author: DAVIS, Chief Judge.

text:
    Thomas R. DAVIS, Jr., as Personal Representative of the Estate of Cathleen Sandy, Deceased, Appellant, v. HEARTHSTONE SENIOR COMMUNITIES, INC.; Brigid Health Management, LLC n/k/a Brigid Health Services, LLC; Airamid Florida, LLC; Airamid Health Consulting, LLC; Sun Coast Nursing Centers, INC.; Debra Howe; and Ellis J. Williams (as to Lakeland Hills Center), Appellees.
    No. 2D14-2079.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2015.
    Isaac R. Ruiz-Carus, Kathleen Clark Knight, and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellant.
    James D. Moriarty of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellees.
   DAVIS, Chief Judge.

Thomas R. Davis, as personal representative of the Estate of Cathleen Sandy, challenges the trial court’s order granting the motion to compel arbitration filed by Hearthstone Senior Communities, Inc., and its related entities (the nursing home). Because the record does not include sufficient facts to support the order, we must reverse.

Upon Ms. Sandy’s entering Lakeland Hills Center, she signed several documents as part of the admissions process, including one that was alleged to be an arbitration agreement. While subsequently residing at the nursing home, she suffered certain injuries and eventually died. Mr. Da-vis, acting on behalf of the Estate, filed an action against the nursing home alleging violations of Ms. Sandy’s rights as provided for in chapter 400, Florida Statutes. The nursing home then filed a motion to compel arbitration pursuant to the arbitration agreement signed during the admissions process.

During discovery, the Estate requested that the nursing home provide a complete copy of the set of documents signed by Ms. Sandy upon her admission. But the documents provided included only the signature page of what was alleged to be the arbitration agreement. Witnesses testified that the original arbitration document consisted of seven pages but that it was the practice of the nursing home to retain in its file only the signature page of the arbitration agreement and to provide the first six pages to the resident. Based on the absence of the original six pages, the Estate argued that the nursing home had failed to prove that there was a binding, valid, and enforceable arbitration agreement.

At the hearing, the signature page was admitted into evidence and contained the following language, which appears to be a continuation of a statement beginning on the previous, unadmitted page:

from fully reviewing the arbitration agreement and the informational video, that I have been provided an opportunity to seek the advice of counsel prior to signing this agreement and have no questions about the information contained in this arbitration agreement or in the informational video and have agreed to arbitration freely and voluntarily.

Based on this language, the nursing home argued below, and argues now on appeal, that by signing the agreement Ms. Sandy clearly agreed to arbitration.

The nursing home presented the testimony of a. former employee who supervised the admissions process. She testified that Ms. Sandy signed the last page of the arbitration agreement and that it was the nursing home’s practice to retain only the signature page. However, when counsel for the nursing home presented her with a copy of the first six pages of the arbitration agreement purportedly used by the nursing home, she was unable to verify the terms or to assure the court that this agreement was the agreement that was in standard use at the nursing home át the time of Ms. Sandy’s admission. Because that witness could not verify the document, the trial court sustained the Estate’s objection to the admission of the six pages containing the terms of the arbitration agreement. The nursing home did not call other witnesses and did not further attempt to admit into evidence the first six pages of the agreement.

The trial court acknowledged its frustration at what it recognized was missing from the evidence at the close of the hearing by stating, “I don’t know why defense counsel didn’t just bring somebody to say[,] ‘These were [the six pages] we were using that would have been attached [to page seven] on this particular date.’ But Defendant didn’t do that, and that’s causing a little frustration for me this morning.” The trial court concluded that Ms. Sandy did sign the agreement and that the complete arbitration agreement does exist but that the “essential terms have not been introduced into evidence.” Stating that it was satisfied, however, that the nursing home could show the complete terms of the arbitration agreement, the trial court granted the motion, to compel arbitration.

The Estate suggested below that it was prejudiced by this ruling because there may be objectionable terms of the agreement that it will be precluded from litigating due to the failure of the nursing home to present the full agreement at the hearing. In an attempt to provide the Estate relief from this potential prejudice, the trial court suggested that if the nursing home could subsequently provide a copy of the first six pages of the agreement in use at the time Ms. Sandy signed the agreement, the trial court would entertain a motion for reconsideration filed by the Estate seeking review of any particular terms of the agreement. No such motion was filed, and the Estate now appeals the order granting the motion to compel.

To enforce the arbitration agreement, the nursing home had to show (1) that there is a valid written agreement to arbitrate, (2) that an arbitrable issue exists, and (3) that the right to arbitration has not been waived. See Greenbrook NH, LLC v. Estate of Sayre, 150 So.3d 878, 878 (Fla. 2d DCA 2014). The issue raised by this appeal is related to whether the nursing home met its burden to show the first requirement — the existence of a valid written agreement. We conclude that they did not meet this burden based on the evidence introduced on the record. As described in G/reenbroolc, “[t]here can be no quarrel that a contract cannot stand if it is missing the essential terms of an agreement.” Id. (internal quotation marks omitted). In Malone & Hyde, Inc. v. RTC Transportation, Inc., 515 So.2d 365, 366 (Fla. 4th DCA 1987), the court defined the essential terms of an arbitration agreement to include “the form and procedure for arbitration, the number of arbitrators, how the arbitrators were to be selected, or ... the issues to be decided by arbitration.” In Greenbrook, we opined that “[t]he terms must be definite enough so that the parties have some idea as to what matters are to be arbitrated and provide some procedure by which arbitration is to be effected.” 150 So.3d at 878.

Our record does not include any of the terms of the alleged arbitration agreement. It therefore fails to indicate whether the arbitration is binding or nonbinding, how many arbitrators are to be used, how the arbitrator will be selected, or what issues are to be included. Although these details may be included in the missing six pages and may become available as part of the record on remand, as of the time the trial court granted the motion to compel arbitration, the record was devoid of these details, and thus the nursing home failed to meet the first requirement to enforce the agreement. See id. Based on the evidence of record, there is no way the trial court could determine the intent of the parties at the time they entered the agreement. Accordingly, under Green-brook, the trial court erred in granting the motion to compel. We therefore reverse the order compelling arbitration and remand for further proceedings consistent with this.opinion.

Reversed and remanded.

VILLANTI and BLACK, JJ„ Concur.

      . We recognize that there are circumstances under which the trial court may determine from context that certain missing elements in an arbitration agreement do exist. See Fla. R. Civ. P. 1.830(a)(2); see also §§ 682.01-22, Fla. Stat. However, in this case, the signature page of the agreement contains no terms from which the court could otherwise infer the intent of the parties.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Heather Hanna McDUFFIE, Former Wife, Appellant, v. Brent Michael McDUFFIE, Former Husband, Appellee.
    No. 1D14-0512.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2015.

      Lester Makofka, of Makofka & Makof-ka, Jacksonville and Heather Quick, Jacksonville Beach, for Appellant/Cross-Appel-lee.
    Cindy L. Lasky, The Lasky Firm, Jacksonville, for Appellee/Cross-Appellant.
   PER CURIAM.

Mr. McDuffie’s allegations that his former wife could earn $10 per hour and work full-time are insufficient to warrant imputation of that income. Because the trial court did not have competent, substantial evidence to support imputing a monthly income of $1733 to the former wife, the court abused its discretion. We reverse.

To impute income for the purposes of child support and alimony, a trial court must first find the parent is voluntarily underemployed or unemployed, not due to a physical or mental incapacity or other circumstance beyond the parent’s control. § 61.30(2)(b), Fla. Stat.; Swain v. Swain, 932 So.2d 1214, 1215 (Fla. 1st DCA 2006). If the court makes this finding, it must impute income. § 61.30(2)(b), Fla. Stat.; Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999). To support the amount, the parent’s employment potential and probable earnings level must be based on “particularized findings relating to the current job market, ... recent work history, ... occupational qualifications, and the prevailing earnings level in the local community.” Rabbath v. Farid, 4 So.3d 778, 782 (Fla. 1st DCA 2009); see § 61.30(2)(b), Fla. Stat. The court must make specific findings of fact. § 61.30(2)(b), Fla. Stat. This Court may, in the absence of findings however, look for record support of the factors and affirm on that basis. Parsons v. Brake, 975 So.2d 1161, 1163 (Fla. 1st DCA 2008) (internal quotation marks omitted) (quoting Burkley v. Burkley, 911 So.2d 262, 268 (Fla. 5th DCA 2005)).

Here, the former wife and her doctor testified she had medical issues preventing her from working outside the home. The former wife explained there was no job outside the home she could perform. The trial court — as trier of fact and judge of credibility — found the former wife and doctor’s testimony not credible. See Coday v. State, 946 So.2d 988, 1005 (Fla.2006) (explaining rejection of unrebut-ted expert testimony on the basis of credibility is rational and permitted). Thus, with no medical issues and each child now in school full-time, there was competent, substantial evidence to find her capable of working and voluntarily unemployed not pursuant to a physical or mental incapacity or other circumstance beyond her control.

