author: PER CURIAM. THOMAS, J.,

text:
    Edwin CHANDLER, Appellant, v. CENTEX ROONEY CONSTRUCTION COMPANY and Zurich American Insurance, Appellees.
    No. 1D08-5773.
    District Court of Appeal of Florida, First District.
    July 24, 2009.
    Brian O. Sutter, Port Charlotte, and Bill McCabe, Longwood, for Appellant.
    Marissa M. Hoffman of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

AFFIRMED.

DAVIS and BROWNING, JJ, concur; THOMAS, J., concurs with opinion.

THOMAS, J.,

Concurring.

I agree that the order of the Judge of Compensation Claims (JCC) should be affirmed. I write to express my opinion that had Claimant’s attorney preserved the issue of attorney’s fees, he may have been entitled to fees for successfully defeating employer/carrier’s (e/c’s) misrepresentation defense.

Claimant filed a petition for benefits seeking for both temporary and permanent total disability benefits. He also requested attorneys’ fees pursuant to section 440.34(3)(a)-(d), Florida Statutes (2002). E/C denied the claims for indemnity benefits and asserted various defenses, includ-ing the allegation that Claimant is no longer entitled to benefits because he violated sections 440.09 and 440.105, Florida Statutes, by allegedly misrepresenting his condition to his doctors. The JCC denied Claimant’s request for benefits, and rejected e/c’s misrepresentation defense. The JCC did not address Claimant’s request for attorneys’ fees, and Claimant has requested that this court instruct the JCC to do so.

This court has held that a claimant’s attorney is entitled to attorneys’ fees for hours expended on a criminal matter based on alleged workers’ compensation fraud, but only to the extent the hours were reasonably spent in advancing the claimant’s interests in his workers’ compensation proceeding. See Valdes v. Galco Constr., 922 So.2d 252, 257 (Fla. 1st DCA 2006). In Valdes, in addition to the criminal fraud matter, the e/c also sought modification of a previous compensation order seeking to terminate the claimant’s attendant care benefits. Id. at 254. The e/c conceded that some of the attorneys’ hours spent in the criminal case may have been necessary to protect the claimant’s workers’ compensation benefits. This court agreed, holding that in deciding the proper fee amount, the JCC should have consid-ei’ed the reduction in benefits that e/c was seeking in the workers’ compensation modification proceeding. Id. at 257-58. Had the e/c prevailed in the modification proceeding, the claimant would have lost entitlement to future benefits. The same would have been true here, had e/c prevailed on its misrepresentation defense.

In UNC Aviation Services v. Home, a case that involved a pre-October 1, 2003, date of accident, the e/c also raised a misrepresentation defense; the JCC found it was not properly before him, however, and refused to consider it. 957 So.2d 698, 699 (Fla. 1st DCA 2007). After finding for claimant on his petition for benefits seeking authorization of a new pain management specialist, the JCC awarded attorneys’ fees based on the value of future benefits that were in danger of being forfeited as a result of the misrepresentation defense. Id. This court held that the JCC erred, explaining, “Because the JCC found that the defense was not properly raised and did not consider it, the claimant’s PTD benefits were never at issue and could not be a basis for attorneys’ fees.” Id. at 699. Citing Valdes, the court noted that a claimant may be awarded fees “based on the value of future PTD benefits on a previous order, if the e/c files a petition for modification seeking to terminate benefits based on misrepresentation.” Id. at 699. The court went on to state, however, that it specifically was not “addressing whether a properly raised affirmative defense of misrepresentation would put PTD benefits in danger of termination such that attorney’s fees would be appropriate for the tuhole vahie of those benefits.” Id. (emphasis added). Thus, this court has at least implicitly acknowledged a claimant may be entitled to attorneys’ fees when a misrepresentation defense is properly raised that jeopardizes the claimant’s entitlement to future benefits, even if the court has not specifically addressed how to measure the value of those benefits in determining the fee amount.

Here,' Claimant’s request for fees was based on section 440.34(3)(a)-(d), Florida Statutes (2002). These subsections provide for e/c-paid attorneys’ fees when a claimant either successfully prosecutes a petition for benefits, prevails on the issue of compensability when the e/c denies that a compensable accident occurred, or prevails in proceedings filed under sections 440.24 or 440.28, Florida Statutes. None of these grounds exists here.

Conversely, sections 440.34(1) and (2), Florida Statutes (2002), do provide the appropriate statutory source for fee entitlement under these circumstances. Subsection (1) allows for a fee based on “services rendered for a claimant in connection with any proceedings arising under this chapter -” (emphasis added). Subsection (2) includes the requirement that the JCC, in awarding a “reasonable claimant’s attorneys’ fee,” must “consider only those benefits to the claimant that the attorney is responsible for securing.” The term “benefits secured” is defined, however, as “benefits obtained as a result of the ... attorneys’ legal services rendered in connection with the claim for benefits.” (emphasis added). Thus, section 440.34(2), Florida Statutes (2002), could allow for a fee even if the attorney does not obtain the requested benefits because the services he renders in defending a misrepresentation defense are rendered “in connection” with the claim for benefits, and preserve the claimant’s entitlement to future benefits.

By requesting attorneys’ fees pursuant to section 440.34(3)(a)-(d), Claimant failed to put e/c on notice that he was claiming fee entitlement in the event Claimant successfully defeated e/c’s misrepresentation defense. It was only in Claimant’s motion for rehearing that he requested the JCC reserve jurisdiction to determine his entitlement to attorneys’ fees. Consequently, Claimant has failed to preserve the issue. In my view, where a claimant properly preserves the issue and successfully defends against a misrepresentation allegation, and all other requisite factors are present, the claimant would be entitled to payment of an appropriate fee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald Martin BRAMBLETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2202.
    District Court of Appeal of Florida, First District.
    July 24, 2009.

      Donald Martin Bramblett, pro se, Appellant.
    Bill McCollum, Attorney General, Office of the Attorney General; Sarah J. Rumph, Assistant General Counsel, Florida Parole Commission, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

On April 30, 2008, appellant Donald Martin Bramblett filed a notice of appeal seeking i*eview of the trial court’s “Order Dismissing Motion for Rehearing.” Because an order denying rehearing due to untimeliness is not an appealable order under rule 9.130(4), Florida Rules of Appellate Procedure, this court issued an order on July 7, 2008, directing the Appellant to show cause why the appeal should not be dismissed. Appellant responded, and this court issued an order August 4, 2008, directing Appellant to amend his notice of appeal to indicate that he sought review of the final oi’der entered August 16, 2007, denying the writ of habeas corpus. The briefing schedule proceeded and is now complete.

This coui’t’s jui’isdiction may be ‘Taised at any time ... because jurisdiction derives only from constitutional or statutory authority or in consequence of fundamental common-law principles.” Crapp v. Criminal Justice Standards & Training Comm’n, 753 So.2d 787 (Fla. 3d DCA 2000). “[Jjurisdiction ‘cannot be con-fen-ed by stipulation or endowed by action of the court.’ ” Id., (quoting Lovett v. City of Jacksonville Beach, 187 So.2d 96, 99 (Fla. 1st DCA 1966)). Because this court is constrained to act only within its established jurisdiction, the coui't l’ecedes from the portions of the order issued on August 4, 2008, determining that rendition of the final order was delayed, and concludes that the notice of appeal, as amended, was ineffective to confer jurisdiction on this coui’t to review the final order denying habeas corpus. Accordingly, we dismiss the appeal. Dale v. State, 981 So.2d 1222 (Fla. 1st DCA 2008).

The final order denying the writ of habeas corpus was entered by the circuit court on August 16, 2007, and Appellant/Petitioner’s motion for rehearing of that final order was placed in the hands of prison officials for mailing on August 30, 2007 (14 days after entry of the final order). Only timely motions for rehearing toll the rendition of the final order for purposes of the thirty-day time limit to commence an appeal of the final order. Fla. R.App. P. 9.020(h)(1) & 9.110(b). Under rule 1.530(b), Florida Rules of Civil Procedure, motions for rehearing must be filed within ten days of the date of filing the judgment. The trial court applied rule 1.530, and dismissed the motion for rehearing as untimely on April 15, 2008. Appellant s original notice of appeal was filed on April 30, 2008, over 8 months after entry of the final order.

The proceedings in the circuit court were not appellate in nature. Nowhere in the initial pleading did Appellant/Petitioner seek recalculation of a parole date, compliance with due process in administrative proceedings, or any other review of final agency action. The relief Petitioner sought in the circuit court action was “that his 42 year old robbery conviction be ‘terminated’ and this court order ‘immediate release’ from incarcerated position and/or any other relief this court deems appropriate.” Because no quasi-judicial administrative action was at issue, the rules of civil procedure, including the requirement that motions for rehearing be filed within ten days of the date of the entry of the order to be reheard, applied. Surratt v. Freeman, 924 So.2d 905 (Fla. 1st DCA 2006).

