author: WETHERELL, J.

text:
    Antonio R. HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0363.
    District Court of Appeal of Florida, First District.
    July 7, 2014.

      Antonio R. Hernandez, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

In this postconviction case, the appellant, Antonio R. Hernandez, contends that his habitual felony offender (HFO) sen-fence for possession of contraband in a state correctional facility is illegal because the contraband he possessed was a controlled substance. The trial court concluded that the sentence is legal because possession of contraband in a state correctional facility is not a violation of section 893.13, Florida Statutes. We agree and, therefore, affirm the trial court’s order denying Hernandez’s rule 3.800(a) motion.

In 2006, following a plea, Hernandez was convicted of possession of contraband in a state correctional facility in violation of section 944.47, Florida Statutes. The contraband possessed by Hernandez was cannabis, and as a result, he was also convicted of possession of cannabis in violation of section 893.13, Florida Statutes. Hernandez was sentenced as an HFO to 16 years in prison for the possession of contraband conviction, but the prison term was suspended conditioned upon Hernandez’s successful completion of community control and probation. In 2008, after Hernandez admitted a probation violation, the trial court revoked his probation and imposed the previously-suspended prison sentence. Hernandez did not file a direct appeal.

In 2013, Hernandez filed a rule 3.800(a) motion alleging that his HFO sentence is illegal because the possession of contraband conviction upon which it is based involved the possession of a controlled substance. The trial court denied the motion, but noted the absence of any controlling authority from this court on the issue raised by Hernandez. This appeal followed.

A defendant may be sentenced as an HFO if the criteria in section 775.084(l)(a), Florida Statutes, are met. Here, Hernandez contends that his HFO sentence is illegal because the possession of contraband conviction does not meet the criterion in subparagraph (l)(a)3. of the HFO statute. That subparagraph provides in pertinent part that a defendant may not be sentenced as an HFO for an offense that is “a violation of s. 898.13 relating to the purchase or the possession of a controlled substance.” § 775.084(l)(a)3„ Fla. Stat. (2005).

In support of the argument that his HFO sentence is illegal, Hernandez relies primarily on Hughes v. State, 850 So.2d 664 (Fla. 1st DCA 2003), in which this court held that the defendant was improperly sentenced as an HFO based upon his prior conviction for obtaining a controlled substance by fraud in violation of section 893.13(3)(a)l., Florida Statutes. The court reasoned that this offense required an intent to possess a controlled substance and “is therefore, on its face, a violation of s. 893.13 relating to the purchase or possession of a controlled substance.” Id. at 665. Accord Dougherty v. State, 33 So.3d 732, 734 (Fla. 5th DCA 2010) (reversing HFO sentence for conviction of acquiring a controlled substance by fraud because the statute defining that offense “clearly relates to possession of a controlled substance and is included within section 893.13”).

Hughes is distinguishable. Unlike the defendant in Hughes, who had been convicted of violating a specific provision in section 893.13, Hernandez was convicted of violating a provision in chapter 944, Florida Statutes. The fact that the contraband possessed by Hernandez was a controlled substance is immaterial for purposes of the HFO statute because the statute does not prohibit HFO sentences for all crimes involving the possession of a controlled substance; rather, the statute only prohibits HFO sentences for crimes listed in section 893.13 that involve the purchase or possession of a controlled substance. See Baldruin v. State, 684 So.2d 254 (Fla. 3d DCA 1996) (affirming HFO sentence for tampering with evidence conviction because, even though evidence tampered with was cocaine, defendant’s conviction “is not under section 893.13, Florida Statutes, but instead is under the tampering statute, section 918.13, Florida Statutes”).

Because Hernandez was not sentenced as an HFO for an offense listed .in section 893.13, his sentence is not illegal and the trial court correctly denied his rule 3.800(a) motion. Accordingly, we affirm the order on appeal.

AFFIRMED.

LEWIS, C.J., and WOLF, J., concur.

      . The motion did not challenge the legality of Hernandez’s concurrent non-HFO sentence for possession of cannabis. This court previously affirmed orders denying Hernandez’s postconviction motions challenging that conviction and sentence on double jeopardy grounds. Hernandez v. State, 81 So.3d 420 (Fla. 1st DCA 2012) (table); Hernandez v. State, 53 So.3d 1027 (Fla. 1st DCA 2010) (table).

      . This court affirmed HFO sentences imposed for convictions of possession of contraband in a state correctional facility in Cribbs v. State, 599 So.2d 246 (Fla. 1st DCA 1992), and Leftwich v. State, 589 So.2d 385 (Fla. 1st DCA 1991), but those cases did not address the specific issue raised by Hernandez.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Travis McKINNEY, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, et al., Respondents.
    No. 1D14-2462.
    District Court of Appeal of Florida, First District.
    July 8, 2014.

      Travis McKinney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

For the third time in less than six months, Travis McKinney petitions this court for habeas corpus relief concerning his convictions and sentences in Wakulla County Circuit Court case number 02-0012CF. His present claims are procedurally barred both as successive and as presenting matters that could or should have been raised either on direct appeal or by appropriate postconviction motion. See Johnson v. Singletary, 647 So.2d 106, 109 (Fla.1994); Baker v. State, 878 So.2d 1236 (Fla.2004). Accordingly, the emergency petition for writ of habeas corpus is DISMISSED.

Petitioner is warned that the filing of any further successive or unauthorized pleadings concerning Wakulla County case number 02-0012CF may result in the imposition of sanctions, including but not limited to a bar on further pro se appearances before this court.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    Frank A.L. MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3720.
    District Court of Appeal of Florida, First District.
    July 8, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

A jury convicted Frank A.L. Mosley of lewd and lascivious molestation (Count I) and aggravated stalking (Count II). Mosley was sentenced to consecutive sentences with prison releasee reoffender (PRR) enhancement on both counts. Mosley appealed his judgment and sentence. His convictions were affirmed by this court without comment, but the case was remanded to the trial court for resentencing. In reversing the original sentence, we explained that PRR sentences may not be ordered to run consecutively when the crimes were committed during a single criminal episode. Mosley v. State, 112 So.3d 538 (Fla. 1st DCA 2013), rev. granted, No. SC13-704, 2014 WL 305705 (Fla. Jan. 14, 2014). On remand, the trial court sentenced Mosley to consecutive sentences, but removed the PRR designation from Count II.

Mosley appeals his new sentences, arguing that he should be awarded jail time credit against both counts of his consecutive sentences, and that he should have been offered assistance of counsel upon resentencing. We do not agree with Mosley that presentence jail credit should apply to both counts of his consecutive sentences. Jail time credit need not be applied to all consecutive sentences. Gillespie v. State, 910 So.2d 322, 324 (Fla. 5th DCA 2005). A defendant “is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition of multiple charges or cases.” Miller v. State, 297 So.2d 36, 38 (Fla. 1st DCA 1974). Because Mosley is not entitled to jail time credit on both counts of his consecutive sentences, the trial court did not err in awarding Mosley presentence jail time only for Count I.

However, we agree with Mosley that the trial court erred in failing to offer him assistance of counsel. A defendant has the right to be represented by counsel during a resentencing hearing where the court is exercising discretion. Bines v. State, 837 So.2d 1146, 1147 (Fla. 1st DCA 2003).

REVERSED and REMANDED for re-sentencing.

THOMAS, ROWE, and MAKAR, JJ., concur.


text:
    Curtis McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3815.
    District Court of Appeal of Florida, First District.
    July 8, 2014.

      Curtis McClendon, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Wes Paxson, III, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The State concedes that grounds one, two and five were improperly denied as facially insufficient because the trial court never granted leave to amend. Thus, we reverse and remand for the trial court to grant the appellant leave to amend grounds one, two and five pursuant to Spera v. State, 971 So.2d 754 (Fla.2007) (holding that a trial court must allow the defendant at least one opportunity to amend facially insufficient claims). We otherwise affirm the order on appeal.

AFFIRMED in part, REVERSED and REMANDED in part.

WOLF and WETHERELL, JJ., and MONACO, TOBY S., Associate Judge, concur.


text:
    Vincent LEFTWICH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1464.
    District Court of Appeal of Florida, First District.
    July 8, 2014.
    Vincent Leftwich, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The “Motion for Discretionary Review” is treated by the court as a petition for writ of habeas corpus, and is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    Alton BLACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2024.
    District Court of Appeal of Florida, First District.
    July 8, 2014.
    Alton Black, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition for belated appeal is denied as legally insufficient.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    Aaron S. BURNS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0923.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Johnny WELCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2406.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Johnny Welch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(c)(5)(A).

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Lucious JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2790.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Lucious Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: BLACK, Judge.

text:
    McKenzie Leroy LUNSFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2670.
    District Court of Appeal of Florida, Second District.
    July 9, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

We affirm McKenzie Lunsford’s convictions and sentences without comment. However, we remand for entry of a corrected judgment reflecting that Lunsford pleaded only to counts 1, 2, and 3, and was convicted after a jury trial of counts 4 and 5. See Willingham v. State, 48 So.3d 173 (Fla. 2d DCA 2010).

KHOUZAM, J., and BAUMANN, HERBERT J., JR., Associate Judge, Concur.


text:
    David HODIERNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3995.
    District Court of Appeal of Florida, Second District.
    July 9, 2014.

