text:
    Angela Kay KIRSCHNER n/k/a Angela Kay Ramsier, Appellant, v. Jonathan Jay KIRSCHNER, Appellee.
    No. 4D17-851
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Martin L. Haines, III of Brinkley Morgan (formerly of Martin L. Haines, III, Chartered), Lake Park, for appellant.
    Jonathan Jay Kirschner of Jonathan Jay Kirschner Esq. & Associates, LLC, Fort Pierce, for appellee.
    ON APPELLEE'S MOTION FOR CLARIFICATION/REHEARING
   Gerber, C.J.

We grant appellee's motion for clarification/rehearing as to the factual points raised in paragraphs 2.A. and 2.B., deny the remainder of appellee's motion for clarification, withdraw our opinion dated January 24, 2018, and substitute the following opinion in its place.

The former wife appeals from the circuit court's final order partially denying her motion to enforce the final judgment regarding the parties' marital settlement agreement ("MSA") as amended by an addendum. The former wife raises several arguments, two of which we conclude have merit: (1) the court erred when it interpreted the MSA addendum as unambiguously treating the former husband's sale or refinance of the parties' former marital home as a condition precedent to the former husband's obligation to pay the former wife's equitable distribution; and (2) the court erred when it found that the former husband made diligent efforts to sell and refinance the home. We agree with these arguments and reverse for an evidentiary hearing to resolve the ambiguity as to when and how the former husband, without the sale or refinance of the home, would become obligated to pay the former wife's equitable distribution.

We present this opinion in the following sections:

1. the procedural history;
2. the circuit court's findings; and
3. our review of
a. the circuit court's error in interpreting the MSA addendum; and
b. the circuit court's error in finding the former husband made diligent efforts to sell and refinance the marital home.

1. Procedural History

The MSA's original paragraph four stated, in pertinent part:

4. SALE OF MARITAL DWELLING: The parties agree to sell the marital dwelling above-referenced. The marital dwelling shall first be listed independently, or though [sic ] an internet based listing service without use of a broker. The dwelling shall be listed at a price mutually agreed upon by the parties. In the event a sale is unable to be made by the method outlined above, the parties agree to list the marital dwelling with [a] Florida Registered Real Estate Broker chosen by mutual agreement of the parties, at a price to be mutually agreed upon by the parties.
The parties agree to sell the marital dwelling at or near it's [sic ] fair market value, and neither party's agreement to sell shall be unreasonably withheld....

Later, the parties agreed to amend the MSA through an addendum which stated, in pertinent part:

Paragraph number 4 of that certain Agreement styled "Marital Settlement Agreement[,]" executed by the parties on March 7, 2007, relating to "Sale of Marital Dwelling" is and shall be modified to the following extent:
The parties acknowledge and agree that the fair market value of the marital dwelling ... is $725,000.00.
The parties acknowledge and agree that their [sic ] exists a first mortgage on said property ... with an outstanding payoff amount of $328,000.00.
The parties likewise agree that the total equity position in the property, as it currently exists, is $397,000.00, and both the Husband and the Wife are entitled to one-half of that amount (50%) to wit: $198,500.00 each.
Upon execution of this agreement, the Wife agrees to execute an instrument conveying all of her right, title and interest in the marital dwelling to the Husband. The parties agree that the Husband shall, within ten (10) days of the date this Addendum is executed by both of the parties with appropriate formalities, pay to the Wife the sum of $80,000.00.
The parties acknowledge and agree that the remaining sum due to the Wife, to wit: $118,500.00, shall be paid to the Wife, at the time of closing. The house will be sold pursuant to the provisions of paragraph number 4 of the "Marital Settlement Agreement" ....
In the event the marital dwelling is not sold within five (5) years of the date this Agreement is executed, the Husband agrees to make diligent efforts to refinance the property, in order to pay to the Wife, the remaining sum due to her, of $118,500.00.
The Wife shall be entitled to no other monies, irrespective of the ultimate sale price of the marital dwelling, and should the marital dwelling sell for less than $725,000.00, then the Husband shall pay to the Wife, by any means available to him, the sum of $118,500.00.

