text:
    Curtis DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3593.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.

      Curtis Davis, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Curtis Davis (Defendant), who claims entitlement to immediate release, appeals an order summarily denying his rule 8.800(a) motion and the order denying his motion for rehearing. We reverse and remand.

Defendant entered a nolo contendere plea in four cases charging offenses committed between March 8, 2005, and March 7, 2006, and was sentenced to prison terms as a youthful offender. According to his motion, after he successfully completed a Department of Corrections boot camp program, the trial court mitigated his sentences to four years of probation as a youthful offender. When he violated his probation with a new felony arrest in 2009, he was sentenced to approximately eight years in prison for each count of the first four cases and to five years for the new charge.

In the instant rule 3.800(a) motion, Defendant argued his sentences imposed on violation of probation (VOP) were illegal pursuant to 958.045(5)(e), Florida Statutes (2004), because, upon VOP after successful completion of the department’s boot camp, the court was limited to sentencing him to no more than 364 days. He asked the trial court to correct the VOP sentences. See, e.g., Davis v. State, 16 So.3d 995 (Fla. 5th DCA 2009); Morrison v. State, 978 So.2d 284 (Fla. 4th DCA 2008); Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002).

The trial court summarily denied the motion based on the state’s response, which stated that the court records showed nothing about Defendant entering or completing a boot camp program or the trial court mitigating his sentence for completion of a boot camp program. The state attached nothing to substantiate its representation, and the trial court attached only the state’s response.

Defendant moved for rehearing, attaching, as Exhibit A, a copy of the trial court’s February 27, 2009 order modifying sentence and placing him on probation, referencing the first four case numbers. The order reflects that after sentencing, Defendant successfully participated in the department’s youthful offender program and met the requirements for modification of sentence and for placement on probation pursuant to section 958.045(5)(c) [which concerns the department’s basic training program — commonly known as “boot camp”]. Accordingly, Defendant was ordered to be released from custody and placed on probation for the remainder of his incarcerative terms.

The trial court denied the motion for rehearing, arguing the actual court files did not show the entry or completion of a boot camp program or the mitigated sentences. It did not address Defendant’s Exhibit A.

Defendant’s claim is a cognizable claim of illegal sentence. E.g., Davis; Morrison; Thomas.

Pursuant to the 2004 version of sections 958.04(2)(b) and 958.045(5)(c), Florida Statutes, if a youthful offender successfully completes boot camp and then violates probation, the trial court may impose a term of incarceration that does not exceed 364 days.

Effective July 1, 2006, section 958.045(5)(c) now provides that a youthful offender who violates probation following successful completion of the boot camp program may be sentenced, on revocation of the probation, to any sentence that could have been imposed originally. See Ch. 06-270, § 1, Laws of Fla. But the amendment cannot affect Defendant’s sentence because all the offenses charged in the counts were committed prior to the effective date of the amendment. Davis, 16 So.3d at 996; Morrison, 978 So.2d at 285.

In its response to this court, the state now concedes that Defendant successfully completed a DOC boot camp program, and the trial court consequently modified his sentence in each of the first four cases to probation on February 27, 2009. It also concedes that the offenses in all four cases were committed within the time period for applying the statutes on which Defendant relies. But it argues Defendant is not entitled to relief because he waived entitlement to be sentenced to not more than 364 days in the event of a VOP, citing Lamore v. State, 86 So.3d 546 (Fla. 2d DCA2012).

In Lamore, the court reversed the summary denial of a rule 3.800(a) motion much the same as Defendant’s; however, it commented that the result could be different had Lamore stipulated otherwise. Id. at 549 & n. 1.

According to the state’s response, Defendant waived his rights to be sentenced under the 2004 version of the statutes by accepting the order modifying sentence and placing him on probation, which contains the following language:

You are hereby placed on notice that the Court may at any time rescind or modify any of the conditions of your probation ... and that if you violate any of the conditions of your probation, you may be arrested and the Court may revoke your probation and impose any sentence which it might have imposed before placing you on probation.

(Emphasis added).

However, the state’s appendix contains additional pages concerning the modification of sentence and placement on probation, one of which is titled “Defendant’s waiver of rights in modification of sentence and placement on probation,” which Defendant executed on February 4, 2009, shortly before the modification was entered. In it, he specifically waived his right to a hearing on the modification of his sentence, the right to be represented by counsel, to subpoena and confront witnesses, and to contest and appeal any order entered by the court modifying his sentence. This document does not waive his right to be sentenced, in the event of a subsequent VOP, pursuant to the applicable (2004) version of sections 958.04(2)(b) & 958.045(5)(c), Florida Statutes, and nothing else attached to the state’s response indicated that Defendant did so.

It appears from the formal waiver document that Defendant may not have been present at the time the trial court modified his sentence and entered the order containing the notice on which the state relies. Under the circumstances, it is unlikely that Defendant actually “waived” his right, on VOP, to be sentenced under the statutes in effect at the time he committed his offenses. We conclude that the trial court’s inserting a “notice” on the order modifying sentence and placing Defendant on probation do not demonstrate that Defendant knowingly waived his rights in this regard.

Accordingly, we reverse the order of denial and remand for further proceedings. If Defendant ultimately obtains the relief he seeks, then it appears his controlling sentence will be the 2009 sentence for sixty months. Taking into account the 162 days time served on the date of sentencing, with gain-time it appears he could be entitled to release as early as some time in August 2018. For that reason, we direct the trial court to undertake proceedings on this matter expeditiously.

Reversed and Remanded for further, and expeditious, proceedings.

TAYLOR, GERBER and CONNER, JJ., concur.

      . Section 958.04 concerns the disposition of youthful offenders. The subsection in question provides as follows:
      The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in either a county facility, a department probation and restitution center, or a community residential facility which is owned and operated by any public or private entity providing such services. No youthful offender may be required to serve a period of incarceration in a community correctional center as defined in s. 944.026. Admission to a department facility or center shall be contingent upon the availability of bed space and shall take into account the purpose and function of such facility or center. Placement in such a facility or center shall not exceed 364 days.

      § 958.04(2)(b), Fla. Stat. (2004) (emphasis added).

      . Section 958.045 concerns the department's basic training program for youthful offenders, known as "boot camp.” The subsection in question, in the 2004 version, provides as follows:
      The portion of the sentence served prior to placement in the basic training program may not be counted toward program completion. Upon the offender's completion of the basic training program, the department shall submit a report to the court that describes the offender's performance. If the offender's performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation. The term of probation may include placement in a community residential program. If the offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed as a condition of probation.

      § 958.045(5)(c) (emphasis added).


source: Caselaw Access Project

author: MAY, C.J.

license: Public Domain

text:
    Artoine JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1996.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.

      Carey Haughwout, Public Defender, and Ian Seldin, 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, C.J.

The defendant appeals an order revoking his probation. He argues the trial court erred in revoking his probation because the State failed to prove by competent, substantial evidence that the defendant committed the crime of loitering or prowling, or any other criminal offense, as alleged in the affidavit of violation. We agree and reverse.

The defendant’s probation orders from two prior cases required that he not “violate any law of any city, county, state or the United States.... ” The affidavit filed in support of the violation of probation attested, in part, that the defendant violated condition k.4. of his probation orders by committing the criminal offense of loitering or prowling.

At the violation hearing, the State abandoned all allegations of violation except for k.4. The State elicited testimony from two witnesses — a husband and wife — who testified that sometime after 12:30 a.m., they heard an unusually hard knock or bang on their front door. The wife went to her bedroom window and saw a man outside, standing against a wall to the right side of the door, “trying to conceal himself from a camera.”

The home was equipped with video surveillance cameras, which were visible from the front door. The wife subsequently viewed the video and noted there had been two people who knocked on her door, and then walked away. The wife identified the defendant in court as one of the men who knocked on her door. She testified the defendant had been wearing a white sleeveless shirt and a light blue pair of pants.

The husband was in bed when he heard the knocking. He watched the video recording from the surveillance cameras. He testified that the video recording depicted a person knocking hard on his door and then slowly walking away, followed by another person knocking on the door.