      Howard L. Dimmig, II, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

David Hodierne challenges his judgment and sentence for home invasion robbery with a deadly weapon while wearing a mask. We affirm the judgment without comment. However, because Hodierne was denied the opportunity to give his full statement to the court before he was sentenced, we reverse his sentence and remand for a new sentencing hearing.

Florida Rule of Criminal Procedure 3.720(b) provides that the sentencing court “shall entertain submissions and evidence by the parties that are relevant to the sentence.” The language of the rule is mandatory, Culbertson v. State, 306 So.2d 142, 143 (Fla. 2d DCA 1975) (citing Mask v. State, 289 So.2d 385, 387 (Fla.1973)), and “[ujnder this rule, [the defendant is] entitled to make a statement and present argument to the court,” Davenport v. State, 787 So.2d 32, 32 (Fla. 2d DCA 2001).

At his sentencing hearing, Hod-ierne was permitted to begin reading a prepared statement to the court. However, in an attempt to abbreviate the sentencing hearing and apparently return to a trial, the court prevented Hodierne from reading his entire statement and instead instructed that the written statement be entered into evidence. The court immediately proceeded to sentence Hodierne to the maximum term, life in prison. It is apparent from the record that the court did not consider the entirety of Hodierne’s statement; this was error. See Goldberg v. State, 65 So.3d 115, 116 (Fla. 3d DCA 2011) (reversing and remanding for resen-tencing where the trial court improperly denied the defendant his rule 3.720 right to submit evidence when it refused to allow the defendant to present rebuttal evidence at the continuation of the sentencing hearing and sentenced defendant without consideration of the additional evidence).

And contrary to the State’s contention, it is not the legality of Hodierne’s sentence that is at issue; rather, it is due process and “[r]especting the right of the defendant to address the court [which] ‘maximizes] the perceived equity of the process.’ ” Ventura v. State, 741 So.2d 1187, 1189 (Fla. 3d DCA 1999) (third alteration in original) (quoting Standards for Criminal Justice § 18-5.17 cmt. at 208 (3d ed. 1994)).

Therefore, we reverse Hodierne’s sentence and remand for the trial court to hold a sentencing hearing at which Hod-ierne shall be permitted to present the entirety of his statement and any other evidence or submission relevant to the sentence, as provided by rule 3.720(b).

Conviction affirmed; sentence reversed and remanded with directions.

KHOUZAM, J., and BAUMANN, HERBERT J., Jr., Associate Judge, Concur.


author: COHEN, J.

text:
    TAMPA CHIROPRACTIC CENTER, INC., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee.
    No. 5D13-854.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.
    Chad A. Barr of Eiffert & Associates, P.A., Orlando, for Appellant.
    Kenneth P. Hazouri of deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
   COHEN, J.

Tampa Chiropractic Center, Inc. (“Tampa Chiropractic”) appeals from the final summary judgment entered in favor of State Farm Mutual Automobile Insurance Company (“State Farm”). Tampa Chiropractic raises two issues on appeal, only one of which merits discussion. It argues that the trial court erred in ruling that it lost subject-matter jurisdiction over the case after State Farm paid the disputed claims. We agree and reverse as to that issue.

In 2010, nine individuals who were insured by State Farm received medical treatment at Tampa Chiropractic for injuries they sustained in automobile accidents and, in turn, assigned their policy benefits to Tampa Chiropractic. Tampa Chiropractic later submitted medical bills to State Farm for reimbursement pursuant to the insureds’ policies. In response to those bills, State Farm sent document requests to Tampa Chiropractic, requesting, among other things, documents relating to the ownership and management of the clinic, tax information, and copies of the clinic’s leases. State Farm claimed that its request for such documents was authorized by section 627.736(6)(b), Florida Statutes (2010). The document request went on to state, in essence, that State Farm would not pay the claims until Tampa Chiropractic complied with the document requests. Another document request advised Tampa Chiropractic that “[fjailure to comply with this request may place you in violation of [section 627.736(6)(b) ] and we may choose to seek an order from the court to allow the release of such information to us, and seek reimbursement of our cost in attorney fees as permitted by law.” Soon thereafter, Tampa Chiropractic’s attorneys responded to State Farm, maintaining that the requests were outside the scope of documents that were required to be furnished under section 627.736(6)(b), because they did not seek information regarding the insureds’ medical treatment.

State Farm instituted a declaratory judgment action on a matter not relevant to the issue addressed in this opinion. Tampa Chiropractic later filed an amended counterclaim seeking a declaratory judgment stating that State Farm’s document requests were outside the scope of section 627.736(6)(b), and that State Farm could not predicate payment of the subject claims on Tampa Chiropractic’s response to such requests. In its answer to the amended counterclaim, State Farm requested a declaration that its document requests were proper under section 627.736(6)(b) and asked the trial court to order Tampa Chiropractic to produce the documents.

Tampa Chiropractic moved for summary judgment. A few months later, State Farm filed a competing summary judgment motion in which it argued that the trial court lacked subject-matter jurisdiction over the case because State Farm had paid the subject medical bills and was no longer seeking the documents that it had previously requested. In support of the motion, State Farm attached the sworn affidavit of its Claim Representative, William Talley, who stated that State Farm had paid Tampa Chiropractic for “all of the bills and charges that are the subject of, or related to, State Farm’s requests for documents.” Talley’s affidavit did not identify the date on which the medical bills were paid by State Farm. Talley’s affidavit further stated that State Farm was no longer seeking production of the documents previously requested.

During the hearing on the competing motions for summary judgment, State Farm reiterated that it was “not withholding payment based on the (6)(b) request anymore.” Tampa Chiropractic countered that, by changing its position regarding its entitlement to the requested documents, State Farm had confessed judgment on the amended counterclaim. Following the hearing, the trial court entered a final summary judgment in favor of State Farm, ruling that the amended counterclaim no longer presented a justiciable controversy or a bona fide need for declaration, and that the court therefore lacked subject-matter jurisdiction over the case. This timely appeal ensued.

On appeal, Tampa Chiropractic argues that the trial court erred in entering the final judgment in favor of State Farm on the basis that it lacked subject-matter jurisdiction over the declaratory judgment action. Tampa Chiropractic further submits that if State Farm paid the disputed claims after it filed its counterclaim, then State Farm confessed judgment, and an award of attorney’s fees to Tampa Chiropractic pursuant to section 627.428, Florida Statutes (2010), is appropriate. We agree.

Section 627.428 provides for the award of attorney’s fees to an insured upon the rendition of a judgment against an insurer in an action between the insurer and its insured. § 627.428, Fla. Stat. “By using the legal fiction of a ‘confession of judgment,’ our supreme court extended the statute’s application” to cases in which the insurer settles or pays a disputed claim before rendition of judgment. Basik Exports & Imports, Inc. v. Preferred Nat’l Ins. Co., 911 So.2d 291, 293 (Fla. 4th DCA 2005) (citing Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983)). When the insurer has agreed to settle a disputed case, “it has, in effect, declined to defend its position in the pending suit,” and its “payment of the claim is ... the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Wollard, 439 So.2d at 218. For the confession of judgment doctrine to apply, the insurer must have unreasonably withheld payment under the policy, id. at 219 n. 2, or engaged in some other wrongful behavior that forced the insured to sue, Gov’t Emps. Ins. Co. v. Battaglia, 503 So.2d 358, 360 (Fla. 5th DCA 1987); see also Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15, 17 (Fla. 5th DCA 2008). This Court has described the rationale for the confession of judgment doctrine as follows:

[T]he statutory obligation for attorney’s fees cannot be avoided [by the insurer] simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe [section 627.428, Florida Statutes,] would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation.

Gibson v. Walker, 380 So.2d 531, 533 (Fla. 5th DCA 1980); accord First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007) (noting that confession of judgment doctrine operates “to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it”); Cincinnati Ins. Co. v. Palmer, 297 So.2d 96, 99 (Fla. 4th DCA 1974) (“[I]t is neither reasonable nor just that an insurer can avoid liability for statutory attorney’s fees by the simple expedient of paying the insurance proceeds to the insured or the beneficiary at some point after suit is filed but before final judgment is entered, thereby making unnecessary the entry of a judgment.”).

We conclude that the trial court erred in entering final summary judgment in favor of State Farm. Instead, the court should have applied the confession of judgment doctrine if State Farm, in fact, paid the claims after Tampa Chiropractic filed the amended counterclaim. At the outset, State Farm not only unreasonably withheld payment based on its contention that the scope of its document requests was proper under section 627.736(6)(b), but it also threatened litigation in the event that Tampa Chiropractic refused to comply with its document requests. In light of State Farm’s position that it would not pay the claims until Tampa Chiropractic produced the documents, Tampa Chiropractic was forced to file suit seeking a declaratory judgment. In its answer to the counterclaim, State Farm maintained its position that it could, in fact, predicate payment on Tampa Chiropractic’s provision of the documents. By the time the summary judgment hearing took place, however, State Farm had paid the disputed claims and changed its position regarding its entitlement to the documents. If State Farm indeed paid the medical bills after Tampa Chiropractic filed its counterclaim, this constitutes a confession of judgment, entitling Tampa Chiropractic to attorney’s fees. Cf. Bassette v. Standard Fire Ins. Co., 803 So.2d 744 (Fla. 2d DCA 2001) (holding that attorney’s fees were properly awarded where insured successfully brought declaratory judgment action seeking declaration that she was not required to execute authorizations for insurer to secure her medical records where insurer had previously advised the insured it would deny coverage if she refused to execute such authorizations); see also Jerkins, 982 So.2d at 18 (holding that insured was entitled to attorney’s fees under section 627.428 where “it appear[ed] that [the insurer] would not have paid [the insureds] the proper amount of the loss without judicial intervention”).

