text:
    Samuel BOOTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0015.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.

      Valerie E. Janard, Quincy, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant filed a rule 3.850 motion, which the trial court denied as untimely, advising, “No motion for rehearing, reconsideration or clarification will be entertained.” Appellant filed a motion for rehearing, alerting the trial court to controlling authority that it had apparently overlooked, but the trial court stamped the motion with “NO ACTION REQUIRED.” On appeal, Appellant raises two issues (1) the trial court erred in summarily denying his rule 3.850 motion because it was timely filed, and (2) the trial court abused its discretion by refusing to entertain the motion for rehearing.

We only need to address the issue of timeliness. Appellant did not appeal his judgment and sentence. Thus, his judgment and sentence became final 30 days later when the time for filing an appeal passed. See Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988). Appellant timely filed his rule 3.850 motion because he filed it within two years of that date. See id. We therefore reverse the order denying the motion as untimely.

REVERSED.

HAWKES, C.J., ALLEN and BENTON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nicole STEVENSON, Petitioner v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D08-4566.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 2009.
    Eilam Isaak, Tampa, for Petitioner.
    Robin Lotane, General Counsel, and Da-maris E. Reynolds, Assistant General Counsel, Lake Worth, for Respondent.
   PER CURIAM.

Denied. See McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008), review granted, Dep’t of Highway Safety & Motor Vehicles v. Hernandez, 4 So.3d 676 (Fla.2009).

FULMER, KELLY, and LaROSE, JJ, concur.


author: FARMER, J.

text:
    Leslie WILLIAMS, Appellant, v. CADLEROCK JOINT VENTURE LP, Appellee.
    No. 4D08-3375.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.

      Peter N. Hanna, Fort Lauderdale, for appellant.
    Keith A. Graham of Marchena and Graham, Orlando, for appellee.
   FARMER, J.

In Williams v. Cadlerock Joint Venture LP, 980 So.2d 1241 (Fla. 4th DCA 2008), we held that Cadlerock had not served initial process on defendant and consequently that its New York default judgment against him could not be enforced. The record had disclosed that defendant was a male but the return on purported service showed that the agent had served a woman in New York with the same name.

That very pertinent fact had been previously revealed to Cadlerock in the trial court by defendant’s affidavit attesting that he was in fact a man living in Florida and not a woman living in New York. He had also then served notice that if Cadler-ock persisted in seeking to enforce a void New York judgment against him in the face of the obvious failure to serve initial process he would seek to recover attorneys fees under § 57.105(1).

As we noted in the previous appeal, the trial court had entered an order finding the New York judgment properly domesticated in Florida, and subject to enforcement through personal financial discovery in aid of execution and execution on the judgment. Defendant prevailed on his appeal of that decision. In that appeal, he also sought an award of appellate attorneys fees from Cadlerock under the same statute, which we denied without elaboration.

As now the prevailing party, he then sought sanctions and attorneys fees in the trial court under § 57.105(1) for the persistence of Cadlerock in trying to enforce the judgment against him after being forewarned by the notice he had given Cadlerock before the merits were determined. The trial court rejected defendant’s application, pointing to our order denying appellate fees in the previous appeal and explaining:

“The [Fourth District] found that it was not a frivolous appeal based on the March [2007] notice, the exact notice that the defendant is asking me to consider here. I am hard pressed to find that it would be a frivolous motion when the Fourth District found that it was not a frivolous motion by them ruling in the appellate court on the exact same basis.”

With respect, the trial court misapprehended the plain text of the statute, the procedural setting and the nature of the process for awarding fees under § 57.105(1).

In Boca Burger Inc. v. Forum, 912 So.2d 561 (Fla.2005), the supreme court held:

“no authority exists for an appellate court’s imposition of sanctions for conduct occurring in the trial court, [e.s.] ‘Where the trial court has failed to make ... findings [under section 57.105], [the appellate court is] without authority to do so in the first instance on appeal.’ ”

It necessarily follows that our own decision to deny sanctions under § 57.105(1) for the prior appeal has no bearing on whether the trial court may itself impose sanctions for persisting in trying to enforce an invalid judgment against defendant.

It is hardly surprising that in many cases we would deny appellate fees against an appellee under § 57.105(1) even when appellee was not successful on appeal in upholding the judgment. After all, a judgment of a trial court is presumably correct. Even acknowledging the possibility of this court properly finding an appellee’s position on appeal unsupported by fact or law, that possibility does not mean that our denial of fees for an appeal necessarily constitutes collateral estoppel as to appel-lee’s conduct in procuring the judgment in the trial court in the first place. We hold that defendant has the right to demonstrate on the merits that he is entitled to § 57.105(1) fees against Cadlerock for continuing its attempt in the trial court to enforce the New York judgment against him even after given notice it had served the wrong Leslie Williams.

For largely the same reason, we reject the argument that defendant’s failure to raise the issue of trial court fees under § 57.105(1) in the prior appeal bars his claim for such sanctions. The record fails to contain any indication that before the first appeal the trial court even considered — much less decided — defendant’s claim for sanctions under § 57.105(1). Nothing to that effect is stated in the order. A party claiming collateral estop-pel has the burden of demonstrating with certainty that the issue was actually considered and determined in the prior proceeding.

