text:
    Robin NAVAMUEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2289.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beaeh, for ap-pellee.
   TAYLOR, J.

The appellant, Robin Navamuel, was charged by information with possession of a firearm or electric weapon by a convicted felon (Count I), possession of cannabis •with intent to deliver/sell (Count II), and possession of drug paraphernalia (Count III). He entered a plea of no contest on all three counts and now appeals the trial court’s denial of his motion to suppress evidence. Appellant argues that the trial court erred in denying his motion because law enforcement agents initially searched his home without a warrant or valid consent and then continued the search with a warrant based on the illegally obtained evidence. We agree and reverse.

At the hearing on the motion to suppress, several DEA agents and the appellant testified. DEA Agent Randy Matsch-ner testified that agents began surveilling appellant after an informant told Matsch-ner that appellant was involved in marijuana cultivation and sales and that he was a friend of another subject, Darren Frase, whom the DEA had been investigating for drug activity. During a search of Frase’s home, Agent Matschner told Agents Scott Hahn and Armando Roche to go to appellant’s home to try to get consent to search his home.

Agents Hahn and Roche testified that they drove to appellant’s house. Agent Roche pulled into the front driveway behind appellant’s parked car while Agent Hahn parked in the swale area. Both agents approached appellant in the driveway near his car and told him that they were going to conduct a pat down for their safety. After Agent Roche removed appellant’s wallet and a large roll of cash and patted him down, the agents obtained appellant’s verbal consent to search his home. Once in the house, the agents observed a partially smoked marijuana cigarette in an ashtray on the kitchen counter. More DEA agents arrived soon thereafter to assist with the search and found additional marijuana in a kitchen drawer. During the search, appellant revoked his consent but then changed his mind and allowed the agents to continue the search. The agents found a bag of marijuana under a couch in the living room and hydroponic grow equipment in the back bedroom. Agent Roche placed appellant under arrest. After appellant withdrew consent the second time, agents left the residence and applied for a search warrant. The warrant was issued upon allegations in the application that a consensual search of the residence led to the recovery of marijuana.

With regard to the initial encounter between the agents and appellant, appellant testified that he was already inside his car when the agents pulled into the driveway and blocked his car. Agent Roche got out with his gun drawn and told him to “show me your hands, put your hands out the window” and turn off the car using one hand. According to appellant, Roche kept his gun drawn until appellant got out of his car. Then Roche re-holstered his weapon and told him he was going to pat him down.

Appellant filed a motion to suppress evidence. His motion asserted that the initial search of his home was done without a warrant, valid consent, or exigent circumstances and that the search warrant was obtained after the initial illegal search and based on misrepresentations by the police. After numerous evidentiary hearings, the trial court denied the motion. Appellant pled no contest to the charges and reserved his right to appeal the denial of his motion to suppress.

The state’s sole justification for the initial warrantless search of appellant’s home was consent. In denying the motion to suppress, the trial court ruled that the initial encounter between the officers and appellant in the driveway was a “consensual citizen encounter” and that the initial search of appellant’s home was consensual.

A ruling on a motion to suppress is a mixed question of fact and law. Smith v. State, 997 So.2d 499, 500 (Fla. 4th DCA 2008). Although appellate courts must accept a trial court’s determination of historical facts that are supported by competent substantial evidence, we must independently review the trial court’s application of those facts to the law in resolving constitutional issues arising from the Fourth and Fifth Amendment. Globe v. State, 877 So.2d 668, 668-69 (Fla.2004); Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006). In other words, we review the trial court’s legal conclusions de novo. State v. Christman, 838 So.2d 1189, 1191 (Fla. 2d DCA 2003).

“The trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence ....” Delorenzo, 921 So.2d at 876. In this case, the trial court was free to reject appellant’s testimony in determining that the initial encounter between the officers and appellant in the driveway was a “consensual citizen encounter.” The court went on, however, to find that during this consensual encounter the agents “conducted a pat-down of the Defendant for their safety.” As appellant points out, the record contains no evidence, and the trial court makes no findings, that there was consent or justification for the weapons pat down. No testimony was presented at the hearing that the defendant consented to being frisked. Moreover, no evidence was adduced that the officers possessed any information or made any observations during the consensual encounter to form a belief that the defendant was armed and dangerous. Although the state does not address this issue, appellant makes a compelling argument that the weapons pat down, which the agents conducted before obtaining his consent to search his home, was unlawful and thus invalidated his consent and tainted all the evidence seized.

In Johnson v. State, 785 So.2d 1224, 1225 (Fla. 4th DCA 2001), we considered “whether a police officer may conduct a pat down for weapons during what began as a consensual encounter with a citizen.” We determined that, if during the encounter an officer makes observations that support his “reasonable belief that the appellant [is] armed and potentially dangerous,” the officer is entitled to conduct a pat down pursuant to the Fourth Amendment. Id. We also recognized that some courts “suggest that a pat down transforms a consensual encounter ‘into a stop requiring closer scrutiny.’ ” Id. at 1228 (citing Sholtz v. State, 649 So.2d 283, 284 (Fla. 2d DCA 1995) and Hamilton v. State, 612 So.2d 716, 718 (Fla. 2d DCA 1993)).

In Delorenzo, the defendant was asleep in his parked car in a shopping center parking lot at 8:30 in the morning when he was approached by a police officer on patrol. The trial court found that the officer told the defendant to remove his hand from his pocket and then instructed him to step out of his car. After again asking the defendant to remove his hand from his pocket, the officer obtained his consent to search for officer safety. During the search, as the officer was pulling out a pack of matches, a baggy containing cocaine fell to the ground. The trial court concluded that the search was consensual and denied the defendant’s motion to suppress the cocaine. We reversed. We held that the police officer’s order directing the defendant to remove his hand from his pocket and step out the car converted the interaction between the officer and the defendant from a consensual encounter to an investigatory stop. We explained that because the officer lacked any reasonable suspicion of criminal activity and had no reasonable basis to fear for his safety, the investigatory stop was illegal. Id. at 878-879. We stated:

There are times during an officer’s encounter with an individual, when the officer’s observations may lead to a belief that the individual is armed and dangerous, a belief the officer did not hold when the encounter was initiated. Under certain factual circumstances this court has held that concern for an officer’s safety may create reasonable suspicion warranting an investigatory stop. See Johnson, 785 So.2d 1224; see also Brown v. State, 714 So.2d 1191 (Fla. 4th DCA 1998). However, as pointed out in Brown, not every “consensual encounter may escalate to an investigative stop simply because the officer generally has safety concerns.”

Id. at 877.

Finally, in Delorenzo, we rejected the trial court’s finding and the state’s argument that the defendant consented to the search during the investigatory stop. We stated: “Consent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.” Id. at 879 (citing Scott v. State, 696 So.2d 1335, 1336 (Fla. 4th DCA 1997) and Faulkner v. State, 834 So.2d 400, 403 (Fla. 2d DCA 2003)).

In sum, the state did not present evidence or argue that the agents had a well-founded suspicion of criminal activity to justify an investigatory stop when they encountered appellant in his driveway. Instead, the state argued, and the trial court found, that the contact was a consensual citizen encounter. The state, however, failed to establish that during the encounter the agents had a reasonable belief that appellant was armed and dangerous to justify patting him down. The illegal pat down converted the consensual encounter into an unlawful stop. Because the state failed to show by clear and convincing evidence a break in the chain of events from the time the officers conducted the illegal stop and frisk and obtained appellant’s consent to search, his consent is deemed involuntary. Thus, the motion to suppress should have been granted and all the physical evidence derived from this illegal stop and frisk excluded as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This includes any evidence the agents found in appellant’s house after securing the search warrant, because the warrant was tainted by the prior illegal search of the house. See Grant v. State, 978 So.2d 862 (Fla. 2d DCA 2008).

Reversed and Remanded.

WARNER and POLEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. TORPY, J.,

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Linda GERMAN, Individually and as, etc., et al., Respondent.
    No. 5D08-3577.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2009.

      W. Andrew Rariden of Mimi L. Smith & Associates, Orlando, for Petitioner.
    Douglas R. Beam of Douglas R. Beam, P.A., Melbourne, for Respondents.
   PER CURIAM.

Petitioner seeks certiorari review of an order denying discovery of information from Respondent’s treating physicians. Curiously, although the trial court ordered Respondent to provide answers to so-called Boecher interrogatories, seeking information concerning the physicians’ involvement with Respondent’s counsel in prior cases, it denied Petitioner’s request to examine the physicians to uncover evidence of bias, as permitted by Elkins v. Syken, 672 So.2d 517 (Fla.1996) and Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii). The trial court concluded that, because the physicians were “treating physicians,” rather than retained experts, bias discovery of this type was not permitted.

Without reaching the merits, we conclude that we do not have jurisdiction to consider the writ because Petitioner has an adequate remedy on appeal from the adverse discovery ruling. Chavarria v. Bau-tista, 922 So.2d 245, 246 (Fla. Sd DCA 2006).

PETITION DISMISSED.

GRIFFIN and COHEN, JJ., concur.

TORPY, J., concurs and concurs specially with opinion.

