author: DAMOORGIAN, C.J. TAYLOR, J.,

text:
    Larry Charles WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2964.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Larry Williams appeals his judgment and sentence for possession of cocaine and marijuana. Williams argues that the trial court improperly denied his motion to suppress because the police lacked a founded suspicion to stop Williams. We affirm.

The following facts were established at the hearing on the motion to suppress and were the basis for the trial court’s ruling. The arresting officer, a St. Lucie County deputy, was an experienced narcotics law enforcement officer. On the day of Williams’ arrest, at approximately 1:00 a.m., the deputy and his partner approached a vehicle with a female occupant in a parking lot near a night club. The deputy was clothed in apparel identifying him as a law enforcement officer. Upon approaching the vehicle, the deputy looked inside the vehicle and noticed a crack cocaine pipe in plain view. A criminal investigation ensued. The deputy returned to his vehicle to continue his investigation when he noticed Williams approach the driver’s side of the vehicle, lean in toward the driver’s side window, and begin speaking with the female occupant. Upon seeing Williams, the deputy asked Williams: “Hey man, what’s going on? What are you doing?” Williams became startled and took a step back at which point, the deputy noticed Williams’ clenched fist. The deputy could not recognize anything in Williams’ hand, but “it was very suspicious” to him and he feared the possibility that Williams was clenching a weapon or drugs. The deputy provided an example in which a weapon could be concealed in a clenched hand. Williams started to walk away and the deputy attempted to stop Williams by saying: “Hey man, where are you going? Come here, let me talk to you.” Williams turned around, unclenched his fist, and dropped what turned out to be cocaine. The trial court denied the motion to suppress, reasoning that the deputy had reasonable suspicion to stop Williams based on the totality of the circumstances.

Williams argues that the evidence does not support the trial court’s conclusion that the deputy possessed reasonable suspicion to stop him. The State counters that the factual circumstances justified a stop. In the alternative, the State argues that the encounter between the deputy and Williams was consensual. We reject the State’s alternative argument without further comment.

When reviewing a trial court’s order on a motion to suppress evidence, we defer to the trial court’s factual findings but review legal conclusions de novo. Castella v. State, 959 So.2d 1285, 1289 (Fla. 4th DCA 2007).

To detain a person for investigation, an officer must have a reasonable suspicion, based on objective, articulable facts, that the person has committed, is committing, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Whether an officer has a ‘founded suspicion’ for a stop depends on the totality of the circumstances ... in light of the officer’s knowledge and experience.” Ippolito v. State, 789 So.2d 423, 425 (Fla. 4th DCA 2001). However, a bare suspicion or “mere ‘hunch’ that criminal activity may be occurring is not sufficient.” Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002). Factors that may be considered in establishing reasonable suspicion include: “the time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” May v. State, 77 So.3d 831, 834 (Fla. 4th DCA 2012) (quotations and citations omitted).

The cumulative impact of a number of factors leads us to conclude that the deputy had a reasonable basis for suspicion that Williams was or had been engaged in criminal activity. See State v. Jenkins, 566 So.2d 926, 927 (Fla. 2d DCA 1990) (recognizing that the cumulative impact of independent factors may provide sufficient basis for reasonable suspicion of criminal activity). First, it was 1:00 a.m. in a dark parking lot. Second, located in the parking lot was a vehicle in which the deputy had just discovered a crack pipe. Third, Williams approached this vehicle and proceeded to lean into the vehicle and engage with its occupant, who was under active investigation. Finally, after engaging with the occupant of the vehicle, the deputy asked Williams what he was doing and Williams started to leave the scene with a clenched fist. When considered in light of the deputy’s extensive training and field experience, including both narcotics investigations and experience with small weapons that could be concealed within a fist, these facts provide justifiable reasons to suspect that Williams possessed either drugs or a weapon within his clenched fist. See, e.g., May, 77 So.3d at 834 (explaining that it is not absolutely necessary for an officer to observe drugs or money change hands in order to support a reasonable suspicion that a drug offense was committed and deference should be given to the officer’s perspective); Gentles v. State, 50 So.3d 1192, 1198 (Fla. 4th DCA 2010) (noting that in certain circumstances, “[a] temporary detention of an individual may be justified by an officer’s specific concern for his own safety”).

Williams argues his approaching the vehicle, engaging the driver of the vehicle in conversation, and the deputy merely observing him with a clenched fist, without any indication of a drug transaction, is an insufficient reason to justify conducting an investigatory stop. Williams emphasizes that he did not attempt to flee when he was asked to stop. Citing to Kearse v. State, 384 So.2d 272, (Fla. 4th DCA 1980), Williams asserts that the deputy acted on bare suspicion rather than articulable, reasonable suspicion of criminal behavior. Id. 273-74 (holding that an officer may not conduct an investigatory stop without well-founded suspicion that the defendant is committing or will imminently commit a criminal offense). We find none of the cases cited by Williams persuasive. In Huntley v. State, 575 So.2d 285 (Fla. 5th DCA 1991), a police officer observed defendant in a high crime area standing close to a young black male. Id. Both appeared to be exchanging something multiple times. Id. No reasonable suspicion was found. Id. at 286. Likewise, in Stanton v. State, 576 So.2d 925 (Fla. 1st DCA 1991), no reasonable suspicion was found where defendant stood at the passenger side of parked vehicle, extending his arm into the vehicle. Id. at 926, 927. Finally, in Hewlett v. State, 599 So.2d 757 (Fla. 2d DCA 1992), the court held that officers lacked reasonable suspicion to stop a vehicle based on the fact that the vehicle and three males who were previously standing next to the vehicle left the area upon the officers’ approach. Id. at 757, 758.

None of these cases involved the circumstances present here, and none rise to the level of reasonable suspicion even when considering their cumulative effect. Jenkins, 566 So.2d at 927. Specifically, none of the cases cited by Williams involve a suspect’s interference with an ongoing and obvious investigation.

Affirmed.

KLINGENSMITH, J., concurs.

TAYLOR, J., concurs in result only.

TAYLOR, J.,

concurring in result only.

I concur in the majority decision to uphold the denial of the defendant’s motion to suppress, but not because I agree that the officer had a founded suspicion to stop Williams for interference with his criminal investigation. Founded suspicion requires more than a “hunch” or a “bare” suspicion to validate the stop. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Kearse v. State, 384 So.2d 272, 274 (Fla. 4th DCA 1980); § 901.151(2), Fla. Stat. (2010). Here, the mere fact that Williams walked up to the driver in a parked vehicle and then quickly backed way with a clenched hand after becoming aware of the presence of police officers did not give rise to a well-founded suspicion that Williams had committed, was committing, or was about to commit a criminal offense.

The deputy testified that when Williams approached the driver’s side of the vehicle and leaned inside, the deputy was several feet away checking the driver’s identification with the Sheriffs Office dispatch. The deputy could not overhear the conversation between Williams and the driver, and the deputy did not see Williams do anything to disrupt his investigation. When the deputy noticed Williams, he asked him what he was doing. Williams, who appeared startled upon seeing the deputy, took a step back and then walked past him. The deputy observed that Williams’ right hand was clenched, but he could not see if he had anything in his hand. The deputy just felt that “it was obviously very suspicious.” These facts simply do not support a reasonable suspicion of criminal activity for an investigatory stop.

That said, however, I would nonetheless affirm the denial of the motion to suppress, because the evidence in this case does not show that the defendant complied with the officer’s request to stop before he dropped the cocaine. Therefore the defendant was not unlawfully seized and the Fourth Amendment was never implicated. When the deputy attempted to stop Williams, Williams simply turned around and dropped a crack cocaine rock. “[A]n unlawful seizure takes place only if the person either willingly obeys or is physically forced to obey the police request. As such, there is no unlawful seizure when the person ‘drops then stops,’ even where the drop occurs after an order to stop.” State v. Woods, 680 So.2d 630, 631 (Fla. 4th DCA 1996) (holding that defendant was not unlawfully seized before he dropped the handgun and cocaine while fleeing officer, although officer was three to four feet behind defendant when he turned around and dropped the items); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (a seizure requires either physical force or submission to a show of authority); Johnson v. State, 640 So.2d 136, 137-38 (Fla. 4th DCA 1994) (holding that no unlawful seizure of defendant occurred before defendant voluntarily abandoned cocaine rocks; he dropped the drugs after the officer asked him to stop but before he willfully-obeyed, and the officer did not physically force the defendant to obey his request to stop); State v. A.M., 788 So.2d 398 (Fla. 3d DCA 2001) (holding that juvenile was not seized by police officer where juvenile had refused to stop and began to walk away after officer tried to question him).

