author: PER CURIAM. STEVENSON, J.,

text:
    Alberto CARTAGENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5098.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.

      Mary Elizabeth Fitzgibbons of Fitzgib-bons Law Firm, P.A., Kissimmee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Based upon a DNA match in 2008, the state prosecuted appellant for an armed sexual battery and armed burglary which occurred in 1996. The statute of limitations barred the burglary conviction, but appellant was convicted of armed sexual battery. Appellant claims that the trial court erred in refusing to allow him to waive his statute of limitations defense as to the lesser-included offenses for armed sexual battery. Had the trial court accepted the defendant’s waiver, the jury could have been instructed on the lesser-included offenses of sexual battery, attempted sexual battery, aggravated assault, and battery. Because the defendant asserted a statute of limitations defense and succeeded in having the burglary charges dismissed, we agree with the trial court that the defendant cannot selectively waive his statute of limitations defense as to the charges arising out of the criminal episode. We thus affirm.

On May 15, 1996, S.G. was sexually assaulted in her home by an intruder armed with a knife. It was not until 2008 that the defendant became a suspect. In April 2008, after the defendant’s DNA was determined to be a match to that found at the scene of the crime in 1996, the defendant was charged with sexual battery while armed with a knife, a life felony, and burglary while armed. The defendant obtained the dismissal of the burglary charge based upon the running of the statute of limitations. At his subsequent trial on the armed sexual battery charge, the defendant sought to waive his statute of limitations defenses as to the lesser-included offenses for the armed sexual battery so as to be entitled to have the jury instructed on these lesser offenses. The trial court refused to accept the waiver, reasoning that, having successfully asserted a statute of limitations defense to obtain the dismissal of the one charge, the defendant could not now waive his statute of limitations defense as to the lesser-included offenses of the other charge. The jury found the defendant guilty of the only offense put before it — armed sexual battery. The defendant insists that the trial court’s refusal to permit him to waive his statute of limitations defense so as to entitle him to have the jury instructed on the lesser-included offenses of armed sexual battery was error.

Jury instructions on lesser-included offenses have “long been recognized ... [as] beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal,” thus “ensuring] that the jury will accord the defendant the full benefit of the reasonable-doubt standard.” Beck v. Alabama, 447 U.S. 625, 633-34, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). A trial court must instruct on necessarily lesser-included offenses and permissive lesser-included offenses when supported by the evidence at trial. State v. Wimberly, 498 So.2d 929, 932 (Fla.1986). Where, however, lesser-included offenses are barred by the statute of limitations, the trial court does not err by refusing to instruct the jury on those lesser offenses. See Spaziano v. State, 393 So.2d 1119, 1122 (Fla.1981). Nonetheless, a defendant may affirmatively waive his statute of limitations defense to lesser-included offenses, although a mere request for time-barred lesser is insufficient to create a waiver. See Tucker v. State, 459 So.2d 306, 309 (Fla.1984). Tucker teaches that a waiver may be effective upon an on-record showing of three elements: “the waiver was knowingly, intelligently and voluntarily made; the waiver was made for the defendant’s benefit and after consultation with counsel; and the waiver does not handicap the defense or contravene any of the public policy reasons motivating the enactment of the statute.” Id. These requirements arose from a concern that a defendant could request instruction on a lesser-included offense upon which the jury would convict and then in collateral proceedings the defendant could raise the statute of limitations to challenge the convictions.

The issue presented in this case is whether a defendant who successfully asserts the statute of limitations to bar some offenses occurring out of a criminal episode can then waive the statute of limitations in order to have the jury instructed on other lesser-included offenses of the charges. In this case, the defendant successfully raised the statute of limitations to bar the prosecution of the armed burglary charge and then sought to waive the statute of limitations as to the lesser offenses of sexual battery. At trial, the defense attorney informed the judge that his client would seek to waive the statute of limitations defense as to the lesser-included offenses for armed sexual battery. He did not withdraw his assertion of the statute of limitations defense as to the armed burglary charge.

This issue was directly addressed in Rembert v. State, 476 So.2d 721 (Fla. 1st DCA 1985). There, a defendant was charged with first-degree murder and attempted robbery with a firearm. He successfully obtained dismissal of the robbery charge based upon the running of the statute of limitations. In his murder trial, however, he sought to have the jury instructed on time-barred lesser-included offenses. At trial, defense counsel presented the court with a written waiver signed by counsel and requested the instruction on lesser-included offenses during the charge conference, which the trial court denied. The defendant was convicted of first-degree murder.

The First District noted that the defendant had a right to waive the statute of limitations defense, but also cited Tucker for the correct method of waiving the defense, which the defense had not followed:

The record before us is as devoid of any of the assurances that Rembert participated in the proposed trial maneuver as was the record in Tucker. Rembert’s attorney did produce a written waiver which recited some Tucker requirements^] However, it still left open, under Tucker, the possibility that, had Rembert been found guilty of a lesser-included offense of first degree murder, he could not have been properly convicted and sentenced for such a crime.

476 So.2d at 722 (footnote omitted).

On the issue of policy, the First District rejected the waiver of the statute of limitations where the defendant had asserted it to bar the accompanying robbery charges. The court found that it would not serve public policy to allow such a maneuver by the defendant.

We are impressed with another of Tucker’s requirements for an effective waiver, which is that the record must show that “the waiver does not handicap the defense or contravene any of the public policy reasons motivating the enactment of the statute.” The public policy reasons motivating the enactment of the statute must be those which protect a defendant from prosecution on a charge where the means of defense are hampered by the elapse of time. See State v. King [, 275 So.2d 274 (Fla. 3d DCA 1973) ]. In the present case, Rem-bert has secured for himself this protection by his successful motion to dismiss the robbery count. He now seeks, on another charge which is a part of the same criminal transaction, to secure a contradictory advantage, i.e., that the elapse of time should be disregarded for offenses included in the same criminal episode. To permit such “on again, off again” pleading and waiver of the statute of limitations would, in our opinion, contravene the public policy reasons motivating the statute.

Id. at 722.

The supreme court addressed the issue in a capital case. See Eaddy v. State, 638 So.2d 22 (Fla.1994). Just as in Rembert, the defendant was charged with first-degree murder and armed robbery. The robbery charge was dismissed on statute of limitations grounds. At the murder trial, the defense sought to have the jury instructed on the lesser-included offenses, advising the court that the defendant was willing to waive his statute of limitations defense as to these lesser offenses and was willing to abide by any conviction for such offense. The trial court refused to accept the waiver and to instruct the jury on the lesser offenses. The supreme court held that, because this was a capital case, due process concerns required that the trial court accept the waiver and instruct the jury on the lesser-included offenses. 638 So.2d at 24-25 (citing Beck and Rembert v. Dugger). The court noted that the trial court’s refusal to accept the waiver and instruct the jury on the lesser-included offenses put the jury in the position of having to either convict the defendant of murder or acquit him all together, enhancing the defendant’s risk of an unwarranted conviction. Id. at 25.

Eaddy is distinguishable because it involved the imposition of the death penalty. Constitutionally, the defendant was entitled to instructions on lesser-included offenses, and the trial court could not refuse to accept a waiver of such defenses. The defendant could not be faced with “a ‘Hob-son’s choice’ [which] enhanced the risk of an unwarranted conviction for first-degree murder,” and thus imposition of the death penalty, which was the very concern of the United States Supreme Court in Beck.

We agree with Rembert that, where the defendant has asserted the statute of limitations to prevent prosecution of some charged crimes arising out of the same criminal episode to avoid prosecution for those crimes, he cannot then assert the statute of limitations to secure the possibility of reducing his punishment as to crimes for which he still is being prosecuted. The purpose of the statute of limitations was explained in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970):

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.

Where the defendant may still be prosecuted for acts arising out of the same episode which are not barred by a statute of limitations, the statute does not provide protection to the defendant in his defense. Instead, it operates simply to reduce his exposure to punishment for all relevant crimes. Because it is not a constitutional violation, we conclude that the trial court did not err in refusing the appellant’s waiver.

Finally, even if the appellant were allowed to waive the statute of limitations to permit the jury to consider lesser-included offenses, we would hold, as the court did in Rembert, that he did not fulfill his burden to comply with Tucker. As such, the record does not support his position that he was entitled to the lesser-included offense instructions.

We have considered the remaining issues that he has raised on appeal and affirm without further discussion.

We thus affirm the conviction and sentence.

WARNER, J., and STONE, BARRY J., Senior Judge, concur.

STEVENSON, J., dissents with opinion.

STEVENSON, J.,

dissenting.

I believe that the defendant was entitled to have the jury instructed on the lesser-included offenses of the charged armed sexual battery and would reverse and remand for a new trial.