The husband phoned law enforcement after he heard the knocking around 12:40 a.m. Law enforcement arrived in the area within two to three minutes and saw two men walking down the street about five houses away. When law enforcement first saw the men, they were walking from east to west. As the officer neared their location, he saw the men turn around and walk in the other direction. The officer testified that his suspicion was aroused when the men changed direction.

The officer exited his cruiser and made contact with the two men. They appeared nervous. The defendant wore a red, white, and blue shirt and a do-rag. The other man wore a very long t-shirt. Both the defendant and co-defendant admitted they did not reside in the neighborhood, but denied that they had knocked on any door. No one else was in the area.

The officer stepped back from the men, drew his service weapon, and ordered them not to walk toward him as they were making him nervous. The officer then asked the men if they possessed any weapons; they did not reply. When he again asked if they possessed weapons, they did not give a straight answer.

Because the officer could not see the co-defendant’s waistband, he instructed him to lift his long t-shirt. The officer observed what he believed was a firearm tucked in the co-defendant’s waistband. The officer ordered both men onto the ground and seized the gun.

The gun appeared to be a Glock, but turned out to be a BB gun. The officer arrested both men. The female witness identified the defendant at the scene as the man she saw at her home.

After the men were under arrest, the officer read Miranda warnings to each of them. The defendant waived his right to remain silent and told the officer that he and the co-defendant were returning from a club. The defendant claimed that they were in the neighborhood because they “got in a disturbance” with the girls who had given them a ride causing them to be dropped off there. The co-defendant gave a slightly different story. The officer searched the men, and seized gloves from the pockets of both.

Based on the time, place, and property involved, the trial court found the two men had engaged in incipient criminal behavior in which law abiding people do not engage. The court found the State had proven the defendant committed the crime of loitering or prowling “by the greater weight and preponderance of the evidence.” It further found that the defendant violated condition k.4. of his probation orders, and that the violation was willful and substantial.

The defendant entered a plea of nolo contendere to the substantive charge of loitering or prowling. He now appeals the orders revoking his probation and the resulting sentences.

The defendant argues the trial court erred in finding him in violation of his probation because the State failed to produce competent, substantial evidence that he committed the crime of loitering or prowling. The State responds that it needed only to prove by preponderance of the evidence that the defendant committed loitering or prowling, and it sufficiently did so.

To establish that an individual violated probation by committing a new law violation, the State must prove by a preponderance of the evidence that the individual committed the charged offense. We must first determine, under a de novo standard, whether substantial, competent evidence supports that finding. See Santiago v. State, 874 So.2d 617, 624 (Fla. 5th DCA 2004). Then we must determine if the trial court abused its discretion in determining that the new law violation constituted a substantial and willful violation warranting revocation of the defendant’s probation. See State v. Carter, 835 So.2d 259, 262 (Fla.2002).

Section 856.021(1), Florida Statutes (2010), 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.”

Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a “catchall” provision whereby police may arrest citizens where there is no other basis which would justify their detention. 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.

Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011) (citations omitted) (internal quotation marks omitted).

The first statutory element “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). “ ‘The first element ... is not directed at suspicious after-the-fact criminal behavior which solely indicates involvement in a prior, already completed substantive criminal act.’ ” A.D. v. State, 817 So.2d 1027, 1029 (Fla. 3d DCA 2002) (quoting D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985)).

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. (2010). As to this element, “there is a presumption of alarm if the defendant ‘flees, [or] conceals himself or any object.’ ” Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008) (quoting B.J. v. State, 951 So.2d 100, 102 (Fla. 4th DCA 2007)). 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 (quoting DA, 471 So.2d at 154).

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 existed 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) (citations omitted). Because only the officer’s observations may be considered, the witnesses’ report of individuals knocking on their door cannot be considered. See Springfield v. State, 481 So.2d 975, 978 (Fla. 4th DCA 1986).

Neither the defendant nor the co-defendant attempted to flee or conceal themselves. Without the witnesses’ report or the items found in the defendant’s possession, the only arguably suspicious behaviors that the officer observed were: (1) the men were in a residential area that they admittedly did not live in; at 12:30 a.m.; (2) they began walking in the other direction when the officer approached; and, (3) the men appeared nervous. This is insufficient to prove that the defendant was about to commit a crime.

We previously addressed a similar set of facts in Freeman. There, a police officer testified that he responded to a complaint at 3:20 a.m. of “two black men carrying a burlap bag and hanging around parked cars in a residential complex.” Freeman, 617 So.2d at 433. Both men jumped a fence and ran when they saw the officer. Id. The burlap bag contained gloves and a gun. Id.

We reversed the revocation of the defendant’s probation because

the arresting officer merely saw two men jump a high wall and start walking towards the street. He did not see either man carrying anything prior to stopping them. [And][t]hese facts do not support a finding that the officer had probable cause to arrest [the defendant] for loitering and prowling.

Id.; see also Lucien v. State, 557 So.2d 918 (Fla. 4th DCA 1990); A.D., 817 So.2d at 1027.

Here, the State did not establish by a preponderance of the evidence that the defendant was loitering or prowling. We therefore reverse the order revoking the defendant’s probation and remand the case to the trial court.

Reversed and Remanded.

TAYLOR and GERBER, JJ., concur.

      . The trial court revoked the defendant’s probation and sentenced him to a term of ten years’ imprisonment, followed by five years' probation, with credit for time previously served in one case; in the second case, the trial court sentenced the defendant to concurrent terms of five years’ probation, to run consecutively to the first case.


author: PER CURIAM.

text:
    Mardie HOLLOWAY, Appellant, v. Tangan HOLLOWAY, Appellee.
    No. 4D12-4148.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.
    Romaine Brown, Plantation, for appellant.
    Edward A. Lopez, Hollywood, for appel-lee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

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


text:
    Fred BROWN and Margaret Croney-Brown, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Structured Asset Investment Loan Trust, 2005-9; Trailwood Homeowners Association, Inc.; John Doe and Jane Doe, as unknown tenants in possession; and any and all unknown Parties Claiming by, Through, Under, and against the herein named individual defendant(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as Spouses, Heirs, Devisees, Grantees or other Claimants, Appellees.
    No. 4D12-4612.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.

      Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellants.
    Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for appellee U.S. Bank National Association.
   PER CURIAM.

This appeal arises from the trial court’s denial of appellant Margaret Cro-ney-Brown’s motion to quash service of process in the underlying foreclosure proceedings. In their initial brief, appellants (Mrs. Croney-Brown and her husband) argue that appellee U.S. Bank National Association (the “Bank”) failed to meet its burden of showing that it effectuated valid service of process by strictly complying with the service of process statutes. Section 48.031(5), Florida Statutes (2009), requires the process server to note the actual date and time of service on the summons. See also Fla. R. Civ. P. 1.070(e) (requiring that the “date and hour of service shall be endorsed on the original process and all copies of it by the person making the service”). When a process server fails to strictly comply with these rules, service must be quashed. See Kwong v. Countrywide Home Loans Servicing, L.P., 54 So.3d 1033, 1034 (Fla. 4th DCA 2011); Schupak v. Sutton Hill Assocs., 710 So.2d 707, 708 (Fla. 4th DCA 1998) (“Strict compliance with the statutes governing service of process is required.”). In this instance, the Bank’s process server placed the wrong date on Mrs. Croney-Brown’s summons, a fact which the Bank never disputed.

Appellants further contend that Mrs. Croney-Brown did not waive the defect in service by making discovery requests and moving for sanctions (for failure to comply with court order compelling discovery). These motions, which were purely defensive in nature, could not be maintained “independently of plaintiffs claim,” and thus, were not requests for affirmative relief. See Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996) (“ ‘[A]ffirmative relief [is] ‘[r]elief for which defendant might maintain an action independently of plaintiffs claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it.’ ”) (quoting Grange Ins. Ass’n v. State, 110 Wash.2d 752, 757 P.2d 933, 940 (1988) (en banc) (quoting Black’s Law Dictionary 56 (5th ed. 1979))); see also Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998).

Appellee advises this court that, in lieu of filing an answer brief, it concedes that the denial of Mrs. Croney-Brown’s motion to quash service was reversible error. We accept the appellee’s confession of error, and reverse and remand this cause to the trial court for further proceedings consistent herewith.

Reversed and Remanded.

STEVENSON, GROSS and TAYLOR, JJ., concur.