Viewing the testimony and all inferences in the light most favorable to sustaining the trial court’s denial of the motion to suppress, I would conclude that the defendant was not unlawfully seized before he discarded the drugs. For that reason, I concur in the decision to affirm.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Jacquelin VILSAINT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2613.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In this appeal from multiple convictions of murder and attempted murder, appellant claims that the trial court reversibly erred when it admitted a recording of appellant’s telephone conversation while in jail which inculpated him in the crimes. Appellant objected, to its admission because the voice identification by the investigating officer was inadequate, as he had only a brief conversation with the appellant. Because the investigating detective testified that he recognized appellant’s voice, the court did not err in admitting the recording. The credibility of that identification was properly left to the jury. We affirm.

These crimes occurred during a drug deal. Three victims drove to an apartment complex to sell drugs to the two co-defendants, one of them being appellant Vil-saint. Instead of purchasing the drugs, Vilsaint shot and killed one of the victims and shot but did not kill another. The third was shot by either Vilsaint or the co-defendant. Both defendants fled in a chase with police and were not apprehended.

The surviving victim identified Vilsaint and his co-defendant from photos, and Vil-saint and the co-defendant were arrested and placed in cells at the jail. Two days later, the investigating detective asked to have calls from Vilsaint’s cell recorded. At trial, the state sought to have the investigating detective identify Vilsaint’s voice on the calls. The detective testified that he recognized Vilsaint’s voice from interviewing him during the booking process after his arrest. Defense counsel objected on the grounds of “competence, lack of foundation.” The court overruled the objection.

During cross-examination, the detective testified that he had not actually participated in the booking. Defense then requested a sidebar and learned that the detective had actually started interrogating Vilsaint, who had invoked his Miranda rights. Defense counsel then objected and moved to strike the identification, because Vilsaint’s statements were being used against him as they created the means to identify his voice. Defense counsel also complained that he was unable to question the detective regarding the statement, because it would tell the jury that Vilsaint had invoked his right to silence. The court rejected those contentions. Defense counsel, however, did cross-examine the detective, and got him to admit that his voice identification was based upon about thirty-six words, mostly “yes” and “no.” Vilsaint spoke in English to the detective, yet the recorded conversation was in Creole.

The state called a court translator who had translated the call and read from a transcript of the call. Defense counsel objected on best evidence grounds. In the call, Vilsaint stated, “They know I did it.”

In addition to the eyewitness identification, DNA evidence and fingerprint evidence tied Vilsaint to the crime scene and the chase scene. The jury found him guilty, and the court convicted and sentenced Vilsaint to multiple terms of life in prison for the murders and attempted murders. He appeals his conviction.

On appeal, Vilsaint contends that admission of the recorded jail telephone call was error because it was not properly authenticated. While in his brief he argues that the state offered no evidence that the transcribed call was a fair and accurate representation of the telephone conversation, he did not object at trial on that ground. His sole objection at trial involved the detective’s voice identification.

The admissibility of evidence is within the sound discretion of the trial court, subject to the rules of evidence, and will not be reversed absent a clear abuse of that discretion. See Vargas v. State, 101 So.3d 1269, 1270 (Fla. 4th DCA 2012); Jackson v. State, 979 So.2d 1153, 1154 (Fla. 5th DCA 2008).

Section 90.901, Florida Statutes (2010), addresses authentication and provides that it is a condition precedent to admissibility. “The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. As we noted in Symonette v. State, 100 So.3d 180, 183 (Fla. 4th DCA 2012), there is no specific list of requirements for authentication, and each case must be determined on its own merits. Nevertheless, for the admissibility of recordings, courts have developed a list of requirements, including “(1) the recording device was operating properly, (2) the device was operated in a proper manner, (3) the recording was accurate, and (4) the voices of the persons speaking were identified.” Jackson, 979 So.2d at 1155; see also Hernandez v. State, 919 So.2d 707, 710 (Fla. 5th DCA 2006); Parnell v. State, 218 So.2d 535, 541 (Fla. 3d DCA 1969); see generally Holland v. State, 528 So.2d 36, 38 (Fla. 4th DCA 1988).

Appellant did not object or challenge the operation of the device or the accuracy of the recording. He objected only to the detective’s identification of his voice on the tape. Voice identification is admissible in Florida. See Barrientos v. State, 1 So.3d 1209, 1213 (Fla. 2d DCA 2009). The credibility of that identification is a question for the jury. Id.; see also Worley v. State, 263 So.2d 613, 613 (Fla. 4th DCA 1972). Here, the detective spoke to appellant for approximately ten to fifteen minutes prior to appellant being put in the cell. He said that based upon this he could identify appellant’s voice on the tape. This was sufficient to satisfy authentication, and the trial court did not abuse its discretion by overruling defense counsel’s objection to the identification. The jury could determine for itself the credibility of that identification.

The conviction and sentence are affirmed.

CIKLIN and GERBER, JJ., concur.

      . This issue has not been raised on appeal by the defendant, because it is meritless. See State v. Trottman, 701 So.2d 581, 583-84 (Fla. 5th DCA 1997) (compelling a suspect to disclose the sound of his voice does not violate the Fifth Amendment).


author: TAYLOR, J.

text:
    A.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2105.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley and Patrick Delaney, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant argues that his motion for judgment of dismissal on the charge of resisting an officer without violence should have been granted. We agree, because the arresting officers’ bare assertion that they were “investigating a possible crime” did not establish reasonable suspicion or probable cause to detain appellant. Thus, the state failed to establish that the officers were acting in the execution of a legal process or duty — an essential element of resisting without violence. We therefore reverse and remand with instructions to discharge appellant.

Appellant was charged by juvenile delinquency petition with attempted robbery (Count I) and resisting an officer without violence (Count II). The evidence at trial established that at about 4:00 p.m. on February 1, 2012, two Boynton Beach police officers were “investigating a possible crime that had taken place” in a public park. Officer Haugh, who was in the area of the park, testified that he spoke with someone about a possible crime that was committed. He then spoke with Officer Medeiros over the radio, prompting Officer Medeiros to pull into the parking lot of the playground area and approach appellant.

Officer Medeiros, who was dressed in full police gear, stepped out of his marked car. Appellant looked at Officer Medeiros, turned away, and started running. Officer Medeiros identified himself as a police officer and yelled for appellant to stop. Officer Medeiros ran parallel to appellant, maintaining a distance of “twenty yards or so.” He yelled a total of about three times for appellant to stop. Meanwhile, Officer Haugh, who was about 50 to 70 yards away, could “clearly hear” Officer Medei-ros yelling.

Appellant gave up and surrendered after he entered an enclosed area of the park. He was then taken into custody without further incident.

The state rested and appellant moved for a judgment of dismissal as to the attempted robbery charge. The state conceded that it failed to present evidence to support Count I, and the trial court therefore granted dismissal of the attempted robbery charge.

Defense counsel also moved for a judgment of dismissal as to the charge of resisting an officer without violence (Count II), arguing in relevant part that the state failed to prove there was a lawful basis to detain appellant. The trial court denied the motion for judgment of dismissal on the resisting count. After closing arguments, the judge found appellant guilty of resisting without violence, stating that “it is the lawful duty of an officer [to investigate] crime.”

The court withheld adjudication and placed appellant on probation.

On appeal, appellant argues that the trial court should have granted his motion for judgment of dismissal, because the state failed to prove that the officer who detained him was engaged in the lawful execution of a legal duty. Appellant asserts that an officer’s mere investigation of crime while on the job is not one of the limited duties — such as serving process, legally detaining a person, or assisting in an emergency — that will support an obstruction charge. Moreover, appellant maintains that the assertion that the officers “were investigating a possible crime” was so broad that the lower court lacked any basis for determining whether the attempt to detain appellant was based on reasonable suspicion or probable cause. Finally, appellant argues that his mere flight did not give rise to a reasonable suspicion that he was engaged in criminal activity where there was no evidence that he was in a high crime area.

The state argues in response that the police were engaged in the lawful execution of a legal duty by conducting a criminal investigation and that appellant resisted them by running away. The state further argues that “the police were clearly engaged in the lawful execution of a legal duty because they had reasonable suspicion to stop appellant.” The state suggests that “if headlong flight from the police in a high-crime area, standing alone, provides the police with reasonable suspicion to support an investigatory stop, then headlong from the police when they arrive at the scene of an alleged crime also provides the police with reasonable suspicion to conduct an investigatory stop.” The state thus maintains that the trial court properly denied appellant’s motion for judgment of dismissal.

