author: VILLANTI, Judge. ALTENBERND, Judge,

text:
    Eddie GALLON, Appellant, v. GEICO GENERAL INSURANCE COMPANY; and John or Jane Doe, Agent Individually, Appellees.
    No. 2D13-2853.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Rehearing Denied Oct. 16, 2014.

      Sanga Turnbull of Smith & Stallworth, P.A., Lakeland, for Appellant.
    Jennings L. Hurt III and Meredith M. Stephens of Rissman, Barrett, Hurt, Donahue & McLane, P.A., Orlando, for Appel-lees.
   VILLANTI, Judge.

Eddie Gallon seeks review of the order that dismissed his fourth amended multi-count complaint against GEICO General Insurance Company with prejudice. We affirm the dismissal of Gallon’s counts for promissory estoppel and negligent procurement without further comment. However, we reverse the dismissal of Gallon’s count for negligent misrepresentation and remand for further proceedings.

Gallon was the back seat passenger in his mother’s car when she was involved in a single-car accident. Gallon was ejected from the vehicle and severely injured. Gallon’s mother, Natalie Gallon, carried automobile insurance on the car with GEI-CO, including uninsured motorist (UM) coverage, and Gallon made a claim for UM benefits. However, a dispute arose as to the amount of UM benefits available to Gallon. GEICO contended that Gallon was limited to $50,000 in UM benefits, even though there were two vehicles on the policy and the policy indicated that UM coverage was “stacked,” because Mrs. Gallon had purchased UM coverage on only one vehicle. Gallon contended that because the policy provided stacked UM coverage and because there were two vehicles covered by the policy, he should be entitled to $100,000 in UM benefits. When GEICO refused to agree to this amount of coverage, Gallon sued.

In his fourth amended complaint, Gallon asserted a claim for negligent misrepresentation. To state a claim for negligent misrepresentation, the plaintiff must allege — and ultimately be able to prove— that “(1) there was a misrepresentation of material fact; (2) the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the re-presenter intended to induce another to act on the misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon the misrepresentation.” Baggett v. Electricians Local 915 Credit Union, 620 So.2d 784, 786 (Fla. 2d DCA 1998) (citing Atl. Nat’l Bank of Fla. v. Vest, 480 So.2d 1328, 1331 (Fla. 2d DCA 1985)). At the motion to dismiss stage, the court is limited to determining whether the complaint on its face contains allegations that are legally sufficient to state a cause of action. See, e.g., Maynard v. Taco Bell of Am., Inc., 117 So.3d 1159, 1160-61 (Fla. 2d DCA .2013) (quoting Reyes ex rel. Barcenas v. Roush, 99 So.3d 586, 589 (Fla. 2d DCA 2012)). Notably, the court may consider only the legal sufficiency of the allegations and may not determine questions of fact or consider issues of proof or credibility. See Reyes ex reí Barcenas, 99 So.3d at 589 (noting that the trial court may not determine the veracity of a plaintiffs allegations when considering a motion to dismiss).

In his count for negligent misrepresentation, Gallon alleged that there was a time when Mrs. Gallon’s coverage with GEICO had lapsed. When GEICO reissued the policy, the premium was significantly higher. Mrs. Gallon’s review of the declarations page showed that GEICO had reissued the policy with stacked UM coverage. Unsure of what that coverage was, Mrs. Gallon claimed she called GEICO and spoke to one of GEICO’s agents. Gallon alleged in his complaint that the purpose of the call was so that Mrs. Gallon “could make a decision on whether to continue paying for the coverage or decline it.” GEICO’s agent told Mrs. Gallon that paying for the stacked UM coverage would mean that “in the event either of her sons were injured ... GEICO would pay double the stated amount of $50,000/$100,000 on the policy because she had two vehicles insured on the policy.” Gallon alleged that based on this explanation of the coverage, Mrs. Gallon “kept the stacked uninsured motorist coverage and continued paying the listed premium for it.” However, despite this reliance and Mrs. Gallon’s payment of the premiums, GEICO denied him the benefits of the stacked UM coverage for which his mother had paid.

A comparison of Gallon’s allegations to the elements of a negligent misrepresentation claim shows that Gallon’s allegations were legally sufficient. He sufficiently alleged that GEICO’s agent made a false statement about the extent of Mrs. Gallon’s UM coverage, that GEICO’s agent knew or should have known that the statement was false, that the statement was made to induce Mrs. Gallon to keep the coverage and pay the higher premium, and that she was now injured due to her reliance on that misrepresentation. Thus, because these allegations are facially and legally sufficient to state a cause of action, the trial court erred in granting GEICO’s motion to dismiss this count.

In this appeal, as it did in the trial court, GEICO argues that this count was properly dismissed because Mrs. Gallon was not entitled to rely on the representations of GEICO’s agent as to the scope of her coverage when those representations conflicted with the plain language of the insurance policy. However, “[t]he terms of an insurance policy do not preclude an action against the insurer or its agent where the agent misrepresents the coverage of the insurance contract and the insured reasonably relies on the misrepresentation to his detriment.” Martin v. Principal Mut. Life Ins. Co., 557 So.2d 128, 129 (Fla. 3d DCA 1990); see also Warren v. Dairyland Ins. Co., 662 So.2d 1387, 1388 (Fla. 4th DCA 1995) (noting that if Dairyland’s agent “had improperly explained uninsured motorist coverage to plaintiffs, Dairyland could be liable for uninsured motorist coverage equal to the liability limits”). Moreover, whether an insured’s reliance on an agent’s representations is reasonable is generally a question of fact. See, e.g., Romo v. Amedex Ins. Co., 930 So.2d 643, 652 (Fla. 3d DCA 2006). Hence, the question of whether Mrs. Gallon’s reliance on GEICO’s agent’s explanation of her stacked UM coverage was reasonable was not one that could be decided at the motion to dismiss stage of these proceeding and so cannot serve as a basis to support an affirmance.

In sum, because the allegations of Gallon’s complaint were facially sufficient to state a cause of action for negligent misrepresentation, the trial court erred by dismissing this count of the complaint. Accordingly, we must reverse and remand for further proceedings. The dismissal of the remaining counts is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in this opinion. I am inclined to believe that claims of negligent misrepresentation in this context should be rare. I write briefly to explain the unusual circumstances that appear to have led to this claim.

Ms. Gallon’s policy of insurance with GEICO, which was issued in 2008, covers two automobiles. On one automobile — a 1999 Chrysler that apparently is the family car — Ms. Gallon purchased standard personal injury protection coverage. She-also purchased $50,000/$100,000 in bodily injury liability coverage and an equal amount of UM coverage on that automobile. That automobile also has $50,000 in coverage for property damage liability, collision coverage, and comprehensive coverage.

On the second automobile — a 1990 Toyota that apparently is a teenager’s car — she has only the minimum requirements under the Florida Motor Vehicle No-Fault Law. See § 627.730-.7405, Fla. Stat. (2008). Thus, this automobile is not insured for liability coverage or UM. There is no indication in our limited record that GEI-CO obtained a written rejection of UM coverage for this automobile. Because the policy was issued with no liability coverage for this automobile, GEICO may not have required its agent to obtain a rejection form.

When GEICO created the written policy for these two automobiles, the standard language for stacked UM coverage was' used on the declaration page — even though no premium was charged for UM on the Toyota. The standard contractual forms accompanying the declaration page appear to be the forms that normally would be used when the policy covered two automobiles, both of which had UM coverage.

It may be that GEICO has some standard underwriting procedure by which it “stacks” the $50,000/$100,000 UM on the first automobile with $0 on the second, so that each car has $50,000/$100,000 in UM for the premium charged on only the one automobile. If so, that is simply a very odd form of stacked coverage.

The claim in this case is that Ms. Gallon was told by a GEICO agent that her stacked policy would have twice the limits of UM. In the context of this particular policy, it is entirely possible that an agent would have interpreted the stacked coverage to provide twice the amount of UM coverage because that is the situation under the usual policy where both cars have the same limit of UM coverage for both vehicles.

Ms. Gallon, of course, was contacting GEICO because she thought her premium was too high. The alleged misinformation from the agent caused her to leave her policy as it was. Apparently, if she had received correct information, in order to actually receive typical stacked coverage, she would have been required to pay an even higher premium. Thus, on remand, she may have a difficult time establishing all of the elements that she has alleged in her complaint. See Fla. Std. Jury Instr. (Civ.) 409.8. But at this stage in the proceedings the case was not resolvable on a motion to dismiss.

      . Whether such a combination coverage is authorized with or without a rejection form in Florida is not an issue in this case.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    GALAXY FIREWORKS, INC., Petitioner, v. Steve KOZAR, Respondent.
    No. 2D13-3114.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Rehearing Denied Oct. 27, 2014.

      Steven G. Mason of Steven G. Mason, P.A., Altamonte Springs, for Petitioner.
    Joe Gonzalez of Joe M. Gonzalez, P.A., Tampa, for Respondent.
   NORTHCUTT, Judge.

Galaxy Fireworks filed a lawsuit against Steve Kozar, alleging a breach of a joint venture agreement and other causes of action involving the agreement. Kozar moved to disqualify Galaxy’s counsel, Steve Mason, on the ground that Mason had represented Kozar in an earlier lawsuit in which Galaxy and Kozar had been sued by a third person. The court granted Kozar’s motion. Galaxy now petitions for a writ of certiorari seeking to quash the disqualification order. We grant the petition.

In this case, Galaxy is suing Kozar and Carlos Serralles. Mason represents Galaxy, his long-standing client, in the suit. In three previous actions, Galaxy and Ko-zar were on the same side, while Serralles was on the opposing side. In those suits, Serralles sought permanent injunctions restraining Galaxy and Kozar from selling fireworks at property on State Road 60 in Plant City, and he filed two tenant-eviction actions to remove Galaxy and Kozar from the same property. Mason represented Kozar in those cases, although he characterizes this representation as one he undertook only as a courtesy to Galaxy. He testified below that he never met Kozar during the earlier representation and that he never billed him for any services.