Appellant’s subsequent amendment of the notice of appeal substituting the final order as the order to be reviewed did not remedy the untimeliness of the notice of appeal or confer jurisdiction upon this court. “Failure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect. See Comm. Notes to Florida Rule of Appellate Procedure 9.110.” First Nat’l Bank in Fort Myers v. Florida Unemployment Appeals Commit, 461 So.2d 208 (Fla. 1st DCA 1984)(reference to committee notes to 1977 amendment of Rule 9.110); David M. Dresdner, M.D., P.A. v. Chanter Oak Fire Ins. Co., 972 So.2d 275 (Fla. 2d DCA 2008). Late filing of the notice of appeal “is a defect no one can correct, not even the court.” Hawks v. Walker, 409 So.2d 524, 525 (Fla. 5th DCA 1982).

Because the habeas corpus proceedings in the circuit court did not seek an appellate remedy, the rules of civil procedure applied and the motion for rehearing was untimely. Rendition of the final order was not tolled by the filing of the untimely motion for rehearing, and the notice of appeal was thus untimely.

Accordingly, this appeal is DISMISSED.

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    Thomas H. TROWBRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2220.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2009.
    Thomas H. Trowbridge, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004); Houston v. State, 931 So.2d 205 (Fla. 5th DCA 2006).

MONACO, C.J., ORFINGER, J„ and PLEUS, JR., R., Senior Judge, concur.


author: NORTHCUTT, Judge.

text:
    Edward KAMENSKI, Appellant, v. Ruth KAMENSKI, Appellee.
    No. 2D08-341.
    District Court of Appeal of Florida, Second District.
    July 29, 2009.
    Peter 0. Brick of Brick & Hammond, New Port Richey, for Appellant.
    Dorothy V. Difiore and Raymond A. Haas of Hass Dutton Lewis, P.L., Tampa, for Appellee.
   NORTHCUTT, Judge.

The sixteen-year marriage of Edward and Ruth Kamenski was dissolved in July 2004. The final judgment required Mr. Kamenski to pay permanent periodic alimony of $1000 per month. In July 2007, he petitioned to modify the final judgment, seeking a reduction in his alimony obligation based on Ms. Kamenski’s increased income. The circuit court denied the request, and Mr. Kamenski challenges that decision in this appeal. We reverse and remand for further proceedings.

When the marriage was dissolved, Ms. Kamenski was working as an administrative assistant at a property management firm, earning approximately $17,500 per year. The final judgment stated that “[t]he wife’s position and income represents her accurate wage earning capacity.” Mr. Kamenski’s yearly income at the time of dissolution was approximately $54,000.

At the hearing on the modification petition, the evidence established that Mr. Ka-menski’s income had decreased slightly to $50,000 per year, while Ms. Kamenski’s income had increased dramatically to $41,000 per year. She was still employed in the property management industry, but she had obtained a license as a property manager and no longer worked as an administrative assistant.

To warrant a modification of alimony, the party seeking the change must prove “(1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.” Rahn v. Rahn, 768 So.2d 1102, 1105 (Fla. 2d DCA 2000). In this case, the circuit court determined that Ms. Kamenski’s circumstances were neither changed nor un-contemplated. Its order stated:

[T]he Former Wife has done nothing more than continue to advance within her line of work. She is still employed in the same occupation as she was at the time of the Final Judgment. It was fully anticipated and known that she was likely to experience some upward adjustment in her income.

Although it is true that Ms. Ka-menski still works in the same general field, property management, the evidence contradicted the court’s finding that she is employed in the same occupation. At the time of dissolution she was an administrative assistant doing clerical work; now she is a licensed property manager earning well over twice her previous income. Cf. Rahn, 768 So.2d at 1106 (finding that wife’s yearly salary increases in the teaching profession did not warrant a modification of alimony); Long v. Long, 622 So.2d 622, 623 (Fla. 2d DCA 1993) (noting that an increase in income because of cost-of-living and merit raises could have been anticipated at the time of dissolution).

Moreover, neither the evidence presented nor the final judgment itself established that the parties contemplated that Ms. Ka-menski would experience an income increase of that magnitude. To the contrary, the judgment found that her $17,500 income as an administrative assistant “rep-resentad] her accurate wage earning capacity.” Cf. Yangco v. Yangco, 901 So.2d 217, 221 (Fla. 2d DCA 2005) (holding when the final judgment contemplated that wife’s earnings would increase from approximately $900 per year to approximately $25,000 over the course of five years, wife’s new annual salary of approximately $26,000 did not support a decrease in alimony because the change in income was not unanticipated); Chambliss v. Chambliss, 921 So.2d 822, 823-24 (Fla. 2d DCA 2006) (stating that wife’s advancement in the nursing profession was contemplated at the time of dissolution and thus her increased earnings after obtaining a master’s degree did not warrant a downward modification of alimony).

The circuit court's findings simply were not supported by competent substantial evidence. Accordingly, we reverse the order denying Mr. Kamenski’s petition to modify the final judgment and remand for further proceedings. On remand, the court may take additional evidence, and it should consider all the factors discussed in Rahn. We offer no opinion on the question of whether a modification, if granted, should be retroactive. The court may revisit its decision concerning that issue on remand.

Reversed and remanded.

CASANUEVA, C.J., and BAUMANN, HERBERT, JR., Associate Judge, Concur.

      . Mr. Kamenski apparently also filed a petition to modify the final judgment in March 2006, seeking a reduction in his alimony based on the fact that he was on disability because of an accident. He has not included that motion in the record on appeal.


author: LAGOA, Judge.

text:
    Grace M.P. ALCANTARA, Appellant, v. Arturo Amado ALCANTARA, Appellee.
    No. 3D08-1265.
    District Court of Appeal of Florida, Third District.
    July 29, 2009.
    Margalli Law Office and Cheri A. Shapiro (Key West), for appellant.
    Ross & Girten and Lauri Waldman Ross; Richard J. Fowler (Key West), for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Grace M.P. Alcantara (“wife”) appeals from the final judgment dissolving her marriage to Arturo Amado Alcantara (“husband”). Because the trial court abused its discretion in denying the wife’s request for permanent periodic alimony, we reverse and remand for an award of permanent alimony. In all other respects, we affirm the final judgment.

During their nineteen-year marriage, the parties had four children of their own and jointly raised the wife’s child from a prior relationship. At the time of the final hearing, their youngest child was fourteen years old. The husband, age 43, was a career soldier until his retirement in 2006. He holds two college and two master’s degrees and is -working toward a doctorate degree in management. He presently earns $6800 a month from his employment as an intelligence specialist at the Joint Interagency Task Force South in Key West, and he receives a monthly military pension of $1786.

The wife, age 47, was a homemaker until 2003 when she began working at St. Leo’s University in Key West. As an employee of St. Leo’s, she received the benefit of free tuition. In 2004, she earned a bachelor of arts degree in business administration, and in 2005 received her master’s degree in business administration. She currently earns $2156 a month as a center staff coordinator-administrative assistant.

The parties did not enjoy a lavish standard of living during the marriage; they lived in military housing (or civilian housing on a housing allowance), and have limited financial assets. Since 2001, they have lived in Key West.

Following the dissolution hearing, the trial court denied the wife’s request for permanent alimony. The trial court also ordered the husband to pay a greater share (approximately $10,000) of the parties’ debts and awarded the wife a proportionate share of the husband’s pension earned during the marriage. The trial court imputed $45,000 a year in income to the wife. The imputation amount is apparently based on the testimony of a vocational expert, who appeared on behalf of the husband. The trial court further awarded the wife $1300 a month of bridge-the-gap alimony for three years.

On appeal, the wife contends that the trial court abused its discretion in denying her request for permanent alimony. We agree. “A trial court’s decision to either award or deny alimony will not be disturbed on appeal unless the record demonstrates that the trial court abused its discretion.” Williams v. Williams, 904 So.2d 488, 491 (Fla. 3d DCA 2005). In this case, a review of the record demonstrates that the trial court abused its discretion in awarding bridge-the-gap, rather than permanent alimony.

“Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established during the marriage of the parties.” Rosecan v. Springer, 845 So.2d 927, 928 (Fla. 4th DCA 2003). In determining whether a party is entitled to permanent alimony, the trial court must consider the duration of the parties’ marriage. See Martinez v. Martinez, 761 So.2d 433, 436 (Fla. 3d DCA 2000), overruled in part on other grounds by Zold v. Zold, 911 So.2d 1222, 1234 (Fla.2005). Here, the parties were married for nineteen years. It is well settled, and the trial court properly found, that a nineteen-year marriage qualifies as a long-term marriage. See Cruz v. Cruz, 574 So.2d 1117 (Fla. 3d DCA 1990) (recognizing seventeen-year marriage as long term); Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1978) (same; nineteen-year marriage). Indeed, “in the context of a long term marriage there is an initial presumption in favor of permanent periodic alimony.” Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008). The wife, therefore, is entitled to a rebuttable presumption in favor of an award of permanent alimony, and notwithstanding the trial court’s findings, that presumption has not been overcome. See Salazar v. Salazar, 976 So.2d 1155 (Fla. 4th DCA 2008); Schlagel, 978 So.2d at 676; Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001).

First, the trial court improperly considered financial benefits that may be available to the wife if she were to return to her native State of Hawaii. The trial court’s finding, however, was based on mere speculation, and the trial court should have considered the wife’s present need for alimony. As the record currently stands, any speculative benefit that might be available to the wife if she were to return to Hawaii is not a proper consideration in determining her entitlement to permanent alimony. See Searcey v. Searcey, 923 So.2d 528, 530 (Fla. 2d DCA 2006) (finding that trial court may not consider possible future social security payments to husband in determining alimony award).

Second, the finding that the parties’ educational achievements have rendered them “self-sufficient” does not foreclose an award of permanent alimony to the wife. See Garces v. Garces, 704 So.2d 1106, 1106 (Fla. 3d DCA 1998) (rejecting husband’s argument that wife is not entitled to permanent periodic alimony because she earns a “living wage”). “While the wife’s earning ability is one factor to be considered, it is not by itself dispositive and does not preclude an award of permanent alimony in [a] long-term marriage where, based on the factors in section 61.08, need is demonstrated and the husband has the ability to pay.” Garces, 704 So.2d at 1107; see also Hill, 776 So.2d at 1007 (stating that the presumption in favor of permanent alimony is not rebutted by a spouse’s age or ability to earn some income).

Finally, an award of permanent alimony is appropriate where a spouse has remained at home caring for the family, rather than pursued a career, for a significant time period during the marriage. See Costa v. Costa, 951 So.2d 924, 925 (Fla. 4th DCA 2007); Byers v. Byers, 910 So.2d 336 (Fla. 4th DCA 2005); Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002); Knoff v. Knoff, 751 So.2d 167, 169 (Fla. 2d DCA 2000); Cardillo v. Cardillo, 707 So.2d 350, 351 (Fla. 2d DCA 1998). In this case, although the trial court found that the husband provided significant assistance in raising the children, the wife was a homemaker for the family, which included five children, and did not pursue a career during the first fourteen years of the marriage. As a result, she did not have the opportunity to begin her career and to employ the benefits of a master’s degree until her mid-forties. The husband clearly benefited from this arrangement (even if there was no “agreement”) as he was able to advance his career throughout the marriage and to pursue college and graduate degrees, including his present efforts to obtain a doctorate in management. These circumstances resulted in a significant disparity (even after the imputation of income to the wife) in the parties’ earnings and earning capacity. Under these facts, where the parties had a long-term marriage, the wife cared for the family for a significant period of time, and there is a large disparity in the parties’ financial outlook, the wife is entitled to an award of permanent periodic alimony. See Salazar, 976 So.2d 1155; Byers, 910 So.2d at 344; Knoff, 751 So.2d at 169; see also Young v. Young, 677 So.2d 1301, 1306 (Fla. 5th DCA 1996) (“Personal or career sacrifices of a spouse during the period the other spouse achieves superior earning power should weigh in favor of an award of permanent alimony.”); cf. Weintraub v. Weintraub, 864 So.2d 22, 24 (Fla. 2d DCA 2003) (stating that bridge-the-gap alimony is appropriate where the spouse holds an advanced degree in genetics, had worked in that field, and only needed support in reentering the field).

We therefore reverse that portion of the judgment denying the wife’s request for permanent periodic alimony. On remand, in addition to determining an appropriate amount of permanent alimony award, we agree with the parties that the trial court must establish a time-sharing schedule for their minor child and must address the wife’s request for restoration of her former name.

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

      . The judgment slates that the pension was earned for a period of 266 months and that the wife is entitled to a share of the pension earned for 218 months from the time of their marriage until the husband's retirement. However, the trial court did not determine the amount of the monthly pension awarded to the wife. On remand, the court must make this determination.

      . Although the trial court correctly recognized that the parties’ nineteen-year marriage is a long-term marriage, it did not make an express finding that the wife was entitled to this presumption.

      . In the event that the wife's income substantially increases if she relocates to Hawaii, the issue of alimony may be reconsidered in a modification action. See Searcey, 923 So.2d at 530; Kvittem, 365 So.2d at 792.

      . As to the trial court’s finding that the wife failed to make use of her master's degree from 2005 until 2007, the imputation of income to the wife rendered that factor a non-issue as to entitlement of permanent alimony.


author: CIKLIN, J.

text:
    Lawrence REZNIK, Appellant, v. FRCC PRODUCTS, INC., a Florida corporation, Mouaffak Youssef Hassoun, an individual; and DM & L Engineering Corporation, a Florida corporation, Appellees.
    No. 4D08-774.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.

      Erwin Rosenberg, Miami Beach, for appellant.
    Kenneth Eric Trent of Kenneth Eric Trent, P.A., Fort Lauderdale, for appellee; FRCC Products, Inc., a Florida corporation.
   CIKLIN, J.

In this case we consider whether the appellant, Lawrence Reznik, waived his right to challenge an escalation clause in a settlement agreement because of his failure to preserve the issue before the lower ' court. Because he did not lodge a contemporaneous and specific objection at the trial court level, we are unable to now consider his point on appeal and must therefore affirm the final judgment entered against him.

FRCC Products Inc. (“FRCC”) developed plans for the installation of hurricane proof automatic generators. The plans had passed building code standards in Bro-ward and Palm Beach Counties and the schematics had ostensibly been awarded blanket approval by the building departments of the two counties. FRCC contends that the approved schematics gave them a competitive advantage for selling generators. Reznik, who is not affiliated with FRCC, arranged to have the plans copied. When FRCC discovered that Rez-nik had copied them, FRCC sued Reznik for damages, attorney fees, and injunctive relief. FRCC also asserted that there was risk to the public from allowing Reznik to use the schematics without also using the parts manufactured by FRCC which had been wind-tested and certified to be up to code standards. After conducting discovery the parties entered into a stipulated settlement agreement which required Rez-nik to pay $2000 to FRCC by 5:00 p.m. on January 7, 2008, at a specific location. The settlement agreement also stipulated the following:

Should Defendant Lawrence Reznik fail to make this payment in full exactly as herein required, judgment shall forthwith be entered against him individually in the amount of $40,000.00, plus attorney fees and costs in collecting the judgment and interest as provided by law. This judgment, upon failure of payment, shall be entered upon the filing of an affidavit of Plaintiffs counsel detailing the failure of one or more terms listed in paragraph 1(a) without necessity of hearing, notice, or any further proceedings ...

Reznik failed to make the payment on January 7, 2008 and FRCC filed the required affidavit of non-payment. Reznik attempted to remit a $2000 payment by cashier’s check before FRCC submitted its documentation to the trial court, but FRCC did not negotiate that check and instead demanded judgment. The trial court entered judgment on the stipulation for $40,000 plus interest at 11%. Reznik filed a motion for reconsideration, arguing that when he signed the settlement agreement he had signed it not only individually but also on behalf of Lawrence Reznik Construction Mng. LLC. and, since Reznik is a nonlawyer, he had no ability to sign on behalf of the company. He contended that the contract was therefore a nullity. The trial court denied the motion.

Reznik now appeals and argues that the final judgment is improperly based on an escalation clause that does not represent a legitimate amount. He contends that the stipulated amount is an unconscionable penalty.

FRCC argues that Reznik waived the issue because he failed to raise it with the trial court. We agree that the issue was not preserved.

Sunset Harbour Condominium Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005), states, “As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal. In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (internal citations omitted). Murphy v. International Robotic Systems, 766 So.2d 1010 (Fla.2000), addresses the similar issue of failure to object to closing arguments in the trial court. The Florida Supreme Court held the issue was not preserved for review and explained, citing Castor v. State, 365 So.2d 701 (Fla.1978), the reasons for the requirement that a contemporaneous objection be made in the trial court.

The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

766 So.2d at 1017.

In the present case Reznik raised in the trial court the issue of whether he had the ability to sign the settlement agreement on behalf of the company since he is not an attorney. He did not argue that the stipulated amount was illegitimate, unconscionable, or a penalty. Thus, the issue was waived and was not preserved for review.