“Similar to a judgment of acquittal in a criminal case, the standard of review applicable to a motion for judgment of dismissal in a juvenile case is de novo.” E.F. v. State, 110 So.3d 101, 104 (Fla. 4th DCA 2013). A motion for judgment of dismissal, like a motion for judgment of acquittal, tests the legal sufficiency of the state’s evidence. T.L.T. v. State, 53 So.3d 1100, 1102 (Fla. 4th DCA 2011). “If the trial evidence taken in a light most favorable to the state does not support a conviction, the motion must be granted.” J.P. v. State, 855 So.2d 1262, 1264 (Fla. 4th DCA 2003).

A conviction for resisting an officer without violence requires proof that “(1) the officer was engaged in the lawful execution of a legal duty; and (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). Regarding whether the officer was performing a legal duty, there is a valid distinction between a police officer in the lawful execution of a legal duty and a police officer who is merely on the job. Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999). Examples of the lawful execution of a legal duty include: 1) serving process; 2) legally detaining a person; or 3) asking for assistance in an emergency situation. Id. Our court has also held that an officer’s investigation of a 911 call constitutes the lawful execution of a legal duty. Francis v. State, 736 So.2d 97, 99 n. 1 (Fla. 4th DCA 1999).

In resisting cases involving an investigatory detention, the state must prove that the officer had a reasonable suspicion of criminal activity. A.W., 82 So.3d at 1138. As the Third District has stated: “The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrant-less arrest. Otherwise, the individual has a right to ignore the police and go about his business.” O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010) (citations and internal quotations omitted).

To justify an investigatory stop, there must be a well-founded, articulable suspicion of criminal activity. Popple v. State, 626 So.2d 185, 186 (Fla.1993). Headlong flight in a high crime area is sufficient to provide an officer with reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Applying Wardlow, the Florida Supreme Court has held that a suspect’s continued flight, within a high crime area, in defiance of a police officer’s verbal order to stop, constitutes the offense of resisting without violence under section 843.02, Florida Statutes. See C.E.L. v. State, 24 So.3d 1181, 1185-89 (Fla.2009).

But flight, standing alone, is not sufficient to establish reasonable suspicion where there is no evidence to demonstrate that the flight took place in a high crime area. R.J.C. v. State, 84 So.3d 1250, 1256 (Fla. 4th DCA 2012); O.B. v. State, 36 So.3d 784, 788 (Fla. 3d DCA 2010); D.R. v. State, 941 So.2d 536, 537-38 (Fla. 2d DCA 2006). When an individual runs away from officers who lack the authority to stop and detain him, that individual is not unlawfully opposing or obstructing officers in the lawful execution of a legal duty. See Slydell v. State, 792 So.2d 667, 674 (Fla. 4th DCA 2001). If the individual “was free to walk away, the individual’s actions cannot constitute obstruction. Otherwise, if [the individual] could be convicted of obstructing without violence, then the individual was not really free to walk away at all.” Blue v. State, 837 So.2d 541, 548 (Fla. 4th DCA 2003).

In this case, the state never offered any evidence to establish that the police had a reasonable suspicion to stop appellant. The officers might very well have had a reasonable suspicion to stop appellant, but the state failed to prove it. Indeed, the prosecutor erroneously cautioned the testifying officers not to reveal the contents of any out-of-court statements describing the “possible crime.” Consequently, all that the state established at trial was that appellant was at a playground in the middle of the afternoon and fled in the presence of officers who were also at the playground investigating a “possible crime.”

The state’s evidence that the officers were investigating a “possible crime” was insufficient to establish that the officers had a reasonable suspicion that appellant had committed or was about to commit a crime. Without information regarding the nature of the incident and how appellant may have been involved, there was no way to determine whether the officers were engaged in the lawful execution of a legal duty when they detained him. See Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008) (“Without information regarding the nature of the complaint the officers were investigating, there was no way to determine whether the officers were engaged in the lawful execution of a legal duty when they detained Davis to investigate the complaint.”).

Furthermore, because the state offered no evidence that appellant was stopped in a high crime area, appellant’s flight alone was insufficient to establish that the officers had a reasonable suspicion of criminal activity. Testimony that a defendant fled in the area where a “possible” crime occurred is simply too vague to allow for a determination that there was reasonable suspicion under the totality of the circumstances. The state failed to present any specific evidence of an additional factor which, when combined with flight, would give rise to a reasonable suspicion in this case. Compare State v. Lewis, 98 So.3d 89, 92 (Fla. 4th DCA 2012) (reversing order granting motion to suppress where defendant ran from a raid on a house immediately following an illegal drug transaction, because “additional factors existed which, when combined with the defendant’s flight, gave rise to a reasonable suspicion of criminal activity”).

Because the state failed to meet its burden of proving that the police had reasonable suspicion to detain appellant, it failed to prove that appellant’s flight obstructed the officers in the lawful execution of a legal duty. See Slydell, 792 So.2d at 674. We therefore reverse and remand with instructions for the trial court to dismiss the charge of resisting without violence.

Reversed and Remanded.

LEVINE and KLINGENSMITH, JJ„ concur.

      . Even words alone may constitute obstruction where a defendant resists an officer engaged in these specific legal duties. D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995). This is an exception to the general rule that physical conduct must accompany offensive words to support a conviction for resisting without violence. See Francis v. State, 736 So.2d 97, 98-99 (Fla. 4th DCA 1999) (affirming conviction for resisting without violence where the defendant blocked the path of an officer who was investigating the condition of a medically distressed child in response to a 911 call).

      . The out-of-court statements would have been admissible for the non-hearsay purpose of establishing reasonable suspicion. See S.D.T. v. State, 33 So.3d 779, 780 (Fla. 4th DCA 2010) ("The state offered the BOLO not to prove the truth of its contents—that the suspects had committed a theft—but to establish that the arresting officer was engaged in the lawful execution of a legal duty at the time of the stop. Regardless of the truth of the statements in the BOLO, the officer was justified in relying on it to make an investigatory stop.”).

      . We decline the state's invitation to extend Wardlow and find that reasonable suspicion exists any time flight occurs while the police are investigating a "possible” crime, even if the flight does not occur in a high crime area.


author: STEVENSON, J.

text:
    Thomas John BURTON, Sr., Appellant, v. Linda BURTON, Appellee.
    No. 4D12-3694.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Lynn G. Waxman of Lynn G. Waxman, P.A., Palm Beach Gardens, and Keith W. Meisel of Keith W. Meisel, P.A., North Palm Beach, for appellant.
    Stacy N. Beaulieu and Charles Thompson of Beaulieu Law Group, P.A., Delray Beach, for appellee.
   STEVENSON, J.

This appeal arises out of a final judgment of dissolution of marriage. Thomas John Burton, Sr. (“Husband”) has raised three issues on appeal, while Linda Burton (“Wife”) has raised four issues on cross-appeal. We find merit in two points raised by Husband, which warrant reversal and remand. The final judgment is affirmed in all other respects.

Life Insurance

In accordance with section 61.08(3), Florida Statutes (2011), the trial court ordered Husband to purchase life insurance to secure the payment of alimony. However, when ordering a party to purchase life insurance, “the trial court must make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation.” Foster v. Foster, 83 So.3d 747, 748 (Fla. 5th DCA 2011). The trial court did not make these required findings. Accordingly, we reverse and remand to the trial court to make the requisite findings.

Passive Appreciation of Non-Marital Property

The trial court also erred when, in determining equitable distribution, it did not consider the passive appreciation of Wife’s non-marital North Carolina property. As part of equitable distribution, Husband was awarded $6783, which was a credit for one-half of the mortgage payments made during the marriage. At the time Wife originally purchased the property, it was worth approximately $13,500. In their Joint Pretrial Statement, the parties stipulated that the property was currently worth $46,837. Although Husband did not make any improvements to the property, a portion of the appreciated value should have been included as a marital asset.

As noted by the Florida Supreme Court:

“[I]n the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.”

Kaaa v. Kaaa, 58 So.3d 867, 872 (Fla.2010) (quoting Stevens v. Stevens, 651 So.2d 1306, 1307-08 (Fla. 1st DCA 1995) (citation omitted)). The trial court, here, did not perform the above calculation. Further, Wife concedes the trial court was presented with insufficient evidence to properly determine the amount of indebtedness encumbering the property at the time of the marriage. Accordingly, we reverse and remand to the trial court to conduct further proceedings consistent with Kaaa.

