source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Kenneth Roy SUNDBERG v. Willie THOMAS et al.
    CR-08-0096.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 2009.
    Kenneth Roy Sundberg, pro se.
    Kim T. Thomas, gen. counsel, and Albert S. Butler, asst. gen. counsel, Department of Corrections, for appellee.
   WISE, Judge.

The appellant, Kenneth Roy Sundberg, filed a petition for a writ of habeas corpus, arguing that the Alabama Department of Corrections (“DOC”) has improperly calculated his release date. After DOC responded, the circuit court summarily dismissed the petition. This appeal followed.

The record indicates that Sundberg was convicted of first-degree robbery and was sentenced to serve a term of 20 years in prison on June 20, 1989. It also indicates that he was released on parole on July 19, 1993; that he was rearrested in New Hampshire on August 31, 1993; that he was declared delinquent on September 7, 1993; and that he was returned to Alabama on September 22, 1993. Sundberg argues that he is entitled to receive credit against his sentence for the time between the date he was declared delinquent and the date he was returned to Alabama. In support of its motion to dismiss, DOC attached an affidavit from Kathy Holt, its Correctional Records Director. In her affidavit, Holt stated, in pertinent part:

“This is to certify that Kenneth Roy Sundberg’s, AIS# 154261, minimum release date of February 9, 2009 is correct. His minimum release date is calculated on case CC-89-308 with a sentence date of June 20, [1]989, to a term of 20 years with 158 days of jail credit. Pursuant to Code of Alabama § 14-3-38 an inmate is discharged at the expiration of the longest term of confinement on concurrent cases. Pursuant to Code of Alabama § 15-22-32, ‘whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the Board of Pardons and Paroles, at its next meeting, shall declare such prisoner to be delinquent, and time owed shall date from such delinquency’ and; Ivy vs. State, 381 F Suppl 503 (S.D.Ala.1974), ‘once a parolee is declared delinquent he is no longer serving his sentence in any capacity.’ Inmate Sundberg was paroled on July 19, 1993, declared delinquent on September 7, 1993, and returned from New Hampshire to the Alabama Department of Corrections on September 22, 1993, which accounts for 15 days of dead time. He accrued 13 days of dead time when he was paroled July 6, 1998, was declared delinquent October 26, 1998, and recaptured November 9, 1998. This accounts for a total of 28 days of dead time. See attached Inmate Summary and time computation below.”

(C.R. 14.)

A petition for a writ of habeas corpus is the proper method by which to test whether DOC has correctly calculated the time an inmate must serve in prison. See Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); Swicegood v. State, 646 So.2d 158 (Ala.Crim.App.1993). Section 15-22-32, Ala.Code 1975, provides:

“Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the Board of Pardons and Paroles, at its next meeting, shall declare such prisoner to be delinquent, and time owed shall date from such delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his parole. Thereupon, such board, or a single member of such board, shall, as soon as practicable, hold a parole court at such prison or at such other place as it may determine and consider the case of such parole violator, who shall be given an opportunity to appear personally or by counsel before such board and produce witnesses and explain the charges made against him. The board shall, within a reasonable time, act upon such charges and may, if it sees fit, require such prisoner to serve out in prison the balance of the term for which he was originally sentenced, calculated from the date of delinquency or such part thereof as it may determine; however, the delinquent parolee shall be deemed to have begun serving the balance of the time so required on the date of his rearrest as a delinquent parolee.”

(Emphasis added.) Based on the plain language of § 15-22-32(a), Ala.Code 1975, because Sundberg had been arrested at the time he was declared delinquent, he was entitled to credit for the 15 days between the date he was declared delinquent and the date he was returned to Alabama. Therefore, DOC improperly designated this time as “dead time” that cannot be credited against his sentence. Accordingly, we reverse the circuit court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ., concur.

      . We note that Sundberg is serving multiple concurrent sentences for multiple convictions. For purposes of sentence calculation, his sentence in case number CC-89-308 is controlling because it causes him to serve the longest period of confinement. See § 14-3-38, Ala. Code 1975. Therefore, we confine our discussion to the conviction and sentence in case number CC-89-308.


author: WELCH, Judge.

text:
    David Ralph HARRISON v. STATE of Alabama.
    CR-07-1174.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 2009.
    Thomas J. Azar, Jr., Montgomery, for appellant.
    Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   WELCH, Judge.

David Ralph Harrison and John Draper were separately indicted for theft of property in the first degree, a violation of § 13A-8-3, Ala.Code 1975. Their cases were consolidated for trial, and both men were convicted. Harrison was sentenced to five years’ imprisonment. The trial court suspended the sentence and placed Harrison on five years’ probation. Harrison was ordered to pay $10,599.50 in restitution, $1,000 to the Victims Compensation Fund, and court costs.

The evidence adduced at trial indicated the following. Deanco Auto Auction of Montgomery, Inc. (“Deanco”), is a company that coordinates wholesale transactions between automobile dealers by conducting auctions. Usually, a dealer wanting to register an item for sale contacts Deanco and provides the company with a dealer’s license, a tax exemption, and a bond. A Deanco employee enters the information into Deanco’s computer system, and the dealer is assigned a number. The number is entered into a spiral notebook. The item, usually an automobile, is taken to the gate of Deanco’s auction lot where an employee enters the information regarding the item into the computer system, including a vehicle identification number (“VIN”), assigns the dealer’s number to the item, and parks the vehicle in the parking area until auction. Occasionally, Deanco allows an outside sales person to preregister the dealer and vehicle before the vehicle is delivered to the lot. Harrison was an outside sales person.

On June 13, 2007, Harrison requested that a Deanco employee register Draper as a new dealer for an upcoming auction. Draper and Harrison were neighbors. Harrison stated that he would provide proper dealer information the next day. The employee registered Draper and entered his name and dealer number into the spiral notebook. On June 14, 2007, Harrison requested that an employee at the gate register a boat that would be arriving later. Harrison provided the employee with a VIN number, but the number appeared to be invalid. Harrison left and returned a short time later with another VIN number for the boat, which was successfully entered into the computer system.

When managers Julie Tuttle and Kelly Terrell reviewed Deanco’s accounts receivable a few days later, they noticed a check on Deanco’s account had been issued in the amount of $21,199 that identified the purchaser as “QQQQQ.” (R. 22.) They were unable to locate any paperwork concerning the transaction. They contacted the controller, who verified that the check had already cleared the company’s bank account. Terrell determined that the check was payable to John Draper. Office supervisor Nicole Allen had issued the check and had given the check to Harrison. The employees could not locate a title to the boat. Deanco usually required the title before issuing a check. Terrell discovered a notation in the records to the effect that Harrison was to pick up the title. Records further showed that the buyer of the boat was listed as Dothan Motor Company. Terrell did not contact anyone at Dothan Motor Company at the time because she knew that the owner, Dan Smith, had died in an airplane crash the day of the sale.

When Tuttle questioned Harrison about the transaction, Harrison denied John Draper, claimed he did not know anything about any money, and left. Several days later, Harrison telephoned Tuttle and asked her to call her boss and request that he stop the criminal proceedings. He denied doing anything wrong, but he did offer to pay back the money. The next day Tuttle informed Harrison that her boss had refused to stop the proceedings. Tuttle asked Harrison why he did what he did, and Harrison responded that he owed Draper money.

Police interviewed Draper, who stated that he had previously purchased a Chris-Craft boat for $19,500 from someone named “Tommy” in Birmingham, that he did not have a bill of sale, that he never registered the boat, that he had made some repairs to the boat, that he took it to a parking lot in Montgomery and put a for sale sign on it, that someone named Dan called him indicating that he wanted to purchase the boat, that he met a man wearing a shirt bearing the name of Dean-co Auto Auction in the parking lot, that the man gave him a check from Deanco, and that Draper then left. When police interviewed Harrison, he told them that Dan Smith of Dothan Motor Company and Draper had met and had agreed on the sale and that they wanted the sale to go through Deanco so that the company could make a commission.

Harrison contends that the trial court erred when it denied his motion for a judgment of acquittal because, he says, there was a fatal variance between the indictment, charging theft of currency or coinage, and the evidence offered at trial establishing theft of a check. The indictment in the instant case charged that Harrison

“did knowingly obtain or exert unauthorized control over, or did knowingly obtain by deceptionf,] control over lawful currency and/or coinage of the United States of America, a better description of which is unknown to the Grand Jury, the property of Deanco Auto Auction, of some value in excess of $2,500.00 dollars, with intent to deprive the owner of the property, in violation of section 13A-8-3 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 6.)

“ ‘ “A fatal variance exists between an indictment alleging the theft of ‘lawful currency’ and evidence showing the theft [of a check]. ‘[W]hen in this case the charge involved “currency” and the evidence established “[a check],” this was a fatal variance.’ ” ’

“Delevie v. State, 686 So.2d 1283, 1284 (Ala.Cr.App.1996) (citations omitted); see also Henderson v. State, 520 So.2d 169, 170 (Ala.Cr.App.1987). ‘ “ ‘Obviously, a check is not money,’ and in an indictment, an allegation of conversion of money will not cover a conversion of a check.” ’ Delevie, 686 So.2d at 1285.” State v. Saxton, 724 So.2d 77 (Ala.Crim.App.1998). See also Shubert v. State, 488 So.2d 44 (Ala.Crim.App.1986) (finding a fatal variance between indictment charging that defendant stole $10,000 and proof at trial that check for $10,000 was fraudulently taken); Ex parte Airhart, 477 So.2d 979 (Ala.1985) (finding a fatal variance between indictment alleging the theft of lawful currency and the evidence showing embezzlement of several checks).