TORPY, J.,

concurring and concurring specially.

The trial court’s ruling here answered the rather limited question framed by the lawyers. They centered their arguments on whether a so-called “treating physician” is an “expert witness,” as that phrase is contemplated under Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii). Calling treating physicians “hybrid witnesses,” the trial court ruled that they are not subject to discovery under this rule. It relied upon Frantz v. Golebiewski, 407 So.2d 283, 284 (Fla. 3d DCA 1981), which held that ex parte contact with a treating physician was not prohibited by rule 1.280’s limitation that discovery of experts be done “only” in accordance with the procedure in the rule, because a treating physician does not acquire facts and develop opinions “in anticipation of litigation or for trial.” Id. at 285 (quoting rule 1.280(b)(1)). Whether Frantz was correctly decided or applies in this situation is, in my view, largely irrelevant, because the real question is not the procedural method under which the discovery is sought but rather whether the discovery may be obtained at all. I think the answer to this question is clearly yes.

A treating physician, just as any other witness, may be questioned at trial concerning any bias he or she might have for or against a party. § 90.608(2), Fla. Stat. (2009). For example, a treating physician who devotes a substantial portion of his or her practice to expert testimony on behalf of plaintiffs might have a bias towards plaintiffs just as a retained expert, and inquiry at trial to expose that potential bias is permitted. It logically follows that pretrial discovery is permissible to uncover evidence of bias for all the same reasons that discovery on any trial issue is permitted. The extent to which discovery is permitted on this issue is a function of balancing its importance against the burden of providing the discovery. Thus, in Winn-Dixie Stores, Inc. v. Miles, 616 So.2d 1108 (Fla. 5th DCA 1993), a case not cited by either party to these proceedings, although we acknowledged the theoretical right to bias discovery of the nature sought here, we sustained a trial court’s protective order of overly burdensome bias discovery directed to a treating physician.

Elkins v. Syken, 672 So.2d 517 (Fla. 1996), did not establish the right to this pretrial discovery. It constricted the right to ameliorate the burden on expert witnesses while still permitting reasonable discovery on the issue of bias. Rule 1.280(b)(4)(A)(iii) implemented the holding in Elkins. If the rule does not apply to treating physicians, then the limitation does not apply either. Discovery of bias information is still permissible, however, with reasonable limitations to be determined by the trial judge on a case-by-case basis. Under most circumstances, it would seem that the correct balance is the same balance contained in the rule for all other experts because there is no logical distinction between treating physicians and retained experts for purposes of uncovering this type of information. The information is similarly relevant, and the burdens of producing the information are the same for all of these professionals.

      . Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999).


author: PER CURIAM.

text:
    Christopher SHOLLY, Appellant, v. DISC VILLAGE, INC., d/b/a Greenville Hills Academy, Appellee.
    No. 1D08-5560.
    District Court of Appeal of Florida, First District.
    July 24, 2009.
    Richard W. Reno, Crawfordville, for Appellant.
    David A. Cornell and Jeremy L. Dub-yak, Jacksonville, for Appellee.
   PER CURIAM.

The trial court dismissed Appellant’s complaint upon a motion to dismiss for failure to state a cause of action and upon an allegation that the claim was barred by the statute of limitations.

The complaint adequately pled a claim for negligent hiring and further alleged a valid basis for delayed discovery of the tort. The fact specific basis for this statute of limitations defense could not be resolved on a motion to dismiss.

The case is reversed and remanded to the trial court for further proceedings.

BARFIELD, PADOVANO, and LEWIS, JJ., concur.


text:
    Ramon M. SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4706.
    District Court of Appeal of Florida, First District.
    July 24, 2009.

      Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and C. Bowen Robinson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the defendants convictions, but reverse for resentencing. The trial court erred in sentencing the defendant as a prison releasee reoffender to consecutive terms of imprisonment. Although there were two victims involved, the defendant’s crimes arose from a single criminal episode as they occurred without interruption in time or location. See Staten v. State, 600 So.2d 1269, 1270 (Fla. 2d DCA 1992) (holding that even though there were two victims, a single criminal episode occurred because there was not an interruption in time and place); Gloster v. State, 568 So.2d 1318, 1318 (Fla. 2d DCA 1990) (“notwithstanding the fact that different victims were involved, all three offenses occurred without interruption in time and location”). As such, we find that Robinson v. State, 829 So.2d 984 (Fla. 1st DCA 2002), controls here and requires that the defendant be resentenced.

AFFIRMED in part, REVERSED in part, REMANDED for resentencing.

ALLEN, PADOVANO, and ROBERTS, JJ., concur.


text:
    Adrian J. WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1147.
    District Court of Appeal of Florida, First District.
    July 27, 2009.

      Nancy A. Daniels, Public Defender, and Phil S. Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Bedford v. State, 995 So.2d 1122 (Fla. 4th DCA 2008); State v. Odom, 862 So.2d 56 (Fla. 2d DCA 2003).

HAWKES, C.J., ALLEN, AND CLARK, JJ., concur.


text:
    Joel Lawrence JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2124.
    District Court of Appeal of Florida, Second District.
    July 29, 2009.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   GALLEN, THOMAS M., Associate Senior Judge.

Joel James appeals the postconviction court’s order denying his motion to withdraw plea without prejudice. We fully agree with the postconviction court’s determination that it lacked jurisdiction to entertain James’s motion pursuant to Florida Rule of Criminal Procedure 3.170(Z) because James failed to file the motion within thirty days after rendition of his sentence. See Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001) (noting that the time limit under rule 3.170(0 is jurisdictional). We also agree with the postconviction court’s finding that because the motion lacked the proper oath it could not be considered under Florida Rule of Criminal Procedure 3.850. See Fla. R.Crim. P. 3.850(c) (requiring motion to be under oath); Welch v. State, 946 So.2d 649, 650 (Fla. 2d DCA 2007) (reversing order summarily denying 3.850 motion and remanding for dismissal of motion for lack of proper oath); Morais v. State, 640 So.2d 1227, 1228 (Fla. 2d DCA 1994) (affirming order dismissing 3.850 motion for lack of proper oath). However, the proper disposition of the motion would have been to dismiss the motion without prejudice to James’s timely filing a facially sufficient motion under rule 3.850. See Welch, 946 So.2d at 650; Morais, 640 So.2d at 1228. Accordingly, we reverse the order denying James’s motion and remand for the post-conviction court to enter an order dismissing the motion without prejudice to his timely filing of a facially sufficient motion under rule 3.850.

Reversed and remanded.

CASANUEVA, C.J., and NORTHCUTT, J., Concur.


text:
    Carl HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4120.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Carl Harrison, Appellant, challenges his judgments and sentences for resisting an officer without violence and possession of drug paraphernalia. Appellant raises two issues on appeal; the only issue that merits discussion is Appellant’s claim that the trial court erred in assessing investigative costs. We affirm Appellant’s judgments and sentences without further comment, but we reverse the imposition of investigative costs and remand for correction of the order of probation.

Section 938.27, Florida Statutes (2008), authorizes trial courts to impose costs of investigation on criminal defendants. Section 938.27(4) provides, “Any dispute as to the proper amount or type of costs shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of costs incurred is on the state attorney....” In the instant case, even though Appellant objected to the imposition of costs at sentencing, the State did not present any evidence in support of its request for such costs. Without any evidence presented, the trial court could not have found these costs to be supported by a “preponderance of the evidence.” Because the trial court was without evidence supporting the request for any amount of investigative costs, it erred by entering an order imposing an award of those costs. The $132.50 in investigatory costs assessed against Appellant must be stricken. Accordingly, we reverse that portion of the order of probation and remand for the trial court to enter a corrected order, striking the costs of investigation. We affirm Appellant’s judgments and sentences in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

BENTON, LEWIS, and CLARK, JJ„ concur.


text:
    Eddie JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1703.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Samuel M. Olmstead, Tallahassee, for Petitioner.

      Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the judgment and sentence rendered on December 16, 2008, in Leon County Circuit Court case number 2007-CF-02201-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, WEBSTER, and CLARK, JJ., concur.


text:
    Francisco D. REYES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Carmax Auto Superstores, Inc., Appellees.
    No. 1D09-1580.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Francisco D. Reyes, pro se, Appellant.
    Geri Atkinson-Hazelton, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998) (dismissing untimely appeal without prejudice to the appellant’s right to petition agency for relief).

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


text:
    Deangelo S. HORN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2695.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2012.
    Rehearing Denied Nov. 20, 2012.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Deangelo Horn, Appellant, was convicted of sexual battery and attempted lewd or lascivious molestation, both against a victim under the age of twelve by a defendant at least eighteen years old. He appeals from the judgment and sentence, raising two arguments: (1) that his separate convictions for sexual battery and attempted lewd or lascivious molestation violate his right to be free of double jeopardy and (2) that the trial court reversibly erred in refusing his request for an instruction on unnatural and lascivious act as a lesser-included offense of the charged crime of lewd or lascivious molestation. Because the charges encompassed two distinct acts under this Court’s reasoning in Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010), we reject the first argument without further discussion and affirm Appellant’s conviction and sentence for sexual battery. For the reasons explained below, we agree with Appellant’s second argument and, accordingly, reverse and remand for a new trial on attempted lewd or lascivious molestation.