In Florida, the law has long recognized that criminal defendants have a right to waive a statute of limitations defense. See, e.g., Tucker v. State, 459 So.2d 306, 309 (Fla.1984) (holding statute of limitations defense may be waived by defendant and approving rationale of underlying Third District opinion, which extended right to all defendants); Spaziano v. State, 393 So.2d 1119, 1122 (Fla.1981) (rejecting defendant’s argument that he could not be forced to choose between waiving statute of limitations defense as to lesser-included offenses and having jury instructed on lesser-included offenses); State v. Robbins, 780 So.2d 89, 91 (Fla. 2d DCA 2000) (citing Tucker and holding that, by entering no contest plea, defendant waived statute of limitations defense); Lowe v. State, 501 So.2d 79, 80 (Fla. 5th DCA 1987) (recognizing statute of limitations defense may be waived by defendant). The majority recognizes this, but follows Rembert v. State, 476 So.2d 721 (Fla. 1st DCA 1985), in concluding that it is somehow contrary to the public policy reasons motivating enactment of the statute — the protection of those accused of a crime from delayed and untimely prosecution — to permit a defendant to assert a statute of limitations defense as to one charge, but then waive it as to a separate charge that arose from the same criminal episode. Respectfully, I disagree.

Both the United States Supreme Court and the Supreme Court of Florida have concluded that the failure to instruct the jury on a lesser-included offense, thus forcing the jury to choose between conviction for the greater crime and an outright acquittal, creates an enhanced risk of conviction for the criminal defendant:

At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure § 515, n. 54 (1969). But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. As Mr. Justice BRENNAN explained in his opinion for the Court in Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, providing the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard:
“Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction-in this context or any other-precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”

Beck v. Alabama, 447 U.S. 625, 633-34, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)) (emphasis added) (footnote omitted); see also Eaddy v. State, 638 So.2d 22, 25 (Fla.1994) (recognizing that this “Hob-son’s choice” creates enhanced risk of conviction for defendant and holding that, in a death penalty case, defendant was entitled to have jury instructed on lesser-included offenses of first-degree murder charge, despite his having asserted a statute of limitations defense to obtain dismissal of armed robbery charge).

The fact that the instant case is not a capital case, like Beck or Eaddy, does nothing to diminish the enhanced risk of conviction created by the failure to instruct on lesser-included offenses. The same principle which would allow the defendant to waive the statute of limitations defense as to some charges but not to others in a capital case should apply equally to the charges in this case, which is a life felony. Neither the majority nor the court in Rembert articulate a persuasive reason why “public policy” is contravened by allowing the defendant to assert a statute of limitations defense as to one charge but then waive it as to another which arose from the same criminal episode.

Moreover, while the State suggests it is somehow contrary to public policy to permit the defendant to assert the defense as to one offense and waive it as to another, in this case, the State bears some responsibility for this incongruity. The crimes at issue took place in May of 1996. The State did not file an information charging the defendant with the crimes until April of 2008 — nearly thirteen years after the commission of the crimes. Armed burglary is a first-degree felony governed by a four-year statute of limitations. See § 775.15(2)(a), Fla. Stat. Yet, despite the fact that the statute of limitations had long since run, the State made the decision to charge the defendant with the armed burglary. And, when the defendant moved to dismiss the armed burglary charge on statute of limitations grounds, the State agreed the charge was properly dismissed. Thus, any inconsistency in the defendant’s assertion of his statute of limitation defenses was created by the State’s decision to charge an offense well-beyond the running of the statute of limitations.

The majority writes that it would also affirm defendant’s conviction for the life felony because the personal, on-the-record inquiry mandated by our supreme court in Tucker v. State, 459 So.2d 306, 309 (Fla.1984), did not take place. I disagree with that conclusion as well. During trial, the court and counsel spent much time discussing the statute of limitations issue and the requirements of Tucker. The absence of the personal, on-the-record waiver is the product of the trial court’s ruling that, regardless of the defendant’s willingness to waive his statute of limitations defenses, as a matter of law, he would not be allowed to do so. In renewing his objection to the trial court’s ruling on the issue, defense counsel represented that he was offering the defendant’s waiver of the statute of limitations defense as to each of the lesser-included offenses for armed sexual battery. Under these circumstances, there was no need for defense counsel to insist upon an on-the-record inquiry that the court had already ruled would be pointless. Cf. State v. Heathcoat, 442 So.2d 955, 957 (Fla.1983) (holding defendant did not waive objection to court’s ruling refusing to give intoxication jury instruction by failing to renew objection where judge had made it clear he would not give the instruction and further objection would have been pointless).

While not a “constitutional” right, the right to waive the statute of limitations defense on lesser-included offenses is one well-recognized in Florida law and it was error, and an abuse of discretion, for the trial court to refuse the waiver in the instant case. I would reverse and remand for a new trial.

      . In postconviction proceedings, the Eleventh Circuit held, however, that the trial court erred in failing to accept the waiver, because at the time the waiver was sought the state was seeking the death penalty. See Rembert v. Dugger, 842 F.2d 301 (11th Ctr.1988). Because a defendant in a capital case has a constitutional right to an instruction on lesser-included offenses, the court should have given them when the defendant waived his right to assert the statute of limitations. Nevertheless, the constitutional violation was harmless, because the death penalty was not imposed. Id. at 303. From Rembert v. Dugger, we glean that there is no constitutional right to have the jury instructed on lesser-included offenses where the death penalty is not sought.

      . "The Court: Okay. And as to each of them [the four requested lesser-included instructions for armed sexual battery], you would make the same argument. And offer your client's waiver of statute of limitations as to each of these four?
      Defense counsel: That’s correct.” Trial Tr. vol. 7, 978, Nov. 3, 2009 (emphasis added).


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Toccara McCLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-270.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Convicted of felony retail theft in violation of section 812.015(8)(a), Florida Statutes, Toccara McClover appeals, arguing that the trial court erred in refusing to give her requested jury instruction on abandonment. We agree that the court erred in failing to give the instruction. We therefore reverse.

An asset protection associate at a Wal-Mart store in Port St. Lucie, testified that on surveillance cameras he watched two females come into the store in the early morning hours and select expensive electronic items which they placed in their shopping cart. They then headed to the garden center. No cash register was open in the center at that time of night. One woman waited near an emergency exit in the garden center with the cart of merchandise, while appellant McClover left the store through the front entrance. McClo-ver was not seen taking anything from the store. Upon leaving the store McClover was seen making a phone call. At the same time, the other woman, who was still in the store next to the cart, was seen talking on her phone. Right away she walked away from the merchandise and left the store without taking anything, leaving the items near the back exit of the store.

Suspicious of the women, the asset protection associate had called the police who were in the parking lot by the time McClo-ver left the store. The associate followed the females out of the store and saw them get into a car. He went to the police vehicle and pointed out the car with the women in it. The police stopped them in the next plaza and found merchandise from another Wal-Mart in the trunk. An asset protection specialist from that Wal-Mart reviewed his store’s surveillance tapes and found video of the same two women in his store. He also came to the place where the police stopped the women and identified his store’s merchandise in their vehicle.

During the charge conference at trial, McClover’s counsel requested an instruction on abandonment. Specifically, she requested that the court instruct the jury that “[i]t is not an attempt to ... commit the crime charged if the defendant abandoned her attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of her criminal purpose.” The state objected, and the court denied the requested instruction, reasoning that in order to warrant the instruction, the defendant had to admit an attempt to take the goods, which itself was a crime because the theft statute covered an endeavor to take goods of another. Therefore, the court found that the instruction was unwarranted.

Capitalizing on the absence of an abandonment instruction,. the prosecutor argued to the jury in closing, “If you have the intent to steal something and you possess that item it is stolen.” The jury found McClover guilty as charged of retail theft. She was sentenced to forty-eight months imprisonment in the DOC with credit for time served. She appeals her conviction.

The court reviews a trial court’s decision to give or refuse a proposed jury instruction under the abuse of discretion standard of review. Quick v. State, 46 So.3d 1159, 1160 (Fla. 4th DCA 2010); McKenzie v. State, 830 So.2d 234, 236 (Fla. 4th DCA 2002). “However, the trial judge’s discretion is fairly narrow because a criminal defendant is entitled, by law, to have the jury instructed on his theory of defense if there is any evidence to support his theory and the theory is recognized as valid under Florida law.” Palmore v. State, 838 So.2d 1222, 1223 (Fla. 1st DCA 2003) (citing Mora v. State, 814 So.2d 322, 330 (Fla.2002)).

Longval v. State, 914 So.2d 1098 (Fla. 4th DCA 2005), undercuts the trial court’s analysis that an instruction on abandonment was inapplicable to crimes involving an attempt. In Longval, also involving a theft from a Wal-Mart, the defendant sought an instruction on voluntary abandonment. We noted that section 777.04(5)(a), Florida Statutes (2004), establishes a statutory abandonment defense, providing:

“It is a defense to a charge of criminal attempt, ... that, under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose, the defendant:
(a) [abandoned his or her attempt to commit the offense or otherwise prevented its commission.”

