author: WARNER, J.

text:
    D.M., Petitioner, v. ELIZABETH R. BERKOWITZ, PA, Respondent.
    No. 4D13-3.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Amy Burns of Florida Rural Legal Services, Inc., Fort Pierce, for petitioner.
    Patricia L. Strowbridge of Patricia L. Strowbridge, P.A., Orlando, for respondent.
   WARNER, J.

Petitioner seeks certiorari review of the trial court’s order denying his access to pleadings in an adoption proceeding involving his child. He is presently contesting a petition for termination of his parental rights to the child, and he claims that he needs to review the court file of the termination proceedings to view the documents upon which his consent is based. We grant the petition.

Petitioner is the father of the child sought to be adopted through a private placement adoption. He was married to the birth mother and signed an affidavit of non-paternity about six weeks before the child was born. After the birth, a petition for termination of his parental rights was filed. The father filed a motion to set aside the affidavit in the termination of parental rights action, alleging his signature was obtained while he was without counsel, under duress, and without understanding the consequences. He also argued that section 63.042, Florida Statutes, violates the equal protection clause of the constitution because it treats birth mothers and birth fathers differently.

He then moved for access to the court file in the termination proceedings alleging that he needed access to the pleadings so that he can defend his paternity rights. The adoption entity objected to his access to the file, relying on the confidentiality provision of section 63.089(8), Florida Statutes, which provides:

All papers and records pertaining to a petition to terminate parental rights pending adoption are related to the subsequent adoption of the minor and are subject to s. 63.162.

Section 63.162(2) provides that the records are confidential subject to release by order of the court:

All papers and records pertaining to the adoption, including the original birth certificate, whether part of the permanent record of the court or a file in the office of an adoption entity are confidential and subject to inspection only upon order of the court.... The order must specify which portion of the records are subject to inspection, and it may exclude the name and identifying information concerning the parent or adoptee.

Another provision of the statute prohibits any person from disclosing the identity of the birth parent, adoptive parent, or adop-tee, except under specific circumstances including a court finding of good cause. See § 63.162(4), Fla. Stat.

The father gave notice of his request for access to the file to the Department of Children and Families pursuant to section 63.162(2), even though this was a private adoption and the court required the Department to give advice. The Department took no position on the father’s motion. After several hearings, the trial court denied the motion, citing extensively to section 63.162(4) and its requirement for good cause when a person seeks disclosure of the identity of the parties. The court did not make a finding of good cause.

In his petition for certiorari, the petitioner contends that the court departed from the essential requirements of law by denying him access to documents pertaining to the termination of his parental rights. He did not seek or request access to documents relating to the adoption which would violate the privacy of the birth mother, child, or proposed adoptive parents. As he says in his petition, “Due process requires at a minimum that he be allowed to review the documents being used against him to terminate his parental rights.”

The petition for termination of the father’s rights was filed pursuant to section 63.087, Florida Statutes. That section requires an answer and appearance in accordance with the Florida Rules of Family Procedure. § 63.087(6), Fla. Stat. Further, the respondent must be given an opportunity to admit or deny the allegations of the petition. § 63.087(6)(b), Fla. Stat. It is clear that for purposes of the petition a participating parent is a party to the proceedings. He is entitled to appear and defend and contest the proceedings on any legal or factual basis which would be a ground for defending the termination of his fundamental rights. As such, we fail to understand how he would not be entitled to see the pleadings and papers filed in the proceeding to take away his rights.

Respondent argues that the petitioner must establish good cause under the statute. In re Adoption of Rand, 347 So.2d 450 (Fla. 3d DCA 1977), requires good cause to access the documents even though section 63.162(2) does not include that requirement:

The statutory requirement herein implicitly carries with it an- exercise of sound judicial discretion else the entry of such an order would be nothing more than an empty gesture hardly requiring the act of a court. The obvious purpose of such a court order is to protect the confidentiality of adoption court files against probes made for other than legitimate reasons, not to open up such files to all comers. The fact that discretion or good cause is not expressly mentioned in subsection (2) of the statute but is in subsection (4) thereof, does not change this result since such a requirement is implicit in the statute.

Id. at 451. While we appreciate that the court should find good cause before allowing access to persons who are not parties to the suit or to give access to the proceedings after a final judgment is entered, we doubt that a “good cause” requirement applies to the parties to the proceedings in the midst of prosecuting and defending the petition. They must have access to the pleadings and filed documents in order to conduct the proceedings to conclusion.

Nevertheless, even if there is a good cause requirement, we think it is self-evident that good cause is established simply because the father is a party to the proceeding and his fundamental rights are at risk of termination.

We therefore grant the petition. The respondent has concerns as to the access to the identity or identifying information of the adoptive parents. The statute seeks to protect this information, and we agree that such information deserves protection. See A.D. v. M.D.M., 920 So.2d 857 (Fla. 4th DCA 2006). The trial court should conduct an in camera inspection of the file so that the names and identifying information regarding the adoptive parents can be redacted.

GROSS and CIKLIN, JJ„ concur.

      . Respondents claim that A.D. stands for the proposition that the father can be denied access to the file. In A.D. we required the father to comply with section 63.162(2) because he sought to obtain the identities of the adoptive parents long after the entry of the final judgment. We did not hold that the father who is a party to ongoing proceedings is required to show good cause for access to the court file.


source: Caselaw Access Project

license: Public Domain

text:
    Samori K. WALDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2308.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Samori K. Walden, Moore Haven, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The trial court denied appellant’s motion to correct an illegal sentence, imposed in 2006, in which he argued that the trial court failed to orally pronounce various statutorily authorized costs which were included in his -written sentence, making his sentence illegal. We agree with the state that statutory costs and fees, which were not orally imposed, may not be challenged through a rule 3.800(a) motion. We hold a failure to orally pronounce costs imposed on the defendant is not a sentencing error which results in an illegal sentence correctable pursuant to Florida Rule of Criminal Procedure 3.800(a).

In this case, the appellant seeks the deletion of certain costs and fees which were not orally pronounced, yet appeared in his sentencing orders. Some were mandatory by statute, and some were discretionary. All were imposed in written orders at sentencing. Appellant did not file a motion pursuant to rule 3.800(b) to correct his sentence, and he did not raise the issue on appeal. Five years later, he filed this motion pursuant to rule 3.800(a) to correct his sentence by deletion of the costs.

In Merricks v. State, 90 So.3d 893, 894 (Fla. 4th DCA 2012), in affirming the denial of a motion to correct an illegal sentence, we mentioned in dicta that a failure to orally pronounce the imposition of costs rendered the sentence illegal for purposes of rule 3.800(a) relief. We conclude, however, that our statement in Merricks is at odds with both Maddox v. State, 760 So.2d 89 (Fla.2000), and Jackson v. State, 983 So.2d 562 (Fla.2008).

In Maddox, our supreme court addressed whether an unpreserved sentencing error in the assessment of costs could be corrected on direct appeal from a sentence. 760 So.2d at 108-10. Noting that the addition of rule 3.800(b) permits a defendant to seek correction of a sentence imposing costs of which the defendant may have been unaware at the sentencing hearing, the supreme court concluded “that an unpreserved error in the assessment of costs cannot be considered a serious, patent sentencing error that should be corrected on appeal as fundamental in the absence of proper preservation in the trial court.” Id. at 109. Furthermore, the court applied the same rule as it applied to the failure to orally pronounce conditions of probation:

As with the pending cases in which the defendant asserts error because of a deviation from the oral pronouncement imposing conditions of probation, in none of the pending cases where the defendant asserts an improper error in the imposition of a cost has the appellant made a claim that the appellate record establishes that he or she did not have notice of the imposition of the costs in time to file a rule 3.800(b) motion.

Id. at 110. The court directed the court to correct “serious, patent sentencing errors,” mainly those that impact the length and conditions of sentences. Id. The erroneous imposition of costs did not fall into those categories.

Jackson relied on Maddox and explained that the unauthorized imposition of costs does not rise to the level of an illegal sentence.

There are “sentencing errors” to which the defendant may have had an opportunity to object that do not result in an “illegal” sentence or a sentence otherwise subject to correction under rule 3.800(a). For example, the imposition of costs without statutory authority is a “sentencing error” for purposes of rule 3.800(b). See Maddox, 760 So.2d at 109 (recognizing that the unpreserved “sentencing error” at issue in Maddox involved improper imposition of six dollars in costs without statutory authority); see also Fla. R.Crim. P. 3.800 court cmt. (explaining that an error in a cost or restitution order is a “sentencing error” for purposes of the rule).

983 So.2d at 574. Thus, the supreme court again refused to treat the unauthorized imposition of costs like those errors which affect the length or conditions of punishment which are correctable by rule 3.800(a).

We conclude that our statement in Mer-ricks that failure to orally pronounce the imposition of costs results in an illegal sentence correctable under rule 3.800(a) was in error. Maddox and Jackson both teach that the imposition of costs, even when not orally pronounced, is not the type of sentencing error for which rule 3.800(a) was intended to provide relief. Instead, the defendant can seek relief from unauthorized costs, including the failure to orally impose such costs, through rule 3.800(b) after sentencing. To correct such minor errors years later, involving substantial resources at both the trial and appellate level, reduces judicial resources to devote to serious issues before the courts. While Merricks correctly cited Williams v. State, 957 So.2d 600 (Fla. 2007), for the proposition that rule 3.800(a) provides the means to correct discrepancies between an oral pronouncement of a sentence and the written sentence, Williams involved a difference in the length of punishment imposed. We have not located a case in which our supreme court has applied rule 3.800(a) to correct the imposition of costs not orally imposed.

