author: LEVINE, J.

text:
    Robert HOSNEDL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-983.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant raises the following issue for our consideration: whether the trial court erred in denying appellant’s requested jury instructions on the justifiable use of non-deadly force and in defense of property, where there was evidence that appellant’s firearm discharged accidentally. We find that the trial court did not err in declining to give the requested jury instructions, since the discharge of the firearm is a use of deadly force as a matter of law.

During trial, the state presented testimony that Darren Williams brought a bottle of liquor, which in fact belonged to his sister, Danielle Williams, to a Christmas party at appellant’s home. Danielle and her brother had been lifelong friends with appellant. When Danielle found out, she became upset. She went to appellant’s home in order to retrieve the bottle. When Danielle rang the doorbell, she asked to speak to appellant. Appellant eventually came outside but refused to give Danielle her bottle back.

After refusing Danielle’s request again, appellant pulled up his shirt, pulled out a gun, and pointed it at Danielle. She tried to walk around appellant but appellant pushed her against a wall, and then she heard a “pop.” Danielle realized she had been shot in her arm. At the scene, appellant told deputies that he “didn’t mean to shoot her. It was an accident.”

At trial, a detective testified that Danielle believed the shooting was accidental. The detective said that Danielle “indicated that ... they were friends, so she didn’t believe there would be any reason why a friend would shoot a friend.” Finally, Danielle told the detective that she believed it was an accident.

A firearms and tool mark examiner testified that four-and-three-quarters pounds of pressure was required to fire the gun.

Defense witnesses Danika Sanz and Ryan Serpa testified to seeing Danielle at the door of the .appellant’s home screaming and cursing at appellant, Danielle threw things after entering the house. Appellant repeatedly told Danielle to leave and threatened to call the police if she would not leave his home. Danielle and appellant went outside the house, and she continued to scream and curse at appellant. Danika and Ryan heard a “pop” or a “firecracker,” and appellant said to call 911 because he had accidentally shot Danielle. Danika and Ryan heard Danielle tell the police and paramedics that the shooting was an accident.

Appellant testified at trial that Danielle called him on the telephone asking for her bottle back or money. Danielle also threatened to kill appellant and said that she was going to bring men with her to “mess [him] up.” Danielle showed up at his door about thirty or forty minutes later. Danielle was banging at his front door, screaming, and very angry. According to appellant, Danielle threatened to stab him.'

Appellant claimed to see something sharp in Danielle’s hand, which prompted appellant to draw his gun, which he had brought for his safety and the safety of his family. Although appellant was armed, he claimed he had no intention of using the firearm. Appellant also stated that he subsequently found out that the sharp object in Danielle’s hand was, in fact, a car key.

Appellant testified that Danielle entered his house and started throwing things. Appellant tried to get Danielle off his property, and a shoving match ensued during which appellant’s gun went off. Appellant claimed that he was trying to push Danielle and close his gate at the same time. Appellant had the gun in one hand, and he was using both hands to get Danielle off his property when the gun discharged.

At the jury trial, the trial court agreed to give the jury instruction on deadly force and ruled that the instruction on non-deadly force was not applicable. The trial court concluded that the discharge of a firearm constituted deadly force as a matter of law. Appellant was found guilty as charged of aggravated assault with a firearm and culpable negligence. This appeal ensues.

We review the “trial court’s withholding of a requested jury instruction under an abuse of discretion standard.” Larsen v. State, 82 So.3d 971, 974 (Fla. 4th DCA 2011). “Failure to give a standard jury instruction is reversible error when the omitted standard jury instruction goes to the heart of the defendant’s case.” Arboleda v. State, 645 So.2d 48, 50 (Fla. 3d DCA 1994).

In the present case, the trial court instructed the jury on justifiable use of deadly force, and declined to instruct the jury on justifiable use of non-deadly force, including defense of property. The requested standard instruction on non-deadly force states:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the ... [injury to] (victim) resulted from the justifiable use of non-deadly force.
(Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved:
1.(Defendant) must have reasonably believed that such conduct was necessary to defend [himself] ... against (victim’s) imminent use of unlawful force against the [defendant]....
2.The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.

Fla. Std. Jury Instr. (Crim.) 3.6(g).

The requested standard jury instruction on defense of property states:

(Defendant) would be justified in using non-deadly force against (victim) if the following three facts are proved:
1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property.
2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] ... immediate family or household, or in the possession of some person whose property [he] ... was under a legal duty to protect.
3. (Defendant) must have reasonably believed that [his] ... use of force was necessary to prevent or terminate (victim’s) wrongful behavior.

Id.

Non-deadly force may be used when, and to the extent, that a person reasonably believes that the use of non-deadly force is necessary to defend oneself against the imminent use of unlawful force. Michel v. State, 989 So.2d 679, 681 (Fla. 4th DCA 2008). “When determining whether the force used is deadly or non-deadly, ‘[t]he proper focus is on the nature of the force used by the defendant and not the end result.’ ” Larsen, 82 So.3d at 974 (citation omitted). “If the type of force used is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. Otherwise the question of whether the force used by a defendant was ‘deadly’ or ‘non-deadly’ should be submitted to the jury.” Carter v. State, 115 So.3d 1031, 1036 (Fla. 4th DCA 2013) (citation omitted); see also Larsen, 82 So.3d at 974; Garramone v. State, 636 So.2d 869, 871 (Fla. 4th DCA 1994).

The discharge of a firearm has been held to be the use of deadly force as a matter of law. Carter, 115 So.3d at 1037; Miller v. State, 613 So.2d 530, 531 (Fla. 3d DCA 1993). In Miller, the court found that “Hiring a firearm in the air,” even as a warning shot, constituted as a matter of law the use of deadly force by the defendant. 613 So.2d at 531. Thus, the trial court did not commit reversible error by not giving the instruction of the use of non-deadly force. Id.

In the present case, unlike in Miller, there was some evidence that supported appellant’s contention that the firearm discharged accidentally. The victim’s statements at the scene, as well as the testimony of witnesses, supported appellant’s contention that the firearm was not discharged on purpose, but rather discharged accidentally. Thus, we have to determine if the accidental discharge of a firearm is the use of deadly force as a matter of law, like when the firearm is volitionally discharged, such as when firing a warning shot.

In Howard v. State, 698 So.2d 923 (Fla. 4th DCA 1997), our court found the trial court erred in failing to give an instruction on the justifiable use of non-deadly force, where the defendant was accused of stabbing her husband with a knife. In Howard, the trial court gave the instruction on the justifiable use of deadly force, but refused to give the instruction on the use of non-deadly force. We held this was error:

Appellant’s defense ... was battered women’s syndrome. She claimed that her husband fell into her knife while lunging at her rather than that she thrust it at him. The question of whether appellant’s act of waving two knives in front of her to shield her face from her husband’s assault constituted deadly or non-deadly force should have been a question for the jury under the proper instruction from the court.

Id. at 925.

Clearly, the critical difference between Howard and the present case is that the defendant used a firearm instead of a knife. Although a knife is a weapon, it is not necessarily a deadly weapon. Id. In contrast, a firearm is a deadly weapon, and firing a firearm constitutes deadly force:

Firing a firearm in the air, even as a so-called “warning shot,” constitutes as a matter of law the use of deadly force, that is, the use of a force likely to cause death or great bodily harm-and is not, as urged, the use of force not likely to cause death or great bodily harm. A firearm is, by definition, a deadly weapon which fires projectiles likely to cause death or great bodily harm; whenever it is fired in the vicinity of human beings, as here, there is real danger that the fired projectile may hit someone, even if not aimed at anyone, as such projectiles are quite capable of ricocheting off nearby objects and hitting people in the area. Consequently, no reversible error is presented in the refusal to give a jury instruction on the justifiable use of non-deadly force.

Miller, 613 So.2d at 531 (emphasis added and deleted).

Other state courts have considered this issue in differing contexts. The New Jersey Supreme Court determined that once a firearm is discharged, regardless of whether it was accidental or not, the defendant is not entitled to a jury instruction on use of non-deadly force:

Like many other jurisdictions, we are also persuaded that a critical difference exists between brandishing a gun and actually discharging it. Although brandishing a weapon does not constitute deadly force when its purpose is to threaten the use of deadly force if necessary, once the weapon is discharged, deadly force has been used. The discharge, however, does not mean that a claim of accidental discharge is unavailable. That remains a viable defense. What it does mean is that a defendant is not entitled to a jury instruction on the use of non-deadly force in self-defense, because as a matter of law, deadly force has been used.

State v. Moore, 158 N.J. 292, 729 A.2d 1021, 1029 (1999), abrogated on other grounds by State v. Rodriguez, 195 N.J. 165, 949 A.2d 197 (2008). See also Commonwealth v. Dyer, 460 Mass. 728, 955 N.E.2d 271, 291 (2011) (holding that defendant used deadly force by causing victim’s death by gunshot; defendant’s argument that gunshot was accidental “does not put the use of nondeadly force in self-defense into play as a justification for the killing, but simply raises a defense of accident”); State v. Lucero, 147 N.M. 747, 228 P.3d 1167 (2010) (holding that defendant was not entitled to a jury instruction on non-deadly force where defendant unintentionally used deadly force resulting in death).

Here, appellant did discharge a firearm in the vicinity of other people. The fact that in Miller the discharge was purposeful and in the present case the discharge was accidental does not make the force any less “deadly.” It is the discharge of the firearm that makes it deadly force as a matter of law. “[Ojnly the discharge of a firearm has been held to be deadly force as a matter of law.” Howard, 698 So.2d at 925. Further, although there is record evidence that the discharge was accidental, appellant also testified that he drew his firearm, and thus introduced the potential use of deadly force to this escalating situation. Appellant cannot reasonably claim that the trial court erred in not giving the jury instruction on the use of non-deadly force, once appellant drew the firearm and subsequently the firearm discharged, hitting the victim.

