author: GERBER, J.

text:
    B.E., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-776.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The juvenile appeals the circuit court’s revocation of his probation. He primarily argues that the court erred in: (1) finding that he violated one probation condition based solely upon hearsay; and (2) revoking his probation based upon certain uncharged violations. We agree with both arguments. Thus, we reverse the revocation of the juvenile’s probation and remand for the circuit court to determine whether it would have revoked the juvenile’s probation and committed the juvenile to a level six facility based on the only supported violation of probation.

The juvenile’s probation conditions included, among other things: (1) completing community service hours; (2) completing an anger management program; (3) attending school every day; (4) living in his parents’ home and accepting reasonable controls; (5) obeying all reasonable household rules; and (6) obeying all laws.

The state filed an affidavit for violation of probation. The affidavit alleged that the juvenile failed to obey all laws by committing the offense of possession of marijuana in an amount less than twenty grams. The affidavit also alleged that the juvenile failed to obey his parents’ reasonable controls “as evidenced by email provided by the [juvenile’s] mother.”

At the violation of probation hearing, the state first called the juvenile’s probation officer. Despite the affidavit’s reference to only two charged violations, the officer initially testified as to two uncharged violations, namely that the juvenile faded to complete any community service hours and failed to complete an anger management program.

The probation officer then testified about the affidavit’s charged violation that the juvenile failed to obey his parents’ reasonable controls. When the probation officer began testifying about his communications with the juvenile’s mother, the juvenile’s counsel objected to such communications as being hearsay. The state responded that hearsay was admissible. The court overruled the objection. The probation officer then read from the mother’s email. According to the mother’s e-mail, the juvenile stayed out one night without permission and had been skipping school. However, the state did not call the mother as a witness to verify the e-mail’s contents.

The state next called a sheriffs deputy to testify regarding the affidavit’s alleged violation of failing to obey all laws by committing the offense of possession of marijuana. The deputy testified that he personally discovered marijuana in the juvenile’s possession and arrested the juvenile on that charge.

The state then rested. The juvenile declined to introduce any testimony or other evidence.

During closing arguments, the state first discussed the uncharged violations that the juvenile failed to complete any community service hours and failed to complete an anger management program. The state next discussed the mother’s e-mail stating that the juvenile stayed out one night without permission. Finally, the state discussed the deputy’s testimony that the juvenile possessed marijuana.

After closing arguments, the circuit court orally found that the juvenile willfully and substantially violated his probation. In its oral findings, the court stated that the juvenile failed to obey his parents’ reasonable controls, did not cooperate with his anger management therapist, did not attend school, did not complete any community service hours, and broke the law. At a later hearing, the court entered a disposition order committing the juvenile to a level six facility, to be followed by conditional release.

This appeal followed. The juvenile primarily argues that the circuit court erred in: (1) finding that he failed to obey his parents’ reasonable controls based solely upon hearsay in the form of the mother’s e-mail; and (2) revoking his probation based upon the uncharged violations of failing to complete any community service hours and failing to complete an anger management program.

We agree with both arguments. See J.B. v. State, 84 So.3d 401, 402 (Fla. 4th DCA 2012) (reversing the trial court’s finding of a violation of probation based on the appellant’s failure to complete the required community service hours because that finding was based solely on hearsay); Howard v. State, 883 So.2d 879, 880 (Fla. 4th DCA 2004) (“It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation.”).

Based on the foregoing, we reverse the circuit court’s revocation of the juvenile’s probation. We remand for the court to determine whether it would have revoked the juvenile’s probation and committed the juvenile to a level six facility based solely on the violation of failing to obey all laws by committing the offense of possession of marijuana. See J.B., 84 So.3d at 402 (“Accordingly, we remand for the trial court to reconsider whether it would have imposed the same sentence if faced with only the supported violation.”). If the court again revokes the juvenile’s probation based solely on the law violation, we remind the court to enter a written order specifying the probation condition which the juvenile was found to have violated. See A.T.J.F. v. State, 78 So.3d 57, 57 (Fla. 4th DCA 2012) (“[W]e remand to the trial court for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated.”).

We conclude without further discussion that the juvenile’s remaining argument— that the circuit court allegedly departed from its neutral role during the violation of probation hearing — lacks merit.

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

MAY, C.J., and LEVINE, J., concur.


source: Caselaw Access Project

author: DAMOORGIAN, J.

license: Public Domain

text:
    Vincent COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-777.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Vincent Collins (“Defendant”) raises two issues on appeal with respect to his judgment and sentence for possession of cocaine: 1) whether the trial court wrongfully denied his motion to suppress evidence of the cocaine because the cocaine was “seized as the result of an unlawful detention and/or warrantless exploratory search,” and 2) whether the statute charging Defendant with drug possession is unconstitutional. As to the second issue, we affirm without further comment based on the holding of State v. Adkins, 96 So.3d 412 (Fla.2012). However, as to the first point, we hold that the trial court erred in denying Defendant’s motion to suppress the cocaine because the investigating officer did not have reasonable suspicion to justify stopping and detaining Defendant. Accordingly, we reverse the ruling on the motion to suppress the drug evidence.

Our holding requires a recitation of the facts garnered through the testimony of the arresting officer at the suppression hearing. At about 1:00 P.M. on the day in question, the officer, who was in uniform and driving a marked vehicle, was dispatched to an apartment complex based on an anonymous tip that two juveniles were loitering around the complex and that narcotics were possibly involved. Upon arriving at the complex, the officer encountered Defendant, who was twenty-one years old at the time, and another young man. Both young men informed the officer that they were visiting a Mend who lived in one of the apartments. The officer pointed out that there was a “no trespassing” sign on the premises, and asked the men to “stand by” while he went to make sure that they were guests of one of the residents. The officer testified that Defendant and the other man were not free to leave. While he was knocking on the door of the resident’s apartment (which no one answered), the officer witnessed Defendant take something out of his pocket and drop it on the ground. That substance turned out to be cocaine, and Defendant was arrested and charged with possession of cocaine.

Defendant argues that the cocaine should have been suppressed because the evidence showed that the arresting officer did not have enough reasonable suspicion to justify stopping and detaining Defendant. The State counters that the anonymous phone call coupled with the officer’s independent observations were sufficient to justify the stop and brief detention. In the alternative, the State argues that the encounter between the officer and Defendant was consensual.

When reviewing a trial court’s order on a motion to suppress evidence, the appellate court should defer to the trial court’s factual findings but review its legal conclusions de novo. Castella v. State, 959 So.2d 1285, 1289 (Fla. 4th DCA 2007).

The Florida Supreme Court described the three levels of police-citizen encounters in Popple v. State, 626 So.2d 185, 186 (Fla.1993):

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
[T]he third level of police-citizen encounters involves an arrest which must be supported by probable eause that a crime has been or is being committed.

Id. (Internal citations omitted.)

“When determining whether a particular encounter is consensual, the Court must look to the ‘totality of the circumstances’ surrounding the encounter to decide ‘if the police conduct would have communicated to a reasonable person that the person was free to leave or terminate the encounter.’ ” Taylor v. State, 855 So.2d 1, 15 (Fla.2003) (quoting Voorhees v. State, 699 So.2d 602, 608 (Fla.1997)). Here, there is no doubt that a reasonable person would not have felt free to leave or terminate the encounter—indeed, the arresting officer testified that Defendant was not free to leave after the officer told him to stand by while he investigated. Accordingly, we reject the State’s contention that the encounter was consensual, and hold that it was an investigatory stop.

Next, we must determine if the investigatory stop was permissible. “A stop and/or brief detention of a person for investigatory purposes is permissible if an officer has a well-founded suspicion (supported by articulable facts) of criminal activity, even if the officer lacks probable cause. The totality of the circumstances must be taken into account when determining whether an officer had a reasonable suspicion of criminal activity to justify the investigatory stop.” Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006) (citations omitted).

The State relies on the facts that the officer received an anonymous call reporting loitering and possible narcotics activity and that there was a “no trespassing sign” at the apartment complex in support of its argument that the officer did have enough reason to perform an investigative stop. This argument is misguided.

The law is well established that an anonymous call can provide a sufficient basis for an investigatory stop only if the details provided in the call are corroborated by independent police work giving the call a sufficient indicia of reliability. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Thus, if the call does not provide sufficient details that can be corroborated, it cannot be the basis of an investigatory stop unless the police officer witnesses additional suspicious activity. See, e.g., J.L. v. State, 727 So.2d 204 (Fla.1998), aff'd, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (anonymous call that a black male wearing a plaid shirt at a bus stop had a gun was not enough to justify law enforcement’s investigative stop when officers found a black male wearing a plaid shirt at the bus stop, but did not observe him engaging in any criminal activity); State v. Kelly, 790 So.2d 563 (Fla. 3d DCA 2001) (anonymous tip that three black males driving a grey Acu-ra were going to commit a home invasion did not provide sufficient information of criminal activity for police to corroborate in order to justify investigative stop).