The actual amount of income to impute is more problematic. It is unclear where Mr. McDuffie derived the $10 per hour, full-time job and income he advocated for. What is clear is that the record is devoid of support for this figure. There is no evidence of the local job market, the area .minimum wage, or the type of job the former wife could secure that would pay $10 per hour. The former wife had close to no work history during the parties’ more than fourteen-year marriage. The only evidentiary support for a $10 per hour, full-time job and the former wife’s ability to secure it is that the former wife has a bachelor’s degree in biology with a chemistry minor, which she obtained prior to the marriage. These facts are not competent, substantial evidence of the current job market, work history, occupational qualifications, and the prevailing earnings level in the local community.

A finding of voluntary unemployment is only part of imputing income. The party seeking to impute income must support the income figure for which it advocates. The trial court simply did not have enough evidence or make the particularized findings required to support the amount of imputed income. The imputation must be reversed and the case remanded.

On remand, the circuit court may take further evidence on the amount of income to impute. See Cortez-Williams v. Douglass, 659 So.2d 1250, 1250 (Fla. 1st DCA 1995) (reversing minimum wage imputation where amount not supported by record, but stating that “[o]n remand, the circuit court is free to take additional evidence before entering a child support order”). Also on remand, because the improperly imputed income played into the alimony and equitable distribution amount determinations, the court may consider revising those amounts if appropriate.

Finally, while the court did not abuse its discretion in distributing the parties’ credit card and loan debt equally, the court did not delineate how each party would be responsible. Instead, it simply listed each account and allocated half of the total money to each spouse. On remand, the court is instructed to revise the final judgment to allocate each account so as to accomplish equal distribution, or provide for how and to whom the former wife is to pay her half, or devise some other delineated system for allocating responsibility for the debt and the method of payment.

REVERSED and REMANDED with instructions.

BENTON, CLARK, and ROWE, JJ., concur.

      . We review a trial court’s imputation of income for abuse of discretion. Rabbath v. Farid, 4 So.3d 778, 781 (Fla. 1st DCA 2009).

      . To the extent the court finds the former wife could be employed full-time, the court should consider any corresponding child care costs.

      . We find no abuse of discretion in the court’s determination that durational alimony was appropriate or that the credit card debt should be equally distributed. Nor do we find an abuse of discretion in not granting former wife retroactive child support. We affirm those decisions without comment.


author: KASTRENAKES, J., Associate Judge.

text:
    Guichard JEAN-BAPTISTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-660.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   KASTRENAKES, J., Associate Judge.

Guiehard Jean-Baptiste appeals his sentence for sexual battery by a person less than 18 years of age on a child less than 12 years of age. Jean-Baptiste argues that the trial court committed reversible error by requiring that he be sworn and subject to cross-examination before making any statement at his sentencing, in violation of his due process right to allocution. On the record before us, we find this alleged error to be unpreserved and not fundamental error. Therefore, we affirm.

Background

Jean-Baptiste was tried and convicted of sexual battery on a child under twelve by a person under eighteen and sentenced to life imprisonment. In his initial appeal from the judgment and sentence, we affirmed his conviction but reversed and remanded for re-sentencing' in light of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which prohibits life sentences for juveniles on convictions for crimes not involving murder as violative of the Eighth Amendment to the U.S. Constitution. Jean-Baptiste v. State, 76 So.3d 1070 (Fla. 4th DCA 2011).

On remand, a full sentencing hearing was held. The defense sought a downward departure from the Criminal Punishment Code (“CPC”) Scoresheet recommended floor sentence based on three statutory factors: a) the defendant’s capacity to appreciate the criminal nature of the conduct was impaired;' b) the offense was committed in an unsophisticated manner, was an isolated incident, and the defendant showed remorse; and c) the defendant was too young to appreciate the consequences of the crime at the time he committed the offense. The court held a full evidentiary hearing on the motion during which the defense called numerous witnesses. At the latter part of the hearing, the court inquired whether Jean-Baptiste wished to offer evidence or make a statement, and the defense attorney indicated he did. The following exchange occurred:

Court: Okay, he needs to be sworn please.
Defense: Oh, he, I, but Your Honor, but forgive me, but in an allocution hearing I thought it was unsworn. Ah, that’s what allocution ...
Court: I usually have 'em sworn.
Defense: My knowledge of the law ... an allocution hearing is unsworn and that raise [sic] a good question um, I, I don’t think he’s subject to cross examination, so that’s a, a good question.
Court: If he’s gonna be giving me something then she’s [the Assistant State Attorney] entitled to ask him questions.
Defense: Um, okay, so let me just ask him, just hold on one second. Your Honor, um, he does ah, [the Defendant] does wanna make a statement to the Court and for the record I would object to the cross examination. I understand the Court’s already ruled, but I just wanna preserve that as an objection ...
State: Um, I would ask that he be sworn and subject to perjury if he’s going to be testifying in court just as any other witness.
Court: Okay, if he’s gonna testify he needs to be under oath and subject to cross examination.
Defense: Okay, so I just, one more time, Your Honor, just to make sure. Okay, Your Honor, ah, Mister ah, ah, based upon the Court’s ruling that he would have to testify, be under oath he’s not gonna make a statement to the Court.
Court: Okay.

The Court then proceeded to hear argument on whether a valid reason for departure was established by the defendant and the Court ruled that the defendant failed to carry his burden and denied his request for a downward departure. Jean-Baptiste then was sentenced to fifteen years’ imprisonment in the Department of Corrections followed by five years’ sex offender probation.

Analysis

First and foremost, Jean-Baptiste failed to preserve any alleged error for review. Although defense counsel objected when the court required the defendant to be placed under oath, the Court’s ruling was eminently correct given the fact that there was an on going evidentiary hearing regarding whether the Court should downwardly depart from the CPC Scoresheet recommended Guideline sentence. Counsel failed to articulate his reasons for demanding an unsworn statement from the defendant. If he intended to “offer testimony” on the departure issue as surmised by the Court, then indeed Jean-Baptiste would have to be properly sworn and be subject to cross-examination. This is because a trial court’s finding that grounds exist supporting a downward departure must be based on competent, substantial evidence. See Staffney v. State, 826 So.2d 509, 511-12 (Fla. 4th DCA 2002). Therefore, on this basis, we find that this sentence must be affirmed.

On the other hand, if counsel had concluded his evidentiary submissions and was intending to simply offer an unsworn statement of his client immediately prior to sentencing, he should have made that position clear to preserve the point for appellate review. On appeal, he now raises this issue as a due process violation for the first time. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Therefore, this Court must review any alleged error as fundamental error. Jackson v. State, 983 So.2d 562, 578 (Fla.2008). To qualify .as fundamental error, the error “must be basic to the judicial decision under review and equivalent to a denial of due process.” Id. at 575 (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994)).

Florida Rule of Criminal Procedure 3.720(a) provides that: “[T]he defendant may allege and show as legal cause why' sentence should not be pronounced only: 1) that the defendant is insane; 2) that the defendant has been pardoned of the offense for which he or she is about to be sentenced; 3) that the defendant is not the same person against whom the verdict or finding of the court or judgment was rendered; or 4) if the defendant is a woman and sentence of death is to be pronounced, that she is pregnant.” Jean-Baptiste has failed to allege any of these grounds on appeal.

Furthermore, Rule 3.720(b) provides that a court “shall entertain submissions and evidence by the parties that are relevant to the sentence.” Fla. R. Crim. P. 3.720(b). Our courts have read rule 3.720(b) as requiring a trial court to permit a defendant to make a statement to the court. Dean v. State, 60 So.3d 532 (Fla. 1st DCA 2011); Chillingworth v. State, 846 So.2d 674 (Fla. 4th DCA 2003); Ventura v. State, 741 So.2d 1187 (Fla. 3d DCA 1999). We previously determined that the trial court “departed from the essential requirements set forth in rule 3.720(b)” where it sentenced the defendant without giving the defendant or his counsel an opportunity to present any evidence or argument in mitigation prior to imposing the sentences. Larrieux v. State, 138 So.3d 1221, 1221 (Fla. 4th DCA 2014). The Fifth District also reversed a sentence where the record revealed that the defendant never had the opportunity to offer evidence or make a statement to the court. Witt v. State, 983 So.2d 708 (Fla. 5th DCA 2008).