The State presented evidence that Appellant placed his head between the victim’s exposed breasts during the same criminal episode as the sexual battery. The alleged touching of the victim’s breasts was the basis for the charge of lewd or lascivious molestation. As to this charge, Appellant requested the instruction on unnatural and lascivious act as a permissive lesser-included offense. The trial court denied this request and, as to count two, instructed the jury only on the charged offense and attempt. The jury returned a verdict for attempt.

Upon request, a trial court is required to instruct the jury on a permissive lesser-included offense if two conditions are met: “(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.” Khianthalat v. State, 974 So.2d 359, 361 (Fla.2008). Stated another way, a permissive lesser-included offense exists when “the two offenses appear to be separate on the face of the statutes, but the facts alleged in the accusatory pleadings are such that the lesser included offenses cannot help but be perpetrated once the greater offense has been.” Anderson v. State, 70 So.3d 611, 613 (Fla. 1st DCA 2011) (quoting Williams v. State, 957 So.2d 595, 598 (Fla.2007)) (citations, internal quotation marks, and brackets omitted). An instruction on such an offense must be given even when there is ample evidence of the charged offense. Clark v. State, 43 So.3d 814, 817 (Fla. 1st DCA 2010).

Along with attempt, assault, and battery, the offense of unnatural and lascivious act is a permissive lesser-included offense of lewd or lascivious molestation. Sherrer v. State, 898 So.2d 260, 261 (Fla. 1st DCA 2005); Fla. Std. Jury Instr. (Crim.) 11.8. In Williams v. State, 627 So.2d 1279 (Fla. 1st DCA 1993), this Court found error in the refusal to instruct the jury on this offense under circumstances not materially distinguishable from the instant case. There, an adult male made a six-year-old female “hold his penis, move her hand back and forth, and use a vibrator on him.” 627 So.2d at 1280. This Court held that these facts satisfied the definition of unnatural and lascivious act. Id. As a result, the trial court was required to give that instruction, even though the defendant could not have committed this offense without also committing the greater offense of lewd, lascivious, or indecent assault. Id. at 1281. Williams requires us to hold that the trial court erred in refusing the requested instruction in the instant case.

Whether the error was harmless turns on whether the jury was given a fair opportunity to exercise its inherent pardon power by returning a verdict of guilty as to the lesser-included offense immediately below the offense for which Appellant was convicted. See Pena v. State, 901 So.2d 781, 787 (Fla.2005); Fernandez v. State, 570 So.2d 1008, 1011 (Fla. 2d DCA 1990). Because the trial court did not instruct the jury on any lesser-included offenses below the crime of which Appellant was convicted, we cannot say beyond a reasonable doubt that the failure to instruct the jury on unnatural and lascivious act was harmless. See McKiver v. State, 55 So.3d 646, 648 (Fla. 1st DCA 2011). Accordingly, we reverse and remand for a new trial on attempted lewd or lascivious molestation, while affirming the uncontested conviction and sentence for sexual battery.

AFFIRMED in part; REVERSED in part; and REMANDED for a new trial.

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


text:
    M.N., Natural Mother of N.N. and E.N., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D12-3199.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2012.

      Henri Cawthon of the Law Offices of Henri Cawthon, Gainesville, for Appellant.
    Stacey Bareli Steinberg and Lindsay Hanson of the Department of Children and Families, Gainesville; Angela L. Jacobs, Dunnellon; Susan Barber, Assistant Regional Counsel, Tallahassee; Ward L. Metzger of Children’s Legal Services, Jacksonville; and Kelley Schaeffer of the Guardian Ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

M.N., the mother of E.N. and N.N., seeks review of the trial court’s Order on the Mother’s Second Motion for Reunification. The order stated that it was in the children’s best interest to remain out of the mother’s home. The mother argues the trial court abused its discretion when it denied her request for reunification without finding competent, substantial evidence she was a danger to the children.

The children were removed from the mother in December 2011 based on the following allegations: domestic violence by the father against mother, sexual abuse by the father against E.N., physical abuse by the father against the children, the mother’s untreated mental health issues, and the mother’s failure to protect the children from the father. The trial court adjudicated the children dependent and approved a case plan with a goal of reunification.

Throughout the case, the guardian ad litem expressed various concerns about the mother’s alleged alcohol abuse and over-concerned parenting. In addition, the guardian ad litem reported the concerns of the children’s therapist, which included further allegations that the children were being “over-parented.”

During the period of dependency, the mother abided by the case plan. She completed counseling, two psychological evaluations and a psychiatric evaluation, a behavioral health assessment, domestic violence counseling both with and without her children, a substance abuse assessment, and two parenting classes. Each of these assessments was largely positive regarding reunification.

Despite the mother’s compliance with the case plan, at the evidentiary hearing on the mother’s second petition for reunification, the state and guardian ad litem maintained their previous positions. The state expressed concerns about the mother’s alleged “fixation[s]” and that the mother was an “overly concerned mom.” The trial court appeared to accept that the mother was in compliance with her case plan by stating, “from what I’ve heard from all the parties and from what I’ve read, she has been doing what she was asked to do,” However, the court denied the petition because of its concern that reunification would not be in the children’s best interest.

In the order denying the petition, the trial court found that reunification would not be in the best interest of the children due to the children’s therapist’s belief in the mother’s “scattered and frantic behavior.” In the order, the trial court made no mention of the mother’s substantial compliance with the case plan.

Non-final orders preventing reunification warrant certiorari relief if a trial court abused its discretion. See S.P. v. Dep’t of Children & Family Servs., 17 So.3d 878, 879 (Fla. 1st DCA 2009).

Where a parent seeks reunification with a child, “the child must be returned to his or her parent if the parent has substantially complied with the case plan and ‘if the court is satisfied that reunification will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health.’” C.D. v. Dep’t of Children & Families, 974 So.2d 495, 499 (Fla. 1st DCA 2008) (citing T.F. v. Dep’t of Children & Family Servs., 881 So.2d 702, 702 (Fla. 1st DCA 2004)). There are two factors a trial court must consider when ruling on a motion for reunification: the parent’s compliance with the case plan and whether reunification would be detrimental to the child. C.D., 974 So.2d at 500. Section 39.522(2), Florida Statutes (2011), suggests that when a parent requests reunification and has substantially complied with the case plan there is a presumption of reunification. C.D., 974 So.2d at 500. This presumption can be overcome if the trial court makes a finding supported by competent, substantial evidence that returning the child would endanger the child’s physical or emotional health. Id. Competent, substantial evidence is of the nature that a “reasonable mind would accept [it] as adequate to support a conclusion.” Id. (quoting Perdue v. TJ Palm Assocs., Ltd., 755 So.2d 660, 665 (Fla. 4th DCA 1999)).

In C.D., the trial court denied the mother’s petition for reunification because the guardian ad litem and children’s case worker expressed unsubstantiated concerns about the mother’s mental health and ability to care for the children. 974 So.2d at 502. This Court held the evidence was not sufficiently supported by identifiable facts and could not be deemed competent substantial evidence. Id.

In this case, the trial court was presented with evidence that the mother had substantially complied with the case plan, and the trial court appeared to accept that substantial compliance. Thus, there was a presumption of reunification. However, the trial court denied reunification based on the finding that returning the children to the mother would endanger their physical and mental well-being. This finding was based solely on the report of the children’s therapist and the opinions of the guardian ad litem and the state. This evidence is similar to the evidence this Court rejected in C.D., and, under C.D., this evidence does not meet the competent substantial evidence standard.

However, a subsequent ruling calls C.D.’s analysis into question. In S.P. v. Department of Children & Family Services, this Court found that a parent must show that the trial court’s findings of fact were, at a minimum, materially inadequate or incomplete or that the findings were a departure from the essential requirements of the law. 17 So.3d at 881. Because there was no trial transcript in S.P., the parent could not show that the trial court’s findings of fact were a departure from the essential requirements of the law, and, as a result, this Court found the parent was not entitled to relief. Id.

Because of this Court’s ruling in S.P., the mother must show that the trial court’s findings were materially inadequate or incomplete or that the findings were a departure from the essential requirements of the law. Unlike the father in S.P., the mother provided a full transcript of prior proceedings, which enabled this Court to determine the trial court’s findings departed from the essential requirements of the law requiring competent, substantial evidence to overcome the presumption of reunification that accompanies the substantial completion of the case plan. Because the trial court’s findings departed from the essential requirements of the law, the trial court abused its discretion.

Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

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


text:
    Sherterria Linelle JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1315.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

LEWIS, WETHERELL, and MAKAR, JJ., concur.


author: BLACK, Judge.

text:
    Leonor Rissotto CARVAJAL; Sergio Carvajal; and State Farm Fire and Casualty Company, Appellants, v. Karen PENLAND, Appellee.
    Nos. 2D12-4123, 2D12-4899.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.
    Rehearing Denied Aug. 22, 2013.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellants.
    Daniel J. Leeper of Leeper and Leeper, St. Petersburg, for Appellee.
   BLACK, Judge.