The State argues that there was no fatal variance because, it argues, when a check is deposited with a bank it is converted into currency. In support of its position its relies on Ex parte Brooks, 562 So.2d 604 (Ala.1990).

In Brooks, the Alabama Supreme Court held that an indictment charging Brooks with theft of currency did not suffer from fatal variance, even though a check was involved, where Brooks deposited the check, converted the check to currency, and then converted currency. Brooks involved an attorney who was depositing his clients’ settlement check into a trust account and subsequently withdrawing money from the account to pay personal obligations. We do not find that Brooks stands for the broad proposition that when a check is deposited it is converted into currency, thereby eliminating a fatal variance. Rather, the facts in Brooks indicated that it was not until the attorney improperly withdrew money from the trust account that the attorney exerted unauthorized control over the clients’ property. Thus, the attorney exerted unauthorized control over currency, not the check. In other words, there was never a theft of the check but a theft of the clients’ money from the trust account.

In this case, Harrison exerted unauthorized control over a check. As is the case in many theft cases involving checks, the check was eventually cashed or deposited; however, cashing or depositing a check does not render the theft a theft involving currency. Here, the indictment charged theft of currency, but the evidence at trial established unauthorized control over a check. Thus, there was a fatal variance between the indictment and the evidence presented at trial.

Because there was a fatal variance between the allegations in the indictment and the evidence presented at trial, we must reverse Harrison’s conviction and sentence. Because we are reversing on this issue, we forgo discussion of other allegations of error.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN and SHAW, JJ., concur.

WISE, J., dissents, without opinion.


author: PER CURIAM.

text:
    Donald BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5214.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2008.
    Rehearing Denied July 24, 2009.
    Donald Banks, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B) and 9.141(c)(5)(C).

LEWIS and THOMAS, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.


author: COPE, J.

text:
    Jorge Alberto CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-181.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.

      The Law Offices of Eduardo Soto and Karina Acevedo and Karla Lammers, Miami, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   COPE, J.

Jorge Alberto Castillo appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evi-dentiary hearing.

Defendant-appellant Castillo filed his Rule 3.850 motion, whereby he sought relief from a 1995 plea on account of the deportation consequences of the plea. He alleged that he was entitled to relief under State v. Green, 944 So.2d 208 (Fla.2006). The trial court denied the Rule 3.850 motion and this court reversed on appeal, as the postconviction record did not conclusively refute the defendant’s claim. Castillo v. State, 990 So.2d 564 (Fla. 3d DCA 2008). We remanded “for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.” Id. at 565.

When the matter returned to the trial court, the court again summarily denied the Rule 3.850 motion, but did not attach any record excerpts conclusively refuting the claim. We reverse the order now before us, and remand for an eviden-tiary hearing. See Tatum v. State, 994 So.2d 1231 (Fla. 3d DCA 2008).

The State’s response filed in this court argues that the defendant has an additional conviction for purchase or possession of cannabis and that this offense independently makes the defendant subject to deportation. The defendant’s brief argues that the defendant’s Florida conviction does not render the defendant subject to deportation under federal law. The trial court did not attach the Florida conviction and sentence to the summary denial order. The question whether that conviction does, or does not, independently subject the defendant to deportation should be addressed at the evidentiary hearing on remand.

The State attempts to rely on a computer printout which was attached to the defendant’s motion, which shows two other offenses. In one 1996 case the State took no action, and in the other 1996 case, the printout indicates that there was a violation of a municipal ordinance. If the State believes that the latter 1996 conviction renders the defendant independently subject to deportation, the State may introduce the judgment and sentence at the evidentiary hearing.

Reversed and remanded with directions to conduct an evidentiary hearing.


text:
    Michael D. GEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3747.
    District Court of Appeal of Florida, First District.
    May 7, 2009.

      Michael D. Gee, pro se, Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion for postcon-viction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, in which the appellant claimed to have suffered ineffective assistance of counsel because counsel failed to file a notice of expiration of speedy trial time. We reverse and remand the trial court’s summary denial of the appellant’s claim.

To show ineffective assistance of counsel, the appellant must show that counsel’s performance was outside the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). The appellant must allege specific facts which are not conclusively rebutted by the record and which demonstrate that such deficiency in counsel’s performance prejudiced the defendant. Betts, 792 So.2d at 590.

As to the first prong of Strickland, the appellant alleged that counsel twice failed to file a notice of expiration of speedy trial time prior to moving for dismissal on speedy trial grounds, as required by Florida Rule of Criminal Procedure 3.191. As to the second prong, the appellant alleged that the trial judge expressed doubt about finding a jury during the rule 3.191 recapture period, but denied the motion to dismiss because defense counsel had failed to follow the proper procedure. See Gee v. State, 954 So.2d 83 (Fla. 1st DCA 2007). We conclude the allegations are sufficient to state a legally sufficient claim. See e.g. Brown v. State, 829 So.2d 975, 976 (Fla. 1st DCA 2002); Greeson v. State, 729 So.2d 397 (Fla. 1st DCA 1998). Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appellant’s ineffective assistance of counsel claim for failing to file a demand for speedy trial is reversed and remanded for record attachments that conclusively refute his claim, or for further proceedings.

REVERSED.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


author: DAVIS, Judge.

text:
    David R. FLINT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1415.
    District Court of Appeal of Florida, Second District.
    May 13, 2009.
    David R. Flint, Jr., pro se.
   DAVIS, Judge.

David R. Flint, Jr., pro se, challenges the summary denial of his postconviction motion, which he filed pursuant to Florida Rule of Criminal Procedure 3.850 and in which he alleged newly discovered evidence. Notwithstanding the subsequent change in the law, because Flint’s motion was timely under the law at the time the motion was filed, we must reverse.

Flint was convicted by a jury of first-degree murder and was sentenced to life with a twenty-five-year minimum mandatory. The judgment and sentence were entered on December 11, 1992, and were subsequently affirmed by this court. See Flint v. State, 641 So.2d 76 (Fla. 2d DCA 1994) (table decision). He then filed a rule 3.850 motion, which was summarily denied by the postconviction court. This court affirmed that summary denial. See Flint v. State, 684 So.2d 1359 (Fla. 2d DCA 1996) (table decision). Then on October 22, 2007, nearly fifteen years after entry of his judgment and sentence, Flint filed a second rule 3.850 motion, alleging newly discovered evidence.

In that motion, Flint claimed that on June 5, 2006, he discovered that his trial counsel had misadvised him with regard to the State’s plea offer. Flint maintained that during jury selection, his counsel informed him that the State had made a plea offer of forty years, that he specifically asked his counsel whether he could receive early release on the forty-year sentence via parole or gain time, and that trial counsel told him he would have to serve the entire forty years if he accepted the plea. According to Flint, he rejected the plea and proceeded to trial because he knew he was facing twenty-five years to life if convicted by a jury and he decided to take his chances. However, on June 5, 2006, while seeking commutation of his life sentence upon service of two-thirds of his twenty-five-year minimum mandatory, Flint was informed by the Department of Corrections (DOC) that he would have been entitled to basic and incentive gain time on the forty-year plea offer had he accepted it. Flint stated in his rule 3.850 motion that had he been aware that he was entitled to gain time on the plea offer, he would have accepted the offer and would have received a lesser sentence than the one imposed after trial.

In summarily denying this claim, the postconviction court concluded that the newly discovered evidence exception to rule 3.850(b)(l)’s two-year time limit did not apply to Flint’s motion because the information that Flint alleged in his motion “does not qualify as newly discovered evidence.” The court further found that Flint “failed to establish ... that he could not have timely obtained the information” and “failed to meet the burden of due diligence.”

In Singleton v. State, 981 So.2d 1259, 1260 (Fla. 2d DCA 2008), this court addressed a similar claim in which the defendant alleged that he had newly discovered “that his counsel misadvised him regarding his eligibility for parole.” This court concluded as follows:

The defendant asserting a claim that counsel gave erroneous advice concerning parole eligibility can ... readily determine the legal error which is the basis for the postconviction claim.... [T]he claim of misadvice does not depend on “facts” that “could not have been ascertained by the exercise of due diligence” and the [newly discovered evidence] exception in rule 3.850(b)(1) from the two-year time limitation on the filing of postconviction claims is therefore not applicable.

Id. at 1261 (citing Ey v. State, 982 So.2d 618 (Fla.2008), which involved the timeliness of a claim that counsel misadvised a defendant regarding the potential effect of his plea on a subsequent sentence imposed in another case). Here, Flint himself notes in his motion that any entitlement he may have had to basic or incentive gain time on the plea offer would have been pursuant to section 944.275, Florida Statutes (1991). As the postconviction court correctly pointed out in its order, “Publication of law and statutes of Florida give[s] citizens constructive notice of consequences of their actions.” See State v. Beasley, 580 So.2d 139, 142 (Fla.1991) (“[P]ublication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.”), cited in Ellis v. State, 762 So.2d 912 (Fla.2000).