To disqualify an opposing party’s counsel, a former client must first demonstrate that he or she had an attorney-client relationship with the lawyer. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 680, 683 (Fla.1991). If that is established, an irrefutable presumption arises that confidences were disclosed in the relationship. Id. Here, the circuit court correctly found that Kozar had shown that he and attorney Mason had such a relationship.

But Kozar had another burden — he had to demonstrate that the matter in which Mason is now adverse to him is “the same or substantially related to” the matter in which Mason previously represented him. See id. Evidence of the relationship between the matters might include pleadings or other documents from the earlier case. See Kenn Air Corp. v. Gainesville-Ala-chua Cnty. Reg’l Airport Auth, 593 So.2d 1219,1223 n. 3 (Fla. 1st DCA 1992); Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051, 1053 (Fla. 5th DCA 1979). If the litigation of the second matter might involve testimony or evidence presented in the first, those cases likely would be substantially related for disqualification purposes. See Key Largo Rest. v. T.H. Old Toum Assocs., Ltd., 759 So.2d 690, 693 (Fla. 5th DCA 2000) (holding that matters were substantially related when the evidence established that the first matter involved a landlord-tenant dispute that was eventually settled and the second matter involved litigation over the settlement agreement; the court considered the settlement agreement and the pleadings in both lawsuits); Ford v. Piper Aircraft Corp., 436 So.2d 305 (Fla. 5th DCA 1983) (stating that lawyer representing an injured plaintiff was properly disqualified; lawyer had previously represented one of the defendants in a matter involving a crash of the same aircraft, and an affidavit established that he had discussed matters relating to the crash with that party).

To support his contention that the prior matters and the present one are substantially related, Kozar filed an affidavit along with a copy of a settlement agreement in one of the tenant-eviction cases filed by Serralles. He testified that the real property involved in the tenant-eviction cases was one of the properties covered in the joint venture agreement at issue in this case. The evidence also showed that Galaxy, Kozar, and Serralles are all in the business of selling fireworks. In other words, Kozar simply proved that one of the parties’ retail locations is on property from which Serralles once endeavored to evict them.

What the evidence did not show was how the “matters involved” in this breach of contract case were related to the matters involved in the earlier injunction and tenant-eviction cases. The complaint in the instant case alleged that “Kozar announced to Galaxy ... that he would no longer abide by or honor the [joint venture] agreement and that it was his intent to continue operating at the state Road 60 location without the participation, partnership, and property sharing that he and Galaxy had undertaken for many years.” Thus the contract alleged to be breached in this litigation is not the lease agreement that formed the basis of the earlier suits.

Kozar’s evidence did not establish that the landlord-tenant matters in which attorney Mason represented him in suits brought by Serralles were substantially related to the matters involved in the alleged breach of the joint venture agreement between Galaxy and Kozar. Because he failed to meet the second prong of the disqualification test, see K.A.W., 575 So.2d at 633, the court departed from the essential requirements of law by disqualifying Mason.

The petition for writ of certiorari is granted. The order disqualifying attorney Mason from representing Galaxy in this case is quashed.

VILLANTI and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    ALMOST FAMILY, INC., a Delaware corporation; and Caretenders Visiting Services of Pinellas County, LLC, a Florida limited liability company, Appellants, v. Michelle Sammons SPROW, an individual; and Nurse on Call, Inc., a Delaware corporation, Appellees.
    No. 2D13-3963.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2014.
    Patrick M. Muldowney and Tiffany L. Cummins of Baker & Hostetler LLP, Orlando, for Appellants.
    Margaret Cooper of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach; and David C. Potter of Fowler White Boggs, P.A., Fort Myers, for Appel-lees.
   PER CURIAM.

Affirmed. See Fla. Hematology & Oncology v. Tummala, 927 So.2d 135 (Fla. 5th DCA 2006).

CASANUEVA, VILLANTI, and WALLACE, JJ., Concur.


author: PER CURIAM. '

text:
    Ladon Maurice GREEN, Petitioner, v. STATE of Florida,. Respondent.
    No. 1D14-4080.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.
    Rehearing Denied Nov. 19, 2014.
    Ladon Maurice Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM. '

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

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    William G. GRANEY, P.E. and KTD Consulting Engineers, Inc., Appellants, v. CADUCEUS PROPERTIES, LLC, a Florida Limited Liability Company, and Tallahassee Neurological Clinic, P.A., a Florida Professional Association, Appellees.
    No. 1D11-2700.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2014.
    Rehearing Denied Nov. 21, 2014.
    Patrick R. Delaney and Rouselle A. Sutton, III, Orlando, for Appellants.
    Martin B. Sipple and Robert N. Clarke, Jr., Ausley & McMullen, P.A., Tallahassee, for Appellees.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In Graney v. Caduceus, 91 So.3d 220, 222-23 (Fla. 1st DCA 2012), we reversed the trial court’s order entering judgment in favor of Appellees, holding that the action brought by Appellees was barred by the applicable statute of limitations. Finding the statute of limitations issue to be dispositive, we declined to reach the remaining seven issues raised by Appellants. However, we also certified conflict with Gatins v. Sebastian Inlet Tax Dist., 453 So.2d 871, 875 (Fla. 5th DCA 1984).

Upon review, in Caduceus Properties, LLC v. Graney, 137 So.3d 987 (Fla.2014), the Florida Supreme Court approved the decision in Gatins on the issue of the statute of limitations, quashed our decision, and remanded for further proceedings in light of its decision.

We have considered the remaining issues raised by Appellants on appeal. Finding no merit in the remaining issues, the final judgment of the trial court is AFFIRMED.

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Thomas Marvin LORD, Appellee.
    No. 1D14-577.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Rehearing Denied Nov. 21, 2014.

      Pamela Jo Bondi, Attorney General, and Kristen Bonjour and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellant.
    William B. Richbourg, Pensacola, for Appellee.
   PER CURIAM.

The State appeals an order granting the motion to suppress filed by appellee, Thomas Marvin Lord. We reverse.

The evidence at the suppression hearing showed that asset-protection employees at a Walmart in Pensacola called an officer from the Pensacola Police Department, Lieutenant Chuck Mallett, who was working off-duty for the store, and told him there had been a shoplifting incident in which a person had stolen spark plugs and had left the store. Lt. Mallett got into his unmarked police vehicle and drove around the parking lot until he saw the pickup truck the Walmart employee was describing that was by then headed for an exit. Lt. Mallett called for another patrol unit and as he followed the truck, he observed the female passenger reach around and conceal something behind the driver’s seat. When a marked police vehicle driven by Officer Patrick Burns joined the pursuit, the truck markedly picked up speed and turned into a parking lot and sped behind the buildings, but found no escape route. The officers activated their blue lights and took appellee and his co-defendant, Shanna Gayle Johnson, into custody.

Lt. Mallett drove the truck back to the Walmart parking lot to search it, and Officer Burns followed with the suspects handcuffed in his vehicle. Lt. Mallett was in touch with the asset-protection employees and began to look for the spark plugs and any other property that might have been stolen. He found a drill in a box behind the driver’s seat, a bag containing spark plugs, and a bag containing syringes, which he believed were drug paraphernalia.

Officer Burns testified that he had advised defendants that they were suspected of retail theft. After the items were discovered, he arrested' them for misdemean- or retail theft and said he would be taking them to jail after the loss-prevention people had made their statements. At some point after the store items were found, either Officer Burns or someone else looked inside a soft-sided cooler located in the truck bed and found a portable methamphetamine lab. The officers moved the truck to a back corner of the parking lot away from the general public, and an investigator from the sheriffs department trained in dismantling meth labs arrived and took over.

The circuit court granted defendant’s motion to suppress, because under sections 901.15 and 812.015, Florida Statutes (2013), the officers did not have the authority to make the initial stop based only upon information provided by Walmart employees who had witnessed a theft. The court further concluded that even if the stop had been lawful, the officers had exceeded the permissible scope of their search by looking inside the cooler in the truck bed. Under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), they were permitted to search only for evidence of the offense the suspects were arrested for, which was retail theft, yet the officers had continued to search after finding the drill and the spark plugs when there was nothing suggesting that defendants had put anything in the cooler in the truck bed before they left the Wal-mart parking lot.

The trial court erred as a matter of law by concluding that the officers did not have the authority under section 812.015 to arrest defendants. See State v. Daniels, 2014 WL 1976269 (Fla. 5th DCA 2014) (in an appeal of an order on a motion to suppress, statutory interpretation is reviewed de novo). Further, the trial court erred as a matter of law by concluding that the officers did not have the authority under Gant to search the cooler located in the truck bed. See State v. Taylor, 79 So.3d 876 (Fla. 4th DCA 2012) (the court conducts de novo review of the application of Gant to the facts of the case).

The circuit court erred by concluding that section 901.15 applied in this case by either supplanting or modifying section 812.015(4). Section 901.15(1) permits an officer to arrest without securing a warrant when the suspect has committed a felony or misdemeanor “in the presence of the officer,” or when the arresting officer has been provided information from a fellow officer sufficient to satisfy paragraph (1). See State v. Boatman, 901 So.2d 222 (Fla. 2d DCA 2005). It is undisputed that the Walmart loss-prevention employees in the case at bar cannot be characterized as fellow officers.