In his second issue on appeal, appellant argues, and the state concedes, that remand is required because the trial court orally pronounced that the sentences were to run concurrently, but the written judgment and sentence does not reflect this. We remand for the trial court to correct this scrivener’s error.

For all the above reasons, we affirm and remand for correction of the scrivener’s error.

TAYLOR and KLINGENSMITH, JJ., concur.


source: Caselaw Access Project

author: DAVIS, Chief Judge.

license: Public Domain

text:
    Michael ZABOROWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3001.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2013.

      Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Chief Judge.

On the court’s own motion, the opinion dated June 19, 2013, is withdrawn and the attached opinion is substituted therefor. The motion for rehearing en banc is denied. No further postopinion motions will be entertained.

Michael Zaborowski challenges the revocation of his probation and his subsequent twenty-eight-month prison sentence. Because his original probationary period expired prior to the filing of the violation of probation allegations that were the basis for the instant revocation and sentence, we reverse. We additionally certify two questions to the Florida Supreme Court to be of great public importance. See Fla. R. App. P. 9.030(a)(2)(A)(v).

Zaborowski’s original plea to one count of grand theft took place in 1992. He was placed on five years’ probation — a term set to expire in 1997. But on January 31, 1994, he was alleged to have violated two conditions of his probation. Both an affidavit of violation and an arrest warrant were filed, but Zaborowski was not taken into custody because he was living outside the jurisdiction of the State. The pending violation of probation (VOP) allegations remained unresolved until 2011, when Zabo-rowski admitted to two of the originally alleged violations and was ordered to complete the “remaining” forty-six months of his original probationary term. This was done through the use of a “snap-out” sentencing memorandum; no formally rendered sentence or order of probation was entered. Zaborowski did not appeal the 2011 probationary sentence, and in 2012 it again was alleged that he violated the terms of this probation.

At the VOP hearing, Zaborowski argued that his original probationary period was not tolled by the filing of the 1994 affidavit of violation because the version of section 948.06 in effect at that time did not include language tolling the term of probation during the pendency of a VOP proceeding. See § 948.06(1), Fla. Stat. (1993). He maintained that the original probation therefore expired prior to the 2011 “snap-out” memorandum ordering him to complete the “remaining” forty-six months of probation. Zaborowski asserted that because the 2012 VOP allegations were based on a probationary term that ended in 1997, the trial court had no jurisdiction to entertain the instant VOP allegations. The trial court, however, rejected this argument, and Zaborowski subsequently entered an admission to the alleged VOP. The trial court sentenced him to twenty-eight months in prison. On appeal, Zaborowski argues that his probationary period expired in 1997 and that therefore the trial court lacked jurisdiction to find him in violation in 2012.

The State, however, contends that in addressing any subsequent VOP proceedings the trial court is not bound by the lack of tolling language in the version of the probationary statutes, specifically section 948.06(1), in effect in 1992 when Za-borowski was originally sentenced to probation and that section 948.06(1) was modified to include a tolling provision after he was sentenced. This is a true statement, but it does not address the argument raised by Zaborowski, and the State does not otherwise deal with the applicability of the 1993 version of the statute that was in effect when the first affidavit of violation was filed in 1994.

The State also relies on Shenfeld v. State, 44 So.3d 96 (Fla.2010), to assert that amendments to section 948.06(1) are procedural in nature and can be applied retroactively. In that case, Shenfeld’s original probation began under a version of section 948.06(1) that contained the tolling language added in 2001. Id. at 98. Before his probation expired, Shenfeld was alleged to have violated his probation. This alleged violation occurred after the June 2007 effective date of a procedural amendment to the tolling portion of the statute which dealt with whether a warrant was required at the time of the filing of the affidavit of violation in order to toll probation. Id. Under the 2007 version of section 948.06(1), the affidavit of violation and Shenfeld’s arrest were sufficient to toll his probation, but Shenfeld argued that it would be an ex post facto violation to apply anything but the 2001 version of the statute in effect at the time his probation commenced. Because the 2001 version of the statute also required the filing of an arrest warrant, Shenfeld’s probation would not have been tolled and would have expired prior to the finding that he violated his probation. Id. at 99. The Florida Supreme Court concluded that applying the 2007 version of the statute — the version in effect when the affidavit of violation of probation was filed — was not an ex post facto violation. Id. at 102.

Here, the 1993 version of section 948.06, which was in effect at the time Zaborowski was alleged to have violated his probation, contained no tolling language. Absent any tolling, his probation expired before the 2001 tolling amendment took effect. There is nothing in the holding of Shenfeld to indicate whether an amendment to the statute that occurred both after the affidavit of violation and after the untolled expiration of the probationary period could be applied retroactively simply because the original VOP proceeding was unresolved prior to the amendment.

Shenfeld does discuss four categories of ex post facto laws, the third of which is “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Id. at 100 (quoting Stogner v. California, 539 U.S. 607, 612, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003)). This category appears to support Zaborowski’s ex post facto claim if the term “the crime” is considered to be the violation of the conditions of his probation. Because no tolling language existed in the statute at the time of Zaborowski’s probation violations in 1994, the trial court could not apply any version of section 948.06 that contained tolling language to his VOP proceedings because no such version existed until after the 1997 expiration of his untolled probation. As such the trial court lacked jurisdiction in 2012 to violate the previously expired probationary term. We therefore must reverse the order of violation and remand for the trial court to vacate Zaborowski’s resulting sentence.

We acknowledge that such a holding provides a windfall to a small number of probationers who violated their probationary conditions prior to the enactment of the tolling language but left the jurisdiction without providing proper notice to the probationary authorities and then lived freely and without repercussion until such time as their probations expired. But we have found no cases to suggest that we can read the earlier version of the statute to contain an implicit tolling of probation upon the filing of an affidavit of violation where the probationer may have absconded from the jurisdiction but is not formally alleged to have absconded on any date or period of time that began within the duration of the untolled probationary period. However, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify the following questions of great public importance:

DO AMENDMENTS TO SECTION 948.06(1), FLORIDA STATUTES, REGARDING TOLLING RETROACTIVELY APPLY TO A PROBATIONER WHERE THE STATUTORY TOLLING LANGUAGE DID NOT EXIST AT THE TIME OF THE FILING OF THE INITIAL AFFIDAVIT OF VIOLATION OF PROBATION AND WHERE THE UNTOLLED PROBATIONARY PERIOD ENDED PRIOR TO THE ENACTMENT OF THE SUBSEQUENT TOLLING AMENDMENTS?
PRIOR TO THE ENACTMENT OF THE EXPRESS TOLLING LANGUAGE OF SECTION 948.06(1), FLORIDA STATUTES, IN 2001, COULD THE FILING OF AN AFFIDAVIT OF VIOLATION COUPLED WITH THE FILING OF AN ARREST WARRANT IMPLICITLY ACT TO TOLL THE EXPIRATION OF THE PROBATIONARY PERIOD WHERE THE PROBATIONER MAY HAVE ABSCONDED FROM THE JURISDICTION OF HIS PROBATION BUT NO AFFIDAVIT OF VIOLATION WAS FILED ALLEGING THE PROBATIONER’S ABSCONDING OCCURRED WITHIN THE PERIOD OF THE ORIGINAL UNTOLLED PROBATION?

Reversed and remanded; questions certified.

NORTHCUTT and MORRIS, JJ., Concur.

      . There is no indication that Zaborowski was considered to be an absconder at the time of the alleged violations in 1994 or during any period during his untolled probationary term. He appears to have transferred his probation to Virginia and none of the allegations set forth in the original affidavit of violation are for absconding from the Florida jurisdiction or for changing his residence without approval. Furthermore, no amended affidavits of violation of probation that might relate back to the original affidavit allege that he absconded or changed his residence without approval during any period before his original probation expired. The only allegation of absconding is not alleged to have occurred until February 10, 2009, long after his untolled probationary period would have expired.

      . This court repeatedly has expressed concern over the use of snap-out sentencing memoran-da based on the mischief that they can cause. See Sutton v. State, 838 So.2d 616, 617 n. 1 (Fla. 2d DCA 2003); Heath v. State, 840 So.2d 307, 308 (Fla. 2d DCA 2003); Richardson v. State, 761 So.2d 1232, 1233 (Fla. 2d DCA 2000); Peterson v. State, 730 So.2d 830, 831 (Fla. 2d DCA 1999); Grantham v. State, 735 So.2d 525, 526 (Fla. 2d DCA 1999).

      . It does appear that Zaborowski attempted to obtain reconsideration of the matter through the trial court. Whether such reconsideration would have tolled his time for filing an appeal from the 2011 snap-out memo is not clear from the record and is not an issue before this court.

      .A court’s lack of jurisdiction due to the expiration of probation is a fundamental error that can be raised at any time. Cf. Solomon v. State, 341 So.2d 537, 538 (Fla. 2d DCA 1977) (”[T]he order which placed appellant on probation was void for lack of jurisdiction, and this is fundamental error even if not raised at the trial court.... Since the change in the sentence which placed appellant on probation was void, it follows that the probation revocation and its corresponding sentence of five years imprisonment was also void. In turn, this makes the plea bargain entered at the probation revocation hearing a nullity.” (footnotes omitted)).


author: PER CURIAM.

text:
    Travis B. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1049.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.
    Travis B. Jackson, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals from the circuit court’s order summarily denying in part his original Florida Rule of Criminal Procedure 3.850 motion. We remand for the circuit court to rule on the defendant’s amended rule 3.850 motion, which the defendant filed before the court ruled on the defendant’s original rule 3.850 motion.