“That, however, is not the end of the matter.” Singleton, 981 So.2d at 1261. In Singleton, despite concluding that the newly discovered evidence exception to rule 3.850(b)(l)’s two-year time limit did not apply to Singleton’s motion, this court deemed Singleton’s claim timely filed and remanded for the postconviction court to address it on the merits. The Singleton court noted that in a previous line of cases, this court had defined the triggering event for rule 3.850 claims of newly discovered evidence based on counsel’s misadvice regarding gain time as “when the authorities provided information to the defendant that belied the earlier advice of counsel.” 981 So.2d at 1261. Acknowledging that it was changing that definition, this court reasoned as follows:

In Ey, the court recognized that a rule contrary to the rule it was adopting had previously been applied by district courts. 982 So.2d at 625. On that basis, the court determined to “deem [Ey’s] motion timely filed as to [the misadvice] claim.” Id. Here, a similar circumstance exists, and Singleton’s claim is likewise deemed timely filed. See also Green [v. State], 944 So.2d [208, 219 (Fla.2006)] (stating that “in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today”).

Id. (some alteration in original).

Because Flint’s motion was pending at the time Ey was decided, we conclude that we must, as did this court in Singleton, deem Flint’s claim timely and remand with instructions for the postcon-viction court to address the claim on the merits. See also Chandler v. State, 1 So.3d 284, 284 (Fla. 2d DCA 2009) (“[U]n-der the law in effect when Chandler filed his motion ... this court would have found Chandler’s motion to be timely. Accordingly, under Ey, his motion should be deemed timely and considered on its merits.”).

As such, we reverse and remand for the postconviction court to reconsider Flint’s motion. On remand, the court shall either attach those portions of the record that conclusively refute Flint’s claim or hold an evidentiary hearing.

Reversed and remanded.

SILBERMAN and VILLANTI, JJ., Concur.


author: GERSTEN, C.J.

text:
    The STATE of Florida, Appellant, v. Abelardo SUAREZ, Appellee.
    No. 3D07-3342.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and William M. Bennett, Certified Legal Intern, for appellee.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   GERSTEN, C.J.

The State of Florida (“the State”) appeals an order dismissing criminal charges based on expired statute of limitations. We affirm.

The State charged Abelardo Suarez (“the defendant”) by information with third-degree grand theft and burglary of an unoccupied dwelling. Thereafter, the State issued a warrant for the defendant’s arrest while he was incarcerated in a federal prison located in Florida.

Shortly after he was released from federal prison, the statute of limitations on the defendant’s charges expired. Nonetheless, the State served the warrant on the defendant and arrested him. Subsequently, the defendant sought dismissal of the charges based on the expiration of the statute of limitations. The trial court dismissed the charges, and the State appealed.

The issue here, which appears to be one of first impression, is whether incarceration in a federal prison located within the state constitutes absence from the state for purposes of the statute of limitations period. Before proceeding further, we note that statutes of limitations are construed liberally in favor of the accused. See State v. King, 282 So.2d 162, 165 (Fla.1973); Mead v. State, 101 So.2d 373 (Fla.1958); Clements v. State, 979 So.2d 256 (Fla. 2d DCA 2007).

The State contends that the statute of limitations was tolled because the defendant’s federal imprisonment constituted an absence from the state even though he was physically located within the state. The defendant asserts that the statute of limitations was not tolled because he was incarcerated within the State of Florida. Thus, the defendant claims he was physically present and not absent from the State of Florida. We agree with the defendant.

A criminal prosecution commences “when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay.” § 775.15(5)(b), Fla. Stat. (2001). The indictment or information is executed when it is served on the defendant. State v. Fields, 505 So.2d 1336, 1337 (Fla.1987).

Both sections 775.15 and 812.035, Florida Statutes (2001), provide for tolling of the statutory time period during any time that the defendant is “continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.” Clearly, if the limitations period was not tolled while the defendant was in the federal prison in Florida, the statutes of limitations applicable to the defendant’s charges expired prior to service of the arrest warrant. See §§ 775.15, 812.035(10).

Here, the State argues that presence within the state means within the state’s jurisdiction. The statute, however, refers to place of abode or work within the state, which equates to a geographic location. Thus, the statute simply requires that a defendant be physically located within the state so that he or she may be served with process.

Additionally, the State conceded that it could have served the arrest warrant on the defendant at the federal prison where he was incarcerated. Further, any delay in actually bringing the defendant to trial would have been excused under the speedy trial rule. Fla. R. Crim. P. 3.190(3). Thus, there was no obstacle to serving the arrest warrant on the defendant within the limitations period and trying him upon his release from federal prison.

Under the circumstances, the trial court astutely dismissed the charges against the defendant because the State failed to serve process upon the defendant within a reasonable time as required under the statute of limitations. Accordingly, we affirm the judgment below.

Affirmed.


text:
    Willie D. WILSON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D08-6325.
    District Court of Appeal of Florida, First District.
    May 13, 2009.
    Willie D. Wilson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Willie D. Wilson seeks belated appeal from an order of the circuit court denying his petition for writ of mandamus. Because the proceedings below did not involve imposition of judgment and sentence or denial of a rule 3.800 or 3.850 motion, the remedy of belated appeal is unavailable and the petition must be denied. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999). Petitioner’s remedy, if any, lies with the circuit court. See Milord v. Fla. Parole Comm’n, 4 So.3d 762 (Fla. 1st DCA 2009)(Browning, J., concurring).

DENIED.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


author: COHEN, J.

text:
    DNA CENTER FOR NEUROLOGY AND REHABILITATION, Appellant, v. PROGRESSIVE AMERICAN INSURANCE CO., Appellee.
    No. 5D07-1878.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.

      Jason L. Harr, of Law Offices of Jason L. Harr, P.A., and Michael Olshefski, of Michael Olshefski, P.A., Daytona Beach, for Appellant.
    Douglas H. Stein, of Seipp & Flick, LLP, Miami, for Appellee.
   COHEN, J.

DNA Center for Neurology and Rehabilitation (hereinafter “DNA”) challenges the entry of summary judgment in favor of Progressive American Insurance Co. The propriety of the summary judgment will not be addressed because the trial court lacked jurisdiction to enter the order. Although neither party raised this issue before the trial court, or on appeal, this does not prevent us from addressing it. See Dep’t of Revenue v. Daystar Farms, Inc., 803 So.2d 892, 895 (Fla. 5th DCA 2002) (lack of subject matter jurisdiction may be raised sua sponte by an appellate court); see also 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994) (subject matter jurisdiction cannot be created by agreement, waiver, inadvertence, or a court’s exercise of power).

DNA’s amended complaint alleged it was seeking damages greater than $500, but less than $5000. The exhibits attached to the amended complaint appear to indicate the damages sought were less than $500. Instead of filing its amended complaint in county court, DNA filed it in circuit court. However, county courts have exclusive jurisdiction over actions in law not exceeding $15,000, unless the action is within the exclusive jurisdiction of the circuit court. § 34.01(l)(c), Fla. Stat. (2005). A suit for damages due to nonpayment of personal injury protection benefits is not within the exclusive jurisdiction of the circuit court. Consequently, the circuit court did not have subject matter jurisdiction over DNA’s suit and the summary judgment must be reversed and the case remanded for transfer to the county court.

REVERSED AND REMANDED.

GRIFFIN and LAWSON, JJ., concur.


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. Kenneth John HALPIN, Appellee.
    No. 5D08-2196.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellee.
   TORPY, J.

After suppressing evidence in this misdemeanor prosecution for alleged lewd conduct, the county court certified a question to us regarding the propriety of its ruling. We accept jurisdiction and rephrase the question as follows:

Whether this Court’s decision in Ward v. State, 636 So.2d 68 (Fla. 5th DCA 1994), compels the suppression of evidence resulting from a police officer’s observations of a defendant in a locked public restroom stall, when the defendant first makes non-verbal gestures inviting the officer to participate in lewd acts and the officer is able to observe the defendant through a crack in the stall without peering through the crack.

We answer the question in the negative, thereby distinguishing our decision in Ward.

Based on information received over the internet advertising a particular public restroom as a “hot spot” for lewd activity, Captain Gardner entered the restroom and occupied one of the stalls for the purpose of arresting would-be violators. Soon thereafter, Appellee entered the adjoining stall and began exhibiting non-verbal signs, which Captain Gardner, through his considerable expertise in these types of investigations, recognized as attempts to invite him to engage in lewd activity. These actions included clearing his throat, sniffing and coughing, breathing heavily, repeatedly raising and lowering his zipper, tapping his foot and attempting to look under the partition. In response, Captain Gardner exited his stall and stood outside Appellee’s stall, whereupon he could see Appellee masturbating through the one and one-half inch void next to the stall door. When Appellee saw Captain Gardner looking, he opened the stall door inviting him inside. A discussion ensued suggesting that Appellee was inviting Captain Gardner to engage in lewd acts. Captain Gardner then arrested Appellee.

By pretrial motion, Appellee sought to suppress Captain Gardner’s observations of him in the stall, including the observation of Appellee masturbating. The county court heard the evidence and arguments and concluded that it was compelled to suppress the evidence under our decision in Ward. In doing so, the county court interpreted Ward to conclude that a locked public toilet is a place where an individual has an expectation of privacy under all circumstances, thereby precluding police intrusion, absent probable cause to arrest. We think the judge misinterpreted Ward.

In Ward, a police officer stood close to a public bathroom stall and “peer[ed]” through a crack into the stall where he saw the defendant masturbating. Under those facts, we held that the officer’s actions constituted an unlawful intrusion into private space in violation of the Fourth Amendment. In so holding, we distinguished Moore v. State, 355 So.2d 1219 (Fla. 1st DCA 1978), because, in Moore, the officer did not have to “peep” to see into the stall through the crack. This case is like Moore, not Ward.