This case was instead controlled by section 812.015(4), which specifically addresses warrantless arrests for retail theft and provides, in part, that a law enforcement officer “may arrest, either on or off the premises and without warrant, any person the officer has probable cause to believe ... has committed theft in a retail or wholesale establishment.” There is no conflict between the statutes, which have coexisted for over five decades and apply in different circumstances. See Rodriguez v. State, 29 So.3d 310, 313 & n. 5 (Fla. 2d DCA 2009). The legislature expressly enacted the retail theft provision to meet a need that was not being addressed by section 901.15, “to give the merchant authority to detain a suspect and the arresting officer additional authority under the law to make an arrest for a misdemeanor,” namely “shoplifting items of small value which constitute the bulk of the crime.” Ch. 29668, Laws of Fla. (1955).

Accordingly, the officers in this case were authorized to stop and arrest defendants based upon information provided by the Walmart employees. See Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981) (affirming summary judgment for K-Mart under sections 812.015(3) and (5) in a suit for false arrest for shoplifting, because the officer had probable cause to arrest the plaintiff under section 812.015(4) based on information provided by K-Mart’s security officer). Defendants have not argued that the officers lacked probable cause for the stop; only that they lacked authority under section 901.15(1).

trial court further erred by concluding that the United States Su-SuCourt in Arizona v. Gant prohibit-prohibitthe officers from looking inside the cooler in the truck bed as part of their search incident to arrest. The Supreme Court held in Gant that “[pjolice may search a vehicle incident to a recent occu-occuarrest only if the arrestee is within reaching distance of the passenger com-comat the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 556 U.S. at 351, 129 S.Ct. 1710 (emphasis added). Because both the cab and the truck bed of defendants’ truck were reasonable places for defendants to have secured items stolen from Walmart, the officers were justified in searching both.

The scope of a search depends upon the nature of the offense of arrest. “[W]hen probable cause only concerns one specific item and the police know where that item is within the automobile, their warrantless search' cannot extend to other areas of the car.” State v. Betz, 815 So.2d 627, 631-32 (Fla.2002). In our case, however, Lt. Mallett was told that spark plugs had been taken. When he searched the cab he found a drill. Then, a loss-prevention employee came out to the truck, said the drill was a Walmart item, and identified the bag of spark plugs. There was no testimony that any Walmart employee told either officer that no other items had been stolen from Walmart. Indeed, they said a package containing a drill had been opened in the store and the drill “dumped inside the store,” leading the employees to believe that defendants had removed parts from the package that were presumably secreted in the truck. There was no evidence that Lt. Mallet had stopped searching the truck after finding the spark plugs and drill. The officers were not precluded from looking in the cooler in the truck bfed simply because no one had actually observed one of the defendants put something in the cooler. Lt: Mallett had not seen the defendants get into the truck but had only located them as they were driving out of the Walmart parking lot. The fact that Officer Burns told defendants they were looking at misdemeanor charges based upon the items thus far discovered did not mean the officers’ hands were tied and they could not then search a container in the truck that had been overlooked. The kind of Walmart items that had already been found, as well as drill parts, could have been concealed in a cooler and thus it was a reasonable container to search for further evidence related to the offense of arrest.

REVERSED and REMANDED for further proceedings.

PADOVANO, THOMAS, and CLARK, JJ., concur.

      . Gant was arrested for driving with a suspended license, and after police locked him in a patrol car, they searched his vehicle and found a gun and cocaine. The Supreme Court concluded that the search of the passenger compartment of Gant's car was unlawful because he was locked in the patrol car and thus was not within reaching distance, and because there could be no evidence in his car related to the offense of arrest for not having a valid driver’s license.


text:
    STATE of Florida, Appellant, v. Shanna Gayle JOHNSON, Appellee.
    No. 1D14-580.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Rehearing Denied Nov. 19, 2014.
    Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

REVERSED. See State v. Lord, No. 1D14-577, 2014 WL 5099435 (Fla. 1st DCA 2014).

PADOVANO, THOMAS, and CLARK, JJ., concur.


author: ROBERTS, J.

text:
    Devin BOWDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1053.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    Rehearing Denied Nov. 19, 2014.

      Lawrence F. Kranert, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Devin Bowden, was placed on community control/probation in February' 2012 in two underlying cases. He appeals the order revoking his community control/probation that resulted in his subsequent incarceration. Although it seems likely that the appellant’s behavior constituted grounds for forfeiting his right to counsel, we are constrained to reverse given the record before us.

An affidavit of violation of probation (VOP) was filed charging the appellant with several violations. The appellant was found to be indigent, and the public defender was appointed. The public defender represented the appellant at two pretrial hearings before moving to withdraw. Conflict counsel was then appointed who also moved to withdraw. A private attorney, A1 Sauline, was then appointed to represent the appellant. Sauline proceeded to represent the appellant at two pretrial hearings in December 2012 and January 2013.

At the outset of the pre-trial hearing on January 14, 2013, the trial court indicated that it understood that the appellant believed Sauline was incompetent and wanted to discharge him as counsel. The appellant replied that he “pretty much” wanted to discharge Sauline. When asked why, the appellant stated that Sauline did not like him, which was something he had heard from “every attorney.” The trial court then stated that it had reviewed the letters the appellant had written to Sauline in which the appellant threatened to kill Sauline’s wife, rape his secretary and children, and threatened to perform homosexual acts on Sauline. The transcript of the pre-trial hearing shows that the appellant’s attempts to deny or respond in any way to these allegations were cut off by the trial court. The abusive letters were not included in the record on appeal, and there is no record indication that the trial court ever questioned Sauline about the letters. The trial court then stated,

So, Mr. Bowden, I’m going to find that Mr. Sauline is not deficient, but I am going to find that there is a sufficient conflict of interest that exists such that he is discharged, based upon your own doing, from representing you any further. You shall represent yourself or hire your own attorney going forward. Your evidentiary hearing has been previously set for February 11th. I will see 4 you at that time.

On February 11, 2013, the appellant appeared pro se for his VOP hearing during which his probation was revoked on three grounds. The trial court immediately proceeded to sentencing, and the appellant was sentenced to concurrent five and seven years’ incarceration in his underlying cases. There was no mention of the appellant’s pro se status at either the VOP hearing or sentencing.

The appellant argues on appeal that the trial court erred by discharging Sauline without appointing new counsel to represent him during his VOP hearing. He finds further error in the trial court’s failure to hold a Faretta hearing before effectively requiring the appellant to act pro se. We find that a defendant may forfeit his right- to counsel by egregious behavior. However, under the particular facts of this case, we are constrained to reverse.

Both the United States and the Florida Constitutions guarantee an indigent criminal defendant the right to assistance of appointed counsel. See U.S. Const, amend. VI; Art I, sec. 16, Fla. Const. The right to counsel is a fundamental right that applies to every critical stage of the proceedings. Florida has determined that a person subject to probation revocation has an absolute right to counsel unless there has been informed waiver thereof. State v. Hicks, 478 So.2d 22, 23 (Fla.1985). An informed waiver is found when a defendant makes an affirmative waiver of the right to counsel and the record shows the trial court held a hearing to determine whether the waiver was knowingly and intelligently made. See Faretta, 422 U.S. at 834, 95 S.Ct. 2525. In addition, the defendant choosing to represent himself should be “made aware of the dangers and disadvantages of self-representation, so the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Id. (citation omitted). The deprivation of the right to counsel at a probation revocation hearing without evidence of a knowing and intentional waiver is fundamental error. See e.g., Brady v. State, 910 So.2d 388, 390 (Fla. 2d DCA2005).

The State argues that the trial court was not required to hold a Faretta hearing or to appoint new counsel because the appellant forfeited his right to counsel by his misconduct. Indeed, since the mid-1990s, state and federal courts have found that a defendant may forfeit his right to counsel such that the procedural safeguards typically associated with waiver of counsel do not apply.

In United States v. McLeod, 53 F.3d 322, 323 (11th Cir.1995), the defendant was appointed new counsel to represent him on a motion for new trial. Counsel briefed the motion for new trial and then moved to withdraw as counsel. Id. A hearing was held on the motion to withdraw during which counsel testified that the defendant was abusive, had repeatedly threatened to sue him, and had asked him to engage in unethical conduct. Id. Although given the opportunity, the defendant declined to testify. Id. The court granted the motion to withdraw and declined to appoint new counsel stating that the defendant’s behavior constituted a waiver. Id. Notably, new counsel was appointed for subsequent proceedings such as the defendant’s appeal and sentencing. Id. at 363, n. 13.

In considering the propriety of the court’s discharge of appointed counsel, the Eleventh Circuit cited, by way of analogy, other instances in which a criminal defendant could forfeit a constitutional right by his behavior, i.e., misbehavior in the courtroom could result in a forfeiture of the constitutional right to be present at trial. Id. at 325. Despite stating that it was troubled by the fact that the defendant was not warned that his misbehaviors might lead to pro se representation, the Eleventh Circuit nonetheless affirmed, finding that the defendant had forfeited his right to counsel by his misconduct and stating, “[W]e conclude that under certain circumstances, a defendant who is abusive toward his attorney may forfeit his right to counsel.” Id.

Shortly thereafter, the Third Circuit, in United States v. Goldberg, 67 F.3d 1092 (3d Cir.1995), distinguished the concept of forfeiture from waiver or implied waiver by conduct, stating,

Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right.

Id. at 1100.

The Third Circuit declined to apply a forfeiture analysis to the case before it in part because the defendant’s alleged death threats to his attorney were not established at a hearing at which the defendant was present or represented. Id. at 1101-02.

One year later, the Third Circuit found that a defendant’s “extremely serious misconduct,” physically attacking his attorney in the courtroom, constituted a forfeiture of the right to counsel. See United States v. Leggett, 162 F.3d 237, 250 (3d Cir.1998). The Third Circuit distinguished Goldberg on the grounds that the assault occurred in full view of the district court and the defendant had been given the opportunity to contest the forfeiture at a later adversarial proceeding. Id.

