text:
    STATE of Florida, Appellant, v. William C. CHAMPERS, Appellee.
    No. 5D13-832.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

Pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B), the State of Florida appeals from an order granting William Champers’ motion to suppress his statements and all physical evidence seized from his person after law enforcement detained him on another’s property. The trial court found that law enforcement’s temporary detention of Champers was illegal because it was based upon nothing more than a bare hunch that Champers was committing or about to commit a crime on the property. Applying the relevant law de novo to uncontested facts, we hold that the deputy had reasonable suspicion to detain Champers to investigate whether he was trespassing on the property, and reverse.

Uncontested Facts

Champers was charged by information with burglary of a dwelling. The information alleged that on November 7, 2012, Champers entered or remained in a dwelling on Hiawassee Road, in Orange County, Florida, without being licensed or invited to enter, and with the intent to commit an offense therein. Champers filed a motion to suppress all evidence against him — his statements, a pair of gloves, a screwdriver, and a knife — on grounds that he was detained without reasonable suspicion that a crime was being committed or was about to be committed.

At the suppression hearing, veteran Orange County Sheriffs Deputy Scott Sturrup testified that he was heading North on Hiawassee Road to assist other units with an unrelated call when he observed an adult male in a gray hooded sweatshirt near the front door of a residence on Hiawassee Road. This occurred mid-day, close to 1:00 p.m. The house sat just off the east side of the road in an all-residential area that had been experiencing a high number of daytime crimes, including burglaries and robberies. In response, the police had been conducting proactive patrols in that area to reduce the number of these crimes.

The man, later identified as Champers, was standing “[u]p towards the front door on the steps” with the hood on his sweatshirt down. Then Deputy Sturrup observed Champers step off the front steps and start walking north in the grass along the front of the house toward a gate in the side yard. The deputy observed that at that point “[i]t just didn’t seem like [Champers] belonged there,” so he “turned around to come back and see if he was there — still there or moving on.” When Deputy Sturrup circled back to the house, he observed Champers opening and entering the side gate while pulling the hood of his sweatshirt onto his head and looking down, as if attempting to conceal his face from potential onlookers. Champers continued walking toward the back ■ of the residence in this fashion. Deputy Sturrup called for additional units to respond and waited.

About four minutes later, Champers reemerged from the side gate and began wálking back in front of the house toward Deputy Sturrup. Deputy Sturrup told him to stop and asked Champers if he belonged at the residence. Champers responded that he was there to see Eugene Wilder, who was hard of hearing and could not' hear the doorbell. Champers’ body language seemed suspicious and Deputy Sturrup noticed a pair of gloves in Champers’ sweatshirt pocket. Upon investigation, Deputy Sturrup learned that the owner of the residence did not know Champers, the owner had not authorized Champers to enter the property, and no one named Eugene Wilder lived at the house. Deputy Sturrup then arrested Champers and located the other physical evidence in his search incident to the arrest.

Champers also testified at the suppression hearing, adding that it was a cold day (which would provide an innocent explanation for donning the hood of his sweatshirt). Champers believed that Eugene Wilder lived at the residence and went to the property to inquire about doing odd jobs for Wilder. Because he had been told that Wilder was hard of hearing and was normally on the backside of the house, he entered the property to attempt to rouse Wilder when no one answered his knock at the front door.

Applicable Law

“An investigatory detention occurs when an officer makes ‘an official show of authority from which a reasonable person would conclude that he or she is not free to end the encounter and depart.’ ” Majors v. State, 70 So.3d 655, 659 (Fla. 1st DCA 2011) (quoting Dees v. State, 564 So.2d 1166, 1167 (Fla. 1st DCA 1990)). Both parties agree that Deputy Sturrup detained Champers whén he stopped Champers to investigate his presence at the residence. To justify an investigatory stop, police must possess specific, articula-ble facts that would warrant an officer of reasonable caution to believe that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1993). It is not sufficient that an officer have an “inchoate and unparticularized suspicion or ‘hunch’ ” that the defendant had committed, was committing, or was about to commit a crime. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Much has been written in this court about the' difference between reasonable suspicion and a bare hunch. Recently, for example, in Price v. State, 120 So.3d 198, 200 (Fla. 5th DCA 2013), we explained that the reasonable suspicion standard requires courts to examine the totality of circumstances, or “whole picture,” to determine whether the detaining officers had a “particularized and objective basis” for suspecting the person stopped of criminal activity. The particularity requirement means that the officer’s suspicion must be grounded in specific, articulable facts, while the objectivity requirement means that courts must “view the facts and circumstances through the lens of a reasonable police officer giving due consideration to his or her training and experience.” Id. In Wallace v. State, 8 So.3d 492 (Fla. 5th DCA 2009), this court noted that in addition to specific and articulable facts, courts may also consider “rational inferences from those facts.” Id. at 494 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). Factors commonly considered among the totality of circumstances in determining reasonable suspicion are “the time and day, the location, the physical appearance of the suspect, the suspect’s behavior, the appearance and manner of ... [movement], and anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.” Price, 120 So.3d at 202 (quoting State v. K.N., 66 So.3d 380 (Fla. 5th DCA 2011)).

In contrast, “inchoate (meaning in this context partial, unfinished, or imperfectly formed) and unparticularized suspicions or hunches will not suffice.” Price, 120 So.3d at 200 (citations omitted). “A ‘mere hunch’ is simply a suspicion based on bare intuition.” Wallace, 8 So.3d at 494.

In a case such as this where the relevant facts are undisputed, appellate courts determine de novo whether reasonable suspicion existed based on the facts found. K.N., 66 So.3d at 384. Additionally» “[w]hether the inference drawn by police was objectively reasonable involves the application of logic and judicial experience and is reviewable de novo.” Wallace, 8 So.3d at 494. “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); see also Chappell v. State, 838 So.2d 645, 647 (Fla. 5th DCA 2003) (“A court’s evaluation of reasonable suspicion is guided by common sense and ordinary human experience.”) (citation omitted).

In this case, the issue is whether Deputy Sturrup had a reasonable suspicion that Champers was trespassing. Section 810.09(l)(a), Florida Statutes (2012), defines a criminal trespasser on property-other than a structure or conveyance as a

person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance:
1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011; or
2. If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass.

Although the State does not specify which subsection it is relying upon, the undisputed facts found by the trial court establish that Champers willfully entered and remained on the property, and at one point opened the “side gate” and proceeded toward the rear of the home. The gate was part of a fence separating the “wide open” front yard from the back yard. These facts establish willfully entering or remaining on land other than a structure or conveyance, and the element in subsection 1., which is that notice against entering or remaining was given, either by actual communication, or by fencing. See Joyce v. Crowder, 509 Fed.Appx 969, 970 (11th Cir.2013) (“Of the four elements required to prove trespass, only the notice element is seriously at issue. We hold that the arresting officers had actual probable cause in that they were told ... that the protesters were on the west side of the fence on private property. The arresting officers reasonably assumed that the protesters had to have crossed the fence, thus constituting probable cause that the protesters had the notice required by Florida law for violation of its trespassing statute.”) (footnote omitted); cf. § 810.09(2)(b), Fla. Stat. (2012) (elevating trespass from second-degree misdemeanor to first-degree misdemeanor if offender “willfully opens any door, fence, or gate”). Thus, the only disputed element is whether Deputy Sturr-up had reasonable suspicion that Champers’ entry was not “authorized, licensed, or invited.”

Application of the Law to the Facts

Objectively viewing the totality of the circumstances from the perspective of this experienced deputy, we readily conclude that the deputy had reasonable suspicion to investigate Champers for trespassing. While it is certainly possible that a homeowner could be observed standing at the front door of his home one minute and walking through a side gate while putting his hood on for warmth the next minute, the stronger inference, more consistent with common sense and human behavior, as viewed through the lens of Deputy Sturrup’s experience and knowledge of recent daytime burglaries in the area, is that an unauthorized person, having determined no one was coming to the front door, was attempting to conceal himself while entering the enclosed curtilage of the property. If the totality of circumstances is ambiguous, involving conduct that can be interpreted as lawful or as criminal activity, police may detain an individual to resolve the ambiguity. Rhoden v. State, 941 So.2d 5, 9 (Fla. 2d DCA 2006) (citing Wardlow, 528 U.S. at 125, 120 S.Ct. 673).

We emphasize that “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 243-44, n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Because Champers’ observed conduct was objectively suspicious, Deputy Sturrup did not violate Champers’ Fourth Amendment rights by briefly detaining him to investigate his presence on the property. Accordingly, we reverse the suppression order and remand for further proceedings.