Here, the information provided in the anonymous call was bare bones and lacked any degree of detail. The officer testified that the caller informed him only that two juveniles (no race, no gender, no other description) were hanging out at an apartment complex and that there may be narcotics involved. This information was not sufficient, even if corroborated, to justify an investigatory stop. Further, this .information was not even corroborated by the officer’s investigation—Defendant and the other man with him were not juveniles, and the officer did not observe any narcotics before he performed the investigatory stop. Thus, the only way that the investigative stop could be justified is if the officer independently witnessed activity giving rise to a reasonable suspicion that a crime was being committed.

A person’s mere presence on a property is not sufficient to give rise to a reasonable suspicion that the crime of trespass is being committed and cannot be the basis for an investigatory stop. For example, in the factually similar Leroy v. State, 982 So.2d 1250 (Fla. 1st DCA 2008), the court held that police officers did not have sufficient reasonable suspicion to detain a suspect for a trespass investigation. Id. at 1253. There, police patrolling an apartment complex with posted “no trespassing” signs encountered a man driving through the parking lot at an extremely slow rate of speed. Id. at 1252. The officers asked the man the purpose of his visit, to which he replied he was visiting his cousin. Id. The police then stood close to the man’s car and asked him to consent to a pat-down. Id. The man agreed, and police discovered narcotics on his person. Id. The court held that the evidence obtained during the course of the investigatory stop should have been suppressed because the man’s mere presence on the property, although late at night and in a high crime area with “no trespassing” signs posted, was not sufficient to establish reasonable suspicion of trespass. Id. at 1253. See also Gestewitz v. State, 34 So.3d 832 (Fla. 4th DCA 2010) (“A detention for the purpose of issuing a trespass warning on behalf of a private owner — absent other circumstances giving rise to a reasonable suspicion of other criminal activity — -is a consensual encounter.”); Slydell v. State, 792 So.2d 667, 672 (Fla. 4th DCA 2001) (“We do not agree that an officer’s bare suspicion that a person is trespassing, even when coupled with an agreement between the property owner and the police for officers to stop and investigate persons whom the officers do not recognize as residents, is sufficient for an investigatory stop and detention.”); Williams v. State, 910 So.2d 368, 371 (Fla. 5th DCA 2005) (“[Rjeasonable suspicion of trespass usually involve[s] more than mere presence on property.”).

In Defendant’s case, the officer had no basis for suspecting that Defendant and the other man with him were committing the crime of trespass other than their mere presence at the apartment complex with posted “no trespass” signs. This was legally insufficient to justify the officer’s investigatory stop. Accordingly, we hold that the cocaine was the product of an illegal stop and should have been suppressed.

Reversed and Remanded.

STEVENSON and CONNER, JJ., concur.


author: PER CURIAM.

text:
    Terrell DOWNING, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2539.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Florida v. Harris, - U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013); State v. Adkins, 96 So.3d 412 (Fla. 2012).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Davee FEAZELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2714.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s motion to withdraw plea post-sentencing in this case was untimely filed. See Fla. R.Crim. P. 3.170(l) (motion must be filed within thirty days of date sentence rendered). As a result, the trial eourt never had jurisdiction to rule on the merits of the motion. Bermudez v. State, 901 So.2d 981, 984 (Fla. 4th DCA 2005); see also Golden v. State, 84 So.3d 396 (Fla. 1st DCA 2012); James v. State, 12 So.3d 1290 (Fla. 2d DCA 2009); McKnight v. State, 964 So.2d 803, 804 (Fla. 3d DCA 2007); Dayton v. State, 867 So.2d 647 (Fla. 5th DCA 2004). On remand, the order denying appellant’s motion shall be modified to reflect denial was due to lack of jurisdiction.

Affirmed and remanded with directions.

WARNER, STEVENSON and DAMOORGIAN, JJ., concur.


text:
    Dexter B. LOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3029.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Dexter B. Logan, Lewisburg, Pennsylvania, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice to the appellant’s right to file a properly sworn rule 3.850 motion before the two-year time limitation following the direct appeal mandate expires. See Fla. R.Crim. P. 3.850(b); Lawson v. State, 754 So.2d 86, 86 (Fla. 4th DCA 2000); see also Fla. R.Crim. P. 3.987 (providing two forms of the oath for use in rule 3.850 motions).

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


text:
    David LAKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3464.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    David Lake, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion to correct illegal sentence. Appellant has filed numerous postconviction challenges and appeals and was previously warned against frivolous filing in case number 4D10-5186. In this case, because of appellant’s ongoing abuse of postconviction process, we issued an order to show cause pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We conclude that sanctions are appropriate.

In 1998, appellant brutally attacked a woman inside a service station beating her unconscious and slamming her head into the floor. The victim suffered severe injuries and spent three days in the hospital. He then took her belongings, including her car keys, and fled with her car. He entered a plea in 1999 to carjacking, robbery, and aggravated fleeing and eluding. This court affirmed the convictions and sentences in 2001. Lake v. State, 793 So.2d 963 (Fla. 4th DCA 2001) (table) (case number 4D99-3929).

In the Rule 3.800(a) motion on appeal, appellant did not allege an “illegal sentence” that can be corrected at any time, but instead attempted to present an untimely, successive, and procedurally barred challenge to his plea. Appellant alleged “manifest injustice” because during the factual basis announced for his June 1999 plea the prosecutor at certain points misstated the name of the victim. This same claim was raised and rejected on direct appeal, and the repetition of the claim in this posture is devoid of any arguable merit.

Appellant’s response to this court’s order to show cause maintains his frivolous allegation that he was convicted of an “uncharged” crime because of the prosecutor’s slip of the tongue in reciting the name of the victim during certain points of the factual basis. Appellant does not excuse his ongoing abuse of postconviction process. Appellant has initiated eleven cases in this court since his conviction, including two appeals of Rule 3.850 denials, an appeal of a habeas corpus denial, and four appeals from Rule 3.800(a) denials. None of appellant’s postconviction motions and appeals have been found to have merit.

“Enough is enough.” Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995). Appellant’s abuse of postconviction process interferes with the right of access to court for others and damages the remedy. See McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010).

Accordingly, the Clerk of this Court is directed to no longer accept any paper filed by David A. Lake unless that paper has been signed by a member in good standing of The Florida Bar and that member certifies that a good faith basis exists for each claim presented. Further, we direct the Clerk to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2012).

Affirmed. Sanctions imposed.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    James WEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4128.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    James West, Mayo, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s untimely, successive, and frivolous postconviction challenge. Appellant filed a petition for writ of habeas corpus in the trial court attempting to challenge his March 1999 conviction for robbery.

A petition for writ of habeas corpus may not be used as substitute for a Rule 3.850 motion. See Fla. R.Crim. P. 3.850(0; Baker v. State, 878 So.2d 1236, 1241 (Fla.2004). A postconviction motion would be untimely and successive in this case as petitioner has already filed numerous postconvietion challenges and appeals. Appellant has now initiated fifteen cases in this court.

Appellant claims that the trial court lacked jurisdiction because the prosecutor had allegedly not received sworn testimony from a material witness before filing the information. This claim is frivolous. Norman v. State, 110 So.3d 472, 472 (Fla. 4th DCA 2013); Sears v. State, — So.3d -(Fla. 4th DCA 2013); Collins v. State, 97 So.3d 305 (Fla. 4th DCA 2012); Logan v. State, 1 So.3d 1253, 1254 (Fla. 4th DCA 2009); Logan v. State, 21 So.3d 917 (Fla. 4th DCA 2009).

The clerk is directed to send a certified copy of this opinion to the appropriate institution for disciplinary procedures. § 944.279(1), Fla. Stat. (2012). Appellant is cautioned that any further frivolous or malicious filing will result in this court imposing the sanction of no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed; Appellant referred to prison officials.

STEVENSON, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Alan ROTH, Appellant, v. CITIMORTGAGE, INC., successor by merger to Principal Residential Mortgage, Inc., Appellee.
    No. 4D13-944.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Rory Rohan, Pembroke Pines, for appellant.
    Daniel C. Consuegra, Tampa, for appel-lee.
   PER CURIAM.

Appellant, Alan Roth, appeals the trial court’s order denying Mr. Roth’s motion to quash service. Appellee, CitiMortgage, Inc., filed a foreclosure complaint against Alan Roth, Candace Roth, and others on October 9, 2012. Alan Roth was served by substitute service on his wife, Candace. Mr. Roth filed a motion to quash service of process on February 19, 2013, attaching two affidavits, his own and his wife’s. Both affidavits state that Mr. Roth vacated the marital home (where he was served by substitute service) on or about March 1, 2012. Appellee concedes that the denial of Mr. Roth’s motion to quash service was error.

Accordingly, appellee requests this Court to accept this confession of error and remand with directions to the trial court for it to: (1) vacate its order denying Mr. Roth’s motion to quash service of process; (2) enter an order granting Mr. Roth’s motion to quash service of process; and (3) conduct further proceedings. We accept the appellee’s confession of error. We reverse and remand this cause to the trial court for further proceedings consistent herewith.

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


text:
    Shelly Ann WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-645.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Shelly Ann Watts, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Shelly Ann Watts appeals the summary denial of her amended postconviction motion alleging ineffectiveness of trial counsel. See Fla. R. Crim. P. 3.850. We reverse as to two claims raised and affirm the rest without comment.