On December 30, 2011, this court issued its mandate upon affirmance of the defendant’s direct appeal, Jackson v. State, 75 So.3d 744 (Fla. 4th DCA 2011) (Table).

On February 17, 2012, the defendant filed his original rule 3.850 motion. The original motion was timely filed based upon the grounds which the defendant raised. See Fla. R.Crim. P. 3.850(b) (2011).

On January 29, 2013, nearly one year after the defendant filed his original rule 3.850 motion, the defendant filed his amended rule 3.850 motion. The amended motion also was timely filed based upon the grounds which the defendant raised. See Fla. R.Crim. P. 3.850(b) (2011).

On February 7, 2013, just nine days after the defendant filed his amended rule 3.850 motion, the circuit court ruled on the defendant’s original rule 3.850 motion.

On appeal, the defendant argues that the circuit court erred in ruling on his original rule 3.850 motion rather than ruling on his amended rule 3.850 motion.

We agree with the defendant. We presume that the circuit court may have been unaware of the filing of the defendant’s amended rule 3.850 motion at the time it ruled on the defendant’s original rule 3.850 motion. Nevertheless, under the law in effect when the defendant filed the amended motion, “[a] rule 3.850 movant [had] the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court [had] not yet ruled on the merits of the motion.” Samuels v. State, 973 So.2d 662, 662 (Fla. 4th DCA 2008) (citation omitted).

Based on the foregoing, we remand for the circuit court to: (1) vacate its February 7, 2013 order on the defendant’s original rule 3.850 motion; and (2) rule on the defendant’s amended rule 3.850 motion.

Remanded for proceedings consistent with this opinion.

CIKLIN, GERBER and CONNER, JJ., concur.

      . This law in effect when the defendant filed the amended motion has been overruled by rule amendments which became effective on July 1, 2013. in re Amendments to Fla. R.Crim. P. & Fla. R.App. P., 112 So.3d 1234 (Fla.2013). Under the amended rule 3.850(e), "Leave of court is required for the filing of an amendment after the entry of an order pursuant to subdivision (0(5) or (0(6).”


author: KHOUZAM, Judge.

text:
    CLEARWATER HOUSING AUTHORITY, a Public Body Corporate and Politic, Appellant, v. FUTURE CAPITAL HOLDING CORPORATION, a Georgia Corporation; Jim Etter Parker A.I.A., Inc., d/b/a Parker Associates; Jim Parker, AIA, an Individual; Snowden Engineering, Inc., a foreign Corporation; Mervin Showden, an Individual; Kevin Snowden, an Individual; GM Tile & Roofing of Florida, Inc., a Florida Corporation; GM Tile & Roofing, Inc., a Florida Corporation; GM Tile & Roofing of Tampa, Inc., a Florida Corporation; R.S. Thomason Building Corporation, a foreign Corporation; The Morganti Group, Inc., a Florida Corporation; Dapau Enterprises, Inc., a Florida Corporation; Farris Flooring, Inc., a Florida Corporation; Florida Design Consultants, Inc., a Florida Corporation; Terra Excavating, Inc., a Florida Corporation; Allens Steel Products, Inc., a Tennessee Corporation; Blueline Mechanical, Inc., a Florida Corporation; and General Aluminum Corporation, a Texas Corporation, Appellees.
    No. 2D12-5515.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.

      Amy S. Farrior and Raymond T. Elli-gett, Jr. of Buell & Elligett, P.A., Tampa, and David Ferrentino and Kevin Dees of Allen Dell, P.A., Tampa, for Appellant.
    Barbara J. Taggart of Peterson Bernard, West Palm Beach for Appellee Future Capital Holding Corporation, a Georgia Corporation.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

In 1998, numerous entities, including Future Capital Holding Corporation, were hired to construct Mainstreet Apartments in Clearwater. Clearwater Housing Authority later purchased the property. The certificate of occupancy was issued and Clearwater Housing took possession of the property in 2000, but the final plat was not submitted by the engineers on the project — Florida Design Consultants — until 2003. In 2009, Clearwater Housing filed suit for negligence and construction defects, naming Future Capital as a defendant in 2011. The circuit court granted summary judgment in favor of Future Capital, determining that the ten-year statute of repose found in section 95.11(3)(c), Florida Statutes (2011), barred Clearwater Housing’s suit. Because a genuine issue of material fact remains, we reverse and remand.

At the outset, we note that “in Florida, limitations defenses are not favored. Accordingly, when there is a reasonable doubt as to legislative intent, the preference is to allow the longer period of time.” Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007). This case hinges on the interpretation of section 95.11, which provides in relevant part:

Actions other than for recovery of real property shall be commenced as follows:
(3) Within four years.—
(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

(emphasis added). Under the fourth prong of the repose provision of the statute, the repose period commences on the latest date that any of the listed entities— the professional engineer, registered architect, or licensed contractor — completed or terminated their contract. See Allan & Conrad, 961 So.2d at 1087; Downs v. U.S., No. 06-20861-CIV, 2011 WL 688739, at *4 (S.D.Fla. Feb. 18, 2011).

Future Capital argued, and the trial court agreed, that the ten-year time period for Clearwater Housing to file suit had run because the certificate of occupancy for the project was issued and the owner took possession in 2000 but the suit was not filed against Future Capital until 2011. Though the final plat was submitted by Florida Design in 2003, Future Capital claimed that that submission could not be the event that triggered the statute of repose because it did not constitute the “design, planning, or construction of an improvement to real property.”

Clearwater Housing, on the other hand, argued that Florida Design did not complete the contract with its employer, the original owner, until it submitted the final plat in 2003. Thus, Clearwater Housing had until 2013 to file suit. According to Clearwater Housing, the issue is not whether the 2003 final plat constitutes an improvement to real property — while a cause of action must be founded on the design, planning, or construction of an improvement to real property for section 95.11(3)(c) to apply, nothing in that section requires the event that triggers the statute of repose also be an improvement to real property. We agree that, based on the plain language of the statute, the issue in this case is not whether the 2003 final plat was an improvement to real property but whether it was completed under Clear-water Housing’s contract with Florida Design.

The affidavits submitted by the parties raise a genuine issue of material fact as to when the contract was completed. Robert Wright, Jr., a surveyor for Florida Design, stated in his affidavit that the design and planning functions related to the project were completed before Clearwater Housing took possession of the property in 2000. He differentiated this work from the surveying work that was done to prepare the plat in 2003. According to Wright, the City of Clearwater demanded the plat of the Mainstreet Apartments Property in 2003 because the original owner of the entire tract wanted to change its plan for an adjacent property. Edward Mazur, Jr., President and Executive Officer of Florida Design, stated in his affidavit that Florida Design had completed work on the project by 2000. In his deposition, he suggested that Florida Design had submitted the final plat in 2003 under contract with the original owner — not the contract with Clearwater Housing. On the other hand, Keith Litzell, P.E., stated in his affidavit that Mazur’s statements were untrue and that Florida Design was performing work on the project at least as late as 2003. Jacqueline Rivera, Chief Executive Officer of Clearwater Housing, also stated in her affidavit that the 2003 final plat was part of Florida Design’s continuing and required work on the project for the developer of the Mainstreet Apartments Property. She signed the plat to allow Florida Design to finalize its work because by 2003 Clearwater Housing was the owner of the property.

These affidavits show that a genuine issue of material fact remains in this case. Summary judgment is improper if the record reflects even the slightest doubt that a genuine issue of material fact might exist. Baldwin v. Nature’s Hideaway, Phase I-B Homeowners Ass’n, Inc., 613 So.2d 1376, 1378 (Fla. 2d DCA 1993). Accordingly, we must reverse and remand for further proceedings.

Reversed and remanded.

KELLY and SLEET, JJ., Concur.


author: VILLANTI, Judge.

text:
    Anthony Jack WILSON, Appellant, v. Annette SMITH, Appellee.
    No. 2D11-3248.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.

      Anthony Jack Wilson, pro se.
    No appearance for Appellee.
   VILLANTI, Judge.

Anthony Jack Wilson seeks review of the circuit court’s order that denied his exceptions to the magistrate’s report and recommendations and adopted the recommended order granting the petition for name change of his minor daughter. Because the circuit court erred when it adopted the magistrate’s report and recommendations, we reverse and remand for further proceedings.

In June 2007, Annette Smith filed a petition to change the name of her then four-year-old daughter from Z.A.W. to M.A.S. Wilson, the child’s father, objected to the petition and specifically asserted in his answer that changing the child’s name was not in her best interests. Wilson, who was in prison at the time, also filed a motion to appear by telephone at the hearing on the petition. The circuit court referred the matter to a general magistrate.

On January 7, 2008, Smith appeared before the magistrate, but Wilson did not. The magistrate noted that Wilson’s motion to appear telephonically had not been ruled upon. Therefore, the magistrate recommended that the case be reset after the motion had been addressed. The circuit court approved the magistrate’s recommended order, and a new hearing date was set for February 19, 2008.

At the February 19 hearing, Wilson appeared by phone. At the start of the hearing, the magistrate asked Wilson, “[W]hy are you objecting to Ms. Smith changing the child’s name to [M.A.S.]?” Wilson testified that it was his opinion that Smith was seeking the name change “out of spite” because they were not together anymore, and he also testified that it was not in the best interests of Z.A.W., who by then was five years old, to have her name changed.

When asked, Smith testified that she wanted to change Z.A.W.’s name because “I never liked the name.” She testified that she “let” Wilson name the child “to keep the peace.” She also testified that she went to a shelter when she left Wilson and now she wanted to “start[ ] my whole life over again.” According to Smith, Wilson was not providing for Z.A.W. because “[h]e got himself in trouble,” and she believed that it was in ZAW.’s best interests to have her name changed. After hearing this testimony, the magistrate stated that she was going to grant the petition “under the totality of the circumstances.”