We reject State Farm’s argument that it could not confess judgment in a cause of action over which the trial court lacked subject-matter jurisdiction. This argument is at odds with the very purpose of the confession of judgment doctrine: to deter insurers from contesting valid insurance claims. Under State Farm’s theory, every time an insurer paid a disputed claim while litigation was pending, the court would lose subject-matter jurisdiction over the case and the confession of judgment doctrine would therefore never apply. We disagree with that position.

Nevertheless, the record does not indicate exactly when State Farm paid the medical bills. Accordingly, we reverse the final summary judgment and remand with instructions for the lower court to determine when the payments were made. For the claims paid after Tampa Chiropractic filed its counterclaim, the lower court should enter judgment in favor of Tampa Chiropractic and award attorney’s fees under section 627.428. For the claims paid before the filing of the counterclaim, Tampa Chiropractic will not be entitled to fees based upon a confession of judgment.

We affirm the other issue raised by Tampa Chiropractic without comment.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

EVANDER, J., and SILVERMAN, D.E., Associate Judge, concur.

      . In pertinent part, section 627.736(6)(b) provides that a physician or medical institution that treats an insured after bodily injury upon which a claim for PIP benefits is claimed
      shall, if requested by the insurer against whom the claim has been made, furnish a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial.
      § 627.736(6)(b), Fla. Stat. (2010).

      . Although the instant case involves a suit between the insurer and the insureds’ medical provider. — as opposed to the insureds themselves — this does not preclude us from applying section 627.428 and the confession of judgment doctrine because the insureds assigned their policy benefits to Tampa Chiropractic. See Ind. Lumbermens Mut. Ins. Co. v. Pa. Lumbermens Mut. Ins. Co., 125 So.3d 263, 266 (Fla. 4th DCA 2013) ("An assignee of an insurance claim stands to all intents and purposes in the shoes of the insured and logically should be entitled to an attorney’s fee when he sues and recovers on the claim.”).

      . While section 627.736(6)(b) allows the insurer to request a "written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary” and the clinic’s “records regarding such history, condition, treatment, dates, and costs of treatment,” it does not permit the insurer to request records regarding the ownership and management of the medical provider, or the medical provider’s tax documents or leases. § 627.736(6)(b), Fla. Stat.


author: BERGER, J.

text:
    HAMPTON MANOR, INC., etc., et al., Appellant, v. Joyce FORTNER, Appellee.
    No. 5D12-3568.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.

      Michael E. Rodriguez, of Michael E. Rodriguez, P.L., Tampa, for Appellant.
    Christopher J. Roberts and Joel J. Ewusiak, of Ewusiak & Roberts, P.A., Safety Harbor, for Appellee.
   BERGER, J.

Hampton Manor, Inc., Hampton Manor of Pasco, Inc., Hampton Senior Management, Inc., Hampton Manor North, LLC (hereinafter, collectively, “Hampton”) and Peder Johnsen, appeal an order for civil contempt, which was entered when the trial court found that Hampton CEO, Johnsen, had willfully and intentionally failed to prepare the required Form 1.977 Fact Information Sheet after final judgment was entered in favor of appellee, Joyce Fortner, on her Whistleblower Act claim. We affirm the order in all respects except for the imposition of the $4,000 fine.

“[T]he primary purpose of a civil contempt proceeding is to compel future compliance with a court order. A civil contempt sanction is coercive in nature and is avoidable through obedience.” Chetram v. Singh, 937 So.2d 716, 718-19 (Fla. 5th DCA 2006) (quoting Gregory v. Rice, 727 So.2d 251, 253 (Fla.1999)). “While there is a broad arsenal of coercive civil contempt sanctions available to the trial court, ... to be a valid civil contempt sanction the contempt order must include a purge provision.” Parisi v. Broward Cnty., 769 So.2d 359, 365 (Fla.2000) (citing Gregory, 727 So.2d at 254). “Without this critical protection, there is a danger that the contempt sanction could be transformed from a civil to a criminal contempt sanction without any other underlying procedural protections attendant to criminal proceedings.” Id. (citing Int’l Union, United Mine Workers of Am. u Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994); Pompey v. Cochran, 685 So.2d 1007, 1013 (Fla. 4th DCA 1997)). Thus, a fixed fine with no conditions is considered a criminal sanction because the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance. Id.

In the present case, as relates to the imposition of the $4,000 fine, the written contempt order provides:

Mr. Johnsen may purge this contempt order upon payment of the $4000 fine to the Sheriff for delivery to the Clerk of this court, and the full completion of the four (4) fact information sheets required by the judgment ....

However, the transcript of the proceedings before the trial court clearly demonstrates that the $4,000 fine was not intended to be a means by which Johnsen could purge his jail sentence, but rather it was intended to serve as a coercive sanction for failing to complete Form 1.977. The trial court’s oral pronouncement confirms this conclusion:

The fact information sheets are plain and unambiguous. It’s the judgment of the court that that’s not all that was required. The forms were not complete. And I order to coerce your performance, which is required, and in the manifest interest of preserving the integrity of the judicial system, the court imposes afine of $⅛000 to be payable to the cleric of court.
The court, as a further sanction, will find entitlement to attorney’s fees for bringing this action, and will reserve jurisdiction to conduct an evidentiary hearing on that should the parties not agree and payment not be made.
Further, the court believes that the egregiousness of your failure to comply with the court’s order mandates that as a further coercive sanction, that you be remanded into the custody of the high sheriff of Marion County, or one of his duly constituted deputies, where you shall be held at the Marion County Jail for a period of 15 days.
You may purge your contempt and be released from incarceration prior to that time upon completion of the forms that were not completed. Notice by your counsel that that has been done will be sufficient.

To the extent there is a conflict between the oral pronouncement and the written order, it is the oral pronouncement that controls. See Romero v. Romero, 916 So.2d 952, 954 (Fla. 3d DCA 2005) (“Since the written contempt order failed to accurately reflect the circuit court’s oral rulings, we reverse and remand to the circuit court.”); Xavier J. Fernandez, P.A. v. Sun Bank of Tampa Bay, 670 So.2d 1106, 1107 (Fla. 2d DCA 1996) (“Reversal is required where the final judgment is inconsistent with the trial court’s oral pronouncements.”).

Although the trial court has the discretion to impose a $4,000 fine as a coercive sanction, it was required to provide Johnsen with an opportunity to purge the fine by fully completing the Form 1.977 Fact Information Sheet for each Hampton entity. Because the fine imposed was fixed and unconditional, we agree with Hampton that it was not coercive, but rather punitive, and improperly transformed the fine from a civil contempt sanction to a criminal contempt sanction. See Parisi, 769 So.2d at 865. This was error.

Accordingly, we reverse the order of civil contempt as it relates to the payment of the $4,000 fine and direct the trial court to refund the fine upon completion of the disclosure forms. Additionally, on remand, the written order shall accurately reflect the trial court’s oral pronouncements, including a provision allowing the fine to be purged upon completion of the forms.

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

TORPY, C.J., and SAWAYA, J., concur.


author: LAMBERT, J.

text:
    Justin R. JARVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1778.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.

      A. Michael Bross, of Bross, Bross, Thomas & Savy LLC, West Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Justin R. Jarvis (“Jarvis”) appeals the judgments and sentences imposed in three related cases after he pled no contest to violating his probation. His sole point on appeal is that the trial court erred by including twelve community sanction violation points on his sentencing scoresheet. The State concedes, and we agree, that the trial court erroneously included six community sanction violation points on the sentencing scoresheet and that resentenc-ing is necessary.

In November 2010, pursuant to a negotiated plea in these eases, the court sentenced Jarvis as a youthful offender to concurrent terms of community control, followed by probation in each case. Jarvis thereafter allegedly violated his community control, and first appeared before the trial court on August 17, 2011, for a hearing. The court reinstated and modified his community control, but specifically dismissed the violations of community control. In September 2012, Jarvis was charged with his second violation of community control and appeared before the court on November 5, 2012, to address these charges. Jarvis admitted the violation, after which the court specifically found that Jarvis had violated condition twelve of his community control and reinstated supervision with the same terms and conditions previously ordered.

Shortly thereafter, Jarvis was charged with his third violation of his supervision. He appeared before the court on April 30, 2013, and pled no contest to violating probation. The criminal punishment code seoresheet relied upon by the trial court at sentencing assessed six points for each of the three above-described violations, resulting in 89.7 total sentence points, which computed to a minimum permissible prison sentence of 46.275 months. Jarvis objected to the inclusion of twelve of the eighteen community sanction violation points, specifically arguing that he should not have been assessed points for the August 17, 2011, and November 5, 2012, proceedings. The trial court overruled the objection, adjudicated Jarvis guilty of violating his probation and sentenced him to 46.275 months in prison on each count in each case, with each sentence to run concurrently.