Following a jury trial, Watts was convicted of one count of trafficking in hydro-codone (28-30 grams) and one count of delivery of diazepam. She was sentenced to twenty-five years’ imprisonment, with a minimum mandatory sentence of twenty-five years’ imprisonment (for trafficking) and five years’ imprisonment (for sale of diazepam) to run concurrently.

At trial, to support its argument for conviction, the state claimed that Watts afforded her lifestyle from illegally selling prescription drugs, pointing to her expensive vehicle without any proof of a legal source of income by which she could afford it, as her employment would not provide sufficient income for such a purchase.

Watts argued that trial counsel failed to produce evidence of her additional work as a promoter of. Jamaican music artists which would have shown, beyond her own testimony, how she could have afforded a Mercedes or Escalade on a pharmacy technician’s salary. Because the record before us does not refute Watts’ claim of prejudice resulting from the state’s characterization of her, we remand for the trial court to attach portions of the record conclusively refuting the claim or an eviden-tiary hearing on the matter.

As to Watts’ contention that she should be afforded an opportunity to amend a deficient claim regarding her son’s availability to testify in her defense, the state concedes that she should be allowed to amend in order to state a legally sufficient claim. We reverse this ground pursuant to Spera v. State, 971 So.2d 754, 761-62 (Fla.2007).

Affirmed in part, reversed in part, and remanded.

WARNER, LEVINE and CONNER, JJ., concur.


author: GROSS, J.

text:
    Michael Anthony MURDOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2246.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.

      Carey Haughwout, Public Defender, Nan Ellen Foley and Stacey Kime, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Fresnel Atilus was shot and killed while operating his ice cream truck in Lake Park, Florida. At trial, the State’s theory of the case was that appellant, Michael Murdock, was guilty of first-degree murder and attempted robbery with a firearm as a principal. A jury found Murdock guilty as charged. We reverse because the police misinformed Murdock about his Fifth Amendment rights and failed to correct the misinformation before Murdock gave an incriminating statement.

There were no eyewitnesses to the actual shooting, but two witnesses saw men flee from the scene of the crime. The victim’s cousin saw two men run away from the ice cream truck after hearing shots fired; he then watched as they jumped into a parked car and drove away. Another resident who lived in an apartment overlooking the parked ice cream truck came outside after hearing shots fired, at which point she saw one man run away from the truck.

The deputy sheriff who first responded to the crime scene testified that the ice cream truck was “fortified” with locked doors and metal screens covering the windows. The deputy had to break a window and unlock a door to enter the truck. The crime scene investigator collected DNA and fingerprint evidence from the crime scene, but her testing did not link Mur-dock to the offense.

The primary evidence against Murdock came from his statements to the police. At the station house, a detective conducted two interviews with Murdock separated by a 20-minute break.

The first interview began at approximately 1:48 a.m. Before the detective read him his Miranda rights at the beginning of the interview, Murdock said he did not want to talk to the detective. The detective ignored the invocation, silenced Murdock, and continued the interrogation:

[Murdock]: ... But I just want to go home, man. I don’t wanna ... I don’t wanna talk to nobody until I know what’s going on.
[Detective]: So, you volunteered to come up here. Ok, let me lay it out for you-
[Murdock]: Yeah ... I want to know my situation — I wanna know the witness ... I wanna know-
[Detective]: Listen, I’m gonna be very frank with you.
[Murdock]: I want to say ... ya’ll won’t listen to my side. I know ya’ll got a job to do-
[Detective]: Listen, I can’t talk to you right now, okay? I want to talk to you but it’s hard for me to talk to you when you’re talking] over me.
You understand I want to hear everything you have to say. I’m not gonna ask you any questions. Okay. Here’s where you sit. You were driving the vehicle in which somebody entered the vehicle after a homicide, after they lit up a guy. They got into your vehicle and fled the scene. Okay? I’m not asking you questions, I’m telling you.
Okay? Right now, depending on what you tell me, determines your situation. And what I’m gonna do right now is I’m gonna read you your rights.

(Emphasis added).

Around 1:57 a.m., the detective read Murdock his Miranda rights. Mur-dock paused to inquire into his right to counsel:
[Murdock]: Yes, sir. Can you go back to that thing about the lawyer? I just said, yes, sir.
[Detective]: Okay. Which one?
[Murdock]: You said I ... uh ... you got [to] appoint me a lawyer?
[Detective]: Okay.
[Murdock]: Or something like that.
[Detective]: If you cannot afford a lawyer, you’re entitled to the presence and representation of court appointed lawyer before you make any statement and during any questioning.
[Murdock]: So I can talk to a lawyer before I talk to ya’ll?
[Detective]: Well, that means after you’re charged ... (talk over) ...
[Murdock]: Oh. Oh.
[Detective]: ... you’ll be given a Public Defender.
[Murdock]: See, that’s what I’m saying ... (talkover) ...
[Detective]: Okay? You’re not charged. Relax. I told you you’re not under arrest ... (talkover) ...
[Murdock]: Yeah. Yeah, I ain’t.

(Emphasis added). The detective thus misinformed Murdock that he could consult with an attorney only after he was charged.

By 2:30 a.m., Murdock became hysterical. He offered to implicate others in the crime if the detective would let him go home:

[Murdock]: God, God help me man! I didn’t do nothing, man! [Gets onto his knees, facing the wall and leaning his upper body onto the seat of the chair he has been sitting i[n] (praying) ].
[Detective returns to the room at 2:31 a.m.]
[Detective]: Are you praying? Have some water. It’s gonna be OK. I have one question for you: are you gonna help us find these two guys?
[Murdock]: Are ya’ll gonna release me?
[Detective]: Write it down. Cause the next words out of my mouth are gonna hurt you.
[Murdock]: Ya’ll are gonna release me? If I help ya’ll, are you gonna release me?
[Detective]: Hmm-mmm, No.
[Murdock]: So what am I going to jail for?
[Detective]: First degree murder. Now it’s up to you how you want to play your cards. Do you want to show yourself as a person who is sorry for what he’s done — which you’re much doing because you’re crying. I don’t know if it’s for yourself or for this guy and his 5 or 6 kids.

Soon thereafter, Murdock asked to stop the interview. The detective, however, leaned on Murdock for more information:

[Murdock]: Alright, can I talk to you tomorrow ?
[Detective]: I’m gonna give you my business card, if you want to contact me tomorrow, you can contact me ... But, you’re going to be given a public defender in the morning.
[Murdock]: Why?
[Detective]: Because we’re going to book you.
[Murdock]: But, I just need time to ...
[Detective]: We all need time buddy. The time you need is the next five minutes before we leave here and go back up to Lake Park. This is your magic five minutes, buddy. Either cooperate ... and show that you’re trying to help and that you didn’t mean for this to happen cause you were supposed to be just the getaway driver ... or you swallow all that information you have—
[Murdock]: But you said, when you read me my rights, I don’t have to talk right now. You said I could talk later.
[Detective]: That’s one of your rights. I explained that to you.
[Murdock]: And I said, ‘Can I talk to you later?’ Did I not sir? And you said, “Yeah, you can talk later.’
[Detective]: When was that?
[Murdock]: Earlier.
[Murdock]: It don’t have to be today or nothing?
[Detective]: Ok, but you agreed to talk to me today.
[Murdock]: This stuff is over-whelming me ... my thoughts ... my head is not-
[Detective]: You don’t have to have thoughts right now ... you have to spit those two names out.

(Emphasis added).

Before concluding the interview, the detective emphasized to Murdock that the clock was ticking on his chance to “help himself’ in the case:

[Detective]: Sit down! Do you want to talk to me anymore?
[Murdock]: I’d rather talk to you tomorrow.
[Detective]: Ok. Well, ok, good luck with that. I have a feeling that goodbye tonight [will] be the last time that we talk about this case.

After the end of the first interview, Murdock was placed in a holding cell. Approximately 20 minutes later, Murdock asked to speak with the detective again. At 3 a.m., the detective conducted a second interview.

At the beginning of the second interview, the detective attempted to reread Murdock his Miranda rights, however, Murdock told the detective to forego the recitation, indicating that he would rely on his understanding of his rights from the previous interview. The detective declined the offer and reread Murdock his rights. One by one, Murdock stated that he understood each right.

In the second interview, Murdock incriminated himself, stating the following:

• Frank Collins and “Chopper” had called Murdock for a ride.
• Collins told Murdock they were “fixin’ to try and lick the ice cream truck.”
• Murdock thought Collins and Chopper wanted to rob the ice cream truck.
• Murdock picked up Collins and Chopper and drove them to the truck. He then waited for them in his car in a nearby alleyway.
• After hearing shots fired, Murdock saw Collins return with a gun in his hand.
• Murdock then dropped the men off at another location.

The trial court suppressed the first interview because the detective “gave an incorrect response” when Murdock inquired into his right to counsel. However, the trial court denied Murdock’s motion to suppress the second interview. After struggling with this “close question,” the trial court ruled that the State had overcome the defect from the first interview because the detective gave Murdock an uninterrupted rereading of his Miranda rights and Murdock indicated that he understood each right.

A jury convicted Murdock of first-degree murder and attempted robbery with a firearm. He was sentenced to concurrent terms of life and 15 years in prison.