Longval, 914 So.2d at 1100. We explained that the crime of grand theft includes an attempt within its substantive provisions, as a theft occurs when one “endeavors” to obtain the property of another. Id. at 1101 (citing State v. Sykes, 434 So.2d 325, 327 (Fla.1983)). “‘The substantive, completed crime is fully proven when an attempt, along with the requisite intent, is established.’” Id. (quoting Sykes, 434 So.2d at 327). “Tf a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.’ ” Id. (quoting King v. State, 339 So.2d 172, 172 (Fla.1976)). We held in Longval that “[s]ince the legislature has expanded the defense of abandonment to apply to ‘criminal attempts,’ we believe the defense applies where the legislature defines a substantive crime to include an attempt.” 914 So.2d at 1101. Therefore, the court erred in refusing to give the voluntary abandonment instruction where the defendant did not leave the store with any property.

Similarly, in this case, the defendant was entitled to the abandonment instruction where both she and her companion left the store without taking any merchandise. This is particularly true where the defendant was charged, not with grand theft, but with retail theft. Section 812.015(l)(d) defines retail theft as:

taking possession of or carrying away of merchandise, property, money, or negotiable documents; altering or removing a label, universal product code, or price tag; transferring merchandise from one container to another; or removing a shopping cart, with intent to deprive the merchant of possession, use, benefit, or full retail value.

The defendant put goods in a shopping cart, like any other shopper. She did not leave the store with any unpaid merchandise, nor did her companion. She did not conceal the merchandise, place it in another container, or alter product codes or price tags. By merely placing the merchandise in a store cart, a jury could find that there was no “taking possession” to the exclusion or deprivation of Wal-Mart, nor was there a “carrying away” of merchandise when none of it left the store, even though she may have attempted to commit retail theft by having an intent to do so and placing the items in the cart. A jury could also find that she abandoned her attempt when she and her companion left the goods in the store. Because the substantive statute therefore includes conduct which amounts to an attempt, she was entitled to the instruction on abandonment. See Longval, 914 So.2d at 1101-02.

For the foregoing reason, we reverse the conviction and sentence and remand to the trial court for a new trial.

GROSS and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    Willie James THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4265.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Willie Thomas appeals his final judgment and sentence adjudicating him guilty of armed burglary of a dwelling, aggravated battery with a deadly weapon, and possession of cocaine. Thomas argues that we should reverse his conviction and sentence because the trial court abandoned its neutral role during the trial, including giving him incorrect legal advice, and incorrectly applied the excited utterance exception to the hearsay rule. We affirm on all grounds and write only to address the application of excited utterance exception to one of the trial court’s evidentiary rulings.

The testimony at issue is an eyewitness’s description of an altercation between Thomas and the victim, during which the victim yelled out “he has a knife, he has a knife.” The trial court allowed the eyewitness to testify regarding what she heard the victim say. Thomas asserts that the trial court erroneously admitted this testimony as an excited utterance.

An appellate court reviews evidentiary rulings for abuse of discretion, though the rules of evidence limit this discretion. Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011). A trial court’s determination regarding whether testimony is hearsay is reviewed de novo. Id.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2008). Hearsay is inadmissible unless it falls within an exception. §§ 90.802-.803, Fla. Stat. (2008). An excited utterance, or “[a] statement ... relating to a startling event or condition made while the declarant [is] under the stress of excitement caused by the event or condition,” is a hearsay exception. § 90.803(2), Fla. Stat. (2008). Courts have interpreted the statute as requiring three elements for an excited utterance to be admissible: “(1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.” Mariano v. State, 933 So.2d 111, 115 (Fla. 4th DCA 2006) (quoting Stoll v. State, 762 So.2d 870, 873 (Fla.2000)).

The party seeking to qualify a statement as an excited utterance must lay a proper foundation for its admission. Mariano, 933 So.2d at 115. Here, the witness testified that she heard a loud noise coming from the patio late at night. She rushed outside to find a stranger fighting with the victim and she joined the struggle. During the altercation, the victim exclaimed, “He has a knife, he has a knife.” This testimony establishes that all three requirements were met, since a home invasion constitutes a startling event, the statement was made at the time the struggle was in progress, and the person who made the statement was being attacked by a stranger holding a knife. On the testimony presented by the eyewitness, the trial court correctly ruled that the excited utterance exception applied to the eyewitness’s statement.

Affirmed.

STEVENSON and CONNER, JJ„ concur.


author: STONE, BARRY J., Senior Judge.

text:
    Harry SARGEANT, III, Mustafa Abu-Naba’a, and International Oil Trading Company, LLC, Appellants, v. Mohammad Anwar Farid AL-SALEH, Appellee.
    Nos. 4D11-3851, 4D12-760.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.

      Roger S. Robert and Marc C. Pugliese of Rafferty, Robert, Tenenholtz, Bounds & Hess, P.A., Miami, Christopher M. Rise of Foley & Lardner LLP, Tallahassee, and Raoul G. Cantero, David P. Draigh, and Laura M. Reich of White & Case LLP, Miami, for appellants.
    Allison Davis and Louis M. Silber of Silber & Davis, West Palm Beach, Michael D. Ribler of Simpson, Thacher & Bartlett LLP, Los Angeles, California, and Barry R. Ostrager of Simpson Thacher & Bartlett LLP, New York, New York, for appel-lee.
   STONE, BARRY J., Senior Judge.

Defendants appeal a judgment entered following a jury verdict in the sum of $28.8 million dollars on a multi-count complaint. Plaintiff cross-appeals for pre-judgment interest.

The case was submitted to the jury on three counts sounding in fraud and on three counts based upon the law of the country of Jordan. It is undisputed that Jordanian law applies to those claims.

Six weeks before the start of the trial calendar, Defendants moved to amend their defenses. The motion was denied but without prejudice to Defendants introducing evidence at trial on the defenses requested in the motion. Of significance is that the motion did not seek leave to include an affirmative defense of a failure of condition precedent. This affirmative defense is relevant only to the Jordanian law claims. Under Jordanian law, pre-suit notice to a Jordanian ministry was allegedly required before suit could be brought.

The only issue on appeal directly relating to Defendants’ liability under the three Jordanian law claims is Defendants’ assertion that it was an abuse of discretion to exclude expert testimony concerning whether there is a condition precedent, under Jordanian law, that notice had to be given to a certain Jordanian ministry, prior to Plaintiffs instituting suit. We conclude that, under the totality of the circumstances, it was not an abuse of discretion to sustain Plaintiffs objection to the defense offer of expert testimony on the law of Jordan as to the claimed condition precedent. Such affirmative defenses must be specifically pled. See Fla. R. Civ. P. 1.120(c). The condition precedent claim was not raised in Defendants’ motion for leave to amend the Answer and was addressed to the Court for the first time mid-trial. Further, all jury instructions on Jordanian law had been extensively negotiated and were presented to the Court by stipulation, thereby removing any battle of experts on Jordanian law, and Plaintiff had relied on that stipulation in withdrawing his Jordanian law expert. The Defendants also failed to comply with the disclosure requirements of the pre-trial order.

The verdict form asked the jury to answer yes or no to six questions: (1) whether Defendants committed fraud; (2) whether "Defendants conspired to commit fraud; (3) whether Defendants Abu-Naba’a and IOTC USA aided and abetted fraud; (4) whether Defendants breached a fiduciary obligation; (5) whether Defendants tortiously injured Plaintiff; and (6) whether Defendants breached Jordan’s unfair competition law. The jury answered “yes” to each question.

Defendants also argue that a new trial on damages should be granted because the jury’s damage award does not distinguish between the fraud claims and the Jordanian law claims. As to damages, the verdict form asked only one question: “What is the total amount of money damages sustained by [Plaintiff] that was caused by Defendant(s)?” The jury gave a single sum of $28.8 million.

All of Plaintiffs counts arose out of the parties’ agreements, acts, and communications relating to two U.S. government procurement contracts, identified as contracts # 0483 and # 0497. The sole damage claim by Plaintiff, under each of the counts, regardless of theory of liability, was $28,800,000.00, which represents Plaintiffs total share of unpaid profits in the parties’ joint enterprise. No other damage figure was sought, or argued to the jury, as to any of the counts.

We need not address the issues on appeal arising out of Defendants’ fraud counts. As the parties stipulated to the verdict form and the verdict was for the precise amount sought regardless of count, the $28,800,000.00 would, in any event, be due to Plaintiff under the affirmed Jordanian law claims.

On the cross-appeal, we find error in the denial of pre-judgment interest. The record reflects the end dates of each of the two contracts. Therefore, even without a verdict form breakdown, it is clear that the total sum for lost profits is, at a minimum, fixed as of the end of the last contract, on August 31, 2009.

Therefore the final judgment is affirmed as to the issues on direct appeal and reversed as to the cross-appeal. We remand for the award of pre-judgment interest from August 31, 2009.

WARNER and GROSS, JJ„ concur.


author: PER CURIAM.

text:
    Noel SCHULTHEIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2285.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.

      Noel Schultheis, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

This appeal concerns the summary denial of appellant’s second pro se motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

The state charged appellant in two separate cases in the circuit court. Appellant entered into a plea agreement resulting in the dismissal of one case in its entirety and the dismissal of the most serious charge in the other. Pursuant to the agreement, appellant pled guilty to two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. The trial court sentenced appellant to ten years in prison followed by twenty years on sex offender probation on one count, and concurrent terms of twenty and fifteen years on sex offender probation on the remaining counts.