Moreover, the plain text of § 57.105(1) requires that a party must be the prevailing party in order to seek such sanctions. At that point in the trial court, he had no basis to claim fees under § 57.105(1), for he was then the losing party. The trial court had ruled in favor of his adversary on the merits, so any claim for fees under § 57.105(1) had not yet accrued and would have then been premature. Defendant was entitled to appeal and settle the issue of the validity of the New York judgment — thereby becoming the prevailing party — and only then press his claim for sanctions under § 57.105(1) against Cad-lerock for its continued prosecution in the trial court.

Reversed.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . 912 So.2d at 569.

      . See McNamara v. City of Lake Worth, 956 So.2d 509 (Fla. 4th DCA 2007) (denial of appellate attorney fees in prior appeal did not preclude award of trial level attorney fees as sanction); Labbee v. Harrington, 957 So.2d 1188 (Fla. 3d DCA 2007) (DCA denial in prior appeal of appellate attorney fees under § 57.105(1) was not law of the case as to entitlement to attorney fees for losing party’s conduct in trial court).

        .See Hittel. v. Rosenhagen, 492 So.2d 1086, 1089-90 (Fla. 4th DCA 1986) (essential that issue common to both was actually adjudicated; doubts whether issue actually decided must be resolved in favor of party opposing estoppel); Freehling v. MGIC Fin. Corp., 437 So.2d 191, 193 (Fla. 4th DCA 1983) (party claiming benefit of collateral estoppel bears burden to show with certainty that issue was formerly determined).

      . § 57.105(1), Fla. Stat. (2008) (“court shall award a reasonable attorney's fee to be paid to the prevailing party”). Te.s.]

      . We reject all other arguments without further comment.


text:
    SAVE ON CLEANERS OF PEMBROKE II INC., Appellant, v. VERDE PINES CITY CENTER PLAZA LLC, Appellee.
    No. 4D08-2897.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.

      Justin R. Parafmczuk of Koch & Trush-in, P.A., Fort Lauderdale, for appellants.
    Duncan J. Farmer and Alan M. Burger of McDonald Hopkins, LLC., West Palm Beach, for appellee.
   FARMER, J.

A landlord sued a tenant for breach of a commercial lease. The lease provided for attorneys fees to the prevailing party. The tenant did not claim such fees in a pleading. Before trial tenant filed several documents claiming attorneys fees as the putative prevailing party. We find that in this case its failure to formally plead fees was not fatal.

The record shows that 10 days after the commencement of the action tenant filed a motion to dismiss the complaint, arguing that landlord’s failure to give a specific notice required by the lease barred its claim. The motion also claimed fees under the lease. Although tenant later abandoned any attempt to have the case dismissed by the motion, it did not withdraw its claim for attorneys fees. In later proceedings, tenant filed two memoranda with the court in which it argued its claim for fees. Landlord’s Trial Brief did not object to these fee claims. Actually landlord never raised any objection to tenant’s claim to fees until after final judgment was entered.

At the end of the bench trial, the parties were required to submit proposed forms of final judgment. Tenant’s form contained a provision awarding it attorneys fees. Landlord did not object to the proposed form of judgment or the provision awarding fees. In the end, the trial judge resolved the case in favor of tenant. The court found that landlord had in fact failed to give tenant the specific notice required by the lease. The final judgment found tenant entitled to fees under the lease provision.

Landlord moved for rehearing. Under Stockman v. Downs, 573 So.2d 835 (Fla.1991), it argued that tenant was not entitled to fees because of its failure to demand fees in a pleading. Tenant responded with the occasions in the record before trial in which it had claimed fees. Tenant also referred to a settlement offer it had made to landlord before trial in which it offered, among other things, to waive its claim for attorneys fees. But the trial court granted the motion and struck attorneys fees from the final judgment.

At the outset, we reject landlord’s argument that the standard of review is abuse of discretion as to the precise issue raised in this appeal. The issue does not involve the discretion typically applied in reviewing the amount of fees. Stockman created a rule of procedure with an exception. The only dispute here is entitlement to fees under the rule and its exception, a legal issue.

Stockman explained its limited exception for attorneys fees to be made in a pleading thus:

“Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees. See, e.g., Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983) (defendant’s failure to raise entitlement to attorney’s fees until after judgment not fatal to claim where issue of attorney’s fees was raised at pretrial conference and plaintiffs pretrial statement listed defendant’s entitlement to fees as an issue); Mainlands of Tamarac by Gulf Unit No. Four Ass’n, Inc. v. Morris, 388 So.2d 226 (Fla. 2d DCA 1980) (parties’ stipulation during trial that the question of attorney’s fees would be heard subsequent to final hearing would permit recovery of attorney’s fees despite failure to plead entitlement to fees).” [e.s.]

573 So.2d at 838. Plainly the purpose of the Stockman rule is notice to the party having to pay such fees. But if an adversary attempts to claim such fees without a pleading, Stockman pointedly requires the party who would oppose the fees to make a formal objection.