This Court reviews a motion to suppress under a mixed standard of review. Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011). We are “bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence.” Rozzo v. State, 75 So.3d 409, 412 (Fla. 4th DCA 2011) (citing Pagan v. State, 830 So.2d 792, 806 (Fla.2002)); Hunter v. State, 32 So.3d 170, 173 (Fla. 4th DCA 2010). However, we “appl[y] a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues.” Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011).

“Both the United States and Florida Constitutions provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.” Ross v. State, 45 So.3d 403, 412 (Fla.2010) (citing U.S. Const. amend. V; art. I, § 9, Fla. Const.). “To give effect to the Fifth Amendment right against self-incrimination, an accused person has the right to have counsel present during a custodial interrogation, and police must clearly advise the accused of that right.” Moss v. State, 60 So.3d 540, 542 (Fla. 4th DCA 2011) (citing Miranda, 384 U.S. at 467-72, 86 S.Ct. 1602).

Further, “if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer.” State v. Glatzmayer, 789 So.2d 297, 303 (Fla.2001) (quoting Almeida v. State, 737 So.2d 520, 525 (Fla.1999)). The proscription against interrogating an accused who invokes the right to counsel “necessarily embraces a scenario ... [where] the defendant ... seek[s] basic information on which to make an informed decision concerning his right to counsel.” Almeida, 737 So.2d at 525 (discussing Traylor v. State, 596 So.2d 957, 966 (Fla.1992)).

A defendant may waive his Miranda rights, provided that the defendant does so “voluntarily, knowingly and intelligently.” Joe v. State, 66 So.3d 423, 425 (Fla. 4th DCA 2011) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). A determination of “a knowing and intelligent waiver of Miranda rights requires an examination of the totality of the circumstances.” Jennings v. State, 718 So.2d 144, 149 (Fla.1998). Police deception alone does not render a confession involuntary. Wyche v. State, 987 So.2d 23, 28 (Fla.2008); Fitzpatrick v. State, 900 So.2d 495, 511 (Fla.2005); see also Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (holding confession was voluntary despite police misrepresentation where the questioning was brief, and the defendant “was a mature individual of normal intelligence”). Rather, the misrepresentation must be “substantial [enough] ... to automatically render [the] confession involuntary.” Nelson v. State, 850 So.2d 514, 522 (Fla.2003).

The voluntariness of a waiver entails a two-part inquiry:

The first is whether the waiver was a free choice on the part of the defendant and not the product of intimidation, coercion, or deception. The second is whether the waiver was made with a full awareness of the nature of the right being abandoned and the consequences of the abandonment.

Louis v. State, 855 So.2d 253, 255 (Fla. 4th DCA 2003) (citing Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)) (emphasis added); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (discussing “the test of voluntariness”).

“The police may not use misinformation about Miranda rights to nudge a hesitant suspect into initially waiving those rights and speaking with the police.” Dooley v. State, 743 So.2d 65, 69 (Fla. 4th DCA 1999), approved of in Cuervo v. State, 967 So.2d 155, 165-66 (Fla.2007) (finding the prophylactic effect of Miranda to be rendered a nullity where police seek statements in a manner that misleads the accused’s understanding of his or her rights); see also Cribbs v. State, 378 So.2d 316, 318 (Fla. 1st DCA 1980) (suppressing statement where interrogating officer made “misleading and confusing” statement that accused was not entitled to counsel until the court appointed counsel or the state brought charges).

In this case, the police obtained Murdock’s statement in violation of Miranda. During the first interview, the detective gave Murdock bad information about when he had the right to consult with a lawyer. Murdock relied on the detective’s misrepresentation before the second interview, indicating that he remembered his rights from the previous interview and offering to stipulate to understanding them. During the second reading of the Miranda rights, the detective did nothing to correct the earlier misinformation. The detective skillfully used interrogation techniques to pressure Mur-dock and induce him to talk to the police before consulting with a lawyer. By telling Murdock that he was not entitled to an attorney until after he was charged, and by insinuating that by talking to him Mur-dock could help himself, the detective overcame Murdock’s reluctance to speak. Murdock did not have a full awareness of the rights he was abandoning, such that his waiver of them was not voluntary, knowing, and intelligent.

To allow the State to use the second interview at Murdock’s trial would undermine the purposes of the Miranda warning as identified by the United States and Florida Supreme Courts. The United States Supreme Court has explained that the reason for a Miranda warning is to give a criminal defendant adequate and effective knowledge of his or her constitutional right against self-incrimination. See Missouri v. Seibert, 542 U.S. 600, 609-14, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion). The purpose of Miranda warnings is to prevent government officials from using “the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment,” Arizona v. Mauro, 481 U.S. 520, 529-30, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987), and to prevent “repeated rounds of questioning to undermine the will of the person being questioned.” Henry v. State, 574 So.2d 66, 70 (Fla.1991) (citing Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)).

Here, the misinformation, the coercive nature of confinement, and the repeated rounds of questioning combined to “coax an unwilling suspect to speak to police.” Id. at 70 (involving a situation where there was “no effort” to coax an unwilling subject); see also Davis v. State, 698 So.2d 1182, 1189 (Fla.1997) (stating that the purpose for reading Miranda warnings is “to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings”).

This case most resembles Dooley and Cuervo, cases where the police misled suspects about their Miranda rights.

In Dooley, the defendant stated, “I don’t wish to waive my rights.” 743 So.2d at 67. The detective responded, “By waiving your rights now doesn’t mean that you waive them in the future. All you’re saying here now is that you’re talking to me without the presence of an attorney. If one is required later on, if that’s your wish, one can be appointed to you. Do you understand that?” Id. The defendant agreed to talk and made an incriminating statement. Id. Since the detective’s misrepresentation “indicated that the defendant could speak with the officer without risk,” this court suppressed the statement, finding it “was in direct response to further interrogation and misinformation that was constitutionally impermissible.” Id. at 69.

Similar to this case, Cuervo involved the use of time pressure to compel a statement; there, the Florida Supreme Court suppressed a confession where officers persisted in asking the defendant whether he wished to talk after the defendant had invoked his right to remain silent. 967 So.2d at 164-65. The defendant stated that he understood his rights and did not want to speak. Id. at 157. Nevertheless, the interrogating officers informed the defendant that he had a brief window to vindicate himself. Id. at 157-58. The Florida Supreme Court found that by advising the defendant “that ‘now5 was his time to tell his side of the story, this exchange may have confused Cuervo about the meaning of his Miranda rights, specifically the right to appointed counsel before questioning.” Id. at 165 (emphasis supplied). The Florida Supreme Court held that the officers had unlawfully engaged in conduct “reasonably designed to elicit a waiver of those rights and an incriminating response.” Id.

The State argues that Murdock overcame his misunderstanding because there was a break in time in between the two interviews and the detective rereading him his Miranda warnings. The break in time and the rereading of the Miranda warnings did nothing to address Murdock’s faulty understanding of his rights generated by the detective’s initial misinformation. Simply rereading the rights, without correcting the earlier explanation, prevented Murdock from attaining a “full awareness of the nature of the right being abandoned and the consequences of the abandonment.” Louis, 855 So.2d at 255. “The inquiry in this case turns on the [defendant’s] state of mind, not the investigator’s, and the potential effect on [defendant] of the words used....’ ” Jackson v. State, 832 So.2d 932, 934 (Fla. 3d DCA 2002) (quoting D.N. v. State, 529 So.2d 1217, 1223 (Fla. 1st DCA 1988), disapproved of on other grounds by State v. G.C., 572 So.2d 1380 (Fla.1991) (alterations in original)).

Therefore, we reverse to suppress the second interview and remand for a new trial.

WARNER and LEVINE, JJ., concur.

      . Section 777.011, Florida Statutes (2010), provides,
      Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

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

      . Murdock asked, "[C]an I just like say I understand all that stuff because I was....”


text:
    Kentel Devonte JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3131.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

CIKLIN, GERBER and LEVINE, JJ., concur.


author: MAY, C.J.

text:
    Christopher CONWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3121.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals a restitution order entered after the defendant pled guilty to dealing in stolen property and giving false verification of ownership to a secondhand dealer. He argues the court erred in entering restitution in the amount of $17,812 because that amount was based on inadmissible hearsay and did not reflect the fair market value. We reverse.

At the restitution hearing, the victim testified that she purchased the stolen sterling silverware set in 1948. After the set was stolen, the victim’s son visited pawnshops in the area looking for the silverware. One of the pawnshops had in fact purchased the set from the defendant for $500. The son tried to redeem the silverware set, but the pawnshop had already melted it down.

The son then contacted International Sterling Silver Company, which identified the sterling silverware set as a collector’s item. The company indicated it would cost $17,812 to replace the set. The defense objected to the hearsay testimony, which was overruled. The defense also objected to using replacement value to determine the amount of restitution. The trial court ordered restitution in the amount of $17,812. From this order, the defendant appeals.

The defendant argues the trial court abused its discretion in admitting the hearsay testimony, and in determining restitution by using replacement value rather than the fair market value. The State responds that it proved restitution by appropriate evidence.

We review the trial court’s restitution order for an abuse of discretion. Bennett v. State, 944 So.2d 524, 525 (Fla. 4th DCA 2006).