Affirmed.

GROSS, C.J., and WARNER, J„ concur.


text:
    Timothy Maurice SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2262.
    District Court of Appeal of Florida, First District.
    July 29, 2009.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Timothy Maurice Smith, Appellant, appeals his convictions and sentences for two counts of burglary and one count of grand theft in an amount of $5,000 or more, but less than $20,000. He argues, among other things, that the evidence at trial was legally insufficient to support his conviction for the second burglary, which occurred on January 31, 2007. We agree, and accordingly, we reverse Appellant’s conviction for the burglary that occurred on January 31, 2007, and remand for vacation of the conviction and the resulting sentence. Finding no merit in Appellant’s remaining arguments, we affirm the remaining convictions and sentences without further discussion.

At trial, the State presented evidence that the victim’s home was burglarized on two occasions: once on January 27, 2007, and once on January 31, 2007. The only item taken in the second burglary was a DVD player. At trial, the State attempted to link Appellant to the second burglary by showing that he had inexplicable possession of the DVD player after the second burglary. If the State had succeeded in showing Appellant’s inexplicable possession of the DVD player, the evidence would have been sufficient to support Appellant’s conviction for the burglary that took place on January 31, 2007. See § 812.022(2), Fla. Stat. (2006) (providing that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property has been stolen”); Francis v. State, 808 So.2d 110, 134 (Fla.2001) (holding that this statutory inference may be applied to support a burglary conviction where the evidence shows that a burglary has necessarily occurred as an adjunct to the theft of the property in question). There is, however, no evidence in the record that Appellant possessed the DVD player, either constructively or actually. Therefore, we reverse Appellant’s conviction and sentence for the burglary that occurred on January 31, 2007, remand for vacation of that conviction and sentence, and affirm the remaining convictions and sentences.

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

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


text:
    Taurus Lejuane JERIDO, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6302.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Following the denial of his dispositive motion to suppress, Taurus Lejuane Jeri-do, Appellant, appeals from his judgments and sentences for possession of cocaine with intent to sell, possession of metham-phetamines, and possession of marijuana with intent to sell. Appellant argues that the trial court erred in applying the wrong standard when ruling on his motion to suppress the evidence seized as a result of a traffic stop. We agree, and, accordingly, reverse and remand for further proceedings. We decline to address Appellant’s remaining arguments on appeal.

At the suppression hearing, the trial court informed Appellant that his motion raised an issue of fact that was “up to the jury” to determine. Thereafter, Appellant entered a plea of nolo contendere to the three counts, reserving the right to appeal the denial of his motion to suppress as dispositive of the case.

The trial court’s remark at the suppression hearing indicates that it did not utilize the proper standard for resolving a motion to suppress. When ruling on a motion to suppress, it is the responsibility of the trial judge, not the jury, to resolve issues of fact. Ray v. State, 896 So.2d 974, 975 (Fla. 2d DCA 2005); Vasta v. State, 662 So.2d 1327, 1328 (Fla. 2d DCA 1995); Johnson v. State, 566 So.2d 888, 890 (Fla. 4th DCA 1990); Parlee v. State, 899 So.2d 458, 460 (Fla. 5th DCA 2005). The trial court in the instant case reversibly erred in determining that questions of fact in a motion to suppress were matters for the jury to resolve. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

BENTON, LEWIS, and CLARK, JJ., concur.


text:
    Benito RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6500.
    District Court of Appeal of Florida, First District.
    July 29, 2009.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Benito Ramirez, appeals his conviction and sentence for first-degree murder, raising three issues for our consideration. Only one of those issues, whether the trial court erred in denying his motion to suppress a taped police interrogation video, is a basis for reversal. The remaining issues do not merit discussion. Because the erroneous admission of the interrogation video necessitates a new trial, we reverse and remand for that purpose.

According to the State’s evidence at trial, Appellant was seen at a restaurant drinking and arguing with the victim, a female companion, on the night of the alleged murder. Appellant and the victim left the restaurant in Appellant’s truck. Later that night, Appellant’s truck was involved in an automobile accident. An officer who arrived on the scene could not locate the truck’s occupants. The next day, the victim’s body was discovered near the scene of the accident with multiple wounds, including a laceration on her back.Appellant fled to Texas on the night of the accident.

Approximately ten months later, police took him into custody and interrogated him. The interrogation was conducted in Spanish. Other officers who did not speak Spanish were also present. After being advised of his Miranda rights, Appellant agreed to speak to police. Statements he made throughout the interview indicate reluctance to do so, however. For example, he stated multiple times that the interrogating officer was forcing or obligating him to answer his questions. He never squarely invoked his right to silence, however, so the interview continued. Appellant made several inconsistent statements throughout the interview. By the end of the interview, he admitted to having stabbed the victim after the accident, but he could not remember how many times. In the interview, Appellant claimed he had stabbed the victim in self-defense. In addition, Appellant made many other incriminating statements, such as a denial of knowledge of who the victim was, followed by admissions that he was with her on the night of the accident and opinions that she was “using” him and had “provoked everything.”

Appellant argues that the trial court should have suppressed the videotaped interview because his statements were obtained through the interrogating officer’s improper promises of help, thus rendering it involuntary. In addition, Appellant points to several of the officer’s statements suggesting, but not directly stating, what that help might be. The parties did not present any evidence at the suppression hearing. The only factors that entered into the trial court’s decision were the contents of the interview itself and the arguments of counsel. Thus, it had no means of assessing any additional factors, such as Appellant’s education level or past experiences, to assist it in determining the voluntariness of Appellant’s statements.

The record does not indicate how long the interview lasted, but the transcript length is 158 pages. The first mention of “help” comes seventy-six pages into the interview, after Appellant had given inconsistent statements about whether he was in possession of his truck at the time of the accident and after he had denied recognizing the victim from a photograph. By that time, Appellant had already protested several times that he was being forced or obligated to answer the detective’s questions. He raised this protest again when being presented with a photograph of the victim. In this context, the detective asked, “How am I going to help you if you’re lying to me and you don’t want to tell me the truth?” The detective then told Appellant what witnesses had said and stated, “[I]f you want us to help you, you need to help us also.” The detective referred to the “help” he could offer Appellant several times, but he never explained the limits of his authority. At one point, he cautioned Appellant, “This is your only chance.” He also warned Appellant that the only way he could “get out of this” was by telling the truth. The detective further stated, “[Y]ou have to tell me, because I’m the only one who speaks Spanish here.”

At one point, the detective offered to tell the state attorney that Appellant had cooperated. Even so, Appellant observed several times that the detective had not yet told him exactly how he could help him. Once, in response to such a question, the detective stated, “I’m going to explain it to you, but first I need to speak to you, because if they know that I promise you something, then nothing is valid, do you understand? You have to have a little bit of faith in me, just like I have to have faith in you. Do you understand what I’m saying?” After Appellant expressed dissatisfaction with this answer, the detective repeated, “I’m going to explain it to you, but I need to talk to your [sic] first, because if I tell you how, then it’s not valid.” This discussion occurred after the detective had advised Appellant, “I can help you, and I can tell the State Attorney that you cooperated .... ”

Shortly after advising Appellant that he could not explain what help he was offering because “they” could not know he promised Appellant anything, the detective asked Appellant another question. Appellant responded, “Before I answer, tell me how are you going to help me?” The officer answered, “I’ve already explained that to you. Your life right now is in my hands.” Appellant replied, “Yes, I know. You’re the law; you can do with me whatever you want.” Up until this point, Appellant had not given many helpful answers. He had admitted to owning the truck that was involved in the accident and stated that he was drinking “a little” on the night of the accident. However, he would not even admit to the identity of his brothers.

Not long after the detective stated, “You’re life right now is in my hands,” Appellant admitted that the victim was “manipulating” him. When the detective asked a follow-up question to that admission, Appellant stopped, observing, “Sir, I’m sorry, but you haven’t told me how you’re going to help me.” The detective again urged Appellant to “have a little bit of faith” in him and stated that he was the “only one” there who could help Appellant.

Earlier in the interview, the detective had mentioned Appellant’s brothers, who were also in the country illegally. When Appellant asked where his brother Jose was, the detective told him that Jose was detained and that it was Appellant’s fault. He explained, “[W]e wouldn’t have found out about all of your brothers, about your family, if this had not happened. And I think you owe your brothers and your family the right to have an opportunity in this country....”