One of the two examples cited by Stock-man illustrates application of the limited exception. Defendant’s failure in Brown v. Gardens by the Sea South Condominium Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983), to plead fees did not doom the claim where the party asserted a claim for fees at the pretrial conference and filed a pretrial statement listing entitlement to fees as an issue to be decided at trial. 424 So.2d at 183-84.

An implicit rationale for Stockman’s exception — -and its concomitant requirement of objecting to an unpleaded claim — is that under the Rules of Civil Procedure the failure to object to a claim not pleaded may operate as a consent to amendment of the pleading to include the claim. Under the circumstances, tenant was entitled under rule 1.190(b) to have its pleading amended to claim fees and thus conform its pleading to the record of claiming such fees throughout the case. If landlord desired to insist on a strict application of the Stockman rule and avoid its exception, it was necessary to object when tenant attempted to claim fees without a formal pleading.

We therefore conclude that it was error upon rehearing to strike the award of fees from the final judgment. We remand for the restoration of the award of fees in favor of the tenant. The trial court shall determine a reasonable fee for the tenant’s representation in the trial court and for this appeal.

Reversed.

CIKLIN, J. and LEBAN, MARK KING, J., Associate Judge, concur.

      . See Fla. R. Civ. P. 1.100(a) (defining pleadings permitted in civil actions).

      . Tenant’s Memorandum in opposition to landlord’s motion for default and possession claimed attorneys fees under the lease provision. Tenant’s Trial Brief requested judgment and an award of fees under the lease provision.

      . The Stockman rule seems categorical. It is a very simple matter to comply with it. See Green v. Sun Harbor Homeowners Ass’n, 685 So.2d 23, 25 (Fla. 4th DCA 1996) (general rule is an easy one). Stockman could have designed the rule without exceptions. As a reviewing court, we are reluctant to whittle away the force and effect of the rule by excusing noncompliance or enlarging the exception.

      . Whether a claim falls under the rule or its exception presents a legal question. Hirschenson v. Hirschenson, 996 So.2d 905, 907 (Fla. 4lh DCA 2008) (issue of entitlement to attorney's fees based on interpretation of statute is pure matter of law involving de novo review); Hinkley v. Gould Cooksey Fennell O’Neill Marine Carter & Hafner P.A., 971 sold 955, 956 (Fla. 5th DCA 2007) (when entitlement to attorney's fees is based on interpretation of contract or statute as a pure matter of law appellate court undertakes de novo review); Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000) (same); Allstate Ins. Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006) (same).

      . Green v. Sun Harbor Homeowners’ Ass’n, 685 So.2d 23, 24 (Fla. 4th DCA 1996) (“The primary focus of Stockman is actual notice of a claim for fees, not whether the notice had to take the form of a pleading, to the exclusion of a motion”).

      . See Fla. R. Civ. P. 1.190(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues"); Brown, 424 So.2d at 184 (failure to object to fees lulled party into believing claim for fees was alive and would be adjudicated).

      . See also Rochlin v. Cunningham, 739 So.2d 1215 (Fla. 4th DCA 1999) (motion for fees filed before ruling on motion to dismiss).

      . See Wintter & Associates P.A. v. Kanowsky, 992 So.2d 434 (Fla. 4th DCA 2008) (holding that written argument objecting to request for fees because fees had not been pleaded was sufficient to overcome exception).


text:
    Sean S. PIGGOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4826.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.
    Sean Piggott, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant’s Florida conviction became final in December 2002. He had been sentenced thereunder to two life terms consecutive to a conviction in Massachusetts he was already serving. He completed his Massachusetts sentence in August 2006 and was delivered to authorities a few days later to begin serving his Florida sentence. Two years later, under rule 3.850 he filed a motion for relief from the conviction asserting several grounds. The trial judge summarily dismissed the motion on the basis that it was temporally barred, having been filed more than two years after his Florida conviction became final in 2002.

On appeal from that summary dismissal, he argues that he was entitled to a hearing to show that, owing to the lack of access to Florida legal materials, the time limit for rule 3.850 relief was tolled while he was incarcerated out of state. He relies on Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997) (prisoner held in out-of-state facility without either legal reference materials of Florida or reasonable alternatives is deprived of access to Florida courts in violation of his constitutional rights). Although not cited by defendant, we also take notice of Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007), holding that the trial court should afford defendant the opportunity to show that the limitations period is deemed tolled while he was held out-of-state without access to Florida legal materials. See also Ruiz v. State, 3 So.3d 385 (Fla. 2d DCA 2009) (same).

This district has not adopted Demps. The advance of technology, with its increased access to many kinds of materials and information, raises questions about its continuing validity. Still, the trial judge was bound to follow Demps even though this court had not expressed itself on the issue. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (in absence of conflict, decisions of Florida District Courts of Appeal represent law of Florida unless overruled by Florida Supreme Court; where only appellate case on point is from outside district in which trial court is located, trial court is bound to follow that decision). At this point, without adopting Demps as still reliable for this district, we reverse and remand for the trial court to allow defendant to establish predicate facts for his alleged avoidance of the limitations bar as in Demps.