The circuit court entered a final judgment approving of the MSA as amended by the addendum.

Six years later, the former wife filed a motion to enforce the final judgment regarding the MSA as amended. Among other things, the former wife asked the circuit court to:

[R]equire the Former Husband to pay to the Former Wife the sum of One Hundred Eighteen Thousand Five Hundred Dollars ($118,500), together with interest, immediately. In the event the Court deems it necessary for the Former Husband to first sell or refinance the Former Marital Home in order to pay to the Former Wife the sum of One Hundred Eighteen Thousand Five Hundred Dollars ($118,500), the Court should Order same to be done immediately.

At the evidentiary hearing on the former wife's motion, the parties agreed that pursuant to the MSA addendum's terms, the former wife quitclaimed her interest in the former marital home to the former husband, the former husband paid $80,000 to the former wife, and the former husband still owed $118,500 to the wife. The remainder of the hearing focused on the former husband's unsuccessful efforts to sell or refinance the former marital home.

The former husband testified that, at the time of the evidentiary hearing, the former marital home had been listed on the real estate market for several months at $725,000, which was above its then fair market value. Before that listing, the home had not been listed for approximately seven years. Seven years earlier, the former husband listed the home for $979,000, which also was above its fair market value. The parties stipulated that the former husband's realtor showed the home several times when it was first listed, but the home did not receive any offers.

The former husband testified that he did not list the home during that seven year period because the home was "underwater," had depreciated in value by 65%, and listing the home would have been futile. The former husband admitted that during this time, he was not motivated to sell the home to satisfy his equitable distribution obligation to the former wife, because, as documented in a letter he sent to the former wife's counsel, she would "attain her desired windfall, leaving nothing remaining for me."

The former husband testified that, after he was unable to sell the home, he attempted four times to refinance. His first attempt was denied due to insufficient collateral, as the home's fair market value was listed at $367,951. His later attempts were denied because he was not current on his mortgage payments. He attempted to refinance even though he thought he would not qualify. However, his most recent attempt was only four years before the evidentiary hearing. He said that he would make another attempt to refinance and expected to be successful.

The former husband felt he had no obligation to make the $118,500 equitable distribution payment to the former wife until he sold or refinanced the home. According to the former husband, the MSA addendum provided that only if he sold or refinanced the home and was unable from those funds to make the $118,500 equitable distribution payment to the former wife would he be required to find an alternative payment method. The former husband agreed that if he sold the home for an amount between $585,000 and $600,000, he would be able to pay off the home's two mortgages and make the $118,500 equitable distribution payment to the former wife.

Towards the end of the former husband's testimony, the following discussion occurred between the court and the former husband:

THE COURT: [A]s I read [the MSA addendum], you know, the house part, "It is acknowledged and agreed the remaining sum due the Wife, the 118,[500] shall be paid to the Wife at the time of closing. In the event it's not sold within five years, the Husband agrees to make diligent efforts to refinance the property in order to pay the Wife." It's not in order that both of you walk away with some money. It's in order to pay the Wife the remaining sum due to her of 118,5[00]. And it even has the condition that should the marital dwelling sell for less than 725,[000] the Husband shall pay the Wife by any means available to him the sum of 118,5[00]. So you guys actually contemplated the house not selling for enough, not selling at a high enough rate or sale price to pay her the 118[,500] that you would otherwise get money from whatever means possible.
[FORMER HUSBAND]: I was trying to be fair in the agreement and guarantee her that money.
THE COURT: So you['re] not selling the home at a rate lower than what would pay her off and leave you some additional funds would mean that this is an endless contract, that you could just keep waiting and waiting and waiting and waiting, right?
[FORMER HUSBAND]: Judge, I've listed it at 725[,000]. That doesn't mean that I wouldn't sell it for less. Putting it above market is for the purpose of getting lucky.

Following the testimony, the former wife argued that the MSA addendum did not contain a condition precedent that the former husband be able to sell or refinance the home before being required to make the $118,500 equitable distribution payment to the former wife. According to the former wife, if the court read such a condition precedent into the MSA addendum, then she never would be paid the remaining $118,500 if the former husband never sold or refinanced the home.

