author: PER CURIAM. LUCAS, Judge,

text:
    STATE of Florida, Appellant, v. Kenneth TUMLINSON, Appellee.
    No. 2D15-1814.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2016.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

Because the trial court correctly applied section 92.665, Florida Statutes (2014), and this court’s holding in Geiger v. State, 907 So.2d 668 (Fla. 2d DCA 2005), we must affirm its order denying the State’s motion to admit statements made by defendant Kenneth Tumlinson.

Kenneth Tumlinson was charged with lewd or lascivious molestation of a child under twelve years of age after law enforcement discovered and then questioned Tumlinson about his personal journal entries that described sexual .contact with a child, J.T. Law enforcement was contacted after Tumlinson’s former roommates found the troubling journal entries Tumlinson left behind at their home. Officers from the Largo Police Department then made contact with Tumlinson, who gave the officers a recorded oral and written statement. The detectives confirmed from their conversation with Tumlinson that Tumlinson authored the journals and had spent time with a one-year-old, child, J.T., who is the daughter- of an acquaintance in Pasco County.

The State filed a motion to admit Tum-linson’s statements under section 92.565. Under section 92.565(2), when a defendant is charged with a crime involving sexual abuse,

the defendant’s memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds in a hearing conducted outside the presence of the jury that the state is unable to show the existence of each element of the crime, and having so found, further finds that the defendant’s confession or admission is trustworthy.

But “[bjefore the court admits the defendant’s confession or admission, the state must prove by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement by the defendant.” § 92.565(3). Hearsay evidence is admissible at the hearing, and the court “may consider all relevant corroborating evidence, including the defendant’s statements.” § 92.565(3).

Here, the State argued that it was unable to show each element of the crime because the child victim was nonverbal at 1½ years old. The trial court held two hearings on the State’s motion to determine if Tumlinson’s statements could be admitted under section 92.565. At the hearings counsel for the State clarified that the State sought to have all three of Tumlinson’s statements admitted: “We want to admit the defendant’s statements in the journal and his written and recorded statement to law enforcement.”

The State’s first witness was the child’s mother. She testified that she lived in New Port Richey with her daughter J.T., J.T.’s father, her mother, sister, mother’s boyfriend, and sister’s boyfriend. The sister’s boyfriend had a friend, Kenneth Tumlinson, who regularly visited the house. He was there on a “day to day to day to day basis .for months on end” until July or August 2013. The mother recalled one instance in which she left the child alone with her sister’s boyfriend and Tum-linson: “[Tumlinson] happened to be at the house hanging out with [my sister’s boyfriend] so I asked them to watch the baby and I went down to the store to go get her [baby formula].”

A detective from the Largo Police Department testified that she was called to the location where Tumlinson’s handwritten journals were found. The following journal excerpts, dated March 2013, were entered into evidence as exhibits 1 and 2:

Yesterday I proved to myself that I have really no self-control when it comes to my impulses and no self-discipline in my spiritual practices. When I was left alone in [J.T.] room with her I had reverted back all the way to how I was at 16/17 that I would try to take advantage of others. A few times I put her on my lap pulling her away from the TV and imagined how if we were nude we’d be rubbing together. Then, when she was sitting on the floor I rubbed her diaper over her crotch area imagining as if I were playing with her. For a moment she seemed a bit confused as to what I was doing then after a bit she pushed my hand away not liking what I was doing and was angry at me (perhaps scared) the rest of the time. I just hope I haven’t lost the poor girl’s trust.

Exhibit 1.

I am very glad now because I went over to [my friend’s] to hang out and [J.T.] was happy to see me. I sat in her room most of the time watching TV with her though a good portion of it was spent flirting. (I guess I gotta remember with her age comes a different set of emotional reactions than I am used to or was expecting.) Anyway, we played and I even managed to kiss her a few times and getting past the snottyness I liked it. She has such soft lips. Also, she let me rub her back and leg a bit so some touch is ok for now. It did occur to me though that she has a little growing to do before she can remotely understand the way I feel and the meaning behind my gestures to her like all the loving energy I sent to her. She still has much true babyness to her. I guess my expectations got carried away knowing she can walk now. Of course on the other hand I am glad I get to see her reach developmental milestones and perhaps even help by adding the stimulation of interacting with her.

Exhibit 2.

The detective testified that she and another detective located and interviewed Tumlinson in August 2013. She stated that during the interview, Tumlinson admitted that he authored the journals and that he touched the child over her diaper. Tumlinson gave the following written statement:

In regards to my journal entries, they are only that, journal entries. I use my writing to clear my mind and vent my impulses so I don’t act on them. [J.C.] is the daughter of my friend. I did not by any means touch her as the journal makes clear of touching her diaper/[illegible], not her. There have been no incidents of any sort. My journal entry does not imply rubbing her on any part of myself. Again I did not. Also, there have been no incidents with anyone else at all.

The trial court engaged in a lengthy dialogue with counsel and, as observed by the dissent, at times it appeared that the trial court applied a common law corpus delicti analysis to the evidence. But in making its final ruling, the trial court applied the proper analysis and made the proper findings under section 92.565 and this court’s holding in Geiger. The trial court’s order was not, as the dissent describes, an application of the corpus delicti rule.

Generally “[a] person’s confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime.” State v. Allen, 335 So.2d 823, 825 (Fla.1976). For that reason, in a criminal prosecution, the State is required to prove corpus de-licti independent of the defendant’s confession before the confession may be admitted into evidence. Ramirez v. State, 133 So.3d 648, 651 (Fla. 1st DCA 2014). But section 92.565 contemplates an exception to this rule and “eliminates corpus delicti as a predicate for the admission of a defendant’s confession when the state is unable to show the existence of each element of the offense” due to the physical or mental health or age of the victim. State v. Dionne, 814 So.2d 1087, 1091 (Fla. 5th DCA 2002).

Section 92.565 serves the same general purpose as the corpus delicti rule but it contains a different set of safeguards. A defendant’s confession is admissible in evidence under the statute only if: (1) the offense qualifies as a sexual abuse case; (2) the state is unable as a result of some disability on the part of the victim to prove an element of the crime; (3) the state has proven that the defendant’s confession is trustworthy; and (4) the trial court has made specific findings of fact on the issue of trustworthiness.

Bradley v. State, 918 So.2d 337, 340 (Fla. 1st DCA 2005).

A defendant’s confession or admission shall not be admitted under section 92.565 until the State has proven by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement. § 92.565(3). As this court has acknowledged—and the dissent ig-ñores—“a confession cannot corroborate itself,” meaning the trial court cannot rely “exclusively on the content of [the defendant’s] statements and the circumstances under which they were made to form an opinion about their trustworthiness.” Hernandez v. State, 946 So.2d 1270, 1276 (Fla. 2d DCA 2007). So even though section 92.666 replaces the' corpus delicti rulé with the “trustworthiness doctrine” and ‘■‘does not require independent proof of each element of the crime in order for a confession to be admitted, there must be some evidence that tends to establish the type of harm for which the defendant is being criminally changed.” Geiger v. State, 907 So.2d 668, 675 (Fla. 2d DCA 2005) (emphasis added).

This court’s application of section 92.666 in Geiger is instructive. In Geiger, a certified nursing assistant was charged with sexual battery and lewd or lascivious exhibition after he confessed to an elder at his church that he had committed sex crimes against his .patients. Geiger repeated his confession to the facility’s staff and again to the police.. Because Geiger’s patients suffered from Alzheimer’s disease and were incapable of describing the abuse, the State filed, a motion to.have the statements admitted under section 92.665. The evidence showed that Geiger had ample opportunity to be alone with the victims. There was also testimony that Geiger suffered from, a mental illness. The trial court granted the State’s motion, concluding that the spontaneous and consistent statements had “quite a bit of indicia of reliability” and were trustworthy. Id, at 672. “In making its findings, the trial court relied on the contents of Geiger’s statements and how the statements provided their own trustworthiness;” Id. at 675.

For example, the trial court thought it significant that, based on Geiger’s statements, consent could perhaps be used as a- defense. The court also found that Geiger?s statements were reliable because Geiger voluntarily made the statements to a church elder and others. The court stated that the confession -to the elder showed that perhaps Geiger believed his confession was privileged and would let him “get it right with God.” .

Id.

This court reversed. It concluded that the trial court’s findings were “not based on independent evidence corroborating the trustworthiness of the statements.” Id, The" "trial court erred "when it “simply viewed the statements as credible based on the statements themselves.” Id. In short, the State failed to meet its burden under section 92.565, because “the State presented no corroborating evidence establishing the trustworthiness of Geiger’s statements and no evidence, apart from.- those statements, that Geiger committed any crime.” Id, ..

Similarly, here, nothing apart from Tumlinson’s journals and oral and written statements—all of which the State sought to have admitted—corroborates those statements. And as the trial court properly noted in its final order, Tumlinson’s journal entries and oral and written-statements cannot be viewed as independent evidence corroborating the trustworthiness of the statements themselves.

In ruling on the State’s motion the trial court made findings in its written order that the State established: “(1) the Defendant is over 18 years of age; (2) that the alleged victim is less than 12 years of age; (3) that the Defendant is a friend of the parents of the victim; (4) that the Defendant visited the victim’s home while the child was present.” The trial court specifically noted that “there was no testimony that the defendant was ever alone with the victim child.” Based on those findings, the trial court made the specific finding under section 92.565 that “the State has failed to prove, by a preponderance of the evidence, the trustworthiness of the Defendant’s journal entries.”