In these consolidated appeals, State Farm Fire and Casualty Company, Leonor Rissotto Carvajal, and Sergio Carvajal, appellants here and defendants in a personal injury lawsuit below, raise three claims of error. First, they argue that the trial court abused its discretion in failing to order a new trial based upon the improper testimony of Karen Penland, appellee here and plaintiff below, and upon her counsel’s improper closing argument. State Farm and the Carvajals next argue that the trial court reversibly erred in failing to order a new trial or a remittitur because the jury award was not supported by the evidence. And finally, State Farm and the Carvajals contend that because the underlying judgment must be reversed, so must the cost judgment. Finding merit in the first claim on appeal, we reverse the final judgment and remand for a new trial. As a result, we also reverse the cost judgment. We do not reach the issue of whether the jury award was supported by the evidence.

I. Background

On February 2, 2009, Ms. Carvajal was the driver and co-owner of a vehicle that rear-ended a vehicle driven by Ms. Pen-land. Following the accident, Ms. Penland sued Ms. Carvajal and Sergio Carvajal, Ms. Carvajal’s husband and co-owner of Ms. Carvajal’s vehicle, for personal injury-damages. State Farm, Ms. Penland’s uninsured motorist insurance carrier, was also sued. Ms. Penland claimed that as a result of the accident she suffered shoulder and neck injuries which required surgery and significant medical treatment. At the time of trial, only causation and damages were contested; liability was not an issue.

Prior to trial, State Farm filed a motion in limine seeking to preclude all evidence or argument pertaining to any failure of State Farm to comply with its contractual obligations to Ms. Penland. State Farm reiterated in the motion that this was not a breach of contract case and that the amount of insurance was not an issue. The parties agree that the motion in limine was granted; however, there is no written order and our record does not contain a hearing transcript.

Nevertheless, while giving her direct testimony at trial Ms. Penland stated: “I would never be here for any other reason but, you know, because I — I can’t believe that they’re not going to take care of this and be responsible. I paid my bills. I paid my insurance. It’s crazy.” And despite counsel’s attempt to redirect her, Ms. Penland continued: “I paid more. I had more. I had more coverage. And then they dropped me. Then I get dropped by them.”

State Farm and the Carvajals immediately objected to Ms. Penland’s comments. Once the jury had been removed from the courtroom, State Farm moved for a mistrial, arguing that a curative instruction would be inadequate to repair the harm done and that Ms. Penland’s testimony violated the court’s order on the motion in limine. The Carvajals joined the motion for mistrial, arguing that the testimony was extremely damaging and not relevant to the trial. The trial court sustained the objection but reserved ruling on the motion for mistrial. The court then called the jury back into the courtroom and instructed it to “Please disregard Ms. Penland’s last comment.”

State Farm and the Carvajals renewed the request for a mistrial prior to proceeding with testimony the next morning. Although the court acknowledged the inflammatory nature of Ms. Penland’s statements, the motion was denied.

The motion in limine and the appropriateness of comments regarding State Farm’s handling of the case were also addressed before closing arguments. The Carvajals’ counsel brought to the court’s attention that it would be prejudicial and inappropriate for Ms. Penland’s counsel to make a “bad insurance company argument” with comments like “State Farm didn’t do this or State Farm didn’t do that.” Counsel for Ms. Penland responded that while he would refer to State Farm in closing he would not argue that simply because Ms. Penland bought insurance she was entitled to automatic payment.

Despite the concern expressed prior to closing arguments, Ms. Penland’s counsel made numerous references about State Farm not accepting responsibility. The following are excerpts from counsel’s closing argument:

Karen Penland never imagined that she would be in this courtroom. She never imagined that she would be fighting this fight. She purchased uninsured motorist coverage so that if she was hit by someone like Ms. Carvajal she would be protected.
She owned her own home and car. She takes care of both of those things. She works hard and has her whole life. She has taken jobs that allowed her to educate herself and move up in the chosen industry that she is working in now in sales. And she buys insurance to protect herself and others and now—

At this juncture, State Farm objected, arguing that Ms. Penland’s counsel’s statements were improper contract-based arguments. The objection was overruled, and Ms. Penland’s counsel continued:

And now she’s in this courtroom where State Farm is required to pay for the damages that were caused by Ms. Carvajal’s negligence and yet they still will not own up to the responsibility that they have to pay for those damages.

State Farm again objected and the objection was overruled. Counsel continued:

They come into this courtroom and they said in opening statement we accept responsibility for this crash, but they have turned — they have turned their own insured who is nothing but an innocent victim in this whole crash and this whole matter and they join with Ms. Carvajal’s attorney in an effort to make Karen Penland out as an unsavory or untrustworthy character.

At this point, counsel for the Carvajals objected, arguing that Ms. Penland’s counsel’s comments were improper and inflammatory. He requested a curative instruction and moved for a mistrial. The objection was sustained; however, the request for an instruction and the motion for mistrial were denied. Ms. Penland’s counsel continued with his argument, using his previous approach:

So instead of accepting responsibility what they do is they put Karen Pen-land’s life under a microscope in order to find anything they can to minimize or even eliminate their responsibility to her.... They’re looking for anything they can to minimize their exposure for the damages that were caused by this crash.

Similar statements regarding State Farm’s alleged failure to take responsibility and criticizing State Farm’s handling of the case permeated counsel’s closing argument. Neither State Farm nor the Carva-jals objected to these continuing comments.

At the conclusion of the trial, the jury returned a total verdict of $1,777,309.59. The trial court entered a final judgment in favor of Ms. Penland in accordance with the verdict. State Farm and the Carvajals subsequently moved for a new trial, arguing in part that the verdict was contrary to the manifest weight of the evidence and that the trial court erred in denying the motions for mistrial based upon Ms. Pen-land’s inflammatory testimony and Ms. Penland’s counsel’s inflammatory and improper argument. Those motions were denied.

II. Analysis

Statements by counsel during closing argument may provide the basis upon which to grant a motion for new trial. Carnival Corp. v. Jimenez, 112 So.Sd 513 (Fla. 2d DCA Feb.27, 2013) (citing Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1250 (Fla. 2d DCA 2007)). Provided the improper argument has been properly preserved, “the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the [objecting] party its right to a fair trial.’ ” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla.2006) (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005)). Similarly, properly preserved improper witness testimony which is highly prejudicial and inflammatory warrants a new trial, particularly where the damaging testimony is compounded by improper argument.

The trial court abused its discretion in denying the motions for new trial. See Engle, 945 So.2d at 1271. Ms. Penland’s counsel’s argument that State Farm was shirking its responsibilities or otherwise acting in bad faith shifted the focus from injuries and damages to claims handling and bad faith, neither of which were issues at trial. State Farm and the Carvajals were denied a fair trial as a result.

This court and others have repeatedly stated that arguments all but identical to those made by Ms. Penland’s counsel are improper, inflammatory, and mandate reversal for a new trial. See, e.g., State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So.3d 66, 74-75 (Fla. 2d DCA 2013); Moreta, 957 So.2d at 1251; Intramed, Inc. v. Guider, 93 So.3d 503, 507 (Fla. 4th DCA 2012); State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377, 380 (Fla. 3d DCA 2005). Counsel’s contention that State Farm was refusing to “own up to the responsibility that they have [sic]” not only improperly shifted the focus of the case but also “ ‘improperly suggested that [State Farm] should be punished for contesting damages at trial and that its defense of the claim in court was improper.’ ” Thorne, 110 So.3d at 75 (quoting Intramed, 93 So.3d at 507); accord Moreta, 957 So.2d at 1251-52; Revuelta, 901 So.2d at 380. The closing argument was not intended to encourage a “logical analysis of the evidence in light of the applicable law”; rather it was designed to inflame the jurors’ emotions. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028 (Fla.2000); Intramed, 93 So.3d at 507.

Ms. Penland argues that State Farm and the Carvajals’ claim that the trial court erred in failing to grant a new trial is based upon unobjeeted-to closing argument which was not argued in the motions for new trial and therefore should not be considered by this court. To the extent State Farm and the Carvajals rely on such statements, we agree with Ms. Penland that those claims have not been properly preserved for appeal. See Murphy, 766 So.2d at 1027; USAA Cas. Ins. Co. v. Howell, 901 So.2d 876, 879 (Fla. 4th DCA 2005); see also Santiago v. Abramovitz, 96 So.3d 1091, 1093 (Fla. 4th DCA 2012) (“As for the closing argument, when the defendant made the allegedly inflammatory argument, the plaintiff did not object. The plaintiff also did not raise this challenge in her motion for new trial. Thus, the plaintiffs challenge to the defendant’s closing argument is unpreserved.”). However, we conclude that the improper statements in closing argument which were properly preserved warrant a new a trial. Therefore, we do not consider the unobjected-to statements and need not apply the test outlined in Murphy. See 766 So.2d at 1031.