Two cases have used rule 3.800(a) to strike costs not orally pronounced. See Strickland v. State, 56 So.3d 906 (Fla. 5th DCA 2011); Benner v. State, 974 So.2d 578 (Fla. 1st DCA 2008). Strickland relied on Williams. We certify conflict with those cases.

We therefore affirm the summary denial of the motion to correct a sentencing error, concluding that such errors in the assessment of costs, even if not orally pronounced, are not subject to correction through rule 3.800(a).

MAY, C.J., and GROSS, J., concur.


author: PER CURIAM.

text:
    Danny HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2491.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Danny Hernandez, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Danny Hernandez appeals the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of two of Hernandez’s three claims.

Hernandez was convicted of two counts of aggravated battery with a firearm and one count of aggravated assault with a firearm as a result of his involvement in a shooting at a sports bar. Two men were shot in the leg. Hernandez was shot as well. He presented a misidentification defense.

Hernandez alleges in his motion that counsel was ineffective in failing to locate and call a favorable defense witness who was with him during the incident and who would have supported a self defense claim, a more appropriate and stronger defense. Hernandez faults counsel for not investigating and presenting the witness and the related defense. This claim is sufficiently pleaded and not refuted by the portions of the record attached. See Ford v. State, 825 So.2d 358, 360-61 (Fla.2002) (quoting Jackson v. State, 711 So.2d 1371, 1372 (Fla. 4th DCA 1998)). The record provided reflects comments by defense counsel about self defense within the discussions surrounding jury instructions. However, that instruction was not given, and the supporting witness was not called to testify. We reject the State’s position that Hernandez waived this claim. Counsel’s strategic decision to forego self defense, with or without the witness, may have been sound, but typically an evidentiary hearing is needed to explore that reasoning. See, e.g., Dames v. State, 807 So.2d 756 (Fla. 2d DCA 2002).

On remand, the trial court shall also consider Hernandez’s claim that counsel’s conduct was deficient with respect to the plea offer and his explanation of Hernandez’s maximum penalty. Hernandez alleges that counsel told him that his maximum penalty after trial was only “twenty years and [he] failed to explain the mandatory minimum effect of the sentence.” Given such advice, Hernandez rejected a plea offer to a fifteen-year prison term. Following the trial, the trial court sentenced Hernandez to two consecutive twenty-five-year terms for the aggravated batteries (firearm) and a consecutive twenty-year term for aggravated assault (firearm). Hernandez must serve a mandatory minimum of twenty-five years as to Counts I and II and a mandatory minimum sentence of twenty years as to Count III.

Hernandez alleges a sufficient claim. Morgan v. State, 991 So.2d 835, 839—40 (Fla.2008) (movants are entitled to relief on such claims when they allege and prove three factors: “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed”). In Sirota v. State, 95 So.3d 313 (Fla. 4th DCA 2012), this court considered Morgan’s continued viability in light of two recent decisions from the United States Supreme Court. Id. at 315 (citing Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012)).

Sirota concluded that the claim remained cognizable, and certified to the Florida Supreme Court a question of great public importance regarding Morgan’s scope and application following those decisions which prescribe the minimum requirements of the Sixth Amendment as to these types of claims. Before Frye and Cooper, Florida held that “an inherent prejudice results from a defendant’s inability, due to counsel’s neglect, to make an informed decision whether to plea bargain, which exists independently of the objective viability of the actual offer.” Cottle v. State, 733 So.2d 963, 969 (Fla.1999). Siro-ta asked the Florida Supreme Court to address whether Cooper and Frye supersede Morgan and Cottle as to both the pleading requirement and the remedy.

As we did in Sirota, we certify the following question of great public importance to the Florida Supreme Court:

DO THE DECISIONS IN LAFLER V COOPER, — U.S.-, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), AND MISSOURI V FRYE, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), WHICH ESTABLISH THE MINIMUM REQUIREMENTS OF THE SIXTH AMENDMENT, SUPERSEDE THE DECISIONS IN MORGAN V. STATE, 991 So.2d 835 (Fla.2008), AND COTTLE V. STATE, 733 So.2d 963, 969 (Fla.1999), AS TO THE PLEADING REQUIREMENTS AND REMEDY FOR AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM REGARDING A LOST PLEA OFFER? IF SO, ARE EVIDENTIARY HEARINGS ON SUCH CLAIMS LIMITED TO CIRCUMSTANCES INVOLVING “FORMAL PLEA OFFERS,” THAT IS, VERIFIABLE OFFERS THAT ARE EITHER IN WRITING OR MADE ON THE RECORD IN OPEN COURT?

95 So.3d at 321.

Based on the foregoing, we remand the case to the trial court to conduct an evi-dentiary hearing to resolve the two claims discussed. We affirm the denial of Hernandez’s other claim without discussion.

Affirmed in fart, reversed in fart, and remanded for further froceedings. Question certified.

STEVENSON, TAYLOR and GERBER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Kevin Earl CARTWRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-320.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.

      Kevin E. Cartwright, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Kevin Earl Cartwright, pro se, appeals the trial court’s order denying his motion to withdraw his plea of guilty to second degree murder and first degree attempted murder. In his brief, Appellant raised a litany of “grounds” for appeal, which we have condensed to the following arguments: 1) the court did not take into account Appellant’s mental state when accepting his plea; 2) Appellant was coerced into entering the plea because he was denied adequate representation by counsel and a fair trial by the court; and 3) Appellant was coerced into entering the plea by-threat of counsel. Having conducted a careful and thorough review of the entire record, we hold that each of Appellant’s claims, is conclusively refuted by the record, and affirm the trial court’s order.

A trial court’s denial of a motion to withdraw plea is reviewed for an abuse of discretion. Thompson v. State, 50 So.3d 1208, 1210 (Fla. 4th DCA 2010). When a defendant files a motion to withdraw his plea after sentencing, he has the burden to prove that “ ‘a manifest injustice has occurred.’ ” Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (quoting LeDuc v. State, 415 So.2d 721, 722 (Fla.1982)), Appellant has not met this burden.

First, Appellant’s claim that the trial court failed to take into account his mental state before accepting his plea is contradicted by the record. The court had an expert evaluate Appellant for competency and that expert determined Appellant was competent to proceed to trial. Further, before beginning the plea colloquy, the court expressly asked Appellant if any mental illness was affecting his ability to understand his plea, to which Appellant responded: “No.” Appellant also signed a statement in his plea form representing that “I am not physically or mentally impaired at this time.” See Gillis v. State, 807 So.2d 204, 206 (Fla. 5th DCA 2002) (record refuted defendant’s claim that he was denied effective assistance of counsel on the basis that the court failed to investigate his mental competence before allowing him to plead guilty because the plea form contained a signed statement that defendant did not suffer from any physical or mental disability preventing him from understanding the plea).

Appellant’s claim that he was denied adequate representation is also refuted by the record. Indeed, the record reflects that Appellant engaged in a pattern of requesting a Nelson hearing and firing and re-hiring his court appointed counsel whenever he felt. The record also reflects that the trial court was more than patient with Appellant’s demands, holding five separate Nelson hearings, and allowing Appellant to fire his court appointed public defender and obtain new counsel from the regional conflict office. Appellant’s contention seems to be with the fact that the court refused to appoint him new counsel for the third time after finding that counsel from the regional conflict office was providing competent representation. This is not a basis for withdrawing his plea. It is well settled that “if a trial court decides that court-appointed counsel is providing adequate representation, the court does not violate an indigent defendant’s Sixth Amendment rights if it requires him to keep the original court-appointed lawyer or represent himself.” Weaver v. State, 894 So.2d 178, 188 (Fla.2004) It follows that a defendant who enters a plea after the court holds a Nelson hearing and finds that counsel is competent is not “coerced” into entering the plea just because the court refuses to appoint new counsel. Woodly v. State, 937 So.2d 193, 196-97 (Fla. 4th DCA 2006).

Finally, Appellant’s claim that he was coerced into entering his plea by threat of counsel is also conclusively refuted by the record. Under Florida law, a defendant’s claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendant’s responses during plea colloquy and the signed plea form. Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006). The record reflects that the court engaged in a thorough plea colloquy with Appellant, in which Appellant represented that he understood the parameters of the plea, that no one had threatened or coerced him into entering a plea, that no one had promised him anything, and that no one had misad-vised him or made any misrepresentations to him. Thus, the record refutes Appellant’s claim that his plea was coerced.

Affirmed.

CIKLIN and LEVINE, JJ., concur.


author: GROSS, J.

text:
    Benjamin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4013.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Antony P. Ryan, Regional Counsel and Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We hold that the trial court did not commit fundamental error in failing to instruct the jury on section 812.025, Florida Statutes (2009), because the theft and subsequent sale of stolen property did not constitute “one scheme or course of conduct.”

Benjamin Brown was charged with (1) grand theft of a firearm, in violation of section 812.014(2)(c)5., Florida Statutes (2009); (2) dealing in stolen property, in violation of section 812.019(1), Florida Statutes (2009); and (3) burglary of a dwelling while armed. As to the grand theft charge, the information alleged that Brown unlawfully obtained the victim’s “firearm ... with the intent to either permanently or temporarily deprive the true owner of’ ownership. The dealing in stolen property charge alleged that Brown “did unlawfully and knowingly traffic in or endeavor to traffic in property, to-wit: Firearm, which the defendant knew or should have known was stolen.”