The dissent asserts that “there was competent, substantial evidence—specifically described by the circuit court during the hearings—that Mr. Tumlinson’s confession was sufficiently trustworthy to be admitted.” But in making that assertion, the dissent fails to appreciate the correct legal standard: there must be competent substantial evidence that corroborates the confession, As explained in Geiger, a defendant’s mere presence with the victim and opportunity to commit the offense was not sufficient evidence to corroborate the statement under the statute. Similarly, here that factor, standing alone, is also not sufficient evidence of corroboration. And the other three factors—that Tumlinson seemed “fine” during the statement, that the interview was in public, and that there was no evidence of a mental impairment-are all factors concerning the actual confession itself, These factors are not independent evidence of corroboration, and in any event, this court is not permitted to reweigh the evidence. Accordingly, we conclude that the trial court properly applied section 92.565 and this court’s holding in Geiger.

Lastly we write to address the dissent’s position that it is “impossible to reconcile the circuit court’s finding that Mr, Tumlin-son’s admission was ‘one hundred percent’ trustworthy with the court’s conclusion that it was not under Geiger.” The trial court’s statement during the hearing, “I trust his statements one hundred percent,” shows that the trial court could accept the statements at face value—it was not an application of-the legal standard under-the statute. When the trial court applied the correct legal standard, it found’ that the State fell short of its burden. •

Because the trial court applied the correct analysis under section 92.565 and this court’s holding in Geiger, we are compelled to affirm.

CRENSHAW, J, and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

LUCAS, J., Dissents with opinion.

LUCAS, Judge,

Dissenting.

Relying upon Geiger v. State, 907 So.2d 668 (Fla. 2d DCA 2005), the majority affirms the denial of the- State’s motion to admit the recordéd statements of Kenneth Tumlinson, which concerned Mr. Tumlin-son’s confessions to molesting a thirteen-month-old child. In my view, the circuit court’s ruling was erroneously grounded upon the failure of the State to establish the corpus delicti of Mr. Tumlinsori’s offense, a common law requirement that had no application here! A proper application of section 92.565 and our holding in Geiger compels reversal of the circuit court’s error, and so I respectfully dissent.

I.

For several months in 2Ó13, Mr. Tumlin-son had spent his days as something of a permanent houseguest in J.T.’s family’s house. During his stay there, J.T.’s mother recounted that on one occasion she left J.T. alone with her boyfriend and Mr, Tumlinson at the house while she went to run errands. She also recalled that, on more than one occasion, she witnessed Mr. Tumlinson sitting in the house with a baby bottle or wearing adult diapers, behavior she described as “kind of odd.” Upon later discovering Mr. Tumlinson’s diaries in the house and a subsequent interview of Mr. Tumlinson by police detectives, the State filed an information, charging Mr. Tumlinson with one count of lewd and lascivious molestation of J.T. under section 800.04(5)(b), Florida Statutes (2013). With respect to his diary, the majority recounts its entries, which, I would simply observe, include extraordinarily detailed descriptions of interactions between Mr. Tumlin-son and J.T., who is specifically identified by name and appearance throughout his writings. The interactions described in Mr. Tumlinson’s diary vividly describe molestation of J.T. by Mr. Tumlinson. Because of J.T.’s infancy at the time of the alleged offense, the State’s case against Mr. Tumlinson rested almost entirely on the prior recorded and written confessions Mr. Tumlinson made to the two detectives that later interviewed him, as well as those recounted within his diary.

No evidence was ever presented, or even suggested, during the evidentiary hearings on the State’s motion that Mr. Tumlinson suffered from any incapacity or mental illness. At the conclusion of the second hearing, the court made several observations and findings that, to my reading, illustrate the court’s misunderstanding of the law and the basis for reversing its order:

THE COURT: [The State] ha[s] to prove something, the guy who was the family member saw [Mr. Tumlinson’s] hand on the diaper, the child has a rash. There was some indication of sexual assault. There is some indication of some action that would prove ninety percent of your case, notwithstanding the journal. You’ve got nothing. You’ve got a baby at a house .... and this person visited that house on occasion a lot. That’s it. That’s all the facts that you have.
MR. ANDRINGA: Judge, respectfully, the issue is whether the defendant—it sounds like what the Court is saying, I’m not considering his statements and the law requires the Court to determine whether the statements are trustworthy.
THE COURT: I trust his statements one hundred percent. Your problem is you’re asking me to put them in without corpus delicti.
MR. ANDRINGA: But Judge, and that’s the point of the memo, and that’s the point of the statute, we do not have to prove corpus delicti under ■ Florida Statute 92.565, as long as his statements are trustworthy.
THE COURT: I disagree, Mr. Andrin-ga. I 100 percent disagree.... Geiger makes it clear, you cannot solely rely on the statements that are written, oral, in the journal, to law enforcement, recorded, unrecorded, any of them, because all of them come under your motion, your motion to admit these statements. They don’t come independent. I can only admit them only after you have proven your case, and it is clear that you cannot prove them. You cannot prove any part of any sexual assault ....

(Emphasis added.)

After hearing further arguments from counsel about the case and statutory authorities and reviewing the recorded interview of Mr. Tumlinson, the court concluded:

I find that the defendant’s journal entries, statements to law enforcement, are not due to a mental health issue, as far as I know.... We had our hearing and I didn’t hear- anything about his mental disability or ability. He had conversations with law enforcement. He was able to communicate with them. He was on the street. Everything seemed to be fine, so I’m fine with that. My point is that you can’t use the statements that you’re asking me to admit to prove the crime.

When it later rendered its written order, the circuit court, again, engaged in a corpus delicti analysis to provide its basis for denying the State’s motion. According to the court’s order, the State failed to prove “that the Defendant was left alone with the victim” and “has only shown that the Defendant was a friend of the victim’s parents.” Which is to say, the State failed to establish a corpus delicti of this crime. The order did not purport to vacate or modify any of the prior findings the court had made on the record (e.g., that there was no evidence of any mental impairment on the part of Mr. Tumlinson; that Mr. Tumlinson’s statements to law enforcement were not the result of any mental disability; that “[everything seemed to be fine” with respect to his recorded interactions with the detectives; and that Mr. Tumlinson’s recorded statements were “one hundred percent” trustworthy). What factual findings the written order contained, to my reading, had nothing to do with the trustworthiness of Mr. Tumlin-son’s confessions, but revolved entirely around whether the State had provided independent evidence of the offense’s commission. Cf. § 92.565(4). Thus, the absence of a corpus delicti appears to have served as the sole basis for the circuit court’s finding—and the majority’s affir-mance—that there was insufficient corroborating evidence of the trustworthiness of Mr. Tumlinson’s confessions.

II.

This appeal revolves around the “trustworthiness” that section 92.565(2) of the Florida Statutes requires; a requirement that, in this case, would deem Mr. Tumlin-son’s confessions as admissible “without the state having to prove a corpus delicti of the crime if the court finds in a hearing ... that the defendant’s confession or admission is trustworthy.” Section 92.565(3) describes the court’s role in gauging the trustworthiness of such a confession prior to its admission:

Before the court admits the defendant’s confession or admission, the state must prove by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement by the defendant. Hearsay evidence is admissible during the presentation of evidence at the hearing. In making its determination, the court may consider all relevant corroborating evidence, including the defendant’s statements.

Section 92.565(4) requires the circuit court to “make specific findings of fact, on the record, for the basis of its ruling.”

The effect this statute’s passage had on the common law requirements of corpus delicti was summarized in Bradley v. State, 918 So.2d 337 (Fla. 1st DCA 2005):

This statute eliminates the need to establish the corpus delicti of the crime as a predicate to admitting the defendant’s confession in evidence. When all of the conditions of the statute have been met, the state is entitled to introduce the defendant’s confession. The state is not also required to present independent proof of each element of the crime, as it would be under the corpus delicti rule. An element of the crime may be established by the confession itself, so long as the corroborating evidence makes the confession trustworthy.

Id. at 340 (citations omitted); see also State v. Dionne, 814 So.2d 1087, 1092 (Fla. 5th DCA 2002) (observing that section 92.565 is “a procedural mechanism utilized to admit” certain confessions in criminal proceedings, which eliminated corpus de-licti as a required predicate for the admission of such confessions).

The circuit court’s order in this case could not be described as anything other than an application of the corpus delicti rule. And its application of the corpus delicti rule would have been flawless. Were it not for the enactment of section 92.565—which expressly authorizes the admission of a memorialized confession “without the state having to prove a corpus delicti of the crime”—I would have readily agreed with the circuit court’s ruling and joined in the majority’s affirmance of it. But corpus delicti has been supplanted by section 92.565 for this criminal offense. See Hernandez v. State, 946 So.2d 1270, 1275 (Fla. 2d DCA 2007) (“When section 92.565 is properly invoked, it replaces the corpus delicti doctrine with the trustworthiness doctrine with respect to the offenses listed in the statute.” (citing Geiger, 907 So.2d at 674)); Bradley, 918 So.2d at 340. When the circuit court determined that Mr. Tumlinson’s confession was, to paraphrase the court’s words, one hundred percent trustworthy, that he did not appear to suffer from any mental impairment, and the remaining requirements of the statute were stipulated or satisfied, his confession became admissible under section 92.665.

Our decision in Geiger should not be read to hold anything to the contrary. In Geiger, we reviewed whether a certified nursing assistant’s confession to sexually abusing Alzheimer’s patients was admissible under section 92.565. Unlike the case at bar, though, there was substantial evidence presented in Geiger that called the trustworthiness of the confession into serious doubt. A clinical psychologist recounted Mr. Geiger’s long and unfortunate history of major depression with psychotic features, opined about the “common phenomenon” of false confessions by persons who have delusions, and concluded that Mr. Geiger’s admissions could have been a fantasy or the result of a mental disorder. Id. at 671. We observed that “the State presented- no corroborating evidence establishing the trustworthiness of Geiger’s statements and no evidence, apart from those statements, that Geiger committed any crime.” Id. at 675. We concluded that the State had failed to present competent, substantial evidence that Mr. Geiger’s statements were trustworthy under section 92.565 and, in the absence of any other independent evidence of the offense’s commission, instructed the trial court to dismiss the sexual battery charge against the defendant. Id. at 676.