None of the case law expressly addresses whether the rule is violated if the defendant’s statement is required by the court to be given under oath, subject to cross-examination. Additionally, the plain language of the rule does not make it clear if the defendant has a right to present an unsworn statement not subject to cross-examination. In contrast, the comparable federal sentencing rule, which.provides for the right to “allocution,” expressly provides that a defendant must be given the opportunity to make a statement, and does not frame the statement in the context of an evidentiary submission. See Fed. R.Crim.P. 32(i)(4)(A)(ii) (providing that before imposing sentence, the court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence”); U.S. v. Prouty, 303 F.3d 1249 (11th Cir.2002) (explaining that allocution is the right of the defendant to make a final plea on his own behalf prior to impo-' sition of the sentence).

In Florida, defendants in capital cases have a right to make an unsworn statement to the judge prior to sentence bring imposed. See Troy v. State, 948 So.2d 635, 648 (Fla.2006) (recognizing that a defendant in a capital case has the right to “allocate” before the judge prior to sentencing, pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993)), but that any statement to the jury during the sentencing phase must be subject to cross-examination). Florida cases do not address whether allocution involves an unsworn statement in non-capital cases. See Ryan v. State, 78 So.3d 14, 15 (Fla. 3d DCA 2011) (Ernas, J., concurring in part and dissenting in part) (opining that sentencing courts should not be permitted to sua sponte raise a defendant’s apparent lack of remorse, as this would “risk forcing a defendant to choose between maintaining his innocence after trial ... and a defendant’s right to allocution before sentencing”) (citing Rule 3.720(b)); Witt v. State, 983 So.2d 708, 708 (Fla. 5th DCA 2008) (accepting state’s concession to defendant’s claim that his “allocution rights” were violated when court did not give him opportunity to speak or present evidence at sentencing); Adler v. State, 382 So.2d 1298, 1304 (Fla. 3d DCA 1980) (“The court denied the motion to vacate the guilty plea, gave the defendant his allocution rights and pronounced sentence”); Adams v. State, 376 So.2d 47, 56 (Fla. 1st DCA 1979) (“The court otherwise remains free to inform itself as in ordinary sentencing through presentence report hearsay, subject to the defendant’s right to produce his own witnesses, and his right of allocution”).

In Barlow v. State, 784 So.2d 482 (Fla. 4th DCA 2001), we described the defendant’s pre-sentence unsworn submission as an “allocution hearing” which we defined “as an opportunity for the defendant to make an unsworn statement to mitigate the sentence or for a crime victim to make a statement relevant to sentencing.” Id. at 483 n. 1 (Fla. 4th DCA 2001) (citing Black’s Law Dictionary 75 (7th ed. 1999)); see also People v. Evans, 44 Cal.4th 590, 80 Cal.Rptr.3d 174, 187 P.3d 1010, 1012 n. 2 (2008) (“The word ‘allocution’ has often been used for a mitigating statement made by a defendant in response to the court’s inquiry.” (Citation omitted)); Craig v. State, 179 So.2d 202, 206 (Fla.1965) (Ervin, J., dissenting) (“Appellant refers to the fact that a defendant usually has the right of allocution; that is, the right to express without restraint to his sentencer why judgment or sentence should not be meted out to him.”).

We now make clear what Barlow, Lameux, Chillingworth, Witt, and Dean have long implied: that a criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution. Like the receipt of unsworn letters, the opportunity of the defendant to “allocute” gives the defendant a chance to express to the sentencing court any additional information to aid the court in making a sound and reasoned judgment on the most important matter upon which it is called to judge, that is, the appropriate sentence to be meted out to the convicted criminal defendant.

Conclusion

In this appeal, the defendant complains he was denied due process. Defendant Jean-Baptiste was given the opportunity to be heard at the sentencing hearing and therefore, the due process argument has no merit. Additionally, because Jean-Baptiste offered his statement in the context of a sentencing hearing which included the introduction of evidence in support of Jean-Baptiste’s motion for downward departure, the trial court did not err in requiring Jean-Baptiste to be sworn and subject to cross-examination. We do not find that the failure to allow the defendant to make an unsworn statement to the court to be fundamental error. Accordingly, we affirm the trial court’s sentence.

Affirmed.

GROSS and CIKLIN, JJ., concur.

      . Judge Belanger presided over the trial and sentenced Jean-Baptiste to life imprisonment. After remand, Judge Makemson presided over Jean-Baptiste's re-sentencing.

      . Jean-Baptiste does not raise in this appeal the appropriateness of the trial court’s order denying his motion for downward departure.


author: DAMOORGIAN, C.J.

text:
    Kelvin CRAPPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-980.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.

      Carey Haughwout, Public Defender, and James W. Melntire, 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.
   DAMOORGIAN, C.J.

Kelvin Crapps appeals the trial court’s order revoking his probation and the sentence imposed for the violation. We reverse because the evidence supported a violation of probation (“VOP”) based only on the new crime of resisting an officer without violence. We remand this case to the trial court to determine whether revocation is appropriate based upon this single violation.

The following facts are relevant to this appeal. Appellant was sentenced to probation for burglary of a dwelling, possession of burglary tools, and criminal mischief. While on probation, Appellant was arrested and charged with several new crimes including: (1) home invasion robbery with a firearm, (2) aggravated battery with a deadly weapon, (3) criminal mischief resulting in property damage over $1,000, (4) resisting an officer without violence, and (5) resisting an officer by a disguised person. The state filed an affidavit of VOP alleging that Appellant violated the conditions of his probation by committing these new law violations and by associating with criminals. At the VOP hearing, the state introduced testimony from the deputies who responded to the crime scene and the investigating detective. The victims did not testify.

One of the deputies saw three suspects fleeing when he arrived at the crime scene. He caught up to one of the suspects and took him into custody but could not confirm whether Appellant was one of the other two suspects that got away. When the K-9 deputy arrived at the scene, he went directly to the victims’ residence. After confirming that a crime occurred, the K-9 deputy set out to locate the suspects. There was conflicting testimony as to whether there were three or four suspects but the K-9 deputy knew that at least one was still at large. The K-9 deputy deployed his dog to search for the missing suspect and found Appellant hiding under a vehicle “on the back side of where the crime took place.” The K-9 deputy announced the dog, advised that Appellant was under arrest, and instructed Appellant to come out. Instead of complying with the K-9 deputy’s order, Appellant retreated further underneath the vehicle. The K-9 deputy released the dog and took Appellant into custody. Appellant had a glove and a skully cap in his possession when the K-9 deputy found him.

Despite Appellant’s presence near the crime scene, there was no other evidence that he was involved in the robbery. Appellant’s fingerprints were not found on the gun used during the commission of the crimes nor were they found on any of the items stolen from the victims’ residence. There was no DNA evidence linking Appellant to the items retrieved from the crime scene and no one identified Appellant as one of the perpetrators on the night of the crime.

The trial court found that Appellant willfully and substantially violated his probation based on all of the allegations, except resisting an officer by a disguised person. The court revoked Appellant’s probation and sentenced him to fifteen years in prison for his underlying offenses. This appeal follows.

The trial court has broad discretion to revoke a defendant’s probation. Russell v. State, 982 So.2d 642, 646 (Fla.2008). The court “ ‘must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence.’ ” Id. (quoting State v. Carter, 835 So.2d 259, 261 (Fla.2002)). Here, Appellant argues that the trial court abused its discretion in revoking his probation because the evidence was insufficient to implicate him in the robbery. We agree based on our factually analogous decision in Glover v. State, 17 So.3d 886 (Fla. 4th DCA 2009).

In Glover, the state charged the defendant with violating his probation by committing burglary of a conveyance, grand theft, and resisting an officer without violence. Id. at 887. The evidence at the VOP hearing established that on the night of the burglary, the victim’s neighbor saw a man on a bicycle circling outside the victim’s home while two other men approached the victim’.s car. Id. Though the neighbor saw the dome light of the victim’s car go on, he did not see the men remove anything from the vehicle. Id. The neighbor called the police but the men fled before they arrived. Id. A few minutes later, police received a call that several men were breaking into cars in the same area. Id. Police saw four men (one on a bicycle) crossing over a concrete wall. Id. The men fled despite police orders to stop. Id. Three of the suspects were taken into custody one block away — one of them had the defendant’s phone in his possession. Id. Police set up a perimeter and called in the K-9 unit to locate the fourth suspect. Id. Police found the defendant on a nearby rooftop, where they also recovered “a calculator, a digital camera and case, a GPS, a garage door opener, a baggie of change, and a Blockbuster card belonging to [a man unconnected to the crime].” Id. at 887-88. The defendant testified that he purchased the items from one of the men the police saw him with and that he ran onto the roof because police were chasing him and released the dog. Id. at 888.

