author: LAWSON, J.

text:
    STATE of Florida, Appellant, v. Patrick G. JANUSHESKE, Appellee.
    No. 5D12-2121.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State of Florida appeals an order granting defendant Patrick G. Janush-eske’s motion to suppress cocaine seized from his person, along with admissions made to law enforcement regarding the cocaine. Accepting as fact those findings made by the trial court that are supported by competent, substantial evidence, and reviewing the court’s application of the law to those facts de novo, see, e.g., Jackson v. State, 18 So.3d 1016, 1027 (Fla.2009), we reverse.

Unidentified citizens called law enforcement to report that a man was threatening to kill people gathered near a food truck in a bar parking lot. An officer responded, and several people immediately identified Janusheske, who was seated on a curb nearby, as the person who had been uttering the threats. As the officer was approaching Janusheske, he asked whether Janusheske “had any weapons or drugs on him.” Janusheske responded that he did not have any weapons, but did have some “blow” (cocaine) in his pants pocket. The officer patted Janusheske down, but felt nothing. Janusheske then pulled a small baggie containing a white powdered substance out of a pocket and handed it to the officer. The officer field-tested the substance, to confirm the presence of cocaine, and arrested Janusheske.

The State filed a two-count information charging Janusheske with possession of cocaine and possession of drug paraphernalia. The public defender was appointed to represent Janusheske, and filed a motion to suppress the items seized from Janusheske, and his admissions. The sole basis for the suppression motion was that the officer’s pat down violated Janush-eske’s Fourth Amendment right to be free from an unreasonable search, as explained in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the officer had no objectively reasonable basis to conduct a protective pat-down search for weapons. After evidence was taken at the suppression hearing, defense counsel reiterated that “this argument and all my case law stems out of Terry ... [and the requirement] that in order to conduct a pat down, the officer must have reasonable suspicion that a crime has occurred, and reasonable suspicion that the individual was armed and dangerous.... ” The argument focused primarily on the facts that the officer detected no bulges in Janush-eske’s pockets and that Janusheske had made no “furtive movements” prior to the officer’s pat down.

In response, the State correctly observed that:

Terry ... doesn’t apply in this case because no pat-down search was conducted until the Defendant admitted to possessing cocaine, which is a felony offense. At that point, the officer had ... probable cause to [search] the Defendant. ...

As argued by the State, law enforcement’s warrantless search of a person does not run afoul of the Fourth Amendment so long as the officer has probable cause to believe that the person is carrying illegal contraband before starting the search. See, e.g., Doctor v. State, 596 So.2d 442, 444-45 (Fla.1992). The State was also eminently correct in arguing that Janush-eske’s admission to having cocaine in his pocket provided that probable cause. See, e.g., State v. Olave, 948 So.2d 995, 997 (Fla. 4th DCA 2007) (“his admission that he possessed Xanax provided probable cause to search him”). Accordingly, we find that the trial court erred in finding a Fourth Amendment violation, and in granting the motion to suppress on this basis.

During the hearing, the trial court also expressed concern about the officer’s question to Janusheske that elicited his incriminating response. In this regard, we note that suppression of the evidence would be warranted pursuant to rights protected by the Fifth and Fourteenth Amendments to the United States Constitution if Janusheske had been in custody when the officer posed his question, since the officer did not administer Miranda warnings before asking the question. See, e.g., Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (“[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.”) (emphasis added). Given the factors used to determine whether an individual is “in custody” for Miranda purposes, see, e.g., Ramirez v. State, 739 So.2d 568, 574 (Fla.1999), we see no basis for an argument that Janusheske was in custody while sitting alone on a curb, as the officer approached him without a weapon drawn and without giving any command indicating to Janusheske that he was being detained. See also State v. Hinman, 100 So.3d 220, 221 (Fla. 3d DCA 2012) (holding that persons temporarily detained pursuant to a lawful traffic stop “are not ‘in custody’ for the purposes of Miranda.”) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)); Hewitt v. State, 920 So.2d 802, 803-04 (Fla. 5th DCA 2006) (finding no Miranda violation when defendant admitted to possessing “weed” in response to officer asking “if she had a gun, knives or drugs on her person” during a lawful traffic stop because defendant was not in custody when the question was asked); State v. Sherrod, 893 So.2d 654, 655 (Fla. 4th DCA 2005) (holding that a deputy’s preliminary question to a defendant inquiring as to whether he “had weapons or drugs on him” did not transform a lawful bicycle stop into a custodial interrogation).

Accordingly, we reverse the suppression order and remand this case for further proceedings.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

EVANDER and COHEN, JJ„ concur.

      . The officer clarified that he did not pull his gun or threaten Janusheske in any way, although the arrest report indicates that the officer approached with caution, given the nature of the reported threats.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lemuel ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3985.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Terrence E. Kehoe, of the Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Lemuel Alvarez timely appeals his conviction by jury verdict for one count of aggravated battery with a firearm, also challenging the trial judge’s denial of his 3.800(b)(2) motion to correct sentencing errors, which addressed several cost issues. As the State concedes, the $20 assessment imposed pursuant to the “Crime Stoppers Trust Fund” and an inapplicable $3 traffic violation cost were improperly imposed at sentencing. Additionally, the State acknowledges that the written court costs/fee order contains a $1 mathematical error that needs to be corrected. On remand, these items shall be corrected by entry of an amended order. No other issue merits discussion.

AFFIRMED; REMANDED WITH DIRECTIONS TO ENTER AMENDED COURT COST/FEE ORDER.

LAWSON, JACOBUS and BERGER, JJ., concur.

      . §§ 784.045(l)(a)2., 775.087(2), Fla. Stat. (2010).

      . We recognize that, effective July 1, 2010, section 938.06(1) was amended to provide that the $20 assessment for the Crime Stoppers Trust Fund is a mandatory court cost rather than an additional surcharge on any fine imposed. See Ch.2010-162, § 31, Laws of Fla. This amendment took effect after the date of Alvarez's offenses and, thus, the 2009 version of the statute applies in this case and the fee should not have been assessed. E.g., Sanders v. State, 101 So.3d 373, n. 3 (Fla. 1st DCA 2012).


text:
    Alexander BROADWATER, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D13-1687.
    District Court of Appeal of Florida, First District.
    April 26, 2013.
    Alexander Broadwater, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, WETHERELL, and MAEAR, JJ., concur.


text:
    Walter L. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1514.
    District Court of Appeal of Florida, First District.
    April 26, 2013.
    Walter L. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1286 (Fla.2004).

WOLF, WETHERELL, and MAKAR, JJ., concur.


text:
    Daunte T. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0046.
    District Court of Appeal of Florida, First District.
    April 26, 2013.
    Daunte T. Wright, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012).

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


text:
    James Alexander COCORES, M. D., (hereafter “Dr. Cocores”), Petitioner, v. STATE of Florida DEPARTMENT OF HEALTH, Respondent.
    No. 1D13-1391.
    District Court of Appeal of Florida, First District.
    April 30, 2013.