On its facts, Geiger is a far cry from the case at bar. There was nothing in the record below that ever called Mr. Tumlin-son’s veracity, acuity, or cognitive functions into question, “[Everything seemed fíne” with. Mr, Tumlinson’s interactions and his ability to communicate with the detectives, according to the circuit court. The court below specifically found there was no evidence that Mr. Tumlinson’s confessions could have been the result of any mental impairment or disease,. and the statements themselves identified J.T. in detail and during the same time frame as Mr, Tumlinson’s extended stay at J.T.’s house. I simply find it impossible to reconcile the circuit court’s finding that Mr. Tumlinson’s admission was “one hundred percent”- trustworthy with the court’s conclusion that it was not under Geiger.

The legal rule the circuit court apparently gleaned from Geiger was equally unfounded. We did not hold in Geiger—as the circuit court stated at the hearing— that a defendant’s confession under section 92.565 could only be admitted after the State had proven its case through a showing of a corpus delicti. Section 92.565(2)’s displacement of the corpus delicti rule was clear, and we said as much in Geiger, Id. at 674 (“We agree that section 92.565 replaces the corpus delicti rule with the trustworthiness doctrine with respect to the enumerated offenses.”). Our holding in Geiger did not conflate the common law of corpus delicti and the statute’s trustworthiness determination into an interdependent determination, as the circuit court’s ruling did below. We did not inadvertently reimplement the very common law requirement the statute had replaced. To be sure, the kind of evidence corroborating a confession’s trustworthiness may, at times, be substantially similar in quality or character to the kind of evidence that would have met the traditional requirements of corpus delicti. But that does not make the two kinds of evidence coterminous; and it certainly does not abolish the distinct trustworthiness requirement the legislature crafted when it enacted section 92.565, a statute which allows the circuit court to rely on the statements themselves as proof of their trustworthiness. See § 92.565(2) (“In making its determination, the court may consider all relevant corroborating evidence, including the defendant’s statements.”).

The language within the Geiger opinion that both the circuit court and the majority have seized upon—that there must be independent, corroborating evidence of trustworthiness, apart from the confession itself, to satisfy the statute’s requirement—was plainly satisfied in this case. Again, the circuit court was presented with evidence that Mr. Tumlinson. had spent significant time with J.T., including, on one occasion, outside of J.T.’s mother’s presence; that, based upon the court’s review of his recorded interview, he seemed “fine” in his interactions with law enforcement; that his interview was conducted in public; and that he did not appear to suffer from any kind of mental impairment. The circuit court was not only presented with this evidence, the court recounted much of it as findings of the court at the conclusion of the evidentiary hearings, findings that the court never modified or retracted in its later written order. In my opinion, the circuit court simply misapplied our holding in Geiger by collapsing the requirement for independent corroborating evidence of a confession’s trustworthiness into the corpus delicti evidentiary requirement that the confessed offense was actually committed.

There was competent, substantial evidence—specifically described by the circuit court during the hearings—that Mr. Tum-linson’s confession was sufficiently trustworthy to be admitted, and the circuit court made a finding on the record that his confession was one hundred percent trustworthy. Conversely, there was no evidence recited within the circuit court’s written order—apart from its misapplication of corpus delicti—that supported its finding that Mr. Tumlinson’s statements were untrustworthy. Cf § 92.565(4) (“The court shall make specific findings of fact,on the record, for the basis of its ruling.”). Under section 92.565, the State should have been permitted to present these admissible confessions against Mr. Tumlin-son in a criminal case. I would reverse the circuit court’s order accordingly.

      . The journals were found in a residence separate from where the alleged molestation occurred.

      . "[W]hen a confession is relied upon to satisfy the state’s burden of proof to establish the defendant's guilt, there must be either direct or circumstantial evidence—apart from the confession—of the so-called corpus-delicti of the offense with which he is charged.” Ruiz v. State, 388 So.2d 610, 611 (Fla. 3d DCA 1980) (first citing Smith v. State, 93 Fla. 238, 112 So. 70 (1927), then citing Drysdale v. State, 325 So.2d 80 (Fla. 4th DCA 1976)).

      . The court’s order also memorialized its denial of the State’s attempt, for purposes of its motion, to utilize Williams rule evidence of Mr. Tumlinson’s prior adjudication of delinquency for what may have been a similar offense. The propriety of that ruling was not raised in this appeal.

      . In Geiger, 907 So.2d at 674, we applied certain federal precedents, interpreting federal law, to construe section 92,565 in a similar fashion as the federal courts’ adoption of the trustworthiness doctrine. We concluded that the statute’s trustworthiness requirement, like the trustworthiness doctrine in federal jurisprudence, must encompass ‘‘some evidence that tends to establish the type of harm for which the defendant is being criminally charged,” Id. at 675 (citing Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ("It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.”)).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alvin T. ADDERLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4439
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    Alvin T. Adderley, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton and Andrea Totten, Assistant Attorney Generals, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Alvin T. Adderley, appeals the trial court’s order denying his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant argues that the trial judge had previously disqualified himself from the underlying case and thus erred in ruling on Appellant’s motion. We agree. Therefore, we vacate the order under review and remand this case to the trial court so a successor judge can rule on the motion. We note that the State concedes that the order under review “is void and a nullity.”

VACATED and REMANDED.

COHEN, C.J., SAWAYA and WALLIS, JJ., concur.


text:
    Thomas L. CARR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3959
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    Thomas L. Carr, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Thomas L. Carr appeals the trial court’s order summarily denying his rule 3.850 motion for postconviction relief as improperly successive. After considering the unusual facts and the unique procedural history of this case, we conclude that good cause existed to allow the successive filing. See Fla. R. Crim. P. 3.850(h)(2). Accordingly, we reverse the order of the trial court and remand for consideration on the merits.

REVERSED and REMANDED.

SAWAYA, BERGER, and WALLIS, JJ., concur.


text:
    Jamido PINEIROCABAN, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Case No. 5D16-2342
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    James S. Purdy, Public Defender, and George D. E. Burden, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.
    ■ Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee/ Cross-Appellant.
   PER CURIAM.

Jamido Pineirocaban appeals his convictions, following a jury trial, for trafficking in cocaine in the amount of 200 grams or more, but less than 400 grams, and for importing cocaine. Pineirocaban was sentenced to serve concurrent seven-year prison terms. The State cross-appeals the sentence for trafficking in cocaine, contending that the trial court erred as a matter of law by failing to sentence Pineir-ocaban to serve a mandatory minimum prison term. We affirm Pineirocaban’s convictions-without further discussion. For the following reasons, we reverse Pineiroca-ban’s sentence for trafficking in cocaine and remand for resentencing.

Pineirocaban was charged with violating section 893.135(l)(b)l.b., Florida Statutes (2015), by knowingly possessing, selling, purchasing, manufacturing, delivering, or bringing into the State of Florida 200 grams or more of cocaine or a mixture containing cocaine. This statute provides that a person convicted of trafficking in cocaine where the amount involved “[i]s 200 grams, or more, but less than 400 grams,.... shall be sentenced to a mandatory minimum term of imprisonment of 7 years 893.135(l)(b)l.b., Fla. Stat. (2015). When a defendant is convicted of violating a statute that mandates the imposition of a mandatory minimum term of imprisonment, the sentencing enhancement is nondiscretionary and “trial courts lack the authority to refuse to apply them.” State v. Mease, 200 So.3d 161, 162 (Fla. 5th DCA 2016) (quoting State v. Kremer, 114 So.3d 420, 421 (Fla. 5th DCA 2013)). Our review of the legality of the sentence is de novo. Pinkard v. State, 185 So.3d 1289, 1289-90 (Fla. 5th DCA 2016) (“The legality of a sentence is a question of law and is subject to de novo review.”(quoting Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005))).

Pineirocaban acknowledges that he was charged with trafficking in cocaine in the amount of 200 grams or more, but less than 400 grams, and that, if convicted as charged, he faced a mandatory minimum seven-year prison sentence. Pineirocaban argues, however, that because the juiy made no ■ separate, “clear finding” in its verdict that the amount of cocaine involved in this ease actually weighed 200 grams or more, the trial court correctly refused to impose the statutorily required seven-year mandatory minimum sentence. Under the specific facts of this case, we disagree.

Although not explicitly argued by Pi-neirocaban, the' United States Supreme Court has determined that any fact that triggers a mandatory minimum sentence is an element of the offense that must be submitted-to the jury and proved beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013). Pineirocaban correctly relates that the verdict form provided to the jury on this count only asked it to decide whether he was guilty or not guilty of the charge of trafficking in cocaine. There were no lesser included offenses for the jury to consider on the verdict form or in its deliberations, nor was the jury separately tasked with determining the weight of the cocaine on the verdict form if it found Pineirocaban guilty of trafficking. Moreover, at the charge conference, the parties agreed that the trial court would instruct the jury that in order to find Pineirocaban guilty of trafficking in cocaine, it must find that the State proved the following three elements beyond a reasonable doubt:

,1. JAMIDO PINEIROCABAN knowingly possessed a certain substance.
2. The substance was cocaine.
3. The cocaine weighed 200 grams or -more.