The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence. Such evidence must be established through more than mere speculation; it must be based on competent evidence. A victim’s testimony, without documentation, is not enough to support an award of restitution.

Id. (internal citations omitted).

The trial court ordered restitution in the amount of the replacement value testified to by the victim’s son. This testimony was insufficient for two reasons. First, it was based on hearsay. “Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence.” T.J.N. v. State, 977 So.2d 770, 773 (Fla. 2d DCA 2008). The victim’s son merely recited his conversation with the manufacturer.

Second, the son’s testimony did not establish the fair market value of the sterling silverware by a preponderance of the evidence. Rather, the testimony only established replacement value. “ ‘[A]bsent circumstances tending to show that fair market value does not adequately compensate the victim or otherwise serve the purpose of restitution,’ fair market value should be used.” Thompson v. State, 68 So.3d 425, 427 (Fla. 4th DCA 2011) (quoting Domaceti v. State, 616 So.2d 1148, 1149) (Fla. 4th DCA 1993). The trial court identified no special circumstances to justify using a value other than fair market. The victim did not know how much she had paid for the silverware set. And the manufacturer could only advise the victim’s son of how much a modern version of the set would cost to replace the set that was stolen.

We therefore reverse and remand the case for a new restitution hearing. “On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested.” I.M. v. State, 958 So.2d 1014, 1016 (Fla. 1st DCA 2007).

Reversed and Remanded.

GERBER and LEVINE, JJ., concur.


text:
    A.L.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-122.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The juvenile appeals from a disposition in which the circuit court, among other things: (1) found her guilty of grand theft as to a recovered laptop computer, but not as to unrecovered items including a camera and jewelry; and (2) ordered restitution of $220.00, which the probable cause affidavit alleged the victim would have to pay to recover the camera and jewelry from a pawnshop. The juvenile argues that because the circuit court acquitted her of the theft of the camera and jewelry, the court fundamentally erred in ordering her to pay restitution for those items. We agree with that argument. See Acosta v. State, 856 So.2d 1143, 1145 (Fla. 4th DCA 2003) (“[A] court cannot order the defendant to pay restitution for damages arising out of a crime for which [the defendant] was acquitted.”) (citation and internal quotations omitted); Davis v. State, 741 So.2d 1213, 1214 (Fla. 2d DCA 1999) (“[T]he error here was fundamental because to require appellant to pay restitution here would amount to imposing a punishment for an offense that appellant did not commit.”).

Based on the foregoing, we reverse and remand for the sole purpose of directing the circuit court to vacate that portion of the disposition which orders the juvenile to pay $220.00 in restitution.

Reversed and remanded with directions.

MAY, C.J., and LEVINE, J., concur.


author: CONNER, J.

text:
    CITY OF FORT LAUDERDALE, Appellant, v. CHUANWEN WANG, Appellee.
    No. 4D12-93.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.

      Alain E. Boileau of Alain E. Boileau, P.A., Fort Lauderdale, for appellant.
    David G. Vinikoor of David G. Vinikoor, P.A., Fort Lauderdale; Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale; and Randall C. Marshall of ACLU Foundation of Florida, Miami, for appellee.
   CONNER, J.

Chuanwen Wang, an artist who sells his artwork on sidewalks, was told by City of Fort Lauderdale officials that he would be arrested for violating three city ordinances if he attempted to sell his artwork on sidewalks in an area including the Fort Lauderdale Beach. Selling artwork is speech protected by the First Amendment, and therefore, any time, place, manner restriction must leave open reasonable alternative channels of communication. On motion for summary judgment, Wang persuaded the trial court that the three city ordinances violate the First Amendment. However, we reverse because Wang failed to present any evidence that the ordinances prevented access to reasonable alternative channels of communication.

The City has enacted three ordinances which prohibit vending on sidewalks: sections 8-73, 23-94, and 23-95 of the City’s Unified Land Development Regulations (ULDR). The ordinances “are intended to eliminate nuisance activity on the beach and provide patrons with a pleasant environment in which to recreate.” ULDR § 7.5. The effect of all three ordinances is to prohibit “soliciting, begging, or panhandling” on the City’s beaches, including the one hundred and fifty feet of Atlantic Beach Boulevard or Seabreeze Boulevard. The definition of “soliciting” includes art vending.

The trial court granted summary judgment with a detailed order. The order explained that the City ordinances at issue purport to prohibit vending within the “whole beach area, including streets between A1A and Seabreeze Boulevard” and the combined effect of the zoning sections at issue prohibit Wang selling his artwork on public streets, except for within zoning districts B-2, B-3, and B-3-C, which are remote from tourist areas. The court found: “The Zoning Map leaves no doubt that application of the ordinances does not ‘leave open ample alternative channels of communication.’ ”

When the trial court reaches a conclusion as a matter of law and enters summary judgment, an appellate court reviews the determination de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

There is no dispute that art vending is entitled to full First Amendment protections and the ordinances in question are content-neutral.

However, in a public forum, a governing entity may establish time, place, or manner restrictions upon an activity which is otherwise fully protected by the First Amendment if the restrictions “[1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 956 (11th Cir.1999) (citation omitted). The government holds the burden of demonstrating each prong of this test. State v. O’Daniels, 911 So.2d 247, 252 (Fla. 3d DCA 2005).

Nevertheless, because Wang asserts he is entitled to summary judgment declaring the ordinances violate the First Amendment, he is required to submit summary judgment evidence which establishes there is no dispute of material fact. Gomez v. Fradin, 41 So.3d 1068, 1071 (Fla. 4th DCA 2010) (“A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact.” (citation omitted)).

Wang premised his summary judgment argument entirely on the submission of a zoning map and language in ordinances. He submitted no summary judgment evidence supporting the trial court’s decision “that application of the ordinances does not ‘leave open ample alternative channels of communication.’ ” The zoning map itself does not establish the lack of alternative channels of communication because the map does not demonstrate how much tourist activity is in any particular zoning district. Because Wang submitted no summary judgment evidence showing his intended audience could not be reached in the zoning areas where street vending is permitted, the order granting summary judgment must be reversed.

Reversed.

STEVENSON and GERBER, JJ., concur.

      . Sections 8-73, 23-94, and 23-95 must be read in conjunction with section 7.5 of the ULDR.


author: STEVENSON, J.

text:
    Reginald Bernard BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4888.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Carey Haughwout, Public Defender, and Stephen J. Arbuzow and Patrick B. Burke, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The defendant, Reginald Bell, appeals his conviction and sentence for sale of cocaine within 1,000 feet of a place of worship. The defendant allegedly sold drugs to an undercover officer out of his home. The defendant presented the testimony of his girlfriend who stated she was with him on the night of the crime. During closing argument, in discussing the different witnesses’ testimonies, the State argued:

Is it worth it, is it worth it for these two cops who have been with the force for over twelve years to fabricate and falsify police reports, arrest someone that they felt like arresting, and then come in here after taking an oath, lie in a Court of law to the jury panel—

Defense counsel immediately objected, claiming the argument was improper bolstering of the police officer’s testimony. We agree that the trial court abused its discretion in overruling the objection. The statement clearly asks the jury “is it worth it” for officers on the force to sacrifice their careers to falsely testify — a practice condemned by this court. See Davis v. State, 663 So.2d 1379, 1382 (Fla. 4th DCA 1995) (“The credibility of police officer witnesses cannot be bolstered by arguing that they would put their careers in jeopardy by lying.”); Clark v. State, 632 So.2d 88, 91 (Fla. 4th DCA 1994) (noting that it is improper for a prosecutor to attempt to persuade the jury that police officers would not testify falsely because they have too much at stake and would not risk then-jobs), overruled, on other grounds, T.B. v. State, 669 So.2d 1085 (Fla. 4th DCA 1996). Here, the State cannot show the evidence was harmless beyond a reasonable doubt because this case came down to a swearing match as the officer’s testimony was the only evidence linking the defendant to the crime. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Reversed and remanded for a new trial.

DAMOORGIAN and CONNER, JJ., concur.

      . Although two undercover officers testified, only one identified the defendant as the perpetrator.


text:
    PETERSEN & HAWTHORNE, P.A., Appellant, v. EMI ENTERPRISES, INC., a Florida Corporation, Ed’s Auto Repair, Inc., a Florida Corporation, and Ed and Mary Thibeault, Appellees.
    No. 4D11-3609.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Byron G. Petersen of Petersen & Hawthorne, P.A., Fort Lauderdale, for appellant.
    Doreen E. Lasch and Daniel J. Santan-iello of Luks, Santaniello, Petrillo and Jones, Fort Lauderdale, for appellees.
   DAMOORGIAN, J.

Appellant, Petersen & Hawthorne, P.A., appeals the trial court’s order dismissing, without prejudice, its suit against EMI Enterprises, Inc., Ed’s Auto Repair, Inc., and Ed and Mary Thibeault after Appellant failed to attend a case management conference. We reverse.

After Appellant failed to attend a case management conference, the trial court issued an order which stated in its entirety as follows:

Neither plaintiff nor defendant appeared at duly set status conference. Whereas this court hereby dismisses without prejudice the above styled case for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss a suit for lack of prosecution. However, Rule 1.420(e) outlines certain pre-requisites to dismissal such as no record activity for ten months followed by a notice to the parties and a sixty-day opportunity to take action. These pre-requisites were not present here; thus, the trial court did not have the authority to dismiss the suit for “lack of prosecution” as stated in its order.