      Sean M. Ellsworth of Ellsworth Law Firm, P.A., Miami Beach; Anthony C. Vi-tale of Law Center at Brickell Bay, Miami, for Petitioner.
    Jennifer A. Tschetter, General Counsel, and Therese A. Savona, Assistant General Counsel, Florida Department of Health, Tallahassee, for Respondent.
   PER CURIAM.

By order of April 3, 2013, we denied the petitioner’s motion to stay the administrative order before this court for review. We now write to explain our reasoning.

The Florida Department of Health suspended this petitioner’s medical license on an emergency basis. The suspension followed a lengthy investigation into the petitioner’s practice by the Palm Beach Sheriffs Office (PBSO). The investigation involved the petitioner’s treatment of a patient who was, unbeknownst to him, an undercover PBSO officer. According to the administrative suspension order, the petitioner prescribed various controlled substances to the undercover officer, including Vicodin, Xanax, Percocet, and Ox-ycodone, all without ever conducting a physical examination of the officer, conducting a drug screen, or reviewing the patient’s prior medical records. The Department’s report also indicates that the petitioner failed to document the medications that he prescribed to the officer on “at least four occasions.”

Most troubling to this court, the petitioner made several statements to the officer throughout the course of the investigation which indicated a disregard for the statutorily mandated standards for the prescribing of controlled substances and an intent to conceal such disregard. On one occasion, when the undercover officer requested a prescription for Oxycodone, the petitioner told her that “we can’t do oxy; it’s too highly scrutinized, but we can do Percocets.” When the officer told him that her previous doctor’s office had been closed down by law enforcement, the petitioner joked with her that “hopefully, [his practice wouldn’t] be closed down” by the time of her next appointment. On the officer’s third to last visit, the petitioner finally requested that she provide him with a copy of a recent MRI because “they are getting very strict with that stuff.” The officer never provided the petitioner with a copy of her MRI, and he never asked for it again, despite continuing to prescribe her Oxycodone and Xanax.

The Department of Health argues that a stay “would constitute a probable danger to the health, safety, or welfare of the state.” § 120.68, Fla. Stat. (2012). Thus, the Department argues, the petitioner is not entitled to a stay as a matter of right. Id. Given the statements made by the petitioner throughout the course of the investigation, we are inclined to agree. Such statements evince a conscious disregard for the statutory requirements for the prescribing of controlled substances — which include, inter alia, the requirement that “[a] complete medical history and a physical examination must be conducted before beginning any treatment and must be documented in the medical record.” § 456.54(3)(a), Fla. Stat. (2012). Given the petitioner’s apparent disregard for these statutorily mandated standards, we decline to enter a stay of the order on appeal. § 120.68, Fla. Stat. (2012).

MOTION DENIED.

ROWE, MARSTILLER, and SWANSON, JJ., concur.


author: PER CURIAM. BENTON, C.J.,

text:
    Rebecca Lee FALCON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0034.
    District Court of Appeal of Florida, First District.
    April 30, 2013.
    Elliot H. Scherker, Greenberg Traurig, P.A., Miami, Paolo G. Annino, Public Interest Law Center, Florida State College of Law, Tallahassee, and Karen M. Gott-lieb, Coconut Grove, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Rebecca Lee Falcon currently serves a mandatory life sentence without parole for the first-degree murder she committed in 1999 when she was 15 years old. In August 2012, she filed a motion for postconviction relief and/or to correct illegal sentence, arguing that the United States Supreme Court’s recent decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), should be given retroactive effect and that she should be resentenced following an individualized sentencing hearing.

The trial court properly denied relief, citing this Court’s decision in Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012) as well as the Third District’s decision in Geter v. State, — So.3d -, 2012 WL 4448860, 37 Fla. L. Weekly D2283 (Fla. 3d DCA Sept. 27, 2012), both of which held that Miller does not apply retroactively to cases on collateral review. This Court has decided the retroactivity issue, and we see no reason to further pass upon the question other than to reaffirm that Gonzalez controls in this district. However, we recognize that federal and state court decisions are sharply divided on this issue. Because the question is one of great public importance that merits possible consideration by our supreme court via its discretionary jurisdiction, we affirm based on Gonzalez and certify the following question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHETHER THE RULE ESTABLISHED IN MILLER V. ALABAMA, - U.S. -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), “THAT MANDATORY LIFE WITHOUT PAROLE FOR THOSE UNDER THE AGE OF 18 AT THE TIME OF THEIR CRIMES VIOLATES THE EIGHTH AMENDMENT ],” SHOULD BE GIVEN RETROACTIVE EFFECT?

AFFIRMED.

RAY and MAKAR, JJ., concur. BENTON, C.J., concurs with opinion.

BENTON, C.J.,

concurring.

Last term the Supreme Court of the United States held “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012). The Court handed down its ruling in a single opinion written in two cases argued in tandem, Miller and Jackson v. Hobbs. Id. The court had accepted the Jackson case to review a decision of the Supreme Court of Arkansas, in which another juvenile had, like Miller and like the appellant in our case, committed murder, been tried as an adult, and been sentenced to life without parole under a statute mandating such a sentence, without “requiring individualized consideration before sentencing a juvenile to life imprisonment without possibility of parole.” 132 S.Ct. at 2469-70.

Evan Miller, the defendant in the Alabama case, appealed his conviction and sentence directly to the Alabama Court of Criminal Appeals initially, then obtained further, direct review in the United States Supreme Court. Id. at 2463. But Kunt-rell Jackson, the defendant in the Arkansas case — like the appellant in our case— had reached the end of the line on direct appeal, without obtaining any relief. Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004). Only after he had lost on direct in the Supreme Court of Arkansas, did “Jackson fíle[ ] a state petition for habeas corpus.” 132 S.Ct. at 2461. “The [state] circuit court ... granted the State’s motion to dismiss [the post-conviction habeas petition.... And] the Arkansas Supreme Court [eventually] affirmed the dismissal of Jackson’s [state habeas] petition. See Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103.” Id.

It was on review of the Arkansas Supreme Court’s affirmance of the lower Arkansas court’s disallowance of Jackson’s collateral attack on his sentence that Jackson and Miller became companion cases in the Supreme Court of the United States. The difference in their procedural postures notwithstanding, the Supreme Court of the United States reversed both state appeals court judgments and, in Jackson and Miller alike, “remand[ed] the cases for further proceedings not inconsistent with this opinion,” id. at 2475, i.e., in order to afford the states’ sentencing authorities “the opportunity to consider mitigating circumstances before [possibly re]imposing the harshest possible penalty for juveniles.” Id.

Albeit in a different connection, Justice Alito in dissent described Miller and Jackson as “two (carefully selected) cases.” Id. at 2489. Plainly they were carefully selected partly to make clear to the discerning reader that the rule laid down in Miller and Jackson applied whether or not the mandatorily life-without-parole-sentenced juvenile’s case was still “in the pipeline.”