The trial court revoked the defendant’s probation but we reversed because the evidence was insufficient to establish that the defendant “was either himself guilty of burglarizing [the victim’s] car or was guilty under a ‘principals’ theory.” Id. In so holding, we reasoned that even though “[i]t is tempting to speculate that the defendant was involved in burglarizing [the victim’s] car,” no witness placed the defendant at the crime scene and none of the items found in his possession belonged to the victim. Id. We also held that the trial court did not err in finding that the defendant committed the offense of resisting an officer without violence. Id. In so holding, we reasoned that the detention was lawful because the “close temporal and geographical factors present, time of day, similar group size, and the distinguishing feature that the small group of pedestrians included one man on a bicycle, justified the police’s actions in attempting to briefly detain the individuals to conduct an investigatory stop.” Id.

The limited facts implicating the defendant of the burglary in Glover are actually stronger than those implicating Appellant of the robbery in this case. In Glover, police confirmed that there were four suspects whereas, here, there was some discrepancy as to whether there were three or four. When the deputies took two other suspects into custody, they found nothing connecting them to Appellant whereas, in Glover, one of the suspects had the defendant’s phone in his possession. Like Glover, no witness placed Appellant at the crime scene and nothing found on Appellant’s person conclusively linked him to the robbery. While the fact that Appellant was found hiding under a vehicle in close proximity to the crime raises some questions about what he was doing there, these facts, standing alone, would require the same level of speculation that we found legally insufficient to establish a violation in Glover. Thus, the trial court erred in finding that Appellant violated his probation by committing the new crime of home invasion robbery with a firearm. Because the violations of probation based on aggravated battery, criminal mischief, and association with criminals were premised upon Appellant’s involvement in the robbery, we conclude that the trial court erred in finding violations on these bases as well.

As to the remaining charge of resisting an officer without violence, we reach a different conclusion. “The elements of resisting an officer without violence require that (1) the officer be engaged in the lawful execution of a legal duty and (2) the defendant’s action constitute obstruction or resistance of that lawful duty.” J.P. v. State, 855 So.2d 1262, 1265-66 (Fla. 4th DCA 2003) (citing H.H. v. State, 775 So.2d 397, 398 (Fla. 4th DCA 2000)); see also § 843.02, Fla. Stat. (2012). An officer is engaged in the lawful execution of a legal duty in detaining a person if the officer has a reasonable suspicion that the person is involved in criminal activity. G.T. v. State, 120 So.3d 141, 143 (Fla. 4th DCA 2013) (citing Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008)). This means that the officer “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Id. (quoting O.B. v. State, 36 So.3d 784, 786-87 (Fla. 3d DCA 2010)).

Like the police in Glover, we hold that the K-9 deputy was engaged in the lawful execution of a legal duty when he placed Appellant under arrest. The K-9 deputy knew that police were still searching for one of the robbery suspects and he deployed his K-9 to assist in their search. When the K-9 deputy found Appellant hiding under the vehicle within the perimeter set up by the deputies, he had a reasonable suspicion that Appellant was involved in the robbery. Instead of heeding the K-9 deputy’s commands, Appellant retreated further under the vehicle and did not come out until the K-9 deputy sent the dog in to retrieve him. Because Appellant was found hiding close in time and proximity to the scene of the crime, there was sufficient evidence to support the VOP based on the new crime of resisting an officer without violence. See Glover, 17 So.3d at 888.

A trial court may revoke a defendant’s probation based on a single VOP. McDoughall v. State, 133 So.3d 1097, 1100 (Fla. 4th DCA 2014) (quoting Whitehead v. State, 22 So.3d 846, 847-48 (Fla. 4th DCA 2009)). However, we will affirm a revocation of probation based on both proper and improper grounds only when it is clear from the record that the trial court would have revoked the defendant’s probation absent the improper grounds. Id. (quoting Lee v. State, 67 So.3d 1199, 1201-02 (Fla. 2d DCA 2011)). When we cannot determine whether the trial court would have revoked the defendant’s probation based solely on the proper grounds, we must reverse and remand the matter to the trial court for reconsideration. Id.; see also Glover, 17 So.3d at 889 (remanding case to the trial court because the record was not clear whether revocation was appropriate based on the single violation for resisting an officer without violence).

In this case, the trial court announced that it was revoking Appellant’s probation based on all of the allegations, except resisting an officer by a disguised person, but it did not indicate whether any one of the violations justified the revocation in and of itself. Thus, it is unclear whether the trial court would have revoked Appellant’s probation based solely on the new law violation of resisting an officer without violence. Accordingly, we reverse and remand this case to the trial court to determine whether revocation of probation is appropriate based on the crime of resisting an officer without violence. See Glover, 17 So.3d at 889. If the trial court determines that revocation is appropriate, the trial court shall resentence Appellant.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR and CONNER, JJ., concur.

      . The trial court found criminal mischief resulting in property damage under $1,000, not over $1,000.

      . Appellant filed a Rule 3.800(b)(2) motion to correct sentencing error, arguing that he was entitled to retain his youthful offender status as to his underlying charges. The state conceded that Appellant was entitled to retain his youthful offender status and asked the court to resentence Appellant to fifteen years in state prison as a youthful offender. The court entered an order granting Appellant's motion to correct sentencing error and resentenced Appellant as a youthful offender nunc pro tunc. On appeal, Appellant maintains that he should have been sentenced as a youthful offender. However, this argument was rendered moot by the trial court’s actions.


author: WARNER, J.

text:
    Andrako BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2541.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant' Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand from the Florida Supreme Court

WARNER, J.

Appellant, Andrako Bradley, appeals his sentence to five years in prison following his no contest plea. Because the trial court failed to make written findings that a nonstate prison sanction could present a danger to the public, pursuant to section 775.082(10), Florida Statutes (2010), we reverse and remand for resentencing.

The state charged appellant with felony battery in violation of section 784.03(2). It alleged the commission of a battery by appellant together with the commission of a previous battery by him 2005. Felony battery is a third degree felony, punishable by up to five years in prison. See § 775.082(3)(d), Fla. Stat. (2010). Appellant entered a plea, and was adjudicated guilty and sentenced to three years of probation. Subsequently, in 2011, appellant violated probation. Following a hearing, the court revoked appellant’s probation and immediately sentenced appellant to five years in prison. It is undisputed that appellant’s criminal scoresheet at the time of sentencing, including the violation of probation, totaled 12.8 points. After sentencing, appellant filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that his sentence violated section 775.082(10), which requires the court to sentence an offender to a nonstate prison sentence when the offender has not committed a forcible felony and whose sentencing points are 22 or fewer. The trial court did not rule on this issue within the time permitted by the rule, thus requiring us to review the issue through this appeal. See Fla. R.Crim. P. 3.800(b)(1)(B). We review the legality of appellant’s sentence de novo. Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005).

Section 775.082(10) sets forth the following rule regarding sentencing for offenders scoring less than 22 points:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08,- and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The list of “forcible felonies” in section 776.08, Florida Statutes (2010), does not specifically include battery. However, a catch-all provision covers “any other felony which involves the use or threat of physical force or violence against any individual.”

Felony battery under section 784.03(2) requires that the state prove the elements of battery, which occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

§ 784.03(l)(a), Fla. Stat. (2010). In addition, the state must prove that the defendant has a prior conviction for battery, aggravated battery, or felony battery. Id.

At issue is whether felony battery constitutes a forcible felony within the meaning of the statute. The supreme court addressed what was a forcible felony under an identical catch-all provision in section 776.08 in State v. Hearns, 961 So.2d 211, 213-14 (Fla.2007). In Hearns, the defendant was convicted of battery on a law enforcement officer (“BOLEO”). The state sought an enhanced sentence under the violent career criminal statute, which requires conviction of a forcible felony as defined by section 776.08, which “does not specifically list BOLEO, or even battery, as a qualifying offense.” Id. at 214.

Citing Perkins v. State, 576 So.2d 1310 (Fla.1991), the Hearns court held that “for an offense to be a forcible felony under section 776.08, the ‘use or threat of physical force or violence’ must be a necessary element of the crime.” Id. at 215. “If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.” Id. See also Perkins, 576 So.2d at 1313 (quoting § 776.08, Fla. Stat. (1987)) (“The statute does not say that a forcible felony is any felony that ‘may sometimes’ involve violence, or even a felony that ‘frequently does’ involve violence. Rather, the statute requires that the felony actually ‘involves the use or threat of physical force or violence against any individual!.]’ ”).

Applying Hearns to this case, the felony battery alleged was based specifically and exclusively on appellant’s previous battery conviction, rather than on causing great bodily harm, permanent injury, or permanent disfigurement. Therefore, the only elements the state had to prove were: 1) that appellant committed a battery, and 2) that appellant was previously convicted of a battery. Because the crime requires only the commission of a battery, it does not involve a forcible felony, because otherwise “any intentional touching, no matter how slight, is sufficient to constitute a simple battery.” Hearns, 961 So.2d at 218-19. Battery does not require as an element physical force or violence against an individual. That felony battery, as charged against appellant, may sometimes or even frequently involve the use or threat of physical violence is insufficient to categorize, felony battery under section 784.03(2) as a forcible felony.