      . When the Bank served Mrs. Croney-Brown, the process server listed the date and time of service on the Summons as September 1, 2009, at 9:40 p.m. Contrastingly, the date and time on the return of service indicated not only a different time, but a different date— September 2, 2009, at 9:40 a.m.

      . The Bank has apparently abandoned the waiver argument, which appellants assert was its only argument below — and the argument upon which the trial court relied in denying the motion to quash.


text:
    FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, a Florida nonprofit corporation, Appellant, v. Priam ROSENBERG, on behalf of his minor child, Samantha ROSENBERG, Appellee.
    No. 4D13-907.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.
    Leonard E. Ireland, Jr., of Clayton-Johnston, P.A., Gainesville, for appellant.
    Jon C. Moyle, Jr., of Moyle Law Firm, P.A., Tallahassee, and John P. Seiler of Seiler, Sautter, Zaden, Rimes & Wahl-brink, P.A., Fort Lauderdale, for appellee.
   MAY, C.J.

The Florida High School Athletic Association (“FHSAA”) appeals a non-final order granting a temporary injunction in favor of a father on behalf of his daughter, a student at a local private school. The FHSAA argues that it is immune from judicial review, and that the court erred in finding that the FHSAA Bylaw 9.2.4 is a recruiting rule. The FHSAA also argues the court erred in failing to set a bond. We affirm on the first two issues, but reverse on the bond issue. We remand the case for proceedings consistent with this opinion.

The student is currently a swimmer and water polo player at a local private school. Prior to enrolling, she played for a water polo club team coached by the private school’s water polo coach. The student testified that the coach neither asked her to attend the school nor offered any benefit to go there. She made the decision to attend the school for academic reasons, and because her previous school did not serve the upper grades of high school.

The student joined the swim team. At the school’s first swim meet, however, she was told she was ineligible to compete because of her participation with the water polo club team. The student missed the entire swimming season.

The school requested a ruling on the student’s eligibility from the FHSAA. It ruled that the student was ineligible based on FHSAA Bylaw 9.2.4. After exhausting the administrative remedies, the student’s father filed a Complaint in the circuit court challenging the administrative decision.

“The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 774 (Fla. 4th DCA 2009) (citations omitted) (internal quotation marks omitted).

To obtain a temporary injunction, the petitioner must establish that “‘(1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest.’ ” Burtoff v. Tauber, 85 So.3d 1182, 1183 (Fla. 4th DCA 2012) (quoting Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc., 51 So.3d 1191, 1195 (Fla. 4th DCA 2011)).

We have reviewed the trial court’s factual findings and legal conclusions, the applicable Bylaws, the relevant statutes, and case law. We find no error in the trial court’s entry of the temporary injunction. In fact, in 2012, our legislature amended section 1006.20, Florida Statutes, to strengthen the due process protections of students involved in eligibility determinations of the FHSAA. See CL 12-188, § 1006.20, Laws of Fla.

We do find error, however, in the trial court’s failure to set a bond. Florida Rule of Civil Procedure 1.610(b) provides, in pertinent part: “No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” “An injunction is defective if it does not require the movant to post a bond. ‘The trial court cannot waive this requirement nor can it comply by setting a nominal amount.’ ” Fla. High Sch. Activities Ass’n v. Mander ex rel. Mander, 932 So.2d 314, 315-16 (Fla. 2d DCA 2006) (quoting Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997)).

The trial court erred in failing to require a bond. While this might not be the ordinary type of injunction involving business or some other form of damages, it is nevertheless a temporary injunction. We therefore reverse and remand the case for the trial court to impose a bond in accordance with Florida Rule of Civil Procedure 1.610(b). See Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 280 (Fla. 2d DCA 2011).

Affirmed in part; Reversed in part; and Remanded.

GERBER and LEVINE, JJ., concur.

      . The FHSAA is a nonprofit organization designated by the Florida Legislature to govern athletics in Florida public schools and participating private schools. § 1006.20, Fla. Stat. (2012).

      . FHSAA Bylaw 9.2.4 states:
      The FHSAA supports and endorses Florida’s philosophy of school of choice for academic purposes. However, if a student chooses to attend or participate for a school, public or private, in which the student participated in any non-school athletic activities affiliated with a school that the student does not attend or did not attend in the previous school year (in the case of Non-traditional students, does not participate for or did not participate for) and then establishes his/her school residence (in the case of Non-traditional students, he/she participates) at the affiliated school within one calendar year of such participation will not be eligible in the new school until the student has been in attendance at that school for one calendar year. Establishing such school residence is bona fide evidence that the student is attending the school in whole or in part for athletic reasons.

      . FHSAA v. Melbourne Cent. Catholic High Sch., 867 So.2d 1281 (Fla. 5th DCA 2004) is distinguishable. There, the Fifth District held the student had failed to exhaust available administrative remedies. Here, the student exhausted all administrative remedies.


text:
    Robert Howard WIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2771.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.

      Margaret Good-Earnest of Good Earnest Law, P.A., Lake Worth, and Jane Kreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Although inconsistent verdicts are generally permitted in Florida, an exception is recognized when an acquittal on one charge negates a necessary element for conviction on another charge. Robert Wight appeals his conviction for conspiracy to commit unlawful compensation or reward for official behavior, arguing that a “true” inconsistent verdict occurred when he was acquitted of conspiracy to commit racketeering. Under the facts of this case and based on the manner in which Wight was charged, we find merit in his argument and reverse.

Factual Background

Wight is a vice-president and co-owner of Chaz Equipment Company, which performs rehabilitation and installation work on pipelines and sanitary sewer manholes. Chaz has contracts with municipalities in Palm Beach County, particularly in Boyn-ton Beach, Delray Beach, Lantana, and Lake Worth.

Testimony at trial reflected that Wight gave three different employees of the City of Delray Beach gift cards at Christmas time. The gift cards were from various retailers and ranged in denominations of $50 to $300. Wight either personally handed the employees the cards or included them in a Christmas card. Wight told the employees that the cards were “not about doing business, it’s about a relationship.”

Chaz also provided various municipal employees with trips to NASCAR races in Homestead and Daytona Beach, paying for the employee’s tickets, hotel bill, and some meals. One Chaz employee testified that Chaz management had meetings regarding these trips and that Wight was present at these meetings.

Wight, along with the president of Chaz and two other Chaz employees, were charged with racketeering, conspiracy to commit racketeering, and conspiracy to commit unlawful compensation or reward for official behavior. For racketeering and conspiracy to commit racketeering, Wight and his three codefendants were charged with committing and conspiring to commit at least two of forty-one predicate incidents of unlawful compensation or reward for official behavior occurring between November 19, 2004, and March 17, 2010. For conspiracy to commit unlawful compensation or reward for official behavior, Wight and his three codefendants were charged with conspiring to give various municipal employees who supervised Chaz’s contracts unlawful gifts between January 1, 2008, and March 17, 2010. Wight was found not guilty of racketeering and conspiracy to commit racketeering, but guilty of conspiracy to commit unlawful compensation or reward for official behavior.

Analysis

Wight claims that a true inconsistent verdict exists because he was convicted of conspiracy to commit unlawful compensation or rewards for official behavior but acquitted of conspiracy to commit racketeering. His claim presents a pure issue of law, so the standard of review is de novo. Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008); Dial v. State, 922 So.2d 1018, 1020 (Fla. 4th DCA 2006).

“Florida allows inconsistent verdicts because they may result from a jury’s lenity rather than a definitive statement on the innocence or guilt of a defendant.” Dial, 922 So.2d at 1020. An exception exists for “true” inconsistent verdicts, where an acquittal on one count negates a necessary element for conviction on another count. Id.