The better practice, here would have been for the verdict form to have specifically provided the jury with the options of either finding Pineirocaban guilty of trafficking in cocaine - in the amount of 200 grams or more, as charged in the information, or finding him not guilty. Nevertheless, under the facts of this case, by its verdict of guilty, it is clear that the jury found that the State proved beyond a reasonable doubt that Pineirocaban knowingly possessed 200 grams' or more of cocaine. Stated differently,- because the jury was instructed that the specific “200 grams or more” weight of cocaine was the third element of the crime that must be proved beyond a reasonable doubt, and there were no lesser included offenses of trafficking in cocaine in smaller amounts for the jury to consider in its deliberations, we conclude that the requirement under Alleyne of the jury making a factual finding as a prerequisite to the imposition of a mandatory minimum prison sentence was met. Thus, we hold that the trial court erred in failing to sentence Pineirocaban to the statutorily mandated seven-year mandatory minimum prison sentence.

Accordingly, we reverse Pineirocaban’s present seven-year non-mandatory minimum prison sentence for trafficking in cocaine and remand with directions that the trial court sentence Pineirocaban to serve a seven-year mandatory minimum term for this conviction. Because the imposition of this sentence in this case is ministerial, Pineirocaban need not be present for the resentencing. We affirm on all other issues.

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

COHEN, C.J., TORPY and LAMBERT, JJ., concur.

      . Trafficking offenses involving lower quantities of cocaine are category one lesser included offenses to the instant charge. See Fla. Std. Jury Inst. (Crim.) 25.10.


text:
    Lawrence Oliver MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2311
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    Jeffrey Deen, Office of Criminal Conflict and Regional Counsel, and Matthew R. McLain, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Based on the State’s concession of error, we reverse the revocation of Lawrence Martin’s probation and the resulting judgment and sentence. We remand for the reinstatement of Martin’s probation.

REVERSED and REMANDED.

COHEN, C.J., SAWAYA and EVANDER, JJ., concur.


text:
    Kevin VALENTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3804
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    ■ Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Kevin Valentin’s sentence. See Young v. State, 219 So.3d 206, 2017 WL 1967410 (Fla. 5th DCA May 12, 2017); St. Val v. State, 174 So.3d 447 (Fla. 4th DCA 2015). However, on remand, as the State properly concedes, Valentin shall be awarded twenty days of additional jail credit.

AFFIRMED and REMANDED FOR CORRECTION OF SENTENCE.

COHEN, C.J., ORFINGER and BERGER, JJ., concur.


text:
    Valentine C. OKONKWO, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    Case No. 5D17-754
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 6, 2017
    Valentine C. Okonkwo, Coleman, pro se.
    Sarah Young Hodges of the Florida Department of Health, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

COHEN, C.J., PALMER and EDWARDS, J.J., concur.


text:
    Rhonda Jean EHMER a/k/a Rhonda J. Ehmer a/k/a Rhonda Ehmer f/k/a Rhonda Jean Blankenship a/k/a Rhonda J. Blankenship, Appellant, v. U.S. BANK TRUST, N.A., as Trustee FOR LSF9 MASTER PARTICIPATION TRUST, Lakeview Loan Servicing, LLC, Hammock Trace Preserve Homeowners and Joel Blankenship, Appellees.
    Case No. 5D16-3534
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017

      Mark P. Stopa, of the Stopa Law Firm, Tampa, for Appellant.
    David Rosenberg, of Robertson, An-schutz & Schneid, P.L., Boca Raton, for Appellee U.S. Bank Trust, N.A.
    No appearance for other Appellees.
   ON CONCESSION OF ERROR

PER CURIAM.

Upon consideration of the concession of error filed by Appellee, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, we reverse the trial court’s July 18, 2016 Final Judgment of Foreclosure and remand the matter for entry of an involuntary dismissal in favor of the defendant.

REVERSED and REMANDED.

TORPY, WALLIS, and LAMBERT, JJ., concur.


text:
    Earlton FARQUHARSON and Beulah Farquharson, Appellants, v. CITIBANK, N.A. FOR the BENEFIT OF the CERTIFICATE HOLDERS CWABS, INC. ASSET BACKED CERTIFICATE SERIES 2007-QX1, Appellee.
    Case No. 5D16-2687
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017
    Rehearing Denied July 11, 2017
    Earlton Farquharson and Beulah Far-quharson, Buenaventura Lakes, pro se.
    Sara F.'Holladay-Tobias, Emily Y. Rott-mann, Ada A. Hammond and Jason R. Bowyer, of McGuireWoods LLP, Jacksonville, for Appellee.
   PER CURIAM.

After carefully reviewing the record on appeal, the hearing transcript, and the parties’ briefs, we affirm the lower court, whom we commend for showing great patience in the manner in which the August 2,2016, hearing was conducted.

AFFIRMED.

COHEN, C.J., EVANDER, and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    MDTR LLC as Trustee under the 6161 Sequoia Land Trust dated this 15th day of May 2014, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee FOR INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR23 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-AR23, et al., Appellees.
    Case No. 5D15-4506
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017

      Isaac Manzo, and J. Randy Edmonson, of Manzo <& Associates, PA, Orlando, for Appellant.
    Kimberly S. Mello, and Danielle M. Diaz, of Greenberg Traurig, P.A., Tampa, for Deutsche Bank National Trust Company As Trustee For Indymac INDX Mortgage Loan Trust 2005-AR23 Mortgage Pass-Through Certificates Series 2005-AR23, Appellee.
    No appearance for other Appellees.
   EDWARDS, J.

MDTR LLC (“MDTR”) appeals the trial court’s entry of final judgment of foreclosure in favor of Deutsche Bank National Trust Company (“Bank”). MDTR argues that the trial court erred in entering final judgment without a trial, purportedly pursuant to section 702.10, Florida Statutes (2015), because MDTR timely interposed written defenses and properly requested trial on the issues of damages and priority of security positions. We agree. The final foreclosure judgment is reversed and the case remanded to the trial court for further proceedings.

Bank filed a foreclosure complaint against MDTR and other defendants. The complaint alleged that Bank was the holder of the relevant promissory note, the note was in default for non-payment, and the note was secured by a mortgage on property allegedly owned by MDTR.

Bank filed a motion for order to show cause for the accelerated entry of final judgment of foreclosure pursuant to section 702.10. That statute allows a lienholder to “request an order to show cause for the entry of final judgment in a foreclosure action.” § 702.10(1), Fla. Stat. (2015). Upon filing of such a motion, “the court shall immediately review the request and the court file in chambers and without a hearing.” Id, If the court finds that the foreclosure complaint is verified and complies with statutory requirements, “the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered.” Id. Section 702.10(l)(b) explains,

The right to be heard at the hearing to show cause is waived if a defendant, after being served as provided by law with an order to show cause, engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. The defendant’s failure to file defenses by a motion or by a sworn or verified answer, affidavits, or other papers or to appear personally or by way of an attorney at the hearing duly scheduled on the order to show cause presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. If a defendant files defenses by a motion, a verified answer, affidavits, or other papers or presents evidence at or before the hearing which raise a genuine issue of material fact which would preclude entry of summary judgment or otherwise constitute a legal defense to foreclosure, such action constitutes cause and precludes the entry of a final judgment at the hearing to show cause.

Id. § 702.10(l)(b). Further, section 702.10(l)(d) states,

If the court finds that all defendants have waived the right to be heard as provided in paragraph (b), the court shall promptly enter a final judgment of foreclosure without the need for further hearing if the plaintiff has shown entitlement to a final judgment and upon the filing with the court of the original note, satisfaction of the conditions for establishment of a lost note, or upon a showing to the court that the obligation to be foreclosed is not evidenced by a promissory note or other negotiable instrument. If the court finds that a defendant has not waived the right to be heard on the order to show cause, the court shall determine whether there is cause not to enter a final judgment of foreclosure. If the court finds that the defendant has not shown cause, the court shall promptly enter a judgment of foreclosure.

Id. § 702.10(l)(d).

In response to Bank’s motion, the trial court scheduled a hearing date and issued an order to show cause, stating that the defendants, including MDTR, must appear at a hearing for foreclosure. In accordance with section 702.10, the order stated,

The filing of defenses by a motion, a responsive pleading, an affidavit, or other papers before the hearing to show cause that raise a genuine issue of material fact which would preclude the entry of summary judgment or otherwise constitute a legal defense to foreclosure shall constitute cause for the court not to enter final judgment.

Several days before the scheduled hearing, MDTR filed an affidavit of one of its managers, who was also one of MDTR’s attorneys, in opposition to entry of final judgment. The affidavit stated that “MDTR contests the amount of damages alleged in the Plaintiffs Complaint as MDTR has not had the opportunity to review a . full payment history of the account” and that “MDTR denies that its ownership interest is inferior to Plaintiffs Mortgage until such time as Plaintiff proves as much by authentic, admissible evidence.” It also stated, “MDTR must be afforded the opportunity to conduct discovery in order to verify and potentially contest the amounts alleged due in Plaintiffs Complaint and Plaintiffs proposed Final Judgment.”

Despite MDTR’s timely filed written defenses and attendance at the hearing, the trial court proceeded to enter a final judgment of foreclosure in favor of Bank at the conclusion of the show cause hearing.

In BarrNunn, LLC v. Talmer Bank & Trust, 106 So.3d 51 (Fla. 2d DCA 2013), the Second District Court of Appeal found that the trial court erred under similar circumstances by entering a final judgment after the defendant had timely filed written defenses. The Second District reversed the trial court’s entry of final judgment because “the clear and unambiguous language in subsection (b) ... declares that the filing of defenses ‘constitutes cause and precludes the entry of a final judgment.’ ” BarrNunn, 106 So.3d at 54. It was likewise error here for the trial court to proceed to entry of final judgment in .this case given that MDTR had filed an affidavit raising defenses. Both the statute and the trial court’s show cause order state that such action constitutes cause which precludes the entry of a final judgment. In addition to filing written defenses and objections to entry of a final judgment, MDTR attended the show cause hearing as scheduled.