In response, the former husband argued that the former wife's request for him to make the $118,500 equitable distribution payment without the sale or refinance of the home would require the court to impermissibly rewrite the MSA addendum. According to the former husband, the MSA addendum's plain language created a condition precedent that he would not be required to make the $118,500 equitable distribution payment to the former wife until he sold or refinanced the home. The former husband argued that the former wife's only remedy was to have the court reduce the debt to a money judgment.

2. The Circuit Court's Findings

After the evidentiary hearing, the circuit court entered a final judgment stating, in pertinent part:

The Former Wife seeks a ruling that the Court determine that neither the sale nor the refinancing of the former marital residence are conditions precedent to payment by the Former Husband to the Former Wife of One Hundred Eighteen Thousand Five Hundred Dollars ($118,500). However, to do so would require a "rewriting" of the terms of the Agreement entered into by the parties. Although the agreement does not specifically state that the sale or refinancing is a condition precedent to the payment, a review of the entire agreement and the clear intent of the parties that the payment would be made after the sale of the home or refinancing of the home results in the determination that the condition exists. Reilly v. Reilly , 94 So.3d 693 (4th DCA 2012). Noteworthy also is that the agreement also does not require the payment of the $118,500.00 at any specific time, or within any time period, other than after sale or refinancing. It does require that "[t]he house will be sold pursuant to the provisions of paragraph number 4 of the 'Marital Settlement Agreement' executed by the parties on March 7, 2007" and if the home does not sell within five (5) years of the agreement, then "the Husband agrees to make diligent efforts to refinance the property, in order to pay the Wife, the remaining sum due to her, of $118,500.00." The unrefuted testimony of the Former Husband was that the marital home was the primary marital asset and its division was the major part of the equitable distribution agreement. It was to be used, either upon sale or a refinancing "in order to pay the Wife, the remaining sum due to her, of $118,500.00." Only if the marital dwelling should "sell for less than $725,000.00, then the Husband shall pay to the Wife, by any means available to him, the sum of $118,500.00." It is clear in the agreement that the home's equity was to be the primary source for the payment of the money to the Former Wife.
....
A marital settlement agreement is interpreted like any other contract. Absent any evidence that the parties intended to endow a special meaning in the terms used in the agreement, the unambiguous language is to be given a realistic interpretation based upon the plain, everyday meaning conveyed by the words. See Feliciano v. Munoz-Feliciano , 190 So.3d 232 ( [Fla.] 4th DCA 2016). Also, quoting Feliciano, Id. at 234, "[h]ad the parties intended this to be a general debt obligation, such a contract would have been simple to craft, as they simply could have omitted the 'from the other parties share of the proceeds' clause. Given that the parties chose to include this language in the contract it must be given some meaning. Here, that meaning is clear." As noted earlier in this matter, the parties chose to use the words "... shall be paid to the Wife at the time of closing ..." and "... diligent efforts to refinance the property, in order to pay the Wife, the remaining sum due to her, of $118,500.00." Although the Former Wife argues that the agreement should be interpreted as requiring a general debt obligation, which could be viewed as being a reasonable requirement in order to finalize the equitable distribution of the asset, the Court cannot modify the agreement for a specific result. The Former Wife was to be paid after closing on the home or upon the refinancing of the home.

(emphasis omitted).

The court went on to find that although the MSA's original paragraph four stated that the home would be listed "at a price mutually agreed upon by the parties," no evidence was presented at the evidentiary hearing that the parties ever discussed or agreed upon a listing price. Thus, the court held the former husband was not required to list the home at any particular price. Moreover, the court found the home "almost continuously remained on the market since [2008]."