Wight argues the acquittal for conspiracy to commit racketeering necessarily negates the elements of conspiracy to commit unlawful compensation or rewards for official behavior, citing Rios v. State, 19 So.3d 1004 (Fla. 2d DCA 2009). In that case, the defendant was charged with conspiracy to commit racketeering and conspiracy to traffic in heroin. The conspiracy to commit racketeering alleged conspiracy to traffic in heroin as one of the predicate acts of the racketeering conspiracy. Id. at 1005. The defendant argued his convictions on both charges violated double jeopardy because only a single conspiracy existed. The Second District noted that “[a] criminal conspiracy is the agreement to commit a criminal act or acts, and if a single [] agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses. The conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act.” Id. at 1006 (quoting Durden v. State, 901 So.2d 967 (Fla. 2d DCA 2005)). Further, whether multiple conspiracies or a single conspiracy exists depends on the proof adduced at trial. Id. The Second District held that the conspiracy to traffic heroin count was subsumed into the conspiracy to commit racketeering count because the conspiracy to traffic heroin was part of the racketeering conspiracy and the evidence at trial reflected the existence of only a single conspiracy. Therefore, the court held convicting the defendant on both charges violated double jeopardy. Id. at 1006-07.

Rios is distinguishable from the instant case because Wight was not convicted of multiple conspiracies and the conspiracy to commit racketeering did not allege another conspiracy as one of the predicate acts; instead, all of the predicate acts were substantive offenses. However, the principle stated in Rios is well established in case law: whether multiple conspiracies or a single ongoing conspiracy exists depends upon analysis of the proof adduced at trial. Durden, 901 So.2d at 968; Cam v. State, 433 So.2d 38, 39 (Fla. 1st DCA 1983); Aiello v. State, 390 So.2d 1205, 1206 (Fla. 4th DCA 1980); Epps v. State, 354 So.2d 441, 442 (Fla. 1st DCA 1978). As explained in Aiello, “the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy.” Aiello, 390 So.2d at 1207 (quoting United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973)).

Here, the evidence presented at trial reflected one overall agreement between the officers and employees of Chaz to provide gifts to municipal employees in order to maintain a “relationship” between the municipal governments and Chaz. Simply because some Chaz employees, such as Wight, gave municipal employees gift cards while others provided free trips to NASCAR races does not establish the existence of multiple conspiracies.

The existence of a single conspiracy and the manner in which Wight was charged created a true inconsistent verdict in this case. Wight was convicted of participating in a conspiracy to commit unlawful compensation or reward for official behavior that began on January 1, 2008, and ended on March 17, 2010, but was acquitted of a conspiracy to commit racketeering that began on November 19, 2004, and ended on March 17, 2010. Wight’s acquittal of a conspiracy existing between 2004 and 2010 necessarily negates an element of a second charge accusing Wight of being involved in the same conspiracy between 2008 and 2010, particularly when both conspiracy charges allege, at their core, the same offense: unlawful compensation or reward for official behavior. Thus, we reverse Wight’s conviction for conspiracy to commit unlawful compensation or reward for official behavior and remand for the trial court to vacate the judgment and sentence.

Reversed and remanded.

DAMOORGIAN, C.J., WARNER and CONNER, JJ., concur.


author: WARNER, J.

text:
    Thomas GRANT, Appellant, v. BESSEMER TRUST COMPANY OF FLORIDA, INC., as personal representative of the Estate of Milton GRANT, Appellee.
    No. 4D11-3614.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.

      Jennifer Walker of Jennifer Walker, P.A., Fort Lauderdale, and Robin F. Hazel of Hazel Law, P.A., Pembroke Pines, for appellant.
    Glen H. Waldman, Dan P. Heller and Eleanor T. Barnett of Heller Waldman, P.L., Coconut Grove, for appellee.
   WARNER, J.

Thomas Grant appeals the final declaratory judgment of the probate court interpreting a provision of a codicil to the will of Grant’s father, Milton Grant. That provision, according to the court, did not provide for lifetime employment with Milton’s company, contrary to Thomas Grant’s contention. Because the will provision was ambiguous, and the trial court made its determinations based upon competent substantial evidence, we affirm.

Thomas filed a petition for construction of will and other declaratory relief against Bessemer Trust, the personal representative, asking for enforcement and/or damages for an alleged violation of a codicil of his father Milton’s will, which he alleged required Bessemer to provide him lifetime employment with the parent company of the corporate conglomerate that his father had founded. It is undisputed that Thomas was terminated by company executives with the knowledge of Bessemer Trust. Bessemer filed a counterclaim for declaratory relief, requesting interpretation of the employment codicil. Bessemer ultimately contended that Thomas was entitled only to at-will employment and that his employment at one of the company’s subsidiaries for sixteen months between Milton’s death and Thomas’s termination satisfied the employment provision.

In responding to cross-motions for summary judgment, the trial court ruled that the will provision was ambiguous, thus requiring an evidentiary hearing to resolve the ambiguity. The court then held an extensive trial on the issues at which the following evidence was presented.

Milton Grant, the C.E.O. and 100% owner of the stock of Grant Communications, Inc., a company that operates a number of television stations across the country, was the father of Thomas, as well as two daughters. Milton built Grant Communications into a highly successful and valuable conglomerate of subsidiary companies from which he intended his family to prosper forever. He was devoted to his company.

He was also devoted to his only son, Thomas. He wanted Thomas to work in the company and began to employ him in 1996 in various capacities. At the time of Milton’s death, Thomas was the national sales manager of a television station in Roanoke, Virginia, with responsibilities for handling national accounts for one local station. Although Thomas claimed to have been extremely successful, testimony from Milton’s business associates indicated that Milton was concerned about Thomas’ business abilities. During his fifteen years in the company prior to Milton’s death, Thomas was never promoted to station manager, which would have been the progression to corporate management. While Thomas and other witnesses testified that Milton expressed a desire that Thomas take over the company one day, other witnesses testified that Milton did not think that Thomas was cut out for management.

Concerned about his family as well as his business should he die, Milton began developing his estate plan around 2000. His beneficiaries included his three children, his wife, from whom he was separated for many years, and his long-time companion and mother of Thomas. He turned to his estate planning attorney, Dan Miel-nicki, and later to his Chief Financial Officer and close associate, Mark Ryan, for assistance with his planning. Thomas was not involved at all in the development of the estate plan. Milton also relied on his long-time counsel and advisor, Jack Lewis, an attorney in Northern Virginia, to be the business trustee of the company upon Milton’s death. Lewis did not know of the existence of Thomas or that he worked for the company until shortly before Milton died.

The completed estate plan included a will and various trust agreements. Milton’s will provided that his 100% ownership of Grant Communications would pour over into two trusts. Until the pour over occurred, the will gave the personal representative the power to oversee the control and operation of the business. While the stock was in the estate, all decisions were to be made by the personal representative, which was Bessemer Trust, and after the stock was transferred from the estate to the trust, decisions were to be made by the business trustee, Jack Lewis. In the will and all trust documents, there was a provision regarding the personal representative’s and the trustee’s powers with respect to employment:

to engage, compensate and discharge, or as a stockholder or director of any such corporation, to vote to engage, compensate and discharge such managers, employees, agents, attorneys, accountants, consultants, advisors, or other representatives of any such business or corporation as may be deemed advisable, including, without limitation, any fiduciary under this will or an officer or employee of any corporate fiduciary under this will or any person who is a beneficiary under this will....

Last Will and Testament, Article XII, Section (A)(25) (emphasis supplied). See also generally Milton Grant Family Trust, Article XI, Section (B)(4). Thomas and his other family members were all beneficiaries of the trust. The will and trusts were executed in August 2006. The fiduciaries were also given the authority to sell the business if they deemed it prudent.

All who testified agreed that Milton wanted his son to continue as an employee of the company. Shortly after the execution of the will and trusts, a representative of the original appointed personal representative contacted Mielnicki and asked about an employment agreement for Thomas, because none of the estate planning documents contained any provision for employment for Thomas. The representative testified that Milton had a twofold concern: first, that his son have a good work ethic and not simply sit back and enjoy his inheritance, and second, that Thomas would have a guaranteed position with the company.

Mark Ryan, Grant Communications’ CFO, also wrote Mielnicki, suggesting that they needed to come up with something to guarantee Thomas’ employment with a $125,000 minimum salary, as well as other work, should the Business Trustee sell the company. Mielnicki acknowledged the requests, but he specifically denied that he had been asked to draft an employment agreement. He had advised Milton that an employment agreement should not be included in testamentary documents. They discussed “gainful employment” for Thomas. Mielnicki admitted that based on his conversations with Milton it was clear that “he wanted his son to be involved in the business. There was no doubt about that.” However, Mielnicki advised Milton that Thomas should have an employment agreement and not place any directive regarding Thomas’ employment in the testamentary documents which Mielnicki was preparing. Milton, however, did not approve of employment agreements for any employees and had avoided them throughout his operation of the company, except for certain television personalities.