A panel of the First District recently held in Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012), however, that “Miller is not retroactive in application and because Gonzalez’ case [sic] was final before Miller was issued, he is not entitled to relief.” But Jackson’s direct appeal, too, “was final before Miller was issued.” Id. Without addressing the Jackson case, the Gonzalez panel relied on “the decision of the Third District in Geter v. State of Florida, — So.3d - (Fla. 3d DCA 2012), [and] adopt[ed Geter’s ] reasoning in its entirety.” Id. While the Third District’s decisions are often persuasive, the Supreme Court’s decisions are binding on Eighth Amendment questions.

      . Compare Craig v. Cain, 2013 WL 69128 (5th Cir. Jan.4, 2013) (not retroactive); People v. Carp, 298 Mich.App. 472, 828 N.W.2d 685 (2012) (not retroactive); Geter v. State, - So.3d at -, 37 Fla. L. Weekly at D2283 (not retroactive) with Hill v. Snyder, No. 10-14568, 2013 WL 364198 (E.D.Mich. Jan. 30, 2013) (retroactive); State v. Simmons, 99 So.3d 28 (La.2012) (retroactive); People v. Morfin, 367 Ill.Dec. 282, 981 N.E.2d 1010 (Ill.App.Ct.2012) (retroactive).

      . Fifteen years old at the time she fired the fatal shot, Rebecca Lee Falcon received a mandatory term of life imprisonment for first-degree murder in 1999. After her conviction and sentence were affirmed on direct appeal, Falcon v. State, 781 So.2d 1086 (Fla. 1st DCA 2001) (Table), she filed a motion for postcon-viction relief and/or to correct illegal sentence pursuant to Florida Rules of Criminal Procedure 3.800 and 3.850. Relying on Miller v. Alabama, -U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Ms. Falcon argued she "was denied individualized sentencing, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, by the imposition of a mandatory life sentence, without possibility of parole, for an offense committed when she was 15 years of age.” See generally Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Witt v. State, 387 So.2d 922, 925 (Fla.1980).

      . The day after the decision in Miller was issued, Gonzalez filed in this court a petition for writ of habeas corpus, pleading that his "case and Miller have traveled parallel tracks, creating an unusual circumstance which warrants parallel results” and argued he "should receive the benefit of the U.S. Supreme Court decision in Miller, which vindicated the Eighth Amendment claim Gonzalez preserved and presented in his direct appeal and pursued all the way to the U.S. Supreme Court at approximately the same time as the successful petition in Miller."

      In its response to Gonzalez’s habeas petition, the state agreed relief was "appropriate” because the "sentencing scheme was unconstitutional as applied to a clear class of offenders.” The state specifically "recognizefd] that the Miller decision is retroactively applied, if not under federal law, as a matter of Florida law.” (The state’s only disagreement was as to the appropriate remedy "in light of the invalid nature of the mandatory life without parole sentence.”)
      When the Gonzalez panel nevertheless denied all relief, Gonzalez argued on rehearing that, although the panel could decline a party’s concession and reach an issue no party had briefed, "the lack of adversarial testing undermines both the fairness and the accuracy of the panel’s holding;” and that, because of the state’s concession, "the panel ha[d] condemned without hearing, proceeded without inquiry, and rendered judgment without consideration of issues advanced by adversarial parties.” The panel denied rehearing, whereupon Gonzalez sought review in the Supreme Court of Florida. See Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012), petition for review pending, SC13-16 (Fla., filed Jan. 8, 2013).

      . No Florida decision addresses Jackson v. Hobbs, - U.S. -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), as such. See Anderson v. State, 105 So.3d 538 (Fla. 5th DCA 2013) (citing Gonzalez, and Geter v. State, - So.3d -, 2012 WL 4448860, 37 Fla. L. Weekly D2283 (Fla. 3d DCA Sept. 27, 2012)) (The decision is referenced in the Southern Reporter in a table captioned "Florida Decisions Without Published Opinions.”). In State v. Williams, 108 So.3d 255, 256 (La. App 4th Cir. 2013) (footnote omitted), the court found
      no error in the trial court’s ruling on Reginald Williams’ "Motion to Correct Illegal Sentence,” inter alia, because the relator, State of Louisiana, acknowledges that under Miller ..., the automatic imposition of life imprisonment without benefit of parole for a murder conviction of a defendant who was a juvenile at the time of the offense violates the U.S. Constitution’s Eighth Amendment’s prohibition of cruel and unusual punishment. Miller is retroactive to cases that were final in Louisiana at the time the decision in Miller was rendered by application of the per curiam in State v. Simmons, 11-1810 (La. 10/12/12), 99 So.3d 28.
      In People v. Morfin, 367 Ill.Dec. 282, 981 N.E.2d 1010, 1022 (Ill.App.Ct.2012), the court concluded Miller “is applicable retroactively on collateral review.” The court stated that while Miller does not forbid a sentence of life imprisonment without parole for a minor, "it does require Illinois courts to hold a sentencing hearing for every minor convicted of first degree murder at which a sentence other than natural life imprisonment must be available for consideration.” Id. Finding its decision "reinforced by the fact that one of the two Miller defendants was before the United States Supreme Court on collateral review following completion of his direct appeal and received relief in the same manner as Miller himself, the court disagreed with the decisions in Geter and Gonzalez and with the decision in People v. Carp, 298 Mich.App. 472, 828 N.W.2d 685 (2012). Id. at 1022-23. The court concluded that Miller "requires in every case with a minor defendant, by right and as a matter of course, a full sentencing hearing with a range of sentences available to the court.” Id. at 1023.
      In Hill v. Snyder, No. 10-14568, 2013 WL 364198, at *2 (E.D.Mich.2013), the court noted that Miller applied because Miller was decided while the case was pending. The court also noted, however, that "if ever there was a legal rule that should — as a matter of law and morality — be given retroactive effect, it is the rule announced in Miller. To hold otherwise would allow the state to impose unconstitutional punishment on some persons but not others, an intolerable miscarriage of justice.” Id. In a footnote, the court stated it "would find Miller retroactive on collateral review” because the Supreme Court vacated the sentence of Kuntrell Jackson, whose case was before the court on collateral review, and because " ‘once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.’ Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).” Id. at *2 n. 2. But see Craig v. Cain, 2013 WL 69128 (5th Cir.2013); Carp.

      . We are advised that rehearing motion(s) remain pending in Geter v. State, — So.3d -, 2012 WL 4448860, 37 Fla. L. Weekly D2283 (Fla. 3d DCA Sept. 27, 2012). In the motion for rehearing filed in Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012), counsel for Gonzalez represented that "the Third District decision adopted by the panel, Geter v. State, [— So.3d -, 2012 WL 4448860] No. 3D12-1736 (Slip.op.Sept. 27, 2012), was a pro se postconviction appeal in which no counsel was appointed for the defendant and the state declined to file a brief. See online docket, No. 3D 12-1736. Thus, the [Gonzalez] panel decided that Miller was not retroactive both without the benefit of briefing and oral argument and in reliance on a decision also rendered without briefing by counsel and oral argument.”


author: MORRIS, Judge.

text:
    B & B TREE SERVICE, INC., a Florida corporation, Appellant, v. TAMPA CRANE & BODY, INC., a Florida corporation, Appellee.
    No. 2D11-4547.
    District Court of Appeal of Florida, Second District.
    May 1, 2013.