REVERSED AND REMANDED.

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

      . At the time of the incident, Deputy Sturrup had been a police officer for twenty-three years.

      . By contrast, "[i]t is the function of the trial court to determine the historical facts, which includes a determination of whether a particular police officer has the experience to draw a particular inference from a given circumstance and whether the officer actually drew the inference.” Wallace, 8 So.3d at 494. The appellate court must defer to the trial court's fact-findings, id., by accepting those findings as long as they are supported by competent, substantial evidence, and by interpreting the evidence in the light most favorable to sustaining the trial court's ruling. State v. Quinn, 41 So.3d 1011, 1013 (Fla. 5th DCA 2010).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Wayne CYR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2871.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 2013.
    Robert Wayne Cyr, Lake City, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case Nos. 2010-2181-C and 2010-2182-CF, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON and WALLIS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Cordero Trayon McKINNON, Appellee.
    No. 5D13-1717.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Colbert, 968 So.2d 1043 (Fla. 5th DCA 2007).

GRIFFIN, PALMER and LAWSON, JJ., concur.


text:
    Angel L. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-831.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2013.
    Angel L. Rodriguez, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, and Kaylee D. Tatman, Assistant Attorney Generals, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Jarrett v. State, 89 So.3d 293 (Fla. 5th DCA 2012).

SAWAYA, PALMER and COHEN, JJ., concur.


text:
    Bryan Christopher GOODE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4094.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2013.
    James S. Purdy, Public Defender, and Shannon Timmann, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Garzon v. State, 980 So.2d 1038, 1045 (Fla.2008).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Christopher James McGILL, Appellee.
    No. 5D13-1895.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    Daniel S. Ciener of The Law Firm of Ciener & Ciener, Merritt Island, for Ap-pellee.
   PER CURIAM.

The State of Florida appeals from an order granting Christopher McGill’s motion to suppress evidence seized from his home pursuant to a search warrant. On appeal, the State argues that the trial court erred: (1) in finding that the affidavit in support of the search warrant did not contain sufficient facts to establish probable cause to issue the warrant; and (2) in ruling that the good faith exception to the exclusionary rule did not apply in this case. We agree and reverse.

On August 18, 2011, Deputy Stephen Dishong of the Brevard County Sheriffs Office submitted an affidavit requesting a search warrant for McGill’s home, alleging that he had reason to believe cannabis was being used or kept on the premises. The affidavit alleged the following pertinent facts: In July 2011, a confidential informant (“Cl”) identified McGill as a mid- to high-level cannabis dealer “who sells multiple pounds of cannabis on a daily routine from his residence.... ” The Cl told Deputy Dishong that McGill left his residence in his personal vehicle and traveled to an unknown location to pick up and transport multiple pounds of cannabis from his cannabis supplier “on a daily routine.” In addition, the Cl had observed approximately fifty pounds of cannabis and approximately $20,000 inside McGill’s home. Based on the information obtained from the CI, Deputy Dishong and Agent Beuer began conducting surveillance at McGill’s residence in July 2011. After approximately ten minutes of surveillance, they observed a vehicle arrive at the residence. The occupant of the vehicle entered McGill’s home, where he stayed for about ten minutes; he then exited the residence and left the area. Another deputy conducted a traffic stop of that vehicle and, upon approaching the driver’s door, immediately smelled “the distinct odor of fresh cannabis.” A quarter pound of cannabis was found in the occupant’s waistband. The occupant advised the deputy that he "purchases approximately a quarter potmd to a full pound -of cannabis from- [McGill] on a routine bas[i]s.” The occupant further advised that he “has never known [McGill] to have a shortage of supply of cannabis and believes that he possesses multiple pounds of cannabis in his residence on a routine basis.” The affidavit noted that the information obtained during the traffic stop “further corroborates the reliability of the confidential informant.”

The affidavit further alleged that on August 10, 2011, the Brevard County Sheriffs Office Special Investigation Unit and Deputy Dishong received information from “a confidential source” that a man named Timothy Michael Calderone was going to be at McGill’s residence to purchase approximately two pounds of cannabis. While conducting surveillance of McGill’s house that day, a vehicle was observed arriving at McGill’s residence. The occupant, later determined to be Calderone, went inside for approximately thirty-five minutes and then left. Deputy Mark Myers conducted a traffic stop and smelled cannabis upon approaching the vehicle. A K-9 officer also gave a positive alert as to the presence of drugs. A search of, the vehicle revealed approximately two pounds of cannabis. Although Calderone was unemployed, the deputy found $1,250 in cash on his person, which he believed supported his theory that Calderone was a street-level drug dealer. Once again, the affidavit noted that “this information further corroborates the reliability of the confidential informant.” Lastly, the affidavit set forth McGill’s criminal history, which included a charge for possession of paraphernalia in 2005 and three charges for possession of less than twenty grams of cannabis in 2006, 2007, and 2010.

Based on the facts set forth in the affidavit, the magistrate issued a warrant to search McGill’s home for evidence of possession or sale of cannabis. Upon execution of the search warrant, one to two pounds of cannabis were seized from McGill’s residence, and he was subsequently arrested.

The State charged McGill with one count of possession of a controlled substance with intent to sell or deliver. McGill moved to suppress the evidence seized pursuant to the warrant, arguing, in pertinent part, that the affidavit in support of the warrant did not contain sufficient facts to establish probable cause to issue the warrant.

During a hearing on the motion, the trial court found that it could not consider the statement that the CI. had observed fifty pounds of cannabis and $20,000 in McGill’s home because the affidavit did not provide the date on which the CI made that observation. The trial court explained, “I cannot find that statement reliable. I don’t know if that was this year, last year....” As to the first traffic stop conducted pursuant to the surveillance of McGill’s home, the trial court noted that the car occupant did not specifically state that he obtained the cannabis found on his person from McGill that day. The court acknowledged that the occupant said that he purchases cannabis from McGill on a “routine basis,” but stated, “I don’t know what ‘routine basis’ means. It could mean ... every six months, or routine basis to someone else could mean every three days.” Thus, the trial court concluded that it could not rely on the information obtained during the first traffic stop in making its ruling. The trial court found that the information obtained during the second traffic stop was reliable because the Cl had accurately predicted that Calderone would go to McGill’s home to purchase two pounds of cannabis. The trial court ultimately ruled, however, that the information set forth in the affidavit did not provide probable cause for the issuance of the search warrant and that the good faith exception to the exclusionary rule did not apply. This timely appeal followed.

On appeal, the State argues that the trial court erred in finding that the affidavit did not provide probable cause to believe that- cannabis would be found in McGill’s house. McGill has chosen not to file an answer brief in this appeal.

We review the trial court’s determination of the legal issue of probable cause de novo. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Limiting our inquiry to “the four corners of the affidavit,” we must determine whether, “based on the totality of the circumstances and a common sense assessment, probable cause is shown.” State v. Paige, 934 So.2d 595, 597 (Fla. 5th DCA 2006). “The magistrate’s decision must be upheld unless there was no substantial basis for concluding that probable cause existed.” State v. Howard, 666 So.2d 592, 594 (Fla. 4th DCA 1996) (citing Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA 1990)).

To establish probable cause for issuance of a search warrant, a supporting affidavit must set forth facts establishing two elements: (1) the commission element — that a particular person has committed a crime, and (2) the nexus element — that evidence relevant to the probable criminality is likely to .be located in the place to be searched. State v. Felix, 942 So.2d 5, 9 (Fla. 5th DCA 2006). To satisfy the nexus element, the affidavit must establish the particular time when the illegal activity that is the subject of the warrant was observed. Id. This court elaborated on this rule as follows:

A magistrate is required to know this specific time because the length of time between the activity and the date of issuance bears on whether there is probable cause to believe that the items to be seized will still be found at the place to be searched. The longer the time period, the less likely it is that the items sought to be seized will be found at the place listed in the affidavit. As the time period increases, it is said that the evidence becomes stale. A rule of thumb that seems to be recognized by courts as the standard for staleness is thirty days. There is nothing particularly magical about thirty days, however.... [Whether information is too stale to establish probable cause to support a search warrant is not to be determined solely by the rigid application of a pre-determined time period. Depending on the particularized circumstances as evaluated by an impartial magistrate, an acceptable elapsed time may certainly be more or less than thirty days. A specific lapse of time is not controlling on the issue of staleness and does not invariably render a search warrant stale. We have judges making this determination because it requires an exercise of judgment.
Staleness should be evaluated in light of the particular facts of a given case, the nature of the criminal activity, and the evidence hoped to be found. Information contained in an affidavit in support of a search warrant is not stale if there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises. Similarly, items that are consumable,- such as proscribed drugs, for example, may become stale sooner than non-consumable items such as video tapes.