Ryan testified that Milton did not believe that Thomas was cut out for top corporate management. Thomas frequently caused problems in the corporation, but Milton did not want to hear about his son’s shortcomings. Because of them, however, Milton did not include Thomas on corporate policy discussions or share sensitive financial information with him.

In April 2007, Milton was diagnosed with a terminal illness. Ryan continued to act as a conduit to finish various details of Milton’s estate plan. A list of Business Directives composed by Ryan included a provision that Thomas continue with the business at a salary of $125,000. Attached was a “codicil” handwritten by Milton stating: “Keep [Thomas] with business + 120,000 + salary.” Another portion of the notes mentioned a price if the company were sold. While Ryan sent Mielnicki this list, which included a provision that Thomas would always be employed with the company, Ryan also explained that he had written these ideas down in “about ten seconds” and were his notes. Milton had never asked him to obtain an employment agreement for Thomas. Having already advised Milton that an employment provision by will was not appropriate but could be accomplished through an employment agreement, Mielnicki prepared a codicil incorporating several of the changes that Milton desired to make. Included was the following provision with respect to Thomas’ employment with the company:

Employment provision for Thomas Jeffrey Grant. It is my intention that [Thomas] continue to be employed in a suitable and reasonable position in connection with the operation and management of my television station group. Accordingly, I hereby direct my Personal Representatives to make the necessary arrangements with my Business Trustee to ensure such employment and to ensure that his annual salary shall be no less than $125,000 per year, appropriately adjusted for annual cost of living increases.

Mielnicki testified that he chose to use certain precatory language in the employment provision based upon his prior conversations with Milton on the subject of will provisions and employment agreements. His advice to Milton was that he felt it was inappropriate to put a mandatory provision in a will, thus he considered the language precatory. Moreover, despite his advice that a guarantee of employment for Thomas could be accomplished through an employment agreement, Milton never directed anyone to draft such an agreement.

In a final codicil which Mielnicki did not prepare (no one could testify as to who prepared it), Milton appointed Andrew Pfeiffer to succeed him as Chief Executive Officer of Grant Communications. Milton explained his choice, writing, “Andrew has been my partner for more than 25 years and has helped me build these companies. He understands the companies’ dynamics and my wishes and my thinking better than anyone on the planet.”

After Milton died, Pfeiffer sent Thomas to Huntsville, Alabama, as national sales manager. He also gave Thomas a title of corporate vice-president. After sixteen months of employment at a salary equivalent of what was specified in the codicil to the will, Pfeiffer terminated Thomas.

The court rendered a lengthy final judgment. In discussing the evidence, the court found it to be significant that Milton was concerned with Thomas’ management abilities and never in any of the late codicils expressed an intention that Thomas should be running the company in five years, have lifetime employment, or work at the home headquarters in Fort Lauder-dale, as Thomas testified. Instead, Milton expressed in his Third Codicil that he placed his trust in Pfeiffer to run his conglomerate after Milton’s death. The court also found significant the fact that the Business Directives prepared by Ryan, which included a provision that Thomas always have employment with the company, were at variance with the codicil actually executed several days later by Milton. The court determined that the Business Directives were not legally binding documents, nor were they even prepared by Milton. “If it is to serve any value in interpretation of Milton’s testamentary intent, it suggests Milton was conflicted with respect to what he wanted to do with his beloved son, vis-a-vis Grant Communications .... ” The court then found that Thomas’ claim — that Milton intended him to have a corporate management position in Fort Lauderdale for life — untenable and completely contrary to the faith that Milton placed in Pfeiffer to carry on with the company.

In interpreting the employment codicil, the court concluded that it did not amount to a directive for lifetime employment, and the court concluded that Milton did not intend such a result. Milton could have prepared an employment contract during his lifetime to accomplish this result but declined to do so. Thus, the provision was also not intended to be an employment contract. The first sentence in the codicil which expressed Milton’s intentions for his son to be employed in a suitable position with the company constituted a precatory statement, according to the court. The second sentence constituted a directive to the personal representative and business trustee to take the necessary steps to create and obtain for Thomas the type of position Milton intended in the first sentence. Because Milton had himself placed Thomas in the position of national sales manager at the Roanoke station, the court concluded that such a position was “suitable” within the meaning of the codicil, and his reassignment to the Huntsville station was a similarly suitable position. The court determined that “ ‘[e]nsure such employment,’ does not mean employment with the company will be maintained and guaranteed forever, but merely obtained.” As well, Thomas made a salary of $125,000 at his position, all of which requirements Bessemer accomplished to satisfy the directive. The court construed the provision as an employment at will arrangement. The court summarized its conclusions as follows.

(1) The Employment Provision of the First Codicil of Milton Grant, dated April 17, 2007, does not legally provide for an employment contract, or assurance of lifetime employment for Thomas.
(IA) Employment is not a real/personal property interest as that term is defined in section 731.201, Florida Statutes.... Employment is incapable of being devised or bequeathed in a will.
(IB) The right to employ Thomas, or the determination of the length of such employment, was not a right that Milton owned upon his death, but rather [was] a decision that belonged to Grant Communications. While Milton was alive, and as an officer, director and/or owner of a hundred percent of the stock, he could have, on behalf of Grant Communications, entered into an employment contract for a determinate or indeterminate period of time with Thomas. For whatever reason, whatever reason that may be, he chose not to do so.
(2) The employment provision is not in its entirety, precatory. The first sentence of said clause expressing Milton’s intentions as worded, is precatory. The second and final sentence thereof is a directive, similar to a multiplicity of directives that are oftentimes contained in testamentary documents. Such directive does not provide for guaranteed lifetime employment, or a contract ensuring such. An interpretation of this second sentence in the manner suggested by Thomas is simply a stretch, that is without factual and legal support. The second sentence as written merely directs the personal representative to see to it that upon Milton’s death, Thomas is employed with Grant Communications at a salary of $125,000 per year, to be annually adjusted for cost of living increases. Implicit, however, with such direction, is that such employment is at-will, and that Thomas is subject to dismissal upon reasonable grounds.

(Internal citation omitted). On a motion for rehearing, the court clarified that it arrived at its determination that the codicil provided only at-will employment, because a will was not the method for providing lifetime employment, nor was the wording of this codicil susceptible to that assurance. From this judgment, Thomas appeals.

The findings of a probate court present mixed questions of law and fact, and the appellate court decides whether the factual findings are supported by competent substantial evidence and the findings of law are reviewed de novo. See SAPG Sun City Ctr., LLC v. Kennedy, 79 So.3d 916, 919 (Fla. 2d DCA 2012). In reviewing a probate order, factual findings of the probate court are entitled to the same deference as any other trier of fact:

“An order of the probate court arrives in the appellate court clothed with the presumption of its correctness and will be affirmed if it can be supported on any theory.... The findings of a probate court are entitled to the same weight as the findings of any other trier of fact.... The burden is on the appellant to show that the findings and order of the probate court are clearly erroneous.... ”

Estate of Conger v. Conger, 414 So.2d 230, 233 (Fla. 3d DCA 1982) (internal citations omitted) (quoting Beck v. Beck, 383 So.2d 268, 272 (Fla. 3d DCA 1980)).

In construing a will, the polestar for the court is the intent of the testator. See Morgenthaler v. First Atl. Nat’l Bank of Daytona Beach, 80 So.2d 446, 452 (Fla.1955). “The testator’s intent is to be measured by the language he selected and used by looking at the entire instrument, not isolated words, clauses or paragraphs. ... We give greater weight to the stated chosen words of the testator as opposed to the unstated words or silence on the part of the testator.” Bourgeois v. Eberhart, 472 So.2d 1274, 1276 (Fla. 4th DCA 1985) (internal citation omitted). The trial court appropriately cited to In re Pratt’s Estate, 88 So.2d 499, 504 (Fla.1956), for the proposition that “[t]he law of wills is calculated to avoid speculation as to the testator’s intent and to concentrate upon what he said rather than what he might, or should, have wanted to say.”