Accordingly, we reverse the final judgment entered in favor of Bank and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COHEN, C.J., and EVANDER, J., concur.


text:
    Gary Leroy LUCAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-275
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017.
   PER CURIAM.

Affirmed. See Lucas v. State, 2D16-4604, 2017 WL 1277912 (Fla. 2d DCA Apr. 5, 2017) (table decision); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000); Jackson v. State, 640 So.2d 1173 (Fla. 2d DCA 1994).

WALLACE, LUCAS, and BADALAMENTI, JJ., Concur.


text:
    Stephen MIZNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3668
    District Court of Appeal of Florida, Second District.
    Opinion filed July 12, 2017
    Howard L. Dimmig, II, Public Defender, and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: EMAS, J.

text:
    BUILDING B1, LLC, Appellant, v. COMPONENT REPAIR SERVICES, INC., Appellee.
    No. 3D16-1286
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Downs Law Group, P.A,’ and Jeremy D. Friedman, for appellant.
    Fuerst Ittleman David & Joseph, Christopher M. David and Jeffrey J. Molinaro, for appellee.
    Before SUAREZ, EMAS and LOGUE, JJ.
   EMAS, J.

Appellant Building Bl, LL'C, appeals from an amended final judgment in favor of Component Repair Services (CRS), following a nonjury trial on appellant’s claim (and appellee’s counterclaim) for breach of a commercial lease agreement. For the reasons that follow, wé affirm,

On November 22, 2000, Building Bl (the landlord) and CRS (the tenant) entered into a commercial lease for a warehouse in Miami. The lease was for a term of five years commencing iri January 2001 and terminating' on December 31, 2005. The terms provided CRS an option to renew the lease for an additional five-year term beginning in January . 2006 and ending on December 31, 2010. The exercise of this option was required to be made in writing and sent-by certified mail to Building Bl 120 days before the end of the five-year lease period;- '

In October of 2005, Hurricane Wilma caused damage to the ‘warehouse. CRS spoke to Baitinger about the damagé and Building Bl instructed CRS to make and pay for the repairs, and represented that Building Bl would reimburse CRS for the expenses related to the repairs. CRS made the necessary repairs.

On January 1/2006 (after expiration of the five-year lease' period), CRS remained in the warehouse. Several discussions were held and written correspondence exchanged in an unsuccessful attempt to formally renew the lease or enter into a new lease. From January 1, 2006 through July 31, 2009, CRS remained in the warehouse and continued to pay rent on a monthly basis. On July 31, 2009, CRS vacated the warehouse without notice to Building Bl,

In May of 2012, Building Bl filed a one-count complaint against CRS,' alleging that, through discussion and correspondence, the parties had agreed to renew the lease for the period of January 1, 2006 through December 31, 2010, and that CRS breached the renewed lease agreement by vacating the premises on July 31, 2009 and failing to pay, inter alia, rents that were due and unpaid through December 31, 2010.

CRS filed its answer and affirmative defenses. CRS also filed a counterclaim, seeking damages for Building Bl’s breach of the lease for failing to return the security deposit and for failing to reimburse CRS for repairs made to the warehouse following Hurricane Wilma.

On September 28, 2012, CRS was administratively dissolved by the State of Florida for failing to file its annual report. In April of 2015, the matter proceeded to a nonjury trial, and thereafter, .the trial court found that the lease was not renewed, and that the discussions and correspondence between the parties, merely constituted competing offers and counteroffers, the terms . of which were never agreed upon by the parties.

The trial court concluded that Building B1 could not prevail on its breach of lease claim, because the lease expired by its terms on December 31, 2005, and on January 1, 2006, became a month-to-month tenancy pursuant to section 83.01, Florida Statutes (2006). However, the trial court found that, because CRS vacated the warehouse on July 31, 2009 without giving proper notice, Building B1 was entitled to one month’s rent (August 2009), pursuant to section 83.03(3), • .Florida Statutes (2Q09). .

As to CRS’s counterclaim, the trial court found that, because the lease agreement had not been renewed, CRS was not entitled to reimbursement for the warehouse repairs on a breach-of-lease-agreement theory. The trial court determined, however, that based on the'evidence presented at trial by CRS, Building B1 had orally agreed to reimburse CRS for the Hurricane Wilma repairs pursuant to a “gentlemen’s agreement.” The trial court determined that CRS was thus entitled to be reimbursed for' the cost of repairs to the warehouse, as well as return of its security deposit. Finally, the trial court found that Building B1 was entitled to a setoff (asserted as an affirmative defense to CRS’s counterclaim) for unpaid property taxes which CRS failed to pay during the relevant period.

The trial court applied the amounts to which Building B1 was entitled (August rent and property taxes) against -the amounts to which CRS was entitled (security deposit and warehouse repairs) and thereafter entered a judgment (and later, an amended judgment) in favor of CRS for the net amount of $7,553.10. This appeal followed.

Building B1 first argues that the amended final judgment in favor of CRS must be reversed because CRS was administratively dissolved by the State of Florida and therefore, pursuant to section 607.1622(8), Florida Statutes (2012), CRS was prohibited from defending against Building Bl’s claims or maintaining its own counterclaim.

Section 607.1622(8) provides:

Any corporation failing to file an annual report which complies with the requirements of this section shall not be permitted to maintain or defend any action in any court of this state until such a report is filed and all fees and taxes due under this act are paid and shall be subject to dissolution or cancellation of its certificate of authority to do business as provided in this act.

In the instant case, CRS was an active corporation at the time the cause of action accrued and at the time it filed its answer, affirmative defenses and counterclaim. CRS could therefore defend against Building Bl’s complaint and maintain its counterclaim. Building Bl’s challenge to CRS’s corporate status, raised for the first time after final judgment and after notice of appeal, comes too late. Seay Outdoor Advert., Inc. v. Locklin, 965 So.2d 325 (Fla. 1st DCA 2007) (rejecting challenge raised for the first time in a post-judgment motion seeking to set aside judgment as void, and holding that, under section 607.1405(2)(e), Florida Statutes (2012), cause of action filed prior to administrative dissolution could continue where such cause of action had accrued prior to dissolution). By not timely raising CRS’s corporate status and securing a ruling on the issue from the trial court, Building B1 failed to properly preserve this issue for our review. Sierra by Sierra v. Pub. Health Tr. of Dade Cty., 661 So.2d 1296, 1298 (Fla. 3d DCA 1995) (recognizing that, as a general rule, “[ajppellate courts may not decide issues that were not ruled on by a trial court in the first instance.”)

Further, and while not necessary to our resolution of this issue, we note that had Building B1 timely raised this issue during the pendency of the action, the trial court could have simply abated the action to allow CRS to reinstate (which CRS did on October 20, 2016), and such reinstatement “ ‘relates back to and takes effect as of the effective date of the administrative dissolution,’ and treats the corporation as though it had never been dissolved.” Allied Roofing Indus., Inc. v. Venegas, 862 So.2d 6, 8 (Fla. 3d DCA 2003) (quoting § 607.1422(3), Fla. Stat. (2012)). This court further observed in Allied Roofing:

The sanctions authorized for failing to file an annual report-involuntary dissolution and the inability to carry on any business, including bringing or defending a lawsuit, other than that necessary to wind up its affairs ... are intended to benefit the State, not third parties outside the corporation/State relationship. Hence, the Venegases, “who are strangers to the dealings between plaintiff and the State, should not be allowed to take advantage of the plaintiffs default ... to escape their own obligations to the plaintiff ....”

Id. at 9 (quoting Cosmopolitan Distribs., Inc. v. Lehnert, 470 So.2d 738, 739 (Fla. 3d DCA 1985) (additional citations omitted)).

Building B1 next argues that the trial court erred by failing to award double rent, as damages under the lease for CRS’s status as a holdover tenant. We find no error, as Building B1 never pleaded any entitlement to such damages. In its one-count complaint, Building B1 did not allege that CRS was a holdover tenant who failed to surrender the premises, but instead that Building B1 and CRS had renewed their lease for a new five-year period, and that CRS thereafter breached this renewed lease by vacating the premises before the end of the renewed term. In its complaint, Building B1 alleged in detail the specific amount of unpaid rent to which it was entitled based upon CRS’s alleged breach of the renewed lease. At no time did those damages include double rent based upon a theory that CRS was a holdover tenant, and Budding B1 cannot recover on this unpled claim. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988); Michael H. Bloom v. Dorta-Duque, 743 So.2d 1202 (Fla. 3d DCA 1999).

Alternatively, Building B1 asserts that this issue was tried by consent of the parties, under Florida Rule of Civil Procedure 1.190. The record, however, establishes that when Building B1 raised the issue of double rent (and implicitly, CRS’s purported status as a holdover tenant) for the first time during the trial in this cause, CRS objected. CRS argued that Building B1 never pleaded any such claim, and that CRS would be prejudiced if Building B1 were permitted to do so during trial. The trial court sustained the objection and did not permit Building B1 to amend its pleadings to assert the claim at trial.