The conclusion that appellant was not convicted of a forcible felony and scored fewer than 22 points implicates the sentencing restriction in section 775.082(10). The statute requires the court to impose a nonstate prison sanction unless it makes written findings that such a sentence poses a danger to the public. In Bryant v. State, 148 So.3d 1251 (Fla.2014), the court held that under section 775.082(1)), Florida Statutes, a sentence in excess of a nonstate prison sentence constitutes an upward departure sentence. The court applied Pope v. State, 561 So.2d 554 (Fla.1990), which held: “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” Id. at 556. Here, the court provided no written reasons showing that a nonstate prison sentence poses a danger to the public. Therefore, we reverse and remand for the trial court to resentence appellant to a nonstate prison sentence, consistent with section 775.082(10) and Bryant.

Reversed and remanded for resentenc-ing.

CIKLIN and LEVINE, JJ., concur.


text:
    Aaron Michael SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-0757.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Michael R. Hanrahan of Michael R. Hanrahan, PA, 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.

Appellant,. Aaron Michael Smith, timely appeals his judgment and sentence after a jury found him guilty of one count of first degree murder with a firearm while wearing a mask, one count of robbery with a firearm while wearing a mask, one count of conspiracy to commit a robbery with a firearm while wearing a mask, and two counts of false imprisonment with a firearm while wearing á mask. Smith argues on appeal that the trial court erred admitting the in-court and out-of court identifications of him by a witness, in granting the State’s motion in limine preventing him from impeaching a witness on her status as a probationer, and in denying his motion to suppress the search warrant obtained by investigators to search his cell phone records. We find no merit in any of Smith’s arguments, and thus affirm his convictions and sentences.

Affirmed.

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


text:
    E.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1951.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender,. West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, See M.H.-R v. State, 61 So.3d 483 (Fla. 5th DCA 2011).

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


text:
    Russel HUNT, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2866.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order revoking appellant’s probation is affirmed, but we remand for compliance with Florida Rule of Criminal Procedure 3.995, as the trial court failed to specify the conditions of probation that the appellant was found to have violated. See A.T.J.F. v. State, 78 So.3d 57 (Fla. 4th DCA 2012).

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Sean CAMPBELL, Appellant, v. STATE of Florida, Appellees.
    No. 4D14-3080.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Sean Campbell, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State in its response to this Court’s order to show cause concedes that the trial court improperly denied appellant’s timely rale 3.850 motion without ordering a response, without record attachments, and without providing any reasoning. See Simon v. State, 997 So.2d 490 (Fla. 4th DCA 2008); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007). This matter is remanded for further proceedings.

Reversed and remanded.

MAY, GERBER and KLINGENSMITH, JJ., concur.


text:
    Nyro FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3223.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Nyro Frederick, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Defendant’s claim that his consecutive minimum mandatory sentences are illegal because they arose from the same criminal episode is rejected for the reasons stated in Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013) (en banc).

CIKLIN, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Samuel SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3468.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Samuel Simmons, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

The State concedes that, contrary to reasoning in the trial court’s order, appellant’s rule 3.850 motion was timely filed. The order summarily denying the motion as untimely is therefore reversed, and this matter is remanded for further proceedings.

Reversed and remanded.

GERBER, LEVINE and FORST, JJ., concur.


text:
    Jason P. LOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3582.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.

      Jason P. Lock, Bonifay, Pro Se.
    No response required for appellee.
   PER CURIAM.

Affimed without prejudice to file petition for belated appeal pursuant to Fla. R. App. P. 9.141(c).

TAYLOR, MAY and CONNER, JJ., concur.


text:
    Domonique Sharad ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-855.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004).

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Scott Phillip HENRETTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-590.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2015.
    Jeffrey E. Lewis, General Counsel, and Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Scott Phillip Henretty appeals his conviction and sentence, arguing that fundamental error occurred when the trial court failed to renew the offer of counsel prior to Henretty entering his plea and failed to renew the offer prior to the imposition of sentence. Pursuant to Florida Rule of Criminal Procedure 3.111(d)(5), if a waiver of counsel is accepted at any stage of the proceedings, the trial court shall renew the offer of counsel at each subsequent stage of the proceedings. Both plea hearings and sentencing are considered critical stages that require the renewal of the offer of counsel. Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999). This failure constitutes fundamental error under the facts of this case. Monte v. State, 51 So.3d 1196, 1201 (Fla. 4th DCA 2011); Smith v. State, 41 So.3d 1081, 1088 (Fla. 2d DCA 2010). We therefore vacate Henretty’s plea and sentence and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

THOMAS, ROWE, and OSTERHAUS, JJ., concur.


text:
    Rashard A. EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4694.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.
    Rashard A. Evans, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s recent issuance of an order directing the state attorney to file a further response to petitioner’s pending motion for postconviction relief, the petition for writ of mandamus is denied on the authority of Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002). We nonetheless urge the lower tribunal to exercise appropriate diligence in ensuring that petitioner’s pending motion is disposed of as soon as circumstances permit.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    Lionel CRAWFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4780.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.

      Lionel Crawford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about July 11, 2014, denying petitioner’s motion for post-conviction relief in Jackson County Circuit Court case number 12-076-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    In re Name Change of Angel A. DUR’AN.
    No. 1D14-5083.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.
    Angel A. Dur’an, pro se, Petitioner.
   PER CURIAM.

Angel A. Dur’an petitions this court for mandamus relief to compel the circuit court to rule on his petition for name change. However, he fails to show that he has called his petition up for a hearing, as is contemplated by Section 68.07, Florida Statutes (2014). He has therefore failed to demonstrate an entitlement to mandamus relief. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002). Accordingly, the petition for writ of mandamus is DENIED.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    Walter E. WILLIAMS, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-5760.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.
    Walter E. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Walter E. Williams seeks a belated appeal of an order denying his petition for writ of habeas corpus, but we have no authority to grant a belated appeal in a civil proceeding. See Powell v. Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999). Accordingly, the petition seeking belated appeal is DENIED. This disposition is without prejudice, however, to petitioner seeking relief in the lower tribunal. See, generally, Milord v. Florida Parole Commission, 4 So.3d 762 (Fla. 1st DCA 2009)(Browning, J., concurring).

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    Patricia G. WOLACK, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D14-4627.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.
    Patricia G. Wolack, pro se, Appellant.
    Sarah J. Rumph, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See § 95.11(5)(f), Fla. Stat. (2012).

MARSTILLER and RAY, JJ., and TERRELL, TERRY D., ASSOCIATE JUDGE, concur.


author: RAY, J.

text:
    Fredrick Lee WADE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4310.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2015.

      William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

Fredrick Lee Wade challenges his conviction for second-degree murder. The jury could have reasonably viewed the evidence as establishing second-degree murder, manslaughter by act, or manslaughter by culpable negligence. Although the court instructed the jury on manslaughter by act as a lesser included offense of the charged offense, the jury was not given the opportunity to consider manslaughter by culpable negligence. Under the facts of this case, the omission of instructions on manslaughter by culpable negligence constituted fundamental error. See Jenkins v. State, 107 So.3d 560 (Fla. 1st DCA 2013) (finding fundamental error in the omission of an instruction on manslaughter by act while, instructing on manslaughter by culpable negligence); Reed v. State, 531 So.2d 358, 360 (Fla. 5th DCA 1988) (opining, in the context of preserved error, that “unless the evidence clearly supports only a voluntary act or procurement, the instruction on and definition of culpable negligence should be given when defining manslaughter for the jury”).

We reject the State’s argument that Wade affirmatively waived the right to an instruction on the applicable manslaughter theories by unsuccessfully requesting that the jury not be given the opportunity to consider lesser included offenses at all. Wade made this request, but the court instead accepted the State’s demand to have the jury instructed on manslaughter as a lesser included offense. The instruction the State proposed omitted the culpable-negligence theory. The defense reviewed the instruction and agreed to it with the understanding that its general objection to instructions on any lesser included offenses had been overruled.

In Moore v. State, 114 So.3d 486, 489 (Fla. 1st DCA 2013), this Court found fundamental error in the omission of instructions on justifiable and excusable homicide as part of the definition of manslaughter as a lesser included offense of second-degree murder. Before deciding to reverse, the Moore Court considered whether affirmative waiver occurred. 114 So.3d at 491-90. The defendant in Moore did not indicate any realization that the instructions on excusable and justifiable homicide were omitted, but he did generally agree to the instructions. Id. at 492-93. This Court explained, “[WJhile it is clear counsel affirmatively agreed to the manslaughter in-struetion aa read to the jury, he did not specifically and affirmatively agree to exclude the required instruction on justifiable or excusable homicide.” Id. at 493. According to Moore, affirmative agreement to an instruction as a whole, without more, is not affirmative waiver of omissions in that instruction. See id. at 492-93.