Substantial competent evidence supports the trial court’s conclusion that, through the employment codicil, Milton did not intend to confer a guarantee of lifetime employment in the corporate headquarters of his father’s vast conglomerate company. It is apparent that the trial court gave little credence to Thomas’ testimony that his father had promised him that he would take over the company. The court placed greater importance on the testimony of the trusted business associates of Milton as well as the entire structure of Milton’s estate and business continuation plan. Most significantly, the court found that Milton had ample opportunity during his lifetime to provide for the type of guarantee of employment that Thomas stated his father desired, yet his father never ordered preparation of any employment agreement between Thomas and the company. Indeed, providing lifetime employment with the company would appear at odds with Milton’s grant of authority to his fiduciaries to sell the company. Given the inconsistency between what Thomas claims his father wanted for him and Milton’s carefully thought out plans for his company and its management, the trial court adhered to the principles of construction and placed its reliance on the words the testator chose as opposed to those he did not state.

Furthermore, the trial court found, and we concur, that the first sentence of the employment codicil was a precatory statement, not a mandatory directive. It expressed Milton’s desire for his son. Thus, his desire was for his son to “continue to be employed” by the company. As this was a precatory statement, it does not compel a conclusion that Milton’s intent was to provide lifetime employment with Grant Communications, particularly where Thomas’ past performance did not convince his father that he was a capable employee. The court interpreted the second sentence as a directive for Bessemer and the business trustee to make arrange-merits for a suitable position in the firm at the stated salary. The court found that it did not guarantee lifetime employment and was satisfied by the acquisition of employment at the television station in Huntsville.

The court’s determination in part rested on its conclusion that employment could not be devised. We need not determine whether any type of employment can be the subject of a testamentary direction, because we conclude that the court correctly found that this employment within Grant Communications could not be the subject of a testamentary direction binding upon the officers and directors of the various companies in the conglomerate. To so find would conflict with the fiduciary duties of officers and directors to the corporation and its creditors. See § 607.0830(1), Fla. Stat.; In re Aqua Clear Techs., Inc., 361 B.R. 567, 574 (Bkrtcy.S.D.Fla.2007). Directors and officers must act in the best interests of the corporation, not the employee. The trial court acknowledged this when it found that Milton could not bind the decisions of the officers and directors of the corporation after his death. His own trust documents acknowledged as much by giving to the personal representative and business trustee the power to hire and fire employees, even beneficiaries under the will and trust. A testamentary direction to guarantee Thomas employment within the company, regardless of circumstances or detriment to the corporation, could compel the violation of fiduciary duties of the officers and directors to the corporation. This would be a violation of statutory duties and the public policy behind them.

Two cases in Florida involve a will provision directing employment. In re Estate of Marks, 83 So.2d 853 (Fla.1955), and In re Estate of Fresia, 390 So.2d 176 (Fla. 5th DCA 1980), involve directions to the personal representative — to hire a lawyer in the case of Marks, and a real estate agent in the case of Fresia — for the administration of the estate. Both courts held that a will provision could not compel a personal representative to hire a specific person who would be acting in a fiduciary capacity because of the confidential relationship between the personal representative and a fiduciary. Although not otherwise on point, these cases support the proposition that a testamentary provision cannot inject coercion into a fiduciary relationship. Similarly, to construe the employment codicil in this case as mandatory on the directors and officers of the company, through the personal representative and business trustee, coerces them to employ Thomas even though it may violate their fiduciary duty to the corporation.

Thomas cites to several older out-of-state cases in which trial courts upheld a will provision directing employment. See, e.g., In re Hand’s Estate, 315 Pa. 238, 244, 172 A. 666, 669 (1934); In re Ingles’ Estate, 76 Pa. 430 (1894). These cases all involved the employment by the personal representative of non-fiduciary employees to assist in the administration of the estate. One case involves employment with the testator’s company. In Hughes v. Hiscox, 105 Mise. 521, 174 N.Y.S. 564 (N.Y.Sup.Ct.1919), the will of the testator provided: “In consideration of his faithful and efficient services and knowledge of the business, I will and direct that my son-in-law, Charles R. Hughes, be retained and employed in the conduct of said business ... at a salary of two thousand ($2,000) dollars per year.” Id. at 565. The court ruled that although a testator could not require his executor or trustees to employ an attorney named by him (because of the fiduciary relationship), there was no authority preventing a testator from requiring his executor or trustees to employ a designated person in some other capacity not involving a relationship so highly confidential as that of an attorney/client. However, the opinion does not discuss whether the executor or trustees owed a fiduciary duty to the corporation which would render the phrase unenforceable as a mandatory directive. We therefore find Hughes inapposite and of little persuasive value.

More on point is In re Pittock’s Will, 102 Or. 159, 199 P. 633 (1921). There, the testator owned a majority of shares of a publishing company which he left in trust for twenty years and ordered that none of the stock be sold. A provision of the will directed his trustees to vote themselves as directors and further requested and desired that two long-time employees be retained as manager and managing editor of the company. The court held that the testamentary direction to vote the shares of stock for his trustees as directors was a valid testamentary exercise of the right of ownership of the stock. With respect to the direction to employ certain persons with the corporation, the court found that the direction was precatory and not a mandatory requirement to hire the individuals. The court looked to the entire trust provisions which gave the trustees full and complete authority to manage the estate and complete power to vote his stock as well as all other incidents of stock ownership. The court noted, however, that:

it is not shown or intimated that the agreement, if there was one, to employ Morden and Piper [manager and managing editor], would be harmful to the best interests of the corporation or hurtful to the interests of the other stockholders, or that it was based upon any benefit private or personal to Pittock. Their long retention in the service of the corporation attests their ability and faithfulness, and in the light of the best authorities it was legitimate for the controlling stockholder so to shape the direction of his property and his testamentary instructions to his trustees as to express his best judgment and give it effect in corporate operation through the regular channel of a board of directors elected by that stock.

We glean from this that, even though prec-atory, the provision was made for the benefit of the corporation as opposed to the benefit of the testator or a third party. In contrast, the employment provision in this case was not for the benefit of the corporation but solely for the benefit of Thomas.

Howell v. Sykes, 136 N.C.App. 407, 526 S.E.2d 183 (2000), is also instructive. There the sole shareholder of a corporation devised her shares to her nieces specifically subject to an agreement that the shareholder made with one of her employees that he receive his same annual salary for life. The corporation and one of the nieces brought suit for declaratory judgment to determine the interpretation of that clause. The trial court construed the clause as imposing a lien on the shares of stock bequeathed to the nieces for the amount of the lifetime salary.

In upholding the trial court’s interpretation, the appellate court used a familiar rule of construction that a court should search for a meaning that will uphold the clause rather than to invalidate it: “Where a devise or bequest would be invalid or unlawful under one construction, but would be valid under a different interpretation, the latter must prevail because it is presumed the testatrix intended a valid disposition of her property.” Howell, 526 S.E.2d at 185 (citing Poindexter v. Wachovia Bank & Trust Co., 258 N.C. 371, 128 S.E.2d 867 (1963)). The corporation argued that requiring the officers and directors to vote to pay the lifetime contract could mean that they would be violating their duty to the corporation, its shareholders, and creditors. Because the trial court imposed the charge on the stock, the appellate court discounted that argument, although it found that had the provision not been so construed, the claim would implicate a violation of fiduciary duty:

Plaintiffs’ arguments with respect to a potential conflict between the duties owed by [the shareholder] and other directors to [the corporation] and its creditors, and the obligation to cause the corporation to make payments to [the employee] in accordance with Article Three, would have merit had the trial court interpreted Article Three to require that [the corporation] provide lifetime support and benefits to [the employee], as such an interpretation would have placed an impermissible restraint upon [the corporation]’s directors and would be arguably ultra vires .... However, in this case, the trial court imposed no such duty upon [the corporation] and, following the rule that a court should search for a meaning which would give effect to, rather than nullify, the intent of the testator, construed Article Three as “impos[ing] a charge” upon the shares bequeathed to [the shareholder] for the payments to [the employee].

(emphasis supplied) (citations omitted). The court pointed to North Carolina statutes imposing a duty on behalf of directors to act in good faith in the best interests of the corporation. See N.C. Gen.Stat. § 55-8-30 (General Standards for Directors). Florida has the same standards. See § 607.0830(1), Fla. Stat.