During the course of the interview, Appellant asked the detective how he was going to help him at least ten times. The detective offered to help Appellant in exchange for cooperation many more times. In denying Appellant’s motion to suppress the interview, the trial court expressed some “reservations” about its decision, as well as a belief that it could grant the motion only if it found an express “quid pro quo” bargain. We must decide whether, under the circumstances of this case, these offers of help rendered Appellant’s statements involuntary, even though they were not directly tied to any specific benefits other than an offer to tell the prosecutor that Appellant cooperated. Because there is no dispute over what statements were made, our task is to review de novo the trial court’s conclusion that the officer’s statements did not render Appellant’s statements involuntary. See State v. Walter, 970 So.2d 848, 851 (Fla. 2d DCA 2007).

It is well-settled that statements obtained through direct or implied promises are involuntary and, thus, inadmissible at trial. See Johnson v. State, 696 So.2d 326, 329 (Fla.1997). Although this exclusionary rule was originally instituted out of concerns for the truthfulness of such statements, it is now recognized that such statements may be excluded on due process grounds. Black v. State, 630 So.2d 609, 615 (Fla. 1st DCA 1993). To exclude a statement on due process grounds, as Appellant urged the trial court to do, a court must find that it was obtained as a result of “overreaching” or coercive conduct by the police. Black v. State, 630 So.2d 609, 615-17 (Fla. 1st DCA 1993); Schoenwetter v. State, 931 So.2d 857, 867 (Fla.2006). This Court has explained the standard governing whether a statement is involuntary due to overreaching or coercive conduct as follows:

For a confession or inculpatory statement to be voluntary, the totality of the circumstances surrounding the statement must indicate the statement was the result of a free and rational choice. The mind of the accused should, at the time, be free to act, uninfluenced by fear or hope. To exclude a confession or an inculpatory statement, it is not necessary that any direct promises or threats be made to the accused. It is sufficient if the circumstances or declarations of those present are calculated to delude the prisoner as to his true position and exert an improper influence over his mind. A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight.

Walker v. State, 771 So.2d 573, 575 (Fla. 1st DCA 2000) (internal citations omitted). Further, to exclude a statement as involuntary based on improper police tactics, a court must conclude that there is a causal connection between the improper conduct and the statement. Blake v. State, 972 So.2d 839, 844 (Fla.2007).

It is also well-settled that an interrogating officer may, without rendering a confession involuntary, promise to make a suspect’s cooperation known to the prosecutor or advise the suspect that “it would be easier on him” if he cooperated. Blake, 972 So.2d at 844. Confessions or inculpa-tory statements induced by other types of promises may, however, result in suppression at trial. See id. Whether a particular confession or statement is rendered involuntary as a result of improper promises depends on the totality of the circumstances. See id. at 844-45; Walker, 771 So.2d at 575. This Court has emphasized that “[e]ach case must be judged on its own unique facts.” Green v. State, 878 So.2d 382, 384 (Fla. 1st DCA 2003).

The State suggests that Appellant’s statement cannot be considered involuntary because the detective did not make an express “quid pro quo” bargain with him. We disagree. While the presence of an express “quid pro quo” bargain for a confession will render the confession involuntary as a matter of law, see Walker, 771 So.2d at 575, it is not correct to say that the absence of an express “quid pro quo” bargain insulates police misconduct from claims of undue influence or coercion. The test for determining whether a particular confession or statement is involuntary is still whether, in considering the totality of the circumstances, the reviewing court can conclude that the defendant was unable to make a choice free from unrealistic hope and delusions as to his true position, due to the officer’s conduct. Walker, 771 So.2d at 575.

Here, the detective’s constant offers of unspecified help were improper. At one point, the detective said to Appellant, “[I]f you want us to help you, you need to help us also.” This statement arguably constitutes an offer of a “quid pro quo” bargain within the meaning of relevant case law. Because this statement is not the only one at issue, however, we decline to reach that conclusion definitively. Instead, we have determined that Appellant’s statement was induced by improper police conduct based on the totality of the circumstances. In addition to making this questionable statement, the detective strongly implied that he had some specific benefit in mind that he could confer on Appellant. While offering this benefit that he would explain later, the detective made references to immigration issues, the opportunity to “get out of this,” and arguably even the death penalty.

Additionally, when Appellant expressed the belief that the detective, as “the law,” could do anything he wanted with Appellant, the detective did not clarify his position. The detective’s failure to explain the limits of his authority is one major factor that sets this case apart from other cases upholding officers’ suggestions that they could help defendants. Cf. Maqueira v. State, 588 So.2d 221, 222-23 (Fla.1991) (upholding the admission of a confession obtained after an officer agreed to “do whatever possible to help” the defendant but also advised the defendant that he “had no authority to make promises”); Green, 878 So.2d at 384 (upholding the admission of a statement after officers súggested that the defendant’s cooperation would result in positive recommendations to the prosecutor but cautioned that “making a recommendation was ‘all’ they could do”). Another factor that sets this case apart is the constancy of the offers of help, even in the face of clear signs that Appellant did not understand the limits of the detective’s authority and that Appellant felt he was being forced to answer questions. Further, the officer appears to have used the fact that only he spoke Appellant’s language as a means of establishing a bond with him so that he could urge him to “have faith” in him and then promise him his “only chance” at help and the only way to “get out of this.” Finally, Appellant’s constant requests for the detective to give him more details of how he could help, even in one instance demanding such an explanation before giving an answer, show a preoccupation with the detective’s promises and an invited expectation of receiving a benefit in exchange for a statement. Even though Appellant’s preoccupation with the promises was readily apparent, the detective never stopped to explain that he had no control over what the prosecutor would choose to do with Appellant’s statement.

Under the unique circumstances of this case, the trial court should have excluded the interview from evidence, at least after the point when the detective began to offer “help.” Accordingly, we reverse and remand for a new trial to be conducted without the benefit of the involuntary interview statements.

REVERSED and REMANDED.

LEWIS and CLARK, JJ., concur; BENTON, J., dissents without opinion.

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


author: WOLF, J.

text:
    R.D.D., JR., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0152.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle D. Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges a final order of delinquency for the charges of possession of cocaine and paraphernalia. He asserts that the State failed to prove constructive possession of the cocaine and drug paraphernalia found in a jointly occupied vehicle. We determine that the State proved that appellant had constructive possession of the contraband, and affirm.

Appellant was a passenger in the back seat of a car stopped by Officer Narayan of the Gainesville Police Department on August 30, 2008. Two other individuals were in the vehicle, both in the front seat. Upon searching the vehicle, the police found a small (1.5" x 1.5") clear plastic bag in plain view on the left hand side of the rear seat. Appellant was in the right hand rear seat. Narayan said the bag was within appellant’s reach. It was later established that the bag contained cocaine.

Narayan gave Miranda warnings to all three occupants of the car, and they spoke to him. Narayan could not remember their exact words, but he claimed all three of them knew “there was cocaine in the car, just no one would claim it.”

On cross-examination, Narayan explained that it was getting dark that night and, due to the tint on the car windows, he could not see anything that was going on in the car before the stop. Narayan also admitted he could not see whether one of the other passengers had tossed the bag into the back seat before the door was opened.

In a constructive possession case, the State must prove beyond a reasonable doubt that “the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband.” Brown v. State, 428 So.2d 250, 252 (Fla.1983). Knowledge is not at issue in this case. A number of cases have made the broad statement that the combination of an item being in plain view and within a defendant’s proximity is insufficient to establish the control element of constructive possession. See, e.g., Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975); Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984). All of these cases, however, can be distinguished on their facts from the instant case. Many of the cases involve defendants that were neither owners nor occupants of the premises or areas in which more than one person had access to where the drugs were found. See, e.g., Taylor, 319 So.2d 114 (proximity to marijuana in plain view was insufficient to establish constructive possession where defendant neither owned or occupied premises); Johnson v. State, 456 So.2d 923 (several people were in an apartment not owned or occupied by the defendant).

In State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999), however, we-found that evidence that drugs were in an area of a car that was in the exclusive possession of a defendant was sufficient to satisfy the control element of constructive possession. In the instant case, there is direct evidence of control; the cocaine was in the back seat, an area that was in the exclusive control of appellant. Appellant argues that the State failed to prove that one of the other occupants of the vehicle had not tossed the cocaine into the back seat when the car was stopped by police. The issue of how the cocaine ended up in an area exclusively in defendant’s control, however, was for the trier of fact to decide.

AFFIRMED.

WEBSTER and CLARK, JJ., concur.


text:
    JACKSONVILLE SHERIFF’S OFFICE, Appellant, v. Robert SHACKLETT, Appellee.
    No. 1D09-0456.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Michael J. Arrington, Assistant General Counsel, Jacksonville, for Appellant.
    Jonathan Israel, Jacksonville, for Appel-lee.
   PER CURIAM.