Ward is also distinguishable because, there, the defendant had not manifested any offer to commit a lewd act, as is the case here. “[T]he Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, an individual claiming the protection of the Fourth Amendment must exhibit an expectation of privacy, both subjective and one that society views as reasonable. Here, Appellee did not exhibit an expectation of privacy because he affirmatively invited the intrusion through his non-verbal invitations.

Accordingly, the order granting Appel-lee’s motion to suppress is REVERSED.

PALMER, C.J., and GRIFFIN, J., concur.

      . The trial court accepted Captain Gardner's interpretation of these gestures as reasonably based upon his peculiar expertise. This finding is not challenged on appeal.


author: BROWNING, J.

text:
    Daniel Aaron TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1228.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    Rehearing Denied July 2, 2009.

      Jeffrey P. Whitton, Panama City, for Appellant.
    Bill McCollum, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Daniel A. Taylor (Appellant) was convicted of trafficking in cannabis (marijuana) in an amount in excess of 25 pounds, in violation of section 893.135(l)(a)l., Florida Statutes (2006), and was sentenced to 10 years’ incarceration (with a 3-year mandatory minimum term), to be followed by 10 years’ probation. He contends that the trial court should have granted his motion for judgment of acquittal (JOA) due to the lack of evidence establishing Appellant’s constructive possession of the cannabis, which was packaged in “bricks” in a large grocery bag located inside the vehicle between Appellant and his co-defendant. We affirm.

“We review de novo the trial court’s denial of a motion for JOA, to determine solely whether the evidence is legally sufficient.” Robinson v. State, 936 So.2d 1164, 1165 (Fla. 1st DCA 2006); see Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001) (en banc). In reviewing the denial of the motion, we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party. See Williams v. State, 967 So.2d 735, 755 (Fla.2007); State v. Ling, 906 So.2d 1231, 1233-34 (Fla. 1st DCA 2005); State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999).

Factual Background

The evidence demonstrated that around 6:00-7:00 P.M. on December 18, 2006, Appellant was driving a vehicle owned by Mr. Griffin, who was his passenger and co-defendant. Deputy Culbreath, who was on patrol in an unmarked Chevrolet Tahoe, observed the vehicle run through a stop sign. The deputy engaged his blue lights to effect a traffic stop, although Appellant continued driving 400 or 500 yards and made a U-turn into a restaurant parking lot, despite the availability of ample, closer parking areas on the same side of the road along which the vehicle originally was heading. The vehicle had very dark, tinted windows. When Appellant and his passenger started to exit the vehicle, Deputy Culbreath asked the passenger to remain inside for safety reasons. As Appellant and the deputy stood at the rear of the vehicle, Appellant acknowledged not having his driver’s license with him. While the deputy asked routine questions and processed the traffic citation, he noticed certain “criminal indicators” that, in his experience, suggested that criminal activity was afoot. Specifically, Appellant seemed scared or excessively nervous for someone involved in a mere traffic stop. He was breathing fast, his carotid artery was pounding, and his face was twitching. Appellant was sweating profusely on a December evening. Appellant explained that he had been sick; he attributed his nervous behavior to taking antibiotics. The deputy assured Appellant that, as a courtesy to a fellow Washington County resident, he would receive only a warning citation.

Meanwhile, the passenger was questioned about certain details demonstrating his ownership of the vehicle. Deputy Cul-breath was trained to distinguish between the odors of fresh, raw marijuana and burnt marijuana. While standing outside the passenger’s side of the vehicle, the deputy detected the unmistakable odor of raw marijuana wafting from inside. He asked the passenger to exit the vehicle. Next, Deputy Culbreath read their rights to Appellant and the passenger pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After issuing the warning citation, Deputy Culbreath aimed his flashlight through the passenger’s window and saw, in plain view, a small, clear ziplock baggie of marijuana by the receptacle for the passenger’s seatbelt. The vehicle had bucket seats and a console. The deputy opened the passenger’s door, retrieved the baggie, and showed it to the two men. Appellant and the passenger were placed alone in the back seats of separate patrol vehicles.

Renewing his search of the interior of the vehicle, Deputy Culbreath observed a large, plain brown paper bag, the bottom of which was located on the back seat. The bag was leaning forward; it was placed so that its top was between, and extremely close to, the front seats, if not actually touching them. The top of the bag was only partially closed. Inside the grocery bag was a black plastic bag, inside which the deputy found six bundles or bricks of marijuana wrapped in newspaper and duct-taped. The contraband was secured and turned over to the evidence unit of the Washington County Sheriffs Office, which forwarded it to the F.D.L.E. for examination and analysis. The total weight of the six marijuana bricks, without the packaging, is 29.2 pounds. The deputy found a significant amount of rubber-banded money in the door handle on the passenger’s side and money on his person.

After the arrest of Appellant and the passenger/owner of the vehicle, Deputy Culbreath arranged for the retrieval of the in-car VHS camera tape from the patrol vehicle in which Appellant had been placed. The tape from Deputy Smith’s patrol car included conversations made on his cell phone by Appellant, apparently unaware that his voice was being recorded by a covert microphone in the back seat. During his telephone conversation, Appellant told a friend, Rachel, that “somebody set us up.” Later, speaking to an unidentified person, Appellant said over the phone: “[H]ey dude, I’m busted.” Next, he commented: “Listen, daddy set me up. Daddy. They got us with 30 pounds, I swear to God.” Apparently talking to his mother on the cell phone, Appellant remarked:

Momma, I got set up by daddy. Daddy set me up. I’m in the back of the law car. He had 30 pounds, momma, he was there. Yeah. Yeah, he did momma. I’m in the back of a cop car. [inaudible] No, momma, now, listen. What? I’m [expletive]. Daddy set me — daddy set me up momma, I swear cause he rode up behind us whenever we was leaving out. [inaudible] Yeah, he did and it was an illegal pull over, I know, [inaudible] All right, mom, forget it. That’s a lie. Oh, so how did you know all that? Thank you. Tell him I said, thank you. He was over there where I just got it from.

No part of the other half of the conversations was audible.

Law

According to the standard jury instruction, to prove the crime of “trafficking in cannabis,” the State had to prove the following elements beyond a reasonable doubt:

1. Defendant knowingly sold, purchased, manufactured, delivered, brought into Florida, or possessed a certain substance.
2. The substance was cannabis.
3. The quantity of the cannabis involved was in excess of 25 pounds or 300 or more of cannabis plants.
4. Defendant knew that the substance was cannabis.

Fla. Std. Jury Instr. (Crim.) 25.9 (2007).

Proof of possession of a controlled substance may be actual or constructive. § 893.13(6)(a), Fla. Stat. (2006); Reynolds v. State, 983 So.2d 1192, 1194 (Fla. 3d DCA 2008); Robinson, 936 So.2d at 1166. Because the State did not prove that Appellant had actual possession of the cannabis, and the cannabis in the grocery bag was not in plain view, the State had to establish constructive possession. Id.; Green v. State, 667 So.2d 208, 211 (Fla. 2d DCA 1995). “Proof based entirely on circumstantial evidence can be sufficient to sustain a conviction in Florida .... ” Orme v. State, 677 So.2d 258, 261 (Fla.1996). However, “[t]he mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the entire amount of contraband found upon a search .... ” Mitchell v. State, 958 So.2d 496, 500 (Fla. 4th DCA 2007); Robinson v. State, 975 So.2d 593, 595 (Fla. 2d DCA 2008); see Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007); Hill v. State, 873 So.2d 491, 493 (Fla. 1st DCA 2004).

To prove constructive possession of the 29.2 pounds of cannabis, the State had to establish that Appellant knew of the presence of the contraband on or about his premises and had the ability to maintain dominion and control over it. § 893.101(1)-(2), Fla. Stat. (2006) (eliminating the defendant’s knowledge of the illicit nature of a controlled substance as an element of the offense the State is required to prove, and designating the lack of such knowledge as an affirmative defense to the offenses in the chapter); Brown v. State, 428 So.2d 250, 252 (Fla.1983); Norman v. State, 826 So.2d 440, 440-41 n. 2 (Fla. 1st DCA 2002).

Appellant, who was the driver, jointly possessed the premises, i.e., the interior of the vehicle, with the owner/passenger. If the site where the contraband is found is in joint, rather than exclusive, possession, a defendant’s knowledge of the contraband’s presence and his or her ability to control it cannot be inferred merely from the defendant’s proximity to the contraband. Brown, 428 So.2d at 252; Lindsey v. State, 793 So.2d 1165, 1167 (Fla. 1st DCA 2001); Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999); Walker v. State, 741 So.2d 1144, 1145-46 (Fla. 4th DCA 1999) (concluding that officer lacked probable cause to arrest defendant for constructive possession of a firearm by a convicted felon, based merely on defendant’s proximity to a closed bag lying in the middle of the back seat and containing the gun, where the car had multiple occupants). Instead, knowledge and control must be established by independent proof. Hill, 873 So.2d at 493; Earle, 745 So.2d at 1090; Green, 667 So.2d at 211.