This case is like Moore on the waiver question. Wade did not request that some lesser included instructions be read and others not; therefore, he did not receive what he affirmatively requested. Once his blanket request was denied, he was in the posture of any other defendant faced with the task of considering the correctness of the instructions proposed by the State. After expressing a preference not to have instructions on any lesser included offenses and indicating that he was not requesting an instruction on manslaughter, Wade acknowledged the general manslaughter instruction the State presented and failed to lodge any specific objection to it. Under Moore, these circumstances indicate a mere failure to object, not an affirmative waiver. See also Bradshaw v. State, 61 So.3d 1266, 1266 (Fla. 3d DCA 2011). Therefore, the record does not establish an exception to the fundamental error doctrine through Wade’s arguments to the trial court.

For the foregoing reasons, we reverse and remand for a new trial.

REVERSED and REMANDED.

LEWIS, CJ., and BENTON, J., concur.


author: SWANSON, J.

text:
    Bennie John ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1264.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2015.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this direct appeal, appellant claims the trial court committed fundamental error in accepting his guilty plea because no order had been entered finding appellant competent to proceed after he had been adjudicated incompetent. We agree, reverse, and remand for further proceedings.

Under Florida Rule of Criminal Procedure 3.210, a criminal prosecution may not move forward at any material stage, which includes entry of a plea, against a defendant who is incompetent to proceed. Dougherty v. State, 149 So.3d 672, 676-77 (Fla.2014). In order to proceed against a defendant who has been adjudicated incompetent, the trial court first must hold a hearing to determine whether the defendant’s competency has been restored, review evidence from experts during the hearing, make an independent determination that the defendant’s competency has been restored, and enter a written order to that effect. Id. at 677-78. These requirements cannot be waived by a stipulation. Id. at 678.

Because there is no evidence in the record that the trial court conducted a competency hearing, reviewed evidence from any examining physicians, or made an oral or written finding that appellant had been restored to competence, appellant was presumed incompetent to proceed at any material stage, rendering his plea invalid as a matter of law and subject to challenge for the first time on direct appeal. Blackmon v. State, 23 So.3d 239, 240 (Fla. 4th DCA 2009); Blow v. State, 902 So.2d 340, 342 (Fla. 5th DCA 2005); Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003). Because appellant had been adjudicated incompetent prior to the entry of the plea, the competency issue was cognizable on direct appeal without a motion to withdraw plea. Vestal v. State, 50 So.3d 733, 735 n. 2 (Fla. 5th DCA 2010). Accordingly, we reverse and remand for a competency proceeding and such other action as may be appropriate thereafter. Blow, 902 So.2d at 342.

REVERSED and REMANDED for further proceedings.

BENTON and WETHERELL, JJ., concur.


text:
    STATE of Florida and Town of Davie, Appellants, v. Jay ADAMS, Appellee.
    Nos. 4D12-2258, 4D12-2259.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2015.
    Pamela Jo Bondi, Attorney General, and John J. Bajger, Assistant Attorney General, Tallahassee, for appellant State of Florida.
    Daniel J. Stallone, Davie, for appellant Town of Davie.
    Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See City of Hollywood v. Arem, 154 So.3d 359 (Fla. 4th DCA 2014).

MAY, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Samuel WALTERS, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION (“FNMA”), Appellee.
    No. 4D14-0671.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2015.

      Alix J. Montes, Miami, for appellant.
    Kimberly Hopkins and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Tampa, for appellee.
   PER CURIAM.

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

WARNER, CIKLIN AND GERBER, JJ., concur.


text:
    Michelle L. CLARK, Former Wife, Appellant, v. Gary L. CLARK, Former Husband, Appellee.
    No. 1D14-0987.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2015.
    E. Jane Brehany, Pensacola, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Michelle L. Clark appeals a Final Judgment of Dissolution of Marriage, challenging the trial court’s valuation of several marital assets and her award of two years’ bridge-the-gap alimony. We affirm oh all issues raised, except as to the court’s treatment of the former husband’s Fidelity Investment Account # 5219.

Regarding that asset, the court determined:

At the time of the filing of the Petition for Dissolution of Marriage, the account had a balance of $103,291.00. At the beginning of the marriage, the account had a balance of $107,239.00. Therefore, the account had a greater balance at the beginning of the marriage than it did at the time of the filing of the Petition for Dissolution of Marriage. Since there was no evidence that the account increased in value due to marital funds, the Court has no legal basis to designate a portion of this account as a marital asset.

The court did not err in using the petition filing date as the date for valuing the asset. Under section 61.075(7), Florida Statutes (2012), the date the petition for dissolution of marriage was filed is an appropriate date for classifying the parties’ assets as marital, and “[t]he date for determining value of assets .... classified as marital is the date or dates as the judge determines is just and equitable under the circumstances.” But the account statements in the record reflect a value of $149,009.76 on March 1, 2013, $135,888.40 on March 31, 2013, and $103,290.62 on April 30, 2013. The petition for dissolution in this case was filed on March 8, 2013. It thus appears the trial court misread the account statements.

Therefore, we reverse that portion of the final judgment equitably distributing the parties’ marital assets and liabilities, and remand to the trial court to determine the correct value of the former husband’s Fidelity Investment Account # 5219, and to revise the equitable distribution scheme accordingly. In all other respects, the final judgment is affirmed.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


text:
    Michael and Catherine HENRY, Appellants, v. CITIMORTGAGE, INC., Appellee.
    No. 1D14-2479.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2015.
    Thomas R. Pycraft, Jr., Michael Joseph Pelkowski, and John J. Spence, St. Augustine, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

We have reviewed the brief and record in this case without the benefit of an answer brief but find no reversible error. Accordingly, we affirm.

AFFIRMED.

ROBERTS, RAY, and MAKAR, JJ., concur.

      . No answer brief or motion was filed on behalf of Appellee even though the Clerk contacted the law firms that represented Appellee below and extended the time to file an answer.


text:
    FLORIDA DEPARTMENT OF REVENUE by and on behalf of Marsha Antoinette HAYE, Petitioner, v. Carlton Hasani KERR, Respondent.
    No. 1D14-2999.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2015.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney

      General, Child Support Enforcement, Tallahassee, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The Florida Department of Revenue (DOR) petitions for a 'writ of certiorari to review an order directing the mother, the father, and’the child to submit to paternity testing. The order was entered in a proceeding to establish Respondent’s child support obligation and was based on a report entered by the same child support hearing officer who recommended the paternity testing order that we quashed today in Florida Department of Revenue ex rel. Corbitt v. Alletag, Case No. 1D14-3011, 2015 WL 509580 (Feb. 9, 2015). Like the order in that case, the order in this case departs from the essential requirements of law because the issue of paternity was not placed in controversy by the father and good cause was not shown for paternity testing. And, even though it was the mother who requested paternity testing in this case,, we have jurisdiction to review the order because the harm re-suiting from the child having to submit to paternity testing cannot be remedied on appeal. Accordingly, as we did in Alletag and the cases cited therein, we grant the petition for a writ of certiorari and quash the trial court’s order requiring the parties to submit to paternity testing.

PETITION GRANTED; ORDER QUASHED.

BENTON, WETHERELL, and SWANSON, JJ., concur.

      . At the hearing, after the Respondent admitted that he signed the child’s birth certificate, that he did not dispute that he was the child's father, and that he was not asking for a DNA test, the following colloquy occurred between the child support hearing officer and the child’s mother:
      THE COURT: Why is it that you want DNA testing to be conducted?
      THE MOTHER: Because when we’re arguing and my child is there, [Respondent] continually says in front of her that he doubts that he is her dad and it makes me and my daughter cry. I don't need the DNA test. He is the father. But he keeps holding that against my head that he doubts that he’s the child’s dad and I’m tired of hearing it.
      THE COURT: All right. Thank you. Based upon the testimony, it's in the best interest of the minor child that DNA testing be granted.

      . Even though DOR filed the petition to establish child support on behalf of the child’s mother, it is not precluded from seeking review of the order authorizing the paternity testing requested by the mother because counsel for DOR objected below and because DOR is effectively vindicating its own interests (and the interests of the child) by establishing Respondent's child support obligation since the funds received from Respondent offset the public assistance benefits paid to the mother. See generally §§ 409.2551,409.2561, 409.2564, 409.2567, Fla. Stat. (2014). Additionally, DOR has to pay for the paternity testing.


text:
    Brynn BRYANT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5428.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2015.