In this appeal, the Employer challenges the finding of the Judge of Compensation Claims (JCC) that Claimant was entitled to the presumption afforded by section 112.18, Florida Statutes (2007). The Employer alleges the JCC committed two errors: 1) finding Claimant’s “essential hypertension” was of a type covered by the statute; and 2) finding Claimant satisfied the statute’s disability requirement. We affirm as to the first issue because the argument was not preserved. For the reasons explained below, we reverse as to the second issue.

Background

Claimant was employed by the Employer as a law enforcement officer. On July 17, 2007, while engaged in a training exercise in hot weather, Claimant began feeling ill. He then began to experience chest pains, and his partner recommended seeking medical treatment. Claimant first had his blood pressure taken by a firefighter, who informed Claimant his pressure was elevated. Claimant reported to an urgent care center where his blood pressure was taken again, and he underwent cardiac diagnostic testing. The medical notes from that date indicate the cardiac tests were negative. Claimant was also, however, diagnosed with hypertension, prescribed medication to treat this condition, and told to follow up with his primary care physician.

Claimant testified the doctor at the urgent care center informed him of the hypertension diagnosis, and advised him to refrain from working or exercise until being cleared by a cardiologist. Claimant further testified he informed his supervisor of this, and the Employer allowed Claimant to remain off work pending the cardiac evaluation. A First Report of Injury was prepared, and the Employer agreed to provide benefits subject to the “pay and investigate” provisions in section 440.20(4), Florida Statutes (2007).

For reasons not clear from the record, approximately three weeks elapsed before Claimant underwent the cardiac evaluation. During that period, Claimant returned to the urgent care center twice for scheduled follow-up visits. The notes from each visit reiterate the hypertension diagnosis and the instruction that Claimant follow up with his primary doctor if he developed any complaints. Claimant saw his primary doctor on July 31, 2007. The notes from that office visit indicate Claimant reported the chest pain incident, hypertension and elevated cholesterol diagnoses, and that he was taking medication to address the latter two conditions. Claimant also reported he had experienced no chest pain since July 17, 2007. The doctor’s assessment was “benign essential hypertension,” and the “plan” was for Claimant to see a cardiologist.

Claimant saw a cardiologist on August 6, 2007. The report from that office visit indicates the Employer sent Claimant for a cardiovascular evaluation, acknowledges Claimant’s prior diagnosis of “mild hypertension,” and notes the fact that Claimant had been out of work the preceding three weeks. The cardiologist opined Claimant had no evidence of “significant heart disease,” and that Claimant’s prior chest pain was not cardiac-related. The doctor released Claimant to resume his “full normal duties,” with no functional limitations or restrictions.

Based on this report, the Employer denied Claimant’s hypertension claim, and the matter went to a final hearing. The sole evidence before the JCC consisted of the medical records described above, and live testimony from Claimant and a claims adjuster. Claimant stipulated there was no written documentation establishing he was taken out of work due to hypertension, and a number of the days he missed during the three weeks in question were regularly-scheduled days off. The JCC found the parties stipulated that the Employer had no evidence Claimant had hypertension before commencing his employment with the Employer, and that Claimant “now has hypertension.”

Based on the foregoing, the JCC found the remaining issue for resolution was whether Claimant satisfied the disability requirement of section 112.18(1), Florida Statutes (2007). The JCC noted Claimant’s testimony that, “upon reporting the diagnosis of hypertension, he was told to refrain from work until being cleared to return to work by” a cardiologist, as well as Claimant’s testimony that he informed his supervisors of this and was given the time off without any trouble. The JCC found the cardiologist’s office note of August 6, 2007, corroborated Claimant’s “testimony insofar as it inclicatefd] a history of ‘no work’ for the three weeks prior to the visit.” The JCC also found this note indicated the “plan” was for Claimant to “return back to full normal activities.” Thus, the JCC found, Claimant “met his burden by satisfying the three prong test sufficiently to invoke the presumption,” and that the Employer “failed to present any evidence of a non-work related cause.”

Analysis

The presumption afforded by section 112.18 is “only available when a claimant’s ... hypertension result[s] in total or partial disability or death.” Bivens v. City of Lakeland, 993 So.2d 1100, 1102 (Fla. 1st DCA 2008). This court has interpreted “disability” as occurring “ ‘only when [a claimant] becomes actually incapacitated, partially or totally, from performing his employment.’ ” Id. (quoting City of Mary Esther v. McArtor, 902 So.2d 942, 944 (Fla. 1st DCA 2005)). Here, the evidence upon which the JCC relied to find Claimant satisfied these requirements was Claimant’s testimony and the cardiologist’s office note. This was error.

This court has held that missing several days of work due to medical appointments is not sufficient to demonstrate disability. See Bivens, 993 So.2d at 1103. Nothing in the record establishes Claimant was in any way incapacitated as a result of his hypertension. Although Claimant testified the urgent care doctor told him he had hypertension and should refrain from work or exercise until cleared by a cardiologist, he also testified it was only his understanding that the latter advice was due to his hypertension. Yet, in each of the reports from the urgent care center where Claimant’s hypertension is discussed, he is instructed to see his primary care physician if he had any complaints. The records are silent as to whether Claimant’s hypertension, as opposed to, for example, his recent report of chest pain, was the reason he was told not to return to work until being cleared by a cardiologist.

Furthermore, the cardiologist’s report itself makes only a passing reference to Claimant’s hypertension (which had apparently been brought under control by medication), and focuses instead on whether Claimant had heart disease. Although the report also notes Claimant had been out of work for the previous three weeks, it is silent as to whether this was because Claimant was unable to work due to his hypertension, or because this was how long it took to arrange for Claimant to see a cardiologist. What is clear, however, is that the doctor released Claimant with no restrictions.

Nothing in the record specifically addresses whether Claimant was unable, at any time, to perform his job, at least partially, due to his hypertension.

Detection of a condition always requires testing, medical evaluations, or some type of treatment, and “[tjhese measures, by themselves, do not demonstrate disability.” Bivens, 993 So.2d at 1103. The claimant in Bivens “missed work only so his condition could be diagnosed, not because it was a debilitating physical ailment.” Id. This, we explained, did not establish disability as the claimant’s injury did not prevent him from performing his job responsibilities. Id. Likewise, here, because Claimant was thrice advised to see his primary doctor if he had any hypertension-related complaints, and he was released by the cardiologist with no restrictions, the most that can reasonably be said of Claimant’s no-work status pending a cardiac evaluation is that it was for purely precautionary reasons unrelated to his hypertension. This is not sufficient to establish disability for purposes of section 112.18(1), Florida Statutes (2007).

CONCLUSION

Because no competent substantial evidence supports the JCC’s finding that Claimant was disabled by his hypertension as required by section 112.18(1), Florida Statutes (2007), the JCC erred in finding Claimant was entitled to operation of the presumption afforded by the statute. Accordingly, we REVERSE the order on appeal.

ALLEN, PADOVANO, and BROWNING, JJ., concur.


text:
    Rudolph PINKNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0558.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Rudolph Pinkney, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the September 5, 2007, judgment and sentence in Leon County Circuit Court case number 2006-CF-0636-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    Shirley A. CRUM, Former Wife, v. Oliver CRUM, Former Husband, Appellee.
    No. 1D08-4483.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Terence M. Brown and John Lyon Brol-ing of Brown & Broling, Starke, for Appellant.
    Horace Moore, Sr., Gainesville, and Stuart H. Abramson, Miami, for Appellee.
   PER CURIAM.

The order on appeal is not a non-final order entered after the final order on an authorized motion, and is thus not an ap-pealable non-final order. Fla. R.App. P. 9.130(4); Fla. R. Fam. Law P. 12.570. DISMISSED.

BENTON, LEWIS, and CLARK, JJ., concur.


text:
    Victoria L. MOORE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Stephen T. Holman, PA, Appellees.
    No. 1D09-3216.
    District Court of Appeal of Florida, First District.
    July 30, 2009.

      Victoria L. Moore, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

BARFIELD, ALLEN, and DAVIS, JJ., concur.


author: KHOUZAM, Judge.

text:
    TECO BARGE LINE, INC., and U.S. United Barge Line, LLC, successor in interest to TECO Barge Line, Inc., Appellants, v. Jarrod M. HAGAN, Appellee.
    No. 2D08-4743.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.

      David W. McCreadie, Eddie G. Godwin and Douglas R. Williams of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellants.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Bob Vaughan of Wagner, Vaughan & McLaughlin, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

TECO Barge Line, Inc., and U.S. United Barge Line, LLC, appeal a nonfinal order denying their motion to dismiss Jarrod M. Hagan’s complaint for improper venue. Because a mandatory forum selection provision requires Mr. Hagan to bring this lawsuit in specified forums outside of Florida, we reverse.