Such proof “may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.” Robinson, 936 So.2d at 1167 (quoting Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981)). Such proof can include the defendant’s incriminating statements or actions or other circumstances allowing a lawful inference of his knowledge of the presence of the controlled substance on the premises. Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976) (concluding that evidence in “constructive possession” case was insufficient to present a jury question on the issue of defendant’s knowledge of the presence of marijuana close to him inside a jointly occupied automobile, where the car was not defendant’s, individuals other than defendant had been in the car shortly before defendant borrowed it, a pipe was found on the console between bucket seats, two “roaches” and a “roach clip” were found in the ashtray, and the odor of marijuana emanated from the interior).

In Robinson, 936 So.2d at 1164, we recognized that wholly “circumstantial evidence” cases invoke a special rule:

When a case is based solely on circumstantial evidence, a special standard of review of the sufficiency of the evidence applies. The evidence must be inconsistent with any reasonable hypothesis of innocence for the conviction to be sustained.

Id. at 1166; see State v. Law, 559 So.2d 187, 188 (Fla.1989); Green, 667 So.2d at 211; Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975). Such cases include a corollary consideration:

[T]he State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant’s theory of events.

Robinson, 936 So.2d at 1166; see Law, 559 So.2d at 189. If the State introduces such evidence, then the jury must decide whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Robinson, 936 So.2d at 1166.

Appellant’s theory of defense was that he had driven the owner/passenger’s vehicle because the owner was “about lit” and unable to drive safely. Appellant’s counsel acknowledges on appeal that Appellant may have known of the presence of the smaller amount of cannabis found in the plastic baggie. On the other hand, Appellant testified that he had been unaware of the presence of the significantly larger amount of cannabis in the grocery bag until the traffic stop, when the passenger/owner of the vehicle unexpectedly informed him of the large amount of contraband shortly before the deputy questioned the two men. In fact, Appellant testified that the grocery bag was not there when he got into the car to drive, for he would have seen it. To challenge Appellant’s hypothesis of innocence, the State presented evidence that a very strong odor of raw cannabis was emanating from the vehicle when the deputy stepped over to the passenger’s side to question the owner. Additionally, the State relied on the audiotape of Appellant’s cell phone conversations made as he sat in the back seat of the patrol vehicle after being arrested and receiving his Miranda rights: specifically, the incriminating portions of the tape indicating “[t]hey got us with 30 pounds.”

Taken in a light most favorable to the State, the evidence established, first, that Appellant knew of the presence of the contraband in the large bag. Second, the State presented evidence that Appellant had the ability to maintain dominion and control over the large grocery bag that was partially open and was leaning toward the space between the bucket seats where Appellant and the passenger were seated. Deputy Culbreath testified that the bag nearly would have touched the two men, although the bottom of the bag was on the back seat of the vehicle. The odor of raw marijuana emanating from inside was obvious, even from the deputy’s position outside the vehicle. It is undisputed that the substance wrapped in a plastic bag inside the big grocery bag is cannabis. The State proved that the contraband in the large bag weighs 29.2 pounds. The fourth element in the current standard jury instruction, which was read to the jury with the State’s approval, required the State to prove that Appellant knew that the substance contained in the large grocery bag is cannabis. In 2002, the Florida Legislature eliminated this fourth element as a requirement for a conviction for trafficking in cannabis. § 893.101, Fla. Stat. (2006); Person v. State, 950 So.2d 1270, 1272 n. 1 (Fla. 2d DCA 2007); Norman, 826 So.2d at 440-41 n. 2. Given the evidence that the strong, distinct odor of raw marijuana was pervasive in the interior when the deputy approached the passenger’s side of the vehicle, in addition to certain statements made in his cell phone conversation allowing a reasonable inference that Appellant had known all along that “they” were traveling with 30 pounds of marijuana, we conclude that the State introduced competent evidence inconsistent with the theory of defense. State v. Holland, 975 So.2d 595 (Fla. 2d DCA 2008); Jean v. State, 638 So.2d 995, 996-97 (Fla. 4th DCA 1994) (concluding, in appeal of prosecution for trafficking in cocaine resulting in conviction for attempted possession of cocaine, that circumstantial evidence was sufficient to show defendant’s dominion and control over cocaine in a non-residential duplex apartment with multiple persons present, where defendant was found sitting on a couch, the floor of the room was strewn with approximately 200 cocaine rocks, windows were barred and a grated metal interior door was padlocked, and the premises were ill-suited for casual social gatherings, so that State presented evidence inconsistent with the theory that defendant simply was a visitor).

This scenario is distinguishable from the circumstances in Green, 667 So.2d at 208, in which the presence of a spicy odor within a jointly occupied rental car was insufficient to allow a reasonable inference that the defendant knew the source of the odor was cocaine wrapped in onions hidden in a secret compartment over the vehicle’s glove box, where even the experienced law-enforcement officers were unable to make a conclusive identification of the source of the odor. Unlike Appellant’s case, Hively, 336 So.2d at 127, lacked the independent proof of the defendant’s knowledge of the presence of cannabis in the jointly occupied automobile. The other cases cited by Appellant involving possession of cocaine lack any evidence of an identifiable odor of a controlled substance. See, e.g., Culver v. State, 990 So.2d 1206 (Fla. 2d DCA 2008); Lester v. State, 891 So.2d 1219 (Fla. 2d DCA 2005); Hill v. State, 736 So.2d 133 (Fla. 1st DCA 1999); see also Earle, 745 So.2d at 1091.

Because the State proved all the essential elements of the charged crime, the trial court correctly denied the motion for JOA and sent this case to the jury to resolve the conflicts in the evidence. Accordingly, we AFFIRM Appellant’s conviction and sentence for trafficking in cannabis in an amount in excess of 25 pounds.

HAWKES, C.J., and VAN NORTWICK, J., concur.


author: SILBERMAN, Judge.

text:
    Sam Jerome WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-888.
    District Court of Appeal of Florida, Second District.
    May 20, 2009.
   SILBERMAN, Judge.

Sam Jerome Wilson appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because Wilson’s motion was facially insufficient and because he may be able to correct the deficiency, we reverse the order denying his motion and remand for entry of an order striking the motion, thereby affording him an opportunity to amend it if he is able to do so.

Wilson entered a no contest plea to charges of sale and possession of cocaine. In his sworn motion for postconviction relief, he alleged that his trial counsel was ineffective for failing to file a motion to compel disclosure of the identity of the confidential informant (Cl). Wilson claimed that he did not sell cocaine to anyone, that he was not present during the drug transaction, and that the Cl would have assisted in establishing a misidentifi-cation defense. He stated that he entered his no contest plea after counsel told him that there were no legal grounds to file the motion and that if he lost at trial rather than accepting the State’s plea offer of 34.5 months in prison, he would be sentenced to 30 years’ imprisonment.

The postconviction court concluded that Wilson’s claim was too speculative because Wilson did not purport to know the identity of the Cl or the substance of the Cl’s testimony. The court observed that Wilson was speculating that the Cl possessed favorable testimony that would have prompted Wilson to proceed to trial with a misidentification defense rather than entering his plea.

Florida Rule of Criminal Procedure 3.220(g)(2) provides that “[d]islosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” In Miller v. State, 729 So.2d 417, 419 (Fla. 4th DCA 1999) (citations omitted), the Fourth District stated as follows:

Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant’s testimony is material and helpful. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.

If the defendant meets his “initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense.” State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997). Sworn allegations supporting a misidentification defense for which the Cl’s testimony would be helpful are sufficient to make the initial showing requiring production of the Cl for an in camera hearing. Miller, 729 So.2d at 420; Roberts, 686 So.2d at 722-23; see also McCray v. State, 730 So.2d 817, 817 (Fla. 2d DCA 1999) (involving a sworn motion that alleged the Cl knew the defendant, the Cl was present when the crime occurred, the undercover officer misidentified the defendant as the perpetrator of the crime, the Cl’s testimony was essential to a misiden-tification defense, and the defendant was not involved in the crime).

In his sworn motion for postconviction relief, Wilson alleged a colorable misidenti-fication defense, stating that he did not sell cocaine to anyone and that he was not present during the underlying transaction. See Miller, 729 So.2d at 418-20. Further, he alleged that the Cl’s testimony would be helpful to establish that he was not present during the drug transaction. However, Wilson did not allege, and our record does not reveal, whether the Cl was present at the time of the drug transaction, what role the Cl played in the transaction, or how the Cl’s testimony would help establish that Wilson was not involved in or present at the transaction.

Our limited record does not establish that Wilson would be unable to allege a facially sufficient claim for postconvietion relief. Wilson may be able to allege the Cl’s involvement in the drug transaction and how that involvement would assist Wilson in establishing a misidentification defense. If Wilson makes such allegations, the postconvietion court could then determine whether trial counsel’s failure to move for disclosure of the Cl’s identity was deficient performance and whether Wilson was prejudiced by any such deficient performance.

Because the motion was facially insufficient and because Wilson may be able to amend the motion to state a facially sufficient claim, the postconvietion court should have stricken the motion, thereby allowing Wilson an opportunity to amend it. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). We note that the two-year time period in which Wilson may file a proper motion for postconvietion relief has not yet expired. See Fla. R.Crim. P. 3.850(b). Thus, if Wilson timely files an amended motion correcting the deficiencies, it shall not be treated as successive under rule 3.850(f) unless the postconviction court finds that Wilson’s conduct constitutes an abuse of procedure as described in that rule. Accordingly, we reverse the order denying Wilson’s motion and remand for entry of an order striking the motion.

Reversed and remanded.

FULMER and WHATLEY, JJ., Concur.