One of the conditions of probation, which tracked the language of sub-section 948.30(l)(h), Florida Statutes (2005), prohibited the appellant from accessing the internet “or other computer services” until a “risk assessment [wa]s completed.” The statutory language and sex offender probation condition indicate that the prohibition applies to crimes committed “on or after July 1, 2005.” Appellant’s plea involved offenses alleged to have occurred between July 20, 2004 to July 20, 2005 or August 15, 2004 to August 15, 2005.

Appellant did not file a direct appeal of his sentence after the entry of his plea. His first pro se motion for post-conviction relief was filed on December 9, 2008, and was summarily denied. See Schultheis v. State, 75 So.3d 291 (Fla. 4th DCA 2011).

This case involves appellant’s motion for post-conviction relief filed on February 9, 2012, alleging “newly discovered evidence” in the form of the trial court’s written orders of probation, issued on January 2, 2007, which included the language restricting appellant’s internet access. Appellant claims that he only discovered this probationary condition after reviewing the state’s response to his motion for post-conviction relief. According to appellant, the police statements given by the complaining witnesses accused appellant of criminal acts that took place prior to July 1, 2005, rendering section 948.30(l)(h) inapplicable to his case. Appellant claims his defense counsel specifically advised that this provision would not apply to him if he entered into the plea agreement. Thus, appellant claims he is entitled to withdraw his plea and take his cases to trial based on this “mutual mistake” between the parties.

Appellant’s second motion for post-conviction relief is facially untimely, as it was not filed within two years of January 6, 2007, the date his convictions and sentences became final. See Parks v. State, 101 So.3d 1265, 1265 (Fla. 4th DCA 2012).

Appellant attempts to avoid this result by reference to Fla. R.Crim. P. 3.850(b)(1), which allows a motion to be filed under that rule beyond the two-year limitation when the motion is based on newly discovered evidence that (1) was unknown to the parties and/or their attorneys at the time of trial and could not have been ascertained by the exercise of due diligence and (2) probably would result in an acquittal on retrial. State v. Corner, 84 So.3d 358, 361 (Fla. 4th DCA 2012) (quoting Jones v. State, 709 So.2d 512, 521 (Fla.1998)).

This case does not involve “newly discovered evidence.” The probationary condition of which appellant complains was referenced in general at the plea colloquy, in the written plea agreement, and in the written orders of probation issued by the trial court on January 2, 2007. This information was unquestionably available to both appellant and his attorney prior to the two-year deadline found in rule 3.850(b). Therefore, appellant’s claim fails the first prong of the “newly discovered evidence” test because the evidence could have been discovered by the exercise of due diligence. See Wainwright v. State, 983 So.2d 635, 637 (Fla. 4th DCA 2008) (fact in existence at time of plea was not “newly discovered” for purposes of exception to two-year time limit found in rule 3.850(b)); Foss v. State, 24 So.3d 1275, 1276 (Fla. 5th DCA 2009) (scoresheet error at time of resentencing not newly discovered fact excusing otherwise untimely motion for post-conviction relief under rule 3.850(b)); see also Dwyer v. State, 981 So.2d 606, 609 (Fla. 4th DCA 2008) (conditional release under § 947.1405 neither fact nor “newly discovered,” but instead an “application of long-standing statutory law”). Consequently, appellant’s second motion for post-conviction relief was properly denied as untimely.

Affirmed.

GROSS, LEVINE and CONNER, JJ., concur.


text:
    Leon KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3630.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Leon King, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. With respect to ground two, see State v. McCloud, 577 So.2d 939 (Fla.1991) (holding it is not a double jeopardy violation for a defendant to be convicted of both sale and possession of the same quan-turn of cocaine, after the effective date of section 775.021, Florida Statutes (Supp. 1988), as each offense contains an element the other does not).

GROSS, CIKLIN and GERBER, JJ., concur.


text:
    Earnest NETTLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-773.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Earnest Nettles appeals the summary denial of a rule 3.850 motion. We reverse the denial of claim 4.

Nettles was convicted of trafficking in oxycodone and conspiracy to traffic in oxy-codone and sentenced to ten years in prison on each count. In claim 4 of his rule 3.850 motion, he alleged his attorney provided ineffective assistance in failing to confirm the prior convictions on the Criminal Punishment Code scoresheet and failing to offer or have the state counteroffer a plea. Nettles denied that he was ever convicted of some offenses listed on his scoresheet, including credit card fraud, grand theft auto, burglary, and robbery. He alleged there were 9.2 more points on his scoresheet than there should have been. Removing these points would reduce the lowest permissible sentence from 65.4 months to 58.5 months.

The state argued below and on appeal that the claim is speculative and facially insufficient because he did not show deficient performance or prejudice.

We affirm the denial of this claim as to counsel’s failure to offer or have the state counteroffer a plea. However, Nettles’ claim of a scoresheet error is facially sufficient and is not refuted by the record.

The record does not conclusively show that Nettles in fact has these prior convictions or that the trial court would have imposed the same sentence with a corrected scoresheet. State v. Anderson, 905 So.2d 111 (Fla.2005); Pembrook v. State, 2 So.3d 371 (Fla. 4th DCA 2008). An evi-dentiary hearing may be needed to determine Nettles’ prior convictions. Rodriguez v. State, 1 So.3d 1255 (Fla. 4th DCA 2009). Accordingly, we reverse and remand for further proceedings on this claim. The summary denial of the remaining claims is affirmed.

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Macario Alfaro SILVERIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-111.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 106 So.3d 507 (Fla. 4th DCA 2013); Campbell v. State, 90 So.3d 297 (Fla. 4th DCA 2012); Thompson v. State, 86 So.3d 1137 (Fla. 4th DCA 2012).

TAYLOR, CIKLIN, JJ., and ROBINSON, MICHAEL A., Associate Judge, concur.


author: ALTENBERND, Judge.

text:
    Tawayna BRAXTON, Appellant, v. Evelyn GRABOWSKI, Appellee.
    No. 2D12-2707.
    District Court of Appeal of Florida, Second District.
    May 24, 2013.
    James R. Wilson of Morgan and Morgan, Tampa, for the Appellant.
    Anthony J. Russo of Butler, Pappas, Weihmuller, Katz, Craig, Tampa, for Ap-pellee.
   ORDER ON APPELLEE’S MOTION FOR REHEARING OF ORDER DENYING ATTORNEY’S FEES

ALTENBERND, Judge.

Tawayna Braxton appealed a judgment in an automobile negligence case in which the jury determined that there was no negligence on the part of Evelyn Grabow-ski that resulted in damage to Ms. Brax-ton. Our online docket reflects that, after the filing of the notice of appeal in May 2012, very little activity occurred in this case. Appellate counsel filed an appearance for Ms. Grabowski and subsequently informed us of his e-mail address. Ms. Braxton received two extensions of time to file a brief. The circuit court clerk sent this court a one-volume record that did not include a trial transcript. In November, this court entered an order warning that the case was about to be dismissed for failure to prosecute. When no brief was received from Ms. Braxton, we dismissed the appeal on December 18, 2012. A few days later, she filed a notice of voluntary dismissal that likely crossed in the mail with this court’s order.

In most cases, these events would signal the end of the appeal. However, in this case, our warning that the appeal was about to be dismissed prompted Ms. Gra-bowski’s appellate counsel to file a motion for attorney’s fees, claiming that he was entitled to fees under section 768.79, Florida Statutes (2010), in light of a proposal for settlement that had been served in the circuit court.

We denied the motion for fees. We assumed that, on remand, the attorney’s fees that would be incurred by Ms. Gra-bowski to establish her right to some small judgment for fees resulting from filing in this court (1) a notice of appearance, (2) a notice of e-mail address, and (3) a motion for attorney’s fees would exceed the amount of the judgment for fees she received. Apparently we were mistaken. Ms. Grabowski’s appellate counsel has moved for rehearing of the order denying fees.

In her motion for rehearing, Ms. Gra-bowski argues that, as long as a movant meets the requirements of section 768.79, entitlement to fees is mandatory. See § 768.79(1) (“In any civil action for damages filed in the courts of this state, if a defendant flies an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees .... ” (emphasis added)). Additionally, we recently held in Braaksma v. Pratt, 103 So.3d 913 (Fla. 2d DCA 2012), that “[o]nce the court determines that a party has complied with the technical terms of section 768.79 and [Florida Rule of Appellate Procedure] 1.442, the court may disallow fees only upon a finding that the offer was not made in good faith” and that “[c]ompliance with the technical terms of the offer of judgment statute and rule creates a mandatory right to attorney’s fees.” Id. at 915 (citations and internal quotation marks omitted); see also Westfield Ins. Co. v. Mendolera, 647 So.2d 223, 224 (Fla. 2d DCA 1994) (holding that section 768.79 fees apply at the appellate level).