Ms. Penland’s counsel’s argument is not the sole basis upon which a new trial should have been granted. In her direct testimony, Ms. Penland stated that despite paying her premiums State Farm “dropped” her coverage. At oral argument before this court, Ms. Penland’s appellate counsel admirably conceded that there was no way for the trial court to adequately address Ms. Penland’s damaging statement without further emphasizing the prejudicial testimony. Ms. Penland’s statement was egregious and prejudicial; the court’s instruction to disregard Ms. Penland’s last statement could have no curative value in this case. State Farm’s contractual obligations to Ms. Penland were irrelevant to a determination of causation and damages. See Revuelta, 901 So.2d at 379-80 (“The issue here was driver negligence, not bad faith....”); Wittmer v. Jones, 864 S.W.2d 885, 891 (Ky.1993) (concluding that bifurcating trial on liability and bad faith claims “keeps out of the first trial evidence which was relevant to the issue of bad faith but unnecessary and possibly prejudicial ... in the trial of the preliminary question of liability.” (internal quotation marks omitted)). And the implication of bad faith should not form any part of the basis for a liability determination. See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991) (“[A]n insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith ... can accrue.”). Moreover, while Ms. Penland’s testimony was described by the parties as emotional, the objectionable statements were an inappropriate plea to the jurors’ sympathies. See Hollenbeck v. Hooks, 993 So.2d 50, 51 (Fla. 1st DCA 2008); see also Fla. Std. Jury Instr. (Civ.) 7.1 (“In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.”). State Farm’s motion for mistrial should have been granted. See Fla. Power & Light Co. v. Jennings, 518 So.2d 895, 899 (Fla.1987); First Nat’l Bank of Fla. v. Braun, 474 So.2d 386, 387 (Fla. 2d DCA 1985). The trial court had an opportunity to correct this error by granting the motions for new trial; it failed to do so.

Independently and cumulatively, the effect of Ms. Penland’s testimony and her counsel’s improper closing argument denied State Farm and the Carvajals a fair trial. Accordingly, we reverse the final judgment and cost judgment and remand for a new trial on causation and damages.

Reversed and remanded.

WALLACE and SLEET, JJ., Concur.


author: GROSS, J.

text:
    Dianna Robin DENNIS, individually and as Co-Trustee of the Thomas Gordon Dennis Revocable Trust of 1989 as amended and Lauren Keely Haws, Appellants, v. Harriet D. KLINE and Deutsche Bank Trust Company, N.A., as Co-Trustee of the Thomas Gordon Dennis Revocable Trust 1989 as amended, Appellees.
    Nos. 4D12-1881, 4D12-2589.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Edward Downey, Rachel M. Evert and R. Lee McElroy, IV of Downey & Downey, P.A., Palm Beach Gardens, for appellants.
    James G. Pressly, Jr. of Pressly & Pressly, P.A., West Palm Beach, for appel-lee, Harriet D. Kline.
   GROSS, J.

In 2011, a beneficiary of a 1989 trust adopted a 27-year-old woman whom she had known since birth and treated like a daughter. The adoption impacted those who would inherit under the trust, so another beneficiary brought suit in Florida seeking to modify the trust to exclude the adoptee as a potential beneficiary. The circuit court granted summary judgment, excluding the 27 year old from becoming a beneficiary of the trust. We reverse because the issue of the settlor’s intent in creating the trust was not appropriately resolved on summary judgment.

Thomas Gordon Dennis (“the Settlor”) formulated a pour-over will, which provided that upon his death the assets of his estate would be marshaled into a trust for distribution (“the Trust”). Under the Trust, the balance of his estate that did not pass by specific bequest was to be split, with half the assets designated to the “Family Portion” of the Trust and the other half going to the “Marital Portion.” As their names indicate, the “Marital Portion” provided benefits for the Settlor’s spouse, while the “Family Portion” provided for his descendants.

The “Family Portion,” which is central to this appeal, is bifurcated into two sub-trusts: Family Trust A and Family Trust B. For the purposes of administration, the sub-trusts are similarly constructed. In both sub-trusts, the apportioned net assets are separated into equal shares among the Settlor’s five children, such that a child receives quarterly income installments throughout his or her lifetime, along with additional funding from the principal at the discretion of the trustee.

The difference between the sub-trusts lies in a child’s ability to devise his or her interest. Under Family Trust B, the Set-tlor’s children are provided with a general power to direct the apportioned trust assets following his or her death. By contrast, Family Trust A provides the children with no power of appointment, thus constraining distribution of the corpus to the Settlor’s “issue.” As a result, under Family Trust A, once one of the Settlor’s children dies, that child’s net trust corpus is divided per stirpes amongst the child’s “issue”; however, if the child dies without “issue,” the trust assets disburse “sideways” to the Settlor’s other living children or his deceased children that are survived by “issue.”

Crucial to this case is the Trust’s definition of the term “issue.” The Trust, as amended and restated in 1992, contains express definitions of terms relevant to this case. Section XII(E) defines “issue” as “lineal descendants forever,” with the provision that “words of relationship in any degree includ[e] legally adopted persons.” Likewise, Section VIII of the Set-tlor’s 1992 pour-over will included adop-tees among its definition of “children” and identified “issue” as “those becoming so by adoption and those born or adopted after the execution of th[e] will.”

Controversy Leading to the Suit

At the time of his death, the Settlor was survived by five living children: (1) Appellant Dianna, (2) Appellee Harriet, (3) Lilia Anna Dennis, (4) James MacAlpin Dennis, and (5) Thomas Gordon Dennis, Jr. (hereinafter “Tom Jr.”). The Settlor knew at the time of the Trust’s formation that Tom Jr. was infertile. In his desire to have a family of his own, Tom Jr. adopted an infant.

Similar to Tom Jr., the Settlor knew that Dianna was unable to become pregnant due to her battle with Hodgkin’s disease. In 2011, thirteen years after the Settlor’s death, Dianna, a New Jersey resident, initiated a court proceeding in Pennsylvania to adopt a twenty-seven-year-old Pennsylvania resident who was living with her biological parents. Unlike Florida, Pennsylvania’s statutes do not require that financially interested parties be given notice of the proceedings, and the adoption was completed without objection.

At the adoption hearing, Dianna stated that she was the adoptee’s “godmother,” that she was close with the adoptee’s parents, that she “took care of [the adoptee] as a baby,” that she “paid for her college tuition,” and that she otherwise maintained a “close relationship” with her by “participating] in her life.” Identifying the reason for the adoption, Dianna detailed the contours of the Trust, explaining that since she was unable to have children of her own, she wanted her assets “to go to somebody that deserves them, for whom they will mean something.”

Procedural Posture

Believing that the adult adoption undermined the Settlor’s intent, Harriet filed a two-count complaint in the circuit court, challenging the adoptee’s status as a qualified beneficiary under the Trust. In her first count, Harriet asked the trial court to enter a declaratory judgment, which would construe the Trust to exclude adult adop-tees from becoming qualified beneficiaries as “living issue.” In the alternative, Harriet requested judicial modification of the Trust, which would exclude the adoptee from taking by conforming the Trust to the Settlor’s intent of keeping Family Trust A’s assets within the family bloodlines.

In response, Dianna answered the complaint, filed two affirmative defenses, and moved to dismiss on the ground that there was no ambiguity as to the Trust’s inclusion of adopted children as beneficiaries. The trial court denied the motion to dismiss without elaboration.

After moving for a default judgment against the other qualified beneficiaries of the Trust, Harriet moved for summary judgment on Count II, requesting modification or reformation of the Trust through the argument that by forming sub-trusts, it was clear that the Settlor intended for Family Trust A’s assets to remain within the “the family bloodline,” a concept that could be stretched only to the limits of infant adoption., Under such view, although the Settlor knew of Dianna’s unfortunate predicament when he drafted the Trust, he intentionally “did not provide for her to be able to effectively exercise a power of appointment by the means of an adult adoption.”

Two weeks later, Harriet also submitted a supplement to her motion for summary judgment, contending that the trial court should not give full faith and credit to the adoptee’s adoption since Pennsylvania’s adoption statutes contrast with Florida law in that they do not require notice of adoption to be given to financially interested parties. Additionally, Harriet asserted that Dianna breached her fiduciary duty as co-trustee by failing to make such disclosure to the beneficiaries of the Trust.

In response, Dianna filed a cross-motion for summary judgment on the declaratory relief count, requesting that the trial court find the- “adoption of [the adoptee] valid for purposes of her being” a qualified beneficiary. As to the allegations of Harriet’s motion, Dianna contended that the Settlor created Family Trust A not to limit inheritance to his bloodlines but “to take strategic advantage of tax benefits.” The affidavits and depositions submitted by both parties paint the following picture.

The Parties’ Affidavits

When the Settlor approached attorney William D. McEachern to draft the Trust instrument in question, his net worth was approximately fifteen to sixteen million dollars. Without elaborating on the purpose for creating Family Trust A, McEac-hern stated in a deposition that in 1992, the Settlor requested that he draft a restatement of the Trust to incorporate his desire to “include adopted persons” as “issue.” McEachern said that at the time of the Trust’s restatement, he did not contemplate an adult adoption and never broached the idea with the Settlor.