The evidence at trial revealed that on July 31, 2009, the victim returned home after work to find the doors to his house open and items strewn about the interior. A gun safe had been pried open; twenty guns were missing. That same day, Brown and Matt Davis, a co-defendant, took many of the guns to the house of Davis’s brother, where Brown and Davis assembled their own little arsenal.

A week after the burglary, on August 7, 2009, Davis’s brother returned home to find Davis putting- rifles and shotguns in his attic. Not wanting to be involved in any trouble, the brother told Davis to get rid of the guns. Later in August, Brown toted a duffel bag containing “guns for sale” to a meeting with a third party and traded seven of the guns for an ounce of marijuana, worth about $125. Serial numbers for some of the guns identified them as being stolen from the victim’s house.

On appeal, Brown argues that the trial court fundamentally erred in failing to instruct the jury on section 812.025, Florida Statutes (2009), which provides,

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

The Florida Supreme Court explained in Hall v. State, 826 So.2d 268, 271 (Fla.2002), that the crimes of dealing in stolen property and grand theft are “two different evils” subject to separate analytical approaches. “The former is directed toward the criminal network of thieves and fences who knowingly deal in the redistribution of stolen property, whereas the theft statute is directed toward those persons who steal for personal use and for whom redistribution is incidental.” Id.

Given these differing purposes, “[t]he linchpin of section 812.025 is the defendant’s intended use of the stolen property.” Id. Once the defendant has been so dually charged, the determination as to the application of either offense is “resolved by the jury, as an issue of fact, in deciding whether the defendant is either a ‘common thief or endeavored to traf-fie[.]” Allwine v. State, 978 So.2d 272, 275 (Fla. 4th DCA 2008). Consequently, we have found fundamental error where a trial court, notwithstanding a request from the defense, fails to instruct the jury as to section 812.025’s requirements. Aversano v. State, 966 So.2d 493, 496 (Fla. 4th DCA 2007); see also Toson v. State, 864 So.2d 552, 555 (Fla. 4th DCA 2004) (finding that “convictions of both grand theft and dealing in stolen property constitute fundamental error that may be raised for the first time on appeal.” (alterations in original)).

Here, we find no fundamental error in the failure to charge the jury concerning section 812.025 because the two charges did not stem from “one scheme or course of conduct” within the meaning of the statute. “[S]ection 812.025 precludes dual convictions for theft and dealing in stolen property only when those charges relate to one scheme or course of conduct and thus does not entirely foreclose the possibility of prosecution for both offenses in connection with the same stolen property.” Wilson v. State, 884 So.2d 74, 77 (Fla. 2d DCA 2004) (citing Rife v. State, 446 So.2d 1157, 1158 (Fla. 2d DCA 1984)) (emphasis added). A “clearly disjunctive interval of time or set of circumstances” between a theft and a sale of stolen property renders section 812.025 inapplicable. Rife, 446 So.2d at 1158.

This case demonstrates a clearly disjunctive interval of time and circumstances. The same day as the burglary, the defendants took the guns to a house for safekeeping. A week later, the owner of the house told one defendant to get the guns out of the house. Only after the brother threw the guns out of the house did Brown attempt to sell them.

This case is distinguishable from Toson, an appeal from an open plea where a defendant committed a burglary to steal items so he could sell them to get money for drugs. 864 So.2d at 553-54. Here, in addition to a significant temporal break between the burglary and the sale, the evidence showed that the defendants initially kept the guns for their personal use; Brown showed no inclination to sell the guns until after his place of safekeeping was taken away.

Affirmed.

WARNER, J., and STONE, BARRY J., Senior Judge, concur.

      . Brown’s attorney did not request the instruction at trial.


text:
    ZODIAC RECORDS INC., Great Waste and Recycling Services, LLC, and Carlo M. Piccinonna, Appellants, v. CHOICE ENVIRONMENTAL SERVICES, a Florida corporation, Appellee.
    No. 4D12-906.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.

      Joseph E. Altschul of Joseph E. Alt-schul, LLC, Fort Lauderdale, for appellant.
    Robert C. Buschel of Buschel Gibbons, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The issue presented is whether a thirty-six month postterm restrictive covenant on confidentiality of trade secrets was enforceable, where, at the hearing on appel-lee’s motion for injunctive relief, appellee stipulated that it would not rely on the misappropriation of trade secrets to support the injunction. We find that, by this stipulation that it was not relying on a trade secrets claim, appellee waived its right to argue that the duration of the restrictive covenant was reasonable. The granting of the injunction following appel-lee’s waiver, therefore, violated appellants’ procedural due process rights. Accordingly, we reverse the preliminary injunction.

Zodiac Records, through appellant Carlo Piccinonna, entered into a consulting agreement with appellee Choice Environmental Services, on April 7, 2008. The agreement would continue for one year. Appellants agreed that, for thirty-six months after termination of the agreement, they would not compete with Choice by soliciting or influencing any of Choice’s customers to discontinue or reduce the extent of their relationships with Choice. They also agreed to a confidentiality of trade secrets provision to extend for thirty-six months after termination of the agreement. Although Piccinonna continued to work for Choice after the expiration of the agreement, he was never asked to sign any other non-competition or confidentiality agreements. Piccinonna resigned from Choice in June of 2011, formed appellant Great Waste, and admitted to soliciting customers which included customers of Choice. Piccinonna did not know how many customers of Choice he had solicited since creating Great Waste.

Choice filed suit to enforce the restrictive covenants in the agreement. It alleged that appellants, in particular Picci-nonna, should be enjoined from soliciting customers of Choice or using trade secret information for thirty-six months from the termination of the agreement, or April 7, 2012.

Generally, where “a restrictive covenant [is] sought to be enforced against a former employee” or independent contractor, “a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.” § 542.335(l)(d)l., Fla. Stat. (2011). However, “[i]n determining the reasonableness in time of a postterm restrictive covenant predicated upon the protection of trade secrets, a court shall presume reasonable in time any restraint of 5 years or less.” § 542.335(l)(e), Fla. Stat. (2011). In the present case, the consulting agreement expired on April 7, 2009. Therefore, unless the restrictive covenant was “predicated upon the protection of trade secrets,” the restrictive covenant was not enforceable beyond April 7, 2011 — a date prior to Pic-cinonna’s alleged violations of the non-solicitation provision. By contrast, if the restrictive covenant was “predicated upon the protection of trade secrets,” the post-term duration of thirty-six months was enforceable, which would allow Choice to enjoin appellants pursuant to the non-solicitation provision through April 7, 2012.

Choice moved for issuance of a preliminary injunction based on Piccinonna’s alleged violations of the non-compete, non-solicitation, and trade secret confidentiality provisions of the parties’ consulting agreement. Piccinonna contended at the start of the hearing that only the non-compete provision was involved, and it expired pri- or to Piccinonna forming Great Waste. After Choice’s vice president testified at the hearing, its counsel stated that the hearing may be shortened if the court limited its determination to the legality of the restrictive covenant, given that Picci-nonna had admitted to soliciting Choice’s customers. Piccinonna disputed “the idea that proprietary information was taken, trade secrets were taken” and wanted to introduce evidence on the issue. Choice’s counsel believed that he did not have to prove whether Piccinonna stole trade secrets, and stated he was not proceeding under a trade secrets claim. He argued, however, that the five-year term of section 542.335(l)(e), Florida Statutes (2011), applied because the consulting agreement was designed to protect trade secrets.

The parties and the court tried to narrow the issues. Piccinonna’s counsel agreed that if the restrictive covenant “relates to the use of trade secrets, it can be for a longer period of time.” At this, the trial court stated, “[Choice] has abandoned that argument right now.” Later, the trial court stated, “[Piccinonna] doesn’t acknowledge taking trade secrets. He acknowledges going after ... some of the same customers, but he doesn’t acknowledge trade secrets.” Additionally, Picci-nonna’s counsel stated, “I think if they are going to continue on the trade-secret issue, we have to take the rest of the evidence ... because the Court is going to have to enter an order and it is going to have to make specific evidentiary findings.” According to Piceinonna’s counsel, there would be no indication that appellants had “supposedly confidential information.” The following colloquy occurred at the end of the hearing:

[Piccinonna’s counsel]: The other question that I have for the Court is are we — in essence, do — are we traveling under a stipulation that there were no trade secrets misappropriated?
THE COURT: There is no trade secrets as of right now. I mean, he has, for purposes of what we’re doing, moved that aside.
[Piccinonna’s counsel]: Okay ... then I agree that we can move this process forward. If we have to come back, if the Court has to make a decision on whether there were trade secrets, in order to determine whether it can go beyond the two years, you know, then I still think we need to have the evidence.
[Choice’s counsel]: It’s our position, Your Honor, that based upon the agreement and the law, it’s our position that the Court does not have to make an evidentiary determination that trade secrets were, in fact, taken in order to grant an injunction.

The trial court then granted Choice’s motion for a preliminary injunction, but it based the injunction on the use of trade secret information, thus the thirty-six month restriction period applied. The court denied appellants’ motions to vacate the injunction and to dissolve the injunction, and bond was set. This appeal ensues.