Id. at 9-10 (citations and internal quotation marks omitted). Additionally, when a continuous or ongoing pattern of criminal activity is alleged in the affidavit, staleness becomes less of an issue. Hudson v. State, 368 So.2d 899, 902 (Fla. 3d DCA 1979) (“[T]he staleness issue must be examined more liberally when a continuing pattern of criminal activity is alleged ....”); see also Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.1973) (“[Wjhere an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance -”).

Moreover, when a confidential informant provides information to law enforcement that forms the basis for an affidavit for a search warrant, the affidavit must contain either information concerning the informant’s veracity and reliability or sufficient independent corroborating evidence. As explained in Jenkins v. State, 924 So.2d 20, 24 (Fla. 2d DCA 2006):

an informant’s veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report. But these 'elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case. A deficiency in one element may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. The corroboration of major' portions of an informant’s predictions is a salient indicia of reliability. A confidential informant’s veracity, can be established by either the informant’s prior record of reliability or the wealth of detailed, verifiable information given on the occasion in question.

(Citations, internal quotation marks, quotation alteration notations and emphasis omitted).

In the instant case, the trial court correctly noted that the affidavit did not provide the date on which the Cl allegedly observed the cannabis and cash inside McGill’s house; therefore, the Cl’s observation alone would have been insufficient to satisfy the nexus requirement. See Felix, 942 So.2d at 9; Rand v. State, 484 So.2d 1367, 1367-68 (Fla. 2d DCA 1986) (holding affidavit for search warrant insufficient where it did not specify date illegal activity occurred but instead stated only that officer received information from informant within ten days of date of affidavit). However, the affidavit further alleged that both the Cl and the person detained during the first traffic stop had indicated that McGill “routinely” sold cannabis from his house. Thus, “the staleness issue must be examined more liberally” because “a continuing pattern of criminal activity” was alleged. Hudson, 368 So.2d at 902.

In addition, Deputy Dishong independently corroborated the information provided by the Cl by undertaking surveillance of McGill’s home. As a result of that surveillance, officers found cannabis in a vehicle pulled over after leaving McGill’s house, with the occupant of that vehicle also verifying that McGill sold cannabis from his residence on an ongoing and routine basis. The Cl’s reliability was further bolstered by his accurate prediction of another person’s future conduct, i.e., that Calderone would visit McGill’s home on August 10 to purchase two pounds of cannabis. See Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (holding that probable cause for warrant authorizing search of defendants’ home and automobile was established by anonymous letter indicating that defendants were involved in illegal drug activity and predicting future criminal activities where major portions of the letter’s predictions were independently corroborated by affi-ant); see also Jenkins, 924 So.2d at 24 (“The coi’roboration of major portions of an informant’s predictions is a salient indi-cia of reliability.” (internal quotation marks omitted)). These facts gave the issuing magistrate a “sufficient basis to believe ... that the items to be seized [were] still on the premises.” Felix, 942 So.2d at 9 (quotation and citation omitted); cf. Paige, 934 So.2d at 602 (holding that facts set forth in affidavit established fair probability that drugs would still be found on premises, even though information from anonymous tip and trash pull that revealed evidence of drugs was more than thirty days old; in addition to tip and trash pull, officers conducted surveillance, observed individuals leaving premises with plastic bags and followed other individuals to known drug areas). Lastly, McGill’s history of drug-related offenses, as set forth in the affidavit, provided additional support for issuance of the search warrant. See State v. Gross, 833 So.2d 777, 780 (Fla. 3d DCA 2002) (stating that prior history of drug offenses is one factor that magistrate may consider in determining probable cause to issue warrant); see also Paige, 934 So.2d at 602 (same).

Reviewing all of the facts set forth in the affidavit de novo, we conclude that they were sufficient to provide probable cause to believe that cannabis would be found in McGill’s home. Cf. State v. Siegel, 679 So.2d 1201, 1205-06 (Fla. 5th DCA 1996) (recognizing that magistrate’s issuance of warrant should be upheld where “the various pieces of information mar-shalled in this case and outlined in the affidavit fit neatly together and support the magistrate’s conclusion that there was a fair probability that marijuana would be found”). Accordingly, we find that the trial court erred in granting McGill’s motion to suppress on the basis that the affidavit did not set forth sufficient facts to establish probable cause.

We also note that the trial court appeared to have been misled in its understanding of the good faith exception by unfortunate language in Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004), in which the Second District stated that “[w]here ... the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” In Garcia, the officer executing the warrant had also omitted from his affidavit key facts that would have mitigated against issuance of the warrant. Id. at 328-29. It was in this context that the Garcia panel determined that the good faith exception to the warrant requirement did not apply. Id. In cases that do not involve this type of police misconduct, however, the good faith exception can apply to preclude suppression of evidence secured pursuant to an invalid warrant, even where the reviewing court determines that the facts in the affidavit do not demonstrate probable cause. See, e.g., State v. Cook, 972 So.2d 958, 959-60 (Fla. 5th DCA 2007) (explaining that good faith exception applied where “the sole debate ... is over the. existence of probable cause” and where there was no indication that affidavit contained misrepresentations or omitted information); State v. Harris, 629 So.2d 983, 984 (Fla. 5th DCA 1993) (holding that good faith exception applied even though probable cause was lacking in that informant’s reliability was not established and affiant did not corroborate informant’s statement that he observed cocaine in defendant’s house); also cf. Johnson v. State, 872 So.2d 961, 964 (Fla. 4th DCA 2004) (holding good faith exception applied even though affidavit failed to provide specific date on which informant saw contraband at defendant’s house but instead provided date on which affiants obtained information from, informant; explaining that “affidavit in this case is at worst ambiguous as to temporal context but otherwise supplies sufficient facts from which a magistrate would have a substantial basis for concluding that probable cause existed”); Montgomery v. State, 584 So.2d 65, 68 (Fla. 1st DCA 1991) (“The [good faith exception] has been specifically applied in both the federal and Florida courts where the issue has been the staleness of the information upon which the warrant is issued.”); State v. Enstice, 573 So.2d 340, 343 (Fla. 5th DCA 1990) (explaining that “[i]n situations where analysis of a warrant yields a conclusion that it lacks probable cause, the court must then determine whether an affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” and applying good faith exception where deficiencies in affidavit were, “at most, a case of weak drafting, not bad faith.” (citations and quotation marks omitted)).

In general, the good faith exception to the exclusionary rule precludes the suppression of evidence secured pursuant to an invalid warrant when the officer who conducts the search does so in an objectively reasonable reliance upon the validity of the warrant. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In determining whether an officer acted in reasonable reliance on the validity of the warrant, courts must consider whether, given the totality of the circumstances, a well-trained officer armed with the information possessed by the officer conducting the search would have believed the warrant to be valid. State v. Sabourin, 39 So.3d 376, 384 (Fla. 1st DCA 2010). The good faith exception does not apply under the following circumstances: (1) if, in issuing the warrant, the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing magistrate wholly abandoned his judicial role; (3) where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) where a warrant is so facially deficient (i.e., in failing to particularize the place to be searched or the items to be seized) that the executing officer could not reasonably presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. 3405.

The rationale behind the .good faith exception is that the exclusionary rule “is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916, 104 S.Ct. 3405. Therefore, when the police act in good faith on a warrant they have no reason to believe is invalid, the deterrent effect of suppressing illegally seized evidence is minimal. Id. at 919-20, 104 S.Ct. 3405; see also State v. Watt, 946 So.2d 108, 110 (Fla. 5th DCA 2007) (“In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant.”).

In this case, there was no allegation that the affidavit contained misrepresentations or omitted material facts, or that the magistrate abandoned his role of neutrality. Moreover, the warrant was not technically deficient — it specified the place to be searched and the items to be seized. Instead, the trial court’s refusal to apply the good faith exception was based solely upon its erroneous conclusion that the supporting affidavit did not establish probable cause. Contrary to the trial court’s analysis in this case, where a trial judge determines that an affidavit did not allege sufficient facts to establish probable cause, the good faith exception applies as long as the affidavit was not so lacking in indicia of probable cause as to render official belief in its validity unreasonable. Given the facts of this case, the trial court should have applied the good faith exception.

We reverse the order granting McGill’s motion to suppress and remand for further proceedings.

REVERSED AND REMANDED.

GRIFFIN, LAWSON and EVANDER, JJ., concur.