Addressing the issue of the Settlor’s intent, Dianna described in a deposition that when her father created the Trust, he was initially “anti-adoption” in his desire to maintain his “bloodlines” and “blood rules.” However, following Tom, Jr.’s adoption of an infant daughter, her father started to “come around” to the idea of adoption, resulting in the addition of the “adopteds” provision of the Trust.

Harriet, on the other hand, described her father as “very conservative” and “old fashioned.” She stated that his intention in creating the Trust was to allow his assets to pass per stirpes, since it was desire “to provide this money for his family to go down the line.” Thus, while her father was initially opposed to Tom, Jr.’s adoption, he eventually agreed to modify the trust to include adopted children since “he had acknowledged [Tom, Jr.’s daughter] and wanted to make [sure] she also got [her] part” as a family member. Harriet did not discuss the concept of an adult adoption with her father.

Dianna’s Relationship with the Adult Adoptee

Prior to the adoptee’s birth, Dianna was close friends with her biological parents; Dianna attended their wedding and was later chosen as the adoptee’s godmother. From the girl’s birth in 1984 until 1986, the girl’s parents shared a small apartment building as tenants with Dianna, during which period Dianna built a bond with the infant. Over the years, Dianna and the adoptee maintained their relationship; Dianna took the girl on a vacation and later assisted her college aspirations by paying for testing and funding a substantial portion of her college tuition.

When the adoptee was twelve years old, Dianna approached her biological parents regarding her desire to adopt the girl. Recognizing that this was a difficult decision, the girl’s parents decided to let her make her own decision once she reached the age of maturity. However, despite this prolonged relationship with Dianna, the adoptee never met the Settlor, was not otherwise included in Dennis family events, and maintained a healthy relationship with her biological parents.

The Trial Court’s Order

The trial court granted Harriet’s motion for summary judgment, modifying the trust to exclude the adoptee “because including her as issue would defeat or substantially impair the accomplishment of a material purpose of Trust ‘A’ which was to require the corpus of this Trust to remain in [the Settlor’s] family for generations to come.” In so ruling, the trial court gleaned the Settlor’s intent from the Trust itself, since “[t]he terms of the Trust show plainly on their face that [the Settlor] intended ... to ... carefully restrict ] the descent of Trust ‘A’.” Given such intent, the trial court found dispositive that there was “no evidence in the record to support any notion that [the Settlor] anticipated that 13 years after his death (and 22 years after he executed the Trust) that children would seek to divert the remainder interest in Trust ‘A’ away from his other children.” Additionally, as an independent ground to grant the motion, the trial court also stated that by not requiring notice to be given to financially interested parties, “the Pennsylvania adoption procedure is not sufficiently similar to Florida’s to support a construct of the Trust that would treat the adult adoptee as a beneficiary.”

I

The parties disagree about the legal status of adult adoptions in Florida. We first consider the public policy of Florida regarding adult adoptions, recognizing that the statutory method for adoption, whether for infants or adults, “is in derogation of the common law and must, therefore, be strictly construed.” In re Miller, 227 So.2d 73, 74 (Fla. 4th DCA 1969) (citation omitted).

We agree with the fifth district that “[t]he public policy of Florida expressly permits the adoption of adults.” In re Adoption of Holland, 965 So.2d 1213, 1214 (Fla. 5th DCA 2007) (citing § 63.042(1), Fla. Stat. (2007)). Such policy is articulated through the wording of the Florida statutes, which provide, with minimal qualification, that any person, whether a minor or an adult, may be adopted. See § 63.042, Fla. Stat. (2011).

In limited circumstances, the Legislature has codified its disapproval of certain adoptive relationships, exemplified by the limitation on adopting one’s spouse. See, e.g., § 63.042(2)(e), Fla. Stat. (2011) (stating that a married person may not adopt his or her spouse). However, unlike other states, once a valid adoption has occurred, Florida makes no distinction as to the extent to which an adult adoptee may become a beneficiary in probate proceedings, nor does Florida set a line of demarcation as to whether the “policy” favoring adult adoption extends only to rights specifically identified by statute. In contrast, by way of illustration, Uniform Probate Code § 2-705 expressly limits an adult adoptee’s right to inherit through class gift provisions of wills and other governing instruments, stating as follows:

(f) [Transferor Not Adoptive Parent.] In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless:
(1) the adoption took place before the adoptee reached [18] years of age;
(2) the adoptive parent was the adop-tee’s stepparent or foster parent; or
(3) the adoptive parent functioned as a parent of the adoptee before the adoptee reached [18] years of age.

Given the existence of UPC § 2-705, the Florida Legislature in 1974 had the opportunity to add such a provision when it “created the Florida Uniform Probate Code Study Commission” for the purpose of “considering] adoption of the Uniform Probate Code.” Basile v. Aldrich, 70 So.3d 682, 685 (Fla. 1st DCA 2011) (quoting Henry P. Trawick, Jr., Trawick’s Redfearn Wills & Admin. in Florida, § 1.2 (2010-11 ed.)), rev. granted, 103 So.3d 138 (Fla.2012). Following debate, however, the Legislature deemed the Florida Probate Act of 1933, which omitted such a provision, to be satisfactory, electing only to tailor our statutes to be “in the format of the Uniform Probate Code insofar as possible.” Id.

As a result, current Florida probate statutes treat adopted persons, both young and adult, equally with their biological counterparts. See § 736.1102, Fla. Stat. (2011) (“The laws used to determine paternity and relationships for the purposes of intestate succession apply when determining whether class gift terminology and terms of relationship include adopted persons and persons born out of wedlock.” (emphasis added)). There is no statutory basis to preclude an adult adoptee from inheriting under a trust. Whether the adult adoption is in derogation of a set-tlor’s intent is an entirely separate issue.

Against the weight of the statutory law, Harriet, nevertheless, requests this court to extend our case law by adopting a public policy which would create an impediment to an adult adoptee’s ability to inherit. “Public policy is the cornerstone-the foundation-of all constitutions, statutes and judicial decisions.... ” Knott v. State ex rel. Guar. Income Life Ins. Co., 136 Fla. 184, 186 So. 788, 795 (1939). Although not easily defined, public policy has been “ ‘said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like.’ ” Harris v. Gonzalez, 789 So.2d 405, 409 (Fla. 4th DCA 2001) (quoting City of Leesburg v. Ware, 113 Fla. 760, 153 So. 87, 89 (1934)). However, given the imprecision of the public policy concept, “[cjourts should be extremely cautious when called upon to declare a contract or provision thereof void on the ground of public policy.” France v. Liberty Mut. Ins. Co., 380 So.2d 1155, 1156 (Fla. 3d DCA 1980); see also Russell v. Martin, 88 So.2d 315, 317 (Fla.1956) (stating that a contractual document will not be invalidated on public policy grounds “unless it is injurious to the public or contravenes some settled social interest”). We decline Harriet’s request to invoke public policy in this case.

Undoubtedly, there are situations which render an adult adoption void, such as fraud upon the court. See, e.g., Goodman v. Goodman, - So.3d -, 2013 WL 1222944, 38 Fla. L. Weekly D696 (Fla. 3d DCA 2013) (invalidating an adult adoption where the adopting party committed fraud upon the court by failing to provide timely notice of adoption upon interested parties). For example, in Rickard v. McKesson, 774 So.2d 838, 839 (Fla. 4th DCA 2000), which was relied upon by the trial court, an eighty-eight-year-old childless man adopted his seventy-two-year-old homosexual partner to make the latter the beneficiary of a trust, depriving another of her beneficiary rights in the process. In invalidating the adoption, we found dispos-itive that the lovers committed a fraud upon the court, as the adoption amounted to nothing more than a “sham to enable [the adoptee] to inherit trust funds which should have gone to” the other. Id. at 841.

In Rickard, however, such a legal analysis was appropriate because the trust beneficiary sought invalidation of the adoption through Florida Rule of Civil Procedure 1.540(b), which permits the “court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.” Here, on the other hand, Harriet failed to make such a request to the Florida court, presumably since Pennsylvania maintains jurisdiction over the adoption. Rather, her request to modify the Trust dealt not with the validity of the adoption itself, but whether it conformed with the Settlor’s intent.

In sum, the application of public policy has no part in this case. As illustrated by the cases cited by Harriet, the proper focus of the proceeding below is on the Settlor’s intent. See Cross v. Cross, 177 Ill.App.3d 588, 126 Ill.Dec. 801, 532 N.E.2d 486, 488-89 (1988) (preventing an adult adoptee from becoming a beneficiary under a trust where the settlor’s son, who was granted a power of appointment in favor of his mother’s “descendants,” thwarted his mother’s intent by initiating the adoption for the sole purpose of allowing the adoptee to take under the trust); Minary v. Citizens Fid. Bank & Trust Co., 419 S.W.2d 340, 343 (1967) (describing the question of whether an adult adoptee should inherit as “a situation wherein we must choose between carrying out the intent of deceased testators or giving a strict and rigid construction to a statute which thwarts that intent” (emphasis added)); In re Nowels Estate, 128 Mich.App. 174, 339 N.W.2d 861, 866 (1983) (disinheriting an adult adoptee where “it would have been [the testatrix’s] probable desire and intent that the adult adopted son should not take”); Matter of Nicol’s Estate, 152 N.J.Super. 308, 377 A.2d 1201, 1207 (1977) (disinheriting an adult adoptee where such adult adoption would be outside of the testator’s contemplation and contrary to the testator’s probable intent).