      James L. Clark of Clark Law Group, PLLC, Tampa, for Appellant.
    Steven W. Moore, Largo, for Appellee.
   MORRIS, Judge.

B & B Tree Service, Inc., appeals a final judgment entered in its favor on its breach of contract claim against Tampa Crane & Body, Inc. B & B argues that the trial court misapplied the law on the loss-of-use measure of damages. We agree that the trial court erred in its application of the law, but we affirm because B & B did not present evidence to prove damages for loss of use.

B & B filed a complaint against Tampa Crane for replevin, breach of contract, tor-tious interference with a business interest, and bailment. B & B alleged that Tampa Crane failed to perform on a contract to install a commercial grade hook and hoist lift system on B & B’s Ford F-550 truck. The only claim that proceeded to trial was the claim for breach of contract. After a bench trial, the trial court entered a final judgment finding that Tampa Crane breached the contract by failing to properly install the “hookloader.” The trial court found that Tampa Crane “should have completed the installation of the [h]ook-loader by mid-September 2006 and delivered the truck to B & B. The truck continued in Tampa Crane’s possession until mid-February 2007, without justification .... [T]he truck should have been returned to B & B in a timely manner.” The trial court went on to explain which damages were recoverable:

[T]he contract did not contain any provisions regarding the date of' completion or liquidated damages. Therefore, the court must consider the consequences of a breach “which may, under the circumstances, be presumed to have been in the contemplation of the parties at the time they made the contract.” The evidence presented established the carrying costs of the truck (loan and insurance payments) and the typical rental cost of a similar vehicle. However, these items would not be recoverable. Rather, recovery would be for payments resulting directly from the breach and the failure to deliver the vehicle for 5 months. Therefore, although there was a breach of contract that resulted in B & B[’s] being deprived of its truck for 5 months, the evidence does not establish a basis to award damages for the failure of Tampa Crane to redeliver the truck in a timely manner.

The trial court awarded B & B $1100 for the cost of finishing the proper installation of the hookloader.

On appeal, B & B claims that the trial court erred in failing to award damages for its loss of use of the truck during the five-month period at issue. The trial court relied on Lucas Truck Service Co. v. Hargrove, 443 So.2d 260 (Fla. 1st DCA 1983), in denying loss-of-use damages to B & B. In Lucas, the plaintiff was awarded damages for his lost profits caused by a mechanic’s retaining the plaintiffs truck for thirteen days. Id. at 262. The district court reversed for two reasons: first, the lost profits were too speculative and were not established with a reasonable certainty and, second, the loss of profits were not an ordinary consequence of the breach or a consequence that was contemplated by the parties at the time of the contract. Id. at 262-63. The court held that

[i]n order that a party may recover profits lost by reason of a breach of contract, the loss must be the natural and proximate result of the breach, whether as an ordinary consequence thereof, or as a consequence which may, under the circumstances, be presumed to have been in the contemplation of the parties at the time they made the contract. Remote damages cannot be recovered.

Id. at 263 (citing 17 Fla. Jur. 2d Damages § 79); see also Md. Cas. Co. v. Fla. Produce Distribs., Inc., 498 So.2d 1383, 1384 (Fla. 5th DCA 1986) (holding “that when the measure of damages properly involves the loss of use of tangible property used in a business, ‘profits’ allegedly lost because of the loss of use of the property is a concept subject to too many other variables to be properly used as a measure of the value of loss of use of the property” (footnote omitted)). The court in Lucas went on to explain that “[t]he proper measure of damages ... is an award for [plaintiffs] loss of use of the truck for the period of thirteen days during which [defendant] refused to return the truck.” Lucas, 443 So.2d at 263 (emphasis added).

It appears that in denying B & B’s claim for loss-of-use damages, the trial court misconstrued the holding in Lucas and confused B & B’s claim for loss-of-profits damages with its claim for loss-of-use damages. Applying Lucas to this case, B & B would not be entitled to damages for loss of profits because the trial court found that the parties did not contemplate that time was of the essence when they entered the contract and that loss of profits was therefore not a contemplated consequence of the breach. However, also according to Lucas, B & B could be entitled to damages for its loss of use of the truck during the five-month period. See id.; see also Tolin v. Doudov, 626 So.2d 1054, 1055 (Fla. 4th DCA 1993) (holding that where buyer sued seller for breach of contract for failing to build access road to property, trial court did not err in instructing the jury that “[a] party who is deprived of the complete use of his property may be entitled to recover for loss of use”); Md. Cas. Co, 498 So.2d at 1384.

The question then becomes whether the evidence established a basis to award loss-of-use damages for that five-month period of time. See Md. Cas. Co., 498 So.2d at 1384 (holding “that the best evidence of lost use value of personal property is the actual or theoretical reasonable rental value of similar property”); Meakin v. Dreier, 209 So.2d 252, 254 (Fla. 2d DCA 1968) (holding that loss of use is the measure of damages but that rental value is indicative of loss-of-use value); see also Tolin, 626 So.2d at 1055 (holding that trial court did not err in instructing jury that loss of use “may be measured by the fair market value of the use loss, which may also be described as the fair rental/lease value of the property over the period of the loss”). B & B did not present evidence to prove the damages it suffered based on its loss of use of a truck with a properly installed hookloader system. The president of B & B testified that he received two quotes, one for $5900 and one for $6000, but Tampa Crane objected to this evidence on the basis of hearsay and the trial court sustained the objection on that basis. Therefore, B & B did not present evidence to establish loss of use damages for a Ford F-550 truck with the hookloader system.

As for the rental value of the Ford F-550 truck alone, the president of B & B admitted that he had “not checked into renting an F-550.” He stated that “[o]ne would assume it would cost at least 1500 to $2,000 per month or more.” An owner is qualified to testify to the value of his property based on a “ ‘presumed familiarity with the characteristics of the property, knowledge or acquaintance with its uses and purposes[,] and experience in dealing with it.... [An] owner must be shown to have knowledge regarding the property and its value sufficient to qualify him.’ ” Craig v. Craig, 982 So.2d 724, 729 (Fla. 1st DCA 2008) (second alteration in original) (quoting Sun Bank/N. Fla., N.A. v. Edmunds, 624 So.2d 753, 756 (Fla. 1st DCA 1993)). But “ ‘[t]he presumption that an owner is sufficiently familiar with property to give an admissible opinion as to its value is a fragile one. If it be shown that the owner ... does not have such familiarity, the opinion evidence is not admissible.’ ” Id. (quoting Edmunds, 624 So.2d at 756). Because the president of B & B admitted that he had not checked into renting the Ford F-550 truck and that he was just making an assumption regarding the rental value of the truck, his opinion testimony was insufficient to prove the value of B & B’s loss of use of the truck.