“None of the elements involved in the notion of procedural due process has greater importance than the right to be heard.” Miller v. Miller, 691 So.2d 528, 529 (Fla. 4th DCA 1997). A trial court may not grant a former employer’s motion for a temporary injunction against a former employee without first permitting the former employee “to put on its evidentiary case.” JonJuan Salon, Inc. v. Acosta, 922 So.2d 1081, 1085 (Fla. 4th DCA 2006).

We find that the entering of the injunction following the stipulation and the court’s representation that “[t]here is no trade secrets as of right now” denied Picci-nonna a meaningful opportunity to be heard on the issue of whether trade secrets were implicated in the present case. After stipulating that it did not have to prove that Piccinonna stole trade secrets, Choice could not then contend that the five-year term of section 542.335(l)(e) was applicable. Further, if Piccinonna had been given the opportunity to present additional evidence as requested, the trial court could have determined that the customer relationships Choice sought to protect under its non-solicitation agreement were not trade secrets, and that the restrictive covenant was therefore unenforceable past April 7, 2011. See Estetique Inc. USA v. Xpamed LLC, 2011 WL 4102340, at *10 (S.D.Fla. Sept.15, 2011) (rejecting movant’s argument that the five-year postterm restriction of section 542.335(l)(e) applied because movant “failed to show a substantial likelihood of success that its confidential customer information rises to the level of a trade secret”); Zupnik v. All Fla. Paper, Inc., 997 So.2d 1234, 1238-39 (Fla. 3d DCA 2008). We note that a former employer’s customer relationships do not automatically qualify as trade secrets, even if a party’s restrictive covenant attempts to characterize them as such. East v. Aqua Gaming, 805 So.2d 932, 934 (Fla. 2d DCA 2001). To qualify as a trade secret, there must be evidence that a customer list “was the product of great expense and effort, that it included information that was confidential and not available from public sources, and that it was distilled from larger lists of potential customers into a list of viable customers for [a] unique business.” Id.

In conclusion, as we find that Choice waived its ability to assert that the five-year term of section 542.335(l)(e), Florida Statutes (2011), applied by asserting it did not have to prove that Piccinonna misappropriated trade secrets, and that appellants’ due process right to be heard was violated by entry of the injunction after this waiver, we reverse the order granting the temporary injunction against appellants, and direct that it be vacated.

Reversed and remanded.

WARNER, GERBER and LEVINE, JJ., concur.

      . Piccinonna’s counsel indicated that appellants planned to present evidence that Great Waste obtained customers, including customers of Choice, by cold-calling, which would bear on the issue of whether access to Choice's customers could be obtained through publicly available means. See, e.g., Delucca v. GGL Indus., Inc., 712 So.2d 1186, 1187 (Fla. 4th DCA 1998).


text:
    Gerald HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4041.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Gerald Hodges, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), review denied, 104 So.3d 1085 (Fla.2012).

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Elijah C. McLEOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3920.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Elijah C. McLeod, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Jermaine JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3713.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Jermaine Jackson, Tamarac, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion for postconviction relief. Appellant’s claim of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is refuted by the record. Appellant, a citizen of Jamaica who does not have difficulty with the English language, signed a plea form that advised him that his plea “will” result in his deportation which, during the plea colloquy, he confirmed he understood. His allegation that he pleaded unaware that deportation would result is refuted by the record. Ioselli v. State, — So.3d - (Fla. 4th DCA 2013) (citing Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999)).

Further, appellant fails to establish that his plea in this case is the sole basis for his deportation. Charles v. State, 96 So.3d 1050, 1050 (Fla. 4th DCA 2012); Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008); Buton v. State, 995 So.2d 1130, 1132 (Fla. 4th DCA 2008). The notice to appear for removal lists various other unrelated offenses in separate cases as bases for appellant’s removal.

Affirmed.

MAY, C.J., GROSS and DAMOORGIAN, JJ„ concur.


text:
    Cedrick JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2313.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Cedrick Johnson, Crestview, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, GROSS and CIKLIN, JJ., concur.


author: TAYLOR, J.

text:
    Helen SALSBURY and Robert Salsbury, Appellants, v. GRIFFIN ROAD 345 PROPERTY OWNER’S ASSOCIATION, INC., et al., Appellees.
    No. 4D11-1672.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Rehearing Denied May 31, 2013.

      Bard D. Rockenbach and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, and Crane A. Johnstone of the Law Offices of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellants.
    Patrick Gent, Plantation, for Appellee-Kenneth S. Kapka.
   TAYLOR, J.

We reverse the trial court’s order denying the plaintiffs’ motion to vacate an Agreed Final Order of Dismissal. The underlying case involved an accident wherein the operator of an all-terrain vehicle (“ATV”) struck a pedestrian, causing severe and permanent injuries. The accident occurred within an area controlled by the Griffin Road 345 Property Owner’s Association, Inc. (“the Association”). The pedestrian and her husband sued the minor driver and his parents, the ATV owner, Kenneth S. Kapka (“Kapka”), and the Association.

Kapka moved for summary judgment, arguing that he could not be held liable because the dangerous instrumentality doctrine did not apply to an ATV. The trial court granted the motion and entered final summary judgment in favor of Kapka. The plaintiffs appealed. While the appeal against Kapka was pending, the case against the Association moved forward.

The trial court sua sponte bifurcated the liability and damages phases of the trial. At the end of the liability phase, the jury returned a verdict in favor on the plaintiffs. Before the damages phase of the trial against the Association began, our court issued a decision in the Kapka appeal. See Salsbury v. Kapka, 41 So.3d 1103 (Fla. 4th DCA 2010). We reversed the trial court’s judgment, ruling that the trial court had not compiled an adequate factual record for us to determine whether an ATV is a dangerous instrumentality. Id. at 1105-06. We remanded for an evi-dentiary hearing on that issue. Id.

During the damages phase of the trial against the Association, the plaintiffs reached a settlement agreement with the Association. An Agreed Final Order of Dismissal was entered, which indicated that all of plaintiffs’ claims were dismissed, with prejudice, including the claim against Kapka. The plaintiffs moved to vacate the Agreed Final Order of Dismissal, explaining that they intended to settle only with the Association. The Order, however, mistakenly dismissed their claim against Kap-ka. The trial court denied the motion without allowing the plaintiffs to present evidence in support of it.

Because the plaintiffs’ motion presented colorable entitlement to relief, see Lee & Sakahara Assocs., AIA, Inc. v. Boykin Mgmt. Covp.) 678 So.2d 394, 395 (Fla. 4th DCA 1996), the trial court erred by failing to conduct a proper evidentiary hearing on the matter. See Gascue v. HSBC Bank, U.S.A., 97 So.3d 263, 264 (Fla. 4th DCA 2012). On remand, the trial court shall conduct an evidentiary hearing and allow the plaintiffs to present evidence in support of their motion to vacate the Agreed Final Order of Dismissal.

Reversed and Remanded.

MAY, C.J. and GERBER, J., concur.

      . The other individual defendants were voluntarily dismissed from the case.


text:
    Freddie O. CHAVERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5338.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Freddie Chavers, appeals his convictions for first degree murder with a firearm and attempted first degree murder with a firearm, as well as his twenty-year minimum mandatory sentence for the attempted first degree murder charge. Appellant raises three issues on appeal: (i) cumulative improper evidentiary rulings; (ii) cumulative improprieties in the State’s closing argument; and (iii) an incorrect sentencing enhancement. All three issues lack merit, and thus we affirm Appellant’s convictions and sentences.

This appeal arises from one continuous criminal episode where Appellant and a co-defendant shot two individuals at close range, injuring one victim and killing the second victim. The surviving victim was the only eyewitness to the crime. This victim testified that he saw gunfire in the distance even after the co-defendant exclaimed that his gun had jammed. This witness also testified that he saw Appellant shoot the second victim.

With respect to the first two issues, we conducted a thorough review of the record. The court’s evidentiary rulings and the State’s closing argument, when taken in context, reveal no notable errors.

With respect to the third issue, section 775.087(2), Florida Statutes (2008), fully authorizes Appellant’s minimum mandatory sentence of twenty years. This section provides:

Any person who is convicted of [murder] or an attempt to commit [murder] ... regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” ... shall be sentenced to a minimum term of imprisonment of 20 years.

§ 775.087(2), Fla. Stat. (2008) (emphasis added). The jury must make a clear finding that the defendant discharged the firearm to apply the sentence enhancement. Parker v. State, 921 So.2d 812, 813 (Fla. 4th DCA 2006).

Appellant relies on Lemus v. State, 33 So.3d 774 (Fla. 4th DCA 2010), and Sims v. State, 44 So.3d 1222 (Fla. 5th DCA 2010), to assert that the twenty-year minimum mandatory sentence should be reversed. Both cases are distinguishable. In Lemus, the criminal episodes were spatially and temporally distinct. 33 So.3d at 776. In Sims, no evidence existed that the defendant discharged the firearm. 44 So.3d at 1224.

Here, Appellant was involved in one continued criminal episode, with no spatial or temporal separation. Testimony showed that Appellant and co-defendant fired their weapons simultaneously. Further, the State submitted sufficient evidence to establish, and the jury expressly found, that Appellant discharged a firearm.