Wilson timely filed written exceptions to the magistrate’s report and recommended order. In his exceptions, Wilson asserted that the magistrate’s factual findings were not supported by the testimony at the hearing and that the magistrate had improperly applied the law. Nevertheless, the circuit court adopted the magistrate’s report and recommendations without holding a hearing on Wilson’s exceptions. Wilson appealed, and this court reversed and remanded for the circuit court to hold the required hearing. Wilson v. Smith, 51 So.3d 1282 (Fla. 2d DCA 2011).

On remand, the circuit court scheduled a hearing on Wilson’s exceptions. It also entered an order stating that both parties could file written memoranda in support of their positions. In response to that order, Wilson filed a motion asking the court to consider his initial brief from his appeal as his memorandum in support of his exceptions. The day before the scheduled hearing, the circuit court denied Wilson’s motion to accept his brief as his memorandum.

At the hearing on Wilson’s exceptions, the circuit court asked Wilson to explain why the magistrate’s findings were not supported by the record. However, when Wilson began to explain his position, the circuit court cut him off, saying “I’m going to go over it one more time and say to you that this is not a new hearing.” Wilson then pointed out that the majority of the discussion at the hearing before the magistrate had been about his incarceration rather than Z.AW.’s best interests. He argued that the magistrate had “switched” the burden of proof, requiring him to show why ZAW.’s name should not be changed rather than requiring Smith to show that the name change was in ZA.W.’s best interests. And he pointed out that some of the magistrate’s factual findings conflicted with the transcript. Despite these arguments, the circuit court overruled Wilson’s exceptions and adopted the magistrate’s recommended order granting the petition.

In this appeal, Wilson contends that the circuit court erred in denying his exceptions to the magistrate’s report and recommendations because the magistrate made two errors of law when determining the merits of his petition and because certain factual findings made by the magistrate were not supported by competent, substantial evidence. The record supports all three of these contentions, any one of which would require reversal.

First, the magistrate erred by applying the incorrect legal standard when considering Smith’s petition. This court and others have held that the standard for changing a child’s name is whether the change is in the child’s best interests or is necessary for the welfare of the child. See Azzara v. Waller, 495 So.2d 277, 278 (Fla. 2d DCA 1986) (“The Court should order a change of a minor’s surname over the objection of one parent only where the evidence affirmatively shows that such change is necessitated by the welfare of the child.”); Coolidge v. Ulbrich, 733 So.2d 1092, 1094 (Fla. 4th DCA 1999) (“A child’s surname should remain unchanged absent evidence that the change is necessary for the welfare of the child.”); Hayhurst v. Romano, 703 So.2d 1178, 1179 (Fla. 3d DCA 1997); Lazow v. Lazow, 147 So.2d 12, 14 (Fla. 3d DCA 1962) (“To change the name of a minor ... is a serious matter, and such action may be taken only where the record affirmatively shows that such change is required for the welfare of the minor.”). The desires of the parents to have a “connection” with the child through the child’s name do not guide this decision. See Azzara, 495 So.2d at 278; Hayhurst, 703 So.2d at 1179. Neither does the desire of one parent to distance him or herself from the other parent.

Here, the transcript of the hearing before the magistrate shows that she focused solely on Wilson’s factual predicament: he had had limited contact with Z.A.W. since going to prison, that he had more time to serve before his release, and that he was not financially supporting Smith or Z.A.W. However, those facts were not relevant to the legal issue before the court, which was whether the evidence established that changing a five-year-old’s name — first, middle, and last — was in her best interests. With no evidence on this legally dispositive issue, the magistrate had no legal basis for the recommendation to grant Smith’s petition.

Second, the magistrate erred by placing the burden of proof on the incorrect party. Rather than requiring Smith to establish that the name change was in ZAW.’s best interest, the magistrate began the hearing by asking Wilson why he was “objecting to Ms. Smith changing the child’s name.” In her report and recommendations, the magistrate found that Wilson “had no legitimate reason as to why this court should not grant the Petition and change the minor child [sic] full name to the name desired by the child’s mother.” It is clear from these statements that the magistrate improperly placed the burden on Wilson to provide a reason for the court not to change the child’s name rather than requiring Smith to prove that the change was in child’s best interests.

Third, the circuit court erred by adopting several of the magistrate’s factual findings that were not supported by competent, substantial evidence. It is settled law that when a circuit court reviews a magistrate’s report to resolve exceptions, the court must accept the magistrate’s findings of fact if they are supported by competent, substantial evidence. See In re Drummond, 69 So.3d 1054, 1056 (Fla. 2d DCA 2011). However, while the magistrate’s findings of fact are given a presumption of correctness, the circuit court is still “obligated to perform a full examination of the evidence and the findings.” Id. at 1057; see also Quincoces v. Quincoces, 10 So.3d 657, 659 (Fla. 3d DCA 2009) (“‘[Ejntry of a final judgment in accordance with the master’s findings and recommendations is not a mere formality. Rather, the court is duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether under the law and the facts the court is justified in entering the judgment recommended by the master.’ ” (quoting Bell v. Bell, 307 So.2d 911, 914 (Fla. 3d DCA 1975))). Moreover, because this court can “equally perform the review that the trial court performed of the magistrate’s record and findings,” we consider this issue de novo. Drummond, 69 So.3d at 1057.

Here, the magistrate made a factual finding that the child was currently being called M.A.S. and that this is the name that she knows. However, there is absolutely no evidence of this “fact” in the record. Smith testified that she does not call the child either Z.A.W. or M.A.S.; instead, she refers to her as “Baby.” Similarly, the magistrate found that Smith was “forced by” Wilson to name the child Z.A.W.; however, the only testimony at the hearing was that Smith did not like the name Z.A.W. but she agreed to it because Wilson wanted it. In addition, the magistrate found that Smith had gone “to a protective shelter” with the child to get away from Wilson; however, the only testimony at the hearing was that Smith went to a shelter when she left Wilson. There was no testimony that the shelter was a protective shelter or that Smith left Wilson for any reason other than simply wanting to “start[ ] my whole life over again.” Hence, these factual findings, which allegedly supported the magistrate’s recommendation to grant the petition, were not supported by competent, substantial evidence in the record, and the circuit court erred by adopting them and the recommendation based on them.

In light of these three errors, we hold that the circuit court erred in denying Wilson’s exceptions to the magistrate’s report and recommendations and in adopting the recommendation to grant Smith’s petition. The magistrate’s use of the incorrect legal standard and incorrect burden of proof were errors of law that the circuit court simply had no discretion to ignore. And the circuit court should not have adopted factual findings that had no evi-dentiary support. Accordingly, we reverse the circuit court’s order granting Smith’s petition and remand for further proceedings. On remand, the circuit court must consider the merits of the petition in light of the proper legal standards and the evidence actually adduced at the hearing.

Because we are remanding for further proceedings, we also note that the circuit court abused its discretion by denying Wilson’s motion to consider his initial brief as a memorandum of law for purposes of the exceptions hearing. When the circuit court issued its initial order on Wilson’s exceptions, it provided that “[e]i-ther party may file [a] memorandum of law in support of, or in defense to, the exceptions.” In response, Wilson filed a motion asking the circuit court to treat the appellate brief from his first appeal as his memorandum of law, and he attached a copy of his brief to the motion. In that brief, Wilson laid out all of his arguments as to why the magistrate’s ruling was not supported by competent, substantial evidence and how the magistrate had misapplied the law. The circuit court summarily denied this motion, stating that Wilson had offered no legal authority “for why this Court should accept a brief prepared for the purpose of one proceeding (an appeal) to be used for a different proceeding and purpose (a trial level exceptions hearing).” This ruling was rendered the day before the scheduled hearing on Wilson’s exceptions.

The record shows that Wilson’s motion and its attached brief were filed in the court file and served on Smith, and the brief contained germane legal argument in support of Wilson’s claimed exceptions. Under these circumstances, the circuit court’s ruling unnecessarily elevated form over substance. Further, entry of the court’s order the day before the scheduled hearing denied Wilson the opportunity to file a separate memorandum that would have complied with the circuit court’s technical requirements. On these unique facts, the circuit court’s ruling refusing to consider Wilson’s brief as his memorandum of law constituted an abuse of discretion. Should Wilson seek on remand to again rely on the arguments made in his first appellate brief, the circuit court should consider that brief as Wilson’s memorandum of law.

Reversed and remanded for further proceedings.

SILBERMAN and WALLACE, JJ., Concur.

      . While it appears from the record that the magistrate may have taken additional testimony from Smith at the January 7, 2008, hearing that Wilson did not attend, because that hearing was held before the court ruled on Wilson's motion to appear telephonically, Wilson's nonappearance was not due to any inaction on his part. Thus, any consideration of any evidence that may have been offered at that hearing would violate Wilson’s fundamental due process right to be present and to be heard. See, e.g., Henderson v. Lyons, 93 So.3d 399, 401 (Fla. 2d DCA 2012) (" 'When a court fails to give one party the opportunity to present witnesses or testify on his or her own behalf, the court has violated that party’s fundamental right to procedural due process.’ ” (quoting Douglas v. Johnson, 65 So.3d 605, 607 (Fla. 2d DCA 2011))).


author: SILBERMAN, Judge.

text:
    STATE of Florida, Appellant, v. Roy A. GARCIA, Appellee.
    No. 2D12-3664.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Daniel P. Fischetti of Weed and Associates, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

The State seeks review of the order granting Garcia’s motion to suppress and dismissing charges of possession of cocaine, possession of drug paraphernalia, and obstructing or opposing an officer without violence. For the reasons set forth in State v. Garcia, No. 2D12-3359 (Fla. 2d DCA 2013), we reverse and remand.