In conclusion, while the trial court confused the loss-of-use measure of damages with the loss-of-profits measure, B & B is not entitled to an additional award of damages for its loss of use of the truck because it did not present competent, substantial evidence to support such an award.

Affirmed.

LaROSE and KHOUZAM, JJ., Concur.

      . The counts for replevin and tortious interference were dismissed by B & B, and the trial court granted summary judgment on the bailment count in favor of Tampa Crane.

      . B & B Tree Service does not challenge this ruling on appeal.


text:
    T.H., Mother of S.K.B., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D13-374.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2013.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Jennifer S. Paullin, Guardian ad Litem Program, Tavares, for, Guardian ad Litem.
   PER CURIAM.

Appellant challenges the order terminating her parental rights to S.K.B. Appellee properly and commendably concedes that the evidence was insufficient to support a finding of egregiousness as required by section 39.806(l)(f), Florida Statutes (2012). The evidence was also insufficient to support a finding that the continuing involvement of Appellant in the parent-child relationship threatened the life, safety, well-being, or physical, mental or emotional health of the child, irrespective of the provision of services, where no case plan had been offered and the psychologist testified that “she can benefit from psychotherapy.” See J.B. v. Dep’t of Children & Families, 107 So.3d 1196, 1203 (Fla. 1st DCA 2013) (reversing termination of parental rights based on past difficulties in maintaining stable housing despite parents’ current stable housing status and landlord’s testimony that he would work with parents if rent payments were delayed). Finally, the evidence failed to support a finding that termination was the least restrictive means to protect the child. Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). Accordingly, we reverse the order that terminates Appellant’s parental rights.

The challenged order adjudicated the child dependent and terminated Appellant’s parental rights. We affirm the adjudication of dependency, as that was not challenged.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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


author: COHEN, J.

text:
    A.J., Father of A.J., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-4500.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2013.

      Shari J. Wilson of Crutchfield & Wilson, P.A., Rockledge, for Appellant.
    Rosemarie Farrell of Children’s Legal Services, Orlando, for Appellee, Department of Children and Families.
    Laura E. Lawson, Guardian ad Litem Program, Tavares.
   COHEN, J.

The father, A.J., appeals from an order finding his daughter dependent. The child was born prematurely and, as a result, has suffered from numerous health conditions necessitating significant involvement with medical providers. The Department of Children and Families (“the Department”) removed the child from the home and subsequently filed an expedited petition for termination of parental rights as to both parents or, alternatively, for dependency. The crux of the petition alleged that the parents neglected the child’s extensive medical needs, and the child— weighing only fifteen pounds at the age of eighteen months — was failing to thrive.

The testimony presented at trial did not convince the trial court of the need to terminate the father’s parental rights. However, the court found the child to be dependent within the meaning of section 39.811(l)(a), Florida Statutes (2011). In addition to testimony concerning the numerous medical issues confronting the child and evidence of a number of missed medical appointments, the father testified that the parties had been living out of a car for the month preceding the removal of the child. The father blamed various medical providers and the Department for his predicament.

There is no question that these parents have been dealing with an exceptionally difficult situation. The child is in need of constant medical treatment, which has resulted in a depletion of the father’s savings and loss of employment. Equally clear is that the child’s medical needs require the parents to follow up on medical treatment and that their circumstances have hindered their ability to do so.

On appeal, the father argues the evidence presented was insufficient to support a finding of dependency. We disagree. The testimony reflected the need for great vigilance in meeting the child’s medical needs, yet the parents missed numerous appointments and efforts to contact the parents following those missed appointments proved unsuccessful. “ ‘Necessary medical treatment’ means care which is necessary within a reasonable degree of medical certainty to prevent the deterioration of a child’s condition or to alleviate immediate pain of a child.” § 39.01(43), Fla. Stat. (2011). The testimony reflected that the parents’ failure to follow up on the child’s medical appointments endangered the child’s health and potentially her life. Cf. In re D.J., 9 So.3d 750, 754-55 (Fla. 2d DCA 2009) (finding evidence supported trial court’s finding that child’s return to mother would have resulted in a substantial risk of imminent harm based on mother’s inability to provide child with medical treatment necessary to manage health issues).

The parents and child have had a rough road to navigate and will continue to face monumental obstacles. The purpose of the finding of dependency is not to punish the parents, but rather to help them meet the needs of a very challenged little girl. § 39.501(2), Fla. Stat. (2011).

AFFIRMED.

LAWSON and EVANDER, JJ., concur.

      . The mother has not appealed the order under review.

      . The child suffered from a lack of oxygen at the time of her birth, severe complex congenital heart disease, ventricular tachycardia, chy-lothorax, renal failure, liver problems, and a seizure. She had open-heart surgery within days of her birth and remained in a neonatal intensive care unit for five months. She was under the care of a gastroenterologist, cardiologist, nephrologist, pulmonologist, developmental specialist, and physical therapist.


author: JACOBUS, J.

text:
    Lewis PLATT, Jr. and Teri L. Platt, Appellants, v. Valerie MILLER, Appellee.
    No. 5D11-4345.
    District Court of Appeal of Florida, Fifth District.
    May 3, 2013.
    J. Russell Collins of Rusty Law, LLC, St. Augustine, for Appellants.
    Allen C.D. Scott, II, of Scott Legal Associates, P.A., St. Augustine, for Appellee.
   JACOBUS, J.

Appellants, Lewis Platt, Jr. and Teri L. Platt, filed an action for declaratory judgment seeking to establish their right to rescind the refinancing of their home due to violations of the federal Truth in Lending Act, the federal Home Ownership and Equity Protection Act, and the Florida Fair Lending Act. Appellee, Valerie Miller, counterclaimed to foreclose the mortgage. Appellee ultimately obtained a final summary judgment in her favor on the claims contained in appellants’ complaint, but a final judgment of foreclosure has not yet been entered in her favor on her counterclaim.

A review of the record shows that the claims asserted in appellants’ amended complaint are inextricably intertwined with appellee’s pending counterclaim to foreclose the mortgage. Accordingly, this Court lacks jurisdiction to review the order now on appeal, which merely disposed of the claims in appellants’ complaint. See Yunger v. Oliver, 803 So.2d 884, 887 (Fla. 5th DCA 2002) (citing S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974)).

APPEAL DISMISSED.

TORPY and EVANDER, JJ., concur.


author: ROWE, J.

text:
    Cody BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1876.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Meredith Hinshelwood and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   ROWE, J.

Cody Bennett appeals his judgment and sentence for possession of cannabis with intent to sell, arguing that the trial court erred in denying the defense motion to suppress evidence obtained in the search of his vehicle based on a police dog alert. Specifically, Bennett argues that the alert to his vehicle trunk by the canine, Argos, did not constitute probable cause because the dog’s reliability could not be established. We affirm, holding that law enforcement officers had a reasonable basis for relying on Argos’ alert to support probable cause for the search.