As for the MSA addendum's provision that if the home did not sell within five years, the former husband was required to make diligent efforts to refinance the home to satisfy the monetary obligation to the former wife, the court found:

Although the term "diligent" is not defined in the agreement, a common definition would include that the Former Husband be attentive and persistent in attempting to accomplish the act of refinancing the home. The evidence includes that the Former Husband attempted refinancing in 2013 and 2014, with a total of 4 attempts. In 2014 the Former Husband fell behind on the making of the mortgage payments, then was able to get caught up, but fell behind again leading to the foreclosure action .... As the dismissal of the foreclosure action occurred in November, 2016, the Former Husband testified that he is unable to refinance after so recently working out a remedial modification of his original loan to stop the foreclosure action. The Husband has the continuing obligation to diligently make efforts to refinance the home in order to satisfy the payment obligation to the Former Wife. While the Court finds herein that the Former Husband has, thus far, been diligent in that regard and that the recent foreclosure action has caused a further delay in the fulfillment of this obligation, the obligation nevertheless exists and the Former Husband must be diligent in attempting to refinance the home[.]

Based on the foregoing findings, the circuit court denied the former wife's motion to require the former husband to make the $118,500 equitable distribution payment to the former wife.

This appeal followed. The former wife argues the circuit court erred when it: (1) interpreted the MSA addendum as unambiguously treating the former husband's sale or refinance of the parties' former marital home as a condition precedent to the former husband's obligation to pay the former wife's equitable distribution; and (2) found that the former husband made diligent efforts to sell and refinance the home. We review each argument in turn.

3. Our Review

a. The circuit court erred in interpreting the MSA addendum.

"The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review. A marital settlement is interpreted like any other contract." Feliciano v. Munoz-Feliciano , 190 So.3d 232, 233-34 (Fla. 4th DCA 2016) (internal citations omitted). "A settlement agreement should not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation." Ballantyne v. Ballantyne , 666 So.2d 957, 958 (Fla. 1st DCA 1996). "As a general rule, conditions precedent are not favored, and the courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication." Reilly v. Reilly , 94 So.3d 693, 697 (Fla. 4th DCA 2012) (citation omitted).

We agree with the former wife that the court erred when it interpreted the MSA addendum as treating the former husband's sale or refinance of the parties' former marital home as a condition precedent to the former husband's obligation to pay the former wife's equitable distribution. We conclude the MSA addendum was ambiguous on this issue.

Reilly v. Reilly , 94 So.3d 693 (Fla. 4th DCA 2012), is instructive. In Reilly , per the MSA's equitable distribution scheme, the parties agreed, in pertinent part, to the following: "The Husband agrees to pay the Wife $15,177 from his share of the closing proceeds [from the sale of the former marital home] as and for equitable distribution." Id. at 696. Later, the marital home sold, but the sale did not produce profit. Id. The husband argued that the MSA's language created a condition precedent: if he received no proceeds from the home's sale, he was not required to pay the wife $15,177 as referenced in the MSA. Id. We rejected the husband's argument, reasoning:

In the equitable distribution provision ... there are no phrases of conditional performance. The former husband agreed to pay the former wife $15,177 as and for equitable distribution. Payment from the closing proceeds is not a condition precedent, only a source for the payment. The MSA was entered into more than a year before the parties sold the marital home so the parties did not know how much the proceeds of the sale would be. The MSA is silent as to what would happen if the proceeds were not enough but the $15,177 is specifically labeled as and for equitable distribution and is owed to the former wife. The trial court did not err in ordering the former husband to pay the former wife $15,177 as and for equitable distribution.

Id. at 697.

Here, as in Reilly , the MSA addendum contains no phrases of conditional performance. In essence, the former wife gave up her fifty percent interest in the former marital home in exchange for the husband's promise to pay her $118,500.00 in equitable distribution. Payment from sale proceeds or from a refinance is not a condition precedent, but only a source for the payment. The $118,500 is specifically labeled as being "due to the Wife." The MSA addendum's final sentence, which required the former husband to find an alternate payment method should the sale or refinancing result in insufficient funds, supports our interpretation.

However, this case is slightly distinguishable from Reilly , because in Reilly , the sale which the MSA contemplated in fact occurred (albeit for less money than the former husband anticipated), whereas here, the sale or refinance which the MSA addendum contemplated has not occurred. The MSA addendum is silent as to what would happen if the sale or refinance did not occur. In other words, without a sale or refinance, when and how would the former husband become obligated to make the $118,500 equitable distribution payment to the wife?