Reversed.

POLEN and DAMOORGIAN, JJ„ concur.

      . Fla. R.Crim. P. 3.850(b) (in a noncapital case motion must be filed within 2 years after judgment and sentence become final).

      . Demps was decided 12 years ago. Access to legal materials today does not always require actual physical receipt of paper documents. Under current internet technology legal materials may be available from remote locations, even in some prisons.


text:
    Elmo GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-563.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.

      Elmo Golden, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Elmo Golden appeals a circuit court order summarily denying his motion for postconviction relief raising multiple claims of error and ineffective assistance of trial counsel. We affirm the order summarily denying all of the claims except for Golden’s claim of ineffective assistance of trial counsel for failure to move to suppress his statements made to police. On that claim, we find that the trial court’s summary denial should have been without prejudice to Golden’s right to file an amended motion. Spera v. State, 971 So.2d 754 (Fla.2007).

We reverse the summary denial of that one claim of ineffective assistance and remand for the circuit court to grant appellant leave to amend his motion to plead a legally sufficient claim on that ground. On the other grounds, the circuit court order is affirmed.

Affimed in Part, Reversed and Remanded in Part for Further Proceedings.

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


author: WALLACE, Judge.

text:
    C. Thomas PETERSEN, Appellant, v. Edmund S. WHITSON, Jr., Appellee.
    No. 2D09-877.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2009.

      William H. Phelan, Jr., of Bond, Arnett, Phelan, Smith & Craggs, P.A., Ocala, for Appellant.
    William H. Walker and Adam S. Ruben-field of The Law Office of William H. Walker, Chartered, St. Petersburg, for Ap-pellee.
   WALLACE, Judge.

This nonfinal appeal arises out of an action to renew a judgment brought by Edmund S. Whitson, Jr. (the judgment creditor), against C. Thomas Petersen (the judgment debtor). The judgment debtor, a Georgia resident, challenges the circuit court’s order denying his motion to dismiss the action for lack of personal jurisdiction. Because an action to renew a judgment is merely a continuation of the original proceeding, the circuit court had continuing jurisdiction over the nonresident judgment debtor for the purpose of the judgment creditor’s action. Accordingly, we affirm the circuit court’s order.

THE FACTS AND PROCEDURAL BACKGROUND

In September 1988, Whitson & Whitson, P.A., a Florida professional association, filed an action in the Pinellas County Circuit Court against the judgment debtor. When the original action was commenced, the judgment debtor was a resident of Florida, conducted business in Florida, and maintained an office in Florida. The judgment debtor was served with process and appeared pro se in the original action. He did not contest the circuit court’s jurisdiction over his person. On December 6, 1988, the circuit court entered a final summary judgment in favor of Whitson & Whitson, P.A., and against the judgment debtor for damages in the amount of $434,514.96. Subsequently, Whitson & Whitson, P.A., assigned the judgment to the judgment creditor.

In June 2007, the judgment debtor left Florida and moved to Georgia. The judgment debtor has been a resident of Georgia since he left Florida.

On April 25, 2008, the judgment creditor filed an action in the Pinellas County Circuit Court to renew the original judgment. In his complaint, the judgment creditor alleged the following pertinent matters: (1) the entry of the original judgment; (2) the judgment creditor’s ownership of the judgment by assignment from Whitson & Whitson, P.A.; (3) nonpayment of the judgment; (4) the amount of the balance due on the judgment with accrued interest; (5) the judgment debtor’s residence in Pi-nellas County when the original judgment was entered; (6) the judgment debtor’s current residence in Georgia; and (7) allegations supporting service on the judgment debtor outside the State of Florida under section 48.193, Florida Statutes (2007).

After the judgment debtor was served with process in Georgia, he filed a motion to dismiss for lack of jurisdiction over the person and a supporting affidavit. The judgment debtor’s affidavit recited the facts concerning his relocation to Georgia and his current lack of any substantial contacts with Florida. In his motion, the judgment debtor argued that he was not a Florida resident and that he had not “done any act which would submit himself to the jurisdiction of the courts of the State of Florida!] pursuant to § 48.193, Fla. Stat. (2007)[,] or otherwise.”

After a hearing, the circuit court ruled that it had jurisdiction over the judgment debtor at the time of the original action “and such jurisdiction continued to the filing of the instant (renewal ...) action.” Finding service against the judgment debtor under section 48.193 to be valid, the circuit court denied the judgment debtor’s motion to dismiss. This appeal followed.