The court could have, however, dismissed the suit under Florida Rule of Civil Procedure 1.200(c), which provides that the court may “dismiss the action” if a party fails to attend a case management or pretrial conference. This rule is limited though, and a court should only dismiss a suit for failure to attend a case management or pretrial conference where the party’s conduct is “willful and contumacious.” First Fairway Cando. I Ass’n, Inc. v. Gulfstream Roofing, Inc., 701 So.2d 652, 653 (Fla. 4th DCA 1997). Further, the court must set forth findings supporting its ruling in the subject order, and “failure to do so constitutes reversible error.” Giemme USA, LLC v. La Sala Group, Inc., 92 So.3d 920, 922 (Fla. 4th DCA 2012). See also First Fairway Condo. I Ass’n, Inc., 701 So.2d at 653 (“By imposing the harsh sanction of dismissal without an express finding of willful and contumacious behavior that is supported by the record, the trial court abused its discretion.”); Fugnole v. Crumbly Bros., Inc., 899 So.2d 1262, 1263 (Fla. 2d DCA 2005) (reversing order dismissing suit based on party’s failure to attend case management conference where order did not set forth findings that party flagrantly ignored court’s direction and abused the system).

Assuming that the court was operating under Rule 1.200(c), we hold that dismissal was not justified. The court’s order merely stated that Appellant failed to attend the- conference and did not set forth any findings establishing that Appellant engaged in “willful and contumacious” behavior. This was not enough. Therefore, we reverse and remand for further proceedings.

Reversed.

WARNER and CONNER, JJ., concur.


author: WETHERELL, J.

text:
    STATE of Florida, Appellant, v. Daniel John LEVITAN, Appellee. Daniel John Levitan, Appellant, v. State of Florida, Appellee.
    Nos. 1D12-1609, 1D12-1964.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Rehearing Denied July 16, 2013.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellee.
   WETHERELL, J.

In these consolidated appeals, the State seeks review of an order granting Daniel John Levitan a judgment of acquittal (JOA) on ten counts of grand theft on double jeopardy grounds, and Levitan seeks review of his conviction for aggravated white collar crime. We find no merit in the issues raised by Levitan and affirm his judgment and sentence for aggravated white collar crime without further comment. We do, however, find merit in the State’s argument that the trial court erred in granting a JOA on the grand theft counts and, for the reasons that follow, we reverse and remand for entry of judgment and sentence on those counts.

Levitan opened Finnegan’s Wake Irish Pub and Eatery in Pensacola in November 2007. Levitan’s wife and two others were listed as the owners of the business, but the evidence presented at trial established that Levitan was responsible for all of the day-to-day operations of the business, including the collection and remission of sales tax to the Florida Department of Revenue (DOR). The evidence further established that Levitan failed to remit all of the sales tax collected by the business for the months of December 2007, January 2008, February 2008, March 2008, April 2008, June 2008, July 2008, August 2008, September 2008 and October 2008, and instead he used those funds to pay operational expenses of the business. The sales tax not remitted for these months totaled more than $88,000.

In August 2009, after DOR’s civil collection efforts proved unsuccessful, the State charged Levitan with ten counts of grand theft, one count for each month that he failed to remit the sales tax collected by the business. The information was subsequently amended to include one count of aggravated white collar crime under section 775.0844, Florida Statutes (2007), with the grand thefts serving as the predicate offenses for this charge. After a three-day trial at which Levitan represented himself, the jury found Levitan guilty of all eleven counts.

At the sentencing hearing, Levitan, through counsel, made an ore tenus motion for a JOA on the grand theft counts on double jeopardy grounds. Levitan argued that the offense of aggravated white collar crime contained the elements of the predicate offenses and, because the grand thefts formed the basis of the charge for the aggravated white collar crime count, he was twice placed in jeopardy for the same offense. The trial court agreed and granted a JOA on the grand theft counts, finding that the ten counts of grand theft were “lesser offenses of’ and “subsumed within” the offense of aggravated white collar crime. The trial court adjudicated Levitan guilty of aggravated white collar crime and sentenced him to 10 years in prison followed by 20 years of probation consecutive to a sentence imposed in another case.

On appeal, the State argues that the trial court erred in granting a JOA on the grand theft counts on double jeopardy grounds because aggravated white collar crime is a distinct offense that the legislature clearly intended to punish separately from its predicate offenses. We review this issue de novo. See McKinney v. State, 66 So.3d 852, 853 (Fla.2011) (“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.”) (quoting Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006)).

The issue framed by the State’s appeal was squarely addressed by our sister court in Headley v. State, 90 So.3d 912 (Fla. 3d DCA 2012). In that case, the court held that a defendant could be convicted of both aggravated white collar crime and the predicate offenses without violating double jeopardy because the language and structure of section 775.0844 reflect a clear statement of legislative intent to authorize separate punishments. Id. at 913. The court explained:

[Section 775.0844] and the Florida RICO Act are similarly constructed, and both were enacted to allow for prosecution of the major offense as well as the predicate offenses. Both statutes establish an offense in which it is implicit that the defendant has committed a number of predicate offenses. Compare § 775.0844(3)-(4), with § 895.02. It has been previously held by Florida courts that being convicted of RICO as well as the necessarily lesser included offenses does not violate double jeopardy. See, e.g., Gross v. State, 728 So.2d 1206, 1208 (Fla. 4th DCA 1999); Haggerty v. State, 531 So.2d 364, 365 (Fla. 1st DCA 1988). The legislative intent in adopting the white collar crime statute was to “enhance sanctions imputed for nonviolent frauds and swindles, protect the public’s property, and assist in prosecuting white collar criminals.” § 775.0844(2). As with RICO, the white collar crime statute was geared toward prosecuting those individuals who engage in a pattern of committing felony offenses involving fraud and deceit. See § 775.0844(4) (defining “aggravated white collar crime”); see also Carroll v. State, 459 So.2d 368, 370 (Fla. 5th DCA 1984) (recognizing that by establishing RICO, the legislature intended to punish those who engage in a pattern of criminal activity more severely than those who only commit the predicate offenses).
Additionally, analyzing the white collar crime statute’s language and structure, as in Garrett, Headley’s double jeopardy rights were not violated as a result of being convicted of aggravated white collar crime and the predicate offenses. Garrett [v. United States], 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 [(1985) ] (recognizing that the legislature intended CCE to be a separate offense and to permit prosecution for predicate offenses as well as CCE, and concluding that convictions for both does not violate double jeopardy). As with CCE, the legislative intent in establishing section 775.0844 was to create a separate and distinct offense, see State v. Traylor, 77 So.3d 224, 226 (Fla. 5th DCA 2011) (recognizing that charging a defendant with aggravated white collar crime is a “distinct” new count, separate from any predicate offenses previously charged); there is no reference in the statute to a multiplier of a penalty for some other offense; the punishment set forth in the statute does not reference its predicate offenses; and the definition of aggravated white collar crime is not drafted in the way that a recidivist provision would be drafted. See Garrett, 471 U.S. at 778, 781-82, 105 S.Ct. 2407, 85 L.Ed.2d 764.

Id. at 914-15.

We agree with this reasoning and, consistent with Headley, hold that Levitan could be convicted of both aggravated white collar crime and the predicate grand theft offenses without violating double jeopardy. Accordingly, we reverse the order granting a JOA on the ten grand theft counts and remand for the trial court to enter judgment and sentence on those counts. Levitan’s judgment and sentence is otherwise affirmed.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

ROWE and MAKAR, JJ., Concur.

      . Section 775.0844 provides:
      (2) Due to the frequency with which victims, particularly elderly victims, are deceived and cheated by criminals who commit nonviolent frauds and swindles, frequently through the use of the Internet and other electronic technology and frequently causing the loss of substantial amounts of property, it is the intent of the Legislature to enhance the sanctions imposed for nonviolent frauds and swindles, protect the public’s property, and assist in prosecuting white collar criminals.
      (3) As used in this section, "white collar crime" means:
      (a) The commission of, or a conspiracy to commit, any felony offense specified in:

      2. Chapter 812, relating to theft, robbery, and related crimes.

      (4) As used in this section, "aggravated white collar crime" means engaging in at least two white collar crimes that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents, provided that at least one of such crimes occurred after the effective date of this act.
      (5)Any person who commits an aggravated white collar crime as defined in this section and in so doing either:

      (c) Victimizes the State of Florida, any state agency, any of the state’s political subdivisions, or any agency of the state’s political subdivisions,
      and thereby obtains or attempts to obtain $50,000 or more, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.

      . The issue was raised in a pro se motion to dismiss filed by Levitan, but at the sentencing hearing his counsel explained:
      I'm not making a motion to dismiss, Your Honor. I’m arguing to the Court that the Court must JOA ... the ten counts of grand thefts based on the fact that it would be a violation of double jeopardy as those counts are subsumed within the aggravated white collar crime.

      . The judgment and sentence in the other case was subsequently reversed by this Court in Levitan v. State, 100 So.3d 776 (Fla. 1st DCA 2012).