Because the MSA addendum does not answer that question, the MSA addendum is ambiguous. A contract contains a latent ambiguity where the "contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings." Schwartz v. Greico , 901 So.2d 297, 299 (Fla. 2d DCA 2005) (citation omitted). "[T]he latent ambiguity, which was not apparent at the time the contract was created, is revealed by the 'certain situation' that occurs during the performance of the contract." Id. at 300.

Here, that "certain situation" occurred when the former husband was unable to sell or refinance the home, and the MSA did not define when and how the former husband, without the sale or refinance, would become obligated to make the $118,500 equitable distribution payment to the wife. Thus, the circuit court was required to receive extrinsic evidence to determine the parties' intent when they entered into the contract as to how to handle that "certain situation." See White v. White , 141 So.3d 645, 646 (Fla. 4th DCA 2014) (when an MSA is ambiguous or unclear, the circuit court "may consider extrinsic evidence as well as the parties' interpretation of the contract to explain or clarify the language.") (citation omitted).

Crespo v. Crespo , 28 So.3d 125 (Fla. 4th DCA 2010), also is instructive. In Crespo , the parties' MSA stated that the husband owed the wife $145,000 as equitable distribution, and "in recognition of and exchange for the funds Wife shall receive for equitable distribution" the wife would give up any rights to a building which would solely belong to the husband. Id. at 127. The MSA did not specify a date of payment. Id. The wife later moved to enforce the MSA, arguing that payment was due immediately. Id. The husband argued the parties understood when the MSA was signed that the building's sale was the only possible source for payment. Id. The circuit court found the due date's absence in the MSA to be an ambiguity necessitating the consideration of extrinsic evidence. Id.

We affirmed, concluding that "[t]he MSA failed to specify a time for payment and was thus ambiguous as to the intent of the parties in that regard." Id. at 128. Thus, the circuit court properly decided to consider extrinsic evidence as to the parties' intent. Id. We also pointed out that "[t]he factual resolution of such an ambiguity as to the due date of the payment does not modify their agreement; it merely clarifies the inherent ambiguity therein." Id.

Here, like in Crespo , the MSA addendum failed to specify when and how the former husband, without the sale or refinance of the home, would become obligated to make the $118,500 equitable distribution payment to the wife. Thus, the circuit court should have considered extrinsic evidence as to the parties' intent. The factual resolution of such an ambiguity would not, as the circuit court here suggested, impermissibly modify the parties' agreement. Instead, such a ruling merely would clarify the ambiguity.

b. The circuit court's error in finding the former husband made diligent efforts to sell and refinance the marital home.

"We review the trial court's factual findings to determine whether they were supported by competent and substantial evidence." Segarra v. Segarra , 947 So.2d 543, 545 (Fla. 3d DCA 2006).

We agree with the former wife that competent, substantial evidence did not support the circuit court's findings regarding the former husband's efforts to sell and refinance the home.

The court found that the former husband had no obligation to list the former marital home at any particular price because the evidence showed the parties never discussed a sale price. However, Paragraph 4 of the MSA provided, in pertinent part: "The parties agree to sell the marital dwelling at or near it's [sic ] fair market value." The MSA addendum provided, in pertinent part: "The parties acknowledge and agree that the fair market value of the marital dwelling ... is $725,000.00."

The circuit court also found that the former husband made diligent efforts to sell the home, and that the former marital home "almost continuously remained on the market since [2008]." However, the husband admitted at the hearing that he did not list the home for a seven year period, and the record reflects that the husband never attempted to list the former marital home at its actual fair market value. The husband initially listed the home for sale at $979,000, well above the parties' agreed fair market value of $725,000. By the time the former husband listed the home at the parties' agreed fair market value of $725,000, this price was above the actual fair market value. Based upon an unsolicited realtor's appraisal and the former husband's own application for loan modification, the actual fair market value could have been anywhere between $409,000 and $499,870.

The circuit court should have concluded from these facts that the former marital home may not have sold because the former husband's asking price was consistently too high. The court also should have concluded that the former husband listed the home at an unrealistic price. The former husband interpreted the MSA's addendum to mean that if the home never sold and he was not able to refinance, then he would never be obligated to pay the equitable distribution to his former wife. And the former husband also openly admitted that he had no motivation to sell the home merely to satisfy his financial obligation to the former wife.