DISCUSSION

“[A] judgment, whether domestic or foreign, constitutes a cause of action upon which a new and independent action may be based.” Crane v. Nuta, 157 Fla. 613, 26 So.2d 670, 671 (1946). “[T]he main purpose of an action on a judgment is to obtain a new judgment which will facilitate the ultimate goal of securing satisfaction of the original cause of action.” Adams v. Adams, 691 So.2d 10, 11 (Fla. 4th DCA 1997) (citing 47 Am.Jur.2d Judgments § 945 (1995)). The statute of limitations applicable to an action on a judgment or decree of a court of record in Florida is twenty years. § 95.11(1), Fla. Stat. (2007); Commercebank, N.A. v. Taylor, 964 So.2d 817, 818 (Fla. 3d DCA 2007); Marsh v. Patchett, 788 So.2d 353, 354 (Fla. 3d DCA 2001). “ ‘[I]f the statute of limitation period has almost run on the judgment ... the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment.’ ” Adams, 691 So.2d at 11 (alterations in original) (quoting Koerber v. Middlesex College, 136 Vt. 4, 383 A.2d 1054, 1057 (1978)). By bringing a new action on the judgment, the life of the original judgment may be extended. See Marsh, 788 So.2d at 355 (citing Adams, 691 So.2d at 11).

The writ of scire facias was formerly used in Florida to revive a dormant judgment so that execution could issue. See Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 805 So.2d 835, 841 (Fla. 4th DCA 2001) (citing Spurway v. Dyer, 48 F.Supp. 255, 258 (S.D.Fla.1942)). See generally Henry P. Trawick, Jr., Florida Practice and Procedure §§ 25:16, 37:9 (2008-09) (explaining the function of the writ of scire facias). A proceeding by writ of scire facias to revive a judgment was regarded not as a new proceeding but rather as a continuation of the original action. See B.A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So.2d 667, 669 (1943); Massey v. Pineapple Orange Co., 87 Fla. 374, 100 So. 170, 171 (1924).

In our view, an action on a judgment, whether under a new complaint or by a writ of scire facias, is a continuation of the original action. See McGraw v. Parsons, 142 Mich.App. 22, 369 N.W.2d 251, 252 (1985). From this premise, it follows that the court that rendered the judgment in the original action has continuing jurisdiction over the defendant in an action to renew the judgment. See Huff v. Pharr, 748 F.2d 1553, 1555 (11th Cir.1984); Cadle Co. II, Inc. v. Fiscus, 163 Cal.App.4th 1232, 78 Cal.Rptr.3d 238, 244 (2008); Kaylor v. Turner, 210 Ga.App. 2, 435 S.E.2d 233, 235 (1993), disapproved, on other grounds by Okekpe v. Commerce Funding Corp., 218 Ga.App. 705, 463 S.E.2d 23, 25 (1995); Bank of Edwardsville v. Raffaelle, 381 Ill. 486, 45 N.E.2d 651, 653 (1942); Bahan v. Youngstown Sheet & Tube Co., 191 So.2d 668, 671-72 (La.Ct.App.1966); Ewing v. Bolden, 194 Mich.App. 95, 486 N.W.2d 96, 99 (1992); McGraw, 369 N.W.2d at 252; Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570, 574 (1948). Thus the circuit court had continuing jurisdiction over the judgment debtor and properly denied his motion to dismiss.

Affirmed.

WHATLEY and LaROSE, JJ., Concur.

      . This court has jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(c)(i).

      . The statement of the facts and procedural background is taken from the circuit court’s order and the documents provided by the. judgment debtor in the appendix to his initial brief.

      . Relief that was formerly available by scire facias may now be obtained by motion after notice. See Fla. R. Civ. P. 1.100(d).


text:
    Robert Wayne MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-78.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 2009.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   UPON MANDATE FROM OF THE SUPREME COURT

PER CURIAM.

Upon the Mandate of the Supreme Court, see Murray v. State, 7 So.3d 532 (Fla.2009), we quash the sentence and remand the case to the trial court for reconsideration of the sentence in light of Yisrael v. State, 993 So.2d 952 (Fla.2008).

GROSS, C.J., WARNER and FARMER, JJ., concur.


text:
    STATE of Louisiana v. Marty PALMER.
    No. 2009-KK-0044.
    Supreme Court of Louisiana.
    July 1, 2009.

      James D. Caldwell, Attorney General, Van H. Kyzar, District Attorney, Robert Stuart Wright, Assistant District Attorney, for Applicant.
    The Whitehead Law Offices, Charles Raymond Whitehead, Jr., Natchitoches, for respondent.
   PER CURIAM.

11 Charged by bill of information with possession of a Schedule III controlled substance with intent to distribute in violation of La.R.S. 40:968(A), defendant moved to suppress the evidence, 56 pills of Lortab, seized by the police on June 6, 2007. After a hearing conducted on October 24, 2007, the trial court denied the motion with written reasons. Defendant sought review in the Third Circuit, which granted his writ and overturned the ruling of the trial court. State v. Palmer, 08-0621 (La.App. 3rd Cir.12/10/08), 1 So.3rd 689. We granted the state’s writ of review to consider the court of appeal’s decision and now reverse because we fully subscribe to the views of the trial court that the police acted reasonably under the circumstances in detaining and handcuffing defendant among several other individuals during an investigation conducted on the premises of a residence long the subject of citizen complaints about ongoing drug trafficking.

12Those citizen complaints culminated in the events of June 6, 2007, when the Natchitoches Drug Task Force received three more calls regarding apparent drug trafficking from 210 Shoreline Drive in Bossier, Louisiana. One caller reported that within half an hour, 16 vehicles had visited the address but stayed only for seconds. According to Sergeant Henson, similar calls on numerous prior occasions had prompted the Task Force approximately one month before to arrange a controlled purchase of a small amount of methamphetamine from the residence by one of its confidential informants.