NORTHCUTT and CRENSHAW, JJ„ Concur.


text:
    STATE of Florida, Appellant, v. Roy A. GARCIA, Appellee.
    No. 2D12-3359.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Daniel P. Fischetti of Weed and Associates, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

The State seeks review of the order dismissing an affidavit of violation of probation which was entered after the trial court granted Roy A. Garcia’s motion to suppress. The State argues that the court erred in granting the motion to suppress because Garcia’s act of engaging in headlong flight in a high-crime area gave the police a valid basis for stopping him. We agree and reverse.

The evidence established that the police went to an address in a high-crime area to pick up a man named Levens based on a probable cause pick-up order. Before the Sheriffs van arrived at the address, a deputy conducted surveillance there. He observed Levens and Garcia approach a vehicle and exchange indiscernible objects in a hand-to-hand transaction. The Sheriffs van arrived at the address shortly thereafter. At this time, Levens was standing in the driveway talking to Garcia.

The police exited the van wearing “Sheriff’ vests and yelled “Sheriffs Office.” Le-vens immediately surrendered, but Garcia turned tail and ran. The officers gave chase, yelling for- Garcia to stop, but he kept “running just as fast as he could.” As he was running, Garcia discarded an object. Garcia was tackled, and another object fell from his pocket during the struggle. Police thereafter located several baggies containing cocaine in the immediate area.

In granting the motion to suppress, the trial court concluded that the police did not have a valid basis for stopping Garcia. However, the police were justified in stopping Garcia because his unprovoked, headlong flight in a high-crime area provided a reasonable suspicion of criminal activity. See C.E.L. v. State, 24 So.3d 1181, 1185 (Fla.2009) (citing Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In fact, the police had probable cause to arrest Garcia for resisting or obstructing an officer without violence based on his failure to cease his headlong flight in response to the officers’ directions for him to do so. See C.E.L., 24 So.3d at 1189 (holding that a defendant’s “continued flight in knowing defiance of the officer’s lawful order to stop constituted the offense of obstructing without violence”).

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ, Concur.


author: MAY, J.

text:
    Alvin WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-877.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.
    Rehearing Denied Dec. 16, 2013.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his convictions and sentences for burglary and loitering and prowling. He argues that the trial court erred in denying his motion to suppress and in denying his motion for judgment of acquittal on the loitering and prowling charge. We agree in part and reverse.

The State charged the defendant with burglary of a dwelling, grand theft, and loitering and prowling after a search of his car incident to arrest uncovered stolen items from a recent burglary. The defendant moved to suppress that evidence, arguing that law enforcement did not have reasonable suspicion to stop the defendant and lacked probable cause to arrest. The State responded that both reasonable suspicion and probable cause existed to warrant the stop and subsequent arrest.

At the hearing on the motion to suppress, the State called the detective who responded to a 911 call from a concerned homeowner. The homeowner informed the dispatcher that a female had knocked on his door looking for “Crystal.” When the homeowner asked the female what Crystal’s address was, the female looked startled and did not know the address. She then left in a black Thunderbird. The homeowner provided the dispatcher with the car’s description and license plate number.

Three officers responded in unmarked police cars to look for the black Thunderbird. The detective was familiar with the area due to the fact that thirty-one burglaries had been committed there within the last two months. Many of them had been committed by having someone knock on the front door of the residence to determine whether anyone was home.

The detective located the Thunderbird, which was occupied by two individuals, a female driver and the defendant passenger. The detective followed the Thunderbird and observed it traveling slowly and stopping in front of several houses. When the Thunderbird left the detective’s jurisdiction, a sergeant from the next jurisdiction continued to follow the car.

The State then called the sergeant, who testified that based on the detective’s request and the information relayed to him, he stopped the Thunderbird. At that point, the Thunderbird was being driven by the defendant. The sergeant asked the defendant where he was coming from, why he was driving slowly, and other questions to dispel his suspicion. The defendant did not provide any information, claimed to be lost, and failed to dispel the sergeant’s concern. The sergeant wrote the defendant a ticket for a cracked taillight and then placed him under arrest for loitering and prowling.

Defense counsel argued that the State had neither established reasonable suspicion for the stop nor probable cause to arrest the defendant for loitering and prowling. The State responded that probable cause existed because the defendant was unable to dispel the sergeant’s concern that he had been “casing” the neighborhood. The trial court deferred ruling, but later denied the motion by written order.

The court found the officers had reasonable suspicion to stop the defendant for loitering or prowling because: (1) law enforcement received information from a reliable citizen informant; (2) the defendant was still in the area one and one-half hours later driving the same vehicle in an unusual and suspicious manner; (3) these events occurred at a similar time of day as recent burglaries in the area; and (4) the prior neighborhood burglaries had encompassed the same technique of knocking on doors to determine what houses were occupied. Once the sergeant stopped the defendant, who failed to dispel his concern that he had been checking out homes to burglarize, probable cause existed to arrest him. Once the officers had probable cause to arrest, they could legally search the defendant’s car incident to that arrest.

The defendant continues to argue that his arrest for loitering and prowling was not supported by probable cause, and the stolen items found in his car should have been suppressed as the fruits of an illegal seizure. The State responds that the totality of the circumstances—including the defendant’s driving pattern, which matched the modus operandi of other recent burglaries—established probable cause.

“A trial court’s decision on a motion to suppress requires a mixed standard of review. ‘An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence.’ ” State v. Holland, 76 So.3d 1032, 1034 (Fla. 4th DCA 2011) (quoting Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011)). We have de novo review of the issues of law. Id.

Section 856.021(1), Florida Statutes (2009), makes it “unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”

We must be cautious that the statute not be used as a pretext and thereby interfere with the activities of law-abiding citizens. Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011). “Instead, the proper application of this statute ‘requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.’ ” L.C. v. State, 516 So.2d 95, 97 (Fla. 3d DCA 1987) (quoting State v. Ecker, 311 So.2d 104, 107 (Fla.1975)).

The first element of the crime “has been read to require a threat of immediate, future criminal activity.” V.E. v. State, 539 So.2d 1170, 1171 (Fla. 3d DCA 1989) (citing D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985)). “[T]he State must prove more than vaguely suspicious presence.” J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999).

The second element requires “justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2009). The suspect must be given an opportunity to explain and dispel any alarm or concern, but “the failure of a defendant to explain his presence and conduct cannot constitutionally be considered as a circumstance tending to establish the second element.” V.E., 539 So.2d at 1172 (citing D.A. v. State, 471 So.2d 147, 154 (Fla. 3d DCA 1985)).

Because the offense of loitering and prowling is a misdemeanor, a police officer may only make a warrantless arrest for this offense if both elements of the crime are committed in his presence. Consequently, only a police officer’s own observations may be considered in determining whether probable cause existr ed to make a warrantless arrest. The officer must be able to point to specific and articulable facts, which, when taken together with rational inferences, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened.

Freeman v. State, 617 So.2d 432, 433 (Fla. 4th DCA 1993) (internal citation omitted). We may consider the observations of all the officers who observed the defendant. See State v. Boatman, 901 So.2d 222, 224 (Fla. 2d DCA 2005).

We may not, however, consider the contents of the citizen’s 911 call to law enforcement. See Jones v. State, 117 So.3d 818, 822 (Fla. 4th DCA 2013) (“the witnesses’ report of individuals knocking on their door cannot be considered.”). Nor can we consider reports of recent crimes or the fact that a neighborhood is a “high-crime area.” C.H.S. v. State, 795 So.2d 1087, 1091 (Fla. 2d DCA 2001). Having reviewed the order, it appears that the trial court did not filter out these facts in making its decision on the motion to suppress.

Here, the officers’ observations did not satisfy the first element of the crime. Taking the officers’ observations together under the fellow-officer rule, the defendant was driving slowly in a neighborhood and stopped in front of a few houses around noon. At most, the defendant’s actions were vaguely suspicious, but did not satisfy the first element of the loitering and prowling statute. See J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999).

Even if the defendant’s actions were unusual for a law-abiding citizen, the second element was not satisfied. The second element requires alarm or immediate concern for public safety. Here, the defendant did not attempt to flee or hide, and immediately pulled over when the officer executed the traffic stop. There was no alarm that needed to be dispelled. Even if the defendant’s responses to the sergeant’s questions were unsatisfactory, “the failure of a defendant to explain his presence and conduct cannot constitutionally be considered as a circumstance tending to establish the second element.” V.E., 539 So.2d at 1172 (citing D.A., 471 So.2d at 154 (Fla. 3d DCA 1985)).

For the reasons expressed, we find reasonable suspicion to stop the vehicle, but no probable cause to arrest the defendant for loitering and prowling. Without the lawful arrest, law enforcement had no justifiable basis to search the vehicle, and the fruits of the search must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We therefore reverse the order denying the defendant’s motion to suppress. This renders the defendant’s argument on the judgment of acquittal moot. We remand the case to the trial court for proceedings consistent with this opinion.

Reversed and Remanded.

GROSS and FORST, JJ., concur.

      . The defendant raises two other issues: (1) the court erred in allowing the State to exercise peremptory challenges to certain jurors; and (2) the defendant's right to be free from double jeopardy was violated by the court's correction of the original sentence. We find no merit in either of these issues.

      . We note that while Judge Levenson tried the case, Judge Bidwill heard and ruled on the motion to suppress.


author: FORST, J.

text:
    J.E., Sr., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D13-1191.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.