The trial court erred by including six community sanction violation points on Jarvis’s seoresheet arising from the August 17, 2011, proceeding, as the trial court made no finding that Jarvis had violated any condition of his community control. See Fla. R. Crim. P. 3.704(d)(16); § 921.0024(b), Fla. Stat. (2010) (stating that community sanction violation points “are assessed for each community sanction violation”); Bell v. State, 49 So.3d 340, 341 (Fla. 4th DCA 2010) (reversing and remanding for the correction of the score-sheet and resentencing, as the defendant’s “seoresheet erroneously contained six extra points for a community sanction violation, apparently based on the first affidavit of violation that had been dismissed”). Without the six community sanction violation points for the dismissed August 17, 2011, charges, Jarvis would have scored 83.7 sentence points, and thus, his lowest permissible sentence would have been 41.775 months imprisonment. Furthermore, the seoresheet error is not harmless beyond a reasonable doubt because the record does not conclusively establish that the trial court would have imposed the same sentence had the seoresheet been correct. See Brooks v. State, 969 So.2d 238, 241 (Fla.2007) (citing State v. Anderson, 905 So.2d 111, 118 (Fla.2005)). We find no merit in Jarvis’s argument regarding the November 5, 2012, proceeding.

Convictions AFFIRMED; sentences REVERSED; REMANDED for resen-tencing.

PALMER and WALLIS, JJ., concur.

      . By this time, Jarvis’s community control had ended and he was now on probation.

      . Six community sanction points must be assessed for each non-felony violation of community control or probation found by the court. See Fla. R. Crim. P. 3.704(d)(16).


author: ORFINGER, J.

text:
    Crystal L. MADDOX, Petitioner, v. Robert J. BULLARD, Respondent.
    No. 5D14-303.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.

      Daniel P. Faherty, of Telfer, Faherty, Anderson & Hawkins, PL, Titusville, for Petitioner.
    Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Respondent.
   ORFINGER, J.

Crystal L. Maddox seeks a writ of cer-tiorari to quash an order compelling her to submit to a psychological examination based on her claim for damages for mental anguish after Robert J. Bullard’s dog bit her. She contends that the trial court’s order departs from the essential requirements of the law in requiring a psychological examination under Florida Rule of Civil Procedure 1.360. We grant the petition for certiorari in part, and quash the order to the extent that it fails to comply with rule 1.360(a)(1)(B).

Rule 1.360(a) provides that an examination is authorized when the examined party’s condition is in controversy, and the requesting party has good cause to request the examination. The party submitting the request must affirmatively show that “each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.” Boyles v. Mid-Fla. Tel. Corp., 431 So.2d 627, 639 (Fla. 5th DCA 1983) (citing Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)). At any hearing on the request for compulsory examination, the requesting party has the burden of affirmatively showing that both the “in controversy” and “good cause” prongs have been satisfied. E.g., Wade v. Wade, 124 So.3d 369, 374 (Fla. 3d DCA 2013). In granting the request, rule 1.360(a)(1)(B) provides that the trial court’s order for a compulsory examination “shall specify the time, place, manner, conditions, and scope of the examination.”

At the hearing on Maddox’s motion for protective order, the trial court granted Bullard’s request for a compulsory psychological examination pursuant to the rule. However, the trial court’s order specified only the time, place, and the name of the psychologist who would perform the examination. Although Maddox’s counsel asked the trial court to define the boundaries of the psychologist’s examination, the trial court declined to do so. The trial court’s order does not specify the manner, conditions, or scope of the examination, thereby, in effect, giving the psychologist “carte blanche” to perform any type, and all manner, of psychological inquiry, testing, and analysis on Maddox for up to four continuous hours. This violates clearly established principles of law, resulting in a miscarriage of justice. See In Interest of T.M.W., 553 So.2d 260 (Fla. 1st DCA 1989) (quashing order for compelled psychological examination of child because order did not specify manner, scope or conditions of exam).

Bullard had the burden to establish good cause for each particular examination. Fla. R. Civ. P. 1.360(a)(2); Boyles, 431 So.2d at 639. This burden was not met since Bullard did not allege or establish good cause for the examination that the psychologist wished to conduct. Without knowing the particular examinations that the psychologist planned to conduct, the trial court should not have granted Bullard’s request. For these reasons, we grant the petition to the extent that the order compels Maddox to submit to a psychological examination without specifying the time, place, manner, conditions, and scope of the examination. However, we deny the petition for writ of certiorari insofar as it asks this Court to hold that the trial court may not compel Maddox to submit to a psychological examination. Bullard may seek a new order that complies with rule 1.360.

Certiorari GRANTED in part and DENIED in part; Order QUASHED.

SAWAYA and WALLIS, JJ., concur.


text:
    Johnny L. SADLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2913.
    District Court of Appeal of Florida, First District.
    July 14, 2014.

      Johnny L. Sadler, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Johnny L. Sadler, Jr., appeals the summary denial of his motion seeking postcon-viction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse and remand.

On July 28, 1999, the appellant was convicted of unlawful sexual activity with a minor in Santa Rosa County case number 1998-CF-0818 and designated as a sexual predator. On July 30, 2007, the appellant was charged in the instant case, Escambia County case number 2007-CF-3786, with two counts of the failure of a sexual predator to register pursuant to sections 775.21(6)(g) and (6)(i), Florida Statutes (2007). On December 18, 2007, the appellant pled nolo contendere to the charges and was subsequently sentenced to 60 months in prison for each offense. He did not seek a direct appeal.

On August 16, 2011, the appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) in case number 1998-CF-0818, arguing that he had been improperly designated as a sexual predator. On May 8, 2012, this court reversed the trial court’s denial of that motion and remanded with orders to strike the appellant’s sexual predator designation. Sadler v. State, 112 So.3d 498, 499 (Fla. 1st DCA 2012). On June 20, 2012, the trial court issued an order striking the designation.

On May 11, 2012, the appellant filed the instant rule 3.850 motion in case number 2007-CF-3786, arguing that his convictions for the failure to comply with registration requirements are invalid because they were based upon the erroneous sexual predator designation in case number 1998-CF-0818. He further alleged that he has continuously fought the designation since it was imposed and that the opinion and order granting him relief in case number 1998-CF-0818 constitute newly discovered evidence excusing him from compliance with rule 3.850’s two-year time limitation.

On May 21, 2013, the lower court summarily denied the motion, finding the motion to be untimely based upon the conclusion that the improper sexual predator designation could have been discovered earlier through the use of diligence.

Rule 3.850(b) requires a motion pursuant to this rule to be brought within two years of the movant’s judgment and sentence becoming final. If no direct appeal is taken, a judgment and sentence become final after the 30-day period for filing an appeal has expired. Saavedra v. State, 59 So.3d 191, 192 (Fla. 3d DCA 2011). Here, the appellant was sentenced on October 16, 2008, and he did not seek a direct appeal. Therefore, the appellant had until November 17, 2010, to bring a timely rule 3.850 motion, and the instant motion was filed almost two years after this time limitation expired.

However, an exception to the rule’s timing requirements is allowed when “the facts on which the claim is predicated were unknown to the movant or ... and could not have been ascertained by the exercise of due diligence” and that the claim is raised “within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.” Fla. R. Crim. P. 3.850(b)(1). Ordinarily, if the due diligence requirement is met, the trial court must next decide whether the newly discovered evidence would likely result in acquittal on retrial. Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000). However, where an appellant pled guilty rather than stand trial, a claim for postconviction relief under rule 3.850 based upon newly discovered evidence is analyzed under the standard applicable to the withdrawal of pleas after sentencing. See Johnson v. State, 936 So.2d 1196, 1197 (Fla. 1st DCA 2006). Therefore, the appellant must establish that withdrawal of the plea is necessary to correct a manifest injustice. Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993).

It has been held that an order vacating a conviction that served as a predicate for the imposition of a habitual sentence qualifies as newly discovered evidence. Wilson v. State, 857 So.2d 964, 965 (Fla. 1st DCA 2003). In Wilson, the defendant’s 1984 robbery conviction was vacated by a Maryland court on December 21, 2000. Id. The defendant then filed for postconviction relief in a 1991 case which relied upon his 1984 robbery conviction to habitualize him. Id. This court concluded that, as the predicate conviction was not vacated until December 21, 2000, the Maryland court opinion and order are “clearly newly discovered facts.” Id.

In the instant case, the appellant pled to the charge of failure to register more than seven years after he was designated a sexual predator in case number 1998-CF-3638. Nonetheless, the appellant did not successfully obtain the order striking his designation until June 20, 2012. Thus, pursuant to Wilson, this order qualifies as newly discovered evidence that could not have been discovered earlier through the exercise of diligence.

Further, the appellant has established that the withdrawal of his plea is necessary to correct a manifest injustice. In the instant case, the appellant’s conviction was based upon the premise that he met the criteria for designation as a sexual predator and failed to comply with the registration requirements that were imposed because of this designation. However, the appellant did not actually meet the criteria for the imposition of the designation. Without the designation, he could not have been convicted of the instant offenses. See Fla. St. Jury Instr. (Crim.) 11.15(g) (reciting as an element of the offense of the failure of a sexual predator to register that the defendant be a sexual predator).