While public policy generally favors application of rule 1.190 to permit amendment of pleadings, the rule’s “liberal amendment policy diminishes as a case progresses to trial.” Morgan v. Bank of N.Y. Mellon, 200 So.3d 792, 795 (Fla. 1st DCA 2016). Ultimately, the decision is vested in the broad discretion of the trial court, and the touchstone consideration of this analysis is prejudice to the opposing party. Id. We find no abuse of discretion in the trial court’s ruling, given the lateness of the request, CRS’s objection and the ensuing prejudice resulting from its inability to prepare for or defend against this newly-advanced theory. See Designers Tile Int’l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986); Santi v. Zack Co., 287 So.2d 127 (Fla. 3d DCA 1973).

Finally, Building Bl asserts that the trial court erred in finding in favor of CRS on its counterclaim and in finding Building Bl liable on an unpled theory of a breach of an oral agreement. The substance of the oral agreement was that Building Bl assured CRS it would reimburse CRS for expenses incurred in making the necessary repairs to the premises following Hurricane Wilma.

While it is true that CRS’s counterclaim did not plead a breach of an oral agreement, it is also true that the record supports the trial court’s determination that, this unpled theory was tried by consent of the parties. At trial, CRS presented testimony and evidence regarding the oral agreement between the parties. Building Bl raised no objection to the introduction of testimony regarding this oral agreement and Baitinger conceded in his own testimony that he had no basis to dispute the reasonableness of the repairs or the amount of money CRS spent'in making the repairs. Further, Building Bl had a fair opportunity to defend against the unpleaded issue. Dey v. Dey, 838 So.2d 626, 627 (Fla. 1st DCA 2003). An issue is tried by consent where the parties fail to object to the introduction of evidence on the issue. Rosenberg v. Guardian Life Ins. Co., 510 So.2d 610 (Fla. 3d DCA 1987); Dep’t of Revenue of State of Fla. v. Vanjaria Enters., Inc., 675 So.2d 252 (Fla. 5th DCA 1996). See also Fla. R. Civ. Pro. 1.190(b) (providing: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects 'as if they had been raised in the pleadings.”). We find no error in the trial court’s post-trial determination that this issue was tried by consent, and find no merit in the remaining issues raised by Building Bl.

Affirmed.

      . David Baitinger was the original landlord, and signatory- to the 2000 lease. In April of 2004, Baitinger created Building Bl and assigned the lease, to. Building B1,

      . CRS was reinstated on October 20, 2016,

      . Section 83,01 provides:
      Any lease of lands and tenements, or either, made shall be deemed and held to be a tenancy at will unless it shall be in writing signed by the lessor. Such tenancy shall be from year to year, or quarter to quarter, or month to month, or week to week, to be determined by the periods at which the rent is payable. If the rent is payable weekly, then the tenancy shall be from week to week; if payable monthly, then from month to month; if payable quarterly, then from quarter to quarter; if payable yearly, then from year to year.

      . Section 83.03 provides:
      A tenancy at will may • be terminated by - either party giving notice as follows:

      (3) Where the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period....

      . The lease required that the security deposit be returned to CRS within ten days after termination of the tenancy.

      . We find that there was competent substantial evidence presented at the nonjury trial to support the trial court’s determination that the parties did not renew the lease. Verneret v. Foreclosure Advisors, LLC, 45 So.3d 889 (Fla. 3d DCA 2010).

      . Rule 1.190(a) and (b) provide:
      (a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.
      (b) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.

      . CRS’s counterclaim instead alleged that Building Bl’s failure to reimburse CRS for repairs constituted a breach of the lease agreement.

      . In fact, Building Bl’s counsel objected only to the cost of repairing .the air conditioner, because that item of repair was outside the scope of CRS's pleadings. The trial court sustained the objection.

      . More than two years before trial, Building Bl took the deposition of Steve Johnson (of CRS) who testified regarding the details of the oral agreement, including the fact that Bai-tinger orally promised Building Bl would reimburse CRS for expenses related to the repairs made' following the hurricane. During trial, when CRS presented testimony regarding the existence and details of this oral agreement, Building Bl did not object, and thereafter had the opportunity to question CRS’s witness about it, and to present contrary evidence through its own trial witness, Baftinger.


text:
    Peter I. OTOH, Appellant, v. DEPARTMENT OF REVENUE O/B/O Lisa PARISH, Appellee.
    Case No. 2D16-2333
    2D16-4680
    District Court of Appeal of Florida, Second District.
    Opinion filed July 21, 2017
    Peter I. Otoh, pro se.

      Pamela Jo Bondi, Attorney General,'and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee. '
   PER CURIAM.

In these consolidated cases, Peter Otoh challenges two orders, both of which purport to deny his motion to vacate the 2003 and 2006 final judgments modifying child support. Because the latter order, on appeal in case number 2D16-4680, renders moot the original order, on appeal in case number 2D16-2333, we dismiss the appeal as it pertains to the original order. We affirm, without comment, the latter order.

Dismissed in part;- affirmed in part.

MORRIS, BLACK, and SALARIO, JJ., Concur.


text:
    Mark KALINA, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D17-1778
    District Court of Appeal of Florida, First District.
    Opinion filed July 21, 2017.
    Rehearing Denied August 29, 2017
    Mark Kalina, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Shirley Wilson Durham, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, WETHERELL, and OSTERHAUS, JJ., CONCUR.


text:
    Robert Lee WHITE, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    CASE NO. 1D17-2046
    District Court of Appeal of Florida, First District.
    Opinion filed July 21, 2017.
    Rehearing Denied August 29, 2017
    Robert Lee White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Rivera v. Department of Health, 177 So.3d 1 (Fla. 1st DCA 2015).

LEWIS, WETHERELL, and OSTERHAUS, JJ., CONCUR.


text:
    Courtney GATHERS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5746
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017.
    Rehearing Denied August 29, 2017
    Courtney Gathers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


author: CASANUEVA, Judge.

text:
    T.P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5543
    District Court of Appeal of Florida, Second District.
    Opinion filed August 2, 2017

      Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

T.P., a juvenile, seeks review of an order adjudicating him delinquent for resisting an officer without violence, for which one year of probation was imposed. T.P. was charged with one count of loitering or prowling and one count of resisting an officer without violence. The trial court granted T.P.'s motion for judgment of dismissal on the charge of loitering or prowling, and he.argues that the court should have granted his motion for judgment of dismissal as to the resisting charge as well. We agree and reverse.

I. FACTS AND PROCEDURAL HISTORY

The evidence presented at trial consisted of the testimony of the arresting officer. He testified that- the police received a call about a suspicious male looking, through windows of houses at about 7:45 in the morning. The suspect had left the area by the time-officers responded, and the officer spotted T.P. about a quarter of a mile away from the neighborhood. The officer testified that he asked T.P. to stop -because he matched the BOLO description of a light-skinned black male wearing shorts and a shirt. T.P. ran from the officer but later stopped in response to additional commands.

T.P.’s counsel moved for a judgment of dismissal as to both the loitering or prowling charge and the resisting charge. The court dismissed the loitering or prowling charge, finding that the State failed to provide sufficient evidence that T.P. was the same person seen looking in the windows. The court found that the officer did have reasonable suspicion to stop T.P. and thus denied the motion as to the resisting charge.

II.ANALYSIS

We review the denial of a motion for judgment of dismissal de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). A conviction will be sustained if, viewing the evidence in the light most favorable to the State, a rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt. Id. “If the State did not present sufficient evidence to establish.a prima facie ease of the crime charged, then a judgment of dismissal is proper.” Id

To support a conviction for resisting an officer without • violence, “the State must prove: (1) the officer was- engaged in the-lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla. 2009); see - § 843.02, Fla. Stat. (2014). The State argued below that* the officer had reasonable suspicion to conduct a stop and T.P. resisted by taking flight. The State appears to have abandoned this argument on appeal, contending that the officer was not attempting an investigatory 'stop but rather was simply trying to engage T.P. in a consensual -encounter.--We will address both arguments. See Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (discussing application of tipsy coachman doctrine, which allows an appellate court to consider an alternative basis for affirmance when supported by the record)..

A. Reasonable Suspicion to Stop

An officer is engaged in the lawful execution of a legal duty when commanding'an individual to stop if there is reasonable suspicion to support the stop. R.R. v. State, 137 So.3d 535, 537 (Fla. 4th DCA 2014) (quoting Palmer v. State, 112 So.3d 606, 607 (Fla. 4th DCA 2013)). The stop is justified when the officer observes facts that give rise to a reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. C.E.L., 24 So.3d at 1186. “[T]he act of flight alone is not a criminal offense.” let Absent either a founded suspicion to conduct a stop or probable cause to make a warrantless arrest, “the individual has a right to. ignore the police and go about his-business.” J.W. v. State, 95 So.3d 372, 378 (Fla. 3d DCA 2012) (quoting O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010)).

The State argued below that the officer had reasonable suspicion to stop T.P. and ask him what he was doing based on the report about someone looking in windows. The State cited to Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), and R.R. in support of its, argument. However, both cases are distinguishable in significant ways.

In Wardlow, the Supreme Court identified an exception to the general rule that flight alone is not sufficient to form the basis for a resisting without violence charge. C.E.L., 24 So.3d at 1184. The Court held “that a defendant’s unprovoked flight upon noticing the police in a high-crime area is suggestive of wrongdoing and provides reasonable suspicion to justify an investigatory 'detention under Terry[ v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ].” Id. at 1187 (emphasis added) (citing C.E.L. v. State, 995 So.2d 558, 561-62 (Fla. 2d DCA 2008)). In R.R., the adjudication of guilt for-.resisting an officer without violence was affirmed where two juveniles fled after an officer observed them engaging in suspicious conduct. 137 So.3d at 539 (“[0]nce R.R. engaged in an unprovoked, headlong flight from the officer, that behavior, coupled with the officer’s prior observations of R.R. looking into the windows of two parked- cars in a parking lot during the holiday season, supplied the officer with sufficient reason to conduct an investigatory stop.” (emphasis added)).