More recently in Gilchrist v. O’Keefe, 260 F.3d 87 (2d Cir.2001), a habeas proceeding, then circuit judge Sonia Sotoma-yor considered whether the lower court’s determination that the defendant’s constitutional right to counsel was not violated by the court’s refusal to appoint new counsel for sentencing when appointed counsel withdrew after the defendant punched him. Judge Sotomayor stated that “even absent a warning, a defendant may be found to have forfeited certain trial-related constitutional rights based on certain types of misconduct.” Id. at 97.

State courts have also been willing to find forfeiture when a defendant either physically or orally abuses his counsel. See e.g., Commonwealth v. Thomas, 879 A.2d 246 (Pa.Super.Ct.2005) (affirming forfeiture of counsel where a defendant was abusive and threatening toward, five appointed attorneys). There is very little case law in Florida, but in Jackson v. State, 2 So.3d 1036, 1037 (Fla. 3d DCA 2009), the Third District held,

Although the attempted Faretta inquiries may not have passed legal muster ... the trial court did not err in requiring Jackson to proceed without counsel. This is because his recalcitrance, antagonism and even personal attacks upon each of a lengthy series of court-appointed attorneys, all of whom were required to withdraw, rendered it obvious that he simply would not permit himself to be represented by anyone and amounted to a binding forfeiture or waiver of that right.

Although there is very little recitation of facts in Jackson, it demonstrates that Florida courts have also been willing to apply a forfeiture analysis in certain circumstances.

Thus, allegations to kill, rape, or otherwise harm an appointed attorney could constitute grounds for forfeiture of ■ the right to counsel. Although a fundamental right, “the right to counsel is a shield, not a sword. A defendant has no right to manipulate his right for the purpose of delaying and disrupting the trial.” United States v. White, 529 F.2d 1390, 1393 (8th Cir.1976). Upon a declaration of forfeiture, a trial court would not be obligated to conduct a Faretta hearing or to otherwise warn a defendant of the dangers of proceeding pro se. However, we are constrained to reverse here because the only evidence in the record regarding the appellant’s abusive behavior came in from the trial court’s own statements. Although the State argues the appellant admitted to writing the abusive letters, our review of the transcript reveals no such admission. The appellant’s attempts to deny or otherwise respond to the allegations of abuse were immediately cut off by the trial court. The indigent appellant was effectively forced to proceed to the revocation hearing pro se and was imprisoned as a result. Given the severity of the sanction of forfeiture of the right to counsel and the lack of record basis to support a finding of forfeiture in the instant case, we REVERSE and REMAND to provide the appellant with a new violation of probation hearing.

RAY and SWANSON, JJ, concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: SLEET, Judge.

text:
    Shannon STEPHEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4018.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.
    Michael Ufferman of Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Shannon Stephen appeals his convictions and sentences for DUI manslaughter and leaving the scene of a crash involving death. Stephen correctly argues that the trial court erred in awarding $225 under section 938.05(1), Florida Statutes (2005). Stephen preserved this issue by filing a timely Florida Rule of Criminal Procedure 3.800(b)(2) motion. We affirm his remaining issue on appeal without further comment.

We review the statutory requirements for imposing assessments under section 938.05 de novo. See Chamblee v. State, 93 So.3d 1184, 1185 (Fla. 1st DCA 2012), superseded by statute on other grounds, Spear v. State, 109 So.3d 232, 232 (Fla. 1st DCA 2013). The State properly concedes error on this issue. The controlling statute is the version that was in effect at the time of the offense. See Swift v. State, 53 So.3d 394, 395 (Fla. 2d DCA 2011). Because the offense date in this case was March 26, 2006, section 938.05, Florida Statutes (2005), controls. As that statute authorizes a fíne of only $200, we reverse the award of $225 and remand for the trial court to enter a corrected order assessing fines and costs.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and WALLACE, JJ„ Concur.


author: WALLACE, Judge.

text:
    Jarred GALINDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1139.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Jarred Galindo appeals from a final order on his motion for postconviction relief and from his new sentences in accordance with the relief granted. On appeal, Mr. Galindo challenges only the summary denial of ground 5 of his motion for postconviction relief. We conclude that the postcon-viction court erred in summarily denying relief on ground 5, and we reverse and remand for further proceedings on this claim.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The State filed an amended information against Mr. Galindo, charging him with four counts of attempted robbery with a firearm or deadly weapon (counts 1-4), two counts of robbery with a firearm or deadly weapon (counts 5-6), one count of driving while license revoked (DWLR) as a habitual traffic offender (HTO) (count 7), two counts of fleeing or attempting to elude a law enforcement officer (LEO) (counts 8 and 10), and one count of obstructing or opposing a LEO without violence (count 9). On October 8, 2008, Mr. Galindo entered into an open plea on counts 7 and 9. The remaining charges went to a jury trial. The jury convicted Mr. Galindo on counts 1 through 4,‘6, and 8. It acquitted Mr. Galindo on count 10, and the State dismissed count 5.

Thereafter, the trial court entered a judgment and sentences in accordance with Mr. Galindo’s plea and the jury’s verdict. This court per curiam affirmed Mr. Galindo’s judgment and sentences on direct appeal. Galindo v. State, 52 So.3d 665 (Fla. 2d DCA 2011) (table).

On June 14, 2011, Mr. Galindo filed a timely motion for postconviction relief, asserting five claims of ineffective assistance of trial counsel. The postconviction court rendered an order on March 20, 2012, summarily denying relief on grounds 3 and 5 and directing the State to respond to grounds 1, 2, and 4. Ultimately, the post-conviction court granted an evidentiary hearing on grounds 1, 2, and 4. On January 24, 2013, the postconviction court entered a final order after evidentiary hearing, granting relief on grounds 1, 2, and 4 and scheduling a resentencing hearing on counts 1-4, 6, and 7 of the amended information. The trial court rendered new sentences on counts 1-4, 6, and 7 on February 6, 2013. As noted above, in this proceeding Mr. Galindo challenges only the post-conviction court’s summary denial of relief under ground 5 of his motion.

II. DISCUSSION

In ground 5, Mr. Galindo argued “that [his trial] counsel was ineffective for failing] to object to the [trial] [c]ourt exceeding the five (5) year maximum sentence that the [trial] [c]ourt stated, in exchange for the open guilty plea on [c]ount 7,” DWLR as an HTO. He alleges that the five-year maximum sentence that the trial court advised him about was an agreed sentence. However, Mr. Galindo’s arguments in ground 5 also state, somewhat inartfully, that his plea on count 7 was involuntary because his counsel and the trial court failed to advise him that he could be sentenced on that count, a third-degree felony, to the minimum guideline sentence under his scoresheet, which exceeded the maximum statutory sentence of five years’ prison.

In fact, Mr. Galindo alleged that at the time of his plea, the trial court advised him that the maximum possible sentence that he could receive on that count was five years’ prison. He further alleged that the trial court informed him “that he should be prepared to do a total of six (6) years” due to the additional one-year sentence that could be imposed on the misdemeanor offense included in his plea. Following Mr. Galindo’s jury trial on the other offenses and resentencing in accordance with the relief granted on his motion for postconviction relief, the trial court sentenced Mr. Galindo to 133.35 months’ (11.1125 years’) prison with a ten-year mandatory minimum sentence on count 7. Mr. Galindo alleged in his postconviction motion that his trial counsel had “a duty to inform [him] of the minimum and maximum sentences that [he was] subject[ ] to[ ] before [he was] blindly ambushed with a sentence almost [three] times [harsher] than the agreed upon [five] year sentence.” He further stated that he would not have entered into the plea on count 7 if the trial court and counsel had advised him that his sentence on count 7 could exceed five years’ prison, and he asked to be permitted to withdraw his plea.

The postconviction court summarily denied relief on ground 5, stating that “there was no plea agreement stating that the Defendant would receive a sentence of five years in exchange for his entry of a plea of guilty. Instead, the Defendant entered an open plea of guilty, and the Court informed him of the statutory maximum of five years associated with [the] charge.” In addition, the postconviction court noted that the trial court had explained the nature of an open plea and that Mr. Galindo had confirmed that no promises had been made to him about what sentence would be imposed. The postconviction court further observed that upon sentencing, Mr. Galin-do was sentenced under the terms of his scoresheet to the lowest permissible sentence as required by law. The court concluded that because the trial court lacked discretion in sentencing Mr. Galindo, he was not prejudiced by his trial counsel’s failure to object to the imposition of a sentence in excess of five years’ prison.

In its order denying relief on ground 5, the postconviction court referenced Mr. Galindo’s plea form, the transcript of the plea hearing, Mr. Galindo’s scoresheet, and the transcript of Mr. Gal-indo’s sentencing hearing. However, it did not attach copies of those documents to its order. On appeal, Mr. Galindo argues, and the State agrees, that the postconviction court erred in failing to attach record documents that conclusively refute Mr. Galindo’s argument in ground 5. We agree with the parties’ arguments that the postconviction court erred in summarily denying ground 5 without attaching record documents to its order that conclusively refute his arguments under that claim.

More important, the postconviction court’s order does not address Mr. Galin-do’s argument that his plea was involuntary because he was not advised by his trial counsel or by the trial court of the maximum possible sentence that could be imposed on count 7. Rather, the order merely addresses Mr. Galindo’s argument that his counsel was ineffective for failing to object to the imposition of a sentence in excess of five years’ prison.

Mr. Galindo’s plea form reflects that the maximum possible sentence for count 7 was five years’ prison, which, in Mr. Galin-do’s case, is incorrect. And his argument that his trial counsel and the trial court failed to advise him of the maximum possible sentence on count 7, thereby rendering his plea involuntary, presents a facially sufficient claim for postconviction relief. See Davis v. State, 15 So.3d 770, 772 (Fla. 2d DCA 2009) ■ (holding that the defendant’s claim that he would not have entered into a plea but for counsel’s misad-vice about the maximum possible penalties for his offenses stated a facially sufficient claim for postconviction relief); Arroyo v. State, 673 So.2d 919, 920 (Fla. 2d DCA 1996) (holding that the defendant’s claim that he would not have entered into a plea if his trial counsel had correctly informed him about the possible penalties that he faced stated a facially sufficient claim for postconviction relief). Thus the postcon-viction court erred in summarily denying relief on ground 5 without addressing this argument.