      Nancy A. Daniels, Public Defender; Steven L. Seliger and Carrie McMullen, Assistant Public Defenders, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the October 16, 2014, judgment and sentence in Leon County Circuit Court case number 2014 CF 2434 A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

RAY, MAKAR, and BILBREY, JJ., concur.


text:
    Raymond Howard DOUGLAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D14-958.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2015.
    Nancy A. Daniels, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014).

PADOVANO, WETHERELL, and BILBREY, JJ., concur.


author: TAYLOR, J.

text:
    Jonavon D. GAINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-686.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2015.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Jonavon D. Gaines appeals his conviction for robbery with a firearm. He argues that the trial court erred in (1) denying his motion to suppress because the police lacked reasonable suspicion of criminal activity to stop and detain him, (2) allowing the jury to hear an unredacted version of his taped statement, which contained the detective’s opinion as to appellant’s guilt and improper evidence of a collateral offense, and (3) denying his motion for a new trial based on the bailiffs improper communications with the jury during deliberations. We reverse and remand for a new trial based on the first two points on appeal.

The robbery victim worked at a convenience store in Vero Beach. After closing the store one night around midnight, the victim got into his car and sat there with the windows down. A man approached him with a gun and demanded the store’s money bag. He gave the man the money bag, his eyeglasses, and his wallet, which contained his identification, money cards, and $14. Then the man fled towards the back of the store. The victim called 911.

The victim testified that he told the dispatcher that he was robbed by a “tall black guy.” He said he also told the dispatcher that the robber was sixteen or seventeen years old and was wearing a dark colored garment with a hood, like the kind typically worn in winter. The victim testified that he saw the robber’s face and that he had seen him before when he came into the store.

After a proffer by the defense, the 911 call was played for the jury. During the 911 call, the following exchange occurred when the dispatcher asked for a description of the suspect:

[DISPATCHER]: What, what kind of clothes did he wear?
[THE VICTIM]: Huh?
[DISPATCHER]: His clothes, like his shirt, what color was his shirt?
[THE VICTIM]: He was a black guy (inaudible).

The victim also told the dispatcher that the man fled on foot. After the tape was played, he agreed with defense counsel that he never told the dispatcher that the suspect was tall. But, despite evidence to the contrary in the 911 transcript and tape, the victim insisted that he told the dispatcher that the suspect was sixteen or seventeen years old.

Vero Beach Police Officer DeAcetis responded to the crime scene. He testified that the first BOLO sent out merely identified the perpetrator as a black male. A short time later, however,, the officer obtained additional information about the suspect from the victim and he relayed it by radio to other police officers. The second BOLO described the perpetrator as a black male, sixteen to seventeen years old, with short cropped hair, wearing a long-sleeved dark T-shirt. The BOLO did not include any information about a vehicle.

Corporal Dominguez and other police officers set up a perimeter around the crime scene. Within about ten minutes of establishing a perimeter, but a half hour or more after the robbery' occurred, Corporal Dominguez stopped appellant’s gray van about two blocks from the store. He did not see appellant commit any traffic infractions or engage in any suspicious behavior. He stopped appellant because he matched the BOLO description of a young black male with short cropped hair. Although appellant was wearing a white T-shirt instead of a long-sleeved dark shirt, Officer DeAcetis had explained that, based on his experience, people who commit crimes will sometimes change their clothes before they are caught. After stopping appellant, Corporal Dominguez stood him behind his van until the victim could arrive for a show-up identification.

Before Officer DeAcetis escorted the victim to view appellant, he took him to another show-up. At this first show-up, the suspect was a black man, approximately thirty years old, with curly hair and a beard. During the second show-up, the victim identified appellant as the person who robbed him.

After appellant was arrested, officers found a backpack behind the front passenger seat of his vehicle. The backpack contained an eyeglass case, a handgun, and three articles of dark-colored clothes. The backpack also contained a wallet with the victim’s identification and money cards.

Detective Jason Jones interviewed appellant after reading him his Miranda rights. When the state offered the taped interview into evidence, defense counsel objected to introducing certain portions of the interview. Appellant moved in limine to redact those portions of the tape in which the detective expressed his opinion that appellant was guilty and untruthful, and that there was more than sufficient evidence to convict him of the robbery.

The prosecutor agreed to mute the portion of the video where the detective asked appellant about driving with a suspended license. But the trial court ruled that the remainder of the interrogation would be permitted because it is not uncommon for detectives to tell suspects that they are lying when they believe that the suspect is not being forthright with them.

The taped interview was played for the jury. At one point, Detective Jones stated:

You’re lying out your mouth. If your mouth is opening, you’re lying me. This is (inaudible) bull I think I’ve ever heard. You’re caught with everything at a crime scene. The victim identified you. He got you on video going around [the] damn building.

Appellant responded, “I don’t know what you’re talking about, sir.”

The interrogation continued and appellant repeatedly denied committing the robbery while the detective insisted he was lying. The detective told appellant, “There ain’t no judge, jury in this land that’s going to believe otherwise.” .

The following exchange occurred when Detective Jones attempted to collect appellant’s DNA:

(Detective Jones): Yes, you are giving me a hard time. All right?
(Appellant): I just want—
(Detective Jones): This, this stuff—
(Appellant): — (audible)
(Detective Jones): — here is to try to clear you—
(Appellant): (Inaudible)
(Detective Jones): — and you’re doing just the opposite. You’re making everything you do guilty, guilty, guilty.
(Appellant): I ain’t guilty, though. That’s the point.
(Detective Jones): You are guilty. You’re as guilty as, the most guiltiest person I’ve seen.
(Appellant): All right.
(Detective Jones): All right?
(Appellant): Yes, sir.

When appellant asserted his right to wait for a court order before giving a DNA sample, the detective told appellant that the DNA sample did not matter, stating: “I don’t, it makes no difference to me because I got you dead to rights on everything.”

The jury found appellant guilty as charged. The trial court sentenced him to fifteen years in prison with a mandatory minimum of'ten years.

Unlawful Stop and Detention Based on BOLO

In his first point on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence, because the police officers lacked a well-founded, articulable suspicion of criminal activity to stop and detain him. He contends that the BOLO description of the robbery suspect as a teenaged black male with short cropped hair was too vague and general to warrant his stop and detention. We agree.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Jackson v. State, 18 So.3d 1016, 1027 (Fla.2009) (citations omitted) (internal quotation marks omitted). The appellate court will accept the trial court’s factual findings if they are supported by competent substantial evidence. State v. Triplett, 82 So.3d 860, 863 (Fla. 4th DCA 2011). However, the trial court’s application of the law to the historical facts is reviewed de novo. Id.

To conduct an investigatory stop, a police officer must have “a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla.1993).

In this case, appellant was stopped in his vehicle solely based on a BOLO description. “Several factors are relevant in assessing the legitimacy of a vehicle stop pursuant to a BOLO: (1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.” Hunter v. State, 660 So.2d 244, 249 (Fla.1995). “Other information which is relevant to determine the validity of the stop includes the time of day, the absence of other persons or vehicle in the vicinity of the sighting, any other suspicious conduct, and other activity consistent with guilt.” Sapp v. State, 763 So.2d 1257, 1259 (Fla. 4th DCA 2000).

Regarding the first factor, appellant was stopped in his van about thirty minutes after the robbery and within two blocks of the robbery location. However, the BOLO did not give any basis for believing that there was a vehicle involved in the robbery. The only information given was that the perpetrator fled the scene on foot; nothing was said about a vehicle or his route of travel.

As to the third and fourth factors, the robbery victim provided only a vague, general description of the suspect as a black male between sixteen and seventeen years old with short cropped hair and wearing a long dark-sleeved shirt. Although appellant was a young black male with short cropped hair, that description could have fit many young black men. See M.M. v. State, 80 So.3d 1125, 1126-27 (Fla. 4th DCA 2012) (holding that BOLO stating that “two white males had just robbed the victim at gunpoint and fled the area on foot” lacked sufficient specificity to provide the officer with reasonable suspicion to stop the juvenile); L.O. v. State, 44 So.3d 1290, 1293-94 (Fla. 4th DCA 2010) (holding that BOLO description of two black males, one wearing a black shirt and black pants and one wearing a red shirt and black pants, did not provide the requisite founded suspicion for the'juvenile’s detention); Sanders v. State, 666 So.2d 1035, 1036-37 (Fla. 1st DCA 1996) (BOLO describing robbers of a Wendy’s restaurant as “two black males, black shirt and pants and one had a white t-shirt on” did not provide deputy with founded suspicion to stop defendant’s automobile); Strong v. State, 495 So.2d 191, 192 (Fla. 2d DCA 1986) (holding that description of a black man wearing dark clothing was too vague to justify a stop); Sumlin v. State, 433 So.2d 1303, 1303-04 (Fla. 2d DCA 1983) (stating that a BOLO description of a young black male in his twenties was too vague to justify a stop); Ross v. State, 419 So.2d 1170, 1170 (Fla. 2d DCA 1982) (holding that a BOLO description of a “black male with short cropped hair, wearing a white tee shirt and wearing blue jeans” could have fit many people in the area and therefore was too general to give officers a founded suspicion to justify the stop). Moreover, appellant’s clothing at the time of the stop, a white T-shirt, was inconsistent with the BOLO information.