      . The trial court did not have the benefit of the Headley opinion when it ruled on Levi-tan’s ore tenus motion for a JOA.


text:
    Jeff Todd BRUCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3189.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2013.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Carlisle v. State, 105 So.3d 625 (Fla. 5th DCA 2013); Bist v. State, 35 So.3d 936 (Fla. 5th DCA 2010).

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


text:
    Marco PIRRONGELLI, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-972.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2013.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Carlisle v. State, 105 So.3d 625 (Fla. 5th DCA 2013); Bist v. State, 35 So.3d 936 (Fla. 5th DCA 2010).

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


author: LEVINE, J.

text:
    Jennifer SACKET, Appellant, v. Kevin M. SACKET, Appellee.
    No. 4D12-1872.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Matthew S. Nugent and Christopher R. Bruce of Nugent Zborowski & Bruce, North Palm Beach, for appellant.
    Kevin M. Sacket, Cape Canaveral, pro se.
   LEVINE, J.

The issue presented for our review is whether the trial court erred in relying on the attorney’s fees provision in a marital settlement agreement between the former husband and the former wife, which was triggered only when one of the parties “defaulted” on an obligation under the agreement. We find merit in the former wife’s appeal of the trial court’s non-final order pertaining to attorney’s fees and costs, and find that neither party “defaulted” under the marital settlement agreement. Thus, we reverse the trial court’s order as to attorney’s fees in part.

Appellant, the former wife, and appellee, the former husband, dissolved their marriage in 2010. The final judgment of dissolution incorporated the parties’ marital settlement agreement. The marital settlement agreement included a timesharing schedule for the minor children as well as the following provision regarding attorney’s fees and costs:

Except as otherwise provided in this Agreement, should either party to this agreement default in his or her obligation hereunder, the party in default shall be liable to the other party for all reasonable expenses, including attorney’s fees, incurred by the other party with regard to the enforcement of the obligations created in this Agreement, whether suit be brought or not.

(emphasis added).

The former wife filed an emergency motion for temporary sole custody and parental responsibility and for contempt against the former husband, claiming that the former husband was not complying with the timesharing schedule and thereby causing various problems for the parties’ minor daughter. The former wife also requested that the trial court order the former husband to pay attorney’s fees and costs related to the filing of the former wife’s emergency motion.

After an evidentiary hearing, the trial court found that the former husband should not be held in contempt. The trial court denied the former wife’s request for temporary sole custody and parental responsibility and determined that the parties should return to the timesharing schedule as set forth in the final judgment of dissolution.

Later the trial court held a hearing on the issue of attorney’s fees and costs. After the hearing, the trial court found:

Since the Former Husband prevailed on the Former Wife’s Motion for Contempt, the Former Wife’s request for fees and costs in reference to that motion is denied. Because the Former Wife’s Motion for Contempt was in the nature of an enforcement of a provision in the Marital Settlement Agreement, and because of the language contained in Florida Statute 57.105(7) making a provision for attorney’s fees to enforce a contract provision bilateral, the Former Husband is entitled [to] an award of fees and costs in a successful defense of the Former Wife’s Motion for Contempt.

The trial court also stated that the provision in the marital settlement agreement was not a prevailing party provision, and therefore, the former wife was entitled to temporary attorney’s fees without regard to whether she prevailed on her request for permanent modification. The court found that $6,982 was a reasonable fee for the former husband’s defense of the former wife’s contempt motion, and setoff this amount from the $20,000 it awarded to the former wife as temporary fees and costs in connection with her pending request for permanent modification. This appeal follows.

We review de novo the issue of entitlement to attorney’s fees based on the interpretation of a contract. Stevens v. Zakrzewski, 826 So.2d 520, 521 (Fla. 4th DCA 2002). “It is well settled that a marital settlement agreement is to be interpreted like any other contract and is construed as a matter of law.” Zakian v. Zakian, 887 So.2d 549, 550 (Fla. 4th DCA 2003) (citation omitted). “[T]he provisions in the marital settlement agreement awarding attorney’s fees are generally enforced.” Vitale v. Vitale, 31 So.3d 970, 973 (Fla. 4th DCA 2010).

In Zakian, we were faced with a similar provision in a marital settlement agreement. The provision at issue in Zakian stated, “Should either party fail to abide by the terms of this Agreement, the defaulting party will indemnify the other for all reasonable expenses and costs including attorney’s fees incurred in the enforcement of this Agreement.” 837 So.2d at 550. Concerning this provision, we reasoned:

We do not read this particular provision to base entitlement to fees on whether the party prevailed, although the party would have to successfully enforce performance against the defaulting party. Here the parties’ agreement tied the contractual obligation to pay fees to whether one of them has “defaulted” on a duty or obligation arising under their settlement agreement.

Id.

In the present case, as in Zakian, the clause in the parties’ marital settlement agreement tied the former wife’s obligation to pay attorney’s fees to a “default” in one of the former wife’s obligations under the marital settlement agreement. The former wife was unsuccessful in her attempt to obtain temporary sole custody and parental responsibility, and in her attempt to hold the former husband in contempt; thus, the trial court found that the former husband did not “default” by failing to comply with the timesharing schedule.

However, nor did the former wife “default” in an obligation under the agreement simply because the former husband “prevailed” in defending against her emergency motion. Accordingly, since there was no “default,” and a “default” was necessary to trigger application of the fees provision in the marital settlement agreement, we find that the attorney’s fees provision in the marital settlement agreement was not applicable. The trial court, therefore, erred in finding a contractual basis to require the former wife to pay the former husband’s attorney’s fees under the circumstances of this case.

Further, we note that section 57.105(7), Florida Statutes (2011), “renders bilateral a unilateral contractual clause for prevailing party attorney’s fees.” Indem. Ins. Co. of N. Am. v. Chambers, 732 So.2d 1141, 1143 (Fla. 4th DCA 1999); see also Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So.3d 893, 895 (Fla. 4th DCA 2010) (“The statute is designed to even the playing field, not expand it beyond the terms of the agreement.”)- The attorney’s fees provision in the marital settlement agreement applied to both parties equally, and was therefore not a unilateral provision necessitating the application of section 57.105(7) for reciprocity purposes, and as such, the trial court also erred in relying on section 57.105(7).

Therefore, we reverse the $6,932 in attorney’s fees that was awarded to the former husband as a credit against the temporary fee of $20,000 awarded to the former wife in connection with her request for permanent modification. We direct the trial court to redetermine the former wife’s entitlement to attorney’s fees for the work performed on her emergency motion, using the standard for attorney’s fees awards under section 61.16, Florida Statutes, for the entirety of the motion. See Vitale, 31 So.3d at 973; Harrison v. Gattozzi, 992 So.2d 865, 866 (Fla. 5th DCA 2008). If the trial court again determines that the former wife is entitled to attorney’s fees, it should determine the reasonable amount of fees incurred in connection with the emergency motion, and set the manner in which the former husband will pay those fees.

Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN and CIKLIN, JJ., concur.

      . Section 57.105(7), Florida Statutes (2011), provides:
      If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

      . The other issues raised by the former wife on appeal are moot in light of our conclusion.


text:
    Angela VIRGO, Appellant, v. NATIONAL CITY MORTGAGE CO., a division of National City Bank of Indiana n/k/a National City Bank, Appellee.
    No. 4D11-4733.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Nicholas A. Vidoni and Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.
    Edward J. O’Sheehan and Krista S. Ko-valcin of Shutts & Bowen LLP, Fort Laud-erdale, for appellee.
   PER CURIAM.

The doctrine of res judicata precludes consideration not only of issues that were raised and decided in a proceeding but also of issues that could have been raised and decided. Angela Virgo appeals a motion to vacate a final judgment of foreclosure that sought vacatur on grounds that her participation in a federal modification program rendered the foreclosure inequitable. Because Virgo failed to raise this claim in a prior motion to vacate, we affirm.

Virgo executed and delivered a mortgage and note to National City Mortgage. Virgo defaulted on the mortgage, so in January 2009, National City filed a two-count complaint to foreclose on the note and mortgage.

A month later, National City sent Virgo a letter notifying her that she could be eligible to participate in the federal Home Affordable Modification Program (HAMP), which would allow her to obtain a modification of the terms of her loan and avoid foreclosure. The terms of the HAMP program would require Virgo to fill out paperwork to see if she qualified for a modification and to make timely trial period payments if qualified. Virgo applied for the HAMP program. While her application was pending, National City moved for summary judgment and obtained a final judgment of foreclosure in April 2009. A sale was originally scheduled for July 2009.

Apparently, a sale was not held as Virgo was offered a trial plan under HAMP in October 2009. The trial plan required Virgo to make three monthly payments to receive a permanent modification. Virgo was then offered a second trial plan in March 2010. Virgo attested to making all three payments under the second plan, and even making a fourth and fifth payment under that plan. However, National City rejected the fifth payment and proceeded with scheduling a foreclosure sale.

In February 2011, Virgo obtained counsel and filed her first motion to vacate the sale date, vacate the final judgment, and dismiss the case for fraud. (“First Motion to Vacate”). The First Motion to Vacate requested relief on grounds National City lacked standing to foreclose on Virgo’s home (because the mortgage lists the lender as National City Mortgage, but the plaintiff was National City Mortgage Co.) and on grounds the affidavit of indebtedness was fraudulent. The trial court denied Virgo’s First Motion to Vacate, and Virgo appealed.