III. CONCLUSION

Because the postconviction court did not address Mr. Galindo’s argument in ground 5 that his plea to count 7 was involuntary based on his counsel’s and the trial court’s misadvice about the maximum possible sentence and because it failed to attach record documents that conclusively refute his arguments in ground 5, we reverse the postconviction court’s March 20, 2012 order to the extent that it summarily denied relief on ground 5 and remand for further proceedings. In all other respects, we affirm the postconviction court’s orders. We also affirm Mr. Galindo’s new sentences.

Affirmed in part, reversed in part, and remanded in part.

NORTHCUTT and SLEET, JJ., ' Concur.

      . Mr. Galindo did not raise any claim of ineffective assistance of counsel on his convictions or sentences for counts 8 and 9.

      . Mr. Galindo's plea form and scoresheet, although not attached to the postconviction court’s order, are included in the record on appeal. But' the transcripts of the plea and sentencing hearings are not included in the record.


author: ALTENBERND, Judge.

text:
    Edward Marcus MILLS, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1859.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.

      Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Edward Marcus Mills, III, appeals a single order revoking his orders of supervision in six separate cases. As a result of the revocations of supervision, Mr. Mills is now serving a large number of concurrent terms of imprisonment, the longest of which is eight years. We affirm the revocation but remand for the entry of corrected revocation orders.

During the revocation hearing, the trial court relied exclusively on Mr. Mills’ admission that he had violated condition five of the standard conditions of supervision for each of his orders of supervision. This admission involved Mr. Mills’ use and possession of marijuana at a time when he was subject to these supervisory orders. As correctly argued by Mr. Mills, the written order of revocation erroneously lists violations of conditions “9,16, [and] Special Condition 2,” even though he admitted violating only condition five. Accordingly, we affirm the revocation of Mr. Mills’ orders of supervision, but we remand for the trial court to enter corrected revocation orders that include only a violation of condition five as the basis for the revocation.

Affirmed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . State v. Mills, Nos. 2007-CF-7521, 2009-CF-7935, 2009-CF-7937, 2009-CF-7939, 2009-CF-7940, 2012-CF-10331 (Fla. 13th Cir. Ct. Mar. 21, 2013) (revoking supervisory orders in each case, which included a community control order that was to be followed by probation in case number 2012-CF-10331 and probation orders in the remaining cases).

      . Because the six cases were filed at different times; involved sentences for multiple counts, some of which had been fully served at the time of this revocation proceeding; and involved different types of supervision, it would be helpful if the trial court entered case-specific orders of revocation on remand.


text:
    Russell L. UNDERWOOD, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D13-4684.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2014.
    Russell L. Underwood, pro se, Petitioner.

      Mark J. Hiers, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is DENIED on the merits.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Daryl THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3452.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2014.
    Daryl Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    David ARNETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-924.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2014.
    David Arnett, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because petitioner’s motion for modification of sentence was timely filed pursuant to Florida Rule of Criminal Procedure 3.800(c), the petition for writ of certiorari is granted. See Jones v. State, 4 So.3d 80 (Fla. 1st DCA 2009); Mathis v. State, 957 So.2d 692, 692-93 (Fla. 1st DCA 2007); Griffin v. State, 979 So.2d 1253, 1255 (Fla. 4th DCA 2008) (holding that “imposition” of sentence by trial court under Rule 3.800(c) includes sentence imposed by trial court following reversal on appeal of denial of post-conviction relief, and motion filed within 60 days of such imposition was not untimely); Robertson v. State, 138 So.3d 1140, 1141 (Fla. 2d DCA 2014) (following Griffin). The circuit court’s order dated February 10, 2014, is quashed and the cause is remanded with directions to consider the motion on the merits.

PETITION GRANTED.

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


author: LAMBERT, J.

text:
    Randall Keith SCHENK, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4048.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

Randall K. Schenk appeals the trial court’s restitution order requiring him to pay $10,323 for damages resulting from him committing the offense of grand theft. He argues that $4935 of the restitution award was determined based on inadmissible hearsay, and therefore, the trial court’s order was not supported by competent, substantial evidence. Except for the amount awarded for an electronic tablet, we affirm.

Cindie Schenk reported to the police that her son, Randall Schenk, had stolen 14 pieces of jewelry and an electronic tablet from her home. Schenk was arrested and subsequently entered an open plea of no contest to the charge of grand theft, and the trial court sentenced him to probation. As a condition of his probation, Schenk was required to pay restitution to his mother, and the court reserved jurisdiction to assess the amount.

Mrs. Schenk was the only witness who testified at the restitution hearing. The value of only some of the pieces of jewelry stolen from her was in dispute. Since those pieces were “received as gifts over probably 30 years or more,” Mrs. Schenk conducted research on a jewelry store website and testified as to the fair market value of each individual piece of jewelry, providing a total value of $4935.

The final item Mrs. Schenk testified to was a “ten-inch screen android electronic tablet” that was purchased in 2012 for $160. Mrs. Schenk testified that at the time the tablet was taken, it had a fair market value of “less than [$]160” because “it would have been about eight months old.” During cross-examination, Mrs. Schenk admitted that she originally valued the tablet at $120 due to the fact that it was used.

In its restitution order, the court found that “the victim was able to produce substantial, competent evidence as to the value of the pieces,” and ordered Schenk to pay Mrs. Schenk $10,323, the approximate total of Mrs. Schenk’s valuations.

The primary issue on appeal is whether the victim’s hearsay testimony of the value of her stolen jewelry is sufficient to sustain the court’s restitution order. Where the amount of restitution is in dispute, the burden is on the State to prove the amount of the victim’s loss by a preponderance of the evidence. § 775.089(7), Fla. Stat. (2013). “Restitution must be proved by substantial competent evidence.” Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005). In general, an owner of property is qualified to testify to the fair market value of his or her property. State v. Hawthorne, 573 So.2d 330, 333 n. 6 (Fla.1991). However, if there is a proper objection by the defense, otherwise inadmissible hearsay may not provide the sole basis for the owner’s opinion. See T.J.N. v. State, 977 So.2d 770, 773 (Fla. 2d DCA 2008); Johnson v. State, 856 So.2d 1085, 1087 (Fla. 5th DCA 2003).

Florida courts routinely reverse restitution awards that are based on hearsay where the defendant timely objected to the hearsay evidence. See, e.g., Butler v. State, 970 So.2d 919, 921 (Fla. 1st DCA 2007) (“Here, Butler made a timely hearsay objection to the admissibility of the written estimate. Because the written estimate was inadmissible hearsay evidence, we hold that the trial court erred in admitting the estimate and basing the value of the exterior door solely on this evidence.”); Bonner v. State, 899 So.2d 1212, 1212 (Fla. 2d DCA 2005) (“Because a proper objection was raised to hearsay that was the sole evidence of the amount of restitution, we reverse and remand for a new restitution hearing.”). The Fourth District Court of Appeal recently reversed a restitution award where the victim’s hearsay testimony as to the values of stolen jewelry was based on website valuations. Phillips v. State, 141 So.3d 702, 705-07 (Fla. 4th DCA 2014). Recognizing that “it is highly unlikely that the victim could have presented representatives from the various websites she researched to testify as to the restitution amount,” and that the victim appeared to have ho other means by which to prove the amount, thereby leading to an unjust result, the court recommended that “our state legislature revisit section 775.089, Florida Statutes (2012), and consider providing trial courts with wider discretion in setting the restitution amount,” including permitting the consideration of hearsay evidence. Id. Because “restitution to victims is a central ‘penological interest’ of Florida criminal law,” Noel v. State, 127 So.3d 769, 774 (Fla. 4th DCA 2013), review granted, SC14-363, 2014 WL 5038125 (Fla.2014), we join the Fourth District Court’s recommendation.

Here, unlike in Phillips, Schenk did not object to Mrs. Schenk’s hearsay testimony. Mrs. Schenk’s testimony as to the value of her stolen jewelry is sufficient to sustain the trial court’s order. See Hawthorne, 573 So.2d at 333 n. 6 (“We note that an owner of property is generally qualified to testify as to the fair market value of his property.”); Rae v. State, 638 So.2d 597, 598 (Fla. 4th DCA 1994) (“The general rule is that hearsay testimony is not admissible in a restitution hearing unless defense counsel fails to properly object to the evidence.”). We do find error though in the trial court’s apparent valuation of the victim’s tablet at $160. During cross-examination, Mrs. Schenk testified that she purchased the tablet for $160 eight months earlier and, because “it was used,” the value was now $120. We therefore remand to the trial court to enter a corrected restitution order in the amount of $10,285. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

SAWAYA AND PALMER, JJ„ concur.

      . Schenk also pled no contest to two misdemeanors that are not the subject of this appeal.

      . This figure represents two dollars less than the fair market value for the pieces of jewelry whose value was not disputed, the fair market value of jewelry whose value was in dispute, and $160 for the tablet. There is no record explanation for the two dollar deduction; it was likely a clerical error.


text:
    Lyle BENNETT, Petitioner, v. CLERK OF CIRCUIT COURT CITRUS COUNTY, Florida, Respondent.
    No. 5D14-2875.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.

      Lyle Bennett, Perry, pro se.
    No appearance for Respondent.
   PER CURIAM.