Appellant contends that the jury’s finding appears on the verdict form under the charge for attempted first degree murder of the surviving victim. Since the State conceded that Appellant actually did not shoot the surviving victim, Appellant claims that the jury’s finding cannot serve as grounds for a sentence enhancement under section 775.087(2). This logic is flawed. As noted by the trial court in its order denying Appellant’s motion to correct a sentencing error, “[n]either the statute nor common sense requires that he fire his firearm at, or strike, his intended victim in order to be subject to this particular mandatory minimum enhancement.” See also § 775.087(2), Fla. Stat. (2008).

Affirmed.

POLEN and LEVINE, JJ., concur.


author: MAKAR, J.

text:
    WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2005-5 Asset-Backed Certificates, Series 2005-5, Appellant, v. William BOHATKA, et al., Appellee.
    No. 1D11-3356.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Rehearing Denied May 24, 2013.

      Jason F. Joseph and Danielle Delueea, Gladstone Law Group, P.A., Boca Raton, for Appellant.
    Sharon Delene Regan, Regan & Roark, Pensacola, and Gregory B. Wilhelm, Law Offices of Martinez & Wilhelm, PA, Gulf Breeze, for Appellee.
   MAKAR, J.

Wells Fargo Bank, N.A., appeals the dismissal with prejudice of its initial complaint seeking to foreclose the mortgage on property owned by William and Gail Bo-hatka. The bank claims the trial court erred by going beyond the four corners of its complaint. We agree and hold that, although dismissal of the initial complaint was proper, dismissal with prejudice was not. We further hold that the trial court’s sua sponte physical examination of the original of the promissory note at issue was improper and precluded the orderly process by which contested facts are adjudicated. We reverse.

I.

In its initial complaint, the bank alleged that it was “the owner and holder of all real and beneficial interests in the subject Promissory Note and Mortgage ... by virtue of an unconditional equitable transfer to [the bank] of all real and beneficial interests in the subject Promissory Note and Mortgage which occurred prior to the commencement of this action.” The bank attached a copy of the note, which identified “Option One Mortgage Corporation” (Option One) as the lender, and a copy of the mortgage, which also identified Option One as the lender.

At this point, the allegations in the initial complaint and its attachments created an inconsistency as to who was the true owner of the note: the bank or Option One? For this reason, the Bohatkas moved to dismiss the complaint, asserting the bank lacked standing to sue them on the note.

At the hearing on the motion to dismiss, counsel for the bank provided the trial court with a photocopy of an “Allonge to Note,” which specially endorsed the note to the bank. The bank argued that the allonge established its standing to pursue payment on the note because the bank was specifically identified in it; under the heading “Pay to the order of’ was “Wells Fargo Bank, N.A., as Trustee.”

We pause to note that an “allonge” is a legal term of art of French origin but of recent vintage, at least in Florida’s case-law. In Florida, the term first appears in this Court’s decision in Booker v. Sarasota, Inc., which points to its dictionary definition as “a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” 707 So.2d 886, 887 n. * (Fla. 1st DCA 1998) (quoting Black’s Law Dictionary 76 (6th ed. 1990)). In essence, an allonge is simply an elegant-sounding legal term for a supplemental attachment to a note in which endorsements to subsequent note holders may be identified. A body of caselaw has developed, primarily in other states and under the UCC, regarding the validity of an al-longe and how it must be “affixed” to a note. The allonge may, as is claimed here, name the payee or it may be open ended (indorsed in blank) without naming a payee.

The bank’s counsel explained that the original allonge had been sent to the clerk’s office, which had not yet received it. The Bohatkas’ counsel objected to consideration of the allonge, in part, because it was “outside the record” for purposes of a motion to dismiss and that he had no opportunity to rebut it on such short notice. Nonetheless, at the urging of the Bohatkas’ trial counsel, the trial court under took a physical examination of the original note (which was in the court file), which is reflected in the statement of evidence:

[Whereupon, the judge took the original note out of the court file, swiveled the chair to face the window, and held each page up to the daylight for physical examination]
[Trial counsel]: [Observing the physical examination] We ask the Court to examine each page for signs of a document being affixed to it previously by glue, tape, pins, staples, paperclips, or any thing [sic] else, and to look for an endorsement on front or back of any page of the note.
[Whereupon the Court examined each page of the original note, front and back, by holding it up to the daylight, ran her fingers over the corners and along each side and bottom, smelling the pages for traces of glue, looking for indentations, staple holes, paperclip indentations, tap marks, pin holes and similar. The hearing was paused for 1-2 minutes during this process and the attorneys remained silent until the Court put down the third page and [trial counsel] resumed his chair.]

Based upon its inspection, the trial court found no indicia that an attachment to the original note had been made and therefore granted dismissal of the bank’s complaint with prejudice. It stated:

This is my ruling; Motion to Dismiss granted. Nothing was attached. There is no endorsement. There is no allonge, and there cannot be any allonge affixed before filing, so dismissal is with prejudice. I also suspect that this document [the allonge] was created to defeat the defendants’ motion. I want to preserve the originals by a separate order .... please draft a separate order that the original documents will remain in the court file and will not be removed without my authorization by anyone. I reserve the right to send them to the attorney general for investigation of this activity by plaintiff and its counsel.

The court also granted attorneys’ fees to the Bohatkas (based on language in the mortgage) and reserved jurisdiction as to the amount; additionally, it expressed that because “fraud may have been perpetrated upon this Court” it “reserved the ability to file a formal complaint with the Attorney General.”

The bank sought to undo the trial judge’s ruling by moving to vacate and set aside the dismissal. It argued that even if its initial complaint did not adequately allege the bank’s standing, dismissal with prejudice was inappropriate because the complaint could be amended to do so. As additional support for its motion, the bank filed a “Supplement in Support,” which contained four exhibits: an affidavit of ownership, dated April 25, 2011, stating “[the bank] is the owner and holder” and “[the bank] currently has the original promissory note”; a pooling and servicing agreement dated in 2005 listing it as trustee; a schedule of that pooling and service agreement listing the loan at issue within that pool; and a modification agreement between the bank and the Bohatkas. The Bohatkas responded by presenting a document that purported to show that Option One was a “suspended” entity and could not have issued the allonge subsequent to its suspension. They also maintained that the allonge was not as “firmly affixed” to the note as the law required.

At the hearing on its motion, the bank argued that its initial complaint — even if deficient — could be cured, pointing to the allonge and its supplemental evidence of ownership of the note. In response, the Bohatkas maintained that amendment would be futile. The trial court denied the bank’s request to vacate and set aside the dismissal, stating in its order that it “exer-cis[ed] its right to file a formal complaint with the Office of Attorney General.” The bank appeals from the trial court’s subsequent issuance of a final judgment.

II.

Two issues are presented. The first is whether the trial court erred in dismissing the bank’s initial complaint with prejudice for lack of standing. The second is whether it erred in undertaking a judicial examination of the original promissory note in the court file. Both are interrelated.

A.

It is a bedrock principle that a trial court’s review of a motion to dismiss is limited to the four corners of the challenged complaint. As this Court noted long ago, “a court may not properly go beyond the four corners of the allegations of the complaint when considering a motion to dismiss it.” Thomas v. Rollins, 298 So.2d 186, 187 (Fla. 1st DCA 1974) (Boyer, J.). In doing so, we noted that “one of the most important principles for a court to keep in mind” is to confine its review strictly to the “allegations of fact contained in the complaint” and to not “speculate as to what the true facts may be or what facts will be ultimately proved in the trial of the cause.” Id. (quoting Thompson v. City of Jacksonville, 130 So.2d 105, 107 (Fla. 1st DCA 1961)). While a court may examine the allegations in the “complaint and any attached documents incorporated therein,” the “question of the sufficiency of the evidence which the plaintiff will likely be able to produce in a hearing on the merits, is wholly irrelevant and immaterial in reaching such a determination.” Id. at 187-88 (quoting Hopke v. O’Byrne, 148 So.2d 755, 755 (Fla. 1st DCA 1963)). As in Thomas, which involved a mortgage dispute, these principles continue to apply in the modern day world of mortgage foreclosure litigation. See, e.g., U.S. Bank Nat'l Ass’n v. Knight, 90 So.3d 824 (Fla. 4th DCA 2012) (reversing dismissal with prejudice of mortgage foreclosure complaint); WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682-83 (Fla. 4th DCA 2004) (reversing grant of dismissal upon necessity of hearing on allegations of equitable transfer).

In this case, we do not fault the trial judge for dismissing the bank’s initial complaint, which facially created a contradiction between who the bank alleged was the owner of the note (the bank) and whom the attached note and mortgage identified as the owner (Option One). Putting aside (for the moment) the parties’ attempts to interject or examine materials outside the pleadings, dismissal without prejudice was appropriate simply to allow the bank an opportunity to amend its initial complaint to address this discrepancy and to fortify its allegations and attachments (perhaps with the allonge and some of the items the bank presented in support of its motion to vacate and set aside).

Dismissal with prejudice, however, was improper. Though the tone of the trial judge’s order made it sound as if dismissal was a sanction, it explicitly said it was not doing so on that basis. Had it done so, it would have been an abuse of discretion due to the lack of evidence to support such a sanction. See Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85 (Fla. 5th DCA 2012) (“If a trial court dismisses a case with prejudice without evidence of extensive prejudice to the other side or proof that the party willfully failed to comply with court orders, it is considered an abuse of discretion.”).