II

Finding imposition of a judge-imposed version of public policy inappropriate, we next address the propriety of the trial court’s decision to grant summary judgment. “ ‘The standard of review of an order granting summary judgment is de novo.’ ” Corya v. Sanders, 76 So.3d 31, 33 (Fla. 4th DCA 2011) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006)). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” Id. “ ‘If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.’ ” Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007) (quoting Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979)).

Section 736.04113, Florida Statutes (2011), provides the legal framework for Harriet’s action. Section 736.04113(1)(b) authorizes a court to modify the terms of an irrevocable trust where “[b]ecause of circumstances not anticipated by the set-tlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust.” If such grounds are established, a court is authorized to modify the trust by, among other things, “[a]mend[ing] or changing] the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust.” § 736.04113(2)(a), Fla. Stat. (2011). As for the evidence that a court should consider in an action under section 736.04113, subsection (3)(a) provides,

In exercising discretion to modify a trust under this section:
(a) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.

The fact issue that controls this case is the Settlor’s intent in creating the Trust. Generally, the intent of a party in creating a document is “ ‘a question of fact that should not be decided on a summary judgment.’ ” Hodge v. Cichon, 78 So.3d 719, 723 (Fla. 5th DCA 2012) (quoting Sanders v. Wausau Underwriters Ins. Co., 392 So.2d 343, 345 (Fla. 5th DCA 1981)). Here, the terms of the Trust unambiguously place no limitations on a “legally adopted” person becoming a beneficiary under the Trust.

Absent any provision to the contrary, where a trust is created and executed in Florida, the law presumes that the settlor expected Florida law to apply and Florida law permits adult adoptions. See Strochak v. Fed. Ins. Co., 717 So.2d 453, 454-55 (Fla.1998) (applying presumption to Florida insurance policy). To overcome this presumption, Harriet must establish the existence of a latent ambiguity in the trust which occurs “where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Barnwell v. Miami-Dade Cnty. Sch. Bd., 48 So.3d 144, 145-46 (Fla. 1st DCA 2010) (citation omitted).

The lawyer who drafted the Trust did not discuss adult adoptions with the Settlor. In the absence of ironclad evidence of the Settlor’s express declaration of opposition to adult adoptions, the Set-tlor’s intent turns on the credibility of witnesses, the weight to be given to their testimony, and the subtle nuances of the Settlor’s beliefs about the significance of family bloodlines. Whether this adult adoption “substantially impair[s] the accomplishment of a material purpose of the trust” is an issue inappropriate for resolution on summary judgment. § 736.04113(l)(b), Fla. Stat. (2011).

Ill

Finally, Dianna challenges the trial court’s finding that Pennsylvania’s adoption laws, due to lack of notice to financially interested parties, should not be given full faith and credit in Florida. Under the Full Faith and Credit Clause, “[c]ourts in every jurisdiction are required to give judgments entered in sister states the full faith and credit of the law.” In re Estate of O’Keefe, 833 So.2d 157, 160 (Fla. 2d DCA 2002) (citations omitted). “To give full faith and credit to a foreign judgment is to give it the same effect that the foreign state would have given it.” Atwell v. Atwell, 730 So.2d 858, 860 (Fla. 1st DCA 1999). As the second district has explained:

In interpreting the Full Faith and Credit Clause, the United States Supreme Court has held that “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” Baker v. Gen. Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). Further, the Court held that there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state. Id.

Embry v. Ryan, 11 So.3d 408, 409-10 (Fla. 2d DCA 2009). Thus, “[w]here a party has had notice and opportunity to be heard and the foreign court has satisfied Florida’s jurisdictional and due process requirements their orders will be entitled to comity.” Nahar v. Nahar, 656 So.2d 225, 230 (Fla. 3d DCA 1995) (footnote omitted); see also Finstuen v. Crutcher, 496 F.3d 1139, 1141 (10th Cir.2007) (“We hold that final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation.”).

Section 63.192, Florida Statutes (2011), provides that Florida courts must recognize the adoption decrees of other states:

A judgment ... establishing the relationship [of parent and child] by adoption ... issued pursuant to due process of law by a court or authorized body of any other jurisdiction within or without the United States shall be recognized in this state, and the rights and obligations of the parties shall be determined as though the judgment or decree were issued by a court of this state.

(Emphasis added).

Although rare, an exception to this blanket rule exists where the laws governing the adoption in the foreign state are so different as to be “repugnant to the laws or policy of the state of Florida upon the subject.” Mott v. First Nat’l Bank of St. Petersburg, 98 Fla. 444, 124 So. 36, 37 (1929) (citations omitted); see also Harris Inv. Co. v. Hood, 123 Fla. 598, 167 So. 25, 29 (1936) (describing the exception to the full faith and credit clause for a conflict in public policy as “narrow”). However, “[lightweight contrary policies in one state will not counterbalance the top-heavy compulsion of the full faith and credit clause of the federal constitution to observe and enforce the judgments of another state.” State of Minn. v. Taran, 164 So.2d 893, 894 (Fla. 3d DCA 1964).

A “repugnant” policy or law is a serious departure from core Florida values. By way of example, in Kupec v. Cooper, 593 So.2d 1176, 1178 (Fla. 5th DCA 1992), cited by the trial court, the fifth district declined to give full faith and credit for a German adoption since the “adoption” consisted only of obtaining a new birth certificate without judgment by a court of law. Likewise, in Tsilidis v. Pedakis, 132 So.2d 9, 13 (Fla. 1st DCA 1961), the first district chose not to acknowledge a Greek adoption of an adult since the type of adoption employed was expressly prohibited under Florida law at the time.

In the case at hand, Pennsylvania’s adoption statute procedurally differs from Florida law in that notice is not required to be given to financially interested parties. See 23 Pa.C.S.A. § 2713. Section 63.182(2)(a), Florida Statutes (2011), sets the notice requirements for persons other than those “expressly entitled to be given notice of an adoption” under Chapter 63, stating:

[ T]he interest that entitles a person to notice of an adoption must be direct, financial, and immediate, and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment. A showing of an indirect, inconsequential, or contingent interest is wholly inadequate, and a person with this indirect interest lacks standing to set aside a judgment of adoption.

Even under Florida’s statute, Harriet would not have been entitled to notice of the Pennsylvania adoption, since she did not stand to “gain or lose by the direct legal operation and effect of the judgment.” Id. Harriet would be entitled to inherit a portion of Dianna’s share upon Dianna’s death only if Dianna is not survived by “issue” within the meaning of the Trust. Harriet’s interest is thus “indirect, inconsequential, or contingent” within the meaning of the statute.

Harriet’s indirect and contingent interest in the Pennsylvania adoption contrasts sharply with the significant interest of the settlor’s children in Goodman, - So.3d -, 2013 WL 1222944, 38 Fla. L. Weekly D696. In that case, the settlor’s children were beneficiaries of an irrevocable trust, which provided that all of the settlor’s children were “to share equally in the corpus of the trust.” Id. at *1. The settlor later adopted his 42-year-old girlfriend, the effect of which was to immediately give the girlfriend “a $5 million testamentary power of appointment ... and continued distributions throughout her lifetime, valued at an estimated $8.75 million.” Id. The third district held that the children were entitled to notice under section 63.182(2)(a) because the girlfriend adoption “directly, immediately, and financially impacted the children” by decreasing their interest in the trust “from one-half to one-third.” Id. at *2-3. As a result of the failure to give the notice required by statute, the third district reversed the adoption judgment. Id. at *4.

Where Harriet would not have been entitled to notice of the adoption even under Florida’s statute, it can hardly be said that Pennsylvania’s adoption procedure is so “repugnant” that the adoption is not entitled to full faith and credit in Florida. Moreover, Pennsylvania’s absence of notice requirements for persons with a direct financial interest in an adoption does not render Pennsylvania’s adoption practice “repugnant” to Florida. A state’s different view of which parties are proper or necessary in a lawsuit is not a basis for denying full faith and credit to that state’s judgment. See, e.g., Taran, 164 So.2d at 895 (“The fact that Florida may have a different rule with reference to such immunity from process in proceedings initiated in this state is not of itself a reason to reject as unworthy of full faith and credit a judgment of a sister state whose holding is otherwise.” (footnote omitted)); Boardwalk Regency Corp. v. Hornstein, 695 So.2d 471, 471 (Fla. 4th DCA 1997) (holding that “Florida courts are obligated by the Full Faith and Credit Clause to recognize judgments which have been validly rendered in the courts of sister states, including those based on gambling debts”).

The final judgment is reversed and remanded to the circuit court for further proceedings.

WARNER and LEVINE, JJ., concur.