The controlled buy evidently did not lead to immediate action but after receiving the third call on June 6, Sergeant Henson, accompanied by other members of the Task Force, including Detective Glen Sers from the Natchitoches Parish Sheriffs Office, drove to the residence accompanied by members of the Sheriffs Office Criminal Patrol Division. As the squadron approached, they observed several individuals spill out of the residence and walk quickly towards vehicles parked on the premises. The officers also spotted two individuals emerge from the back door of the residence at a dead run. As other officers pursued the two fleeing men and eventually caught them several houses away, Sergeant Henson approached the open front door of the residence, knocked, and then walked inside where he encountered the occupant, Crystal Swan. The sergeant asked for and received Swan’s consent to a search of the residence. At that time, Sergeant Henson also notified the other officers on the scene to detain everyone else on the premises. The ensuing search of the home revealed a “significant amount” of marijuana, a small amount of methamphetamine, narcotics paraphernalia, and “long guns,” presumably rifles.

As the search proceeded, the other officers rounded up all of the individuals still on the scene, handcuffed them, and herded them into a circle under the watch of [3two of the agents. Defendant was in the group with his hands cuffed behind his back. He had been detained initially by Detective Sers, who stopped him on the porch at the rear of the residence, frisked him, and then cuffed him, although he had detected no weapons, “until we could identify him.... We wasn’t gonna turn him loose to go ... and he might have had a warrant or anything else on him.” Sers also asked for and obtained defendant’s consent to search his vehicle on a printed form after releasing the cuffs momentarily. According to the detective, after the officers “found some stuff inside the house” they “wanted to check the vehicles to make sure nothing additional [was] in the vehicles.” Detective Sers then found the 56 Lortab pills in the glove compartment of defendant’s vehicle, placed defendant under arrest, searched him, and retrieved $450 in cash.

Sergeant Henson estimated that 18 or 14 individuals had been present on the scene when the Task Force arrived. He explained that the officers used handcuffs in detaining the individuals “due to the amount of people that was there, the amount of traffic that had been informed to us.” According to Detective Sers, the cuffs came out “for detainment .... people were leaving the residence ... there were more people there than there were officers almost....” The detective added that, given the reports of drug activity at the residence, the number of people rushing out of the doors of the residence underscored the need to detain them safely, as “drugs and weapons coincide a whole lot.”

In its reasons denying the motion to suppress, the trial court found that the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), and this Court’s opinion in State v. Porche, 06-0312 (La.11/29/06), 943 So.2d 335, governed the present case, as the need of the police to exercise unquestioned command in an extremely fluid situation, in which numerous ^persons were pouring out of the residence and scattering at the approach of the officers, justified detention of all persons on the scene temporarily to maintain the status quo as the police investigated the reports of ongoing drug activity. In the court’s view, the fluid and uncertain situation further justified the incremental intensification of the detentions caused by the use of handcuffs. The court thereby gave “due deference” to the officers’ decisions made on the scene to ensure their safety in uncertain and changing circumstances. Given that premise, the trial court concluded that defendant’s consent to the search of his car, leading to the recovery of the Lortab pills, was not the product of any prior illegal conduct by the police.

Disagreeing with that conclusion, the Third Circuit found that the officers in the Task Force “had nothing more than suspicion of criminal activity based upon information from unidentified ‘citizen’ callers who had only observed cars coming and going for brief periods of time from the residence.... Absolutely no evidence was presented to show that Mr. Palmer was committing, had committed or was about to commit some criminal offense. Mr. Palmer was merely seen walking out of a residence in which unknown citizens suspected drug activity.” Palmer, 08-0621 at 8, 1 So.3d at 695. In addition, the court of appeal found that “[t]he only fact or circumstance ... articulated in this case as the reason for immediately handcuffing and frisking defendant Palmer and others,” ie., that “the police were outnumbered and had concern for their safety,” did not adequately justify handcuffing the defendant because “the State witnesses did not articulate any particularized reason for believing defendant Palmer was armed or violent.” Id. 08-0621 at 9, 1 So.3d at 696. Thus, the court of appeal reasoned, “[e]ven if the ‘safety’ of the officers suffices as a legitimate basis for initially stopping defendant and conducting a pat down of his person for weapons, we are satisfied the continued detention and handcuffing of |defendant by the officers far exceeded the permissible limits of an investigatory stop or detention for this purpose.” Id. 08-0621 at 10, 1 So.3d at 696. The only other reason articulated by Sergeant Henson, that he needed to determine whether defendant had any outstanding warrants, did not, in the view of the court of appeal, justify that continued detention based “on nothing more than suspicion with the articulated intent of the police to hold him and restrict his freedom until they could determine whether there was any warrant for his arrest outstanding or whether they could somehow connect him to any illegal activity after searching his case.” Id. The court of appeal thus concluded that given the circumstances of the encounter which resembled more a de facto arrest than a brief investigatory detention, defendant’s consent to the search of his vehicle “was tainted by the illegal conduct of the police in handcuffing and continuing to detain him without probable cause.” Id. 08-0621 at 11,1 So.3d at 697.