The showing the state must make to establish probable cause for a warrantless search of a vehicle based on a drug-detection dog’s alert to the vehicle involves a trial court’s determination of the legal issue of probable cause, which we review de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Pagan v. State, 830 So.2d 792, 806 (Fla.2002). However, the reviewing court must defer to a trial court’s findings of fact as long as the factual findings are supported by competent substantial evidence. See Connor v. State, 808 So.2d 598, 608 (Fla.2001); Blalock v. State, 98 So.3d 118, 120 (Fla. 1st DCA 2012).

At the hearing on the motion to suppress, the state presented the testimony of Lieutenant Francis, supervisor of the K-9 unit, and the testimony of Deputy Dug-gins, Argos’ handler. The state also presented the records relating to Argos’ training and performance history through those two witnesses. The testimony and evidence showed that Argos had been trained to detect the odor of marijuana, cocaine, heroin, and methamphetamine. According to Sheriffs Office policy, an activity report for a police dog is generated every time the dog’s paws come out of the K-9 unit truck, and Argos had approximately 380 detection reports on file with the Sheriffs Office at the time of Bennett’s arrest. During the narcotics detection in this case, Deputy Duggins deployed Argos to conduct a “free air search” (a sweep) around Bennett’s vehicle. Argos first alerted to the driver’s door when he put his nose on the door handle and quickly sat, as he has been trained to do when he detects narcotics. Deputy Duggins and Argos continued their sweep of the vehicle, and when Argos approached the trunk area, he quickly sat as an alert.

Following the suppression hearing, the trial court denied the motion, finding that under the totality of the circumstances, law enforcement officers had a reasonable basis for relying on Argos’ alert to support probable cause for the search:

Argos was recently certified by two national organizations with strict training standards and his training and field records, although imperfect, provide a sufficient basis to establish Argos’ alert was sufficiently reliable to provide probable cause to search. Thus, the Court finds that based on the totality of the circumstances, officers had a reasonable basis for believing that Argos was reliable at the time of search, and that Argos’ alert indicated a fair probability that drugs would be found in Defendant’s vehicle.

We conclude the trial court correctly determined that law enforcement had probable cause to search Bennett’s vehicle.

In Harris v. State, 71 So.3d 756 (Fla. 2011), the Florida Supreme Court established a strict test for trial courts to apply when determining whether an officer has a reasonable basis to believe a dog’s alert is sufficiently reliable to support probable cause. However, this test was recently rejected by the United States Supreme Court in Florida v. Harris, - U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61, (2013), where the Court reversed the Florida Supreme Court and held that Florida’s “demand” for “an exhaustive set of records” to establish the dog’s reliability was inconsistent with the “flexible, common-sense standard” of probable cause set forth in Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Reviewing probable cause case law, the Supreme Court in Harris observed once again that “[t]he test for probable cause is not reducible to ‘precise definition or quantification.’ ” Id. at 1055 (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)). Reiterating that a police officer has probable cause to conduct a search when the facts available support a reasonable belief that contraband or evidence of a crime will be found, the Court stated that probable cause decisions are based on commonsense evaluations as set forth in Gates:

Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the [probable-cause] decision. ... All we have required is the kind of ‘fair probability’ on which reasonable and prudent [people,] not legal technicians, act.

Harris, 133 S.Ct. at 1055 (quoting Gates, 462 U.S. at 231-38, 103 S.Ct. 2317, 76 L.Ed.2d 527).

Under the Supreme Court’s “commonsensical standard” for demonstrating probable cause, courts are directed to consider the totality of the circumstances: “We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.” Id. To illustrate, the Court discussed its reasoning in Gates:

In Gates, for example, we abandoned our old test for assessing the reliability of informants’ tips because it had devolved into a “complex superstructure of evidentiary and analytical rules,” any one of which, if not complied with, would derail a finding of probable cause. 462 U.S., at 235, 103 S.Ct. 2317, 76 L.Ed.2d 527. We lamented the development of a list of “inflexible, independent requirements applicable in every case.” Id. at 230, n. 6, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Probable cause, we emphasized, is “a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.

Harris, 133 S.Ct. at 1056. Specifically addressing the standard for probable cause for a warrantless search of a vehicle based on a drug-detection dog’s alert, the Supreme Court concluded that “[a] sniff is up to snuff’ when “all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. at 1058.

Under the Supreme Court’s holding in Harris, the record in this case demonstrates a reasonable basis to support a finding of probable cause under the totality of the circumstances. The state introduced testimony regarding Argos’ certification and weekly training requirements. Deputy Duggins testified regarding the selection process for the dogs as well as the procedures in place for dogs that do not meet the requirements. Duggins testified that Argos was certified by the North American Police Dog Association. Argos’ field performance records and training records were introduced. Although Bennett presented reports indicating Argos has a history of alerting to residual odors, the state pointed out that even considering the unsubstantiated alerts, Argos still had approximately a 90% success rate. Further, the testimony reflected that Argos’ handler was well-trained and extremely experienced in working with and training drug-detection dogs.

Bennett argues that Argos’ alert should be held as unreliable based on the dog’s prior alerts to residual odors. However, this court in Blalock v. State, 98 So.3d 118 (Fla. 1st DCA 2012), rejected that argument, concluding that the detection of residual odors, at least those the dog is trained to detect, should not be taken into account either way when calculating the dog’s reliability. Id. at 121. Further, Bennett’s argument is not persuasive under the facts in this case. No search of the vehicle was performed until Argos completed the entire sweep around the vehicle, and in the process of that sweep, Argos not only detected drugs on the car door handle, but Argos also detected drugs in the trunk area of the vehicle, where the drugs in this case were discovered. Under the Supreme Court’s holding and reasoning in Harris, the alert to the door handle would not have been sufficient to discredit the dog’s reliability to support probable cause:

A detection dog recognizes an odor, not a drug, and should alert whenever the scent is present, even if the substance is gone ... [A] well-trained dog’s alert establishes a fair probability — all that is required for probable cause — that either drugs or evidence of a drug crime ... will be found.

Id at 1057.

We hold that under the totality of circumstances standard for probable case, Argos’ sniff was up to snuff, and the trial court did not err in denying Bennett’s motion to suppress based on a determination that the police officers had reasonable suspicion to support probable cause for the search of the trunk of Bennett’s vehicle.

We, therefore, AFFIRM.

THOMAS and WETHERELL, JJ., concur.