      Kevin MacWilliam of Kevin MacWilliam, P.A., Vero Beach, for appellant.
    Stephanie C. Zimmerman, Tampa, for appellee Department of Children and Families.
    Laura E. Lawson, Sanford, for appellee Guardian ad Litem Program.
   FORST, J.

A father appeals the trial court’s final judgment terminating his parental rights as to his child, J.V.E. On appeal, the father maintains that termination of his parental rights was not supported by the evidence in the record. We affirm, concluding that the termination of parental rights was supported by competent substantial evidence.

The Record Before the Trial Court

The trial court found that termination of the father’s parental rights was supported by sections 39.806(l)(b), (c), (e)(1), and (e)(2), Florida Statutes (2012). The court also ordered the termination of the mother’s parental rights. The initial dependency petition alleged substance abuse by both parents, arrests for violence, and a history of domestic violence, as well as failure to provide support by the father. A shelter petition was then filed, and the child was placed in shelter care with his maternal aunt, where he continues to reside.

In the meantime, both parents were provided with case plans and given tasks to complete. Over one year later, the Guardian Ad Litem (“GAL”) recommended that the State move towards termination of the parental rights of the father. Ultimately, nearly two years after the child was initially removed, there was a trial to determine whether the mother’s and father’s parental rights should be terminated. In finding that termination of the father’s rights was supported by several statutory provisions and was in the best interests of the child and the least restrictive means of protecting the child from harm, the court noted the following:

• It was recommended that the father attend eighteen substance abuse outpatient group sessions and six individual sessions; the father completed only eleven of the eighteen group sessions, and three of the six individual sessions.
• The father missed scheduled drug screenings on at least twenty occasions and tested positive for marijuana on the following 2012 dates: May 3, June 14, 21, and 28, August 1, and two additional tests in August. The father never had a negative drug screen and the caregiver testified that, on at least one occasion, the father appeared to be under the influence of marijuana when he showed up for a visit with his child. Moreover, the father has a long history of drug related convictions, the latest of which being a 2009 conviction for the possession of cocaine.
• The father was required to visit the child three times a week. The father visited the child three times during the same week only once. The father did not attempt to visit the child from April 2011 until October 2011.
• The father paid the caregiver the required $60 per week on nine occasions over the course of over a year; at the time of the trial, it had been almost three months since the father last paid the caregiver.
• Once when the father was informed that the child was sick, the father made no inquires into the child’s health, and made no attempts to visit the child during that illness.

Standard of Review

This court has previously set forth the “multi-step process inherent in the statutory scheme for termination of parental rights”:

First, the trial court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2007), has been established. Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). Second, the trial court shall consider the manifest best interests of the child by evaluation of all relevant factors, including those set out in section 39.810. Id. In addition, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm. In re G.C., 6 So.3d 643, 648 (Fla. 2d DCA 2009). While a trial court’s decision to terminate parental rights must be based upon clear and convincing evidence, our review is limited to whether competent substantial evidence supports the trial court’s judgment. See T.C. v. Dep’t of Children & Families, 961 So.2d 1060, 1061-62 (Fla. 4th DCA 2007).

J.G. v. Dep’t of Children & Families, 22 So.3d 774, 775 (Fla. 4th DCA 2009).

Appellate courts review orders terminating parental rights using a “highly deferential” standard of review: “[t]hat is, ‘a finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evi-dentiary support.’ ” D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006) (quoting N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003)). Moreover, so long as the trial court’s ruling on one of the statutory grounds set forth in section 39.806, Florida Statutes, is supported by the evidence, the court’s decision is affirm-able. See R.S. v. Dep’t of Children & Families, 872 So.2d 412, 413 (Fla. 4th DCA 2004) (holding that the ultimate outcome is not impacted by reversal on one ground when another ground supports termination). In this opinion, we discuss two of those statutory bases.

The Father abandoned the Child

With reference to the findings set out above, there is clear and convincing evidence that the father abandoned the child as contemplated by sections 39.806(l)(b) and 39.01(1), Florida Statutes. “Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.” § 39.01(1), Fla. Stat. (2012). Although the father has had periods of unemployment, there is evidence that the father demonstrated financial ability to support the child, at least in the court-ordered amount of $60 per week. At the time of trial, it had been three months since the father last paid the caregiver for the support of his child.

Additionally, the father’s visitation with the child was anything but “frequent and regular,” and was more akin to “[m]arginal efforts and incidental or token visits....” See id. (“Marginal efforts and incidental or token visits or communications are not sufficient....”) There was testimony that this infrequent and irregular visitation caused the child to not see the father in a parental role, despite the child knowing that this individual was in fact his father.

The Father did not substantially comply with his Case Plan.

Section 39.806(l)(e), Florida Statutes provides grounds for termination of parental rights when the “child continues to be abused, neglected, or abandoned by the parent or parents.” § 39.806(l)(e), Fla. Stat.

The failure of the parent ... to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.

Id. at § 39.806(1)(e)1.

While the record reflects that the father made some marginal attempts to comply with his case plan, it nevertheless appears from the record that the father’s progress during the past two years falls short of “great strides.” Contra D.P., 930 So.2d at 802 (“Mother made great strides ....”). He visited with the child only sporadically (not three times per week as required by the case plan), and made few and very infrequent payments to the child’s caregiver.

The father never received a negative drug screen during the pendency of this case, he admitted at trial to continuing to smoke marijuana “recreationally,” and he failed to complete the required outpatient program before leaving the program altogether. In contrast to the parent who prevailed upon appeal in M.H. v. Department of Children and Families, the father in the instant case did not exhibit a “strong desire to overcome [his] addiction and parent [his child] ....” M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004). Instead, the record reflects an unwillingness on behalf of the father to quit smoking marijuana, even knowing that his refusal to at least make an effort to quit was impeding his (otherwise inconsistent) efforts to regain custody of his child. In Florida, it is still illegal to possess marijuana, let alone smoke it. There is no differentiation in the law between being a marijuana addict and a “recreational” user, contrary to the father’s brief (“he only smokes marijuana recre-ationally”). Thus, there was no legal error with respect to DCF and the trial court relying upon the father’s failure to test negative for marijuana (and, for the most part, failure to test at all) as a factor (along with others, cited above) in finding that he did not substantially comply with his case plan, constituting evidence of continuing abuse, neglect, or abandonment supporting termination of parental rights.

Termination of the Father’s Parental Rights is in the best interests of the Child.

The trial court found that the child is in a stable situation (and has been for two years) with his current caregiver, who indicated her intent to adopt the child should the parents’ rights be terminated. “While the parents have a right to raise their child, it is a right they may forfeit by their conduct. The child, too, has a right to achieve stability in [his] life with parents who will properly care for [him].” D.G. v. Dep’t of Children & Families, 77 So.3d 201, 210 (Fla. 4th DCA 2011). The father’s brief does not contest the trial court’s determination that termination of the father’s parental rights is in the best interests of the child. We find no basis to reverse that holding.

Termination of the Father’s Parental Rights is the least restrictive means to protect the Child from harm.

The Department of Children and Families (“DCF” or “the Department”) “ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.” J.C. v. K.K., 64 So.3d 157, 161 (Fla. 4th DCA 2011) (quoting Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)). “[T]he least restrictive means test is not intended ‘to preserve a paternal bond at the cost of a child’s future.’ ” Id. at 163 (quoting In re. K.W., 891 So.2d 1068, 1070 (Fla. 2d DCA 2004)). “The child’s interests are paramount over the father’s desire to now parent his child....” Id. at 164. In J.C., the court held that the least restrictive means test was “clearly met” where “[t]he father’s belated attempts to become a good father amount to too little too late.... ” Id. at 163.

Here, the Department instituted two case plans for the father, the goal of both being reunification. The second amended case plan was implemented only after the father’s failure to comply with the initial case plan. Yet, once again, the father failed to comply with the amended case plan, notwithstanding the Department’s efforts and relative patience. Accordingly, the Department has established that termination of the father’s parental rights was the least restrictive means to protect the child from harm.

Conclusion

For the reasons discussed above, we affirm the trial court’s order terminating the father’s parental rights with respect to J.V.E.

Affirmed.

GROSS and MAY, JJ., concur.

      . The mother's appeal of the trial court’s order has been handled separately, and the court's order as to her parental rights was affirmed by this court without opinion. B.F. v. Dep't of Children & Families, 117 So.3d 1102 (Fla. 4th DCA 2013).

      . Section 39.806(l)(b) states that parental rights may be terminated upon establishment that the parent has abandoned the child as defined in section 39.01(1), Florida Statutes. § 39.806(l)(b), Fla. Stat. (2012). Section 39.01(1) defines abandonment as "a situation in which the parent ... has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.” § 39.01(1), Fla. Stat. (2012).

      . In the 1970 movie Love Story, Oliver famously said, "Love means never having to say you’re sorry.” Love Story (Paramount Pictures 1970). Extrapolating another famous phrase from last century, sometimes love means "just say[ing] no.” See Nancy Reagan, Her Causes, Ronald Reagan Presidential Foundation & Library, http://www.reagan foundation. org/details_f. aspx?p=RR1008 NRHC&tx=6 (last visited on Nov. 1, 2013).