The circuit court's finding that the husband made four diligent efforts to refinance is also problematic. The former husband testified he thought he would not qualify for refinancing for a variety of reasons, including his impending foreclosure, and he attempted to refinance only because he felt obligated to do so.

Despite our conclusion that the circuit court erred in its findings regarding the former husband's efforts to sell and refinance the home, the result of the court's error remains the same as the result arising from the court's error in interpreting the MSA addendum. Because the MSA addendum failed to specify the outcome if the former husband did not sell or refinance, for whatever reason, the circuit court should have considered extrinsic evidence as to the parties' intent regarding how to handle that "certain situation."

Conclusion

Based on the foregoing, we reverse the circuit court's final order partially denying the former wife's motion to enforce the final judgment regarding the MSA as amended by the addendum. We remand for an evidentiary hearing to resolve the ambiguity as to when and how the former husband, without the sale or refinance, would become obligated to make the $118,500 equitable distribution payment to the wife. On all other arguments which the former wife raises, we affirm without further comment.

Affirmed in part, reversed in part, and remanded.

Ciklin and Levine, JJ., concur.


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    Jonathan OSORIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0654
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Grey Tesh, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Jonathan Osorio appeals his withhold of adjudication and sentence for multiple drug-related offenses following a plea. Appellant argues that the trial court erred by denying his motion to suppress inculpatory evidence which the police obtained during a warrantless search of his home. We agree and reverse.

Appellant, along with his father and brother, was arrested and charged with several drug-related offenses after two narcotics agents drove onto his family's rural property without a warrant and ultimately discovered marijuana and marijuana grow supplies in a barn behind the main house. Appellant moved to suppress the evidence supporting the charges against him on the grounds that it was obtained as the result of an illegal search. The matter proceeded to a suppression hearing wherein the following evidence was presented.

The State called the narcotics agents who arrested Appellant. The agents testified that prior to the day in question, they had been to Appellant's property three to five times for the purpose of surveilling a neighboring property. According to both agents, the prior owner of the property (who neither could name) gave them permission to be on the property but asked them to let him know they were there by knocking on the main house side door or, if no one answered, by going to the barn where the owner's son or nephew lived. One of the agents initially estimated that they had last been on the property within the last six months. However, after being confronted with evidence establishing that Appellant's family purchased the property in 2012 (thirty-two months prior to the date in question), both agents admitted that they had most likely not been on the property in almost three years. They also admitted that they did not check, or think to check, the property appraiser's website beforehand to ensure that the same person who gave prior consent still lived on the property. Finally, the agents admitted that none of the defendants in the case nor any members of their family gave them permission to be on the property. Both agents testified that their trip to the property on the day in question was "random."

With respect to the physical characteristics of the property, there are two structures on the property-a main home and a barn. The perimeter of the property is surrounded by foliage and a fence. The property was a rural tract located off of a very narrow road. On the day in question, the gate to the fence was open. The agents drove onto the property in an unmarked truck, parked near the main home, and knocked on the side door. While at the side door, one of the agents detected a light odor of marijuana in the air. However, the agent conceded that the "light odor" was not enough probable cause to obtain a warrant or conduct a warrantless search based on exigent circumstances. Shortly after the agents approached the home and knocked on the side door, a pitbull ran up to them, growling. The agents slowly walked back to their truck and then drove to the barn. They did not go to the front door or ring the front doorbell.

Upon arriving at the barn, the agents noticed that the main barn door was propped open and noted the overwhelming smell of marijuana. One of the agents walked through the open barn door and saw another partially open interior door. He also observed a case of ammunition and marijuana grow supplies, such as buckets and fertilizer. At this point, the agent became suspicious that the property owners were growing marijuana and announced his presence inside the barn. When no one answered, the agent went through the interior door and encountered Appellant and bags of marijuana on the ground. Appellant was detained while one of the agents made an electronic request for a search warrant. After obtaining and executing the search warrant, agents found pounds of marijuana, grow supplies, a honey oil extractor, ovens, cash, and two weapons.