United Barge is a Florida limited liability company that operates barges on the Ohio and Mississippi Rivers from its managing office in Metropolis, Illinois. United Barge is a successor in interest to TECO Barge. Mr. Hagan, a Kentucky resident working for TECO Barge in Louisiana, was allegedly injured when a ratchet failed in February 2007, causing him to fall.

As a result of his injuries, Mr. Hagan filed a complaint against TECO Barge and United Barge in Hillsborough County, Florida. The barge lines filed a motion to dismiss in which they asserted alternative bases for dismissal: (1) a forum selection clause in a post-injury agreement signed by Mr. Hagan and (2) forum non conve-niens. The trial court conducted a hearing and thereafter denied the motion to dismiss. The trial court did not make any findings at the hearing, and its written order simply denies the motion to dismiss without further explanation.

Critically, on March 9, 2007, after his injury and in consideration for benefits under a wage continuation plan, Mr. Ha-gan signed an agreement with TECO Barge titled “Vessel Wage Continuation Plan.” The agreement contains a forum selection clause that states:

I also agree that all suits involving the Vessel Wage Continuation Plan or any work related injury or occupational illness shall be brought in the courts nearest TECO Barge Line, those being the United States Federal Sixth Circuit Western Kentucky located in Paducah, Kentucky or the Circuit Court of the First Judicial Circuit of Massac County in the State of Illinois to the exclusion of any other courts or jurisdictions.

With limited exceptions that have not been raised by the parties in this case, forum selection clauses are presumptively valid and “ ‘should be enforced in the absence of a showing that enforcement would be unreasonable or unjust.’ ” Bombardier Capital, Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001) (quoting Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986)). Here, as in Bombardier, the trial court did not find, nor was it shown, that enforcement would be unreasonable or unjust. Indeed, all of the parties to this appeal agree that the forum selection clause must be enforced. However, they dispute its meaning.

TECO Barge and United Barge maintain that the venue selection clause is unambiguous and that it requires suit in either the federal court in Paducah, Kentucky, or the state circuit court in Massac County, Illinois. Conversely, Mr. Hagan asserts that the language of the clause is ambiguous because on the one hand it compels him to bring suit “in the courts nearest TECO Barge Line,” while on the other hand it defines those courts as either the federal court in Paducah, Kentucky, or the state court in Massac County, Illinois. Mr. Hagan contends that TECO Barge’s registration statement address is in Tampa, Florida, and thus a contradiction exists between the court “nearest TECO Barge Line” and the qualifying language identifying the courts in Kentucky and Illinois. Mr. Hagan argues that the forum selection clause is mandatory, that any ambiguity must be construed against the barge lines and in his favor, and that the courts nearest TECO Barge that are located in Tampa are the state circuit court for Hillsbor-ough County and the federal district court for the Middle District of Florida.

The interpretation of a contractual forum selection provision is a question of law subject to de novo review. Am. Boxing & Athletic Ass’n, Inc. v. Young, 911 So.2d 862 (Fla. 2d DCA 2005). In conducting our de novo review, we begin with the principles that “[t]he polestar guiding the court in the construction of a written contract is the intent of the parties,” and where “the language used is clear and unambiguous the parties’ intent must be garnered from that language, and not from extrinsic evidence.” Bombardier, 801 So.2d at 134 (internal citations omitted).

On its face, the forum selection clause does not suffer from the ambiguity argued by Mr. Hagan. While the phrase at issue states that Mr. Hagan’s claims “shall be brought in the courts nearest TECO Barge Line,” it is immediately followed by qualifying language that expressly identifies the forums outside of Florida in which Mr. Hagan’s claims are to be filed. And, the qualifying language provides that Mr. Hagan’s claims shall be filed in those courts “to the exclusion of any other courts or jurisdictions.” The forum selection clause requires Mr. Hagan to bring this lawsuit in one of two forums, neither of which is located in Florida.

Reversed.

NORTHCUTT and LaROSE, JJ„ Concur.

      . Fla. R.App. P.9.130(a)(3)(A).

      . Because we find that the forum selection clause is a mandator)' clause that requires Mr. Hagan to bring this action in either of two particular forums outside of Florida, we do not reach any issues pertaining to forum non conveniens.

      . "A mandatory venue clause requires that contemplated litigation must be brought in a particular forum.” Am. Boxing & Athletic Ass’n, Inc. v. Young, 911 So.2d 862, 865 (Fla. 2d DCA 2005) (finding that decedent merely consented to jurisdiction in Michigan by signing clause that began "I consent and agree” notwithstanding use of ‘'shall” in same clause because the inconsistent language merely created ambiguity that had to be resolved against the drafter of clause), disagreed with by Weisser v. PNC Bank, N.A., 967 So.2d 327, 331 (Fla. 3d DCA 2007) (“We do not agree with the Second District's position in American Boxing that because the forum selection clause contains the words 'consent' and 'shall' this creates an ambiguity.”).
      Although the forum selection clause at issue in this case began with "I agree,” it did not also include the word "consent” as did the clause in American Boxing. More importantly, here the clause included additional language providing that suit "shall'' be filed in the specified courts “to the exclusion of any other courts or jurisdictions.” Unlike the clause in American Boxing, here the forum selection clause is an agreement to seek redress in either one of two specified courts to the exclusion of any other courts and it cannot be read merely as Mr. Hagan's consent to submit himself to the jurisdiction of other courts.

      . We note that the forum selection clause appears to contain a typographical error. The parties acknowledge that Mr. Hagan's lawsuit cannot be filed in the "United States Federal Sixth Circuit Western Kentucky located in Paducah, Kentucky.” The United States Court of Appeals for the Sixth Circuit is an appellate court located in Cincinnati, Ohio. There is only one federal court located in Paducah, Kentucky, and it is the United States District Court for Western Kentucky, a federal trial court.


author: CRENSHAW, Judge. ALTENBERND, Judge,

text:
    In the Interest of J.L., a child. W.L., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D08-4744.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.

      Jackson S. Flyte, Regional Counsel, Second District, Bartow, and James P. Harris, Jr., Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tampa, for Appellant.
    Bernie McCabe, State Attorney, and Lori O’Connell, Assistant State Attorney, Clearwater, for Appellee, Department of Children and Family Services.
    Ama N. Appiah, Orlando, for Appellee, Guardian ad Litem Program.
   CRENSHAW, Judge.

W.L., the Father, appeals the final order terminating the parental rights to his son, J.L., who was almost seven years old at the time of the termination hearing. We reverse because the Department of Children and Families failed to present clear and convincing evidence to support the two grounds for termination listed in the trial court’s order.

We acknowledge that “parents have a fundamental liberty interest in the care, custody, and management of their children.” J.R. v. Dep’t of Children & Family Servs., 923 So.2d 1201, 1205 (Fla. 2d DCA 2006). Thus, to grant a petition for termination of parental rights, the trial court must find that the Department proved the allegations supporting termination by clear and convincing evidence. E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251 (Fla. 2d DCA 2003).

First, the trial court found the Father failed to substantially comply with the terms of his case plan under section 39.806(l)(e)(l), Florida Statutes (2007). Section 39.806(l)(e)(l) provides that a parent’s failure to complete a case plan within twelve months after an adjudication of the child as a dependent child is evidence of abandonment, abuse, or neglect. However", the evidence may be insufficient if “the failure to substantially comply with the case plan was due ... to the failure of the department to make reasonable efforts to reunify the parent and child.” § 39.806(l)(e)(l).

At the Father’s termination hearing, the Department’s initial case manager and the subsequent case manager both testified that they repeatedly provided the Father with referrals for programs he needed to take to complete the case plan. However, neither testified as to when, if ever, they met with the Father to review the conditions of the case plan. More importantly, neither witness could determine when the Father received a copy of the case plan. The Father was unsure whether he received it in February 2007 or sometime after he was released from jail in June 2007. Thus, there are conflicts in the record as to when the Father received the Department’s case plan and what he was told to do when he finally received it. We note the case plan, which the trial court accepted on February 22, 2007, failed to comply with statutory requirements under Chapter 39 because the case plan was not developed in a face-to-face conference with the Father, the line designated for the Father’s signature was left blank, and the Department failed to explain the circumstances concerning the Father’s nonparti-cipation and the efforts made to secure his participation. See §§ 39.6011(l)(a), ,6011(l)(c), .6011(3), .602(1), Fla. Stat. (2006). Further, once the Department became aware of the Father’s location, there is nothing in the record showing he was ever served with a copy of the case plan. See § 39.602(4)(a).