While the first appeal was pending, a foreclosure sale was scheduled and held in June 2011. Virgo filed an amended objection to the sale, motion to vacate sale and final judgment, and motion to dismiss the case in September 2011. (“Second Motion to Vacate”). The Second Motion to Vacate specifically sought relief pursuant to rule 1.540(b)(4) and (5) on the following grounds: (1) National City lacked standing to foreclose because National City failed to allow Virgo to complete the HAMP program, which was a “condition precedent” to National City seeking foreclosure; and (2) National City’s action in offering Virgo a trial period but then denying her a permanent modification despite her compliance with the program rendered the final judgment no longer equitable. The trial court denied Virgo’s Second Motion to Vacate in December 2011 over Virgo’s objection that the trial court lacked jurisdiction to rule on the motion while an appeal was pending on the First Motion to Vacate.

Virgo argues the trial court erred in denying her Second Motion to Vacate on the merits without holding an evidentiary hearing. National City asserts that Virgo’s claims in her Second Motion to Vacate are barred by either res judicata or collateral estoppel because they could have been raised in the First Motion to Vacate. The standard of review of a trial court’s ruling on a motion to vacate is abuse of discretion. Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893, 894 (Fla. 4th DCA 2012).

This court previously considered the application of the res judicata doctrine to subsequent motions to vacate in Purcell v. Deli Man, Inc., 411 So.2d 378 (Fla. 4th DCA 1982). In Purcell, the plaintiff received a final money judgment after a default was entered against the defendant. The defendant timely moved to vacate, asserting mistake and excusable neglect. The trial court denied the motion. Two years later, the defendant filed a second motion to vacate, arguing the final judgment was void because the complaint failed to allege sufficient facts to establish personal jurisdiction. The trial court granted the second motion. We reversed, holding it was fundamental error for the trial court to entertain a second motion to vacate when the grounds raised could have been raised in the first motion to vacate. Id. at 379. Purcell relied upon Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971), which explained that any issues raised or, through due diligence, could have been raised in a first motion to vacate are barred by res judicata from being raised in a second or subsequent motion to vacate. Id. at 467.

Here, Virgo does not argue that the issues raised in the Second Motion could not have been raised in the First Motion; instead, Virgo argues res judicata should not be applied because its application would work an injustice, citing Paul v. Wells Fargo Bank, N.A., 68 So.3d 979 (Fla. 2d DCA 2011). In Paul, the elderly homeowner failed to answer a foreclosure complaint. A default final judgment was entered, and the home sold. Id. at 980. The homeowner moved to set aside the final judgment on grounds of excusable neglect, which the trial court denied on grounds the home already had been sold. Id. at 981. However, the trial court suggested it would reconsider if the homeowner provided case law showing the trial court had jurisdiction to intervene. The homeowner filed a motion to vacate the order denying the motion to vacate with additional caselaw, which the trial court denied. Id. at 983. On appeal, the bank defended in part on grounds the second motion was an improper attempt to reliti-gate issues raised in the first motion. Id. at 985. The Second District held res judi-cata was not a bar when the issues were not settled at the first hearing, the trial court invited the homeowner to present additional case law, and the bank did not object to the second motion on grounds it was successive. Id. at 986.

None of the factors present in Paul exist in this case. National City opposed Virgo’s Second Motion before the trial court on the ground it was successive. There is no indication in the record that the trial court invited Virgo to file a second motion. Rather than raising issues unresolved from the First Motion, the Second Motion raises new issues regarding National City’s violation of HAMP and a purported settlement agreement that occurred in 2010. However, the facts supporting the Second Motion occurred before the First Motion to Vacate was filed so the basis alleged in the Second Motion could have been raised in the First Motion to Vacate. Therefore, we find res judicata bars Virgo’s Second Motion to Vacate in this case.

Affirmed.

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

      . Virgo also argues the trial court lacked jurisdiction to consider the Second Motion. We affirm on this issue without discussion.


text:
    Gregory J. WILLIS, Appellant, v. The BANK OF NEW YORK MELLON as Successor By Merger To The Bank Of New York As Trustee For The Certificate Holders Cwalt Inc. Alternative Loan Trust 2005-60TI Mortgage Pass Through Certificates, Series 2005-60TI, Appellee.
    No. 4D12-894.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Gregory J. Willis, Weston, pro se.
    Christopher Hixson of Law Office of Daniel C. Consuegra, P.L., Tampa, for ap-pellee.
   PER CURIAM.

In entering a final summary judgment of foreclosure, the trial court also granted a reformation of the mortgage to include a legal description of the property foreclosed, as apparently the mortgage failed to include the proper legal description. The appellee Bank’s motion for summary judgment and accompanying notice, however, did not raise the issue of reformation as an issue to be addressed at the summary judgment hearing. Because of the lack of notice, the court erred in reforming the mortgage to add a legal description. See Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 214-15 (Fla. 5th DCA 2011) (where motion for summary judgment makes no mention of request to reform legal description in mortgage, court errs in granting such relief in foreclosure judgment); Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375, 1377 (Fla. 1st DCA 1987) (“The appellee’s motion stated only in general terms that no material issues of fact or law existed and that appellee was entitled to the relief requested. Such a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing.”).

Based on the record, the Bank’s boilerplate motion for summary judgment was insufficient to apprise appellant of this specific topic that would be discussed at the motion hearing. We affirm as to the remaining issues raised.

Affirmed in part; reversed in part and remanded.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Janice Rubbo LINDGREN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 4D12-2568.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Bruce R. Jacobs of Wedderburn & Jacobs, P.A., Hollywood, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

We reverse the final summary judgment of foreclosure as appellant’s affirmative defenses were not conclusively refuted on the record. The trial court relied on the allegations in a verified complaint to refute the defenses. While a verified complaint may serve the same purpose as an affidavit for purposes of a summary judgment, the complaint’s allegations must meet the requirements of the rule governing supporting and opposing affidavits. See Ballinger v. Bay Gulf Credit Union, 51 So.3d 528, 529 (Fla. 2d DCA 2010). Florida Rule of Civil Procedure 1.510(e) requires that affidavits must be based on personal knowledge and shall “show affirmatively that the affiant is competent to testify to the matters stated therein.” A complaint based on “information and belief,” and not personal knowledge, is insufficient. Id. Here, the complaint was not based upon personal knowledge and was insufficient to meet the requirements of the rule.

Reversed and remanded for further proceedings.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Michael POPE, Appellant, v. Rebecca J. LANGOWSKI, n/k/a Rebecca J. Smith, Appellee.
    No. 4D12-1944.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Tami L. Augen of The Law Offices of Tami L. Augen, P.A., West Palm Beach, for appellant.
    Melanie Poole, Florida Rural Legal Services, Inc., Fort Pierce, for appellee.
   PER CURIAM.

This is an appeal in a paternity action where the parents are well meaning, but there is inadequate money available to create the best situation for all involved. The father lives in New Jersey, the mother in Florida. The father has a wife and two other children and has a gross monthly income of $2,240.50 per month; the mother (not the father’s wife) earns $11 per hour and has day care costs of $20 per week. The judge entered a detailed, thoughtful final judgment granting primary physical custody to the mother and allowing the father more liberal visitation over time. We affirm the final judgment in all respects but two.

First, we reverse the child support award and remand to the circuit court to take into consideration the economic effects of the father’s other two children and anticipated travel costs under subsections 61.30(1)(a) & (11)(a)11., Florida Statutes (2010). Subsection 61.30(l)(a) allows a court to vary a guideline amount of child support by “plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent” (Emphasis supplied). Subsection 61.30(11)(a)11. allows a judge to “adjust the total minimum child support award” based upon “a reasonable and necessary existing expense or debt” or any other “adjustment that is needed to achieve an equitable result.” See Hutslar v. Lappin, 652 So.2d 432, 434 (Fla. 1st DCA 1995) (construing section 61.30(11)(a)11. “as vesting broad discretion in the trial court to consider a custodial parent’s obligation of support to other children, in the calculation of his or her income for purposes of determining that parent’s support obligation”); Needham v. Needham, 39 So.3d 1289, 1290-91 (Fla. 2d DCA 2010) (stating that, “under some circumstances,” a court may abuse its discretion if it fails to consider the economic effect of a previously born child when calculating child support).

Second, we remand for the court to correct what appears to be two typographical errors in the parenting plan. Section VIII of the plan provides that the parties are free to travel within the United States with the child during timesharing; this provision is at odds with that portion of the plan that requires the father to effectuate his monthly timesharing in Florida. Another provision which states that each party shall be responsible for his or her own airline ticket when the child is flying “unaccompanied” appears to be in error, as logic would dictate that this provision should have read “accompanied.” In its discretion, the trial court may also address the other “inconsistencies” identified by the father. These “inconsistencies,” however, were not so pervasive or significant that they constitute an abuse of discretion requiring reversal of the entire parenting plan.

Affirmed in part, reversed in part, and remanded.

GROSS, FORST, JJ., and ROSENBERG, ROBIN, Associate Judge, concur.