      . In Harris, 71 So.3d at 774-75, the Florida Supreme Court held that to demonstrate whether an officer has a reasonable basis to believe a dog’s alert is sufficiently reliable to provide probable cause, the state must present evidence of the dog’s training and certification records, an explanation of the meaning of the training and certification, field performance records (including unverified alerts), and evidence concerning the experience and training of the dog's handler. Id. at 775. There the supreme court focused on evidence of the dog’s performance history, including how often the dog has alerted in the field without illegal contraband having been found, evidence to show whether a handler might have a tendency to cue the dog to alert, and “a dog’s inability to distinguish between residual odors and actual drugs.” Id. at 774.


author: THOMAS, J.

text:
    Douglas Lee THOMPSON, Father, Appellant, v. Shannon WATTS, f/k/a Shannon Thompson, Appellee.
    No. 1D12-4757.
    District Court of Appeal of Florida, First District.
    May 6, 2013.

      Aaron N. Bauldree, Tallahassee, for Appellant.
    Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
   THOMAS, J.

Appellant, former husband, appeals the trial court’s order denying his petition for modification of his child support obligation. For the reasons explained below, we reverse.

Facts

The trial court entered a jointly-stipulated final judgment of dissolution in 2005. At the time of the divorce, the parties had three minor children, ages 4, 8, and 12. Included in the final judgment was a provision for child support which stated, in relevant part, as follows:

8. The Husband shall pay child support for the benefit of the minor children in the sum of $1,600.00 per month beginning October 1, 2005, and continuing on the 1st day of each month thereafter. The Husband’s support obligation shall terminate or decrease only when there are no minor children because of one of the following events has occurred with regard to the minor children: (a) the death of the child; (b) attainment of her 18th birthday, or up to her 19th birthday so long as the child is in fact dependent, between the ages of 18 and 19, still in school, and performing in good faith with a reasonable expectation of graduation before the age of 19; (c) the valid marriage of the child; (d) a lawful entry of the child into the military service of the United States of America for a continuous period of time of one year or more; (e) the child becoming self-supporting by permanent and full-time employment, exclusive of holidays and vacation; or (f) further order of this Court.

In April 2011, the oldest child reached age 18, and she graduated from high school at the end of May 2011. Appellant filed his modification provision on June 1, 2011, seeking a downward modification based on this provision and the occurrence of a qualifying event as to the oldest child. Appellant followed his petition with a motion for summary judgment. Appellee opposed both the petition and summary judgment motion, claiming that the support award provided that Appellant was obligated to pay the entire $1,600 per month until all three of the children had undergone one of the qualifying events.

The trial court held three hearings on the matter, and throughout the proceedings Appellant objected to the consideration of any testimony concerning the parties’ intent when agreeing to the contested support provision, arguing that no such testimony was needed because the agreement unambiguously provided for a reduction in child support upon the occurrence of a qualifying event as to each child, and if the provision was ambiguous, the ambiguity was patent, in which case parol evidence was inappropriate. Conversely, Appellee also argued the provision unambiguously provided for no reduction in support until a qualifying event occurred as to all three children, and if the provision was ambiguous, the ambiguity was latent and required parol evidence to clear up the ambiguity. The parties also disagreed on whether the support award was allocated or unallocated.

The court ultimately issued an order denying Appellant’s modification petition. The trial court found that in its prior order, it “determined that there was a latent ambiguity concerning the language in Paragraph 8 of the Stipulated Final Judgment,” and that “it would be necessary to entertain parole [sic] evidence and testimony concerning the intent of the parties as it pertains to Paragraph 8 of the Stipulated Final Judgment of Dissolution of Marriage.” The court noted Appellant’s objection to such evidence on the ground the ambiguity was patent, and found:

In the absence of any testimony or evidence concerning the intent of the parties, the Court must construe the provisions of Paragraph 8 to represent an unallocated award of child support in the amount of $1,600.00. Accordingly, the Court finds that the Former Husband’s Supplemental Petition for Modification is due to be denied.

Appellant moved for a rehearing, which the court denied, and this appeal followed.

Analysis

At issue is the interpretation of a divorce decree born of a joint settlement agreement; thus, review is de novo. See Avellone v. Avellone, 951 So.2d 80, 83 (Fla. 1st DCA 2007) (holding “[a] marital settlement agreement is a contract subject to interpretation like any other contract.”).

A cursory review of this provision reveals that it is far from a model of clarity. The court correctly found it ambiguous, but also found that the ambiguity was “latent,” which required parol testimony to determine the parties’ intent and, absent such testimony, it was constrained to find that the provision constituted an unallocated child support award. This, in turn, required it to deny Appellant’s modification petition. This was error.

“Interpretation of a contract begins with its plain language. As a general rule, evidence outside the contract language, which is known as parol evidence, may be considered only when the contract language contains a latent ambiguity.” Duval Motors Co. v. Rogers, 73 So.3d 261, 265 (Fla. 1st DCA 2011) (citation and footnote omitted). “A latent ambiguity exists ‘where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ ” Id. n. 2 (quoting Barnwell v. Miami-Dade County Sch. Bd., 48 So.3d 144, 145-46 (Fla. 1st DCA 2010)). “Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways.” Prime Homes, Inc. v. Pine Lake, LLC, 84 So.3d 1147, 1151-52 (Fla. 4th DCA 2012). “ ‘A latent ambiguity is said to exist where a contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings.’ ” Albertson v. Albertson, 566 So.2d 606, 608 (Fla. 4th DCA 1990) (quoting Forest Hills Utils., Inc. v. Pasco Cnty., 536 So.2d 1117, 1119 (Fla. 2d DCA 1988)).

Based on these principles, the trial court erred in its determination that the ambiguity in the support provision was latent. First, no extrinsic evidence was presented to create an ambiguity. Second, the language under scrutiny was anything but clear and intelligible, suggesting “but a single meaning.” Rather, the ambiguous nature of the provision is clear on its face, even without extrinsic evidence, and the provision lends itself to two possible interpretations: 1) Appellant’s obligation to pay the full $1,600 in monthly child support continues until a qualifying event has occurred with respect to the last of the children; or 2) the support obligation will decrease whenever a qualifying event occurs for the first two children (regardless of the order in which this takes place), and terminate altogether when such an event occurs with respect to the remaining child, i.e., “when there are no minor children because of one of the” qualifying events.

Finally, the judgment does not fail to specify the rights or duties of the parties with respect to child support. To the contrary, the support provision expressly addresses Appellant’s obligation to pay child support and Appellee’s right to receive that support, as well as when Appellant is entitled to cease paying all or some of his obligation.

By finding the provision was latently ambiguous, thus requiring extrinsic evidence to interpret it, and pointing to Appellant’s objection to introducing any such evidence, the trial court determined that it could not interpret the provision, thus forcing it to deny Appellant’s petition. Because the provision was in fact patently ambiguous, however, this was error, and it is for this court to interpret the support provision as it would any contract. See Avellane, 951 So.2d at 83.

The trial court also determined that the support award was unallocated and, without explanation, apparently determined that this prevented it from modifying Appellant’s support obligation. To the extent this was the trial court’s interpretation of the law, we disagree. Whether a support award is allocated or unallocated' is relevant only as to the effective date of any modification — upon the occurrence of a qualifying event or as of the date of filing a modification petition. When a support award is allocated (i.e., not a lump sum), the “obligor is entitled to seek a modification retroactive to that event.” Gilbert v. Cole, 107 So.3d 426 (Fla. 1st DCA 2012).