      . Although we review the trial court’s legal conclusions de novo, the trial court should have applied a more deferential standard when reviewing the magistrate's issuance of the search warrant. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (explaining that duty of reviewing court is simply to ensure that magistrate had a substantial basis for concluding that probable cause existed).

      . It appears from the affidavit that the "confidential source” who informed law enforcement about Calderone’s planned August 10, 2011 visit to McGill's house is the same Cl who originally informed law enforcement about McGill’s drug activity. And, only one informant was mentioned at the hearing. However, the affidavit is not entirely clear on this point. Even if there was a second informant, the cannabis found in Calderone’s vehicle after his departure from McGill’s house would have further demonstrated the reliability of the first informant as well.


text:
    Jerome BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3993.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    Jerome Burgess, Monticello, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant seeks review of an issue he appealed in Case No. 5D12-3379 in which we entered a Spence')- order on December 12, 2012, prohibiting Appellant “from filing any further pro se pleadings concerning St. Johns County Seventh Judicial Circuit Case No. CF01-488.” As this appeal raises the same issue addressed multiple times in prior cases, we affirm and reiterate the prohibition. The Clerk of this court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (noting “[ejnough is enough”).

AFFIRMED with instructions.

SAWAYA, LAWSON and WALLIS, JJ„ concur.

      . 0.25. State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Charles Robert WILLIAMS, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4779.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Charles Robert Williams, III, appeals from his judgment and sentence on six related charges, entered following his plea of guilty to each charge. Only one issue merits discussion. With respect to the most serious charge, burglary of a dwelling, the trial court imposed a sentence of fifteen years in prison “as a prison release reoffender [‘PRR’] and habitual [felony] offender [‘HFO’].” Because the PRR statute does not permit the imposition of an HFO sentence of the same length as a PRR sentence on the same charge, see Grant v. State, 770 So.2d 655, 658-59 (Fla.2000), we reverse the sentence on the burglary of a dwelling charge, and remand for further proceedings. Although a trial court in these circumstances could normally cure the illegality by imposing a longer HFO sentence on remand, see, e.g., Clark v. State, 72 So.3d 222 (Fla. 2d DCA 2011), doing so in this case would violate the negotiated plea agreement (which capped the sentence at fifteen years). As such, the trial court will either need to strike the HFO designation as to the burglary of a dwelling charge or, if the State or trial judge insist on a longer HFO sentence, allow Williams to withdraw his plea. See Goins v. State, 672 So.2d 30, 32 (Fla.1996) (“[W]hen a trial judge cannot honor a plea bargain the judge must affirmatively offer the defendant the right to withdraw the plea ....”) ■

AFFIRMED IN PART, REVERSED IN PART.

GRIFFIN, PALMER and LAWSON, JJ., concur.

      . We have quoted directly from the trial court’s pronouncement of sentence on the burglary of a dwelling charge. On appeal, the State argues that the trial judge did not impose an HFO sentence on this charge, an argument that is clearly belied by the record as evidenced by the language quoted above. In addition, the sentencing documents as to this count also unambiguously reflect both the HFO designation and the PRR designation. As for the other charges, the trial court imposed lesser concurrent sentences about which no issue has been raised on appeal.


text:
    Perry L. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3308.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    Perry L. Johnson, Malone, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Bonnie Jean .Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from his judgment and sentence in Case No. 05-2002-CF-49008-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and COHEN, JJ., concur.


text:
    Gregory Frank DIDION, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3171.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.

      Stephen G. Henderson and Maria Veath Henderson of Henderson Legal Group, Melbourne, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 28, 2013, judgment and sentence for violation of probation in Case No. 05-2001-CF-034991-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, COHEN and BERGER, JJ., concur.


text:
    The LEON L. COHEN FAMILY, Etc., et al., Appellant, v. Brenda J. COHEN, Etc., Appellee.
    No. 5D13-2267.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    Robert G. Post, of Post & Romero, Coral Gables, and Gregory P. Durham of Gray Robinson, P.A., Melbourne, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Migliori v. Migliori, 983 So.2d 670 (Fla. 5th DCA 2008) (holding that record filed on appeal provided insufficient basis to reverse the trial court’s decision granting former wife’s motion to transfer venue because there was no transcript of the hearing held below); Garcia v. Garcia, 958 So.2d 947 (Fla. 3d DCA 2007) (holding that, because the appellant failed to provide the appellate court with a transcript of the hearing held below, the record was inadequate to demonstrate that the trial court abused its discretion in denying the motion to transfer venue).

PALMER, COHEN and WALLIS, JJ., concur.


text:
    Shane DODIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3371.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.

      Shane Dodier, Avon Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Shane Dodier appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Dodier argues that he should have been eligible for a downward departure sentence because the police engaged in sentence manipulation. See State v. Steadman, 827 So.2d 1022, 1025 (Fla. 3d DCA 2002) (“although a defendant does not have a right to be arrested in order to be prevented from committing further crimes, a trial court has discretion to impose a downward departure sentence, when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance his or her sentence”). Dodier’s 3.850 motion was inartfully drafted, however, and did not clearly state a claim of ineffective assistance of counsel for failing to argue for a downward departure sentence based upon Steadman. Rather than granting Dodier an opportunity to attempt to perfect his rule 3.850 claim as required by Spera v. State, 971 So.2d 754 (Fla.2007) (holding that a trial court must give defendant one opportunity to amend facially deficient 3.850 claims), the trial court chose to treat the motion as one pursuant to Florida Rule of Criminal Procedure 3.800(a), and to deny relief since Dodier’s sentence was legal. We reverse and remand with directions that Dodier be granted an opportunity to address the pleading deficiencies in his rule 3.850 motion, as required by Spera.

REVERSED and REMANDED.

LAWSON, BERGER and WALLIS, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    Jesse PENA, Appellant, v. Sandra DIAZ and Nabor Jaimes Arellandeda, Appellees.
    No. 5D12-4504.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    Philip A. Haas, of Haas Law, P.A., Melbourne Beach, for Appellant.

      Sybil Y. Sivic, of The Sivic Law Firm, Ocala, for Appellees. ’
   PER CURIAM.

AFFIRMED.

LAWSON and COHEN, JJ., concur.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

This is a hard case to decide against the appellant, although there is no doubt in my mind that the law compels affirmance. It is the latest of many cases filed in our state courts in which the biological father seeks to establish his paternity to a child born into a marriage between the child’s mother and another man. Indeed, this is the second time Mr. Pena has filed suit in an effort to try to establish his paternity to the child, K.D., who was born to appellee, Sandra Diaz [“Diaz”], when Diaz was married to appellee, Nabor Jaimes Arellande-da [“Jaimes”].

Appellees Diaz and Jaimes were married in December 2007. Sometime later, the two separated, and Diaz began a relationship with Pena. Pena alleges that, in January 2010, Diaz discovered she was pregnant and informed Pena that he was the father of her unborn child. Pena further alleges that he accompanied Diaz to her doctor appointments while she was pregnant, and that he and his mother were present in the delivery room when K.D. was born. The record also indicates that, during Diaz’s pregnancy, Jaimes impregnated another woman.

On June 16, 2010, during Diaz’s pregnancy, Diaz and Jaimes jointly filed a petition for simplified dissolution of marriage, wherein they affirmed under oath that Jaimes was not the father of Diaz’s unborn child. On September 28, 2012, while the dissolution action was pending, Diaz gave birth to K.D. The following day, Pena filed a petition to determine paternity in Marion County. Pena alleges that this action “enraged” Diaz and, as a result, Diaz no longer wanted Pena to have contact with K.D. Pena further alleges that this led Diaz to convince Jaimes to voluntarily dismiss their dissolution action, which they did on October 19, 2010, to preclude Pena from establishing paternity of K.D.

Diaz and Jaimes then moved to dismiss Pena’s paternity action, arguing that K.D. was conceived and born during their marriage, and that their marriage was intact. On November 8, 2011, almost fourteen months after Pena instituted his paternity action, the trial court held a hearing on Diaz and Jaimes’s motion to dismiss. At that time, Diaz and Jaimes were still married and no dissolution action was pending. Finding that K.D. was conceived and born during an intact marriage (because the dissolution action was subsequently dismissed) and that both Diaz and Jaimes were resolute in their objection to Pena’s paternity action, the trial court granted the motion to dismiss. Florida law does not allow a putative biological father a cause of action to establish paternity if the child was born during the mother’s “intact” marriage to another man. Thus, the trial court stated that it was “duty bound to follow precedent of the statutes and the higher courts” to dismiss Pena’s paternity action. For whatever reason, Pena did not appeal this decision.