      . See, e.g., § 893.13(6)(a), Fla. Stat. (2013) ("It is unlawful to be in actual or constructive possession of a controlled substance ....”); § 893.03(l)(c)(7), Fla. Stat. (2013) (listing "Cannabis” as controlled substance).


author: STEVENSON, J.

text:
    Shirley BURGESS, the Personal Representative of the Estate of Elliott Burgess, Deceased, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT d/b/a Broward General Medical Center; Amos W. Stoll, M.D.; John/Jane Doe(s), as yet to be identified physicians, nurses as well as other agents, employees of North Broward Hospital District or Broward General Medical Center; John Doe Business(es), as yet to be identified manufacturer, distributor, vendor, as well as the physicians and/or agents thereof of one (1) or more of the devices, tools, or instruments, not limited to but including the drill(s), used to create the burr hole during the ‘right frontal burr hole and evacuation of chronic subdural hematoma’ of Elliott Burgess on October 21, 2006, Appellees.
    No. 4D12-1951.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.
    Rehearing Denied Dec. 18, 2013.

      Ralph 0. Anderson of Ralph 0. Anderson, P.A., and William N. Hutchinson, Jr., P.A., Fort Lauderdale, for appellant.
    Janine Kalagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for appel-lees North Broward Hospital District and Amos Stoll, M.D.
   STEVENSON, J.

Appellant, Shirley Burgess, brought this action below to recover damages for the death of her husband while a patient at North Broward Hospital District d/b/a Broward General Medical Center (“the Hospital”). In this appeal, Burgess challenges an order dismissing with prejudice her claim under 42 U.S.C. § 1983 for denial of access to the courts against the Hospital and Amos Stoll, M.D. (collectively “the Defendants”). Because the complaint failed to allege sufficient facts demonstrating that the Defendants frustrated the presentation of a non-frivolous claim, we affirm.

Procedural Background and Facts

The “facts” herein are derived from the Fourth Amended Complaint (“the complaint”) and, for purposes of this decision, are taken as true. Shirley Burgess and the decedent, Elliott Burgess, were married on October 15, 2006. While on their honeymoon cruise, Elliott began experiencing headaches. The Burgesses disembarked at Port Everglades on Friday, October 20, 2006. On October 21, 2006, Elliott was taken by ambulance (with Shirley) to the Hospital’s Emergency Room. After a CT scan, the Burgess-es were informed by an ER physician that Elliott needed emergency surgery, and that a neurosurgeon would meet with them to discuss his condition and the procedure to be performed. Dr. Amos Stoll met with the Burgesses and advised them that Elliott had a subdural hemato-ma, which required a surgical procedure to allow the blood clot to drain. Elliott underwent the procedure. However, his brain had swollen and was filled with fluid and his condition did not improve. On October 23, 2006, Dr. Stoll informed Burgess that her husband was brain dead.

On October 25, 2006, Burgess asked Dr. Stoll if an autopsy would be performed and he informed her that it would not. On the death certificate, Dr. Stoll certified that the manner of death was “natural,” that an autopsy was not performed, and that the causes of death were “trantentorial herniation/thalasemia” and “right hemisphere chronic subdural hematoma (no trauma).” On October 26, 2006, an autopsy was in fact performed, and the pathologist opined that the manner of death was an “accident” and that Elliott died “as a result of complications of penetration of the right cerebrum, due to burr hole trauma during a craniotomy for drainage of a subdural hematoma.”

On January 16, 2008, Burgess, through counsel, requested that Defendants provide, among other things, copies of “[a]ll documents, which identify and are relative to the seléction, purchase, and maintenance of all of the devices, tools, or instruments, not limited to but including, the drill(s) used to create a burr hole .... ” The Defendants did not respond to Burgess’s request. Burgess then filed a complaint for true bill of discovery on April 17, 2008, and served on the Hospital a notice and amended notice of intent to initiate medical malpractice litigation on July 25, 2008, and August 11, 2008, respectively. Subsequently, on August 26, 2008, Burgess received from the Hospital 243 pages of copies of records relating to Elliott Burgess, 236 pages of which were “ostensibly” the medical records of Elliott Burgess.

The complaint alleged that pursuant to applicable state and federal regulatory law, the Defendants were required to complete the following reports:

• a report by Dr. Stoll to the risk manager at the Hospital concerning the complications of the surgery, which were an “adverse incident” causing injury and death;
• a report by the risk manager of said complications to the Agency for Healthcare Administration for the State of Florida (ACHA);
• a report by the Hospital of said complications to the Joint Commission in Accreditation of Healthcare Organization (JCAHO); and
• a report by the Hospital of the complications or information related to the medical device(s) being used to effectuate the burr hole to both the Secretary of the Food and Drug Administration (FDA) and the manufacturer of the device(s).

Burgess alleged that the Defendants were required by applicable law to provide her with copies of the aforementioned reports and documents. The complaint further alleged that “[n]otwithstanding the applicable law which requires the existence of these documents, [the Defendants] state through their counsel that these documents do not exist or no longer exist.”

As a result of the failure to produce the requested state and federal regulatory reports and related documents, Burgess maintained that the Defendants “spoliated evidence” or “intentionally concealed true facts.” Burgess alleged that the Defendants’ actions in concealing and spoliating evidence concerning the device used during the surgery prevented her from identifying any potential product liability defendants responsible for her husband’s death and rendered her unable to bring suit against those parties.

The Defendants filed motions to dismiss the complaint with prejudice, arguing, in relevant part, that Burgess failed to demonstrate that the Defendants’ actions denied Burgess adequate, effective, and meaningful access to the courts and, therefore, failed to state a cause of action, (citing Heinrich ex rel. Heinrich v. Sweet, 62 F.Supp.2d 282, 315 (D.Mass.1999)). The motions also asked for dismissal with prejudice because the complaint failed to differ from the previous complaints in any meaningful way. The trial court granted the motions and dismissed the complaint with prejudice as to both Defendants. Appellant does not take issue with the dismissal of counts I and II (medical negligence claims against the Hospital and Dr. Stoll). This appeal is limited to consideration of the dismissal of count III, alleging an actionable civil rights violation under federal law.

Standard of review

Burgess insists that the trial court erroneously dismissed her denial of access to courts claim with prejudice since she alleged the elements required to state a viable cause of action. The standard of review of orders granting motions to dismiss with prejudice is de novo. MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). This court must accept the allegations set forth in the complaint as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader. Id. (citing Taylor v. City of Riviera Beach, 801 So.2d 259 (Fla. 4th DCA 2001)).

To state a cause of action for violation of § 1983, a plaintiff must allege that a person, acting under color of state law, deprived her of rights protected under the federal constitution or federal laws. Lindquist v. Woronka, 706 So.2d 358, 360 (Fla. 4th DCA 1998). It is well-settled that the right of access to the courts is protected from unlawful interference and deprivations by the state and its actors by the federal constitution. Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir.1983). “A mere formal right of access to the courts does not pass constitutional muster. Courts have required that the access be ‘adequate, effective, and meaningful.’ ” Id. (quoting Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977)).

Discussion

We hold that, in the instant case, the trial court properly dismissed the complaint for failure to state a § 1983 claim for denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (hereinafter “Harbury ”), is instructive on the elements necessary to state a cause of action in a so-called “backward-looking” access claim, such as the instant one, where the alleged denial leads to loss of a meritorious suit that cannot now be tried. According to Harbury, a party must identify: (1) a “nonfrivolous,” “arguable” underlying claim, whether anticipated or lost; (2) the official acts frustrating the litigation; and (3) a remedy that may be awarded as recompense, but that is not otherwise available in future suit. Id. at 415-16, 122 S.Ct. 2179.

Most notably, Burgess fails in meeting the requirements of prong 2 of the Harbury test, i.e., the identification of specific “official acts frustrating the litigation.” The facts here are a far cry from those in Ryland, cited by Burgess, where the court found a denial of access to courts claim sufficient to state a cause of action. 708 F.2d at 973-74. There, the plaintiffs alleged a conspiracy by the defendants, a Louisiana District Attorney and an assistant District Attorney, to cover-up the murder of their daughter. Id. at 969. The plaintiffs alleged that the defendants prevented a full investigation into their daughter’s death by cancelling an autopsy previously scheduled to be performed by a local coroner, by seeking to obtain the signatures of various deputy coroners and doctors on a death certificate that falsely listed the cause of death as suicide, and by ultimately persuading the coroner to sign a report which listed the death as a suicide, even though he had never examined the body. The plaintiffs maintained that the defendants engaged in the conspiracy to protect the real killer, Alfred Shapiro, an assistant District Attorney. The cover-up was eventually exposed by the Attorney General of Louisiana, and Shapiro was convicted of the crime. Id. The court concluded that the defendants’ cover-up, which lasted almost a year, may well have denied the plaintiffs an effective and meaningful right of access to the courts by interfering with their right to pursue a wrongful death claim against Shapiro under Louisiana law. Id. at 975.

Here, Burgess alleges that the hospital failed to file, or provide her with, certain reports required by state and federal regulatory agencies. From those facts, the complaint leaps to the conclusion that the defendants “spoliated evidence” and “intentionally concealed true facts.” It seems to us that, at best, the allegations in the complaint raise the possibility of negligence or misfeasance on the part of the Defendants. The United States Supreme Court has stated that negligent acts or omissions will not support a federal cause of action under § 1983. See Daniels v. Williams, 474 U.S. 327, 330, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (“To hold that injury caused by [lack of due care] is a deprivation within the meaning of the Fourteenth Amendment would trivialize the century-old principle of due process of law.”).

Burgess also fails to meet the first prong of Harbury because there is nothing alleged in the complaint to indicate that her products liability cause of action is anything “more than hope.” 536 U.S. at 416, 122 S.Ct. 2179. Harbury requires that “the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant” and that pleaders must state the underlying claim “just as if it were being independently pursued.” Id. at 416-17, 122 S.Ct. 2179.