This situation is similar to cases where a defendant is convicted of the possession of a firearm by a convicted felon and the predicate felony is subsequently found to be invalid. For instance, in Johnson v. State, 664 So.2d 986 (Fla. 4th DCA 1995), approved in part, 668 So.2d 194 (Fla.1996), the defendant argued that his conviction for the possession of a firearm by a convicted felon should be vacated as the predicate felony had been reversed on appeal. In reviewing the trial court’s order denying the motion, the Fourth District Court of Appeal agreed with the defendant and reversed, concluding that, as there was no predicate conviction upon which the charge could be based, the defendant’s conviction for the possession of a firearm by a convicted felon “must necessarily be vacated.” Id. at 988. Similarly, in Malcolm v. State, the Third District Court of Appeal vacated a defendant’s conviction for possession of a firearm by a convicted felon where it was discovered that adjudication had been withheld as to the predicate felony. 605 So.2d 945, 948 (Fla. 3d DCA 1992).

In the instant case, as in Johnson and Malcolm, the underlying factual basis for the appellant’s convictions was invalid. He could not have been convicted of the charged offenses had he not been erroneously designated as a sexual predator. Given this information, we REVERSE the denial of the appellant’s motion and REMAND with instructions for the trial court to vacate the convictions for the failure of a sexual predator to register.

ROBERTS, RAY, and SWANSON, JJ., concur.


text:
    James David DeANGELO, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-2466.
    District Court of Appeal of Florida, Second District.
    July 16, 2014.

      James David DeAngelo, pro se.
   PER CURIAM.

James David DeAngelo appeals the postconviction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.801. We affirm the order as it relates to DeAngelo’s claim for out-of-state jail credit. However, we reverse the denial of his claim for Polk County jail credit and remand for further proceedings.

Police arrested DeAngelo following a traffic stop in Maryland after they discovered a fugitive warrant from Polk County for violation of probation. On January 3, 2013, after authorities transported him back to Polk County, the court sentenced DeAngelo to thirty months’ imprisonment. DeAngelo timely filed this rule 3.801 motion, seeking jail credit for time he spent in Montgomery County, Maryland, while he was being held solely on a Polk County warrant and credit for time served in Polk County jail. DeAngelo provided documents from the State of Maryland showing that he was arrested in Maryland on August 24, 2012, and was physically transported on December 5, 2012; he arrived at the Polk County jail on December 7, 2012, where he remained until sentencing. The postconviction court found the motion facially sufficient and ordered the State to show cause why relief should not be granted. The State argued that the motion should be denied because DeAngelo was seeking out-of-state jail credit and thus rule 3.850, not rule 3.801, is the proper vehicle. The postconviction court agreed with the State and summarily denied the motion.

Because the award of out-of-state jail credit is within the sentencing court’s discretion, the proper remedy to seek such credit is through a rule 3.850 motion. See Gisi v. State, 135 So.3d 493, 494 (Fla. 2d DCA 2014) (citing Garnett v. State, 957 So.2d 32, 33 (Fla. 2d DCA 2007) (en banc)). Therefore, we affirm the denial of DeAn-gelo’s claim for out-of-state jail credit without prejudice to any right he may have to file a facially sufficient rule 3.850 motion. See Wombaugh, v. State, 25 So.3d 707, 709 (Fla. 2d DCA 2010); Brooks v. State, 91 So.3d 212, 213 (Fla. 4th DCA 2012). However, because the postconviction court erred in failing to consider DeAngelo’s facially sufficient claim that he did not receive credit for time served in Polk County jail, we reverse and remand for further proceedings as to that claim. See Gore v. State, 100 So.3d 177, 178 (Fla. 2d DCA 2012) (reversing and remanding because the postconviction court failed to address a claim and the attachments did not conclusively refute the defendant’s allegations).

As it appears that DeAngelo is currently scheduled for release on September 3, 2014, we encourage the postconviction court to expedite its proceeding on remand.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, LaROSE, and BLACK, JJ., Concur.


text:
    Antwan DILWORTH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0730.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Antwan Dilworth, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 24, 2013, judgment and sentence, in Gadsden County Circuit Court case number 12-40CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., WOLF and WETHERELL, JJ., concur.


text:
    Zeng JEAN-JACQUES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0710.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Zeng Jean-Jaeques, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Willie James HUNTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2943.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Willie James Hunter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Thomas GUESSFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6122.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Thomas Guessford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Ronald Nelson BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2937.
    District Court of Appeal of Florida, First District.
    July 16, 2014.

      Ronald Nelson Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Lorenzo HOWARD, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, et al., Respondents.
    No. 1D14-2358.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Lorenzo Howard, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Joseph C. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5910.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Joseph C. Thompson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Roger F. HOMMINGA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1866.
    District Court of Appeal of Florida, First District.
    July 16, 2014.

      Roger F. Homminga, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    AUTO TRUCK AND INDUSTRIAL PARTS AND SUPPLY, INC., A Florida Corporation, Petitioner, v. June B. MILLER, Respondent.
    No. 1D14-2141.
    District Court of Appeal of Florida, First District.
    July 17, 2014.
    Richard M. Colbert, Gulf Breeze, for Petitioner.
    Edsel F. Matthews, Jr., Pensacola, for Respondent.
   PER CURIAM.

DISMISSED. See Pitzer v. Bretey, 95 So.3d 1005 (Fla. 2d DCA 2012).

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Kennedy WRIGHT, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D14-2422.
    District Court of Appeal of Florida, First District.
    July 17, 2014.
    Kennedy Wright, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Sprint v. Parole Comm’n, 933 So.2d 1218 (Fla. 1st DCA 2006).

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Gunther FLAIG in a representative capacity on behalf of and in the right of PALMCREST HOMES OF TAMPA BAY, LLC, a Florida limited liability company, Petitioner, v. Chris SULLIVAN; Alexander Sullivan; Adam Schoenbaum; Jill Creager; Providence Family Offices, LLC; Sab Investors, LLC; A & S Properties of Florida, LLC; and CTS Equities, LP, Respondents.
    No. 2D13-5380.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.

      Kurt E. Davis of The Davis Law Firm, Tampa, $nd Russell A. Wade, III, of Russell A. Wade, III, P.A., Lake Butler, for Petitioner.
    Marie Tomassi, Charles M. Harris, Jr., and Amanda E. Taylor of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Respondents.
   NORTHCUTT, Judge.

Gunther Flaig filed a derivative lawsuit on behalf of Palmcrest Homes of Tampa Bay, LLC, against the respondents in this case. Similar claims to those underlying the five counts in the derivative suit were at issue in two other pending lawsuits. The parties in the three lawsuits, although somewhat overlapping, were not identical. After a hearing on a number of motions in this suit, the circuit court stated that “the claims being brought by Mr. Flaig are duplicative of other pending litigation. As long as that litigation is being prosecuted, this action is abated.” Flaig petitioned for certiorari review of the court’s order abating the suit. We deny the petition.

Flaig correctly points out that abatement pending resolution of other lawsuits is proper only if the identities of the parties in the lawsuits are identical. See Relinger v. Fox, 55 So.3d 638, 640 (Fla. 2d DCA 2011). But it is apparent to us that the court below intended to stay the instant suit, not to abate it.

An important difference between abating a suit and staying it is that the former terminates the action, necessitating a refiling of it, whereas the latter merely pauses proceedings in the stayed suit until the happening of a contingency. See Perry v. Fireman’s Fund Ins. Co., 879 So.2d 429, 430 (Fla. 2d DCA 1980) (describing difference between abatement and stay). Here, the circuit court’s order on this point states: “Should those other actions be dismissed without a resolution of the issues underlying this case, Mr. Flaig can move forward to prosecute this action. Until then, all litigation, including all discovery, in this case is STAYED.” (Emphasis in original.) Accordingly, we treat this order as a stay of the proceedings below. See Perry, 379 So.2d at 430 (treating order ostensibly abating suit as a stay order based on the apparent intent of the order); see also Dep’t of Children & Families v. L.D., 840 So.2d 432, 434 (Fla. 5th DCA 2003) (same).

Although we may review a stay order under our certiorari jurisdiction, see art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2)(A); Perry, 379 So.2d at 429, we deny the petition in this case. The order staying the proceedings properly provides that the derivative suit may go forward if the issues raised therein are not decided in other litigation. Any resulting delay or inconvenience to the parties would not suffice as the irreparable harm that would permit us to issue a writ of certiorari. See Cruz v. Cooperativa de Seguros Multiples de Puerto Rico, Inc., 76 So.3d 394, 398 (Fla. 2d DCA 2011), review denied, 97 So.3d 823 (Fla.2012).

Petition denied.

DAVIS, C.J., and CASANUEVA, J., Concur.


text:
    RLI LIVE OAK, LLC, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 5D11-2329.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    Kenneth G. Oertel and M. Christopher Bryant of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, for Appellant.
    Jack Chisolm, Deputy General Counsel, And Teresa L. Mussetto, Chief Appellate Counsel, Florida Department of Environmental Protection, Tallahassee, Amicus Curiae, for Florida Department of Environmental Protection. Carolyn S. Ansay, General Counsel, Ruth A. Holmes and Alison L. Kelly, West Palm Beach, for Appel-lee.
   ON CERTIFIED QUESTION TO THE FLORIDA SUPREME COURT

PER CURIAM.