Appellant's brother testified that he and his family occupied the property continuously since 2012 and had never met either of the agents nor given them permission to come on their property. The brother explained that the main house was located 170 feet from the road leading to the property and that the barn was another 100 feet from the home. Appellant and the brother lived in the barn. He also testified that there were "No Trespassing" signs posted along the tree line surrounding the property.

At the conclusion of the presentation of the evidence, the court denied the motion based on the following legal conclusions:

The burden in this case is on Defendants to establish by the preponderance of the evidence that they had a reasonable expectation of privacy on their premises to include an expectation that persons would not occasionally enter through the gate and approach their residence to talk to them. Because the law enforcement agents acted in good faith by driving onto the property through an open and unlocked gate and knocking on the side door of the residence, which due to the layout of the property and based on the previous owners' instructions was the preferred method of contacting the residents, they were legally on the property. The agents were on the premises to conduct a legitimate "knock and talk" with the residents who they believed still resided on the property. A "knock and talk" citizen's encounter does not constitute a search and seizure, as long as it does not violate a reasonable expectation of privacy. By driving onto the property through the unlocked gate and knocking on the side door, the agents did nothing different than any member of the public, including an "occasional deliveryman, salesperson, other solicitor, or neighbor," might do to contact the occupants of the premises, therefore the agents did not violate any reasonable expectation of privacy. Because the agents were legitimately on the property and knew from previous encounters with the residents that a member of the family lived in the barn and owned a pit bull, the "knock and talk" encounter was still reasonable and legal when, after no one answered their knock on the side door of the residence, the agents approached the barn to speak with the owner of the dog.

After the court denied his motion to suppress, Appellant entered a guilty plea, reserving his right to appeal the court's suppression ruling. This appeal follows.

The Fourth Amendment of the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend IV. As the United States Supreme Court held in Katz v. United States , 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a "search" occurs within the meaning of the Fourth Amendment when government action invades an individual's justifiable or reasonable expectation of privacy. Under Katz and its progeny, a reasonable expectation of privacy exists if the individual has exhibited an actual, subjective expectation of privacy which society is prepared to recognize as reasonable. See Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). When a citizen has a reasonable expectation of privacy, "police officers may not enter a [property] without a warrant, absent consent or exigent circumstances." Levine v. State , 684 So.2d 903, 904 (Fla. 4th DCA 1996).

In the instant case, the court's denial of Appellant's motion to suppress was based on a hybrid finding that the agents had the prior owner's consent to enter the property and that Appellant had no reasonable expectation of privacy as to the side door of the main house or the barn. We first address whether the agents' previous encounters with the former owner gave the agents the authority to enter the property and proceed to the side door of the main house and then the barn. The question for our resolution is one of duration. Although the duration of continuing consent has not yet been specifically addressed by a Florida court, cases from other jurisdictions establish that in the context of the Fourth Amendment:

[T]he proper rule is that a consent to search which is unlimited as to time or number of searches must be judged under a rule of reason.... [In this context,] what is reasonable is a factual determination to be made after considering all the circumstances under which the consent has been executed.... In judging what is reasonable deference should be given to the general rule that a consent is ordinarily given upon the understanding that the search will be conducted forthwith and that only a single search will be made.

People v. Shelton , 110 Ill.App.3d 625, 66 Ill.Dec. 367, 442 N.E.2d 928, 932 (1982) ; see also People v. Chism , 32 Mich.App. 610, 189 N.W.2d 435, 445 (1971) ("When consent is given to search an area, it does not mean the constitutional protection against unreasonable searches and seizures has been waived forever.").

The facts in this case are compelling. The consent upon which the agents relied was given by the previous owner approximately three years prior to the date of the search. There was no evidence that established the duration of the consent or the number of authorized encounters. Further, it is undisputed that Appellant and his family owned and occupied the property since 2012 and never spoke with or gave the agents their consent to enter the property. Against this backdrop, it is unreasonable to conclude that the prior owner's consent inured to the date of the search.