Five months after the trial court in Marion County found that Diaz and Jaimes’s marriage was “intact,” Diaz instituted dissolution proceedings against Jaimes in Citrus County. Pena discovered that the dissolution action was pending and unsuccessfully sought to intervene to establish paternity of K.D. Simultaneously in Citrus County, Pena filed his second paternity action under section 742.011, which is on appeal here. In his petition, Pena has alleged that K.D. resides with Diaz, and that Pena has not been allowed to see K.D. since October 4, 2010.

Diaz moved to dismiss this second paternity action, arguing that it impugned the legitimacy of K.D. and the parental rights of Jaimes, K.D.’s legal father. Moreover, Diaz argued that res judicata barred this action because the issue of paternity had already been litigated in Pena’s first paternity action in Marion County. The trial court in Citrus County held a hearing on Diaz’s motion to dismiss. Jaimes attended this hearing and asserted his rights as the legal father of K.D. During the hearing, Diaz testified that she and Jaimes were married and living together at the time of KD.’s birth. Diaz also testified that Jaimes pays child support for K.D. every week. Ultimately, the trial court found that K.D. was born into an intact marriage and dismissed the paternity action.

In Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993), the Florida Supreme Court sought to reconcile the emergence of biological fatherhood as a scientific fact with the common law presumption of legitimacy. See Chris W. Altenbernd, Quasi-Marital Children: The Common Law’s Failure in Privette mid Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219-38 (1999). Throughout its opinion, the Privette court expressed a strong commitment to protecting the legitimacy of children and the interests of legal fathers. See Privette, 617 So.2d at 308. “Nothing in Privette suggests that the supreme court was concerned with the rights of a man purporting to be the biological father.” G.F.C. v. S.G., 686 So.2d 1382, 1384 (Fla. 5th DCA 1997).

After Privette, and other decisions of Florida courts attempting to apply Privette to the myriad of factual situations that arise in these cases, it is now the prevailing law in Florida that a putative father has no right to seek to establish paternity of a child born into an intact marriage when both the mother and her husband object. See Slowinski v. Sweeney, 64 So.3d 128 (Fla. 1st DCA 2011); Bellomo v. Gagliano, 815 So.2d 721 (Fla. 5th DCA 2002); Johnson v. Ruby, 771 So.2d 1275 (Fla. 4th DCA 2000); and G.F.C. v. S.G., 686 So.2d 1382. But see Lander v. Smith, 609 So.2d 1130 (Fla. 4th DCA 2005). Conversely, a putative biological father is not necessarily precluded from bringing a paternity action under section 742.011 when a child is born during the mother’s marriage to another man if the marriage is not “intact.” However, several district courts of appeal have refused to authorize trial courts to conduct any qualitative evalua: tion of the intactness of a marriage “[s]o long as the husband and wife are married and have no pending divorce proceeding.” S.B. v. D.H., 736 So.2d 766 (Fla. 2d DCA 1999); see also J.S. v. S.M.M., 67 So.3d 1231 (Fla. 2d DCA 2011) (holding that, despite the fact that a dissolution action was pending when the paternity action was filed, the trial court departed from the essential requirements of the law by not dismissing the putative biological father’s paternity action because no dissolution action was pending when the child was conceived and born, and the dissolution action had been subsequently voluntarily dismissed).

The Fourth District Court of Appeal has held that a trial court is prohibited from evaluating the intactness of a marriage— even though a dissolution action was pending when the child was born — if the mother and husband later dismiss the dissolution action. Lohman v. Carnahan, 963 So.2d 985 (Fla. 4th DCA 2007). The court in Lohman based this holding on the notion that the joint voluntary dismissal left the parties as if the action had never been brought. Id. at 988. As the court explained, “[o]nce the [mother and husband] dismissed their dissolution action there was no pending divorce proceeding, so the trial court was not authorized to conduct any qualitative evaluation of whether the marriage was intact.” Id. (quotations and citations omitted). The court continued, “This is not a case where, after the initiation of a paternity action, a previously filed dissolution action continued on its way to a final judgment.” Id. Rather, under these circumstances, the putative biological father could not invade the private decisions of the mother and husband concerning their marriage. Id.

The one concept that appears to have remained constant in these cases is the notion that the biological father cannot claim paternal rights to a child born into an “intact” marriage. The courts have also uniformly said that a marriage is not “intact” if there is a pending proceeding to dissolve the marriage when the child is born. This seems to be an obvious conclusion and a sensible rule. Given that a husband and wife have the better part of nine months to consider the status of their marriage and to plan for a child’s birth, the fact that a dissolution of marriage proceeding is actually pending when the child is born seems an appropriate test for assessing the intactness of a marriage. If a dissolution is pending on the date of the child’s birth, the marriage is presumptively not “intact,” and the biological father ought to be able to contest the paternity of the child. What makes no sense to me is the notion that this objective fact — the absence of an intact marriage as evidenced by a divorce pending at the time of the child’s birth — can evaporate by the simple expedient of subsequently dismissing the dissolution of marriage proceeding after the child’s birth. Whatever the motive for dismissing the dissolution — whether a true reconciliation has occurred or whether- it is a ploy to thwart the biological father’s paternity claim — the fact remains that on the date of the child’s birth, the marriage was not intact. Yet, this is what happened in Lohman. To reach this result, the Loh-man court applied federal case law pertaining to the preclusive effect of judgments to reach the conclusion that the dismissal of the dissolution action made it as though the dissolution action never existed. But the dissolution of marriage action did exist at the time of the child’s birth; it is retained in the court records in the jurisdiction where it was filed; and it continues to be a fact even if, as a result of the dismissal, it has no legal effect on the parties’ marriage. Unfortunately, the trial court in Pena’s first paternity action was bound to follow Lohman, in the absence of contrary authority in this district. If Pena’s first paternity action had been appealed, and if I had been assigned to the panel, I would have voted to reverse the judgment. I would have rejected the reasoning in Lohman, and I would have voted to allow Pena to contest for paternity of K.D. because, as a matter of fact, the marriage between Diaz and Jaimes was not intact on the date of the child’s birth.


text:
    Thomas SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6036.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.

      Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Lauren L. Brudnicki, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Thomas Smith appeals his convictions for possession of more than 14 grams of methamphetamine under section 89S.135(f)l.a., Florida Statutes (2012), and possession of precursor chemicals used to manufacture methamphetamine under section 893.149(1), Florida Statutes (2012). He claims the trial court erred as a matter of law by denying his motion for judgment of acquittal, because the state’s evidence was insufficient to prove that he was in constructive possession of the contraband. We have reviewed the trial court’s ruling de novo, and reverse. See McDuffie v. State, 970 So.2d 312, 329 (Fla.2007).

Law enforcement executed a search warrant at a residence being leased by Kelly Jiminez. They seized a Gatorade bottle containing methamphetamine, materials and chemicals used to manufacture methamphetamine, and other items. Both appellant and Ms. Jiminez were at the residence, and the arresting officer testified that he believed the apartment was hers and that she was appellant’s girlfriend.

The state claimed that appellant had constructive possession of the illegal items, which required proof that he knew of their presence, and had dominion and the ability to maintain control over them. See Wade v. State, 558 So.2d 107, 107-08 (Fla. 1st DCA 1990). Knowledge may be established if the contraband was in plain view in the common areas. Dominion and control may be inferred if the defendant was a resident or owner of the premises in exclusive possession. If the evidence showed joint possession of the premises, or that the defendant was a visitor, the state must establish control over the contraband by independent proof beyond mere proximity, such as by evidence of incriminating statements or circumstances. Id. at 108. See generally Swidin v. State, 27 So.3d 675, 677 (Fla. 2d DCA 2009); Edmond v. State, 963 So.2d 344, 346 (Fla. 4th DCA 2007); Edison v. State, 956 So.2d 1275, 1276 (Fla. 2d DCA 2007); J.S.M. v. State, 944 So.2d 1143, 1144 (Fla. 2d DCA 2006). The state presented no evidence during its case in chief showing that appellant lived in the apartment or was anything other than a visitor.

In arguing against appellant’s motion for judgment of acquittal at the close of the state’s case, the prosecutor relied on three items of evidence to show that appellant lived in the residence and thus had control over the contraband. The items were: one size 11 or 11½ athletic shoe located on top of a bookcase in the southeast bedroom; a photograph that was found on the nightstand in the northeast bedroom depicting two men, one of whom was wearing a gas mask and holding a Gatorade bottle containing a white substance; and a gas mask found on a shelf in the same bookcase.