On the basis of this authority, we are constrained to grant Ms. Grabowski’s motion for rehearing and her original fee motion. But for this precedent, we would likely follow the lead of the Third District and deny the motion for rehearing because the fees should be de minimis. Sanchez v. State Farm Fla. Ins. Co., 997 So.2d 1209 (Fla. 3d DCA 2008). But see First Real Estate, LLC v. Grant, 88 So.3d 1073 (Fla. 1st DCA 2012) (adopting the dissenting view of Judge Shepherd in Sanchez). Admittedly, we do not know what time may reasonably have been spent on this matter outside our record, but without a transcript or a brief from the appellant, we doubt that much time could have been productively spent on this case by Ms. Grabowski’s attorneys.

Accordingly, Ms. Grabowski’s motion for rehearing is granted. The second paragraph of this court’s order of December 18, 2012, is vacated. Ms. Grabowski’s motion for appellate attorney’s fees is granted as to fees under section 768.79 and rule 1.442 only. The circuit court shall make a determination of entitlement under the proposal for settlement. If entitlement is found, the circuit court shall also determine the amount of appellate attorney’s fees. We certify conflict with Sanchez.

Motions granted; case remanded.

MORRIS and BLACK, JJ., Concur.

      . Ms. Grabowski includes no argument based on section 59.46, Florida Statutes (2010).


author: MAY, C.J.

text:
    Alex BERKOVICH, Appellant, v. CASA PARADISO NORTH, INC., Appellee.
    No. 4D12-2096.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Jon Polenberg, Jude C. Cooper and Mark D. Nichols of Polenberg Cooper, P.A., Ft. Lauderdale, for appellant.
    Steven A. Mason of the Law Offices of Steven A. Mason, P.A., Hollywood, for ap-pellee.
   MAY, C.J.

It was a matter of counting numbers. What constituted a quorum and whether a quorum existed when a cooperative’s (Coop) Bylaws were amended form the focal point of this appeal. A unit owner appeals a final summary judgment in favor of the Co-op. He argues the Co-op’s board of directors violated the Bylaws because a quorum was not present when certain amendments were passed. We agree and reverse.

In January 2005, while the unit owner was in the process of buying a unit in the Co-op, the board president informed him that the board was considering changes to the Bylaws regarding the length of tenancies. On several occasions, the unit owner asked the board and the president to keep him apprised of whether any amendments were going to be passed.

The board sent out ballots for four proposed Bylaws changes; the votes were to be counted at the May 5, 2005 meeting. One of the four amendments included a provision to restrict the leasing of units to only six months per year.

The Bylaws provided for amendments to be made “at any duly called meeting of the members, provided ... three-fourths of the entire membership vote for the amendment at a called meeting, or give their consent thereto in writing.” “Fifty (50%) per cent [sic] of the total number of members of the corporation, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the members for the transaction of business.... ” The Co-op’s Certificate of Incorporation stated the Bylaws “shall only be altered, rescinded or amended with the approval of three-fourths of the entire membership obtained by written consent, or at a meeting called for such purpose.”

Thirty members needed to be present or represented by proxy to establish a quorum. At the May 5, 2005 meeting, fourteen unit owner representatives and six limited proxies attended. The Co-op’s unit owners submitted 51 absentee ballots. The board counted 53 votes (including the absentee ballots and in-person votes) in favor of amending the Bylaws, including the six-month lease limitation. The amendments passed.

The unit owner took title in September 2005 and sometime later learned about the amendments. In March 2009, the Co-op sued to enjoin the unit owner from renting his unit to a tenant who had resided there for more than six months. The unit owner filed a Third Amended Counterclaim against the Co-op alleging, among other things, breach of fiduciary duty by enacting a lease restriction despite knowing it lacked the requisite quorum. The unit owner also sought declaratory relief with respect to the improperly passed amendment.

The unit owner moved for summary judgment on the declaratory judgment counterclaim. He argued the Co-op failed to legally amend its Bylaws because it did not follow either one of two procedures allowed: (1) adopting the amendments at a duly-called meeting; or (2) adopting the amendments by written consent of the Coop members. The trial court heard the motion and denied it. The trial court found the Bylaws were ambiguous, but that “this meeting was [called] unequivocally for a vote and the vote was accomplished by having people there in person, by proxy and by ballot.”

Subsequently, the Co-op moved for summary judgment on its injunctive relief claim and on the unit owner’s declaratory relief counterclaim. The unit owner filed a response and a cross-motion for summary judgment. At the hearing, the trial court ruled in favor of the Co-op on the unit owner’s counterclaim for declaratory relief, but denied the Co-op’s motion on its claim for injunctive relief.

From this adverse summary judgment, the unit owner now appeals. He argues that the amendments were invalid because a quorum was not established at the meeting to vote on the amendments. The Coop responds that the absentee ballots could be counted towards a quorum, and therefore a quorum existed.

We have de novo review. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006).

Three Bylaws provisions are relevant to the issue. They provide that a quorum of at least 50% of the total members of the corporation must be present “in person or represented by proxy” to conduct business at a meeting other than the annual meeting. “When a quorum is present at any meeting, the vote of a majority of the members present in person, or represented by proxy, shall decide any question brought before such meeting....” And, “[a]t any meeting of the members, every member having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such member for such meeting.”

In this instance, only fourteen unit representatives were present along with six proxies for a total of twenty. Thii'ty members or proxies were required for a quorum. Without a quorum, the board was unauthorized to transact business. The trial court found these various provisions created an ambiguity and ruled for the Co-op. We disagree.

First, where language is ambiguous, the ambiguity should be “charged to the author/drafter of the language, not the party who relied upon it.” Enegren v. Marathon Country Club Condo. W. Ass’n, 525 So.2d 488, 490 (Fla. 3d DCA 1988). The Co-op authored the documents; therefore, any ambiguity must be construed against it and in favor of the unit owner.

Second, “[i]n construing ... a declaration of condominium, words of common usage should be ... [given] their plain and ordinary sense.” Scudder v. Greenbrier C. Condo. Ass’n, 663 So.2d 1362, 1367 (Fla. 4th DCA 1995). And, third, “courts [are] to read provisions of a contract harmoniously in order to give effect to all portions thereof.” City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000).

We do not find the relevant provisions ambiguous. Here, the Bylaws required a quorum. The common usage of the term “quorum” requires the presence of individuals. Black’s Law Dictionary 1284 (8th ed. 2004). However, the Bylaws provided for both persons and proxies to be counted in determining the existence of a quorum. The Bylaws did not, however, provide for written votes to be construed either as proxies or for determining the existence of a quorum. If the Co-op’s suggested method of determining a quorum or counting votes was correct, no unit owner would bother finding a proxy if an absentee ballot would do.

Our reading of the Bylaws is supported by Florida Administrative Code Rule 61B-23.002(8), titled “Operation of the Association,” which states, “[f]or the purposes of establishing a quorum at any association meeting only the voting interests present in person or by proxy shall be counted. The written joinder or absentee ballot of a unit owner may not be utilized to establish a quorum.”

The Co-op argues, however, that other provisions of the Bylaws and the Articles of Incorporation allowed for amendments by “written consent.” Paragraph 58 of the Bylaws, entitled “Amendments of By-Laws,” provides:

These By-Laws may only be altered, amended or added to at any duly called meeting of the members, provided: 1) that the notice of meeting shall contain a full statement of the proposed amendment; 2) that three-fourths of the entire membership vote for the amendment at a called meeting, or give their consent thereto in writing....

The Articles of Incorporation provide: “[t]he By-Laws ... shall only be altered, rescinded or amended with the approval of three-fourths of the entire membership obtained by written consent, or at a meeting called for such purpose.”

A “ballot” is not a “written consent” under the Bylaws. A written consent must identify the person giving consent and include their signature. See § 617.0701(4)(a), Fla. Stat. (2005) (requiring that a “written consent” be signed and dated); see also Fla. Admin. Code R. 61B-78.001(4)(b) (“The written consent form utilized by the association must contain a space for the authorized voter to sign and must identify the unit owned.”). A ballot, however, is anonymous and the Co-op specifically described the document at issue as a “secret ballot.”

For these reasons, we reverse the summary judgment and remand for entry of a summary judgment in favor of the unit owner on his claim for declaratory relief and for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR and GERBER, JJ„ concur.

      . Various counterclaims were subsequently dismissed in the trial court. Although one remains pending, it is a distinct and severable cause of action. We, therefore, have jurisdiction. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974).


author: TAYLOR, J.

text:
    Jorge GONZALEZ and Luz Gonzalez, Appellants, v. J.W. CHEATHAM LLC, a Florida Limited Liability Corporation, Appellee.
    No. 4D12-244.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens and Rafael J. Roca of Rafael J. Roca, P.A., West Palm Beach, for appellants.
    Rosalind R. Milian of the Law Office of Lorraine Lester, Plantation, for appellee.
   TAYLOR, J.