Affirmed in part and reversed in part.

WARNER and GERBER, JJ., concur.


author: BENTON, J. MAKAR, J.,

text:
    James L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6156.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.

      Barbara S. Sanders, Sanders and Duncan, P.A., Apalachicola, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Meredith Hinshelwood, Donna Gerace, and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   BENTON, J.

James L. Thomas appeals convictions and sentences for sexual battery and petit theft, contending that evidence obtained in violation of the Fourth Amendment, and article I, section 12 of the Florida Constitution, was introduced against him at trial. We reverse and remand for a new trial.

In the early morning hours of Saturday, September 13, 2008, a young woman reported that she had been raped and that her purse, containing a cellular telephone, had been stolen. Approximately 24 hours later, police were able to track her cell phone to the apartment Mr. Thomas shared with his girlfriend. The investigators settled on a specific apartment “shortly after midnight” or “approximately 1:00 to 2:00 a.m.” on September 14, 2008. For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.

They did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal. “[T]he Tallahassee Police Department is not the owner of the equipment.” The prosecutor told the court that a law enforcement officer “would tell you that there is a nondisclosure agreement that they’ve agreed with the company.” An investigator with the technical operations unit of the Tallahassee Police Department testified: “[W]e prefer that alternate legal methods be used, so that we do not have to rely upon the equipment to establish probable cause, just for not wanting to reveal the nature and methods.” He also testified: “We have not obtained a search warrant [in any case], based solely on the equipment.”

The police eventually decided to knock on the door and ask for permission to enter, and, at about five o’clock in the morning, three Tallahassee police officers knocked on the door of the apartment, and identified themselves as policemen. After about a minute, Mr. Thomas’s girlfriend, Ms. Simmons, answered the door in her night clothes. Learning they did not have a warrant, she told them to come back when they had one, and attempted to close the door, but a police officer placed his foot inside the doorway to prevent her closing the door,, removed her from the apartment, commanded anyone else inside the apartment to come outside, and entered the apartment with other officers.

Only after Mr. Thomas and the cell phone had been taken to the police station, Ms. Simmons testified, did she allow the police to search for and seize some of his other possessions. But the trial court found that she had consented earlier — at a time when several officers remained inside the apartment and she was not permitted to reenter — to the search of the apartment and the seizure of its contents. The cell phone and a purse were seized, and Mr. Thomas was arrested and taken to jail. After further interrogation there, he was formally arrested on charges of kidnapping to facilitate a felony, sexual battery involving serious physical force, and robbery.

Trial counsel filed a motion to suppress all evidence obtained as a result of the warrantless search of the apartment, and as a result of interrogation at the apartment and at the police station. After an evidentiary hearing, the trial court orally denied the motion, determining the forcible entry and “protective sweep” were not illegal on grounds the police had a reasonable concern that other people were in the apartment who might have posed a threat to police officers’ safety, and that consent by Ms. Simmons could not have been tainted by an illegal entry because the entry was not illegal. Even if it were, the trial court said, there was a break in the chain of events leading to consent.

The cell phone, other physical evidence seized at the apartment, and statements Mr. Thomas made in the course of interrogations at the apartment and at the police station all came in evidence against him at trial. While acquitting him of the kidnapping charge, the jury found him guilty on the lesser-included offenses of sexual battery and theft, despite the victim’s inability to identify him as the perpetrator.

The trial court’s conclusion that the police entry into the apartment was lawful was error. Our “analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted).” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The warrant requirement is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The home is at the “very core” of the interests the Fourth Amendment protects, and enjoys the maximum protection it provides. See Florida v. Jardines, — U.S. -, -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). While the home Mr. Thomas and Ms. Simmons shared might not fit some definitions of a traditional home, overnight houseguests have a legitimate expectation of privacy even in temporary quarters. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The Fourth Amendment guarantees to the people “[t]he right ... to be secure in their ... houses ... against unreasonable searches and seizures.” Unwarranted “searches and seizures inside a home” require special scrutiny. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 68 L.Ed.2d 639 (1980). Government agents’ warrantless entry into a home is presumptively, constitutionally unreasonable.

The trial court ruled in the present case, however, that exigent circumstances excused the lack of a warrant: “I think they had a reasonable basis to be concerned about other people being in the apartment and doing the sweep was not illegal.” But there was absolutely no indication that any suspect would escape or that any evidence inside the apartment would be destroyed. Testimony that a cell phone could be flushed down the toilet does not meet the test. See Missouri v. McNeely, — U.S. -, -, 133 S.Ct. 1552, 1567, 185 L.Ed.2d 696 (2013) (rejecting argument “that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every [DWI] case” and requiring a warrant, absent proof of exigency). Nor was there any imminent risk of death or serious injury to any police officer that failing to get a search warrant ameliorated. See generally Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (defining exigent circumstances). “Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied.” Smallwood v. State, 113 So.3d 724, 735 (Fla.2013). Until the police knocked, Mr. Thomas and Ms. Simmons, in fact the apartment’s only two occupants, were apparently asleep.

For purposes of decision, we assume the police had probable cause to believe the missing cell phone was inside the apartment. But they needed a warrant, as well, absent any exception justifying their forced entry. See Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (requiring police to seek the authorization of a neutral magistrate before undertaking a search or seizure); Katz; 389 U.S. at 357, 88 S.Ct. 507.

Warrantless searches are disfavored and, with limited exceptions “per se unreasonable.” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). See also Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). “[T]he police bear a heavy burden,” the cases teach, “when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U.S. 740, 749-750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Seibert v. State, 923 So.2d 460, 468 (Fla. 2006). Exceptions to the warrant requirement are “few in number and carefully delineated.” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). See also Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). No exception applied here.

As more than one officer testified, Ms. Simmons did not consent to their entering the apartment. Plainly the decision to prevent her from closing the apartment door was the beginning of a warrantless search. The trial court did not find otherwise. This was no mere “knock and talk.” A

“knock and talk” is only justified as a consensual encounter during which officers are authorized to “approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart.” Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013) (citing Nieminski v. State, 60 So.3d 521, 526 (Fla. 2d DCA 2011); Waldo v. State, 975 So.2d 542, 543 (Fla. 1st DCA 2008)). Given the consensual nature of the contact, of course, a resident is supposed to have the option of refusing to open the door. Kentucky v. King, — U.S. -, -, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011) (whether knock is by “police officer or a private citizen, the occupant has no obligation to open the door or to speak.”).

Calloway v. State, 118 So.3d 277, 279-80 (Fla. 5th DCA 2013). The trial court’s ruling “that the search was the result of a free and voluntary consent by Ms. Simmons” cannot be squared with basic, evi-dentiary, essentially undisputed, chronological facts. No evidence whatsoever supports any finding of consent before the police forced their way into the apartment.

In context, it is clear that the trial court ruled only that consent (albeit disputed by Ms. Simmons) was given after police officers were already inside the apartment (and she had been ordered to remain outside in her night clothes). Where police obtain consent only after an illegal entry has taken place, the presumption arises that the ostensible consent was involuntary, and the prosecution has the burden of rebutting the presumption of involuntariness by clear and convincing proof. See Norman v. State, 379 So.2d 643, 647 (Fla.1980).

The voluntariness vel non of the defendant’s consent to search is to be determined from the totality of circumstances. But when consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search. Bailey v. State [, 319 So.2d 22 (Fla. 1975) ]; Earman v. State, 265 So.2d 695 (Fla.1972); Taylor v. State [, 355 So.2d 180 (Fla. 3d DCA 1978) ]. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The consent will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action. Bailey v. State, 319 So.2d at 28; Sheff v. State, 329 So.2d 270 (Fla.1976).

Id. at 646-47. We are aware of only one instance where a Florida court upheld a finding of a break in the chain of illegality, absent proof of specific knowledge of the right to refuse consent to search. See DuBoise v. State, 520 So.2d 260, 262-63 (Fla.1988) (holding break in the chain of illegality occurred despite lack of police advice that suspect could refuse consent because suspect repeatedly requested police to conduct a search). On the present record, there is no evidence that Ms. Simmons had any reason to believe that she had the right to refuse the officers, once they ignored her earlier effort to deny them entry into the apartment.