Even if the jury could have determined from appellant’s appearance in the courtroom that he was one of the men in the photograph, this did not establish that he lived in the residence. There is nothing unusual about Ms. Jiminez having a photo of her boyfriend on her nightstand. The fact that the man is holding a Gatorade bottle that might contain methamphetamine, because it looks like the smaller Gatorade bottle that was seized during the search, may have been incriminating regarding whether appellant had knowledge about the bottle found during the search, but it did not constitute evidence that he had control over the bottle found during the search, which the evidence showed was a different bottle. Likewise, the fact that appellant posed for a photograph wearing a gasmask like the one that was seized, does not show that he lived in the residence. There was no evidence introduced regarding when or where this photo was taken. Finally, the existence of a single shoe on the top shelf of the bookcase does not tend to show that appellant lived there.

On appeal, in addition to the three items of evidence discussed above, the state relies upon evidence that was introduced by the defense. On the contrary, such evidence cannot supply a missing element of constructive possession after the state has failed to make a prima facie case during its case in chief. See State v. Pennington, 534 So.2d 393 (Fla.1988).

Because the state failed to prove that appellant had dominion and control over the contraband, the trial court erred by-denying his motion for judgment of acquittal, and we reverse his convictions for counts I and II.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Melissa MATUCHA, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3185.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Nancy A. Daniels, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Consistent with the state’s concession of error, we conclude that the denial of the right to self representation based on a finding that the defendant is incapable of representing herself requires reversal. Kearse v. State, 858 So.2d 348, 349 (Fla. 1st DCA 2003). Accordingly, the judgment and sentence is reversed and this cause is remanded for further proceedings consistent with this opinion.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Rufus A. GELSEY, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-4122.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rufus A. Gelsey, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Treating appellant’s Motion to Classify Jurisdiction, filed on October 21, 2013, as a response to its show cause order of October 11, 2013, the Court has determined that the Order Denying Request to Remove Lien is not an independently reviewable order and that this appeal is duplica-tive of the certiorari proceedings in case number 1D13-3615. See Mobley v. McNeil, 989 So.2d 1215 (Fla. 1st DCA 2008). Accordingly, the appeal is dismissed.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Larry Alan DAILY, Appellant, v. Daniel Mark SOLOWAY, et al., Appellees.
    No. 1D13-4272.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Larry Alan Daily, pro se, Appellant.
    Phillip S. Howell, Autumn P. George, and Katie L. Franklin, of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Tampa, for Daniel Mark Soloway and The So-loway Law Firm, P.A., and J. Phillip Warren, of Taylor Warren & Weidner, P.A., Pensacola (no appearance), for Ap-pellees.
   PER CURIAM.

Appellant’s notice of appeal contains a certificate of service, as well as an institutional date stamp initialed by appellant, showing the notice was given to institution officials for mailing on September 2, 2013. For purposes of the “mailbox rule,” Florida Rule of Appellate Procedure 9.420(a)(2), the presumption is that the date stamp properly reflects the date on which the notice of appeal was turned over for mailing. Crews v. Malara, 2013 WL 5584090 at *2, 123 So.3d 144, 146 (Fla. 1st DCA Oct. 11, 2013). Because the filing date is over 30 days from the July 31, 2013, date of rendition of the order on appeal, the appeal is untimely and must be dismissed. See Fla. RApp. P. 9.110(b). However, to the extent that appellant’s attempt to timely appeal was hindered or stymied by prison officials, appellant may be entitled to relief. See generally David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 280 (Fla. 2d DCA 2008) (distinguishing line of cases providing relief when “a party’s ability to file a notice of appeal in a timely manner was stymied or hindered by action attributable to the trial court or the clerk” where the underlying rationale is “one of fundamental fairness”). Accordingly, this dismissal is without prejudice to appellant’s right to seek relief in the circuit court. Brigham v. State, 769 So.2d 1100 (Fla. 1st DCA 2000) (explaining avenues for obtaining belated appeal in criminal and civil cases); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983) (explaining that relief may be sought in the trial court). DISMISSED.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    John C. PERRYS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1357.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.

      John C. Perrys, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dismissed without prejudice to appellant’s right to file an appeal once a final, appealable order has been rendered on the motion for postconviction relief.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


author: ROTHENBERG, J.

text:
    J.X., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. 12-2144.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2013.

      Carlos J. Martinez, Public Defender, and Shannon Healy, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

J.X. appeals the denial of his motion to suppress statements he provided to the police after being properly advised of his Miranda, rights, which he freely and voluntarily waived. Because the trial court’s findings of fact come to us with a presumption of correctness, and because those findings are supported by the record, we affirm. See Cotton v. State, 901 So.2d 241, 245 (Fla. 3d DCA 2005) (holding that a trial court’s findings of fact must be accorded a presumption of correctness so long as they are supported by the record).

BACKGROUND

J.X.’s brother and another individual were arrested for committing two residential burglaries after being positively identified by an eyewitness. Two weeks after these arrests, Detective Henriquez summoned J.X., who was seventeen years old at the time, and J.X.’s mother to the police station on the suspicion that J.X. had been involved in the burglaries. After introducing himself to J.X. and J.X.’s mother, Detective Henriquez informed them that he wished to speak to J.X. because he believed J.X. was involved in the burglaries. Although the evidence is in dispute as to what occurred after J.X. and his mother were told why they had been summoned to the police station, the trial court found that J.X. unequivocally invoked his right to counsel by explicitly stating that he wanted a lawyer as soon as he realized he was being interrogated. Detective Henriquez then closed his case file and terminated the interview. As he was leaving the room, Detective Henriquez stated that he would go “deal with” J.X.’s brother instead. At this point, after being encouraged by his mother to cooperate, J.X. rein-itiated contact with Detective Henriquez by saying, “No, no, wait, don’t go, I’ll talk to you.” Detective Henriquez then fully advised J.X. of his Miranda rights by giving J.X. a form that contained a full recitation of those rights and by orally telling J.X. of those rights. After being advised of his rights, J.X. confessed to committing the burglaries and he was arrested.

J.X. moved to suppress his statements on competency grounds, arguing that he did not adequately understand the warnings provided to him, and thus he did not intelligently and voluntarily waive his rights as Miranda requires. After conducting an evidentiary hearing, the trial court rejected this assertion and found that J.X. was in fact competent. J.X. does not appeal the trial court’s findings as to his competency.

The trial court then made additional findings that J.X. had properly invoked his right to counsel by requesting an attorney, but had waived that right by reinitiating contact when Detective Henriquez began to leave the room. The State objected to these sua sponte findings, noting that J.X. had never argued that he had been denied his right to counsel at any point in the proceedings below. The sole issue raised by J.X. in this appeal relates to the trial court’s sua sponte findings; specifically, J.X. contends that his right to counsel was violated. J.X. argues that after he invoked his right to counsel, Detective Henriquez engaged in the functional equivalent of an interrogation by informing J.X. and J.X.’s mother that the interview was over and by indicating that he would continue his investigation of J.X.’s brother.

DISCUSSION

Generally speaking, when a suspect has requested assistance of counsel, that suspect is not subject to further interrogation until counsel has been provided. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). While direct questioning of a suspect is the clearest example of an interrogation, “the term ‘interrogation’ under Miranda refers ... also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Lebron, 979 So.2d 1093, 1094-95 (Fla. 3d DCA 2008). However, even if a suspect initially invokes his right to counsel, that right is effectively waived “if the individual is the one responsible for reinitiating contact with the police.” Sapp v. State, 690 So.2d 581, 584 (Fla.1997) (citing Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880). Thus, the issue is whether Detective Henriquez’s actions — terminating the interview, leaving the room, and indicating that he intended to continue his investigation of J.X.’s brother after J.X. asked for an attorney— were reasonably likely to elicit an incriminating response from J.X., and therefore constitute an interrogation.

Where a suspect, as here, reinitiates contact with law enforcement after he has invoked his right to counsel, and states that he now wishes to speak with the police without counsel, the analysis focuses on whether the suspect’s decision was made knowingly, voluntarily, and intelligently. State v. Hunt, 14 So.3d 1035, 1039 (Fla. 2d DCA 2009). In this case, the trial court found that when J.X. requested a lawyer, Detective Henriquez immediately terminated the interview, closed his case file, got up to leave, and mentioned that he was going back to discuss things with J.X.’s brother as he walked out. The trial court concluded that J.X. freely and voluntarily reinitiated his contact with Detective Henriquez, that J.X.’s decision to speak with Detective Henriquez was not due to any threat or coercion by the detective, and that the statements made by J.X. were made after he freely, voluntarily, and knowingly waived his Miranda rights, which were properly explained to J.X. in his mother’s presence and with her approval.