Instead, the ostensible basis for dismissal with prejudice was that the initial complaint could not be amended to state a claim for which the bank had standing, a determination we review de novo. See Magnum Capital, LLC v. Carter. Assoc., LLC, 905 So.2d 220, 221 (Fla. 1st DCA 2005) (“We review de novo a trial court’s final disposition on a motion to dismiss for failure to state a cause of action.”). As a general matter, trial courts are to give plaintiffs “an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action.” See Kairalla v. John D. Catherine T. MacArthur Found., 534 So.2d 774, 775 (Fla. 4th DCA 1988). And the failure to attach necessary documents is a remediable offense. See Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 258 (Fla. 1st DCA 2012).

We know of no appellate case affirming a dismissal of an initial complaint with prejudice under like circumstances; it would be a rare bird in the judicial aviary. The trial court had before it the documents upon which the bank would likely rely for an amended complaint: the al-longe, the affidavit of ownership, the pooling/servicing agreement and its schedule, and the bank’s modification agreement with the Bohatkas. Liberality in amendment to the bank’s initial complaint was plainly required.

Recent mortgage foreclosure litigation at the motion to dismiss stage has uniformly resulted in appellate courts reversing dismissals of complaints with prejudice. See, e.g., Knight, 90 So.3d 824; Lippi, 78 So.3d at 85. We make this observation not to foreclose the possibility that amendment to a foreclosure complaint might be- futile and dismissal with prejudice appropriate in some cases but to emphasize the restraint and circumspection required at the early stages of the pleadings. Mortgage foreclosure cases have many factual permutations— such as the many ways that ownership of notes can be established — that do not lead to simplistic judicial resolution at the frontend of litigation.

An example of this point is U.S. Bank National Association v. Knight, in which the bank initially filed “a two-count complaint to foreclose on the note and mortgage and to reestablish said note.” 90 So.3d at 825. The bank “alleged it was the owner and holder of the mortgage and note” but “did not attach the note to its initial complaint. [The bank] then filed its first amended complaint, but again, did not attach the subject note.” Id. After the trial court denied its motion to dismiss, the property owner answered and affirmatively defended that the bank lacked standing to sue on the note. Id. In response, the bank filed a second amended complaint, this time “attaching a copy of the note at issue” that was “indorsed in blank.” Id. The bank “then filed its third amended complaint, which alleged that it ‘is the legal and equitable owner and holder of the note and mortgage and has the right to enforce the loan documents.’” Id. The bank attached two assignments to the third amended complaint. The property owner again moved to dismiss; the bank responded by saying its legal standing was not based “on the assignments, but rather on an equitable assignment of the note and that said assignments merely memorialized the prior equitable assignment of the note.” Id. The trial court ultimately dismissed the bank’s third amended complaint “with prejudice because the exhibits attached to the complaint” operated to negate the bank’s claim of standing. On appeal, the Fourth District reversed, finding that the allegations in the “four corners” of the third amended complaint must be assumed true and stated a claim for relief. Id. at 826.

The point of our discussion of the twists and turns of the amended complaints in Knight is that a first complaint in a foreclosure action is often a starting point— not an ending point. A number of amendments may be necessary, which often serves to fine tune the scope of the factual allegations. Trial courts should not speculate on whether the bank might ultimately be able to prove its case on the merits or to adjudicate factual disputes prematurely. Lippi, 78 So.3d at 84 (trial court may not “rely upon depositions, affidavits, or other forms of evidence or speculation as to whether the allegations in the complaint ‘will ultimately be provable’ ”) (citation omitted). Here, the trial court jumped the gun by failing to allow the bank to amend its initial complaint, and this error requires reversal.

B.

We also note that the trial court engaged in the somewhat unusual step of physically examining the original note filed with the court as part of its decision to dismiss the bank’s complaint with prejudice. While a court is permitted to consider the content of an attachment to a challenged complaint, it cannot be said that the type of physical examination conducted here, which resulted in the spontaneous adjudication of disputed facts based on that examination, is permissible. In doing so, the trial court went beyond the boundaries of the limited inquiry that is appropriate at the motion to dismiss stage.

In reaching this conclusion, we make three points. First, the ordinary means by which the authenticity, relevancy, and admissibility of documents is determined is the structured approach laid out in the Florida Evidence Code. This process includes lay testimony as well as expert analysis where evidence is of a technical nature. See §§ 90.701-.702, Fla. Stat. And it generally becomes a question for the fact finder to make the determination of whose evidence to believe.

Here, this entire process was by-passed. At the hearing on the motion to dismiss, the trial court — albeit at the urging of the Bohatkas’ attorney — decided it would determine whether the original note had any physical indicia that it may have had an attachment, such as the allonge, affixed in the past. It perhaps was human nature to do so. Whatever can be said of the inspection, however, it was not the court’s job to do; it was certainly not proper to adjudicate with finality the viability of the bank’s initial complaint in foreclosure on the basis of this spontaneous judicial examination. The conclusion that no allonge could have existed and been “affixed before filing” of the bank’s complaint was a misstep that is inconsistent with due process and contributed to the erroneous dismissal order.

Second, the ways to allege standing to foreclose on a note are many and often very complex, making it important that a complaint’s allegations clearly mark the chosen path(s). Here, the bank’s initial complaint and attachments were internally contradictory and failed to mention or include a copy of the allonge. Justifiably, the Bohatkas sought to have a clearer picture of the grounds for the bank’s standing because the complaint and attachments were “confusing” and “ambiguous” as to the bank’s standing “to file and pursue this foreclosure.” They laudably sought a more definite statement of the bank’s allegations, but only as a fallback if their motion to dismiss was denied. At this initial stage of litigation, particularly where it is abundantly clear that amendment is possible, amendment should be freely granted to clarify a plaintiffs claim of standing-versus summarily adjudicating it with finality. See Fla. R. Civ. P. 1.190 (favoring liberal amendment); Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 253 (Fla. 1st DCA 2012).

In this regard, recent Florida foreclosure cases make clear that amendment generally should be permitted (within reason) to establish the bank’s standing. For instance, in Isaac v. Deutsche Bank National Trust Company, the Fourth District upheld the grant of summary judgment to a bank which established its standing based on documentation similar to that at issue in this case. 74 So.3d at 495-96. The property owners claimed the bank “failed to provide sufficient documentation reflecting how it obtained ownership of the mortgage and note from the original as-signee, an entity called Option One.” Id. at 495. The bank filed the “original mortgage, note, and an allonge from Option One, payable to bearer” along with the affidavit. Id. at 495-96. Unlike this case, the allonge in Isaac did not state that the bank was the payee, which made the note “payable to bearer” Id. at 496; see § 673.1091(2), Fla. Stat. (“If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”). Because the property owners were unable to rebut any of the documentary evidence of the bank’s standing to foreclose, summary judgment for the bank was affirmed.

We note that the allure of the allonge hung over the hearing on the Bohatkas’ motion. That the original had not yet arrived, and only a copy was available, was a point of drama; yet it mattered not. What mattered was that a purported addendum to the note, the allonge, existed that had not yet been attached to the initial complaint; on the face of this al-longe, the bank was specifically named as the payee. Given this posture of the case, dismissal of the initial complaint without prejudice, or perhaps just an order requiring a more definite statement of the bank’s standing, was warranted to flesh out whether the foreclosure action would move forward based on the alleged endorsement of the note to the bank as reflected in the proferred allonge.

Finally, we do not suggest that it was improper for the court and the parties to address in a critical way how the bank was to establish its basis for standing to foreclose on the note at issue. Given the potential for fraud in post-dating addenda and other purported documents of transfer, it is laudable for courts and others to be sensitive to potential abuses. On the record before us, however, we see nothing — particularly at this initial stage of this litigation — that would justify the trial court’s reaction in commandeering the originals of the mortgage and the allonge for delivery to the Office of the Attorney General for its review.

III.

A motion to dismiss is not a substitute for a summary judgment hearing or a trial. Dykema v. Godfrey, 467 So.2d 824, 825 (Fla. 1st DCA 1985). Because, the trial court erred in dismissing the bank’s initial complaint with prejudice, we REVERSE.

BENTON, C.J., and VAN NORTWICK, J., concur.

      . Because no court reporter was present, the parties subsequently created a hearing transcript via a "statement of the evidence” that the trial court approved.

      . It derives from the French word for lengthening or drawing out. The New Shorter Oxford English Dictionary 57 (Oxford 1993).

      . Other courts have cited this definition. See Isaac v. Deutsche Bank Nat'l Trust Co., 74 So.3d 495, 496 n. 1 (Fla. 4th DCA 2011). The Court in Booker also noted that “Florida's Uniform Commercial Code does not specifically mention an allonge, but notes that '[f]or the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is part of the instrument.' " 707 So.2d at 887 n. * (citing § 673.2041(1), Fla. Stat. (1995)); see generally Richard A. Martin, Proving Standing to Foreclose a Florida Mortgage, 85 Fla. B.J. 31, 31 (Dec. 2011) ("When a note is conveyed on the secondary market, it is often indorsed, usually by a stamp or by affixing a separate document called an allonge to the note, which bears the signature of the assignor and the identity of the assignee.”).