We consider this case on remand from the Florida Supreme Court after it reversed our decision in RLI Live Oak, LLC v. South Florida Water Management District, 99 So.3d 560 (Fla. 5th DCA 2012). S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So.3d 869 (Fla.2014) (holding that when “the Legislature statutorily authorizes a state governmental agency to recover a ‘civil penalty’ in a ‘court of competent jurisdiction’ but does not specify the agency’s burden of proof, the agency is not required under [Dep’t of Banking & Fin. Div. of Sec. & Investor Prot. v. Osborne Stem & Co., 670 So.2d 932, 935 (Fla.1996) ], to prove the alleged violation by clear and convincing evidence, but rather by a preponderance of the evidence”). Because the trial court correctly applied the preponderance of the evidence standard, we now affirm the trial court’s judgment imposing civil penalties.

AFFIRMED.

PALMER, LAWSON, and WALLIS, JJ., concur.


author: KHOUZAM, Judge.

text:
    Jeffrey THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3766.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Jeffrey Thompson appeals his judgment and sentence for possession of oxycodone following a guilty plea, arguing that the trial court erred by accepting his plea without first inquiring about a possible complete defense Thompson raised during the plea hearing. But because the record does not reflect that Thompson filed any motion to withdraw his plea, this claim is unpreserved for appeal. See Jones v. State, 708 So.2d 337, 338 (Fla. 4th DCA 1998). Our affirmance is without prejudice to any right Thompson may have to address the issue via a timely filed motion for postconviction relief.

Affirmed.

BLACK, J., and BAUMANN, HERBERT J., JR., Associate Judge, Concur.


text:
    Clifford W. JONES, Jr., Appellant, v. DEPARTMENT OF REVENUE o/b/o Sandra L. JONES, Appellee.
    No. 5D14-0008.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    Clifford W. Jones, Jr., Spring Hill, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appel-lee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s Concession of Error, we reverse the trial court’s December 2, 2013, final order on motion to vacate order, and remand to the court to make findings pursuant to Florida Family Law Rule of Procedure 12.615(l)(d) and for further proceedings, if necessary. Trisotto v. Trisotto, 966 So.2d 986 (Fla. 5th DCA 2007).

REVERSED and REMANDED.

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


text:
    STATE of Florida, Appellant, v. David HOLDERNESS, Appellee.
    No. 2D12-3704.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    Wade M. Whidden of Whidden Law P.L., Tampa, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order granting David Holderness’ motion to suppress evidence and statements. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). We reverse the trial court’s order pursuant to our decision in State v. Mitchell, 124 So.3d 1046 (Fla. 2d DCA 2013) (holding that defendants lack standing to seek suppression relating to jurisdictional defects of coconspirator’s arrest where they had no legally cognizable privacy interest in fraudulent prescriptions and evidence developed therefrom), and remand the case to the trial court for further proceedings.

Reversed and remanded.

VILLANTI, MORRIS, and BLACK, JJ., Concur.


text:
    Robert Earl ROYCE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2484.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Robert Earl Royce challenges an order revoking his probation. We affirm in all respects except to point out a scrivener’s error in the order, which indicates that Royce was found in violation of condition five of his probation when in fact the State agreed to drop the violation as part of the plea bargain. We remand for the correction of this scrivener’s error. See Latner v. State, 132 So.3d 364, 365 (Fla. 1st DCA 2014). Royce need not be present for this correction.

Affirmed; remanded with instructions.

MORRIS and SLEET, JJ„ Concur.


text:
    Charles CULP, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1808.
    District Court of Appeal of Florida, First District.
    July 21, 2014.
    Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Charles Culp, raises two issues in this direct appeal of his convictions and prison releasee reoffender (PRR) sentences. First, Culp argues that the trial court committed fundamental error in allowing the admission of collateral crimes evidence. We affirm this issue because no such evidence was introduced. Second, Culp argues that his PRR sentence is unconstitutional under Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the predicate facts for the sentence were not alleged in the information or found by a jury. We affirm this issue based upon Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014), and Lopez v. State, 135 So.3d 539 (Fla. 2d DCA 2014). See also Almendarez-Torres v. United States, 523 U.S. 224, 228, 243, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (explaining that the charging document need not allege facts “relevant only to the sentencing of an offender found guilty of the charged crime” and stating that “the Court said long ago that a State need not allege a defendant’s prior conviction in the indictment or information that alleges the elements of an underlying crime”) (emphasis in original).

AFFIRMED.

LEWIS, C.J., WOLF, and WETHERELL, JJ., concur.


text:
    Amanda PRYOR, Wife, Appellant, v. David PRYOR, Husband, Appellee.
    No. 1D13-6070.
    District Court of Appeal of Florida, First District.
    July 22, 2014.

      Travis R. Johnson of Spencer Meador Johnson, PLLC, Pensacola, for Appellant.
    David Pryor, pro se, Appellee.
   PER CURIAM.

Amanda Pryor appeals an order extending a temporary injunction for protection against domestic violence which, even as extended, has now expired. We vacate the November 14, 2013 order under review, which extended the temporary injunction, as well as the temporary injunction itself, and dismiss the appeal. Section 741.30, Florida Statutes (2013), “authorizes extending a temporary injunction during a continuance of the evidentiary hearing, but authorizes a continuance only for good cause: ‘The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance.’ § 741.30(5)(c), Fla. Stat. (201 [3]).” Dietz v. Dietz, 127 So.3d 1279, 1280 (Fla. 1st DCA 2013) (“Section 741.30 ‘does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction.’ ” (citation omitted)).

While “injunctions for protection against domestic violence are an exception to the usual rules of mootness because of the collateral legal consequences that flow from such an injunction,” Rodman v. Rodman, 48 So.3d 1022, 1022 (Fla. 1st DCA 2010), we have vacated both the order under review in the present case and the temporary injunction it purported to extend. See Kunkel v. Stanford ex rel. C.S., 137 So.3d 608, 609 (Fla. 4th DCA 2014) (“Although the injunction has expired, we reverse and remand ‘with instructions to vacate the injunction due to the collateral consequences such an injunction might cause.’ ” (citation omitted)). See also Garces v. Legarda, 86 So.3d 602, 607 (Fla. 1st DCA 2012) (noting that vacatur of an order which has become moot pending a decision on appeal “ ‘clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance’ ” (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950))).

Temporary injunction, as extended, vacated; appeal dismissed.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


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    Victor W. DUVALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2717.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Victor W. Duvall, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of June 18, 2014, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: SILBERMAN, Judge. BLACK, Judge,

text:
    Blake Mitchell SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-114.
    District Court of Appeal of Florida, Second District.
    July 23, 2014.

      Keith A. Peterson of Law Offices of Peterson, P.A., Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

At issue in this prosecution for possession of methamphetamine and possession of drug paraphernalia is whether probable cause existed to support issuance of a search warrant on Blake Mitchell Sanchez’s residence. Sanchez appeals his judgment and sentence for those crimes and contends that the trial court erred in denying his motion to suppress because the affidavit was insufficient to establish probable cause to issue the search warrant and that the good faith exception is inapplicable. Notably, at the suppression hearing, defense counsel asked the detective who prepared the affidavit the following: “What did you corroborate to put a connection, a nexus, between a tip and actually drug sales going on at the location?” The detective responded, “Nothing.” Our review of the record supports the detective’s candid admission, and we agree with Sanchez that probable cause was lacking and that the good faith exception does not apply. Therefore, we reverse his judgment and sentence and remand for further proceedings.

On September 6, 2011, Detective Gaskin submitted a sworn application for search warrant. The affidavit detailed Detective Gaskin’s experience regarding narcotics investigations and stated that he had received an anonymous tip through Crime Stoppers on August 24, 2011. The tip stated that a white female was selling methamphetamine from a particular residence in Winter Haven. The tip provided a vehicle description that included a license plate number. The license plate was registered to Tara Hilliard Sanchez, a white female. The detective observed the vehicle parked in the driveway of the residence on August 26, 2011.

Detective Gaskin discovered that Tara Hilliard Sanchez and Blake Sanchez listed the address of that residence as their residence on their Florida identification cards. Criminal history checks revealed that Ms. Sanchez had arrests for possession of drug paraphernalia in 2003 and for trafficking in methamphetamine in 2000, as well as other narcotics charges. Sanchez had an extensive record, and the affidavit specifically mentioned narcotics charges in April 2010, theft charges in January 2010, resisting charges in March 2009, and counterfeiting charges in 2007. Detective Gaskin’s investigation also revealed that search warrants had been served on the residence in 2003 and 2006. The 2003 search revealed ten grams of methamphetamine packaged in baggies and drug paraphernalia. The 2006 search revealed drug paraphernalia, including a scale that tested positive for methamphetamine.

The affidavit described an interview that Detective Leonard conducted on March 28, 2011, with a female who had been arrested. The female stated that Tara Sanchez was distributing methamphetamine from her residence and described the area of the residence. The female believed that Ms. Sanchez was capable of selling ounces of methamphetamine. However, the female stated that she had never personally purchased methamphetamine from Ms. Sanchez but knew people who had.