Petitioner, Lyle Bennett, seeks a writ of mandamus to compel the Citrus County Clerk of Court to provide free copies of his 1) plea agreement, 2) sentencing transcript, 3) guideline scoresheet, and 4) “sworn Direct Information filed, etc.” in his Citrus County felony Case No.2013CF-341-A. Bennett states that the Citrus County Clerk is demanding $1 per page for the records sought and that he is indigent and trying to draft a motion for post-conviction relief. The petition does not include an appendix or a copy of the alleged response that he received from the Citrus County Clerk’s Office. He also does not state whether his request for copies was a chapter 119 request or was simply correspondence to the Clerk.

Bennett relies on Lewis v. State, 142 So.3d 879 (Fla. 1st DCA 2014), which held that an indigent criminal defendant “is entitled to his or her own copy of the record in proceedings in which he or she is proceeding pro se, such as in Anders appeals, and, at the conclusion of representation, is entitled to the record in the possession of trial counsel that was prepared at public expense.” 142 So.3d at 880 (internal citations omitted). Lewis does not support Bennett’s claim. Lewis simply provides that a copy of the record shall be provided by the Clerk to indigent defendants in criminal matters. Id. It did not extend the right to free copies to indigents beyond the direct appeal of judgment and sentence and transcripts of evi-dentiary hearings held on postconviction claims. See Fla. R. App. P. 9.141(b)(3). Bennett does not assert that the Clerk has refused to provide him copies, only that she requires a $1 fee per page.

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” Poole v. City of Port Orange, 33 So.3d 739, 741 (Fla. 5th DCA 2010) (citing Puckett v. Gentry, 577 So.2d 965, 967 (Fla. 5th DCA 1991)). “A duty or act is ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law.” Austin v. Crosby, 866 So.2d 742, 744 (Fla. 5th DCA 2004). The petitioner must show a clear legal right to the relief requested and “an indisputable legal duty on the part of the. respondent” to act. See Bernard v. State, 911 So.2d 1259,1260 (Fla. 5th DCA 2005).

Finally, “[a] litigant who seeks action from the trial court clerk to provide documents or accept filings cannot start with mandamus at the appellate court. He must seek relief in the trial court first. It is the trial court that has jurisdiction over such matters.” Leichty v. Clerk of Circuit Court, Lake Cnty., 948 So.2d 47, 48 (Fla. 5th DCA 2007). But see Musmacher v. McDonough, 969 So.2d 1101,1103 (Fla. 1st DCA 2007) (distinguishing Leichty under circumstances of case, and directing clerk of circuit court to accept petitioner’s petition for writ of mandamus because it would be impossible for petitioner to request relief from circuit court judge when circuit court clerk will not accept any pleadings he files).

Bennett has failed to demonstrate entitlement to relief from this Court. Wé deny the petition.

PETITION DENIED.

TORPY, C.J., ORFINGER and EVANDER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . It does not appear that Bennett filed a direct appeal in this case; consequently, it is unlikely that transcripts were prepared of his plea and sentencing proceedings.


text:
    Jeffery L. GIBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3151.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2014.
    Jeffery L. Gibbs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., BENTON and MARSTILLER, JJ., concur.


text:
    Courtney BROWN, Appellant, v. STATE, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM and Ishema Shami Jones, Appellees.
    No. 1D14-3963.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2014.
    Courtney Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee, Florida Department of Revenue.
   PER CURIAM.

The Motion to Dismiss filed September 18, 2014, is granted. The appeal, is dismissed. See Fla. R. App. P. 9.110(c); Fla. R. App. P. 9.190(b).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Lavonne Travis McALLISTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3532.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2014.
    Lavonne Travis McAllister, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted. See Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013) (finding that the trial court committed fundamental error by giving standard jury instruction providing that self-defense applied only if the victim suffered an “injury”). The petitioner’s conviction and sentence are REVERSED, and this matter is REMANDED for a new trial.

VAN NORTWICK; RAY, and OSTERHAUS, JJ., concur.


text:
    Antoinette Michelle FARBER, Former Wife, Appellant, v. Alan Thomas FARBER, Former Husband, Appellee.
    No. 1D14-4290.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2014.
    James T. Keenan of James T. Keenan, P.A., Jacksonville; Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Gulf Power Co. v. Harper, 940 So.2d 535 (Fla. 1st DCA 2006).

BENTON, ROBERTS, and RAY, JJ., concur.


author: BENTON, J.

text:
    Anthony Bernard BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4365.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.

      Nancy A. Daniels, Public Defender, and Zachary Lawton, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal, Anthony Bernard Brown argues for reversal of his conviction for violating section 951.22(1), Florida Statutes (2012), which forbids introducing contraband into, as well as simply possessing contraband on the grounds of, a county detention facility. Properly construed, the statute requires mens rea as an element of the offense. Accordingly, although evidence sufficient to prove the offense was adduced, jury instructions allowing conviction without proof of scienter constituted fundamental error, and require reversal and remand for a new trial.

Violation of section 951.22, Florida Statutes, is a third-degree felony, § 951.22(2), Fla. Stat. (2012), for which Mr. Brown was sentenced to sixty months’ imprisonment. As our supreme court has said, “ ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ ” Chicone v. State, 684 So.2d 736, 743 (Fla.1996) (quoting Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951)), superseded by statute on other grounds, State v. Adkins, 96 So.3d 412, 415-16 (Fla.2012). The “United States Supreme Court has stated that offenses that require no mens rea generally are disfavored, and has suggested that some indication of legislative intent, express or implied, is required to dispense with mens rea as an element of a crime.” Id. Section 951.22(1) does not differentiate between possession of contraband and its introduction insofar as requiring scienter or mens rea, and the standard jury instruction • offers no rationale for such a differentiation. In order to convict for introducing contraband into a county detention facility, no less than simply for possessing contraband in a county detention facility, the state must prove and the jury must find that the defendant acted knowingly. Failure so to instruct the jury in the present case was error.

Before the present .prosecution began, Mr. Brown had been sentenced to serve 300 days in county jail. The trial court later granted his request to participate in a work release program, requiring his confinement at night but letting him leave to work during the day. In keeping with the rules of the work release center, Mr. Brown was patted down each time he entered the work release housing facility. On May 4, 2013, the correctional officer conducting the search discovered a bag containing marijuana in one of Mr. Brown’s pants pockets.

At trial, the probation officer at the work release center testified that, when she spoke to Mr. Brown after the search, he told her he did not realize he had the contraband. Testifying in his own behalf, Mr. Brown said he left the work release center around eight on the morning of the fourth and began work in the parking lot of a convenience store detailing vehicles, then worked as a cashier at the convenience store from 6:00 p.m. until 10:00 p.m. He testified he changed clothes before beginning his shift as cashier because his clothing was wet; the only thing he put into his pants when he changed was his wallet; and he did not check the other pants pockets. He also testified that other people worked at the store and had access to the clothing he changed into. He denied any knowledge of the small plastic bag containing marijuana, before the guard discovered it, and maintáined he did not intend to bring marijuana into the facility.

The statute defines the offense in alternative ways: The offense can be committed either by introducing contraband into a county detention facility or by possessing contraband on the grounds of a county detention facility. The jury was instructed on both alternative methods for committing the offense, as follows:

[T]o prove the crime of introducing contraband articles into a county detention facility, the State must prove the following two elements beyond a reasonable doubt:
1. Anthony Bernard Brown introduced contraband into or knowingly possessed contraband in a county detention facility.
2. Anthony Bernard Brown did not do so through the regular channels as duly authorized by the sheriff or officer in charge of the facility.
The Court now instructs you that for the purposes of this offense, “contraband” means: Any controlled substance. Cannabis is a controlled substance.
To “introduce” means to put inside or into.
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
Actual means:
■ A. The controlled substance is in the hand of or on the person, or
B. The controlled substance is in a container in the hand of or on the person,
C. The controlled substance is so close as to be within ready reach and is under the control of the person.
If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.

We conclude both alternatives — introducing contraband into, and possessing contraband on the grounds of, a county detention facility — contemplate knowing and willful action on the part of the accused. But the jury was told it could convict for introducing contraband even in the absence of mens rea.

Defense counsel did not object to the jury instructions on these (or any other) grounds even though counsel discussed the issue of guilty knowledge and the trial judge said, during the discussion:

[Tjhere is still a knowledge component. If somebody slipped it in his pocket and he didn’t know and somebody — and you had a witness come and say I slipped it in his pocket, I was hoping he’d get it and I was hoping I’d get it from him later, he didn’t know I did it, I think that would be a defense to it.

Also without objection, the prosecutor argued in closing, as follows:

First, the State must prove that Anthony Bernard Brown, the defendant, introduced contraband into the detention facility, or, knowingly possessed contraband in the detention facility. So there’s an “or” in between there. It’s that he introduced the contraband into the facility, or that he knowingly possessed it.

On appeal, in arguing for reversal for failure to charge the jury that it must find he had knowingly introduced contraband in order to convict on that basis, appellant contends the omission amounted to fundamental error, as he must: His failure to object would otherwise preclude relief. See Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010).

It has been said that “for jury instructions to constitute fundamental error, the error must ‘reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008) (citation omitted). Specifically, “where the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses, fundamental error occurs.” Daniels v. State, 121 So.3d 409, 418 (Fla.2013). “‘[Wjhether the evidence of guilt is overwhelming or whether the prosecutor has or has not made an inaccurate instruction a feature of the prosecution’s argument are not [determinative or even] germane to whether the error is fundamental.’ ” Haygood v. State, 109 So.3d 735, 741 (Fla.2013) (citation omitted).

In the present case, whether the appellant introduced the contraband knowingly was disputed and, indeed, the crux of the case. The omission in the instructions was plainly pertinent and material to what the jury had to consider in order to convict Mr. Brown of introducing marijuana into a county detention facility. As instructed, the jury was erroneously required to find Mr. Brown guilty if they found he entered the county detention facility with the marijuana in his pocket (a fact that was not even in dispute) even if they found he did not know the marijuana was in his pocket and did not intend to bring the marijuana into the facility. The error omitted an essential aspect or element of the offense charged, impermissibly reducing the state’s burden of proof.