Applying the reasoning of Howell to this case, we conclude that the trial court interpreted the employment clause in a way to preserve it to the extent that it could be enforced without encroaching on the fiduciary duties of the personal representative, business trustee, directors and officers of the corporation. In considering the great degree of power and discretion given to the personal representative and business trustee in the operation and management of the companies, including their right to discharge employees including beneficiaries and to sell the corporation, the court interpreted the clause to require the personal representative to obtain employment for Thomas with the company but not to compel them to retain him contrary to their fiduciary obligation to the corporation. Unlike Howell, Milton did not make the employment provision subject to any specific bequest. Therefore, it could not be enforced as a charge against a specific stock bequest.

Milton placed great trust in his business trustee and the people he chose to run the company. We think the trial court correctly construed the employment codicil to reflect Milton’s present intention of wanting Thomas to continue working for his companies but giving deference to his fiduciaries’ responsibility to the corporation as to Thomas’ future employment.

For the foregoing reasons, we affirm the decision of the trial court.

GROSS, J„ and STONE, BARRY J„ Senior Judge, concur.


author: DAMOORGIAN, C.J.

text:
    David LOUGAS a/k/a David Lougasi, Appellant, v. SOPHIA ENTERPRISES, INC., and Nancy Feldman, Appellees.
    No. 4D12-2355.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.

      Ira S. Silver of Silver & Silver, Miami, for appellant.
    Michael R. Bass of Michael R. Bass, P.A., Fort Lauderdale, for appellee Sophia Enterprises, Inc.
   DAMOORGIAN, C.J.

Appellant, David Lougasi, appeals a final judgment entered against him and in favor of Appellee, Sophia Enterprises, Inc. (“Landlord”) for damages arising from a breach of a commercial lease by Appellant’s assignee, Nancy Feldman (“Assign-ee”). We reverse because the undisputed evidence introduced at trial established that the Landlord terminated the lease prior to the Assignee’s alleged breach, thus relieving Appellant of his obligations under the lease.

The facts of this case are as follows. In September of 2007, Appellant entered into a five-year commercial lease with Landlord (the “Lease”). The Lease provided that in the event Appellant assigned his rights under the Lease, Appellant would still be responsible for any unpaid rents by his assignee. It also provided that the Landlord could unilaterally terminate the Lease in the event of a sale of the leasehold property after providing sixty days written notice to the tenant.

In April of 2008, Appellant sold his business and assigned his interest in the Lease to Assignee. Then, in late August of 2008, Landlord sent Assignee the following notice through its counsel:

In accordance with the terms and conditions of said lease, my client hereby gives you sixty (60) days notice to vacate based upon the recent sale of the premises and expects that you will return possession of the premises to your new landlords on or before October 31, 2008. It is my clients [sic] expectation that the premises will be broom clean and that you will deliver the keys as required by the lease. Please further be advised that any security deposit pursuant to your leasehold will be returned to you in accordance with the terms of the lease and/or Florida Statutes.

Assignee felt that Landlord was not justified in its termination since there was no sale of the leasehold property, and made several attempts at getting Landlord to rescind the termination. Assignee’s father, a retired attorney, also tried to negotiate with Landlord on Assignee’s behalf. Despite their best efforts, both Assignee and her father testified that Landlord never rescinded the termination notice. At the trial, Landlord’s principal admitted that it intended to terminate the Lease when it sent the termination notice, but realized after the fact that it probably did not have grounds under the Lease to do so. Nonetheless, Landlord confirmed that it never rescinded its notice of termination. Despite the termination notice, Assignee continued to pay and Landlord continued to accept rent until December of 2008, when Assignee failed to timely pay rent. Landlord then sued Assignee and Appellant for breach of the Lease.

Following a bench trial, the court entered final judgment in Landlord’s favor, finding in pertinent part:

[T]he conduct of the parties does not establish a termination of the lease. There was an acknowledgment that [the Assignee] continued to perform under the lease for many months after the date she claims the lease was terminated.

Appellant contests this ruling on appeal, asserting that Landlord terminated the Lease, and thus his legal obligations under the Lease, by sending the termination notice. We agree.

The interpretation of a lease agreement is a question of law and the applicable standard of review is de novo. Leisure Resorts, Inc. v. City of W. Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003). In an appeal from a bench trial, “ ‘the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.’ ” Taylor v. Richards, 971 So.2d 127, 129 (Fla. 4th DCA 2007) (quoting Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005)).

Here, there was no dispute that Landlord sent Assignee a termination notice in August of 2008. There was also no dispute that Landlord intended to terminate the Lease and never took any action to rescind the termination notice. Thus, the only evidence the court had to determine that there was no termination was that Assignee disagreed with the basis for the termination and continued to pay rent. This is not sufficient to support the court’s finding. The Assignee’s actions in continuing to pay rent after the Landlord terminated the Lease did not negate the Landlord’s actions or somehow legally reinstate the Lease. Rather, they merely created a month-to-month tenancy independent of the Lease. See Wenboy Ltd. P’ship v. Rockledge Bar-B-Q, Inc., 619 So.2d 414, 418 n. 4 (Fla. 5th DCA 1993) (noting that “if after notice of termination of a written lease, the tenant proffered and the landlord accepted rent payments before an action for eviction was filed,” a month-to-month tenancy is created); see also § 83.04, Fla. Stat. (2008) (if a written lease has expired and the tenant continues to pay rent which the landlord accepts, the lease is not renewed but a tenancy at sufferance is created).

Accordingly, we hold that the court incorrectly found that the Lease was not terminated. Once the Lease was terminated, Appellant had no further obligations to Landlord. Thus, it was error for the court to find Appellant liable for events that occurred after the termination.

Reversed.

WARNER and CONNER, JJ., concur.

      . Whether the Landlord had the right under the Lease to terminate is a question for a different day, and could have been the basis for a breach of contract action against Landlord by Assignee. The Landlord took objective steps to terminate the lease by sending written notice of termination, knowing a termination unconnected to a breach of performance by the tenant would release the liability of Appellant as assignor. The lease required written notices. The Landlord took no steps to rescind its notice of termination. Under the unambiguous language of the lease, the lease was terminated. The fact that the termination may have been improper does not negate the fact of termination. We disagree with the Landlord's argument that the written notice of termination was a nullity.


text:
    Robert WRIEDEN, Appellant, v. Christine WRIEDEN, Appellee.
    No. 4D12-1936.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Christine Wrieden, Delray Beach, pro se.
   PER CURIAM.

The former husband appeals an order granting the former wife’s motion for civil contempt and enforcement, and overruling his exceptions to the magistrate’s report. He argues the trial court erred in adopting the magistrate’s recommendations to: (1) deny his motion for continuance; (2) order him to pay his former wife’s rent at a location other than the one identified in the Marital Settlement Agreement (“MSA”); and (3) give the wife exclusive possession of the marital home. We find no error in issues one and three, but reverse on issue two.

The MSA required the former husband to share equally in the “rent on the [former wife’s] residence located at” a specific address. At the hearing, the former wife produced evidence showing she resided at two different locations during the relevant period, including the one identified in the MSA. She provided three different leases, one of which was for the location identified in the MSA, and testified to the rent expense at both locations. The magistrate recommended that the former husband pay one half of the rent at both of the locations.

The former husband filed an exception to this recommendation, arguing that the MSA limited his obligation to pay one half of the rent for the first location only. The trial court overruled his exception, and ordered him to pay rent in the amount of $31,325, covering one half of the rent at both of the locations. From this order, the former husband appeals.

As with any contract, “where the terms of a marital settlement agreement are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document. It is only when a term in a marital settlement agreement is ambiguous or unclear that the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.”

Jones v. Treasure, 984 So.2d 634, 636 (Fla. 4th DCA 2008) (quoting Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997)).

Because the MSA is unambiguous in requiring the former husband to pay one half of the rent at only one location, the trial court erred when it accepted the magistrate’s recommendation that the former husband pay one half of the rent for the other location. We therefore reverse and remand the case for the trial court to reduce the amount owed by the former husband to the amount of his unpaid share of rent for the specific location listed in the MSA. We find no error in the other issues raised.