      . See, e.g., Douglas J. Whaley, Mortgage Foreclosures, Promissoiy Notes, the Uniform Commercial Code, 39 W. St. U.L. Rev. 313, 318-19 (2012) (noting the "many new cases" that deal with allonges and the meaning of "affixed”). Professor Whaley continues, “It is not enough that there is a separate piece of paper which documents the transfer unless that piece of paper is “affixed” to the note. What does "affixed” mean? The common law required gluing. Would a paper clip do the trick? A staple?” Id. at 319 (footnotes omitted). To our knowledge, no Florida court has explored what type of affixation or annexation of an allonge is legally sufficient, nor has any court addressed the possibility of electronic attachment of allonges. See Patricia Brumfield Fry, James A. Newell, & Michael R. Gordon, Coming To A Screen Near You — “Emortgages"—Starring Good Laws And Prudent Standards — Rated "XML", 62 Bus. Law. 295, 311 (Nov. 2006) (noting that Freddie Mac addressed the possibility "that an electronic allonge be added to all eNotes that contains language addressing both the recourse and transfer warranty issues”).

        .See Martin, supra note 3, at 31 ("When the assignee is specifically identified, the indorsement is called a special indorsement, and the note becomes payable to the indorsee. A note may also be assigned by a separate written assignment. Notes may also be indorsed in blank, without identifying the transferee, making them payable to bearer and negotiable by transfer of possession.") (footnotes omitted).

      . The trial court also told counsel for the bank "If your law firm or Wells Fargo created this document in an attempt to defeat the defendant’s motion, I will hold the plaintiff and the law firm responsible. They left you out to hang by sending you in here as local counsel. I want them present at all future hearings to hold them accountable for this.”

      . See generally Matthew D. Weidner & Michael Fuino, Foreclosing in a Hurricane: Florida Courts Struggle to Deal With a Crisis of Epic Proportions, 41 Stetson L. Rev. 679, 681 (2012) (examining the intricacies of "diverging appellate opinions, particularly in the area of standing and real party in interest”).

      . See generally Martin, supra note 3 at 34 ("With securitized mortgages, careful presuit attention to, and review of, the loan documents and chain of title of the note, and, when necessary, the proper execution and/or recording of any missing assignments or in-dorsements, will provide lender’s counsel with sufficient supporting evidence to establish standing in a verified complaint, and thus avoid many standing defenses.”).


text:
    Benjamin MACKENDALE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3931.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Benjamin Mackendale, Pahokee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant Benjamin Mackendale filed a motion to correct illegal sentence under Fla. R.Crim. P. 3.800(a) in Palm Beach case no. 08-9714CFA02 seeking an additional 210 days jail credit in that case beyond the 212 days credit already awarded by the trial court. Appellant had been on probation in that case as well as a second 2008 case when he was charged in three 2009 cases with multiple felony offenses. As a result, appellant entered into a comprehensive plea agreement with the state. In return for his pleas in two of the three 2009 cases as well as his admission to violating his probation in case no. 08-9714CFA02, the second 2008 case and third 2009 case were nolle prossed. Appellant was sentenced to concurrent five and six year terms of imprisonment, with probation in case no. 08-9714CFA02 revoked and terminated. Appellant was given credit for jail time served of 212 days on all sentences imposed.

Subsequently, appellant filed a pro se motion to correct illegal sentence under Rule 3.800(a), alleging that in case no. 08-9714CFA02 in addition to the 210 days appellant spent in jail after the violation of probation (VOP) warrant was served, he had also spent 210 days in jail before the probationary sentence in that case was originally imposed. Appellant sought credit for both 210 day terms of presen-tencing jail custody, citing Daniels v. State, 491 So.2d 543, 544 (Fla.1986), which held that when concurrent sentences were imposed a criminal defendant must be given credit for all time served on each sentence. The trial court’s order denying appellant’s motion attached a copy of the VOP order of resentencing in case no. 08-9714CFA02, which awarded 212 days jail credit, finding this to be in compliance with Daniels.

We review the trial court’s order denying appellant’s motion to correct illegal sentence under Rule 3.800(a) de novo, Davis v. State, 88 So.3d 1055, 1056 (Fla. 4th DCA 2012). Here, appellant’s motion alleges that in case no. 08-9714CFA02 he spent 210 days in jail both before he was originally sentenced to probation in that case and prior to VOP resentencing. If true, appellant would be entitled to both increments of jail credit, as a criminal defendant must under § 921.161(1), Fla. Stat. (2008), be granted credit for all time served while in custody prior to the original sentencing and prior to VOP resentencing, Powell v. State, 763 So.2d 364, 366 (Fla. 4th DCA 1998) (cited in Barnes v. State, 74 So.3d 1135, 1136 (Fla. 2d DCA 2011)); see also Gerali v. State, 50 So.3d 727, 730 (Fla. 5th DCA 2010).

The trial court’s order denying appellant’s motion does not contain any attachment refuting appellant’s factual claim as to his separate custodies in case no. 08-9714CFA02. As a result, the order appealed from must be reversed and remanded with directions to either grant appellant’s motion or attach to the order records conclusively refuting appellant’s claim, if such records exist. Watson v. State, 51 So.3d 1204, 1205 (Fla. 4th DCA 2011); compare St. Cyr v. State, — So.3d -, -, 2012 WL 2813855, 37 Fla. L. Weekly D1632 (Fla. 4th DCA 2012), subsequent appeal, 106 So.3d 487 (Fla. 4th DCA 2013) (on appellate review of order denying motion to correct based on Rule 3.800(a) reviewing court may only consider as “record” for purposes of Fla. R.App. P. 9.141(b)(2)(A) attachments to order of denial, not “original sentencing documents” proffered by state on appeal).

Reversed and remanded with directions.

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


text:
    Sivina S. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3930.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Sivina S. Smith, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant’s jail credit claim was insufficient as it failed to allege where in the record it can be shown that she is entitled to relief. Green v. State, 62 So.3d 1148, 1149 (Fla. 1st DCA 2011); Nelson v. State, 760 So.2d 240, 241 (Fla. 4th DCA 2000); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998). Appellant failed to carry her burden of showing an entitlement to relief on the face of the record. See Johnson v. State, 60 So.3d 1045, 1050 (Fla.2011).

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


author: MAY, C.J.

text:
    James PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3783.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals the revocation of his probation for resisting an officer without violence. The defendant argues the trial court erred in revoking his probation because the officers lacked reasonable suspicion to detain him, which led to the resisting without violence charge. We agree and reverse.

The State filed a violation of probation, and alleged the defendant had committed a trespass and resisted arrest without violence. At the probation revocation hearing, the' arresting officer testified that he and another officer observed the defendant standing next to two buildings that had “no trespassing” signs posted. The officer did not recognize the defendant. The officers exited their vehicle, announced their presence, and ordered the defendant to stop. The defendant fled.

The trial court dismissed the trespass violation, but revoked the defendant’s probation for resisting arrest without violence. The court sentenced the defendant to two concurrent four year terms of imprisonment. The defendant now appeals.

On appeal, the defendant argues that the trial court erred in revoking his probation because the officers lacked reasonable suspicion to detain him; and therefore he was free to ignore the officer’s order to stop. To support a conviction for resisting arrest without violence, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). An officer’s command to stop is a lawful execution of a legal duty if there is reasonable suspicion to support the stop. Id. at 1186.

The State argues that the defendant’s flight in a high crime area created reasonable suspicion. We disagree. Flight alone is “insufficient to form the basis of a resisting without violence charge.” Id. The officer must have reasonable suspicion prior to ordering an individual to stop. A defendant’s response to police pursuit cannot be used to retroactively support suspicion of criminal activity. Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008).

The officers also lacked reasonable suspicion based on trespass. The defendant was charged with violating section 810.08, Florida Statutes (2012). A person violates section 810.08 by willfully entering or remaining in any structure or conveyance without permission or by refusing to depart after permission has been revoked. § 810.08(1), Fla. Stat. (2012). Entry into a structure is a necessary element of the offense. C.P. v. State, 99 So.3d 522, 524 (Fla. 3d DCA 2011). There was no evidence presented that the defendant attempted to enter either building, or that either officer believed the defendant was about to attempt entry. A “structure” may include curtilage, but the curtilage area must be enclosed in some manner. Id. There was no evidence that the areas in which the defendant stood were enclosed in any way.

“Mere presence on the property is insufficient to give rise to a reasonable suspicion of trespass and a reasonable suspicion of trespass must be based upon something more than ‘a mere hunch or guess.’ ” D.T. v. State, 87 So.3d 1235,1241 (Fla. 4th DCA 2012) (citation omitted). “[A] police officer — under the trespass statute — may issue a trespass warning for unauthorized entrance into a structure, but does not have the legal authority to conduct an investigatory stop or arrest for trespass unless the owner or his agent first warned the potential trespasser.” Gestewitz v. State, 34 So.3d 832, 834 (Fla. 4th DCA 2010). Here, because the officer did not recognize the defendant as someone who had previously been warned, he lacked legal authority to stop the defendant for trespass.

Without reasonable suspicion, the State failed to prove the officers were engaged in the lawful execution of a legal duty when the defendant fled. We therefore reverse the revocation of the defendant’s probation.

Reversed.

TAYLOR and GERBER, JJ., concur.


text:
    Donald WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3285.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Donald Walker, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of Donald Walker’s habeas corpus petition. The claim lacks merit even if viewed as a claim of an illegal sentence.