Even where a citizen does know of the right to refuse consent, and has reason to believe the right can actually be exercised, the presumption that consent is involuntary often carries the day. See, e.g., Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992) (ruling consent was invalid despite trial judge’s ruling otherwise based on express advisement that consent could be withheld). We have repeatedly ruled consent less than voluntary where it was obtained shortly after illegal police action occurred. See Davis v. State, 946 So.2d 575, 578 (Fla. 1st DCA 2006) (consent “occurred immediately after the claimed seizure”); Phuagnong v. State, 714 So.2d 527, 533 (Fla. 1st DCA 1998) (consent obtained “only minutes later” than illegal search and arrest).

In the present case, the trial court found that the police obtained consent after they detained Ms. Simmons and occupied the apartment. Illegal police activity was ongoing at the time, with police inside the apartment while Ms. Simmons was still being held outside the apartment. The state had the burden to prove that any consent was independent of these circumstances. On this record, the state did not meet its burden to prove a clear break in the chain of illegality sufficient to overcome the presumption that any “consent” the trial court found Ms. Simmons gave before Mr. Thomas was taken to jail was not a voluntary act. The state proved no more than acquiescence to apparent authority, and “failed to meet its heavy burden of showing that petitioner’s consent to search was not fatally infected by the illegal intrusion.” Norman, 379 So.2d at 646.

In the present case, as in Reynolds, Norman, Calloway, Davis, Phuagnong, Turner v. State, 674 So.2d 896, 898 (Fla. 5th DCA 1996) and Cooper v. State, 654 So.2d 229, 231 (Fla. 1st DCA 1995), the state failed to overcome the presumption of involuntariness that arose from the unlawful search and seizure of the apartment. The trial court’s conclusion to the contrary was clearly erroneous.

Because police violated the Fourth Amendment and article I, section 12 of the Florida Constitution by entering the apartment without a warrant, and because neither subsequent consent nor the inevitable discovery doctrine excuse the constitutional violation in the present case, the trial court erred in failing to suppress the evidence obtained as a result of the violation.

Reversed and remanded.

RAY, J., concurs; MAKAR, J., dissents with opinion.

MAKAR, J.,

dissenting.

Barging into an apartment, over the tenant’s objection with neither a warrant nor an exigency for doing so, culminated the police’s intense overnight quest to locate the victim’s cellphone whose power was diminishing. No matter how well-intentioned, doing so was inconsistent with constitutional principles. But once the girlfriend-tenant fully understood the gravity of the violent sex crime being investigated, and that her boyfriend could well be the perpetrator, she changed her tune so markedly that the trial court — who heard both her testimony and that of the officers — concluded that an unequivocal break in the initial chain of illegality was shown by clear and convincing evidence. Norman v. State, 379 So.2d 643, 646 (Fla. 1980). The trial court’s conclusion that her consent was freely and voluntarily given, thereby overcoming the presumption that the initial illegal search was tainted and rendered a subsequent consent involuntary, is supported by the testimony he heard. Bolstering his conclusion was the fact that the girlfriend-tenant continued voluntarily to give consent to the officers to search the apartment and then her car (which the boyfriend had used to cruise for women and drugs the prior evening when the brutal attack occurred) thereafter; she also opened up and became even more cooperative after her boyfriend had left the premises, suggesting that his presence may have initially contributed to any reluctance on her part to consent. The ruling the trial court faced was a close one on this record, particularly because of the closeness in time between the initial search and the girlfriend-tenant’s consent. The trial judge, who clearly understood the applicable law, made a supportable conclusion under the totality of the circumstances that the girlfriend-tenant had a clear change of heart, saying that “as soon as [she] understood the gravity of the circumstances she began to cooperate.” Thus, although I concur that the initial entry into the apartment was unconstitutional and that the inevitable discovery doctrine does not apply, I would affirm the trial court’s ruling and the challenged conviction based on the girlfriend-tenant’s consent.

      . Although he asserts other grounds for reversal, we consider only the failure to exclude evidence, physical and testimonial, obtained by or derived from the illegal entry into and search of the apartment and its contents.

      . Mr. Thomas challenges as unlawful the deployment of the technology that allowed the cell phone to be tracked. For purposes of decision, however, we assume the police acted lawfully up to the point that they forcibly entered the apartment. It is not clear that there was ever a ruling on the legality of the cell phone tracking methods used below.

      . He spent "most nights” in the apartment. Only Ms. Simmons, the girlfriend, was on the lease.

      . Plan B — in the event consent was denied— was, it soon became unmistakably clear, simply to storm the apartment. Officer Suleski testified:
      Q Had you discussed the possibility of getting a search warrant?
      A Yes.
      Q And what was the nature of the discussion you had in that regard?
      A And I can only speak from my half of my input — was we thought it was the best to go make contact at the door.
      Q Which is ultimately what you all decided to do, right?
      A That’s correct.
      Q And as I understood your testimony on direct examination, if you did not gain entry to the apartment at that point in time, you did intend to secure for the purpose of later obtaining a search warrant. Is that correct?
      A Yeah. Yeah, immediately after.
      Q Well, you intended to secure the apartment?
      A Yeah. And immediately after we would seek a search warrant.
      Q That's what — right, we would agree. Now when we talk about securing the apartment that means entering and conducting the protective sweep that you talked about. Right?
      A Correct.
      From this testimony, it is clear that the police had determined, prior to knocking on the door, that regardless of whether they obtained consent to search, they were going to enter the apartment and “secure it,” although they had no evidence that anyone in the apartment was armed, posed a specific danger to police safety, was destroying evidence, would later destroy evidence, or was attempting to escape. The trial court gave no indication it credited Officer Suleski’s earlier testimony that
      Q Okay. What had already been discussed regarding a search warrant?
      A Well, before we even — back before we even made contact at the door that was the plan. The plan was that if we did not get consent or something we would seek a search warrant.

      . Officer Suleski testified, as follows:
      I think we specifically asked her that we were looking — we asked her if someone placed something inside of her apartment.
      THE COURT: I didn't quite understand. What?
      THE WITNESS: We asked her if someone placed something inside her apartment, a cellular phone and then if we can come inside her apartment and look. She said— she asked if I had a search warrant. I said no, but I can go get one. And then she says well, you can come back, some detective can come back and get one.
      She began to slam the door, at which point I placed my foot inside the door preventing her from slamming the door.

      . Investigator Wester testified on re-direct examination, as follows:
      Q Okay. And had you not been able to— had Investigator Suleski not put his foot in the door and the door would have closed, would you have any — would law enforcement have had any way of insuring that the cellphone wasn’t destroyed, damaged, flushed down the toilet, anything of that nature?
      A No, ma’am, there would have been no way.

      .Ms. Simmons testified on direct examination:
      They said they could go get a warrant. But this is after they had already obtained what they needed because I had asked about it and we sat there for hours and we waited — waited for them, I guess for the judge to get up get up or whatever, to issue the warrant.
      Then she testified on cross examination:
      A I never gave anybody consent to go inside. I gave them consent to search when they were asking me the different things that they were still looking for. They said there was a camera that was missing. I told them they could look for it. He asked what he had [] on; I showed them the clothes. I told them they could take it. That’s the type of consent that I was giving.

      A That was after they had already taken James down to the station.

        A No.

      . The exclusionary rule applies to statements and other evidence derived from illegal searches and seizures. See generally Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (requiring exclusion of the "fruit of the poisonous tree”); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920); United States v. Flores-Sandoval, 422 F.3d 711, 714 (8th Cir.2005) ("evidence 'obtained by exploitation of [an unlawful detention] instead of by means sufficiently distinguishable to be purged of the primary taint' " must be excluded (quoting United States v. Guevara-Martinez, 262 F.3d 751, 755 (8th Cir.2001))).

      . The Fourth Amendment to the United States Constitution provides "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause....” Amend. IV, U.S. Const. Similarly, the Florida Constitution provides
      [t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause .... This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
      Art. I, § 12, Fla. Const. The latter half of section 12, the Conformity Clause, requires that this Court construe article I, section 12 the same way that the United States Supreme Court construes the Fourth Amendment, despite the difference in language between the two provisions. See State v. Hume, 512 So.2d 185, 187 (Fla. 1987).

        . The trial court found that Ms. Simmons consented while Mr. Thomas was still on the scene. She testified she gave no consent of any kind until several hours later, after he had been taken away. See ante, note 7.