However, the court of appeal erred by substantially understating the circumstances confronting the Task Force members as they approached the residence and thereby failing to accord due deference to the trial court’s factual findings. State v. Hampton, 98-0331, p. 12 (La.4/23/99), 750 So.2d 867, 884 (“As a general rule, deferential standards of review apply to factual and other trial determinations, while determinations of law are subject to de novo review.”); cf. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)(While “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal .... a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”). In the present case, the officers did not “merely” observe defendant walking out of a | (¡residence in which unidentified citizens suspected drug-activity. In fact, as the trial court found on the basis of Sergeant Henson’s testimony, the officers observed several persons emerge from the front of the home and walk “very quickly” towards vehicles parked on the scene. They also observed two other individuals sprint away from the back door. The trial court specifically found that the activity had been prompted by the arrival of the officers on the scene.

In all, according to Sergeant Henson, the officers observed 13 or 14 people on the premises shortly after the police received information from the unidentified concerned citizens which conveyed not simply unparticularized suspicions but also a factual report of unusually heavy vehicular traffic over a short period of time involving stops of extremely brief duration suggestive of ongoing drug trafficking. See, e.g., United States v. Hernandez Leon, 379 F.3d 1024, 1027-28 (8th Cir.2004)(“The redacted affidavit includes reference to the citizen reports about suspected drug trafficking at the address and [the officer’s] observations of heavy foot and vehicle traffic there, involving short visits during all hours of the night.... They obtained entry into the house by consent and discovered marijuana and a drug pipe inside it ... corroborating] the citizen reports of suspected drug trafficking.”). That specific factual information, although from an unidentified citizen source, appeared entirely consistent with what the police knew from their own experience gained when their confidential informant made a purchase of methamphetamine from the residence a month earlier and with what the officers then observed as they approached the residence and various individuals responded by scattering from the premises. Under the totality of the circumstances, the police had an objective and apparently reliable basis for suspecting renewed or ongoing drug trafficking at the residence, i.e., the 'requisite minimal level of objective justification for an investigatory detention of all 17of the individuals on the scene to take unquestioned command of the situation and to maintain the status quo temporarily while the investigation continued. Ornelas, 517 U.S. at 695-96, 116 S.Ct. at 1661 (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible. They are eommonsense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.... We have described reasonable suspicion simply as a particularized and objective basis for suspecting the person stopped of criminal activity.... [Reasonable suspicion and probable cause] are fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed.”)(internal quotation marks and citations omitted); cf. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000)(“Headlong flight— whenever it occurs — is the consummate act of evasion. It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”); State v. Williams, 421 So.2d 874, 877 (La.1982)(“[G]iven the sudden departure of the trio [of men] at the approach of the police, given the furtive gesture of one of them and the coincident attempt at departure by defendant in his vehicle, the officers’ hunch had flowered into reasonable suspicion, based on articu-lable facts.... At that point the officers were entitled to demánd of defendant ‘his name, address and explanation of his actions.’ ”)(citing La.C.Cr.P. art. 215.1).

| Jn addition, while an otherwise lawful detention or seizure “reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope,” Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968), the trial court properly found in the present case that the tactics employed by the Task Force members after they entered the premises, herding the 13 or 14 individuals together and handcuffing them under the watch of two of the officers while the search of the home proceeded with the consent of the occupant, resembled the tactics employed by the police in Mena, in which the members of the SWAT team executing a search warrant gathered Mena and three other occupants found on the premises together in handcuffs, herded them into a converted garage, and held them there under the watch of two officers as the search of the main house proceeded over the course of two or three hours. In sanctioning those tactics, the Supreme Court emphasized the high-risk nature of the investigation. Mena, 544 U.S. at 100, 125 S.Ct. at 1470-71 (“[T]his was no ordinary search. The governmental interests in not only detaining, but using handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the premises.”). However, the Court also noted that “[t]hough this safety risk inherent in executing a search |9warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable.” Id., 544 U.S. at 100, 125 S.Ct. at 1471 (citing Maryland, v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997))(“[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car.”). Thus, the nature of the investigation combined with the number of persons detained constituted the particularized circumstances which justified handcuffing all four occupants in Mena, although there was no particularized showing that Mena herself or any of the other individuals on the premises posed a specific threat to officer safety. In fact, the police found Mena asleep in her bed and led her barefoot in nightclothes out of the house to the garage with the other occupants. Mena, 544 U.S. at 107, 125 S.Ct. at 1475 (Stevens, J., concurring). The eight-member SWAT team also had them outnumbered by a factor of two to one. Id.