The State correctly notes that all arguments raised by J.X. in this appeal are based on certain findings made by the trial court, over the State’s objection, on grounds not raised below by J.X. in his motion to suppress. Thus, the State contends'.that the trial court’s sua sponte consideration of the issues raised by J.X. in this appeal was error. J.X. does not object to the trial court’s consideration of his right to counsel, the issue he failed to raise below. J.X. does, however, disagree with the trial court’s findings regarding this issue, arguing that Detective Henriquez’s actions constitute an impermissible interrogation after J.X. invoked his right to counsel.

First, we note that J.X. bears a heavy burden to demonstrate error, as the trial court’s factual findings are given great deference. See Connor v. State, 803 So.2d 598, 608 (Fla.2001) (holding that while mixed questions of law and fact are reviewed de novo, a trial court’s determination of historical facts must be accorded a presumption of correctness so long as they are supported by the record). Although the State contends the trial court erred by sua sponte raising and considering issues not raised by J.X. in his motion to suppress, we need not address this argument because in this case, even if the trial court erred, there is no prejudice to the State because the trial court’s findings favor the State.

As to the findings made by the trial court to which J.X. objects, the trial court specifically found that Detective Henri-quez’s actions were not made as a threat to J.X. or his brother, and that it was only after encouragement by his mother that J.X. reinitiated contact with Detective Henriquez. Indeed, the trial court found that as soon as J.X. invoked his right to counsel, Detective Henriquez immediately terminated the interrogation, as Miranda requires, and it was only after J.X. called him back into the room that Detective Henriquez interrogated J.X. any further. These findings are supported by the record, and thus the trial court’s finding that J.X. freely and voluntarily waived his Miranda rights after he invoked his right to counsel was not error.

Accordingly, we affirm the trial court’s denial of J.X.’s motion to suppress his statements based on: (1) J.X.’s competency to waive his Fifth and Sixth Amendment rights; and (2) the trial court’s finding that J.X. freely and voluntarily waived his Miranda rights after he initially invoked his right to counsel.

Affirmed.

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


author: FERNANDEZ, J. WELLS, Judge,

text:
    STATE of Florida, DHSMV OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Kenji BENNETT, Respondent.
    No. 3D12-3369.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2013.

      Stephen D. Hurm, General Counsel, DHSMV of Highway Safety and Motor Vehicles, and Jason Helfant, Assistant General Counsel, DHSMV of Highway Safety and Motor Vehicles, Lake Worth, for petitioner.
    Hal Schuhmacher, Mai'athon, for respondent.
    Before WELLS, SUAREZ and FERNANDEZ, JJ.
   FERNANDEZ, J.

The State of Florida, Department of Highway Safety and Motor Vehicles (“DHSMV”) petitions this Court for the issuance of a writ of certiorari, quashing a decision of the circuit court from the Sixteenth Judicial Circuit. Acting in its appellate capacity, the circuit court reversed the administrative suspension of Kenji Bennett’s driving privileges. We grant the DHSMV’s petition and quash the order under review.

On February 4, 2012, Deputy Abroe of the Monroe County Sheriffs Office observed Bennett driving without any tag lights. After Abroe stopped the vehicle, he observed that Bennett had: an odor of alcohol on his breath; bloodshot, watery and glassy eyes; a flushed face; and an open beer bottle in the vehicle. Bennett refused to perform the field sobriety exercises and refused to submit to a breath test. Abroe read the Implied Consent Warnings to Bennett.

Consequently, Bennett’s driving privileges were suspended for failure to submit to a breath test. Bennett requested an administrative formal review hearing and requested that the DHSMV issue a subpoena for Abroe. On March 8, 2012, Bennett submitted a proposed subpoena that required Abroe’s physical appearance before the hearing officer. The DHSMV stamped the subpoena with language that Abroe was “commanded to appear tele-phonically” prior to signing and returning the proposed subpoena to Bennett. Bennett did not approve of the added language and allegedly served Abroe with a separate subpoena duces tecum.

At Bennett’s administrative formal review held on April 26, 2012, Abroe did not appear. Bennett objected and sought to continue the hearing to seek enforcement of Abroe’s subpoena duces tecum. The hearing officer denied Bennett’s request because Bennett failed to provide proof of service for Abroe’s subpoena to appear telephonieally. Furthermore, Bennett did not provide proof of service for either the DHSMV’s approved subpoena or the subpoena duces tecum. The hearing officer sustained Bennett’s administrative suspension.

Bennett appealed the hearing officer’s decision to the circuit court by filing a complaint, which Bennétt later amended to a petition for writ of certiorari. The circuit court denied the initial petition. Bennett then filed a motion for rehearing, which the circuit court also denied. However, the circuit court ultimately granted Bennett’s second motion for rehearing and quashed the hearing officer’s decision. In response, the DHSMV filed a motion for rehearing. The circuit court denied the motion. The DHSMV now requests this Court issue a writ of certiorari and quash the circuit court’s order granting Bennett’s petition for a writ certiorari.

On second-tier certiorari, this Court’s standard of review is limited to deciding whether the trial court afforded the parties procedural due process, and whether it applied the correct law or departed from the essential requirements of the law. See Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011). Second-tier cer-tiorari review is reserved for cases “in which the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Id. (quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010)).

Here, the circuit court’s order conflicts with Florida Administrative Code provisions governing chapter 322, Florida Statutes (2013) and Department of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904 (Fla. 1st DCA 2011). First, Florida Administrative Code rules 15A-6.012(6) and (7) permit hearing officers to amend, strike, or quash subpoena requests. In accordance with the Code, section 322.2615(6)(b), Florida Statutes (2013), authorizes an administrative hearing officer to issue subpoenas for police officers and witnesses, and grants the hearing officer the power to otherwise regulate and conduct the hearing. Furthermore, section 322.2615(6)(c), Florida Statutes (2013), states that “[t]he failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension.” Given these powers, it is reasonably inferable that the Florida Statutes and the Florida Administrative Code also authorize hearing officers to amend a proposed subpoena. The statutes provide hearing officers with broad authority to conduct administrative hearings and issue subpoenas as they see fit. Given that Bennett did not provide any evidence that he served ■ Abroe with a subpoena, and even if he had, Abroe’s failure to appear does not automatically invalidate the hearing officer’s decision.

Second, the First District Court of Appeal made it clear that the live appearance of a witness in an administrative proceeding regarding a license suspension is not required. Edenfield, 58 So.3d at 907. Although Edenfield denied certiorari review because under the specific facts of that case there was no prior law that established a clear principle regarding a party’s right to request another’s live appearance at an administrative hearing, the First District stated that the circuit court in that case “misread our [prior] decision ... to require the live appearance of a witness in an administrative proceeding regarding a license suspension when a party requests [a] live appearance.” Id. Therefore, the Edenfield decision became a clearly established principle of law, which the circuit court in this case violated. To be clear, a party does not have a right to require an officer’s live appear-anee at an administrative hearing dealing with a license suspension. In such cases, the hearing officer may determine whether a telephonic appearance is adequate.

We find that the circuit court’s Order conflicts with the Florida Administrative Code Rules governing chapter 322 of the Florida Statutes and binding Florida case law. Thus, the circuit court departed from the essential requirements of law. We therefore grant the petition, issue the writ, and quash the decision of the circuit court. We further remand to the circuit court, appellate division, for proceedings consistent with this opinion.

SUAREZ, J., Concurs.

WELLS, Judge,

(dissents).

I would deny second-tier certiorari. See Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011) (stating that “a misapplication or an erroneous interpretation of the correct law does not rise to the level of a violation of a clearly established principle of law”); Housing Authority of City of Tampa v. Burton, 874 So.2d 6 (Fla. 2d DCA 2004) (“Unlike application of incorrect law, misapplication of correct law by a circuit court sitting in its appellate capacity generally does not constitute a violation of clearly established law resulting in a miscarriage of justice.”); Stilson v. Allstate Ins. Co., 692 So.2d 979 (Fla. 2d DCA 1997) (denying second-tier certiorari review because “at worst” the circuit court appellate division “misapplied the correct law”).


text:
    Mathew ROCCA, Petitioner, v. Victor RONES, etc., et al., Respondents.
    No. 3D13-2500.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2013.

      Wintter & Associates, P.A., and Christopher Q. Wintter and Max G. Soren, Hollywood, for petitioner.
    Shendell & Pollock, P.L., and Kenneth S. Pollock, Matthew A. Tornincasa,- and Dirán V. Seropian, Boca Raton, for respondent Victor Rones; David Howard Goldberg, P.L., and David Howard Goldberg, for respondents Irene Boyansky and Emile Martin.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

This petition for writ of certiorari comes to us after the trial court ordered the deposition of a non-testifying expert witness and also issued an order requiring the petitioner to show cause why he should not be sanctioned for instructing the same expert witness to refuse to answer deposition questions at a prior ordered deposition. We agree that the trial court’s rulings depart from essential requirements of law, and therefore grant certiorari and quash the relevant orders.