The plaintiff, Jorge Gonzales;, and his wife, Luz Gonzalez, appeal a final order granting the defendant’s motion for summary judgment and dismissing their negligence complaint with prejudice on the ground that the suit was barred by workers’ compensation immunity. We reverse, because there is a genuine issue of material fact as to whether the plaintiff was under a written contract “with a motor carrier,” and whether the plaintiff is thus excluded from the definition of “employee” under section 440.02(15)(d)4., Florida Statutes (2009).

This case arises out of a single-vehicle dump truck accident that injured the plaintiff, Jorge Gonzalez, at the ‘Winding Waters” construction project in September 2009. The defendant, J.W. Cheatham, LLC, was the general contractor for the construction project. Cheatham entered into a subcontract with Austin Tupler Trucking to provide earth moving services related to the Winding Waters project. Specifically, Austin Tupler agreed to furnish all supervision, labor, tools, equipment, materials and supplies necessary to haul fill from Winding Waters to the Palm Beach County Solid Waste Authority.

In March 2009, the plaintiff entered into a service contract in which he agreed to transport materials for Austin Tupler with his dump truck. The service contract identified Austin Tupler as a “broker” and identified the plaintiff as an “independent contractor.” The service contract indicated that Austin Tupler, as the “broker,” was “engaged in the business of arranging for the transportation by others of certain road building and construction and construction aggregates, and related commodities!;.]”

The service contract required the plaintiff to provide all equipment, maintain his vehicle at his own expense, pay for gasoline and fuel expenses, pay for all licensing and other governmental fees, and carry liability and cargo insurance. Austin Tu-pler paid the plaintiff on a commission basis, not on an hourly basis. The plaintiff had the discretion to choose the days of the week he wished to work, as well as the manner, means, routes and schedule for transporting a load or shipment.

On the date of the accident, the plaintiff was hauling a load of construction materials on the Winding Waters construction site. The plaintiffs dump truck overturned and' he sustained injuries. The plaintiff and his wife then filed suit against Cheatham, seeking damages for negligence and loss of consortium. Cheatham moved for summary judgment, asserting that the suit was barred by workers’ compensation immunity. Cheatham argued that because the plaintiff was an independent contractor working in the construction industry, the plaintiff qualified as Cheatham’s statutory employee. Cheatham further argued that Austin Tupler was a “broker,” not a “motor carrier,” and thus that the plaintiff did not fall within the “owner-operator” exclusion in section 440.02(15)(d)4., Florida Statutes (2009).

The trial court granted Cheatham’s motion for summary judgment, concluding as a matter of law that the plaintiff was a statutory employee of Cheatham and that workers’ compensation immunity barred the plaintiffs claim. Because the service contract between the plaintiff and Austin Tupler identified Austin Tupler as a “broker” rather than a “motor carrier,” the trial court found that the plaintiff was not transporting property “under a written contract with a motor carrier” as required to qualify for the section 440.02(15)(d)4 exclusion from the definition of employee. Concluding that workers’ compensation immunity barred the lawsuit, the trial court dismissed the plaintiffs complaint with prejudice. This appeal ensued.

The standard of review of an order granting summary judgment is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). When reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

Under Florida’s Workers’ Compensation statute, the term “employee” includes an independent contractor working or performing sendees in the construction industry. § 440.02(15)(c)3., Fla. Stat. (2009). However, section 440.02(15)(d)4., Florida Statutes (2009), provides that the term “employee” does not include:

An owner-operator of a motor vehicle who transports property under a written contract with a motor carrier which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract, if the owner-operator is required to furnish motor vehicle equipment as identified in the written contract and the principal costs incidental to the performance of the contract, including, but not limited to, fuel and repairs, provided a motor carrier’s advance of costs to the owner-operator when a written contract evidences the owner-operator’s obligation to reimburse such advance shall be treated as the owner-operator furnishing such cost and the owner-operator is not paid by the hour or on some other time-measured basis.

The issue in this case turns on whether the plaintiff was under a written contract “with a motor carrier,” as it is undisputed that the plaintiff otherwise meets the necessary elements for owner-operator status. Cf. Reynolds v. CSR Rinker Transport, 31 So.3d 268, 270 (Fla. 1st DCA 2010) (setting forth five-part test for owner-operator status).

As used in the Florida Statutes, the term “motor carrier” generally means “any person owning, controlling, operating, or managing any motor vehicle used to transport persons or property over any public highway.” § 320.01(33), Fla. Stat. (2009). Similarly, federal law defines a “motor carrier” as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14) (2009).

The Florida Statutes do not define the term “broker” in this context. However, federal law defines a “broker” as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2) (2009).

Moreover, the Code of Federal Regulations expands upon the definition of the term “broker”:

Broker means a person who, for compensation, arranges or offers to arrange the transportation of property by an authorized motor carrier. A motor carrier, or person who is an employee or bona fide agent of a carrier, is not a broker within the meaning of this section when it arranges or offers to arrange the transportation of shipments which it is authorized to transport and which it has accepted and legally bound itself to transport.

49 C.F.R. § 386.2 (2009) (emphasis added).

The parties argue over whether federal law is relevant in determining the meaning of the term “motor carrier” under section 440.02(15)(d)4., Florida Statutes (2009). In our view, any distinctions between the federal and state law definitions do not affect the result in this case. We will therefore assume, without deciding, that federal law is relevant in determining whether Austin Tupler was acting as a motor carrier.

Under federal law, “[a] transportation entity may have authority to operate as both a broker and a carrier.” Schramm v. Foster, 341 F.Supp.2d 536, 549 (D.Md.2004). However, the dispositive issue is whether, in the specific transaction at issue, the entity “chose to use its carrier authority to ship the load or chose to simply broker the shipment to another authorized carrier.” Id. at 550. “[I]f [an entity] accepted responsibility for ensuring delivery of the goods, regardless of who actually transported them, then [the entity] qualifies as a carrier. If however [the entity] merely agreed to locate and hire a third party to transport the [goods], then it was acting as a broker.” CGU Int’l. Ins., PLC v. Keystone Lines Corp., 2004 WL 1047982 (N.D.Cal. May 5, 2004).

“Whether a company is a broker or a carrier is not determined by what the company labels itself, but by how it represents itself to the world and its relationship to the shipper.” Hewlett-Packard Co. v. Brother’s Trucking Enters., Inc., 373 F.Supp.2d 1349, 1352 (S.D.Fla.2005). Because the difference between a carrier and a broker is often blurry, the carrier/broker inquiry is inherently fact-intensive and not well-suited to summary judgment. Nipponkoa Ins. Co. v. C.H. Robinson Worldwide, 2011 WL 671747 (S.D.N.Y.2011). Thus, courts frequently conclude that there are issues of fact as to whether an entity is a carrier. Id. at *5.

In Hewlett-Packard, for example, the federal district court denied the defendant’s motion for summary judgment on the plaintiffs Carmack claim where the defendant not only arranged for transportation, but also exerted some measure of control over the drivers. 373 F.Supp.2d at 1352.

In Schramm, by contrast, the relevant defendant, CHR, had contracted with a carrier to haul a load of goods for a third party, and the tractor driver, an employee of the carrier, was in an accident that injured others. 341 F.Supp.2d at 540-42. The federal district court entered summary judgment in favor of defendant CHR on the plaintiffs’ claims under the Motor Carrier Act, finding that, in the transaction at issue, CHR was functioning as a broker rather than a carrier. Id. at 547-50, 553. The court reasoned there was no evidence that CHR conveyed to the shipper that it would be transporting the load itself or that it engaged in anything other than “selling, providing, or arranging for, transportation by motor carrier for compensation.” Id. at 550.

Here, there is a genuine issue of material fact regarding whether Austin Tupler was a “motor carrier.” While Austin Tupler did not own or operate the dump truck involved in the accident, there is a genuine issue of material fact regarding whether Austin Tupler controlled or managed the motor vehicles used to transport the fill from the construction site. Glen Tupler, the president of Austin Tu-pler, testified that Austin Tupler is licensed as a motor carrier by the U.S. Department of Transportation. That Austin Tupler labeled itself as a “broker” in its contract with the plaintiff is not disposi-tive. Indeed, review of the contract between Cheatham and Austin Tupler shows that the contract contemplated far more than Austin Tupler merely agreeing to locate and hire a third party to transport the fill.

Unlike in Schramm, where the broker was merely arranging for transportation by a motor carrier, here Austin Tupler’s contract with Cheatham specifically required that Austin Tupler “Haul fill from Winding Waters Natural Area Wetland Creation to Palm Beach County Solid Waste Authority located on Jog Road North of 45th Street.” Austin Tupler further agreed to “provide sufficient trucks to haul an average of 250 loads per day” of fill from the Winding Waters construction site and to furnish all supervision, labor, tools, equipment, materials and supplies necessary. Although Austin Tupler contracted with independent owner-operators, such as the plaintiff, to truck the materials, Austin Tupler’s contract with Cheatham clearly contemplated that Austin Tupler would be supervising the job. At the Winding Waters project, there were between fifteen and twenty-five trucks hauling fill on a daily basis. Glen Tupler testified that he was personally present on the job site and that he was there in the following capacity: “I went to check out the loading and the dumping of the job a few times while we ran the job.” (Emphasis added). This was, at a minimum, sufficient record evidence to create a genuine issue of material fact as to whether Austin Tupler was “controlling” or “managing” the trucks used to transport fill from the construction site so as to qualify as a motor carrier within the meaning of section 440.02(15)(d)4., Florida Statutes (2009).