As the result of a records search, Detective Gaskin discovered an incident that took place on July 18, 2011. Detective Esteve saw a vehicle parked in front of the Sanchez residence. He later conducted a traffic stop of the vehicle and arrested the driver. It was noted that all three occupants of the vehicle had criminal histories that included drug offenses. The driver, Stephanie Wells, was arrested for possession of methamphetamine and drug paraphernalia. Wells stated that she had been at the residence to sell digital cameras to Tara Sanchez who often purchased electronics.

The affidavit also related that Detective Gaskin conducted surveillance on the residence on August 26, 2011. On that date he observed a white male that appeared to be Sanchez standing in the front yard. Detective Gaskin observed a purple PT Cruiser pull into the driveway. The vehicle remained in the driveway for just over two minutes and left. Detective Gaskin did not see anyone from the residence make contact with anyone in the vehicle. The PT Cruiser traveled half a block east and stopped to pick up a white male who got in the front passenger seat. Law enforcement followed the vehicle and eventually stopped it for a traffic violation. The front seat passenger was arrested for possession of methamphetamine and drug paraphernalia. The driver was released.

A criminal history check showed that the driver of the PT Cruiser had an extensive criminal history that included marijuana charges in 2010 and 2011. The passenger had arrests only for criminal traffic violations.

The affidavit then stated the above information “constitutes an ongoing pattern of criminal activity that is continuous and has been for a period of time.” The affiant believed, based on these facts and his training and experience, that Tara and Blake Sanchez and “other unknown subjects) are actively utilizing the place to [be] searched for the distribution of illegal narcotics and that evidence proving this will be located at the place to be searched as a result of this search warrant.”

The magistrate authorized the warrant on September 6, 2011, and law enforcement executed the warrant on September 7, 2011. The search revealed methamphetamine and drug paraphernalia in the residence. Sanchez filed a motion to suppress evidence, and the trial court conducted a hearing on the motion at which Detective Gaskin testified.

During his testimony, Detective Gaskin clarified the facts regarding the incident on July 18, 2011, in which Detective Es-teve observed a vehicle parked at the residence. When Detective E steve subsequently stopped the driver, Stephanie Wells, for a traffic violation and possession of methamphetamine, Wells admitted that the drugs in her possession were from her usage the prior evening. The affidavit made no mention of the fact that Wells stated that the drug usage was from the prior evening. In addition, the affidavit provides that Wells said she was at the residence to sell digital cameras to Tara Sanchez. Detective Gaskin testified at the suppression hearing that Detective Esteve actually found cameras on Wells’ person; this fact was not in the affidavit. Detective Gaskin also acknowledged at the suppression hearing that Wells was arrested for a residual amount of methamphetamine. The fact that the arrest was for a residual amount was not contained in the affidavit.

Detective Gaskin also testified that he did a lot of rolling surveillance (drive-bys) and some stationary surveillance of the residence. He observed no hand-to-hand sales and no high traffic patterns commonly associated with drug sales. He had been unable to conduct any trash pulls at the residence and did not use a confidential informant as part of the investigation. He also admitted that the anonymous tip contained some details that were incorrect. Defense counsel asked, ‘What did you corroborate to put a connection, a nexus, between a tip and actually drug sales going on at the location?” The detective responded, “Nothing.”

The detective relied on the drug histories and search warrants executed in 2003 and 2006, the female that spoke with Detective Leonard in March 2011, the arrest of Wells who had methamphetamine (of a residual amount) in her vehicle in July 2011, and his observation of the PT Cruiser in the driveway and subsequent arrest of the passenger. Detective Gaskin admitted that he believed there was a pattern of criminal activity based on historical facts and “[n]othing current” except the PT Cruiser stop.

In denying the motion to suppress, the trial court found that the application for search warrant set forth probable cause and that there was “no evidence that the affiant acted in willful disregard of the truth.” The trial court went on to state that the officer was acting in good faith when he executed the warrant and that “the anonymous tip was supported by further investigation that disclosed the persons residing in the house had an on-going history of drug law violations and the house was frequented by drug users.” The court concluded that the police “were acting with a warrant supported by facts and circumstances.”

On the appeal of a ruling regarding probable cause to support a search warrant, our “review consists of ‘a legal examination of the evidence in the affidavit to determine whether it establishes probable cause — with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.’ ” Barrentine v. State, 107 So.3d 488, 484 (Fla. 2d DCA 2013) (quoting Pilieci v. State, 991 So.2d 883, 894 (Fla. 2d DCA 2008)). To establish probable cause, a supporting affidavit for issuance of a search warrant “must satisfy two elements: first, that a particular person has committed a crime — the commission element, and second, that evidence relevant to the probable criminality is likely located at the place to be searched — the nexus element.” Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2008); see also State v. McGill, 125 So.3d 343, 348 (Fla. 5th DCA 2013). “To satisfy the nexus element, the affidavit must establish the particular time when the illegal activity that is the subject of the warrant was observed.” McGill, 125 So.3d at 348.

The exact time of the illegal activity need not be stated expressly in the affidavit; if the magistrate can determine the relevant time period from the affidavit as a whole, it is sufficient. Barrentine, 107 So.3d at 485. The time of the illegal activity is important because as the time between the illegal activity and the issuance of the warrant increases, it becomes less likely that the evidence to be seized will be found. Id.; see also McGill, 125 So.3d at 349 (recognizing that information concerning consumable items like narcotics may become stale sooner than for nonconsuma-ble items like videotapes). In Barrentine, this court determined that neighbors’ reports of animal cruelty and fighting “from three years previous were obviously too remote in time to establish probable cause.” 107 So.3d at 485.

Here, an anonymous tip received on August 24, 2011, asserted that a white female was selling methamphetamine from the residence at issue. The tip gave no details regarding when sales had been made and did not state that the tipster had observed any drugs in the residence. The affidavit shows no nexus between the tip and actual drug sales at the residence. Detective Gaskin admitted at the hearing that he had “nothing current” as a nexus to connect the anonymous tip and drug sales going on at the residence, except the stop of the PT Cruiser.

But the PT Cruiser stop did not show that a drug sale had taken place at the residence when the PT Cruiser was briefly parked in the driveway on August 26, 2011. Detective Gaskin did not see any interaction between any occupant of the PT Cruiser and anyone at the residence. The detective saw no conversation or hand-to-hand exchange. After the PT Cruiser left the residence, the driver stopped down the street and a man got in the front passenger seat. This passenger was later arrested for methamphetamine possession, but nothing connected him to the residence. The driver was not arrested.

An earlier event on July 18, 2011, also did not connect drugs to the residence. Wells’ vehicle had been parked in front of the residence. Detective Esteve later conducted a traffic stop and arrested her for possession of methamphetamine, but she told the officer she was at the residence to sell cameras to Tara Sanchez. At the suppression hearing, Detective Gaskin admitted that Wells told the officer the drugs were from her previous evening’s usage and admitted that Wells was in possession of only a residual amount of methamphetamine. Thus, it does not appear that Wells had just engaged in a drug transaction when she was at the residence.

The trial court found in its order denying suppression that “the anonymous tip was supported by further investigation that disclosed the persons residing in the house had an on-going history of drug law violations and the house was frequented by drug users.” This does nothing to corroborate that drugs sales were currently occurring at the residence and that drugs would likely be found at the residence. Although the criminal history of a suspect can be a factor when determining whether probable cause exists, see State v. Gross, 833 So.2d 777, 780 (Fla. 3d DCA 2002), it does not show current drug sales were taking place at the residence when there was otherwise no such evidence. Cf. McGill, 125 So.3d at 350 (stating that the defendant’s history of drug-related offenses provided additional support for the search warrant). And even the tip here failed to state when any drug sales had occurred.

In contrast to the present case, in Gross the police conducted a trash pull at the residence that revealed drugs and paraphernalia commonly used for the sale of drugs. 833 So.2d at 780. In addition to the defendant’s prior criminal history of drug sales several months prior, the evidence from the trash pull corroborated the tip that drug sales were being made at the residence. Id.

Detective Gaskin relied upon prior drug histories that showed Sanchez’s most recent arrest on narcotics charges to be in April 2010 and Tara Sanchez’s most recent drug related arrest to be in 2003. The detective also relied on two prior searches of the residence, one that occurred in 2006 and one that occurred in 2003 — more than five years and eight years, respectively, before the anonymous tip was received and the warrant issued. The trial court relied on this criminal history to corroborate the anonymous tip.

But nothing in the investigation showed that evidence of current drug sales was likely to be found in the residence. Detective Gaskin had no evidence of a drug sale taking place at the residence within a reasonable time prior to the issuance of the warrant. See Pilieci, 991 So.2d at 891 (explaining that thirty days is a “rule of thumb” to determine staleness but that each case must be determined on its own circumstances). Although the detective relied on the incident of the purple PT Cruiser parked in the driveway, the passenger later arrested was never seen at the residence and no actual sale or hand-to-hand transaction was ever observed at the residence.