BACKGROUND

The underlying action involves a dispute regarding the proper ownership interests in funds derived from the sale of a business. Although the Plaintiff-Petitioner Mathew Rocca maintains an interest in the sold property based on a trust left to him by his father and grandfather, he has little personal knowledge as to the value of the business or the defendants’ actions allegedly depriving him of the money to which he is entitled. Rocca’s counsel, therefore, hired an accounting expert, Robert Stone, to review the record and the numbers, form an expert opinion regarding the amount of Rocca’s damages, and assist him in his preparation of the case. Stone was initially placed on Rocca’s list of testifying witnesses; however, when the defendants notified Rocca that they intended to depose Stone, he was removed from the witness list. '

Although Stone had been removed from the witness list and Rocca claimed that Stone possessed no material factual information that had not been provided to the defendants, and Rocca had subsequently amended his witness list by adding an accounting expert who will testify at trial, the defendants argued that they needed to depose Stone because they have no other way of calculating the potential damages. Apparently persuaded by the defendants’ arguments, the trial court issued an order requiring that Stone be deposed, but only as a non-expert fact witness. At Stone’s deposition, however, the defendants asked several questions that likely fall under the work product or accountant-client privilege, including the methods and calculations of the damages Stone had formulated based on the information provided by Roc-ca. Rocca’s attorney instructed Stone not to answer these questions, and the defendants ended the deposition. The defendants subsequently filed motions to compel Stone’s deposition testimony and requiring Rocca’s attorney to show cause why he should not be held in contempt for refusing to comply with the earlier order requiring Stone’s limited deposition. The trial court granted both of these motions. This petition for a writ of certiorari, along with a motion to stay the proceedings below, followed.

ANALYSIS

Florida Rule of Civil Procedure 1.280 provides that:

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Fla. R. Civ. P. 1.280(b)(5)(B) (emphasis added). The protection provided by rule 1.280(b)(5)(B) applies to experts initially disclosed as testifying witnesses that are later withdrawn as such. Forman v. Fink, 646 So.2d 236, 237 (Fla. 3d DCA 1994). When an expert has been specially employed in preparation of litigation but is not to be called as a witness at trial, the facts known or opinions held are deemed to be work product and may be discovered only by a showing of exceptional circumstances, as mandated by rule 1.280. Gilmor Trading Corp. v. Lind Elec., Inc., 555 So.2d 1258, 1259 (Fla. 3d DCA 1989).

Stone is precisely the type of expert protected by rule 1.280. He was hired to examine the data and provide his expert opinion based only on the information that Rocca provided him. Stone seemingly has no personal knowledge of the underlying facts of the case other than those provided to him by Rocca or Rocca’s attorney, and Stone has been withdrawn as a testifying witness. Based on these facts, Stone cannot properly be classified as a fact witness, and may only be deposed upon a showing of exceptional circumstances in which the defendants are unable to obtain similar information by different means. The defendants have not made such a showing. The defendants have hired their own expert witness and have been given access to Rocca’s designated trial expert accountant.

Should the trial court determine that Stone has pertinent factual information unrelated to what has been disclosed to him by Rocca or his attorneys or otherwise protected by privilege, or that exceptional circumstances apply because the defendants are unable to acquire relevant information by any other means, it can certainly order Stone’s deposition for those limited purposes within the mandates of rule 1.280(b)(5)(B). Without such a showing, however, the orders requiring Stone’s deposition and requiring Rocca to show cause why he should not be held in contempt of court depart from the essential requirements of law.

Certiorari granted; orders quashed.


text:
    Anthony GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-340.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2013.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   ROTHENBERG, J.

The defendant, Anthony Gonzalez, appeals his conviction and sentence for strong arm robbery under section 812.13(2)(c), Florida Statutes (2011), which was reclassified from a second degree felony to a first degree felony under section 775.087(1)(b), Florida Statutes (2011). We affirm.

The defendant was charged with strong arm robbery under section 812.13(2)(c), a second degree felony. However, pursuant to section 775.087(1), the State sought to reclassify the robbery from a second degree felony to a first degree felony, alleging that in the course of committing the robbery, the defendant committed an aggravated battery upon the victim by dragging her while she was hanging from a vehicle, and in the course of committing the robbery, the defendant used a deadly weapon, a motor vehicle.

In addition to finding the defendant guilty of robbery, the jury also found that the defendant committed an aggravated battery with a deadly weapon in the course of committing the robbery. Based on the jury’s findings, the trial court reclassified the strong arm robbery from a second degree felony to a first degree felony under section 775.087(l)(b). The defendant’s appeal ensued.

The defendant contends that the trial court erred by reclassifying the robbery conviction from a second degree felony to a first degree felony where the robbery statute only allows a weapon enhancement if a weapon is “carried.” In support, the defendant relies on State v. Burris, 875 So.2d 408 (Fla.2004), wherein the Florida Supreme Court held that an automobile cannot be “carried” as a deadly weapon under section 812.1S(2)(a) of the robbery statute so as to allow the robbery conviction to be enhanced to a first degree felony. Burris, 875 So.2d at 415. However, unlike the defendant in Burris, in the instant case, the defendant’s robbery conviction was not enhanced under subsection (2)(a), the weapon enhancement provision provided in section 812.13. Rather, the defendant’s robbery conviction was enhanced under section 775.087(1) which provides for the enhancement of certain felonies, including robbery, when the defendant commits an aggravated battery during the commission of the felony. In this case, it was alleged, and the jury found, that during the commission of the robbery, the defendant committed an aggravated battery with the use of a deadly weapon — the automobile.

In Burris, although the Florida Supreme Court concluded that a robbery cannot be enhanced under section 812.13(2)(a), the weapon enhancement provision contained in the robbery statute, based on the use of an automobile, in dictum, the Florida Supreme Court stated:

[T]he State has other statutory alternatives under which it could charge an offender who uses an automobile or other nonportable weapon during a robbery and injures a victim or bystander. For example, the State could charge such an offender with one count of robbery under section 812.13(2)(c) (enhanced by section 775.087(1))....

Although the dictum in Burris is merely persuasive, see Milligan v. State, 177 So.2d 75, 76 (Fla. 2d DCA 1965) (holding that dictum in a Florida Supreme Court decision, in the absence of a contrary decision by that court, is persuasive authority for Florida appellate courts), we nonetheless conclude that section 775.087(1) can be utilized to reclassify a strong arm robbery from a second degree felony to a first degree felony under the facts of this case and the jury’s finding that the defendant committed an aggravated battery during the commission of the robbery.

As the remaining issues raised by the defendant do not merit discussion, we affirm his conviction and reclassified sentence for strong arm robbery.

Affirmed.

      . Section 812.13(2)(c) provides in relevant part: "If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree .... ”

      . Section 775.087(1) provides in relevant part:
      (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

      (b) In the case of a felony of the second degree, to a felony of the first degree.
      (emphasis added).

      . Section 812,13(2)(a) provides: "If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree ...."

      . To prove the crime of aggravated battery relevant to this case, the State was required to prove that the defendant intentionally touched or struck the victim against her will or he intentionally caused bodily harm to the victim, and while committing the battery, used a deadly weapon. A weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. § 784.045, Fla. Stat. (2011).


text:
    Walter CINTRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-90.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

We agree with the State of Florida that appellant Walter Cintron is entitled to a new restitution hearing because over defense counsel’s objection, the trial court relied exclusively on hearsay when it imposed restitution. See J.L. v. State, 684 So.2d 883, 884 (Fla. 3d DCA 1996) (holding that the State cannot rely on hearsay testimony when the defense properly objects to its introduction, when proving the amount of loss attributable to stolen property). Accordingly, we remand to the trial court for a new evidentiary hearing on restitution. We affirm in all other respects.

Reversed and remanded.


text:
    Sharyon SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5200.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and MAKAR, JJ., concur.


text:
    Julio R. GUILLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5084.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2013.
    Julio R. Guillen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

ROBERTS, WETHERELL, and MAKAR, JJ., concur.


text:
    James SOLOMON, Petitioner, v. STATE of Florida, Florida Department of Corrections, Respondent.
    No. 1D13-5078.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2013.
    James Solomon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and MAKAR, JJ., concur.


text:
    David Lee MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5027.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2013.
    David Lee Moore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and MAKAR, JJ., concur.