“A conviction that rests on alternative bases, one of which is legally inadequate, cannot be upheld, if a general verdict makes it impossible to say with certainty that the jury convicted under a theory that was legally adequate.” Foster v. State, 861 So.2d 434, 437 (Fla. 1st DCA 2002). Because the jury returned a general verdict, it is impossible to determine whether Mr. Brown’s conviction rests on a jury determination that he knowingly possessed contraband or on a jury determination that he introduced contraband unawares.

The present case resembles Williams v. State, 413 So.2d 1263 (Fla. 1st DCA 1982), where Williams was subjected to a search visiting a state correctional institution, and asked to remove an item from the watch pocket of her jeans. She complied, and produced a small cellophane packet of POP, a controlled substance. At her trial on a charge of introducing contraband into a penal institution, Williams testified the pants belonged to a roommate, that she had taken the pants from the top shelf of her roommate’s closet, and that she had no knowledge of the contraband prior to the search. During deliberations, the jury submitted the following question: “Does the defendant have to have knowledge that she is in possession in order to be guilty of taking PCP into the prison?” Id. at 1264. Without consulting counsel, the trial court informed the jury that the answer to the question was “no.” Id. On appeal, we reversed, holding it was error to instruct the jury that Ms. Williams did not have to have knowledge that she was in possession of the contraband in order to be found guilty of introducing contraband into a correction institution. Id. at 1265.. We said that Ms. Williams’ testimony denying knowledge of the contraband “presented a question of fact to the jury. The trial court’s comment that knowledge was not required relieved the jury of its responsibility to determine the credibility of that testimony.” Id. See also State v. Oxx, 417 So.2d 287, 290-91 (Fla. 5th DCA 1982) (holding the trial court had erred in holding section 951.22, Florida Statutes, unconstitutional on the ground that the failure of the statute to expressly require mens rea or scienter made unknowing possession a criminal offense, because “[ajlthough the legislature may punish an act without regard to any particular .(specific) intent, the State must still prove general intent, that is, that the defendant intended to do the act prohibited,” and noting “possession” in the context of the statute “means possession and knowledge of the same, and [a defendant’s] knowledge (or lack of knowledge) of his possession is, subject to an appropriate instruction, an issue for the jury”).

In the present case, no less than in Williams v. State, 145 So.3d 997 (Fla. 1st DCA 2014), the “erroneous jury instructions ... constituted fundamental error because the instructions [may well have] ‘prevented the jury from being able to choose the true verdict in this case — a verdict based on the jury’s application of its fair assessment of the facts concerning [Mr. Brown’s] intent to the proper elements of the offense as set forth in the ... statute.’ ” Id. (quoting Haygood, 109 So.3d at 743). We are unable to conclude ■ there is no reasonable possibility that the deficient jury instruction contributed to the verdict. Cf. Croom, 36 So.3d at 709 (“[I]f the totality of the circumstances indicates there is no reasonable possibility an alleged jury instruction error contributed to the verdict, the error is not fundamental.”).

Reversed and remanded.

LEWIS, C.J. and MARSTILLER, J., concur.

      . Section 951.22(1), Florida Statutes (2012), provides that it is unlawful "to introduce into or possess upon the grounds of any county detention facility ... any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: ... any narcotic, hypnotic, or excitative drug or drug of any kind or nature, including ... controlled substances as defined in s. 893.02(4).”

      . The jury was also instructed on the lesser-included offense of possession of less than twenty grams of cannabis.

      . Although the court determined that the instruction was inadequate, the conviction was originally affirmed "[sjolely on the narrow ground of non-preservation” because trial counsel did not object to the instruction given and this court’s decision in Reed v. State, 783 So.2d 1192, 1197 (Fla. 1st DCA 2001), quashed, 837 So.2d 366 (Fla.2002), precluded reversal where the defense complained on appeal for the first time of an allegedly inaccurate definition of an element of a crime. Foster v. State, 861 So.2d 434, 435, 441 (Fla. 1st DCA 2002). Subsequent to the court's decision in Foster, the supreme court quashed this court’s decision in Reed and held that "misstating an element of an offense in instructing the jury — even in accordance with an often used standard jury instruction — constituted fundamental error requiring reversal without regard to the usual rules of preservation because 'the inaccurate definition of malice [the element at issue in Reed ] reduced the State’s burden of proof on a disputed element.” Foster, 861 So.2d at 442-43 {on reh'g, Dec. 24, 2003) (quoting Reed v. State, 837 So.2d 366, 369 (Fla.2002)). Accordingly, on motion for rehearing, this court reversed the conviction and remanded for a new trial. See id.


text:
    J & S TECHNOLOGIES, INC., II, Appellant, v. HABCO ENGINEERS & ERECTORS, INC., Appellee.
    No. 1D13-4740.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Henry G. Gyden of Anderson Law Group, Clearwater, for Appellant.
    Ryan C. Wagner of Lawcraft, Plantation, for Appellee.
   PER CURIAM.

Since there remain genuine issues of material fact, as pointed out by appellant under its first point on appeal, we hold the trial court erred in entering final summary judgment in favor of appellee. For this reason, we do not reach the merits of appellant’s second point, but, instead, remand the cause to the trial court for further proceedings.

REVERSED and REMANDED for further proceedings consistent with this opinion.

PADOVANO, WETHERELL,and SWANSON, JJ., concur.


text:
    Laurence D. COHEN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and United States Pharmaceutical Group, Appellees.
    Nos. 1D14-0509, 1D14-2731.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Laurence D. Cohen, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Cristina Angelica Velez, Assistant General Counsel, for Appellees.
   PER CURIAM.

On our own motion, we consolidate these appeals for disposition. We treat the Reemployment Assistance Appeals Commission’s motions to relinquish jurisdiction filed in each case as confessions of error, and we reverse the final orders in each case and remand for further proceedings.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Eddie POWELL, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2640.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Eddie Powell, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


text:
    Jerome Maurice HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3796.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2014.
    Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gideon v. State, 145 So.3d 892 (Fla. 1st DCA 2014); Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014).

THOMAS, ROBERTS, and ROWE, JJ., concur.


author: WOLF, J.

text:
    Attila MAKRANCZY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4410.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.
    D. Gray Thomas of Law Office of D. Gray Thomas, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions, and sentences for aggravated battery and criminal mischief. He raises a number of issues, only one of which we need to address because it is dispositive. We determine the trial court reversibly erred in limiting cross-examination of the victim concerning his consultation with an attorney in contemplation of a civil suit. See Wooten v. State, 464 So.2d 640 (Fla. 3d DCA 1985) (finding that it is reversible error to prohibit cross-examination of an alleged victim in a criminal case on the subject of whether the victim had hired an attorney to file a law suit on his behalf against the defendant even when a civil action is merely contemplated). We also cannot say the error was harmless based on the facts of this case.

REVERSED and REMANDED for a new trial.

ROWE and OSTERHAUS, JJ., concur.


text:
    Jerry Lee GRIFFIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5589.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.

      Nancy A. Daniels, Public Defender, and Colleen Dierdre Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Mere presence in a high crime area does not provide reasonable suspicion for a stop .and frisk. The police here — at every turn — lacked justification for their actions; •and Mr. Griffin’s motion to suppress should have been granted.

The facts here are simple and straightforward: with no reason to suspect criminal activity, an officer approached a man in a high-crime area standing in a driveway and immediately demanded he remove his hand from his pocket. When the man did nothing in response and refused to consent to a search, the officer conducted a weapons pat-down. During the weapons pat-. down, the officer grabbed the man’s pocket, felt a “squishy bag” with a small knot, and believed, immediately, he was “almost certain” the item was cocaine.

The Encounter

Police-citizen encounters come in three forms: voluntary/consensual, investigatory stop, and arrest. June v. State, 131 So.3d 2, 6 (Fla. 1st DCA 2012). The first, a completely voluntary and consensual encounter, can be terminated at will by the citizen — or' never even started. Id. An officer is not required to have any suspicion to merely enter into conversation with a citizen; but at the same time, a citizen is under no obligation to engage with the officer or respond in any way. Id.

Second though, where an officer has a “reasonable suspicion that a person has committed, is committing, or is about to commit a crime,” the officer may temporarily detain a citizen to confirm or refute his or her suspicions. See § 901.151(2)-(4), Fla. Stat.; June, 131 So.3d at 6. And where an officer has permissibly detained an individual, or is about to do so, he or she may conduct a limited search of the individual “only to the extent necessary to disclose, and for the purpose of disclosing, the presence of [a] weapon” if the officer has a “reasonable belief the person detained is armed.” See § 901.151(5), Fla. Stat.; State v. Webb, 398 So.2d 820, 825 (Fla.1981).

The nature of the encounter turns on whether the officer “hinder[ed] or restricted] the person’s freedom to leave or freedom to refuse to answer inquiries.” Popple v. State, 626 So.2d 185, 187-88 (Fla.1993). The question, ultimately, becomes whether a reasonable person in the same circumstances “would conclude that he or she is not free to end the encounter and depart.” Id. Importantly, an officer’s demand that a citizen remove his or her hands from their pockets constitutes a seizure: it is a directive or show of force an individual is not free to disregard: June, 131 So.3d at 7.

Accordingly, when thé officer here — immediately upon contact — demanded Mr. Griffin remove his hand from his pocket, the officer seized Mr. Griffin. See id. Anything consensual or voluntary about the contact ceased the moment the officer demanded Mr. Griffin remove his hand from his pocket. It is at the moment of the almost-immediate demand, then, that the officer must have had a reasonable suspicion that Mr. Griffin was “armed and potentially dangerous to justify the pat-down.” See id.

Standing in a driveway with a hand in one’s pocket neither provides reasonable suspicion one is armed and potentially dangerous nor justifies an invasion of one’s personal liberty.