      . Wilson states in his motion that he previously filed a rule 3.850 motion but that “it was returned” and “was facially insufficient.” Wilson does not refer to any order that was entered as to that motion, and the postconviction court made no reference to any prior filing by Wilson. Our record does not reflect what was contained in that earlier motion, and it is unclear whether that motion was actually accepted for filing or was returned without being filed. Further, it is unclear whether Wilson has actually been afforded an opportunity to correct the deficiencies discussed in this opinion.


author: GERBER, J.

text:
    Leon Jay ABRAM, M.D., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 4D08-1965.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.

      Rose Marie Antonacci and K. Calvin As-rani of Michaud, Mittelmark, Antonacci & Marowitz, P.A., Boca Raton, for appellant.
    Charlyne “Khai” Patterson, Assistant General Counsel, Tallahassee, for appellee.
   GERBER, J.

This appeal presents the question of whether a statute allowing the Board of Medicine to discipline a physician who performs a wrong-site procedure violates the physician’s right to due process by allegedly including an irrebuttable presumption that performing a wrong-site procedure falls below the standard of care. Finding no such presumption or constitutional violation, we affirm.

The Department of Health filed an administrative complaint with the Board of Medicine against orthopedic surgeon Leon Jay Abram, M.D., alleging that Abram, by performing a surgical procedure on a patient’s T3 vertebra level rather than the intended T4 level, violated section 456.072(l)(aa), Florida Statutes (2004) (emphasis added):

(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(aa) Performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition ....

Abram filed an election of rights indicating that he did not dispute the Department’s allegations of fact, but requested an informal hearing before the Board to submit mitigation evidence. Although the election of rights form gave Abram the opportunity to dispute the allegations of fact and request a formal hearing before an administrative law judge, Abram did not exercise that option.

The Department scheduled a hearing before the Board and provided notice thereof to Abram. At the hearing, the Board adopted the Department’s allegations as the findings of fact. The Board then provided Abram an opportunity to be heard through counsel concerning legal argument or mitigating evidence. Abram’s counsel argued that Abram did not deviate from the standard of care, yet the Department was seeking to discipline him. Abram’s counsel therefore asked the Board to exercise its discretion and dismiss the charges. The Department’s counsel responded that it had not charged Abram with a standard of care violation, but rather a wrong-site procedure violation. Abram’s counsel replied that disciplining Abram for a wrong-site procedure while he was practicing within the standard of care essentially would impose strict liability against him.

The Board voted to accept the administrative complaint’s legal conclusion that Abram violated section 456.072(l)(aa). One of the Board members then asked whether the Board could accept the legal conclusion and still dismiss the case based on mitigating factors. The chair responded that the Board could consider those factors during the penalty phase. The Board’s counsel added that the Board could accept the findings of fact and conclusions of law but not impose any penalty. However, the Board’s counsel added:

You know, this whole issue is an interesting issue, and it may be an issue that may be taken up on appeal someday and an appellate court may tell us otherwise. You know, I think at this point in time, the way the law is written, I think you are obligated to find a wrong, you know, a wrong site procedure occurred under these circumstances, and again, you know, an appellate court may say someday, you’re wrong, you have to look at the standard of care issue also. And if that day comes, then I think at that point in time it’d be appropriate to do it. But, in these type [sic] of case right now, you know, what type of penalty you want, being that this is an informal proceeding you have to look at you’re [sic] disciplinary guidelines and see what your disciplinary guidelines say for the minimum penalty.

One of the Board members then moved for a letter of concern and costs, which motion another member amended to add a one-hour lecture. The Board voted to approve the motion.

The Board entered a final order adopting the administrative complaint as the Board’s findings of fact and conclusions of law and held that the violation warranted disciplinary action. The order also noted several mitigating circumstances, including that Abram immediately notified the patient and the patient’s family of the wrong-site procedure, the patient did not suffer any harm, Abram self-reported the incident to the hospital, and the patient’s anatomy complicated the procedure. The order directed that the Board issue a letter of concern, that Abram present a one-hour lecture to the hospital medical staff on wrong site surgery, and that Abram pay the Department’s costs. Abram appealed the final order to this court.

“The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action.” Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002). As the Legislature delegated to the Board the power to enforce section 456.072(l)(aa), we are required to be highly deferential to the Board’s interpretation of such statute. Id.; see also Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002) (“An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference.”). “However, a court need not defer to an agency’s construction or application of a statute if special agency expertise is not required, or if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute.” Fla. Hosp., 823 So.2d at 848. Without such deference, “[t]he courts of this state have consistently held that judicial interpretation of statutes and determinations concerning the constitutionality of statutes are pure questions of law subject to the de novo standard of review.” State v. Sigler, 967 So.2d 835, 841 (Fla.2007).

Below and in his initial brief, Abram acknowledged the Board’s interpretation that section 456.072(l)(aa) essentially creates strict liability for performing a wrong-site procedure. However, Abram argued that the Board’s interpretation was unconstitutional as applied to him because it denied him due process. Specifically, Abram claimed that the statute raises an irrebuttable presumption that, because Abram performed a wrong-site procedure, he deserves to be disciplined regardless of whether his actions met the standard of care. In response, the Department contends that interpreting the statute as requiring a standard of care element, or as including a standard of care presumption, would conflict with the statute’s plain meaning. The Department adds that, even if the statute includes an irrebuttable presumption that a wrong-site procedure falls below the standard of care, the statute remains constitutional as applied.

We agree with the Department that section 456.072(l)(aa)’s plain meaning does not include a presumption that a wrong-site procedure falls below the standard of care. The statute makes no mention of the standard of care, and many of the thirty-plus actions constituting section 456.072(1) violations have nothing to do with a patient’s care. Abram has not cited any authority supporting his assumption that the Legislature included a wrong-site procedure as a section 456.072 violation because it presumed a wrong-site procedure falls below the standard of care.

Even if section 456.072(l)(aa) included an irrebuttable presumption that a wrong-site procedure falls below the standard of care, the statute would remain constitutional as applied. “The constitutionality of a conclusive presumption under the due process clause is measured by determining (1) whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid; (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption.” Hall v. Recchi Am., Inc., 671 So.2d 197, 200 (Fla. 1st DCA 1996). As to the first and second prongs, the concern of the Legislature regarding wrong-site procedures is reasonable, and there is a reasonable basis to conclude that the statute would deter wrong-site procedures. As to the third prong, the expense and other difficulties of individual determinations regarding the standard of care would justify a conclusive presumption. Medical negligence trials often last several days, if not weeks, and necessarily include both sides presenting costly “standard of care” experts. The possibility of the Department, a state agency, being required to expend limited taxpayer resources in every wrong-site procedure case to prove a physician fell below the standard of care would justify a conclusive presumption (if one existed).

In deciding this case, we would be remiss if we did not express our reservations regarding the origin from which this case has arisen, that is, the Board’s interpretation that section 456.072(l)(aa) creates strict liability for performing a wrong-site procedure, and Abram’s acknowledgement of that interpretation as the springboard for his due process argument. The statute’s language, italicized below, plainly suggests a different interpretation. Subsection (1) states: “The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:.... ” Subsection (2) states, in pertinent part: “When the board ... finds any person guilty of the grounds set forth in subsection (1) ... it may enter an order imposing one or more of the following penalties:.... ” Below and in their briefs, the parties wholly have ignored the Legislature’s use of the permissive word “may” in subsection (1) regarding the taking of disciplinary actions, and in subsection (2) regarding the imposition of penalties. If the Board had construed the statute as permissive rather than mandatory, the outcome of this case may have been different. See Ayala v. Dep’t of Prof. Regulation, 478 So.2d 1116, 1117-18 (Fla. 1st DCA 1985) (construing statute as permissive rather than mandatory required Board of Medical Examiners to consider evidence in deciding appellant’s guilt or innocence of disciplinary charges).

Because Abram did not contest the Board’s interpretation of the statutory language below or in his initial brief, that issue is not before us today. We raise the issue at this time to prevent readers of this opinion from assuming we agree with the premise underlying this case that section 456.072(l)(aa) creates strict liability. That issue remains for another day.

Affirmed.

FARMER and HAZOURI, JJ., concur.


author: ROTHENBERG, J.

text:
    K.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2473.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

K.W. appeals from an order withholding adjudication of delinquency and placing him on probation after the trial court found that K.W. committed battery and first degree petit theft. Because the State failed to establish that the market value of the stolen property exceeded $100, we reverse and remand with instructions to reduce the offense level from first degree petit theft to second degree petit theft.

The two victims in this case, Erik Johan-nessen (“Johannessen”) and his girlfriend (“the girlfriend”), were spending a day on Miami Beach during their vacation. The couple left their beach bag near their rented chairs while they swam in the ocean. Upon emerging from the water, Johannes-sen immediately noticed that the beach bag — containing two cell phones, two iPod music players, a disposable camera, a wallet, and a purse — was missing.

Johannessen ran up the sand dune toward the street in search of the missing bag. There, on the far side of the sand dune, he saw two juveniles carrying the bag. The juveniles set the bag down, two more juveniles joined them, and all four began to rifle through the bag. When the group noticed Johannessen’s presence, they scattered. Johannessen pursued, caught K.W., and grabbed his arm. K.W. pleaded, “I didn’t take your phone,” and held out the girlfriend’s cell phone. KW. attempted to escape. However, with the help of two others, Johannessen restrained K.W. until the police arrived.