In sum, because there is a genuine issue of material fact as to whether the plaintiff was under a written contract “with a motor carrier,” see § 440.02(15)(d)4., Fla. Stat. (2009), we reverse the order on appeal and remand for further proceedings.

Reversed.

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

      . The structure of section 440.02(15) suggests that section 440.02(15)(d) excludes individuals from the definition of "employee” even if they would otherwise be included in the definition of "employee” under section 440.02(15)(c). Accordingly, even if an individual is an independent contractor working in the construction industry, the individual is not an "employee” if the requirements of section 440.02(15)(d)4., Florida Statutes (2009), are satisfied.


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    Cynthia SCHWARTZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-777.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Lewis S. Midler of Midler & Kramer, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In this appeal from a conviction and sentence after a plea to trafficking in cocaine and oxycodone, where appellant reserved her right to appeal dispositive motions, she challenges the trial court’s denial of her motion to suppress the drugs found. Because the totality of the circumstances shows that the officers had reasonable suspicion to stop appellant, the trial court did not err in denying the motion to suppress. Appellant also claims that the court should have granted her motion to dismiss based upon objective entrapment, but we conclude that the trial court correctly denied the motion. Finally, she claims that the case against her is based upon “perjured” testimony from the lead detective, relying upon various inconsistencies between his testimony and the testimony of one informant, as well as inconsistencies between his testimony at various depositions and hearings. Although we conclude that appellant has not proved that the detective’s testimony was affirmatively false, we need not address the merits, because relief, if any, for knowingly relying on false testimony would be reversal for a new trial or hearing, not dismissal of all charges. Therefore, it is not dispositive and cannot be reserved for appeal from the conviction based upon a plea. We thus affirm.

The case against appellant began earlier on the day of appellant’s arrest. Officers arrested an individual in Hollywood, Florida, with whom they had set up a purchase of cocaine through a confidential informant (the original confidential informant). The Hollywood arrestee cooperated and told the officers that her supplier was waiting outside a restaurant several miles away to provide additional drugs upon receipt of money. She called the supplier to inform him that she was on her way to his location. The officers and the Hollywood ar-restee drove to the place where her supplier was located in the back of a restaurant. Officers surrounded the supplier’s vehicle. When confronted by the police, just like the Hollywood arrestee, he also agreed to cooperate with the officers, who obtained his license to check his identity. This second confidential informant informed the officers that his supplier, a woman, was inside the restaurant waiting for his call to deliver the drugs which were in her car parked outside the front of the restaurant. He called his supplier with the lead detective listening to the call. After he asked her if she had the “stuff,” she said that she did. She agreed to meet him at her vehicle outside the restaurant in five to ten minutes. The officers and this supplier-turned-informant (the second informant) went around to the front of the restaurant. The informant identified appellant as his supplier as she exited the restaurant. The officers observed her reach into the vehicle. She brought out an envelope. She stood with the envelope in her hand at the rear of her vehicle. Officers, including a K-9 unit, then approached her.

The first officer to approach appellant identified himself as a narcotics investigator. That officer testified that before he could say anything else, she said to him something to the effect of “this is what I was looking for,” as she handed the officer the envelope. Just behind the first officer was the detective with the trained drug dog. As the first officer spoke to appellant, the dog alerted on the envelope. While the testimony is in conflict as to whether the package was in appellant’s hand or the officer’s hand when the K-9 unit alerted, there is no question that the trained dog alerted on the envelope. The lead detective then opened the envelope and found 400 grams of cocaine. At that point, the detective arrested appellant. The dog also alerted on appellant’s purse which contained both cocaine and oxycon-tin pills.

Appellant sought to suppress the drugs seized, arguing that she was seized without reasonable suspicion when the officers approached her. The trial court denied the motion.

Appellant filed a lengthy motion to dismiss the charges based upon objective entrapment, alleging that the police had set her up because of the fact that her husband and his brother were known drug traffickers, her husband having been sent to prison. Her theory seems to have been that the lead detective in her arrest cloaked the informants as confidential informants in order to entrap her. Once designated as confidential informants, their testimony was unavailable. According to appellant’s theory, the detective’s plan was to target appellant and to use the immunized Hollywood arrestee and her supplier as confidential informants so that appellant could not depose them to learn the truth of the plan.

As convoluted as the theory was, the trial court held an extensive evidentiary hearing on it. We have reviewed the transcript of that hearing. Appellant sought to prove that the detective was lying about many aspects of the case. Those “lies” were simply appellant’s attempt to distort previous testimony of the detective. As the exasperated detective said to appellant’s attorney at one point in his testimony, “I didn’t know how much you were going to focus in on one word rather than the story of actually what the truth of what happened there.” The “truth” of what happened was confirmed by the informants and the other detectives on the scene. Only some contradictory testimony was furnished from the Hollywood arres-tee, who had met with appellant’s attorney on numerous occasions prior to her testimony in court. At the very best, the testimony of the Hollywood arrestee provided contradictory evidence, and the credibility of both the arrestee and the detective would be properly placed before a jury. Many other detectives testified, and none supplied evidence that supported her theory, nor did the other confidential informants.

The trial court denied the motion to dismiss, finding no objective entrapment. Although never finding that any witness offered false testimony, the court acknowledged that a verdict may not be based upon false testimony. Nevertheless, the court concluded that no due process violation had occurred at that point in the proceedings. After the court denied the motion to dismiss, the appellant filed a motion for reconsideration, clarification and to conduct a Franks hearing. Although filed in 2008, these were not denied until 2010. The appellant then pled to the crimes, reserving her right to appeal “dis-positive” motions. Neither the state nor the trial court stated on the record that all of the motions were dispositive. This appeal follows.

I. Motion to Suppress

A motion to suppress can present an issue of fact, an issue of law, or a combination of the two. State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001). Factual findings are reviewed for competent substantial evidence. Legal rulings are reviewed de novo. Connor v. State, 803 So.2d 598, 608 (Fla.2001).

In Fourth Amendment analysis, there are three levels of police encounter: (1) a consensual encounter, where the citizen is free to leave or voluntarily cooperate with police; (2) an investigatory stop based upon reasonable suspicion that the person is about to commit, is committing, or has committed a crime; and (3) an arrest based upon probable cause that a crime has occurred. See Popple v. State, 626 So.2d 185, 186 (Fla.1993). The facts of this case support a stop based upon reasonable suspicion, which may be found from the totality of the circumstances. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002).

Although appellant makes much of the fact that the confidential informants were not known to the police in this case, under a totality of the circumstances approach, that, in and of itself, does not prevent the court from concluding that the officers possessed reasonable suspicion to conduct a stop. In State v. Flores, 932 So.2d 341 (Fla. 2d DCA 2006), the Second District found that a similar constellation of facts to those present in this case constituted reasonable suspicion to stop the defendant. In Flores, an individual had been arrested earlier in the day for possession of cocaine after a controlled buy. That individual immediately became an informant and, with the officers listening to his conversation, arranged a drug buy with his supplier. The Cl gave a description of the car that the supplier would be driving and the location of the purchase, and stated that the supplier would be alone. When officers arrived, they observed the car with two men in it. Officers approached the vehicle with guns drawn. The defendant exited the car and dropped what turned out to be cocaine. While the trial court suppressed the evidence, finding that the officers did not have probable cause to arrest, the Second District reversed, concluding that the officers had reasonable suspicion to stop the individuals and that the cocaine was dropped voluntarily after the stop, providing probable cause at that point to arrest.

The Second District discounted the fact that the officers had not worked with the Cl prior to the controlled buy. While that may have factored into a determination of probable cause to arrest, the court determined that the officers had reasonable suspicion.

[O]ur de novo review of the totality of the circumstances in this case leads us to conclude that the police did have reasonable suspicion to conduct an investigatory stop of Flores. The Cl had purchased drugs from Flores previously, thus establishing the basis of his knowledge. The officer listened as the Cl made arrangements to purchase $50 of cocaine from someone on the telephone. The Cl provided information as to where and when the purchase would take place and what type of vehicle the supplier would be driving. The officers reported to the location given by the Cl, and a vehicle matching the description given by the Cl timely arrived. The totality of these circumstances supports the conclusion that the officers had the necessary reasonable suspicion to make the investigatory stop.

Id. at 344.

Similarly, in this case, the totality of the circumstances shows that the officers had a reasonable suspicion that appellant was involved in a drug sale, even though the two informants, the last of whom pointed out appellant, were unknown to the police at the time. Here, the officers conducted a buy from the Hollywood arrestee who called her supplier and then identified his location for the officers. The officers proceeded to that location with the arrestee, where they found her supplier in a restaurant parking lot. They immediately surrounded him, and he admitted his connection to the arrestee. He then divulged information that his supplier, a woman, was in the nearby restaurant. The Cl called her in the presence of the officers and asked her if she had the “stuff,” arranging for her to come out of the restaurant and give it to him. He also pointed out her vehicle in the parking lot. He then identified her to the officers as she came out of the restaurant and got an envelope out of the vehicle. Officers then approached appellant with the K-9 unit.