The present facts are distinguishable from this Court’s recent decision in June v. State. There, June (i) told the officer he had a pocketknife in his right front pocket, (ii) continuously reached into that pocket during his conversation with the officer, and (iii) increased his nervous behavior upon revealing he was carrying a pocketknife. June, 131 So.3d at 7-8. Here, Mr. Griffin simply stood in his driveway and put his hand in his pocket. It is not apparent how this constitutes suspicious activity.

Again, it is the moment the officer demanded Mr. Griffin remove his hand (i.e., almost immediately) at which we stop the clock and observe the facts known to the officer. Testimony that Mr. Griffin repeatedly refused to remove his hand from -his pocket and exhibited several signs of increasing anxiety and nervousness during the stop are observations that occurred after the seizure; they cannot be considered when evaluating whether the officer had reasonable suspicion for the seizure. See Baptiste v. State, 995 So.2d 285, 294 (Fla.2008) (“[T]he reasonableness of the officers’ suspicion must be measured by the information that the officers knew before conducting the stop-and-frisk.”) (citing Florida v. J.L., 529 U.S. 266, 271,120 S.Ct. 1375,146 L.Ed.2d 254 (U.S.2000)).

The additional fact that the area was “high crime” does not change this determination. A “high crime area,” in and of itself, does not translate to reasonable suspicion one is armed and dangerous or that criminal activity must be afoot. See Parker v. State, 18 So.3d 555, 558 (Fla. 1st DCA 2008); Freeman v. State, 559 So.2d 295, 297 (Fla. 1st DCA 1990). In fact, “the cases are legion that presence in a high crime area, even when coupled with furtive movement, do not justify an investigatory stop.” Freeman, 559 So.2d at 297; Daniels v. State, 543 So.2d 363, 365-66 (Fla. 1st DCA 1989). It is even well settled that placing one’s hands inside a jacket or behind one’s back upon seeing officers — in a high crime area — does not justify a reasonable suspicion sufficient for a weapons pat-down. Daniels, 543 So.2d at 365-66 (citing Ruddack v. State, 537 So.2d 701 (Fla. 4th DCA 1989); Baggett v. State, 531 So.2d 1028 (Fla. 1st DCA 1988); Jenkins v. State, 524 So.2d 1108 (Fla. 3d DCA 1988); R.B. v. State, 429 So.2d 815 (Fla. 2d DCA 1983)).

In sum, the officer’s description of the area as a “high crime area” was used to justify his invasion of Mr. Griffin’s personal liberty. A “high crime” designation is not synonymous with reasonable suspicion of illegality. Nor are hands in pockets synonymous with reasonable suspicion of illegality. Even combined, the two facts are wholly insufficient to have provided the officer with reasonable suspicion Mr. Griffin was armed and potentially dangerous.

If ones mere presence in a “high crime” area can justify a reasonable suspicion for a weapons pat-down, then everyone who resides in, works in, visits, conducts business in, attends school in, or traverses through the area can be considered armed and potentially dangerous. This presumption could lead to a blanket suspension of constitutional rights for certain communities. Fourth Amendment constitutional protections do not stop at the entryway to selected neighborhoods.

At this juncture, the officer’s actions were unconstitutional. This alone required the trial court to suppress the search of Mr. Griffin’s pocket and resulting evidence. Nevertheless, the officer continued.

The Weapons PaP-Down

In addition to the illegality of the detention, the officer’s weapons pat-down was highly problematic.

“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); see Rimmer v. State, 825 So.2d 304, 313 (Fla.2002) (explaining the officer must first have been properly in the place where he feels contraband and have had a lawful right of access to the contraband). It bears emphasizing that the incriminating nature of the contraband must be “immediately apparent.” Dickerson, 508 U.S. at 375-76, 113 S.Ct. 2130 (emphasizing the incriminating nature must be “already known”); Rimmer, 825 So.2d at 313; Ray v. State, 849 So.2d 1222, 1225-26 (Fla. 4th DCA 2003) (feeling plastic baggy and testifying narcotics are frequently contained in plastic baggies did not meet “immediately apparent” requirement); Jordan v. State, 664 So.2d 272, 273-74 (Fla. 5th DCA 1995) (feeling “hard, rocky-like substance,” without details about officer’s experience with crack cocaine was insufficient); see also Oliver v. State, 989 So.2d 16, 18 (Fla. 2d DCA 2008) (seeing plastic baggie and believing, based on “training” that “either marijuana or crack cocaine” was inside the baggie, was insufficient).

Merely stating that “training and experience” led an officer to “know” an item was contraband is simply not enough. See Thomas v. State, 644 So.2d 597, 597-98 (Fla. 5th DCA 1994) (finding insufficient where officer testified only “[he] could feel something small, and basically to my training, education and experience it felt like to be [sic] a piece of cocaine”). The law requires more than a “naked subjective statement of a police officer who has a ‘feeling’ based on ‘experience.’ ” State v. J.D., 796 So.2d 1217, 1219-20 (Fla. 4th DCA 2001) (quoting Doctor v. State, 596 So.2d 442, 445 (Fla.1992)); CAM. v. State, 819 So.2d 802, 804-05 (Fla. 4th DCA 2001) (reversing denial of suppression where officer testified he could “easily feel the difference between a plastic bag commonly used for illegal drugs, and a pouch or case commonly used for tobacco through clothing”; officer’s “unadorned conclusion” he immediately knew the substance he felt, “through the clothing material of the pants and the packaging inside it was-to the exclusion of the many other lawful possibilities-marijuana” was insufficient); see also Cole v. State, 727 So.2d 280, 281 (Fla. 2d DCA 1999) (“[P]robable cause does not arise anytime an officer feels an object that the officer reasonably suspects to be contraband.”).

Officers may not “squeez[e], slid[e] and otherwise manipulate] the contents of the defendant’s pocket” in order to determine the incriminating nature of the item. Dickerson, 508 U.S. at 378-79, 113 S.Ct. 2130. In fact, simply lifting up a stereo to obtain the serial number from the bottom has amounted to impermissible manipulation. Id. (citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)); cf. June, 131 So.3d at 8 (“lightly patt[ing] shirt pocket” and “immediately recognizing]” crack cocaine was not impermissible manipulation).

The United States Supreme Court has “strictly circumscribed” plain-feel searches and “been sensitive to the danger ... that officers will enlarge a specific authorization [e.g., a weapons pat-down], into the equivalent of a general warrant to rummage and seize at will.” Dickerson, 508 U.S. at 378,113 S.Ct. 2130.

As for the search here, the officer “grabbed a handful of the pocket” and the “bag” inside to then feel “like, kind of a little squishy” and “a small knot.” This exceeded the scope of a “pat-down.” Grabbing a handful and recognizing a squishy feel and small knot takes squeezing or manipulation. This is not the case of “lightly patting”—or patting at all, in fact. Thus, the “pat-down” was overreaching and impermissible.

Second, all the officer detected was a bag with something “squishy” and a knot. A squishy, knotted bag could be a host of legitimate property items. Thus, it could not have been “immediately apparent” the item was powder cocaine. Third, the officer merely testified he “believed” the item was cocaine and he was “almost certain” it was cocaine. “Immediately apparent” requires more than such equivocating.

And, the officer’s use of the phrase “in his training and experience” does not cure these constitutional insufficiencies. Officers, such as this one, are highly trained. But more than the officer’s bare recitation that his or her “training and experience” is required. The premise that this officer could distinguish—from patting solely the outside of clothing material—that an item was a bag of powder cocaine is not supported by this record; it rests solely on the officer’s unadorned conclusion. Where courts do not require more, they fail the Supreme Court’s call to “strictly circumscribe” plain-feel discoveries during weapons pat-downs.

In sum, the officer had to manipulate and squeeze the item he patted prior to determining what the item was. The officer could only state a “belief’ he was “almost certain” the item was powder cocaine. And the officer’s bare conclusion, given the host of other legitimate possibilities, is not supported by mere reference to “training and experience.” The search here exceeded the scope of a lawful weapons pat-down—to the extent one was even permitted.

Conclusion

Mr. Griffin was seized when the officer demanded he remove his hand from his pocket. At this moment, the officer did not have reasonable suspicion to believe Mr. Griffin was armed and potentially dangerous. Simply being in a high crime area and putting a hand into a pants’ pocket cannot alter this conclusion. Without reasonable suspicion to seize Mr. Griffin, the ensuing search was unconstitutional; any evidence obtained therefrom must be excluded. Moreover, the officer exceeded the permissible scope of the ensuing search he performed; he impermissibly manipulated the item he found. Moreover, “training and experience” cannot support the bare, subjective conclusion that it is immediately apparent a squishy baggy with a knot is cocaine. Similarly, the officer’s “almost certain” “belief’ does not withstand strict constitutional analysis.

The trial court should have granted Mr. Griffin’s motion to suppress, Mr. Griffin’s judgment and sentence are therefore REVERSED.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.

      . The third type, arrest, is not applicable here. See June v. State, 131 So.3d 2, 6 (Fla. 1st DCA 2012) (explaining arrest requires probable cause a crime has been or is being committed).

      . As Judge Zehmer aptly explained, "The majority opinion seems to suggest that anyone parking in the woods near a high-crime area with their lights off at 1:00 A.M. can be presumed to be involved in criminal conduct. I do not accept that the statute or our state and federal constitutions authorize detention where the only basis for the officer's suspicion is such a generalized presumption of criminal conduct.” Freeman, 559 So.2d at 298 (Zeh-mer, J., dissenting).

      . This unconstitutional seizure taints the following search and requires exclusion of the bag of cocaine. See June v. State, 131 So.3d 2, 7 (Fla. 1st DCA 2012) (noting remedy of exclusion of evidence obtained directly or indirectly from a Fourth Amendment violation).