Based on the totality of the circumstances, the affidavit did not establish a fair probability that evidence of methamphetamine sales would be found at the residence when the warrant was signed on September 6, 2011. See Barrentine, 107 So.3d at 484; see also Pilieci, 991 So.2d at 894 (“At best, the affidavit establishes a slight possibility and not a ‘fair probability of finding drugs almost a month after a single sale transaction.”); Gonzalez v. State, 38 So.3d 226, 229-230 (Fla. 2d DCA 2010) (“The affidavit contained no allegations that anyone actually saw contraband in the couple’s residence and there were no facts from which the magistrate could conclude that contraband was and would still be located in the residence at the time the warrant issued.”).

The State argues that the record supports the trial court’s finding that Detective Gaskin was acting in good faith and that it is appropriate to apply the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The trial court stated in its order that Detective Gaskin was acting in good faith, but the trial court did not address the omissions in the affidavit, particularly regarding the July 2011 incident in which Wells was found in possession of methamphetamine after having visited the residence. The affidavit failed to reflect that Wells told the officer the methamphetamine was from her use the prior evening and that it was a residual amount.

However, even without considering these omissions from the affidavit, the affidavit shows no nexus between the object of the search — evidence of the sale of methamphetamine — and the residence. See Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004) (stating that the affidavit failed to establish a nexus between cocaine and the residence and that “[e]ven if we overlook the omissions and errors within the affidavit, the determination that cocaine was located within the residence was necessarily based on speculation, rather than a fair probability”). A significant focus of the affidavit here was on old criminal history, and nothing showed an actual drug sale at the residence to corroborate the anonymous tip that did not specify a time frame. Thus, we conclude that “an objectively reasonable officer would have known that the affidavit was insufficient to establish probable cause for the search.” Gonzalez, 38 So.3d at 230. Therefore, the good faith exception is inapplicable. Id.; see also Mesa v. State, 77 So.3d 218, 223 (Fla. 4th DCA 2011) (stating that Garcia, 872 So.2d at 330, “held that, where there is a lack of facts, a real paucity of facts, a very weak case, the law is well established that where ‘the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception’ ”).

Finally, we address the dissent’s observations. While the dissent correctly acknowledges that the issue of probable cause turns on the facts stated in the affidavit, the dissent emphasizes Sanchez’s criminal history and three additional incidents. But the dissent ignores the staleness of the historical information and, perhaps more importantly, the lack of a connection between the incidents and the likelihood that evidence of drug sales might be found at the residence at the time of execution of the search warrant.

The first incident, the interview with a female in March 2011, over five months before the warrant was obtained, provides no clue as to when unidentified “people” had purchased drugs from the residence. The second incident, nearly two months before the warrant was obtained, involved a traffic stop of a vehicle that had been at the residence. Nothing in the affidavit connected the residence and the drugs that were found on the driver. Later testimony established that the drugs were only a residual amount rather than anything purchased at the residence. The third incident, involving the PT Cruiser, did not establish contact between anyone in the residence and any occupant of the vehicle. In fact, the passenger who was in the vehicle and found to have drugs was picked up after the vehicle left the residence. Nothing connected him with the residence or a drug sale at the residence.

The dissent suggests that this “smoke” was sufficient to establish probable cause. But even if the proverbial smoke suggested a fire is burning somewhere, it simply did not establish what is critical to the requisite legal analysis: did the affidavit establish a fair probability that execution of the warrant would result in the discovery of evidence of drug sales at the residence? Speculation and a mere possibility based on “smoke” do not substitute for concrete facts that would establish probable cause for the search of the residence.

Accordingly, the trial court should have granted the motion to suppress, and we reverse Sanchez’s judgment and sentence and remand for further proceedings.

Reversed and remanded.

WALLACE, J., Concurs.

BLACK, J., Dissents with opinion.

BLACK, Judge,

Dissenting.

I respectfully dissent. The majority opinion relies heavily on Detective Gas-kin’s testimony from the suppression hearing conducted in July 2012, some ten months after he submitted his sworn application for search warrant which was granted by Polk County Circuit Judge Dale Durrance. Detective Gaskin’s uneven testimony at the hearing is not reflective of the sufficiency of the affidavit placed before the judge nearly a year earlier, and it is the sufficiency of the affidavit which is key to the probable cause determination. See State v. Loredo, 129 So.3d 1188, 1191—92 (Fla. 2d DCA 2014); State v. Exantus, 59 So.3d 359, 361-62 (Fla. 2d DCA 2011); Pilieci v. State, 991 So.2d 883, 892 (Fla. 2d DCA 2008).

In determining whether probable cause existed the issuing judge was to consider only the facts stated in the affidavit. Pilieci, 991 So.2d at 889. Clearly, the judge could not consider unknown information or omissions, and this is not a case involving omissions which would have defeated probable cause where such omissions “ ‘resulted from intentional or reckless police conduct that amounted] to deception.’ ” Id. at 893 (quoting Johnson v. State, 660 So.2d 648, 656 (Fla.1995)). Further, “‘[o]n a motion to suppress the fruits of a search in accordance with a warrant, a trial court examines whether the issuing [judge] had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety.’ ” Id. at 892 (quoting State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006)). Concentrating on the affidavit’s four corners leads to the all but inescapable conclusions that probable cause existed for yet another search of the subject premises and a fair probability that said search would result in yet another seizure of illicit narcotics.

The affidavit at issue revealed that Blake Sanchez was the subject of more than forty prior charges, the most recent being for narcotics in April 2010. Further, the affidavit noted that Sanchez was arrested in both 2003 and 2006 following the execution of search warrants on the same residence at issue in this case. In 2003, 2.8 grams of methamphetamine and numerous pieces of drug paraphernalia were found in Sanchez’s bedroom. In 2006, a scale testing positive for methamphetamine was found, resulting in charges being filed against him.

Although the majority opinion fairly recounts the anonymous tip that began the latest investigation at 2020 9th Street NW, much of the remainder of the opinion is devoted to attempting to explain away the heavy “smoke” — the probable cause — further supported by three corroborating incidents recounted in detail in the affidavit.

The first of these was an interview conducted on March 28, 2011, with a female who, following her arrest, stated that Tara Sanchez was distributing methamphetamine from her residence. The majority’s criticism is that this female had not personally purchased the drugs but only “knew people who had.” However she came to know that information, it was part of the allegations and circumstances of the affidavit.

The second corroborating incident was the arrest of Stephanie Wells in July 2011. She was found in possession of a residual amount of methamphetamine. The affidavit points out that Ms. Wells has a criminal history dating back to 1998, including multiple arrests for possession of drug paraphernalia, possession of marijuana, and possession of methamphetamine charges for felony criminal mischief; as well as charges for resisting arrest without violence, passing worthless checks, filing a false police report, and domestic violence. The majority opinion discounts Ms. Wells’ arrest because she had only a “residual” amount of methamphetamine and because she claimed to be merely trying to sell cameras at the subject residence and was not there to purchase drugs.

The third corroborating incident was the observation and subsequent stop of the PT Cruiser in August 2011. Although a passenger in the PT Cruiser was found in possession of methamphetamine, the majority dismisses this arrest because the officer did not actually witness a drug transaction taking place at the subject premises from which the vehicle had recently departed and because the drugs were found on the passenger and not the driver.

Each of the aforementioned incidents occurred in 2011, within months of the search in question. Taken alone, the corroborating incidents might possibly be discounted. However, the issuing judge must make a common-sense decision whether given the circumstances set forth in the affidavit — and only those circumstances— there is a fair probability that evidence of a crime will be found in a particular place. Willacy v. State, 967 So.2d 131, 147 (Fla.2007); Pilieci, 991 So.2d at 889 (quoting Illinois v. Gates, 462 U.S. 218, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)); accord Williams v. State, 130 So.3d 757, 760 (Fla. 2d DCA 2014). By focusing on the suppression hearing and what was left out of the affidavit, I believe the majority opinion incorrectly discounts all that was in the affidavit — the only information the issuing judge had to consider.

“[T]he appellate court needs to be entirely persuaded that both the trial court and the magistrate made an error when applying the law in deciding that the content of the affidavit established probable cause to search the [property].” Pilieci, 991 So.2d at 894. I am not persuaded. Consider what the issuing judge had before him in making the probable cause determination:

First, he knew that the same premises, occupied by the same people, had been searched twice previously, with each search resulting in narcotics charges. Second, he knew of the more than forty prior charges levied against Blake Sanchez, the most recent of which was in 2010. Third, he knew of the anonymous tip, which included an accurate license plate number. Fourth, he knew of three corroborating drug-related incidents involving the premises, all of which occurred in the months leading up to Detective Gaskin’s request for a warrant.

Given this information, Judge Durrance would have been remiss in not finding sufficient probable cause to issue a search warrant. I would affirm the circuit court’s denial of the motion to suppress.


text:
    Ulisban Shawn BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2981.
    District Court of Appeal of Florida, First District.
    July 24, 2014.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bryson v. State, 42 So.3d 852 (Fla. 1st DCA 2010).

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


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    FLORIDA WILDLIFE FEDERATION, INC., Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 1D14-2927.
    District Court of Appeal of Florida, First District.
    July 24, 2014.
    Monica K. Reimer and David G. Guest of Earthjustice, Tallahassee, for Appellant.
    Frederick T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., New Port Rich-ey; and George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison, for Appellee Suwannee River Water Management District.
   PER CURIAM.

DISMISSED. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995).

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