Based upon the totality of the circumstances, the officers had reasonable suspicion that appellant was engaging in the sale of drugs. When they approached her, she started to hand them the envelope, without them asking, telling them that it was what they were looking for. At the same time the dog alerted on the envelope, providing probable cause for her arrest. The trial court did not err in denying the motion to suppress.

II. Motion to Dismiss Based Upon Objective Entrapment and False Testimony

Objective entrapment focuses on governmental misconduct which violates a defendant’s due process rights by ensnaring him to commit a crime, regardless of predisposition. State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985). The remedy for egregious police conduct constituting entrapment is dismissal of the charges. Id. We gave examples of objective entrapment in State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005):

The type of conduct held to violate due process is that which so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction. See, e.g., State v. Glosson, 462 So.2d 1082 (Fla.1985) (law enforcement entering into a contingency contract with informants to obtain convictions); Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985) (law enforcement officer appearing inebriated and hanging money from his pocket in high crime area); State v. Williams, 623 So.2d 462 (Fla.1993) (illegal manufacture of crack cocaine by law enforcement officials for use in reverse-sting operation); Soohoo v. State, 737 So.2d 1108 (Fla. 4th DCA 1999) (undercover agent’s consignment arrangement for sale of drugs).

All of this conduct entices or facilitates the commission of the crime. In this case, we agree with the trial court that there was no egregious misconduct of law enforcement in setting up the drug transactions in this case. In fact, the use of confidential informants and “flipping” suspects to go up the supply chain to find the major suppliers is common police work. We agree with the trial court that no egregious police conduct entrapped appellant to commit the crime that occurred.

While objective entrapment involves the police action in setting up criminal activity, a defendant has a due process right not to be convicted based upon false testimony. See Giglio v. U.S., 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The state may not knowingly use false testimony to convict a defendant. Napue v. People of State of Ill., 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). The remedy, however, is to grant a new trial if the false evidence could in any reasonable likelihood have affected the jury’s verdict. See Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting Napue, 360 U.S. at 271, 79 S.Ct. at 1178).

Appellant claims that the lead detective provided false testimony at the hearing on the motion to suppress. We have reviewed the testimony of the detective as well as the other witnesses. As a successor judge noted in another order in this case, after reviewing the transcript of the hearing on the motion to dismiss, “Although [the detective’s testimony] may be inconsistent with statements made by [the Hollywood arrestee], [the detective’s] testimony was supported by the testimony of fellow law enforcement officers as well as the testimony of [the original Cl] and [the Hollywood arrestee’s supplier].” In other words, the testimony presents a credibility dispute as to various aspects of the drag transaction. Our own review of the record would indicate that none of the statements constitutes false testimony. Instead what we perceive are minor discrepancies or imperfect memory of events to which the detective had testified several times over the ten years this case has been pending.

In any event, due process protects the defendant from the use of false testimony to convict. The remedy for the use of false testimony is not dismissal but reversal and remand for a new trial. See Giglio, 405 U.S. at 154, 92 S.Ct. at 766. Because the appellant pled, reserving only the appeal of dispositive motions, her motion to dismiss based upon the detective’s testimony is not dispositive. Therefore, it is not a proper subject of appellate review after the plea.

We summarily dispose of appellant’s remaining claims. She is not entitled to appeal the motion for reconsideration or denial of a Franks hearing. The motion for reconsideration was not disposi-tive, nor was the motion for a Franks hearing, which in any event would not apply, as a search warrant was not involved in this case.

For these reasons, we affirm the conviction and sentence of appellant.

GROSS and LEVINE, JJ„ concur.

      . Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (requiring a hearing when the defendant claims that allegedly false statements are contained in an affidavit in support of the issuance of a search warrant).


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    Barrington ALFRED, Appellant, v. Venetta ALFRED-FACEY, Appellee.
    No. 4D12-427.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Barrington Alfred, Pompano Beach, pro se.
    Venetta Alfred-Facey, Boynton Beach, pro se.
   PER CURIAM.

Dismissed for Lack of Jurisdiction. See Fla. R.App. P. 9.130; Lamothe v. Sellars, 695 So.2d 1259, 1260 (Fla. 4th DCA 1997) (case management orders used by the court to control the proceedings are not appealable).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Nancy HIGGS, Appellant, v. Paul HIGGS, Appellee.
    No. 4D12-3202.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.
    Ann-Marie Giustibelli, Plantation, for appellant.
    Edward A. Lopez, Hollywood, for appel-lee.
   PER CURIAM.

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

WARNER, DAMOORGIAN and CONNER, JJ., concur.


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    Robert ZLATKISS and Linda Zlatkiss, Appellant, v. ALL AMERICA TEAM CONCEPTS, LLC, Et Al., Appellee.
    No. 5D12-3324.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.

      David S. Oliver and Jessica L. Thorson, of Morgan & Morgan, P.A., Orlando, for Appellant.
    Matthew G. Brenner, Ronald D. Edwards, Jr., and Jennifer R. Dixon, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee, Wells Fargo Bank, N.A.
    No Appearance for other Appellees.
   PER CURIAM.

Robert Zlatkiss and Linda Zlatkiss, (“Plaintiffs”) appeal an entry of final summary judgment as to Count III of their complaint in favor of Defendant Wells Fargo Bank, N.A. Plaintiffs made a $350,000 loan to Defendant All American Team Concepts, LLC (“AATC”), for which its principal, Defendant Louis Steinmetz, signed a personal guaranty. Steinmetz represented to Plaintiffs prior to making the loan that he had $6,850,278.53 available to him in a trust. However, Steinmetz’s trust is a spendthrift trust, which prevents the trustee from making distributions if the distributions would be available to creditors. When Steinmetz failed to repay the loan, trustee Wells Fargo refused to make trust distributions to cover the debt owed to Plaintiffs.

Plaintiffs sued Steinmetz, AATC, Wells Fargo and another defendant. Against Wells Fargo, Plaintiffs sought a declaration that sections 736.0501-.0507, Florida Statutes (2012), which recognize the enforceability of spendthrift trusts, violate article I, section 21 of the Florida Constitution by preventing access to courts. The trial court granted summary judgment for Wells Fargo, stating that “[tjhere are insufficient grounds to declare [the statutes] unconstitutional ... as these statutes do not limit access to courts.... [T]he right to collect or means of collection is what is at issue, not a right of action.” We affirm.

Spendthrift trusts are “ ‘created with [the intention] of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection.’ ” Miller v. Kresser, 34 So.3d 172, 175 (Fla. 4th DCA 2010) (quoting Croom v. Ocala Plumbing & Elec. Co., 62 Fla. 460, 57 So. 243, 244 (1911)). A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of the trust funds until they are dispersed to the beneficiary. Miller, 34 So.3d at 175 (citing § 736.0502(3), Fla. Stat. (2009)). Spendthrift provisions have long been recognized as valid in Florida and sections 736.0501-.0507 additionally provide for the enforcement of spendthrift trusts. Miller, 34 So.3d at 175; Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947).

Plaintiffs’ constitutional challenge to sections 736.0501-.0507 is premised on article I, section 21 of the Florida Constitution, which provides in its entirety that: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” The Florida Supreme Court explained this right in Kluger v. White, 281 So.2d 1, 4 (Fla.1973), stating:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law ... the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Plaintiffs contend that sections 736.0501-.0507 abolished a “common law” right “to execute a monetary judgment against any beneficial interest held by a debtor,” without providing a reasonable alternative or demonstrating an overpowering public necessity for the statute.

The glaring flaw in Plaintiffs’ argument is that the creditor-protection provisions of a properly drafted spendthrift trust were recognized as legally valid (and effective to protect trust assets against judgment or other creditors) at common law, long before the adoption of sections 736.0501-.0507. As such, these statutes cannot be considered under Kluger as a legislative act abolishing a common law right, but rather, recognizing one. See, e.g., Munn, 32 So.2d at 605 (citing Croom, 57 So. at 244). Additionally, as noted by the trial judge, Plaintiffs are confusing their right to bring a legal action with their means of collecting a judgment. Article I, section 21 guarantees access to courts, i.e., “the avoidance of significant impediments to the filing of nonfrivolous legal claims[.]” Spencer v. Fla. Dep’t. of Corr., 823 So.2d 752, 756 n. 6 (Fla.2002). It does not guarantee the ability to enforce a judgment.

AFFIRMED.

TORPY, LAWSON and JACOBUS, JJ., concur.


text:
    Lorenzo SWINTON, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D11-2490.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellant.
    Michael K. Winston and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See § 687.0304, Fla. Stat. (2012).

GROSS, FORST, JJ., and ROSENBERG, ROBIN, Associate Judge, concur.