In this case, the State presented no testimony that flight took place in a high-crime area, and the officer observed no suspicious activity prior to ordering T.P. to stop. The only suspicious activity was reported by an unidentified 911 caller who provided a vague description of a light-skinned black male wearing shorts and a shirt looking through windows. Under the circumstances of this ease, we conclude that the officer lacked the requisite reasonable suspicion to stop T.P. See M.B. v. State, 107 So.3d 564 (Fla. 3d DCA 2013) (reversing adjudication of delinquency where detention of juvenile “was based on an unreliable, anonymous tip that was .not corroborated” and there was no evidence that the flight took place in a high-crime area); O.B., 36 So.3d at 787 (“[Pjolice officers seeking to detain an individual in response to a BOLO are not lawfully executing a legal duty unless they have the requisite reasonable suspicion.”); see also Rivera v. State, 771 So.2d 1246, 1248 (Fla. 2d DCA 2000) (holding that anonymous informant’s tip was insufficient to establish reasonable suspicion for a stop where police observed nothing to corroborate claim); J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999) (stating elements of loitering or prowling must occur in the officer’s presence). Thus, the State failed to establish the elements of resisting an officer without violence based on the officer’s attempt to stop T.P.

B. Consensual Encounter

We also reject the State’s argument on appeal that the officer was simply attempting to engage T.P. in a consensual encounter and T.P.’s subsequent flight constituted resisting an officer without violence. “[T]he hallmark of a consensual encounter is the citizen’s right to either voluntarily comply with the officers’ requests or terminate the encounter at any time.” Yarusso v. State, 942 So.2d 939, 942 (Fla. 2d DCA 2006) (citing Terry, 392 U.S. at 31-33, 88 S.Ct. 1868, and Popple v. State, 626 So.2d 185, 186 (Fla. 1993)). “[A]n individual is guilty of resisting or obstructing an officer by flight only if he flees while knowing of the officer’s intent to detain him mid if the officer is justified in detaining him.” Id. at 943 (citing J.J.N. v. State, 696 So.2d 804, 805 (Fla. 2d DCA 1997)).

The officer was not justified in detaining T.P. at the time he approached him, and T.P.’s flight in response to the officer’s attempted consensual encounter was not sufficient here to provide the officer with reasonable suspicion. Again, this case is distinguishable from R.R., in which the officer observed suspicious activity prior to the juvenile’s flight, and there is no evidence that the flight took place in a high-crime area, cf. C.E.L., 24 So.3d at 1189 (“C.E.L.’s flight in a high-crime area created the reasonable suspicion sufficient to warrant a lawful investigative stop.”).

III. CONCLUSION

The State failed to establish the elements of resisting an officer without violence, and the trial court erred by denying T.P.’s motion for judgment of dismissal. We reverse the adjudication of delinquency-

Reversed.

NORTHCUTT and MORRIS, JJ., Concur.


author: MORRIS, Judge.

text:
    V.G., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3588
    District Court of Appeal of Florida, Second District.
    Opinion filed August 2, 2017

      Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

V.G. appeals her adjudication of delinquency for grand theft auto and burglary of an unoccupied conveyance. Because we conclude that the State failed to present sufficient evidence to withstand her motion for judgment of dismissal, we reverse her adjudication and disposition for those two charges only. We affirm V.G.’s adjudication and disposition for a charge of fleeing and attempting to elude a police officer because she has not challenged either on appeal.

BACKGROUND

Devon Shorter testified that on May 16, 2016, he drove a 2016 silver Dodge Dart to his aunt’s house to get some paperwork from his cousin. The car was a rental, and Mr. Shorter never looked at the license plate number. • When he arrived at his aunt’s house, he left the car engine on and the car windows down as he went inside the house. He left his cell phone, his wallet containing a debit card and a credit card, and a bag of clothes' in the car. He went back outside a few minutes later, and the car was gone. He promptly reported the theft' to the Tampa Police Department.

The following evening, a Tampa police officer was on patrol. He saw a silver Dodge Dart roll through a stop sign, make an abrupt lane change, make several turns, run a few more stop signs, and then come to an abrupt stop. ..Once the car. stopped, the officer witnessed two male occupants exit the rear of the car and flee in different directions. The officer also witnessed a female occupant—identified as V.G.—exit the driver’s door and flee in the same direction as one of the male occupants. Ultimately, V.G. was apprehended.

Following the officer’s testimony at the adjudicatory hearing, defense counsel moved for a judgment of dismissal, arguing in relevant part that the State failed to establish that the car from which V.G. fled was Mr. Shorter’s rental car. The trial court denied the motion as it pertained to the grand theft auto and burglary charges.

V.G. then testified that her friend drove the silver Dodge Dart, but she denied driving the car herself. She admitted she did not know who owned the car. She testified that after her friend stopped the car, he said, “We got to jump out.” Her friend jumped out the driver’s door and she followed him.

After V.G.’s testimony, defense counsel again moved for judgment of dismissal, asserting that the State failed to prove that the car V.G. occupied was Mr. Shorter’s rental car. Specifically, defense counsel pointed out that there was no evidence regarding the license tag number or vehicle identification number (VIN) and that Mr. Shorter failed to identify the car stopped by the officer or to even retrieve it. The motion was denied, and,the trial court found'that V.G. was guilty of the grand theft auto, burglary, and fleeing and eluding charges. V.G. was adjudicated delinquent, and she was placed in a non-secure residential commitment program followed by post-commitment juvenile probation for an indefinite period not to exceed her nineteenth birthday.

ANALYSIS

We review de novo the trial court’s denial of a motion for judgment of dismissal. See E.A.B. v. State, 933 So.2d 676, 678 (Fla. 2d DCA 2006).

“To support a conviction for burglary [of a conveyance], the allegation of ownership of the conveyance must be proven as alleged in the detention petition or information, since it is a material element of the crime.” L.D.S. v. State, 784 So.2d 1227, 1228 (Fla. 2d DCA 2001) (citing In Interest of M.E., 370 So.2d 795, 796 (Fla. 1979)). Similarly, “[t]o convict a person of grand theft auto, the State is required to present evidence that the vehicle in possession of that person was the vehicle identified by the victim as stolen.” Joseph v. State, 956 So.2d 1232, 1234 (Fla. 4th DCA 2007) (citing Rossi v. State, 717 So.2d 611, 611 (Fla. 4th DCA 1998)). Where the State fails to prove that a conveyance that was recovered by police is the samé conveyance that was burglarized or stolen, a conviction or adjudication for burglary or theft cannot stand. See, e.g., L.D.S., 784 So.2d at 1227 (reversing adjudications for burglary and petit theft on the basis that where the victim did not indicate where he parked his vehicle, failed to identify the vehicle’s license plate and vehicle identification number, and failed to provide any further description beyond a “four-door Saturn SL2,” the State’s evidence that a police officer witnessed youths breaking into a green, four-door Saturn was insufficient to establish that it was the victim’s vehicle); Joseph, 956 So.2d at 1233-34 (reversing conviction for grand theft auto where the victim described his vehicle as a red, two-door sport model Ford Explorer with grey interior, a five-speed transmission, and a worn cruise control switch but where the evidence merely established that the appellant was driving a red, two-door Ford Explorer and the State failed to present any evidence of a vehicle identification number confirmation or the victim’s identification of the recovered vehicle as his own); C.O. v. State, 557 So.2d 637, 638 (Fla. 3d DCA 1990) (reversing adjudication for burglary of a conveyance and grand theft where the victim testified she owned a white 1985 Toyota Camry but‘where there was no evidence establishing that the victim’s car was the same white, four-door car that the appellant was seen driving and in which he was later apprehended).

We reject the State’s assertion that the circumstantial evidence was sufficient to establish that the vehicle from which V.G. fled was Mr. Shorter’s rental car. There was no evidence presented that V.G. was seen in possession of specifically identified property that was later recovered. Cf. Kearson v. State, 123 Fla. 324, 166 So. 832, 833 (Fla. 1936) (concluding that identity of stolen property could be determined by the jury from the circumstantial evidence where two defendants who were seen carrying two new-looking, double-barreled shotguns and two sacks containing 500 shotgun shells and where the deputy sheriff later recovered a sack finding “what he had been told was missing”). Nor is this a case where there was sufficient circumstantial evidence from which ownership of the conveyance • and its contents could be inferred. Cf. D.S.S. v. State, 850 So.2d 459, 461-62 (Fla. 2003) (concluding that the ownership element was sufficiently established where the evidence reflected that the burglarized building was commonly referred to as Plant City High School and was located in Hillsborough County and that the appellant was a juvenile at the time of the crime, thereby proving that the Hillsborough County School Board had a right of possession of the building and its contents as against the appellant). Rather, in this case, the evidence merely reflected a general description of a common car: a 2016 silver Dodge Dart. There was no other evidence of descriptive information such as a license tag or VIN, and there was no evidence presented about any of Mr. Shorter’s personal items being recovered from the car. In fact, there-was no evidence that Mr. Shorter even attempted to identify the car that was recovered by police.