The facts in this case are similar to those in Rodriguez v. State, 948 So.2d 912 (Fla. 4th DCA 2007). There, we held that a BOLO containing a description of a robbery suspect’s race, sex, height and clothing but lacking any mention of a vehicle in which the suspect was traveling or information concerning the suspect’s direction of travel did not provide reasonable suspicion to stop the car in which Rodriguez was riding. Id. at 914-15. A BOLO had been issued for a black male, approximately 5'9" tall, wearing a black hooded shirt, black baggy pants, black sneakers, and carrying a silver revolver. The arresting officer stopped a vehicle in which the defendant was a passenger. As the defendant alighted from the vehicle, a gun fell out of his pocket. The officer testified that at the time of the stop he could not determine whether the defendant fit the description in the BOLO. He said that “the only thing [he] had” was a black male, sweating profusely and staring at him. Id. at 914. The vehicle was stopped because the passenger was a black male within a quarter mile of the robbery. Id. at 915.

In James v. State, 556 So.2d 791, 793 (Fla. 1st DCA 1990), the First District held that officers did not have reasonable suspicion to stop a man, who did not match the BOLO description, merely because he was a black male traveling in a pickup truck in the general area toward which the suspect had traveled, on foot, several minutes earlier.

Here, the victim initially described the suspect only as a “black male,” who fled the scene on foot. After speaking to the responding officer at the scene, the victim added that the suspect was a teenager with short hair, wearing a long-sleeved black shirt. The record shows that the officers did not have a description of the suspect’s height until after the show-up.

This case is very similar to Rodriguez and James in that there was no vehicle description. Moreover, like the defendant in James, the suspect in this case fled on foot; appellant was stopped in a vehicle. At the time of the stop, officers had a description of the suspect’s race, age and clothes. Appellant met the BOLO description of a teenaged black male but he was not wearing the clothing described by the victim. In any case, “[a] vague description simply will not justify a law enforcement officer in stopping every individual or vehicle which might possibly meet that description.” Sumlin, 483 So.2d at 1304. Based on the case law, the description of a teenage black male with short hair wearing a long dark-sleeved shirt was too vague to justify an investigatory stop. Accordingly, the trial court erred in denying appellant’s motion to suppress the evidence obtained as a result of the stop.

Inadmissible Police Opinion Testimony

In his second point on appeal, appellant argues that the trial court erred in allowing the jury to hear an unredacted version of appellant’s taped interview because it contained the detective’s improper opinions concerning appellant’s guilt and truthfulness.

When the state offered the taped interview for evidence, defense counsel objected to the introduction of certain portions of the interview wherein the detective repeatedly expressed his opinion that appellant was guilty, that he knew appellant was lying, and that there was more than sufficient evidence to convict him. She argued that these comments by the detective were inadmissible and invaded the province of the jury.

The state responds that the trial court did not abuse its discretion in admitting these police statements because when placed in “them proper context,” such statements to a suspect during interrogation could be understood by a “rational jury” to be “techniques” used by law enforcement officers to secure confessions. See McWatters v. State, 36 So.3d 613, 638 (Fla.2010) (quoting Worden v. State, 603 So.2d 581, 583 (Fla. 2d DCA 1992)); Jackson v. State, 18 So.3d 1016, 1031-32 (Fla.2009). The state posits that the statements were not offered for their truth but to provoke appellant and to observe his reaction and test the credibility of his defense. The state further relies on Derival v. State, 58 So.3d 357 (Fla. 4th DCA 2011), in pointing out that appellant made no equivocal responses that the jury could have misconstrued as an incriminating statement. See id. at 360 (finding that there was no substantial danger of unfair prejudice in allowing jury to hear detective’s statements where, among other things, the defendant made no equivocal responses to the officer’s questions that the jury might have misconstrued).

The stándard of review for a trial court’s admission of evidence is abuse of discretion. Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011). The trial court’s discretion is limited by the rules of evidence. Id.

A jury may hear an interrogating detective’s statements about a crime when the statements provoke a relevant response from the defendant being questioned. Eugene v. State, 53 So.3d 1104, 1112 (Fla. 4th DCA 2011) (citing Jackson, 18 So.3d at 1031-32). “When placed in ‘their proper context,’ an interrogating detective’s statements to a suspect could be understood by a ‘rational jury’ to be ‘techniques’ used by law enforcement officers to secure confessions.” Id. (quoting McWatters, 36 So.3d at 637). However, “a witness’s opinion as to the credibility, guilt or innocence of the accused is generally inadmissible, [and] ‘it is especially troublesome when a jury is repeatedly exposed to an interrogating officer’s opinion regarding the guilt or innocence of the accused.’ ” Roundtree v. State, 145 So.3d 963, 965 (Fla. 4th DCA 2014) (quoting Jackson v. State, 107 So.3d 328, 339-40 (Fla.2012)); see also Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999) (“It is especially harmful for a police witness to give his opinion of a [witness’s] credibility because of the great weight afforded an officer’s testimony.”).

In Jackson v. State, 18 So.3d 1016, 1032 (Fla.2009), the Florida Supreme Court held that it was not abuse of discretion to admit a recorded interrogation in its entirety. In that case, the police probed the defendant for' his response to statements allegedly made by a co-defendant, which statements revealed details of the criminal acts. Before publishing this interrogation to the jury, the court instructed the jury that the officer’s statements were only to be considered to establish the context of the defendant’s responses and reactions. The supreme court reasoned that redacting the officer’s statements would render the defendant’s responses incomprehensible. Id. at 1032.

Several years later, the Florida Supreme Court held that, where the probative value of the interrogation as a whole is outweighed by the prejudicial effect of the interrogating officer’s statements, it is an abuse of discretion to admit the interrogation. Jackson v. State, 107 So.3d 328, 344 (Fla.2012). In Jackson, the interrogating detectives repeatedly expressed their opinion of the defendant’s guilt and veracity. However, the majority of the interrogation did not secure a confession or any relevant responses from the defendant. The interrogation thus had minimal probative value, while the detectives’ statements concerning their adamant belief in defendant’s guilt had a prejudicial impact on the defendant’s credibility and invaded the province of the jury. Id. at 341, 344.

In Roundtree, we addressed an interrogation similar to the one in this case. There, the interrogating officer repeatedly accused the defendant of committing a robbery and expressed his opinion of the defendant’s guilt. 145 So.3d at 965. The defendant maintained his innocence and, based on the context of the interrogation, we concluded that he did not make any statements that could fairly be interpreted as an admission of guilt under the circumstances. Id. at 966. We held that the admission of the officer’s opinions as to the defendant’s guilt improperly invaded the province of the jury. Id. at 967.

Similarly, appellant maintained his innocence throughout his interrogation. As in Jackson, 107 So.3d at 341, the interrogating detective repeatedly expressed his opinion of appellant’s veracity. Detective Jones stated several times that appellant was lying and that he was guilty of the robbery charge. Indeed, he said appellant was as guilty “as the most guiltiest person [he had] seen.”

As in Roundtree, the detective’s statements did not provoke any relevant responses because appellant maintained his innocence. Thus, the limited probative value of appellant’s statements was outweighed by the prejudicial effect of the detective’s opinion as to appellant’s guilt. Moreover, the opinion testimony invaded the province of the jury, and appellant’s equivocal responses of “All right,” when the detective said he was guilty, could be unfairly misconstrued as an admission of guilt.

Because the state has not met its burden of proving beyond a reasonable doubt that the error in admitting the unre-dacted taped interview did not contribute to the verdict, we cannot say that the error was harmless. See Tripoli v. State, 50 So.3d 776, 781 (Fla. 4th DCA 2010) (stating that the harmless error analysis “places the burden on the [SJtate, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). Accordingly, appellant is entitled to a new trial.

In light of our reversal and remand for a new trial, we need not address appellant’s final point on appeal regarding the bailiffs improper communications with the jury during deliberations.

Reversed and Remanded for a new trial and-with instructions to grant appellant’s motion to suppress.

WARNER and KLINGENSMITH, JJ., concur.

      . We do not address appellant's argument that the unredacted taped statement also included collateral crimes evidence — i.e., that appellant had committed grand theft of his mother’s motor vehicle.