The State charged K.W. with third degree grand theft on the theory that K.W. was responsible for the theft of the contents of the entire bag. However, at the adjudicatory hearing, and on KW.’s motion for judgment of acquittal, the trial court found that the State failed to prove that K.W. had any involvement with the theft of the bag or its contents, other than the girlfriend’s cell phone, which he had in his possession. Although the trial court found that the State failed to establish that the cell phone’s value exceeded $300, the trial court found that there was sufficient evidence from which the trial court could conclude that the cell phone was worth in excess of $100. Thus, the trial court found that K.W. committed a first degree petit theft.

On appeal, K.W. argues that given the lack of evidence as to the cell phone’s value, the trial court erred in finding that it was worth in excess of $100, and therefore, he can be adjudicated delinquent of no more than a second degree petit theft. We agree.

Under section 812.014(2)(e), Florida Statutes (2007), to establish the commission of a first degree petit theft, the State was required to prove that the stolen property’s value exceeded $100. Generally, and no exception is applicable here, “value means fair market value at the time of the theft.” Bloodsaw v. State, 994 So.2d 378, 379 (Fla. 3d DCA 2008) (citing § 812.012(10)(a)(1), Fla. Stat. (2003)). Where a witness has personal knowledge regarding the stolen property, the value of the property may be established by direct testimony of its fair market value (usually by the owner), or alternatively, by establishing the cost minus depreciation, taking into account the stolen property’s original cost, the manner in which it was used, its condition and quality, and the percentage by which its value has depreciated. Bloodsaw, 994 So.2d at 380; see also Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from on other grounds, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Mansfield v. State, 954 So.2d 74, 76-77 (Fla. 4th DCA 2007).

At the instant adjudicatory hearing, Jo-hannessen testified, but his girlfriend, who owned the cell phone in question, did not, and Johannessen was unable to provide direct testimony establishing the cell phone’s fair market value. As to his personal knowledge of the value of his girlfriend’s cell phone, Johannessen testified that he did not know the cell phone’s purchase price, but that it was silver, it had a number of video/camera features, and it was a more expensive and “nicer” model than his cell phone, which cost him $250. Johannessen did not provide any testimony about the age of the cell phone, its quality, condition, or any depreciation to its value. Despite Johannessen’s inability to testify as to the cell phone’s value, the trial court determined that the cell phone’s value exceeded $100, based on Johannes-sen’s testimony and the trial court’s own life experiences.

We recognize that pursuant to section 812.012(10)(b), Florida Statutes (2007), even where the value of the stolen property cannot be ascertained, “the trier of fact may find the value to be not less than a certain amount.” See Jackson v. State, 413 So.2d 112, 114 (Fla. 2d DCA 1982) (holding that where the nature of stolen property indicates an incontrovertible minimum value, the trier of fact may rely upon general knowledge to assess a minimum value, although no direct evidence is presented). However, such a discretionary assessment of value is permissible only in “those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.” Weatherspoon v. State, 419 So.2d 404, 405 (Fla. 2d DCA 1982). This is not such a case. Therefore, we conclude that the trial court erred in finding that the value of the girlfriend’s cell phone exceeded $100.

Accordingly, we reverse the trial court’s order insofar as it finds that K.W. committed first degree petit theft, and remand with instructions to reduce the level of the offense to petit theft in the second degree. Because the issue was not presented in this appeal, we affirm without comment that portion of the order finding that K.W. did commit a battery.

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

      . The battery charge is not involved in the instant appeal.


author: SALTER, J.

text:
    NACK HOLDINGS, LLC, Appellant, v. Stuart KALB, Trustee, Appellee.
    No. 3D08-1466.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Rehearing and Rehearing En Banc Denied July 7, 2009.

      Robert H. Cooper, Aventura; White & Case and Raoul G. Cantero, III, Miami, for appellant.
    Martin A. Feigenbaum, Surfside, for ap-pellee.
    Before GERSTEN, C.J., and CORTIÑAS and SALTER, JJ.
   SALTER, J.

Nack Holdings, LLC, appeals four circuit court orders collectively determining the enforceability of an amended final judgment of foreclosure entered in August 2003. In a complex series of loan and real estate transactions worthy of analysis by Professor Boyer or inclusion in a law school final exam, we conclude that the appellee and its predecessors in interest attempted to circumvent a controlling Florida statute. As a matter of law, therefore, we must reverse the orders below and remand the matter back to the trial court for the entry of a recordable final judgment declaring the amended judgment satisfied as of September 24, 2003, when it was paid.

Keeping It Simple — Not

The underlying case began simply enough. Two individuals loaned money to ZPO, Inc., secured by two vacant commercial lots located along Collins Avenue in Miami Beach (the “Collins Lots”). When ZPO failed to repay the mortgage loan, the lenders foreclosed. They obtained a final judgment of foreclosure for $454,572.68 on October 25, 2002.

Before the property went to a foreclosure sale, however, the unsatisfied final judgment of foreclosure against ZPO was assigned to Florida Capital, LLC, and then re-entered as an amended final judgment of foreclosure reflecting Florida Capital as the plaintiff and ZPO as the mortgagor/defendant. That amended final judgment was then assigned to United Funding, LLC, in August of 2003.

To recap as of the end of August 2003, then, there was no mortgage on the Collins Lots, that mortgage having “merged” into the amended final judgment of foreclosure then held by United Funding. ZPO owned the Collins Lots, but subject to United Funding’s judgment lien. The amended final judgment, which was by then no longer subject to appeal, established a judgment debt of $531,305.92 as of June 24, 2003, with daily interest thereafter in the amount of $249.04.

At this point in the record, an organizational diagram would have been more helpful than a narrative. Judgment debtor ZPO was wholly owned by an individual (real estate developer Mucio Athayde) who also owned all of the stock of New Florida Holdings, Inc. (NFH), which in turn owned all of the stock of New Florida Properties, Inc. (NFP). NFP was in a Chapter 11 reorganization proceeding begun in 2002 in the U.S. Bankruptcy Court for the Southern District of Florida. In September 2003, United Funding (judgment creditor of ZPO and judgment lienholder as to the Collins Lots) loaned $2,600,000 to NFH in order to facilitate the NFP plan of reorganization and restructure other indebtedness. These seemingly-extraneous facts became relevant because of the written loan agreement among these parties.

Paragraph 5 of the loan agreement of September 24, 2003 addressed the use of certain proceeds of United Funding’s loan to satisfy the ZPO indebtedness to United Funding:

5. [NFH] and [Athayde] represent that from the $2,600,000 proceeds they will satisfy the existing ZPO, Inc. loan from FL Capital, LLC, which was assigned to United Funding LLC, however, the existing mortgage on said property, assigned to United Funding, LLC shall not be satisfied of record until [United Funding’s] loans have been paid in full as the ZPO, Inc., property is serving as additional collateral for said loans.

This single, meandering sentence spawned the trial and appellate proceedings that have brought us here. The appellant (also acquiring its rights through various assignments), Nack Holdings, became the fee owner of the Collins Lots in 2004 and, after investigation, began to question whether the United Funding judgment lien remained in force or had been satisfied. The appellee (assignee in 2007 of United Funding’s amended judgment of foreclosure on the Collins Lots) argues that Nack Holdings is a stranger to the 2003 loan terms, and that the parties to that loan agreement are the only witnesses with the right to prove the less-than-obvious intentions behind this provision. The trial court agreed with this rational argument, and we would ordinarily affirm because of the competent, substantial evidence in the record regarding those intentions. But there are some competing legal principles that mandate a reversal here.

Section 701.0k, Florida Statutes

Paragraph 5 of the loan agreement specifically acknowledged that the United Funding “loan” to ZPO would be “satisfied” from the $2,600,000 in proceeds, but went further to provide that the “existing mortgage” would not be “satisfied of record” unless and until United Funding was repaid in full on both the new loan and another loan made to NFP. For purposes of this analysis, we agree with the trial court’s determination (and the appellee’s contention) that United Funding has not yet received full payment on those loans. We construe references to the United Funding-ZPO “loan” and “existing mortgage” to be references to the amended final judgment of foreclosure because (as already noted) the note and mortgage merged into that amended judgment.

The closing statement for the $2,600,000 United Funding-NFH loan, also dated September 24, 2003, shows a $550,219.16 “charge” to the loan for “payment on ZPO, Inc. loan.” The settlement agent for the transaction acknowledged under oath that this amount was paid. The settlement agent also testified that the United Funding loan to NFH was “secured by the amended final judgment on the Collins lots” and other collateral.

While this seems to express an intention that the amended final judgment (with its lien over ZPO’s Collins Lots) was to collateralize the 2003 United Funding-NFH loan, this cannot be reconciled with two undisputed facts. First, United Funding owned the amended judgment said to stand as security for the loan made by United Funding. A lender does not pledge its own property to secure a loan made by that very lender. The appellee concedes that no new person or entity became the holder of the amended final judgment, and no instrument of transfer or pledge was executed.

Second, the proceeds of the new loan were either disbursed or credited to “pay” or “satisfy” the amended final judgment, in the language of the loan agreement and closing statement — the plan apparently was that the amended final judgment simply would not be satisfied “of record.” But any such plan contravenes a controlling Florida law. Section 701.04(1), Florida Statutes (2003), specifies that:

Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county.

(Emphasis added).