Walker claims that when he was resentenced in 1991, the trial court should have imposed a guidelines term, rather than the departure sentence he received. Walker relies on Shull v. Dugger, 515 So.2d 748 (Fla.1987). Shull held that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court. See also Murray v. State, 616 So.2d 955, 956 (Fla.1993) (Barkett, C.J., specially concurring) (“The issue addressed in Shull was the danger of developing after-the-fact reasons for departure sentences.”).

This court reversed Walker’s sentence because his conviction for second degree murder was already enhanced to a life felony based on his use of a firearm and thus could not be additionally enhanced under the habitual offender statute. Walker v. State, 580 So.2d 281 (Fla. 4th DCA 1991), rev. dismissed, 593 So.2d 1049 (Fla.1992). See, e.g., Lamont v. State, 610 So.2d 435 (Fla.1992) (Defendant convicted of life felony is not subject to enhanced punishment as habitual offender). On re-sentencing the trial court again sentenced Walker to life, not as a habitual offender, but rather based upon a pattern indicating an increased and escalating history of criminal activity of an increasingly serious or violent nature.

Shull does not apply to this situation. See State v. Collins, 985 So.2d 985, 986-991 (Fla.2008). Collins reasoned that when a judge imposes a habitual offender sentence, he or she need not justify it with written reasons, except to find the predicate convictions for such a sentence. See also Jones v. State, 559 So.2d 204, 206-07 (Fla.1990); Compare Brumley v. State, 520 So.2d 275 (Fla.1988).

Walker’s claim was not previously reviewed on the merits despite his efforts. The trial court recognized this, directed a response, and properly denied the claim.

Affirmed.

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

      . Life felonies did not become eligible for habitual offender treatment until October 1, 1995. See Nathan v. State, 689 So.2d 1150, 1152 n. 4 (Fla. 2d DCA 1997).

      . We anticipate that Walker will no longer present the issue and therefore do not consider sanctions at this time. State v. Spencer, 751 So.2d 47, 49 (Fla.1999).


author: EMAS, J.

text:
    Lazaro FERNANDEZ, etc., Appellant, v. SANDY LANE RESIDENTIAL, LLC, Appellee.
    No. 3D12-1460.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Roberts & Durkee and H. Clay Roberts, Coral Gables; Hunter, Williams & Lynch and Christopher J. Lynch, Miami, for appellant.
    Mitrani, Rynor, Adamsky & Toland and Pamela A. Chamberlin, Miami, for appel-lee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Lazaro Fernandez, as Personal Representative of the Estate of Francisco Fernandez (“the Estate”), appeals final summary judgment entered in favor of Sandy Lane Residential, LLC (“Sandy Lane Residential”).

Francisco Fernandez (“Fernandez”) worked as a maintenance engineer at the Gansevoort South Hotel in Miami Beach. On March 24, 2009, Fernandez was helping a fellow employee replace the wheels on a large metal gate when it fell on him, causing his death. The Estate filed a wrongful death suit against the owners of the Gan-sevoort, Sandy Lane Residential and Sandy Lane Master Association, Inc. (“SLMA”), and both asserted they were entitled to employer immunity under section 440.11,- Florida Statutes (2011). Sandy Lane Residential and SLMA moved for summary judgment on this basis, and both contended they were Fernandez’s “employer” at the time of his death, and had “secured” worker’s compensation benefits on his behalf.

After a hearing, the trial court determined that both SLMA and Sandy Lane Residential were entitled to worker’s compensation immunity under section 440.11, and granted summary judgment in favor of both entities. This appeal deals solely with the summary judgment granted in favor of Sandy Lane Residential.

Taking the evidence in the light most favorable to the Estate, we conclude that a genuine issue of material fact exists as to whether Sandy Lane Residential was Fernandez’s employer, precluding summary judgment. We therefore reverse the trial court’s orders granting summary judgment and the final judgment in favor of Sandy Lane Residential. See Alvarado v. Manro, Inc., 550 So.2d 1174 (Fla. 3d DCA 1989).

Reversed and remanded.

      . The Estate also sued KOS Management, LLC (the property manager); HKS Architects, Inc. (the gate designer); Precept Builders, Inc. (the manufacturer and installer of the gate); and Bostic Steel Inc. (a subcontractor hired by Precept to fabricate and install the gate), but those parties are not the subject of this appeal and remain as parties to the pending action below.


text:
    The STATE of Florida, Appellant, v. Adrian LAW, Appellee.
    No. 3D12-1446.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Miami, and Rachel A. Lyons and Justina Martynaityte, Certified Legal Interns, for appellee.
    Before WELLS, C.J., and SALTER and EMAS, JJ.
   PER CURIAM.

The State of Florida appeals a circuit court order granting defendant Adrian Law’s motion to suppress a firearm. We reverse.

Background

On April 5, 2011, Detectives W and P responded to a crime stoppers narcotics tip. The detectives began surveillance while remaining in their vehicle across the street from the reported address, which was in an area known for drug activity. The detectives observed an individual other than the defendant engage in a hand-to-hand transaction in the parking lot of the apartments. The detectives then observed a group of individuals in the parking lot smoking what they believed to be marijuana.

Detective W watched the defendant emerge from around one of the buildings and engage in a short conversation with the individual observed in the earlier hand-to-hand transaction. The defendant then patted his pockets, put his finger up in the air, and left the parking lot the same way he came. The detectives continued to watch the individuals smoking and saw some of them begin to walk eastbound. Detective W then called for a takedown of those individuals walking away.

The defendant reemerged with money in his hand and approached the group of individuals remaining in the parking lot. Upon seeing the takedown, however, the defendant appeared frightened and nervous and immediately grabbed the waistband of his shorts, turned around, and started speed walking toward the west side of the building where he came from. Detective W called for a takedown unit to make contact with the defendant as he was walking away.

Detective A and his partner, Detective R, responded to the call. Upon finding the defendant, Detective A exited his vehicle. Detective A attempted to stop the defendant by saying, “[H]ey, police, come here, man what are you doing?” Detective A did not draw his gun in that encounter. The defendant faced Detective A, said “I’m straight,” or “I’m good, I’m good,” but walked backward and in the same direction (away from Detective A). Detective A advanced toward the defendant who then turned around, reached for the waistband of his shorts, and started running.

Detective A gave chase, yelling loudly, “[S]top, police, stop running.” Detective A caught up with the defendant at the doorway of an apartment. The defendant tried to get inside the apartment, but the doorway was blocked. The defendant tried to pull himself through, and at that point a silver object hit the door frame and bounced outside of the apartment. Detective A saw that the object was a firearm. The defendant and Detective A then engaged in a physical struggle after which Detective A arrested the defendant and retrieved the firearm.

The defendant filed a motion to suppress contending that his “provoked flight” was insufficient to establish reasonable suspicion. The circuit court granted the motion, and the State appealed.

Analysis

While the trial court’s findings must be affirmed if supported by competent, substantial evidence, we review de novo the court’s application of the law to those facts. E.g., Jackson v. State, 18 So.3d 1016, 1027 (Fla.2009).

The Supreme Court, in Illinois v. Wardlow, 528 U.S. 119, 124-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), held that a defendant’s “unprovoked flight upon noticing police” in a high-crime area was suggestive of wrongdoing and therefore provided reasonable suspicion justifying an investigatory detention. “Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at 124, 120 S.Ct. 673. In C.E.L. v. State, 24 So.3d 1181 (Fla.2009), the Florida Supreme Court found that even if an officer initially lacks reasonable suspicion to stop a defendant, reasonable suspicion can be established by a defendant’s flight in a high-crime area.

In the present case, the defendant does not contest that his arrest occurred in a high-crime area. The issue is whether the defendant’s flight was provoked or unprovoked, and whether his flight established reasonable suspicion such that the motion to suppress should have been denied.

A person is seized through a show of authority only if he yields to the authority; however, if the person flees, he is seized only when he is caught. California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Here, the defendant was seized when the physical altercation occurred at the apartment, and not when Detective A first approached him. Accordingly, “the officers can consider everything that happened up to that point to establish reasonable suspicion.” See United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir.2003). The significant facts include the defendant’s presence in a high-crime area, the observation of the defendant’s interaction with the same individual that had conducted a hand-to-hand transaction, the defendant’s return with money in his hand, the defendant’s reaction to observing the takedown, the defendant’s grabbing of his waistband and walking away from the scene, and the defendant’s flight upon being approached by Detective A.

While the defendant argues that his flight was provoked, this is not a case where there is competent, substantial evidence of an “unreasonable show of force” or improper provocation. See, e.g., id. at 1302-03; cf. Rhoden v. State, 941 So.2d 5 (Fla. 2d DCA 2006) (finding that the defendant’s flight was provoked because the defendant’s “flight” occurred before knowing the approaching individuals were law enforcement); Marshall ex rel. Gossens v. Teske, 284 F.3d 765 (7th Cir.2002) (concluding there was improper provocation of flight where the defendant “did what any sane person would do if he saw masked men with guns running toward him” and ran).

When the defendant took off running in this high-crime area and continued to run even after Detective A yelled for him to stop, Detective A had reasonable suspicion to believe that the defendant was engaged in criminal activity. See Franklin, 323 F.3d at 1302.

Conclusion

Based on the cases of C.E.L., Wardlow, and Franklin, as applied to the record before us, we reverse and remand with directions to vacate the suppression order and to enter an order denying the motion.

Reversed and remanded.

      . The detectives are identified by their full names in the record, and by the first initial of their last names here.

      . Detectives A, P, and W were the only witnesses who testified at the suppression hearing.