We are also troubled by the Department’s failure to assist the Father with completing the case plan while he was incarcerated. Both case managers knew the Father was in jail while they were assigned to his case, but neither made a concerted effort to visit the Father to review the terms of the case plan. Moreover, neither case manager undertook any initiative to even speak with the Father outside of the requisite court hearings despite the Father’s calls, letters, and personal visit to the Department seeking clarification on his case plan referrals. The second case manager even admitted that she delayed sending information to the Father because she did not believe he would receive the paperwork before his release, further frustrating his efforts to complete the case plan.

“Where a court is terminating parental rights based on a parent’s failure to comply with a case plan or a performance agreement, it is axiomatic that the parent must have the substantial ability to comply with the plan or agreement.” Hut-son v. State, 687 So.2d 924, 925 (Fla. 2d DCA 1997). The Department’s failure to assist the Father with the case plan while he was incarcerated, combined with its inability to establish when the Father received the case plan, does not demonstrate a reasonable effort by the Department to reunify the Father with his child. Rather, the Department’s actions impeded the Father’s ability to substantially comply with the case plan, and the evidence in the record cannot support the termination of his parental rights on this basis. See C.C. v. Dep’t of Children & Family Servs., 854 So.2d 720, 721 (Fla. 2d DCA 2003).

Next, the trial court found that termination was proper because the Father materially breached his case plan under section 39.806(l)(e)(2), citing the Fathex*’s incarceration as its main explanation for the material breach. Given the Department’s failure to take any meaningful steps to assist the Father in complying with his case plan, we find the Department did not establish by clear and convincing evidence that the Father materially breached his case plan. See T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1084 (Fla. 2d DCA 2008).

The trial court then determined that the termination of the Father’s parental rights was in the son’s manifest best interest under section 39.810 because the evidence showed the Father failed to demonstrate the capacity to care for the son and the son had a suitable and lengthy living arrangement with a maternal aunt who wished to pursue adoption. Yet the trial court ignored evidence that the Father adequately cared for the son from August 2005 to January 2007, when the Father had sole custody of the son. See § 39.810(3), (4). The trial court also ignored the strong emotional bond that developed between the Father and the son, instead noting that the Father did not appear to have any contact with his son since his removal in early 2007. § 39.810(5). However, the record established the Father’s efforts to communicate with the son after the son was relocated to his aunt’s home in Massachusetts in March 2007 were repeatedly thwarted by the aunt. The second case manager conceded that the Department was aware the aunt refused to provide the Father with her phone number, but would not intervene. The Massachusetts courtesy worker, the Department’s equivalent from the Massachusetts Department of Social Sex-vices, also x-efused to supervise any phone calls between the Father and the son. See, e.g., J.T. v. Dep’t of Children & Family Servs., 819 So.2d 270, 272 (Fla. 2d DCA 2002). Thus, the trial court’s failure to consider these factox-s in its manifest best interest analysis was error.

Finally, the trial court found that the tei-minatioB of the Father’s parental rights was the least l-estrictive means of protecting the son because the Father did not substantially comply with the terms of the case plan. The least x-estrictive means test requires the trial coui’t to examine measures shoi’t of termination and explore the possible safe reestablishment of the parent-child bond. M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004). The trial court failed to make any such analysis in its decision, and its l'eliaxxce on the Father’s failui-e to substantially comply with the case plan was error due to the Department’s inaction. Further, to establish least restrictive means, the Department must show that it “has made a good faith effort to rehabilitate the parent and reunite the family.” Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991); T.L. v. Dep’t of Children & Family Servs., 990 So.2d 1267, 1273 (Fla. 2d DCA 2008). For reasons stated above, we do not believe that the Department has demonstrated by clear and convincing evidence that it made a good faith effort to either rehabilitate the Father or reunite him with his son. Accordingly, we reverse the final judgment terminating the Father’s parental rights to his son and remand for further proceedings.

LaROSE, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in this opinion and write only to make two observations. First, the Department of Children and Families has a difficult job in the best of cases. When the only parent who wishes to maintain ties with a child is a father serving a short-term jail sentence for drug offenses, and when the child is placed with maternal relatives more than a thousand miles from the jail, the Department’s job is dramatically more difficult. These practical difficulties, however, do not permit the courts to alter the requirements of the law.

Second, there sometimes seems to be a presumption in the trial courts that, merely because a parent is unlikely to become an adequate custodial parent, the parent’s rights should be terminated. In this case, it is likely that the child might be better served by a long-term placement with the maternal relatives in Massachusetts. However, such an arrangement does not require that the Father be relieved of his obligation to provide financial support for the child, nor does it mean that the child would be better off having no visitation and contact with the father. When children can be permanently placed in the homes of other relatives, it seems to me that the trial courts should be encouraged to explore arrangements by which a parent similar to this father is treated like a noncustodial parent in a divorce, retaining support obligations and a beneficial level of contact and visitation between the parent and child.

      . R.B., the Mother, was also a party to the Department's petition for termination. However, she did not contest the matter and was found to have consented to the termination of her parental rights during the trial court's proceedings in this case. The Mother is not a party in this appeal.

      . The Father was incarcerated from March 2007 to June 2007 and November 2007 to May 2008.


author: DAVIS, Judge.

text:
    J.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4415.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

In this juvenile delinquency case, J.C. challenges his adjudication for the delinquent acts of possession of marijuana and possession of paraphernalia, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.

The charges against J.C. stem from an encounter he had with police while he was riding his bicycle on a bike path that runs parallel to a roadway. At the hearing on J.C.’s motion to suppress the physical evidence, the arresting officer testified that upon seeing J.C. riding his bike in “a high crime area,” he and the officer with whom he was riding “pulled along and asked to approach [J.C.].” There is no indication in the record of how J.C. responded. The officer went on to testify that he pulled the ear over and “walked out towards the bike path where [J.C.] was at. We were in front of him. We had our range vests on, badge and made consensual contact with him.” When asked on direct examination what he said to J.C. to make contact with him, the officer testified, “We just asked him what he was doing.” However, on redirect, when asked, “Did you order him to stop when you saw him,” the officer testified, “I don’t remember exactly what I said to him. I just said, ‘Hey, I’ve got to talk to you for a minute. Hang on.’ But he could have drove off at any time.” Regarding whether J.C.’s way was blocked so that he could not leave, the officer testified on cross-examination, “We pulled [the ear] up a ways in front of him, and we get out of the vehicle and we go to the path.” J.C. did not testify at the suppression hearing.

On appeal, J.C. argues that the trial court erred in denying his motion to suppress because the officers illegally detained J.C. without the necessary reasonable suspicion by blocking his path of travel and ordering him to “hang on.” Although we conclude that the evidence presented below does not support J.C.’s contention that the officers blocked his path, we do agree that the officers illegally detained J.C.

When reviewing a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, Caso v. State, 524 So.2d 422 (Fla.1988), while the trial court’s application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Here, the trial court made the factual finding that the stop was consensual. This finding, however, is not supported by the facts.

The arresting officer testified that he told J.C., “Hey, I’ve got to talk to you for a minute. Hang on.” Considering the totality of the circumstances — that two officers wearing range vests and badges pulled over, exited then* car, and while approaching J.C., told him to “hang on”— such statement amounts to an order and a show of authority. See Caldwell v. State, 985 So.2d 602, 606 (Fla. 2d DCA 2008) (applying a totality-of-the-circumstances test to the issue of whether law enforcement’s conduct amounted to “a show of authority that would have caused a reasonable person to believe that he was not free to terminate the encounter”).

[A] “citizen encounter becomes an investigatory ... stop[ ] once an officer shows authority in a manner that restrains the defendant’s freedom of movement such that a reasonable person would feel compelled to comply.” Parsons v. State, 825 So.2d 406, 408 (Fla. 2d DCA 2002). In short, an investigatory stop occurs when a “reasonable person would not feel free to leave.” Hrezo v. State, 780 So.2d 194, 195 (Fla. 2d DCA 2001).

Rios v. State, 975 So.2d 488, 490 (Fla. 2d DCA 2007) (second alteration in original).

We conclude that a reasonable person would not feel free to walk away but rather would feel compelled to comply with a police officer’s command, “I’ve got to talk to you for a minute. Hang on.” As such, we conclude that this was an investigatory stop for which reasonable suspicion of the commission of a crime is necessary. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (“The second level of police-citizen encounters involves an investigatory stop.... At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.”). It is undisputed here that the officers had no such suspicion. As such, the stop was illegal.

Accordingly, we reverse the trial court’s disposition order and remand with instructions to grant J.C.’s motion to suppress.

Reversed.

LaROSE and KHOUZAM, JJ., Concur.

      . The officer's testimony is vague as to whether this statement was made while the officers were still in their car or after they exited the car and were approaching J.C. on foot. However, in each parties' respective closing argument, the attorneys both suggest that the contact was made after the officers parked and exited their vehicle.