the trial transcript, and giving the deference required under Strickland, we cannot conclude that the strategy was completely unreasonable.

Moreover, having reviewed the trial transcript, we cannot say that had all of the evidence bolstering the victim’s credibility been excluded, the result would have been any different or that the jury would have had a reasonable doubt respecting guilt, thus failing the second prong of Strickland.

To establish the second prong under Strickland, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [466 U.S.] at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. When reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance claim, this Court gives deference to the trial court’s factual findings to the extent they are supported by competent, substantial evidence, but reviews de novo the trial court’s determinations of deficiency and prejudice, which are mixed questions of fact and law. See Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005).

Morris v. State, 931 So.2d 821, 828 (Fla.2006).

In this case, the victim’s testimony was clear and precise. She was able to recount the events with complete detail and firmly rejected the defendant’s version of the events. The defendant admitted to his girlfriend in the taped conversation that he might have touched the child when he was drunk. Even when he testified, his expía-nation was that he might have accidentally touched her, although his version of the incidents was markedly different than the child’s version. In his testimony, he was much less certain with respect to his description. He also admitted that he might have accidentally touched the victim as he was carrying her to bed. His attempt to explain away his statements to his girlfriend at the jail were weak and ineffective. Further, many of the victim’s statements to her parents and relatives likely were admissible as a child hearsay statement. See § 90.803(23), Fla. Stat. Thus, not all of the evidence presented by the parents and relatives was inadmissible. We cannot say that the bolstering of the victim’s testimony caused Strickland prejudice.

We find no error in the denial of the remaining multiple claims raised by the defendant in his postconviction motion.

For the foregoing reasons, we affirm the trial court’s orders denying defendant’s motion for postconviction relief.

STEVENSON and CIKLIN, JJ., concur.