When the award is unallocated (i.e., a lump sum), there is no automatic reduction retroactive to the qualifying event:

[TJhere are cases in which the support awarded for several children is not sufficient in amount, but is all that the spouse can afford to pay. Therefore, to require an equal division for each child and an automatic reduction in the amount upon each child reaching majority would be inadequate in such cases. When the final judgment awards a lump sum amount for several children, it becomes necessary for the husband to petition for an order reducing the amount when one child attains majority.

Hammond v. Hammond, 492 So.2d 837, 838 (Fla. 5th DCA 1986) (citation omitted). The Hammond court also held that because the appellant did not file a petition for modification, “and because no evidence was taken upon which the court could determine that a modification was appropriate and in the best interest of the remaining minor child, modification of the award was error.” Id. at 839. Thus, although a qualifying event has occurred, the obligor may not be entitled to a modification, retroactive or prospective, if a reduction would result in an inadequate award for the remaining child(ren).

Thus, the fact that an award is unallocated does not, by itself, constitute grounds for denying a petition for modification. Rather, an obligor of an unallocated award must, upon the occurrence of a qualifying event or any time afterward, petition the court for modification and establish entitlement to modification pursuant to the relevant statute and guidelines. See also Dep’t of Revenue v. Hall 699 So.2d 1036, 1038 (Fla. 5th DCA 1997) (holding, where “the final order of dissolution provided for a lump sum support payment for the four children,” that the obli-gor “had the duty to petition the court for modification as each child reached majority and was required to make payments in full until the court granted his requests.”); Lehman v. Dep’t of Revenue, 946 So.2d 1116, 1118 (Fla. 4th DCA 2006) (holding the key issue before it was whether the support provision in question provided for allocated or unallocated child support and, if it was the former, the trial court could retroactively terminate support to a date even before the modification petition at issue was filed). Consequently, to the extent the trial court’s denial of Appellant’s petition was compelled by its finding that the support award was unallocated, this was error.

Turning now to the interpretation of the provision at issue, it provides that child support will “terminate or decrease ” upon the occurrence of certain events. (Emphasis added.) Logically, if the award was meant to continue without reduction until a qualifying event occurred with respect to all three children, as Appellee argues, then any language allowing for the possibility of a decrease is superfluous. If that was the meaning of the clause, then the word “terminate” was sufficient. Instead, however, the provision allows for both the event of termination and a decrease of the support obligation. Furthermore, with respect to each qualifying event, the provision describes it as happening to a single child, e.g., “the death of the child,” attainment of her 18th birthday,” “the child becoming self-supporting ...,” etc. (Emphasis added.) This use of the singular is nonsensical if the support obligation was not subject to a decrease until an event happened to all the children.

Thus, the more logical interpretation of the agreement is that the child support obligation is subject to termination if a qualifying event occurs regarding all three children at or near the same time, or if one or more such events already occurred as to all three children. Likewise, the support obligation is subject to a decrease with the occurrence of a qualifying event as to each child, but with the proviso that after such an event has occurred as to two of the children, the award is subject to termination when such an event occurs with respect to the remaining child, i.e., “when there are no minor children because of one of the” qualifying events. Thus, because one of the children reached the age of majority and graduated from high school— one of the qualifying events — Appellant was entitled to petition for a downward modification of the award.

This leaves the trial court’s determination that the award was unallocated. Under the facts of this ease, however, this issue is moot because Appellant filed his modification petition on June 1, 2011, immediately after a qualifying event occurred as to the oldest child. Thus, there is no issue of whether any modification of the award is retroactive to the qualifying event or the date the petition was filed. Consequently, all that is left for the trial court to do is determine the amount of downward modification, as discussed in Hammond.

Conclusion

For the foregoing reasons, we REVERSE the trial court’s order denying Appellant’s petition for modification of child support and REMAND for proceedings consistent with this opinion.

REVERSED and REMANDED.

VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Chase Carmen HUNTER, Petitioner, v. DEPARTMENT OF FINANCIAL SERVICES, Respondent.
    No. 1D12-5889.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Chase Carmen Hunter, pro se, Petitioner.
    David J. Busch, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner seeks review of an Emergency Suspension Order (ESO) suspending her non-resident insurance license. We find that the ESO fails to meet the exacting standards of section 120.60(6), Florida Statutes, because it does not contain particularized facts demonstrating an immediate danger to the public health, safety, or welfare. See Kaplan v. State, Dep’t of Health, 45 So.3d 19 (Fla. 1st DCA 2010); Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So.2d 669 (Fla. 1st DCA 2005). We GRANT the petition and QUASH the ESO to the extent that it has not been mooted by the underlying administrative proceedings.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. T.T., G.J., C.T., parents of G.J., Jr. and C.I.T., minor children, Appellees.
    No. 1D12-4725.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellant.
    No appearance, for Appellees.
   PER CURIAM.

The Department of Children and Families seeks review of an order dated August 22, 2012, reviewing shelter placement. Paragraphs 7 through 14 of the decretal portion of the order are stricken from the order because the requirements imposed by those paragraphs are contrary to provisions in the Florida Statutes governing the Department. See §§ 39.00145(4), 39.201(5), 39.301, and 39.303(1), (2), Fla. Stat. (2012).

REVERSED in part, and AFFIRMED in part.

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


text:
    Allen Benjamin BURKHALTER, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1895.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his convictions and sentences for armed burglary with assault or battery (Count I), and armed burglary (Count II), stemming from a single entry into a dwelling with multiple occupants. The State properly concedes that Appellant’s conviction for Count II, armed burglary, must be vacated, as this conviction constitutes a double jeopardy violation. See Gorham v. State, 968 So.2d 717 (Fla. 4th DCA 2007); Williams v. State, 927 So.2d 145, 146 (Fla. 1st DCA 2006). We reverse and remand with directions that the trial court vacate Appellant’s conviction and sentence for Count II, armed burglary.

All other issues raised on appeal are affirmed.

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

BENTON, C.J., THOMAS and CLARK, JJ., concur.


author: PER .CURIAM.

text:
    Bradford Keith GARY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-812.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER .CURIAM.

Bradford Keith Gary appeals from a judgment and sentence entered after revocation of his probation. For one count, the court ordered Gary to serve a new term of probation. As the State properly concedes, the trial court erred in ordering Gary to provide a DNA sample as a condition of probation pursuant to section 948.014(1), Florida Statutes (2011), because he does not meet the requirements of section 943.325(2)(g), Florida Statutes (2011). Accordingly, although we otherwise affirm, we reverse as to the erroneous condition of probation and remand with directions that the trial court strike that condition.

AFFIRMED in part; REVERSED in part; and REMANDED.

PADOVANO, ROWE, and RAY, JJ., concur.