      . As the Supreme Court explained, judicial review in search and seizure cases requires more than unquestioning acceptance of trial court determinations. See Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Once the " ‘historical facts are admitted or established, [and] the rule of law is undisputed, ... the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.’” Id. at 696-97, 116 S.Ct. 1657 (citation omitted). The Court has "never ... expressly deferred to the trial court’s determination” because a "policy of sweeping deference would permit ... 'the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause’ ” or consent and ”[s]uch varied results would be inconsistent with the idea of a unitary system of law” which, "if a matter-of-course, would be unacceptable.” Id. at 697, 116 S.Ct. 1657 (citation omitted). See also Connor v. State, 803 So.2d 598, 608 (Fla.2001) (holding appellate courts reviewing trial court rulings on motions to suppress "must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section[s] 9 [and 12] of the Florida Constitution").
      Florida courts regularly reverse denials of motions to suppress in cases of illegal conduct on the part of law enforcement authorities, notwithstanding putative consent thereafter. See, e.g., Fernandez v. State, 63 So.3d 881, 884-85 (Fla. 3d DCA 2011) ("The defendant’s subsequent consent did not remedy the effect of the illegal entry. There was no break in the chain of events between the illegal entry and the procuring of the consent to the search.”); Navamuel v. State, 12 So.3d 1283, 1286 (Fla. 4th DCA 2009) ("The illegal pat down [in Navamuel's driveway] converted the consensual encounter into an unlawful stop. Because the state failed to show by clear and convincing evidence a break in the chain of events from the time the officers conducted the illegal stop and frisk and obtained appellant’s consent to search [his home], his consent is deemed involuntary.”); Hicks v. State, 852 So.2d 954, 960 (Fla. 5th DCA 2003) (holding that where "there is an illegal detention or other illegal conduct on the part of law enforcement authorities, consent will be found to be voluntary only if there is clear and convincing evidence that the consent was not the product of that illegal police conduct”); Butler v. State, 697 So.2d 907, 909 (Fla. 2d DCA 1997) (reversing denial of motion to suppress because when "seven police officers illegally entered Butler’s residence, handcuffed Butler and [another occupant], and told Butler that they would obtain a warrant to search his residence unless he consented to the search” without informing Butler he had a constitutional right to refuse the search, the "trial judge’s finding that Butler’s consent was freely and voluntarily given [wa]s clearly erroneous where the court did not find a ‘break in the chain of illegality’ sufficient to overcome the taint of the prior illegal police conduct” (citation omitted)). See also State v. Sakezeles, 778 So.2d 432, 435 (Fla. 3d DCA 2001) (affirming suppression of evidence when officers entered opened door of apartment, chased Sakezeles into the bathroom, pulled him into the living room and read him his rights because Sakezeles's subsequent "consent” to search of the apartment "amounted to nothing more than mere acquiescence to authority;” the consent of the owner of the apartment upon his return did not dissipate the taint because, "[g]iven the initial and continuing police illegality,” the apartment owner upon arriving home "was confronted with a fait accompli. The defendant signed his consent a half-hour before the co-resident got there. The search was already well underway. Just as you cannot un-ring a bell, you cannot un-search a home that has already been searched. There is insufficient evidence that [the owner’s] consent was anything but giving in to the inevitable.” (internal quotations omitted)).

      . The state originally argued that the inevitable discovery doctrine precluded suppression of the evidence, but wisely abandoned this argument at oral argument. The inevitable discovery doctrine applies where police obtain evidence through unconstitutional means, but would ultimately have discovered the same evidence through proper procedures. See McDonnell v. State, 981 So.2d 585, 591 (Fla. 1st DCA 2008). The test is: (1) "whether strong probable cause existed for the search warrant” and (2) "whether the police made an effort to get a warrant prior to the illegal search." Id. at 593. Assuming without deciding, as we do, that probable cause existed, the second prong of the test was not met in the present case.
      In McDonnell, we applied the inevitable discovery doctrine where evidence showed that, after the defendant initially denied consent to search, an officer left the scene to obtain a search warrant. Id. at 587. The defendant’s eventual consent to search — ■ deemed involuntary because it was given after the defendant had been held outside of his house in the wee hours of the morning for over two hours clad only in a bath towel — was given before the officer could return with the warrant, and the police conducted the search without the warrant. Id. We determined that the police were "in the process of obtaining a warrant” at the time consent was obtained, and that because probable cause existed, the warrant would have been issued. Id. at 593. The police were not "in the process of obtaining a warrant” when they entered the apartment Ms. Simmons and Mr. Thomas shared.
      The Fourth District Court of Appeal refused to apply the inevitable discovery doctrine in Rowell v. State, 83 So.3d 990 (Fla. 4th DCA 2012). There, unlike in McDonnell, police had not yet left the scene to obtain a warrant at the time invalid consent was obtained. Concluding that no evidence showed a warrant was "being actively pursued prior to the occurrence of the illegal conduct,” the Fourth District determined the inevitable discovery doctrine did not apply. Id. at 995-96. Finally, in King v. State, 79 So.3d 236, 238 (Fla. 1st DCA 2012), we squarely held that the inevitable discovery doctrine did not apply where police "did not attempt to get a warrant.”
      There is no evidence in the present case that police attempted to obtain a search warrant prior to entering the apartment illegally. The closest police came to taking affirmative steps to seek a warrant was that an officer "began taking notes as to the legal description for the apartment in anticipation of obtaining a search warrant.” Officers testified that they abandoned the idea of obtaining a search warrant before knocking on the apartment door. They testified they again decided to begin the process for obtaining a warrant after Ms. Simmons declined consent; but no action was taken until after officers had already entered and secured the apartment.
      Tallahassee police had never sought a warrant in any case based on the cell phone tracking device used in the present case; and nothing in the record suggests that police officials ever considered seeking a warrant in this case based on this technology. It is impossible to conclude that officers were "in the process of obtaining a warrant,” i.e., actually attempting to get a warrant, as required by our precedent, McDonnell, 981 So.2d at 593, and the inevitable discovery doctrine does not preclude operation of the exclusionary rule.

      . It is highly commendable that police officials responded rapidly to the assault on the student, who was returning home from an off-campus bar. The sad reality in society is that sexual violence against female college students is a far too common occurrence— roughly "[o]ne out of five undergraduate women experience an attempted or completed sexual assault during the college years” according to one recent study. The Campus Sexual Assault (CSA) Study, Final Report, National Institute for Justice, viii, xviii & 5-15 (Oct. 2007) (noting that freshmen and sophomores are "at greater risk for victimization than juniors and seniors” and that approximately 23.3% of the time the victim had neither seen nor spoken with the perpetrator in forced sexual assaults (11.5% for "incapacitated” sexual assaults where victims are incapable of giving consent because they have been, for example, drugged or become drunk)).


author: PER CURIAM.

text:
    Barbara STEVENS and Thomas Stevens, as Relators, Appellant, v. STATE of Florida and The State of Florida through its Department of Revenue, GE Money Bank, a Federal Savings Bank; Mortgage Electronic Registration Systems, Inc.; U.S. Bank, National Association as Trustee for the Registered Holders of ABFC 2007-WMC1 Trust Asset Backed Funding Corporation Asset Backed Certificates, Series 2007-WMC1, Appellee.
    No. 1D13-1206.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Albert H. Mickler of the Law Offices of Mickler & Mickler, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Russell Kent, Special Counsel, Office of the Attorney General, Tallahassee; Jeff Atwater, Chief Financial Officer, Department of Financial Services, Tallahassee; Katherine E. Giddings and Thomas Range of Akerman Senterfitt, Tallahassee, and William Heller of Akerman Senterfitt, Ft. Lauderdale; Andrew Boese and Robert Brochin, Morgan Lewis & Bockius, LLP, Miami; Elizabeth J. Campbell of Locke Lord, LLP, Atlanta; P. Russell Perdew, Chicago; Andrew R. Louis, Bradley A. Marcus, and Matthew P. Previn, Buckley Sandler LLP, Washington, DC., for Appel-lee.
   PER CURIAM.

Appellants Barbara Stevens and Thomas Stevens, as relators for the State of Florida, claim Appellees, various parties involved in the financing, sale, and securiti-zation of mortgages, failed to pay Florida documentary sales taxes associated with certain assignments of mortgage notes. Appellants claim the State of Florida did not receive hundreds of thousands of dollars in tax revenue. They sought to hold Appellees accountable for this alleged failure under Florida’s False Claim Act (the FFCA). Pursuant to the FFCA, Appellants sought to recover financially for this. Appellants did not seek to recover any monies under section 213.30, Florida Statutes (the Tax Act). The trial court, however, found it lacked subject matter jurisdiction over this private action pursuing recovery for a failure to pay taxes. We agree with the trial court.