We likewise reject the State’s arguments that V.G.’s disclaimer of knowledge as to who owned the vehicle and her flight from the vehicle constitute sufficient evidence to withstand the motion for judgment of dismissal as to the grand theft auto and burglary charges. See In re M.M., 571 So.2d 112, 113 (Fla. 4th DCA 1990) (rejecting argument that the appellant’s lack of knowledge as to ownership of the burglarized property was sufficient to establish that the victim had superior interest in it because “[w]hile it may tend to prove that the [property] was not appellant’s property, it does not identify the offense sufficiently to protect the accused from a second prosecution from the same offense”); Joseph, 956 So.2d at 1238-34 (reversing grand theft auto conviction despite appellant’s flight from police in the vehicle where the State failed to prove that the vehicle was the' same one reported stolen by, the victim). The State’s evidence may have reflected that the car did not belong to V.G., but it did not establish a link between the theft and burglary of Mr. Shorter’s rental car and the car from which V.G. fled. Further, V.G.’s flight-standing alone—could not establish that missing link. See D.L. v. State, 138 So.3d 499, 501 (Fla. 3d DCA 2014) (citing R.M. v. State, 763 So.2d 1060, 1062 (Fla. 4th DCA 1999), for the proposition that flight alone is insufficient to sustain a guilty verdict).

The State failed to meet its burden of presenting sufficient evidence to withstand V.G.’s motion for judgment of dismissal as to the grand theft auto and burglary charges. Accordingly, we reverse V.G.’s adjudication and disposition as .to those two charges only.

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

NORTHCUTT and KELLY, JJ., Concur.

      . Defense counsel also moved for judgment of dismissal as to the fleeing and eluding charge and as to a fourth charge of driving without a valid driver's license. The trial Court denied the motion as to the fleeing and eluding charge but granted the motion as to the driving without a valid driver's license charge.


author: WALLACE, Judge.

text:
    GREEN EMERALD HOMES, LLC, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION (“Fannie Mae”), a Corporation Organized and Existing Under the Laws of the United States of America; Florence L. Gyebi a/k/a Florence Opoku-Nuamah; Chapel Pines Homeowners Association, Inc.; Mortgage Electronic Registration Systems, Inc., as Nominee for Sun-Trust Mortgage Inc.; Unknown Person(s) in Possession of the Subject Property, Appellees.
    Case No. 2D16-2575
    District Court of Appeal of Florida, Second District.
    Opinion filed August 2, 2017

      Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.
    H. Michael Muniz of Kahane & Associates, P.A., Plantation, for Appellee Federal National Mortgage Association.
    No appearances for remaining Appel-lees.
   WALLACE, Judge.

Green Emerald Homes, LLC (Green Emerald), appeals from the trial court’s order denying its motion to quash service and to vacate default and final judgment in favor of Federal National Mortgage Association (Fannie Mae). Because we find that Fannie Mae failed to plead the necessary jurisdictional allegations in its complaint to perfect substituted service on the Florida Secretary of State and that section 605.0117, Florida Statutes (2014), does not make such allegations unnecessary, we reverse and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2014, Fannie Mae filed a vei’ified complaint to foreclose a mortgage against Green Emerald. Fannie Mae attached to its complaint a copy of the note, mortgage, and other documents. In its complaint, Fannie Mae alleged that Green Emerald was the owner of the property and that the note and mortgage were in default. Fannie Mae attempted to serve the requisite documents on Green Emerald’s registered agent, Roberta Kaplan, on several occasions without success. Because of Kaplan’s unavailability for service of process, Fannie Mae served Green Emerald through substituted service on the Secretary of State as authorized by chapter 48, Florida Statutes (2014).

On August 22, 2014, Fannie Mae filed a motion for a clerk’s default. The motion was granted, and the default was entered on September 3, 2014. Then, Fannie Mae filed a motion for final summary judgment, which the trial court granted. The trial court entered a final judgment of foreclosure on February 5, 2015.

Over two months later, on April 14, 2015, Green Emerald filed a verified motion to quash service and to vacate default and final judgment. In its motion, Green Emerald alleged that it had no knowledge of Fannie Mae’s lawsuit because it had not been properly served. Green Emerald argued that the substitute service of process on the Secretary of State was defective because Fannie Mae did not plead the requisite jurisdictional allegations in its complaint. Specifically, Green Emerald argued that under section 48.181, Fannie Mae’s substitute service of process was not valid because Fannie Mae failed to allege in its complaint that Green Emerald was either a nonresident of Florida or a resident which had concealed its whereabouts. Accordingly, Green Emerald asked the trial court to quash service of process and to vacate the default and final judgment of foreclosure.

In May 2016, the trial court held a hearing on Green Emerald’s motion. At the hearing, Green Emerald made the same arguments that it had raised in its motion. Fannie Mae argued that it had properly effected substitute service because it had complied with the service requirements set forth in section 605.0117. Fannie Mae contended that it was unnecessary for it to comply with section 48.181 concerning substitute service because (1) section 48.181 applies only to service on nonresidents of Florida and (2) section 605.0117 created an independent method for service of process on limited liability companies. Without' providing any explanation, the trial court denied the motion to quash and vacate. On appeal, the parties make the same arguments.

II. DISCUSSION

Initially, we note that Fannie Mae’s argument that section 48.181 only applies to nonresidents of Florida is belied by the text of the statute. See § 48.181(1) (stating that the Florida Secretary of State is permitted to accept substituted service on behalf of “any person who is a resident of the state and ... conceals his or her whereabouts” (emphasis added)). Therefore, the only substantial issue that we are called upon to determine is whether Fannie Mae was required to plead in its complaint ceiy tain jurisdictional allegations in order to properly serve Green Emerald through substituted . service on . the Secretary of. State. We review this issue de novo. See Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007).

“[I]n order to support substituted service of process on a defendant [through the Secretary of State], the complaint must allege the jurisdictional requirements prescribed by statute. If it fails to do so, then a motion to quash process should be granted.” Alhussain v. Sylvia, 712 So.2d 806, 806 (Fla. 4th DCA 1998); see also Jupiter House, LLC v. Deutsche Bank Nat'l Tr. Co., 198 So.3d 1122, 1123 (Fla. 4th DCA 2016) (“[T]he plaintiff failed to amend its complaint to allege the necessary allegations to support substitute service.” (citing Alhussain, 712 So.2d 806)). “The burden of pleading facts that support, as a matter of law, the applicability of substituted service falls on the party seeking to invoke the provisions of [section 48.181].” Mecca, 954 So.2d at 1182. Here, because Fannie Mae attempted to serve Green Emerald through substituted service on the Secretary of State under chapter 48, we must determine whether Fannie Mae pleaded the necessary jurisdictional allegations to fall within the ambit of the statute.

Section 48.181(1) permits the Secretary of State to accept service for any nonresident defendant or Florida resident who either (1) conceals his whereabouts or (2) previously conducted business in Florida but subsequently becomes a nonresident. See also Mecca, 954 So.2d at 1182. Accordingly, in order to perfect substituted service on a nonresident defendant or a Florida resident defendant, a plaintiff must plead one of these two grounds. See Jupiter House, 198 So.3d at 1123; Mecca, 954 So.2d at 1182; Alhussain, 712 So.2d at 806-07.

In this instance, Fannie Mae’s complaint was devoid of any of the above jurisdictional allegations. With regard to Green Emerald, Fannie Mae alleged only that it was the owner of the property that was the subject of the foreclosure action, Such an allegation is not sufficient to authorize substituted service. Accordingly, since Fannie Mae “failed to plead the required statutory prerequisites or to allege the ultimate facts that invoke the statute,” we hold that it did not perfect substituted service on Green Emerald. Alhussain, 712 So.2d at 807 (reversing order denying motion to quash service of process because the complaint failed to allege the necessary statutory jurisdictional requirements, i.e,, the defendant was either a nonresident or was a Florida resident concealing his whereabouts); see also Jupiter House, 198 So.3d at 1123 (same); Mecca, 954 So.2d at 1182-83 (same).

Furthermore, we are unpersuaded by Fannie Mae’s argument that it was unnecessary for it to make jurisdictional allegations because section 605,0117 created an independent method of service of process for limited liability companies. We find no provision .in section 605.0117 that would relieve Fannie Mae of .its obligation to plead the requisite jurisdictional allegations when effecting substitute service of process. Although we recognize that section 605.0117(3) authorizes a plaintiff to serve a defendant through substitute service of process on the Secretary of State, such a provision does not establish a new method of service of process. Indeed, on a closely related issue, this court found that section 605.0117 did not create a new, independent method of effecting substitute service on a defendant. See Green Emerald Homes, LLC v. Nationstar Mortg., LLC, 210 So.3d 263, 264-65 (Fla. 2d DCA 2017). Rather, this court agreed that a plaintiff was still required to comply with the notice requirements in section 48.161. Id. at 265 (citing Jupiter House, 198 So.3d at 1124).

Finally, although neither party brought it to our attention, we note from our own review of chapter 48 that section 48.062 provides for service on limited liability companies and refers to section 48.181. It states that “if, after reasonable diligence, service of process cannot be completed ..., service of process may be effected by service upon the Secretary of State as agent of the limited liability company as provided for in s. 48.181.” § 48.062(3).

III. CONCLUSION

For the foregoing reasons, the trial court erred in denying Green Emerald’s motion to quash service and to vacate default and final judgment in favor of Fannie Mae. Accordingly, we reverse the order denying the motion to quash and vacate default and final judgment, and we remand this case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

LaROSE, C.J., and KHOUZAM, J., Concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(5).

      . Section 605.0117 was enacted as part of the Florida Revised Limited Liability Company Act, sections 605.0101-.1108, which became effective on January 1, 2014. See ch. 2013-180 §§ 2, 29, Laws of Fla. (2013).

      . We need not address the other two issues that Fannie Mae raised in its answer brief. Green Emerald clearly preserved the main issue for appeal. Also, the issue of whether the trial court’s order arrives here with a presumption of correctness is not in dispute.

      . Like section 605.0117, section 48.062 was enacted as part of the law that created the Florida Revised Limited Liability Company Act. See ch. 2013-180, § 3, Laws of Fla. (2013).