The present case did not pose the same level of risk to officer safety as in Mena. We have cautioned that the well-known association of drugs and firearms does not invariably justify the use of handcuffs in detaining persons short of formal arrest, as each case must turn on its particular circumstances. Porche, 06-0312 at 9, 943 So.2d at 340 (“In the absence of such particularized concerns, ordinarily the naked fact that drugs are suspected will not support a per se justification for use of guns and handcuffs in a Terry stop.”)(internal quotation marks and citation omitted). On the other hand, the Task Force officers did find drugs and some firearms in the house and they faced a distinct problem of crowd control. Although the record is unclear as to the number of officers involved, and it appears possible the officers arrived in numbers roughly comparable to the number of persons they found on the premises, or only slightly less, we agree with the trial court that the officers’ use of|10handcuffs to detain defendant along with the other individuals on the premises was “objectively reasonable in ‘light of the facts and circumstances confronting [the police], taking into account ‘the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.’” Porche, 06-0312 at 8, 943 So.2d at 339 (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)). We further agree that the effort to identify defendant and to seek his consent to a search of his car after contraband was discovered inside the residence and the citizen tips were confirmed did not unduly prolong the encounter, as a brief detention “ ‘in order to determine [an individual’s] identity or to maintain the status quo momentarily while obtaining more information,’ [is] the hallmark of an investigatory stop.” Porche, 06-0312 at 6, 943 So.2d at 339 (quoting State v. Fauria, 393 So.2d 688, 690 (La.1981)). Cf. Mena, 544 U.S. at 101, 125 S.Ct. at 1471 (questions asked by police during lawful detention of an individual do not constitute an additional seizure within the meaning of the Fourth Amendment because “ ‘[e]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.’ ’’(quoting Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)).

111 Accordingly, the decision of the Third Circuit is reversed, the ruling of the trial court denying the motion to suppress is reinstated, and this case is remanded to the district court for further proceedings consistent with the views expressed herein.

DECISION OF COURT OF APPEAL REVERSED; TRIAL COURT’S DENIAL OF MOTION TO SUPPRESS REINSTATED; CASE REMANDED.

JOHNSON, J., concurs.

      . Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.

      . Defendant argues that apart from the question of whether the police had reasonable suspicion to detain him, the seizure, which occurred on private property, exceeded the scope of La.C.Cr.P. art. 215.1(A), which authorizes investigatory stops in a "public place." However, for purposes of the Fourth Amendment, the distinction is not between public and private property but between pub-lie and private places, and when an individual steps across the threshold of a home he enters a public place and subject to seizure by the police acting upon probable cause for an arrest or reasonable suspicion for an investigatory stop. Thus, in United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976), the Supreme Court held that the defendant could not forestall her arrest, which began when she was standing in the doorway of her home, simply by stepping back across the threshold into the vestibule of the home. The Court observed:
      While it may be true that under the common law of property the threshold of one’s dwelling is 'private,' as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a 'public' place. She was not in an area where she had any expectation of privacy. "What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). She was not merely visible to the public but was a exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in [U.S. v.] Watson[, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)].

        Santana, 427 U.S. at 42, 96 S.Ct. at 2409.
      We have no reason to suppose that when it used the specific language "public place” in La.C.Cr.P. art. 215.1(A), the legislature meant to circumscribe the scope investigatory stops in Louisiana more narrowly than what the Fourth Amendment permits as reasonable.

      . Defendant argues that before obtaining his signature on the consent form the officers did not comply with La. Const, art. I, § 13, which provides that "[wjhen any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self-incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel." (emphasis added). See also La.C.Cr.P. art. 218.1(same). This Court has observed that in Art. I, § 13 the framers "intended to adopt the Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] edicts full-blown and unfettered.... The use of ‘detained’ in addition to ‘arrested’ was intended to prevent a narrow construction of the latter term." State in Interest of Dino, 359 So.2d 586, 590 (La.1978). In defendant's view, the absence of Miranda warnings tainted his consent and thereby required suppression of the evidence derived from that consent.
      We need not revisit here the question of whether Art. I, § 13 was intended to apply more broadly in the context of investigatory stops in which the person is "detained” but not "arrested," because defendant's consent to the search of his vehicle is a non-communicative and non-testimonial statement falling completely outside of the Fifth Amendment and therefore outside of the Miranda protections incorporated in Art. I, § 13 and La.C.Cr.P. art. 218.1. See United States v. Bustamante, 493 F.3d 879, 892 (7th Cir.2007)("[A] statement granting 'consent to search ... is neither testimonial nor communicative in the Fifth Amendment sense.’ "(quoting Wayne R. LaFave, Jerold H. Isreal, & Nancy J. King, Criminal Procedure § 3.10(b)(2d ed.2007)); United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir.1993)("Every federal circuit court which has addressed the Miranda issue ... has reached the conclusion that a consent to search is not an incriminating statement.... Consenting to a search is not 'evidence of a testimonial or communicative nature’ which would require officers to first present a Miranda warning.”). Thus, the failure of the police to advise defendant of his Miranda rights did not taint his otherwise voluntary consent to the search of his vehicle by signing a form which, according to the testimony at the hearing on the motion to suppress, specifically advised him that he could withhold his consent to the search. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)(test of voluntary consent under the Fourth Amendment does not rely on a waiver of a known right or privilege, e.g., the right to refuse consent, but takes into account the totality of all of the circumstances in determining whether the consent was a product of an individual’s “ 'free and unconstrained choice,' ” or of police duress and coercion.) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)).