That provision does not have an exception for a judgment creditor who receives full payment of a judgment but wants to defer recordation of the satisfaction of judgment until a new loan is repaid at some indeterminate future time. It also imposes a mandatory duty that would seem to be for the benefit of all those having an interest in a piece of property, assuring that the real estate records will reflect outstanding debts rather than obligations already paid.

Finally, the attempt to use a judgment lien that has been paid as a device to secure a new loan is conceptually flawed. A mortgage used to secure a revolving line of credit contains special language confirming that it will secure advances, readvances after a partial payment or reduction of the balance to zero, and so forth until the agreement is terminated. A mortgage used to secure future advances will contain an express “future advances” provision consistent with section 697.04, Florida Statutes (2008), and will thereby confer on those advances the same date of record priority as the original mortgage.

In contrast, a foreclosure judgment is a judicial document ending the lender-borrower relationship and imposing the even less cordial status of judgment creditor and judgment debtor upon the parties. A court does not ordinarily authorize the parties to use the court’s judgment as a device to secure post-judgment loans. As creative and flexible as we may wish to allow contracting private parties to be in their agreements, those parties do not have the right to use judgments as another form of mortgage; only the court that issued a judgment may approve what sums are included in, and enforceable under, such an instrument. In this case, no court authorized the inclusion of United Funding’s new advances to NFH as a judgment debt.

The parties have raised additional arguments. Although we have carefully considered each of them, all are either moot in light of our application of the controlling statute or otherwise unpersuasive.

Conclusion

The concept of both paying and “not satisfying of record” a judgment lien is a kind of legal cognitive dissonance that cannot be resolved. The intention to contravene a controlling Florida statute, section 701.04(1), will not be given effect. The amended final judgment, having been paid, did not “collateralize” the post-judgment United Funding loan. Accordingly, we reverse and remand the case to the trial court to: (a) vacate the order re-setting foreclosure sale and the order denying the appellant’s motion for relief from judgment; and, (b) to grant the appellant’s motion for relief, determining that the amended final judgment dated August 5, 2003, and recorded August 11, 2003, was paid on September 24, 2003, and is therefore cancelled and satisfied of record.

Reversed and remanded.

      . The late Professor of Law Emeritus at the University of Miami School of Law, Ralph E. Boyer, B.A., LL.B., S.J.D., longtime author and editor of Florida Real Estate Transactions (Matthew Bender 1975).

      . This occurs as a matter of well-settled Florida law. The mortgage is merged into the judgment, is thereby extinguished, and “loses its identity.” Whitehurst v. Camp, 699 So.2d 679, 682 (Fla.1997) (quoting Gilpen v. Bower, 152 Fla. 733, 12 So.2d 884, 885 (1943)).

      . This apparently represents an agreed or pri- or express contractual interest rate based on the original loan terms, as the then-applicable post-judgment statutory interest on the judgment debt would have been approximately $87.33 per day.

      . The appellant argues that in-kind transfers of certain properties to United Funding as part of a 2007 bankruptcy settlement (and the accompanying releases) amounted to the “payment” of the $2,600,000 United Funding loan and all accrued interest. We need not reach the arguments regarding valuation of those properties in light of our conclusion that the amended final judgment of foreclosure on the Collins Lots was paid in full on September 24, 2003.

      . Consistent with the conclusion that the statute imposes a duty to the public at large rather than just to an affected judgment debt- or, section 701.05 provides that a creditor’s failure to record such a satisfaction, after payment and the passage of thirty days from a written demand, is a second degree misdemeanor.

      . Foreclosure judgments occasionally include a provision allowing additional amounts to be added to the lien for authorized disbursements by a lender as "costs" of preservation of the subject property between judgment and sale, but those are not the kinds of additional advances involved in this case.


author: DAMOORGJAN, J.

text:
    R.E., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2099.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGJAN, J.

The Appellant, R.E., appeals the trial court’s denial of his motion for judgment of dismissal on the charge of felony criminal mischief. We agree and reverse his conviction and sentence on this charge.

The manager of IMG Groves was called to the grove on the morning of February 29, 2008, because an unknown person or persons had trespassed on grove property, started up a fruit loader, and driven into a row of fruit trees, knocking the trees over.

The Appellant was charged with, among other things, felony criminal mischief. At the adjudication hearing, T.C., a co-defendant in the case, testified that he, the Appellant, and another person drove to the grove to hog hunt on the night the trees were destroyed. They did not have permission to go onto the property. After they finished hunting, they wanted to leave by a different way than they entered so they would not get caught. When they tried to leave, however, they noticed that there was a fruit loader blocking the path of their truck. T.C. started up the fruit loader and attempted to move it out of the way, but the gas pedal got stuck. T.C. did not know how to stop the fruit loader as it headed in the direction of a ditch, so he “took out some trees to try to stop the machine.” T.C. testified that he was the only one operating the fruit loader. At the conclusion of the State’s case, the Appellant moved for a judgment of dismissal on the criminal mischief charge, which the trial court denied.

The standard of review for a motion for judgment of dismissal is de novo. J.G. v. State, 915 So.2d 274, 276 (Fla. 4th DCA 2005). A motion for judgment of dismissal tests the legal sufficiency of the State’s evidence. J.P. v. State, 855 So.2d 1262, 1264 (Fla. 4th DCA 2003). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

“A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another .... ” § 806.13(1)(a), Fla. Stat. (2008). A defendant must possess the specific intent to damage the property of another to be found guilty. J.A. v. State, 684 So.2d 264, 265 (Fla. 4th DCA 1996); see also Sanders v. State, 950 So.2d 495, 497 (Fla. 4th DCA 2007).

The Appellant was charged with criminal mischief as an aider or abetter to T.C. In order to convict a defendant for a crime committed by another person, the State must prove that “(1) the defendant had a conscious intent that the criminal act be done and (2) the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person ... to actually commit the crime.” Ehrlich v. State, 742 So.2d 447, 450 (Fla. 4th DCA 1999). Mere knowledge of an offense is not enough, nor is mere presence at the scene of the offense. Hill v. State, 958 So.2d 549, 551 (Fla. 4th DCA 2007).

We reverse because the State did not present any evidence to show that the Appellant had the conscious intent for T.C. to drive the fruit loader into the trees. The evidence showed that the Appellant’s intent was for T.C. to move the fruit loader out of the way. This act, by itself, was not criminal mischief because it was not done with the specific intent to cause damage to the property of another. See J.A., 684 So.2d at 265. It was only after T.C. started the fruit loader and it malfunctioned that T.C. decided to run it into the trees. This evidence, in the light most favorable to the State, does not support a conviction for criminal mischief. Accordingly, we reverse the Appellant’s conviction and sentence on the criminal mischief charge.

Reversed.

POLEN and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    GEICO INDEMNITY INSURANCE COMPANY, a foreign for-profit corporation, Appellant, v. Laurie REED, as Personal Representative of the Estate of Barton Reed, Appellee.
    No. 4D08-575.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Caryn L. Bellus of Kubicki Draper, Miami, for appellant.

      Bard D. Roekenbach of Burlington & Roekenbach, P.A., and Michael S. Smith of Lesser, Lesser, Landy & Smith, PLLC, West Palm Beach, for appellee.
   STEVENSON, J.

GEICO Indemnity Insurance Company, the defendant below, appeals the trial court’s award of final summary judgment in favor of Laurie Reed, the personal representative of the Estate of Barton Reed. We reverse and remand because whether Barton Reed or his corporation, B & G Central Station Signals, Inc., owned the van involved in the fatal accident remains a genuine issue of material fact, removing this case from the purview of summary judgment.

Barton Reed died in a car accident caused by an uninsured/underinsured motorist. He had been driving a 1999 Ford van. His widow, Laurie Reed, filed a claim with GEICO for uninsured motorist benefits. GEICO denied her claim, explaining that the policy specifically excluded uninsured motorist coverage in this instance because Barton Reed owned the vehicle involved in the accident, but that vehicle was not insured by GEICO. See Gov’t Employees Ins. Co. v. Douglas, 654 So.2d 118 (Fla.1995) (approving the uninsured motorist benefits exclusion). Laurie Reed sought a declaratory judgment on the ground that B & G, not Barton Reed, owned the van.

Barton Reed was the president and sole shareholder of B & G, a security company he operated from his home. The 1999 Ford van was titled and registered in Barton Reed’s name alone. Generally, a name on a certificate of title to a motor vehicle creates a presumption of ownership. Johnson v. Sentry Ins., 510 So.2d 1219, 1220 (Fla. 5th DCA 1987). However, “[t]he name on the title is not the litmus test for determining who owns a vehicle for insurance purposes.” State Farm Mut. Auto. Ins. Co. v. Hartzog, 917 So.2d 363, 364-65 (Fla. 1st DCA 2005). Laurie Reed filed an affidavit explaining that she mistakenly titled the van in Barton Reed’s name, but it actually was used solely as a business vehicle by B & G. We conclude that a finder of fact should determine the credibility of Laurie Reed’s affidavit and whether it sufficiently rebuts the presumption of ownership.

Whether Laurie Reed is entitled to uninsured motorist benefits from GEICO depends on whether Barton Reed or B & G owned the 1999 Ford van. “ ‘If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’ ” Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA) (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004)), review denied, 969 So.2d 1018 (Fla.2007). We find the question of ownership in this case poses a genuine issue of material fact, so we reverse the order granting final summary judgment and remand for further proceedings.

Reversed and remanded.

POLEN and DAMOORGIAN, JJ., concur.