Here, Burgess alleges that the actions of the Defendants have denied her access to court to sue the “manufacturer(s), distribu-ter(s) and others involved in the claim of distribution of the device that was used to effectuate the burr hole trauma during the craniotomy,” but no element of an underlying products liability claim is alleged. There is no indication in Burgess’s complaint that the device used in Elliott’s surgery malfunctioned in any way. Burgess’s general allegation that the documents “would/should have additional information in support of the Plaintiffs claims against these defendants” and “information indis-pensible to the claims that the plaintiff otherwise would have against the other potential defendants” does little to demonstrate that the Defendants’ actions rendered any specific suit ineffective — a requirement under prong 1 of Harbury.

Burgess’s complaint simply does not demonstrate the existence of a “non-frivolous” and “arguable” products liability claim. Burgess argues that she should “not be faulted in this regard” since it was the Defendants wrongdoing that “prevented her from further exploring the merits of such a claim” in the first place. In other words, Burgess argues that the Defendant’s wrongful conduct under Har-bury ⅛ prong 2 (official acts frustrating the litigation) has prevented her from meeting the requirements of prong 1 (the identification of a non-frivolous, arguable underlying claim). We understand Burgess’s frustration, but, even with the most liberal reading, the complaint cannot be fairly read to support the inference that the Defendants’ actions impeded or foreclosed all reasonable avenues Burgess had to explore the potential merits of an “arguable” products liability claim. For example, Burgess had information regarding all the medical staff present at Elliott’s surgery, including Dr. Stoll, who could have been questioned regarding the device at issue.

The Defendants further assert that Burgess’s claim fails under prong 3 as well because she had a viable state law remedy — a cause of action for spoliation of evidence — which remained available for a future suit at the time she filed her initial complaint for denial of access to court. Harbury, 536 U.S. at 415, 122 S.Ct. 2179; see, e.g., Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843 (Fla. 4th DCA 2004) (setting forth the elements of a spoliation of evidence claim). In response, Burgess merely points out that damages are capped in a state court action whereas no such cap exists in an action under § 1983. Neither party cites authority indicating whether a cap on damages renders a state law suit “inadequate, ineffective or not meaningful.” We need not decide the merits of this issue as the first two prongs of Harbury were not met.

Preservation and the denial of the request to amend

Burgess’s counsel maintained at oral argument that this court should not rely on Harbury since the Defendants did not cite the decision in their argument before the trial judge. In short, Burgess asserts that the Defendants’ reliance on Harbury was not preserved. We believe that this argument is unavailing in the instant case. First, we review the dismissal of the complaint de novo. Second, Burgess has had ample opportunity to fully research and brief the implications and impact of the Harbury case in this appeal. Third, the Harbury decision is simply an extension and application of the core principles contained in the cases which were relied on below by the Defendants. In any event, the “tipsy coachman doctrine” would allow consideration of the Harbury decision in this appeal without any procedural prejudice to Burgess. See Arthur v. Milstein, 949 So.2d 1163, 1166 (Fla. 4th DCA 2007) (trial court may be affirmed on appeal when it reaches the right result for the wrong reason).

Burgess would like the opportunity to amend the complaint once more. The Defendants argue that the trial court properly dismissed Burgess’s complaint with prejudice because her previous two complaints contained identical allegations which were dismissed on the same grounds. “ ‘[A]mendment should be allowed until the privilege to do so has been abused or the opposing party is prejudiced or the amendment is futile.... Generally three ineffective attempts to state the same cause of action ... are enough.’ ” Walters v. Ocean Gate Phase I Condo., 925 So.2d 440, 443 (Fla. 5th DCA 2006) (quoting Trawick’s Fla. Practice & Procedure § 14-2 at 225 (2006)). Despite the title of “Fourth Amended Complaint,” Burgess was granted only two opportunities to amend rather than three. Still, we cannot say that the trial court abused its discretion in denying further amendment which would have been futile under Harbury.

Affirmed.-

WARNER and GERBER, JJ., concur.

      . The Court in Daniels reviewed a prisoner’s claim that prison officials had violated his due process rights by negligently leaving pillows on prison stairs on which the prisoner slipped and injured himself. In a footnote, the Court left open "whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause.” 474 U.S. at 334 n. 3, 106 S.Ct. 662.


author: PER CURIAM. WARNER, J.,

text:
    Robert THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3982.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.
    Robert Thomas, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion to correct a scoresheet error. To the extent that appellant claims that the entry of “LIFE” as his maximum sentence on the scoresheet is an error, the same sentence of life could have been imposed absent the alleged error, because his total sentence points exceeded 363, which pursuant to section 921.0014(2), Florida Statutes (1998), authorizes a life sentence. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007) (correction of scoresheet error not required where same sentence could have been imposed absent scoresheet error). To the extent he claims that the trial court departed from the sentencing guidelines without written reasons, he is not entitled to relief under rule 3.800(a), Florida Rules of Criminal Procedure. See Davis v. State, 661 So.2d 1193 (Fla.1995) (failure to file written findings for a departure sentence does not constitute an illegal sentence that can be challenged under rule 3.800(a)), receded from on other grounds by Mack v. State, 823 So.2d 746, 748-49 (Fla.2002); see also Wright v. State, 911 So.2d 81, 83-84 (Fla.2005) (relying on Davis ’ holding that failure to file written reasons for departure does not make sentence illegal and acknowledging that Davis was receded from on other grounds in Mack).

Affirmed.

STEVENSON and CIKLIN, JJ„ concur.

WARNER, J., concurs specially.

WARNER, J.,

concurring specially.

I agree with the majority. I would add, however, that much of appellant’s argument that his life sentence was illegal is based upon Franco v. State, 777 So.2d 1138, 1140-42 (Fla. 4th DCA 2001), which held that a life sentence imposed where total sentencing points exceed 363, as permitted under section 921.0014(2), is a departure sentence which must be supported with written reasons. I think Franco was wrongly decided. All other courts which have reviewed this statute also disagree with Franco. See, e.g., Kalapp v. State, 729 So.2d 987, 990 (Fla. 5th DCA 1999); Cash v. State, 779 So.2d 425, 425 (Fla. 2d DCA 2000); Byrd v. State, 841 So.2d 502, 503 (Fla. 3d DCA 2003). Receding from Franco, however, is not essential to the result in this case.


text:
    Craig WEST, Appellant, v. Brian WEST, Appellee.
    No. 4D12-1284.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2013.
    David L. Gorman of Gorman & Barry, P.A., North Palm Beach, for appellant.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellee.
   MAY, J.

A family dispute over distribution of the decedent’s estate comes to us for resolution. A claimant, one of the decedent’s sons, appeals an order that denied his request to transfer his claim to, or allow him an extension of time in which to file his claim in, the civil division of the court. We agree that the trial court erred in not transferring the case to the civil division and reverse.

The decedent had two sons, one of whom was the personal representative of the estate. After satisfying all claims against the estate, the personal representative filed two claims of his own for money advanced during the decedent’s lifetime; one for $11,892.11 and another for $53,415.11. The other son objected to the claims.

To resolve the dispute, the personal representative filed a Petition to Enforce a Claim in the probate division. The other son moved to dismiss or strike the petition, arguing that an adversary action in the probate division did not constitute an “independent action” as required by section 783.705, Florida Statutes (2011). He maintained that the personal representative should have filed an independent action in the civil division.

The personal representative argued that the adversary proceeding qualified as an independent action because it afforded the other son the chance to object. Alternatively, if he filed the action in the wrong division, the proper remedy was for the court to transfer the claim to the civil division. The other son maintained that the action could not be transferred because it would disregard the requirements of section 733.705(5), and because the personal representative had not paid a filing fee.

The trial court dismissed the claims. The court then denied the personal representative’s motion to: grant rehearing, clarify the order, or grant an extension of time to file an independent action in the civil division. The trial court agreed, however, to enter a final appealable order. From this order, the personal representative now appeals.

We review dismissal orders de novo. Simpson v. State, 33 So.3d 776, 778 (Fla. 4th DCA 2010).

The single question we answer is whether the trial court should have transferred the case to the civil division. The answer is yes.

In 2008, the chief judge of the Fifteenth Circuit signed Administrative Order 6.102-9/08, which declared that “independent actions” be filed in the civil division. The personal representative filed the claims in the wrong division, and he could not re-file his petition in the civil division because the statutory thirty-day period expired. See § 733.705(5), Fla. Stat. (2011). His only viable options were to have his claim transferred or to obtain an extension of time. The trial court denied him both.

We have previously acknowledged that, in a situation where a complaint should have been filed in the probate division, the court should not dismiss the case solely because it was filed in the wrong division. Grossman v. Selewacz, 417 So.2d 728, 730 (Fla. 4th DCA 1982) (citing In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977)). “[W]hile the circuit court is divided into divisions for efficiency in administration, all judges of the circuit court exercise the court’s jurisdiction, and cases filed in the wrong division should be transferred to the proper division.” Id.

While the personal representative did not file a motion to transfer, he did argue that transfer was the correct remedy.

As the Third District explained:

In the instant case the [trial] court did not consider the question of transfer, and there is nothing in the record to show that it was requested to do so. Nevertheless, we feel that in construing the rule to produce a just result (as we conceive it our duty to do) it is necessary for us to hold that the court should transfer rather than dismiss the cause.

Gross v. Franklin, 387 So.2d 1046, 1048 (Fla. 3d DCA 1980) (emphasis added).

The trial court erred in not transferring the personal representative’s petition to the civil division.

Reversed and remanded for transfer of the petition to the civil division.

CIKLIN, J., and SCHIFF, LOUIS, Associate Judge, concur.

      . The personal representative no longer seeks payment of the $11,892.11 claim.

      . The personal representative's failure to pay the filing fee did not affect the court’s ability to transfer the case to the civil division. See Payette v. Clark, 559 So.2d 630, 633 (Fla. 2d DCA 1990).