Generally, the Tax Act authorizes the Department of Revenue (DOR) “to compensate persons providing information” regarding the failure to pay taxes. § 213.30(1), Fla. Stat. (2011). And, since May 1, 2002,

[njotunthstanding any other provision of law, this section is the sole means by which any person may seek or obtain any moneys as the result of, in relation to, or founded upon the failure by another person to comply with the tax laws of this state. A person’s use of any other law to seek or obtain moneys for such failure is in derogation of this section and conflicts with the state’s duty to administer the tax laws.

§ 213.30(3), Fla. Stat. (emphasis added); see Ch. 2002-218, § 37, Laws of Fla.

Through its authority to compensate, DOR has promulgated rules to administer this payment. See generally Fla. Admin. Code R. 12-18.001-.004. The determination of “compensation,” however, is at the sole discretion of DOR — “not to exceed ten percent ... of the total amount of delinquent taxes, penalties, and interest collected as a result of the information provided.” Fla. Admin. Code R. 12-18.003(1). This statutory scheme creates a mandatory administrative process when taxes are involved.

The FFCA, on the other hand, permits private actions where a person knowingly presents a false claim for payment, knowingly makes or uses a false record or statement, or knowingly conceals or improperly avoids an obligation to pay the State of Florida. §§ 68.082(l)-(2), 68.083(2)-(3), Fla. Stat (2011). FFCA violations are subject to a “civil penalty ... and [to] treble the amount of damages the state sustains because of the act of that person.” § 68.082(2), Fla. Stat. The FFCA additionally provides the person who initiated the litigation “at least 15 percent but not more than 25 percent of the proceeds of the action or settlement.” § 68.085(1), Fla. Stat. This statutory scheme affords a general ability to avail the judicial process for false claims presented to the State.

We are asked to construe, and harmonize if possible, the FFCA and Tax Act in relation to a claim of failure to pay Florida’s documentary stamp tax.

When construing a statute, the starting point must be the language, and the will of the legislature is paramount. See Dep’t of Revenue ex rel. Sherman v. Daly, 74 So.3d 165, 166-67 (Fla. 1st DCA 2011). It is also key that any interpretation harmonize the laws, “for the Legislature is presumed to have intended that both laws are to operate coextensively and have the fullest possible effect.” Palm Beach Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000). A “well settled” way to harmonize laws is the canon that “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.” See McKendry v. State, 641 So.2d 45, 46 (Fla. 1994); Adams v. Culver, 111 So.2d 665, 667 (Fla.1959); Dep’t of Revenue ex rel. Sherman v. Daly, 74 So.3d 165, 168 (Fla. 1st DCA 2011); 48A Fla. Jur. 2d Statutes § 185 (2013) (“Thus, a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.”); 48A Fla. Jur. 2d Statutes § 111 (2013) (directing use of “settled maxims and principles of statutory interpretation”). In this way, the specific statute is seen as an exception to the general statute. McKendry, 641 So.2d at 46. Moreover, “[a] later promulgated statute should prevail as the last expression of legislative intent.” Id.

Applying the accepted construction canons here, the Tax Act precludes Appellants’ FFCA claim. First, the Legislature added the “sole means by which any person may seek or obtain any moneys” portion in 2002 — some eight years after the enactment of the more general FFCA. Compare § 213.30(3), Fla. Stat., and Ch. 2002-218, § 37, Laws of Fla., with § 68.081, Fla. Stat. (2011), and Ch. 94-316, § 1, Laws of Fla. Thus, it can be presumed the Legislature knew of the FFCA and its broad, general nature when it enacted the more specific Tax Act covering the narrow subject of seeking “moneys” for “the failure by another person to comply with the tax laws of this state.” The Legislature further expressed its intent by declaring it was “in derogation” and “conflict[ed] with the state’s duty to administer the tax laws.” See § 213.30(3), Fla. Stat. (2011).

Second, the Tax Act covers the narrow and specific realm of recovering “moneys” for failure to comply with the tax laws. The FFCA covers the broad and general realm of civil penalties and damages along with private remuneration. And here, Appellants seek remuneration (i.e., “moneys”) for Appellees’ alleged failure to pay document stamp taxes — a specifically described “tax” covered by the Tax Act. Consequently, the Tax Act is but an exception to the general FFCA, and the trial court did not err in finding it did not have subject matter jurisdiction. The Tax Act, mandating a DOR procedure, provides the exclusive means by which a person may obtain “moneys.”

Thus, we agree the trial court lacked subject matter jurisdiction to address this claim. This determination is dispositive, making it unnecessary to address Appellant’s remaining issues. Accordingly, the trial court’s order dismissing Appellants’ action is AFFIRMED.

ROBERTS, CLARK, JJ„ and MOSELEY, MARK W., Associate Judge, concur.

      . As applicable here, sections 68.081-083, Florida Statutes.


author: WETHERELL, J.

text:
    COLUMBIA BANK, Appellant, v. COLUMBIA DEVELOPERS, LLC, A Florida Limited Liability Company, Jock R. Phelps, Gerald M. Smith Sr., Gerald M. Smith Jr., and John Doe Or Unknown Tenants, Appellees.
    No. 1D12-5270.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Rehearing Denied Dec. 19, 2013.

      Nicholas V. Pulignano, Jr. and Meagan L. Logan of Marks Gray, P.A., Jacksonville, for Appellant.
    Kris B. Robinson of Robinson, Kennon & Kendron, Lake City, for Appellee.

      . Judge Ray was substituted for Judge Swanson after he recused himself from this case following oral argument. Judge Ray has reviewed the parties’ briefs as well as the video recording of the oral argument.

   WETHERELL, J.

Columbia Bank (“the bank”) appeals the dismissal of this Columbia County foreclosure action against Appellees. The bank argues that the trial court erred in construing a settlement agreement arising out of unrelated Suwannee County litigation involving the bank and one of the Appel-lees, Gerald M. Smith, Jr. (“Smith Jr.”), to require dismissal of this case. We agree. Accordingly, we reverse the dismissal order and remand for further proceedings.

In October 2007, the bank loaned money to Appellee Columbia Developers, LLC, for the development of commercial property in Columbia County. The loan was secured by a mortgage on the property. Additionally, the members of Columbia Developers — Appellees Jock Phelps, Gerald M. Smith Sr., and Smith Jr. — each executed personal guarantees of the loan.

After Columbia Developers failed to make the loan payment due in January 2009, the bank filed this foreclosure action. As an affirmative defense, Appellees alleged that the bank misappropriated funds paid towards the loan and converted those funds for its own purposes. Appellees raised these same claims in a slander of credit suit filed against the bank before the foreclosure action was filed.

In April 2011, the parties entered into a settlement agreement which they refer to as the “Developers Settlement Agreement.” As part of this agreement, the bank agreed to dismiss this foreclosure action and not seek deficiency judgments against Appellees, and Appellees agreed to dismiss their slander of credit suit. The agreement also required Columbia Developers to execute a deed conveying to the bank the property secured by the mortgage.

In September 2011, the bank filed a motion to enforce the Developers Settlement Agreement in which it alleged that Columbia Developers failed to execute the deed required by the agreement. In response, Columbia Developers provided the bank with a quit claim deed for the property secured by the mortgage.

In March 2012, the bank filed a second motion to enforce the settlement agreement in which it alleged that the quit claim deed contained errors in the legal description of the property and that Columbia Developers refused to execute a corrected deed. The response filed by Appellees requested that the court dismiss this case because (1) they executed the deed as required by the Developers Settlement Agreement but the bank failed to dismiss this foreclosure action as required by that agreement, and (2) a subsequent agreement, referred to by the parties as the “NFLG Settlement Agreement,” was intended to release Appellees from claims such as those asserted in the bank’s motion.

The NFLG Settlement Agreement, executed in March 2012, arose out of litigation between the bank, Smith Jr., and several others, relating to the acquisition and development of property in Suwannee County. Except for Smith Jr., none of the parties to the NFLG Settlement Agreement were involved in the Columbia County project nor are they parties to this case.