      . Applicable to Family Trust B, Article VII(B)(2) provides:
      Upon the death of my child, the then remaining net trust assets shall be distributed pursuant to the exercise of that general power of appointment set forth in Subpara-graph (2)(b), below, and in default of a valid exercise of said general power of appointment, the remaining net trust assets shall be divided in shares for my child’s then living issue, per stirpes ...

      . Applicable to Family Trust A, Article VI(B)(2) provides:
      Upon the death of my child, the then remaining net trust assets shall be divided in shares for my child’s then living issue, per stirpes ...

      . The default judgments were eventually entered once the beneficiaries failed to respond.

      . Under this view, by creating Family Trust, the Settlor "expressed a clear intent ... to give each of his children the power to divert a portion of the child’s share outside of the family bloodline through a testamentary power of appointment.”

      .Furthermore, the motion contended that the Settlor "was an inflexible, politically incorrect individual who did not welcome strangers into his family.” Therefore, the motion asserted that Family Trust A was created not for tax purposes, but to maintain wealth within the Settlor’s lineage.

      . As Dianna argues, the nature of Dianna’s relationship with the adoptee is relevant to show that the Settlor would have "fully supported and embraced the adoptee” had he known of the adoption.

      . Section 63.042(1), Florida Statutes (2011) provides that "[a]ny person, a minor or an adult, may be adopted.”

      . For example, some states specifically prohibit adult adoptions motivated by inheritance objections. See, e.g., Ala.Code § 26-1OA-6 cmt. (2011) ("Adult adoptions for inheritance purposes provided for in ... the Alabama Code [were] repealed.”). Likewise, "[o]ther states distinguish between adult and minor adoptees under state intentestacy and glass gift laws.” Sarah Ratliff, Adult Adoption: Intestate Succession and Class Gifts Under the Uniform Probate Code, 105 Nw. U.L.Rev. 1777, 1792 & n. 132 (2011) (citing Ind.Code § 29-l-6-l(d) (2011) as an example). Additionally, other states, such as New Jersey, set age restrictions such that adult adoptions "shall not be granted, unless the adopting parent or parents are at least 10 years older than the person to be adopted." See N.J. Stat. Ann. § 2A:22-2 (West 2011).

      .The previous version of UPC § 2-705 provided as follows:
      (c) In addition to the requirements of subsection (a), in construing a donative disposition by a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent.

      . This statute provides:
      The court, in its discretion, may dispense with consents other than that of the adoptee to a petition for adoption when:
      (1) the adoptee is over 18 years of age; or
      (2) the adoptee is under 18 years of age and has no parent living whose consent is required.
      23 Pa.C.S.A. § 2713.


text:
    Jermaine VIRGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2309.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Rehearing Denied Aug. 30, 2013.

      Jermaine Virgo, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant, who was convicted of two counts of robbery with a firearm, appeals from the circuit court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. The defendant’s motion raised twelve grounds. We affirm without discussion the summary denial of grounds one through six, eight, nine, eleven, and twelve. However, we reverse the summary denial of grounds seven and ten. We remand for an evidentiary hearing on those two grounds only.

At the defendant’s trial, the state presented the following evidence. Two men with their faces covered robbed a convenience store, one of its employees, and a customer. One of the men had a gun. He wore a cap pulled down and a bandana pulled up over his nose, so that only his eyes could be seen. The other wore a knit ski cap with the ski mask pulled down to his chin. The store’s videotape showed the men’s clothing.

Four days after the convenience store robbery, the police pursued a truck involved in a separate incident. When the truck reached a dead end, the driver and a passenger fled on foot. The driver got away. However, the police caught the passenger. Within the truck, the police found clothes and the defendant’s driver’s license. The police determined that the truck was registered to the defendant.

Upon the passenger’s arrest, he confessed that he and the defendant committed the convenience store robbery four days earlier. The state called the passenger as a witness at trial. He testified that the clothes found in the truck were those which the defendant had worn during the convenience store robbery.

The state also called as a witness an officer involved in the pursuit. The officer testified that, during the pursuit, he saw the truck’s driver and it was the defendant.

The state also called the passenger’s sister as a witness. She testified that on the day of the pursuit, she was with the defendant when she received a call from her brother asking to be picked up. The defendant left in his truck to pick up her brother. The defendant later returned, but without his truck. The sister testified that two days after the pursuit, she overheard the defendant claiming to have been playing basketball on the day of the pursuit.

The defense did not call any witnesses. Defense counsel did not quarrel with the state’s evidence that the defendant was in the truck on the day of the pursuit.

A jury convicted the defendant of two counts of robbery with a firearm. We affirmed the defendant’s direct appeal with a written opinion. Virgo v. State, 931 So.2d 1010 (Fla. 4th DCA 2006). Our opinion, among other things, concluded that the evidence of the defendant’s flight from the police on the day of the pursuit was admissible to show the defendant’s consciousness of guilt for the convenience store robbery four days earlier. Id. at 1013. Our opinion further concluded that the passenger’s sister’s testimony concerning the defendant’s attempt to fabricate an alibi for the day of the pursuit also was admissible to show the' defendant’s consciousness of guilt. Id.

In ground seven of the defendant’s rule 3.850 motion, the defendant argued that his trial counsel was ineffective for failing to seek to excuse an allegedly sleeping juror. According to the defendant, during the trial, he complained to his counsel about a juror closing his eyes, nodding, and sleeping. His counsel told him that the juror was just resting his eyes. However, when the defendant continued to see the juror struggling to stay awake, the defendant again complained to his counsel. His counsel told him that the court would not look favorably on such a complaint, and that the jurors might perceive the complaint as an attack on all of them. The defendant argued that his counsel’s failure to seek to excuse the juror prejudiced him because the juror missed important testimony. The state responded that defense counsel’s refusal to act was a tactical decision.

We find the record does not conclusively refute the defendant’s claim that counsel was ineffective for failing to object to the allegedly sleeping juror. Therefore, we remand for an evidentiary hearing on that claim. See Reynolds v. State, 99 So.3d 459, 481 (Fla.2012) (‘Whether trial counsel had a tactical or strategic reason for not pursuing the dismissal of [a sleeping] juror is a determination that usually should require an evidentiary hearing.”) (citation omitted); Williams v. State, 80 So.3d 1102, 1103 (Fla. 4th DCA 2012) (reversing and remanding for further proceedings the defendant’s claim that his counsel was ineffective for failing to notify the trial court that a juror was sleeping during critical testimony).

In ground ten of the defendant’s rule 3.850 motion, the defendant argued that his counsel was ineffective for failing to call an alleged alibi witness who would testify that the defendant was playing basketball when the pursuit occurred. According to the defendant, his counsel had the witness’s name and address, and the witness was at the trial, expecting to be called. The defendant argued that his counsel’s failure to call the alleged alibi witness prejudiced him because the state used his alleged involvement in the pursuit to show his alleged consciousness of guilt for the convenience store robbery four days earlier. The state responded that while the alleged witness may have attempted to provide the defendant with an alibi on the day of the pursuit, the witness would not have provided the defendant with an alibi for the convenience store robbery four days earlier.

We find that if the alleged alibi witness testified that the defendant was playing basketball on the day of the pursuit, then such evidence may have been relevant to the state’s argument that the defendant’s alleged involvement in the pursuit showed his consciousness of guilt for the convenience store robbery four days earlier. Although we recognize the possibility that defense counsel strategically may not have called the alleged alibi witness because the witness’s testimony was not credible in light of the totality of the evidence, the record does not conclusively refute the defendant’s claim that counsel was ineffective for failing to call the alleged alibi witness. Therefore, we remand for an evi-dentiary hearing on this claim as well. See Anthony v. State, 660 So.2d 374, 376 (Fla. 4th DCA 1995) (“The determination that defense counsel’s actions not to raise an alibi defense or call alibi witnesses were tactical decisions is best made after an evidentiary hearing unless the record conclusively refutes the allegations.”) (citations omitted).

Based on the foregoing, we remand for an evidentiary hearing on grounds seven and ten only.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    JAY ROCK, INC., successor in interest to Valley Bank, a Florida corporation, Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY, Carolina Consulting Corp., a Florida corporation, Catherine Polselli, an individual, Internal Revenue Service, Berkowitz Dick Pollack & Brant Certified Public Accountants & Consultants, LLP, a Florida limited liability partnership, Comvest Capital, LLC, a Florida foreign liability company, Branch Banking & Trust Company, successor in interest to Colonial Bank, Wells Fargo Equipment Finance, Inc., and Wachovia Bank, N.A., Appellees.
    No. 4D12-4495.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Rehearing Denied Sept. 20, 2013.
    Stuart Jay Levine and Heather A. De-Grave of Walters Levine Klingensmith & Thomison, P.A., Tampa, for appellant.
    E.A. “Seth” Mills, Jr. and Ryan J. Weeks of Mills Pasker Divers, Tampa, for Appellee-Carolina Casualty Insurance Company.
   PER CURIAM.

Affirmed. See Morris v. Amer. Bankers Ins. Co. of Fla., 184 So.2d 906 (Fla. 3d DCA 1966).

WARNER, STEVENSON and TAYLOR, JJ., concur.