Affirmed in part; Reversed in part.

MAY, GERBER and LEVINE, JJ., concur.


text:
    Jarrell ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2879.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellant’s sole argument on appeal is that his convictions for resisting arrest with violence and resisting arrest without violence violate double jeopardy, as both crimes arise from his actions during a single incident. The State concedes, and we agree, that appellant’s conviction and sentence for resisting an officer without violence should be vacated and his conviction and sentence for resisting arrest with violence should be affirmed. See D.A.R. v. State, 22 So.3d 850 (Fla. 4th DCA 2009); Goodman v. State, 801 So.2d 1012 (Fla. 4th DCA 2001). Accordingly, we reverse and remand with instructions to vacate appellant’s conviction for resisting an officer without violence.

Reversed and Remanded.

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


text:
    Jakaris TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-4703, 4D11-4559.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Bernard S. Fernandez, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013). We certify conflict with Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court:

1. DOES Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affh-med; conflict certified; questions certified.

MAY, GERBER and LEVINE, JJ., concur.


text:
    STATE of Florida, Appellant, v. C.B., Appellee.
    Nos. 4D11-4105, 4D11-4106.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    James S. Benjamin of Benjamin & Aar-onson, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The State of Florida appeals an order granting appellee’s petition to seal his criminal record stemming from two arrests. Pursuant to section 943.059, Florida Statutes (2011), “[t]he court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.” In State v. A.B.M., 742 So.2d 818, 820 (Fla. 2d DCA 1999), the Second District construed this statutory language “to apply to additional arrests or charges that stem from one criminal activity or episode where the additional offenses are temporally related or there is some nexus between the offenses.” In State v. Dinkins, 794 So.2d 736, 738 (Fla. 1st DCA 2001), the First District agreed that “the offenses must stem from one activity or episode, and in addition, the crimes must be temporally related or have a nexus between them.”

In the instant case, the trial court erred in finding the nexus element satisfied. The trial court improperly relied on the unsworn statements of appellee’s counsel, see State v. Silver, 723 So.2d 381, 382-83 (Fla. 4th DCA 1998), and, even if appel-lee’s counsel’s statements were true, they still would not have satisfied the nexus element. Additionally, the offenses did not stem from one criminal activity or episode and were not temporally related. Because the offenses were not “directly relate[d],” we reverse and remand with directions to deny the petition.

Reversed and remanded.

MAY, GERBER and LEVINE, JJ„ concur.


text:
    Domenic LOMBARDO and Nancy Anzalone, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, Appellee.
    No. 4D12-8.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Kevin L. Hagen of the Law Offices of Hagen & Hagen,- P.A., Fort Lauderdale, for appellants.
    Donna L. Eng, Michael K. Winston and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellants Domenic Lombardo and Nancy Anzalone, defendants below, appeal a Final Summary Judgment of Mortgage Foreclosure entered in favor of the Appel-lee HSBC Bank, National Association as Trustee for Wells Fargo Asset Securities Corporation Mortgage Pass Through Certificates, Series 2006-AR8, plaintiff below. We reverse the summary judgment because, based on the record evidence in its present state, there remains a genuine issue of material fact regarding whether ap-pellee complied with the condition precedent contained in the mortgage to provide pre-suit notice of acceleration. See Serrano v. HSBC Bank USA, Nat’l Ass’n, 107 So.3d 527 (Fla. 4th DCA 2013); Dominko v. Wells Fargo Bank, N.A., 102 So.3d 696 (Fla. 4th DCA 2012). We find no merit in the other issues raised by appellants.

Reversed and remanded.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    John Fitzgerald ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-596.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Carey Haughwout, Public Defender and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his convictions and sentences for burglary of an occupied dwelling while masked and resisting an officer without violence, raising three issues. Appellant argues that (1) the trial court erred in admitting a flashlight into evidence that was found on appellant when he was arrested; (2) ineffective assistance of counsel appears on the face of the record due to defense counsel’s failure to persist in a motion for mistrial after the prosecutor found a glove in the hat worn by appellant; and (3) the trial court failed to conduct an inquiry under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), after appellant indicated he did not wish for his counsel to proceed with the mistrial motion. We find each of these issues to be without merit, and therefore, we affirm. As to appellant’s second issue, we find only that ineffective assistance of counsel is not apparent on the face of the record. See Ellerbee v. State, 87 So.3d 730, 739 (Fla.2012) (“An ineffective assistance of counsel claim may be brought on direct appeal only in the ‘rare’ instance where (1) the ineffectiveness is apparent on the face of the record, and (2) it would be ‘a waste of judicial resources to require the trial court to address the issue.’ ”) (citation omitted).

Affirmed.

MAY, GERBER and LEVINE, JJ., concur.


text:
    Rene GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-153.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Jan P. Weiss, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d - (Fla.2012).

GROSS, GERBER and CONNER, JJ„ concur.


text:
    Patrick O’BRIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3465.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Patrick O’Brien, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand the summary denial of appellant’s Rule 3.850 motion. Burton v. State, 92 So.3d 305 (Fla. 4th DCA 2012). The trial court denied the motion without explanation, indicating it had reviewed “the State’s Response.” As the State concedes in this appeal, no State response was in fact filed below. Appellant pointed out in his motion for rehearing that he had not received an order requiring a State response or any such response from the State. The court denied rehearing without explanation.

The court was required to explain the basis for denial or attach portions of the record conclusively refuting the claim. Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (“To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.”) The case is reversed and remanded for this purpose.

Reversed and remanded.

MAY, CONNER and FORST, JJ., concur.


text:
    Elroy LACY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4527.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Rehearing Denied Aug. 16, 2013.
    Elroy Lacy, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a timely motion for post-conviction relief, Fla. R.Crim. P. 3.850, challenging the voluntariness of his plea agreement in case nos. 04-1488CFA02 and 10-9329CFA02 due to his assertion that he was not awarded the proper amount of jail credit as part of the agreement. Johnson v. State, 60 So.3d 1045, 1052 (Fla.2011); Villar v. State, 110 So.3d 503, 504 (Fla. 4th DCA 2013); Seplow v. State, 82 So.3d 948 (Fla. 4th DCA 2011).

Affirmed, without prejudice.

DAMOORGIAN, C.J., GERBER and CONNER, JJ., concur.


text:
    Cherryl L. GASCHLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-45.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Cherryl Gaschler, Quincy, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013); Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012).

TAYLOR, MAY and LEVINE, JJ., concur.


text:
    Joe LEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2319.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2013.

      Ryan Thomas Truskoski, and Jeffrey Deen, of Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   CLARIFIED OPINION

PER CURIAM.

The court, sua sponte, withdraws the opinion previously entered in this matter and substitutes this opinion.

The appellant, Joe Lee, was convicted of robbery with a firearm and aggravated battery with a firearm, and sentenced on each count in accordance with the 10-20-Life statute. He argues that the trial court used an incorrect standard in ruling on his motion for a new trial founded on his claim that the principal testimony against him at trial was fatally inconsistent. Because there is merit to Mr. Lee’s argument, we reverse and remand for a new hearing on his motion for new trial.

Rule 3.600(a)(2), Florida Rules of Criminal Procedure, provides that the court shall grant a new trial if, among other reasons, “[t]he verdict is contrary to law or the weight of the evidence.” When ruling on a motion for new trial based on a claim that the verdict is against the weight of the evidence, the trial court is compelled to exercise its discretion to determine “whether a greater amount of credible evidence supports one side of an issue or the other.” Fulword v. State, 29 So.3d 425 (Fla. 5th DCA 2010) (citing Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002)). The trial court under these circumstances acts as a “safety valve” by considering whether to grant a new trial where “the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.” Moore v. State, 800 So.2d 747, 749 (Fla. 5th DCA 2001).

In the present case it is unclear whether or not the trial judge applied the correct standard in denying the motion for new trial. Indeed, the State agrees that because the record on the issue is ambiguous, a new hearing on Mr. Lee’s motion is appropriate. We agree and commend the State for its candor.

Accordingly, we reverse the order denying the motion for new trial and remand to the trial court for a new hearing on the motion for new trial.

REVERSED and REMANDED with instructions.

SAWAYA, PALMER and LAWSON, JJ., concur.