At the hearing on the motion to enforce, the bank presented testimony that the quit claim deed executed by Columbia Developers did not comply with the Developers Settlement Agreement because it contained an error in the legal description of the property. Smith Jr. testified that the deed complied with the Developers Settlement Agreement and that, in any event, the Developers Settlement Agreement had been superseded by the NFLG Settlement Agreement. The bank responded with testimony that the NFLG Settlement Agreement only encompassed the Suwan-nee County litigation and was not intended to be a “global settlement” that superseded the Developers Settlement Agreement. The trial court was understandably confused by the conflicting testimony regarding the various projects and agreements.

After the hearing, the trial court entered an order denying the bank’s motion to enforce and granting the relief requested by Appellees in their response to the motion. The court found that the NFLG Settlement Agreement “appears to encompass and supersede virtually all ‘agreements’ previously executed by the parties to this action, including the agreement [the bank] sought to enforce,” and based on that finding, the order directed the bank to “execute a Notice of Dismissal of all claims with prejudice, record a Satisfaction of Mortgage and provide [Appellees] with the original Promissory Note” in accordance with the NFLG Settlement Agreement.

The bank timely appealed this order. We directed the bank to show cause why the appeal should not be dismissed as premature since the order did not dismiss the case and contemplated additional proceedings or a subsequent order. The trial court thereafter entered a final judgment dismissing this case with prejudice, and we discharged the order to show cause and allowed the appeal to proceed.

The dismissal of this case was based solely on the trial court’s interpretation of the NFLG Settlement Agreement. Accordingly, our standard of review is de novo. See Rose v. Steigleman, 32 So.3d 644, 645 (Fla. 1st DCA 2010) (“A trial court’s interpretation of a contract is a matter of law and is thus subject to de novo review.”); see also Jenkins v. Eckerd Corp., 913 So.2d 43 (Fla. 1st DCA 2005).

The rules for construing contracts govern our interpretation of the NFLG Settlement Agreement. See Fivecoat v. Publix Super Mkts., Inc., 928 So.2d 402 (Fla. 1st DCA 2006); Williams v. Ingram, 605 So.2d 890 (Fla. 1st DCA 1992). The cardinal rule of contractual construction is that when the language of the contract is clear and unambiguous, the contract must be interpreted and enforced in accordance with its plain meaning. See Ferreira v. Home Depot/Sedgwick CMS, 12 So.3d 866, 868 (Fla. 1st DCA 2009) (“Contracts are to be construed in accordance with the plain meaning of the words therein, and it is never the role of the trial court to rewrite a contract to make it more reasonable for one of the parties.”).

The NFLG Settlement Agreement is clear and unambiguous. The agreement includes defined terms that dictate the scope of the agreement. Those terms— Property, Loan Documents, and Lawsuit — refer only to the Suwannee County property and the litigation arising out of the loans and guarantees related to that property. Notably, the agreement does not refer to this Columbia County foreclosure case or the Columbia Developers’ property in any way.

We recognize that as consideration for the dismissal of the Suwannee County litigation, the bank agreed to:

release, remise, acquit and forever discharge Ross, Edwards, Smith [Jr.] and NFLG[ ] and any heirs, agents, executors, administrators, attorneys, representatives, partners (including any and all general partners and limited partners), members, managing members, joint venturers, predecessors, successors, and assigns, of and from all claims, demands, debts, liabilities, actions and causes of action, of every kind and nature, accrued or unaccrued, now known or hereafter discovered, at law or in equity relating in any way to the Loan Documents and/or to the Property, including all claims and counterclaims that were made or could have been made in the Lawsuit.

(all emphasis added). However, by its terms, the release is limited to claims and causes of action “relating in any way to the Loan Documents and/or to the Property.”

Appellees argue that this Columbia County foreclosure action was related to the “Loan Documents” — and, thus, falls within the scope of the release in the NFLG Settlement Agreement — because the guarantees executed by Smith Jr. contained “cross default language” such that a claim of default on the loan for the Suwan-nee County property constituted a default on Smith Jr.’s guarantee of the loan for the Columbia County property, and vice versa. We reject this argument.

First, the loan documents for the Su-wannee County project, including the guarantee allegedly executed by Smith Jr., are not part of the record on appeal. Second, it strains credibility to suggest that this Columbia County foreclosure action is “related to” the Suwannee County loan documents — and, thus, encompassed in the release — simply because there was one common guarantor between the projects. Third, even if this argument had merit, the release would only cover Smith Jr. because there is no evidence that the other Appel-lees had any involvement in the Suwannee County project or any connection to the “Loan Documents” or “Property” referred to in the NFLG Settlement Agreement.

Appellees further argue that the “relating in any way” language does not limit the release to those claims arising out of the Suwannee County project. In support of this argument, they cite to another paragraph in the NFLG Settlement Agreement which states:

The releases in this Agreement include, without limitation, any claims for breach of express or implied contract, breach of implied misrepresentation, negligence, negligent misrepresentation, breach of fiduciary duty, actual or constructive fraud, including, without limitation, common law fraud or fraud or manipulation asserted under any statutory theory under any federal or state law and including, without limitation, under any theory of primary, secondary or control person liability, estoppel, defamation, conspiracy, business or economic interference, violation of any federal or state banking law, rule or administrative regulation, violation of public policy and including for attorneys’ or other professional fees.

Appellees assert that this paragraph provides a broader release of claims and encompasses the claims raised in this case. We disagree. This paragraph is not an alternative, independent release of claims by the bank; it merely provides a list of potential types of claims that could be brought between the parties, but such claims would still need to relate in some way to the Loan Documents or the Suwan-nee County property in order for the release provision in the NFLG Settlement Agreement to apply.

Simply put, there is no reasonable construction of the NFLG Settlement Agreement that would encompass this Columbia County foreclosure action in the release contained in that agreement. Accordingly, the trial court erred in ordering dismissal of this case based on the NFLG Settlement Agreement.

In reaching this conclusion, we did not overlook Appellees’ argument that the NFLG Settlement Agreement excepted several pending cases from its scope and, because this Columbia County foreclosure case was not one of the excepted cases, the parties intended that it be included within the scope of the release. The main problem with this argument is that this case had already been settled and, thus, there was no reason to list it in the cases excepted from the release.

Nor did we overlook the possibility that the dismissal order could be affirmed on the alternative ground that Appellees met their obligations under the Developers Settlement Agreement. However, we conclude that we cannot affirm on this “tipsy coachman” basis because there was conflicting evidence as to whether the quit claim deed executed by Columbia Developers complied with the Developers Settlement Agreement, and the trial court made no findings on this issue. We decline to resolve the conflicts in the evidence and determine in the first instance whether Appellees complied with the Developers Settlement Agreement. That is the responsibility of the trial court upon remand.

In sum, because the trial court erred in construing the NFLG Settlement Agreement to require dismissal of this foreclosure action, we reverse the dismissal order. This case is remanded for further proceedings on the bank’s motion to enforce the Developers Settlement Agreement.

REVERSED and REMANDED for further proceedings.

RAY and MAKAR, JJ., concur.

      . During a discussion of how this Columbia County case was related to the loan documents for the Suwannee County project and the NFLG Settlement Agreement, the trial court stated:
      I will tell you all, you’re going to have to submit, I guess, written argument that tells me clearly what it is you're asking me to decide and why you think I should decide it a certain way and the basis on which you think I should rest it, because I have tracked this pretty well, but there just seems to be a lot of balls bouncing back and forth across the table. Some of them are golf balls and some of them are tennis balls, and there is a basketball or two, just to tell you how confused I am.

      . The fact that the bank stipulated to the entry of the dismissal order does not preclude this appeal under the "invited error” doctrine as Appellees argue in their brief. It is clear from the record and the procedural context in which the dismissal order was entered that the bank did not consent to the dismissal for any purpose other than to perfect its appeal rights, and upon entry of the dismissal order, the bank’s premature notice of appeal vested jurisdiction in this court to review the dismissal order and any earlier orders in this case. See Fla. R. App. P. 9.110(h) and (Z).

      . "Property” is defined as a specific 40-acre parcel of land in Suwannee County.

      . "Loan Documents” is defined as the promissory notes and mortgages to purchase and develop the Suwannee County property, two loan agreements to further secure the notes and the commercial guarantees signed by Smith Jr. and two others.

      . “Lawsuit” is defined as the rescission action filed against the bank by Smith Jr. and the other guarantors on the Suwannee County project, as well as the bank's action to foreclose the mortgage on the Suwannee County property.

      . Ross, Edwards, and Smith Jr. were the guarantors on the loan secured by the mortgage on the Suwannee County property, and NFLG was the borrower and mortgagor.