Next, we turn to the court's conclusion that Appellant had no reasonable expectation of privacy as to the side door of the main house or the barn. Generally speaking, private citizens do not have a reasonable expectation of privacy as to persons approaching the front door of their residence. See Nieminski v. State , 60 So.3d 521, 526 (Fla. 2d DCA 2011) ; see also State v. Morsman , 394 So.2d 408, 409 (Fla. 1981) ("[O]ne does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time."). Accordingly, "knock and talk" encounters, which occur when police officers "approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart," do not violate the Fourth Amendment because a privacy right is not implicated. Powell v. State , 120 So.3d 577, 584 (Fla. 1st DCA 2013). However, a homeowner may exhibit a subjective expectation of privacy as to the front door of their residence by "[p]utting up fences, and affirmatively taking express steps to exclude the public or other persons from using the area, seeing into it, or gaining access to the area." Ratcliff v. State , 783 So.2d 1099, 1101 (Fla. 5th DCA 2001). Additionally, "knock and talk" licenses only apply to front doors, not rear or side door entrances. Lollie v. State , 14 So.3d 1078, 1079, 1080 (Fla. 1st DCA 2009) (rejecting notion that in rural properties, officers may attempt to knock at side and back doors pursuant to a "knock and talk"); Waldo v. State , 975 So.2d 542, 544 (Fla. 1st DCA 2008).

In this case, Appellant's brother testified that their property was posted with "No Trespassing" signs. Neither agent refuted this testimony. Instead, both agents testified that neither was looking out for a sign because both felt that they had permission to be on the property regardless of the presence of any "No Trespassing" sign. There was also an aggressive pitbull roaming the property. These facts alone makes the validity of the agents' initial entry onto the property questionable. Powell , 120 So.3d at 584 ("homeowners who post 'No Trespassing'

or 'No Soliciting' signs effectively negate a license to enter the posted property" to conduct a "knock and talk"). However, even if the agents did properly enter the property, they approached the home's side door instead of the front door. This invalidated any "knock and talk" license and turned the agents' entry onto the property into a warrantless search. Waldo , 975 So.2d at 543-44.

Although we conclude that the agents' approach of the side door exceeded the scope of a valid "knock and talk," even if the agents had approached the front door, suppression was still required. The facts of this case establish that the barn was part of the main house's curtilage as it was within the same fenced-in area as the main house and was used as an extension of the home's living space. Moreover it was not readily observable from outside the property. See A.E.R v. State , 464 So.2d 152, 153 (Fla. 2d DCA 1985) (defining curtilage for purposes of the Fourth Amendment as "the ground and buildings immediately surrounding a dwelling and customarily used in connection with it"); State v. Sarantopoulos , 604 So.2d 551, 553 (Fla. 2d DCA 1992) (recognizing that area within home's fence is typically part of its curtilage); see also Pinyan v. State , 523 So.2d 718, 721 (Fla. 1st DCA 1988) (detached shed used as greenhouse was part of main house's curtilage when it was within the same fence and was protected from outside observation).

Officers are not permitted to exit the front door area and physically enter or look into other portions of the home or its curtilage pursuant to a "knock and talk." Friedson v. State , 207 So.3d 961, 965 (Fla. 5th DCA 2016) (officers conducted a warrantless search when, after performing a permissible "knock and talk" which went unanswered, they stepped off the porch and shone a light in an adjacent window); Powell , 120 So.3d at 584 ("Even when governmental agents are engaging in otherwise lawful 'knock-and-talks,' they can exceed the scope of a reasonable visit to a front door or porch through physical actions that encroach into areas in which the resident has a reasonable expectation of privacy."); Lollie , 14 So.3d at 1079 (officers conducted a warrantless search when, after knock at front door went unanswered, they went around the back of the house to knock at a different door and, in the process, saw incriminating evidence); Waldo , 975 So.2d at 543 -44 (officers conducted warrantless search when, after knock at front door went unanswered, they went into side and back yard and tried to get the occupants to respond at those locations); Maggard v. State , 736 So.2d 763, 765 (Fla. 2d DCA 1999) (same). Accordingly, the agents were not permitted to head towards the barn pursuant to a "knock and talk."

Despite the plethora of binding Florida law on the subject, the State urges a different conclusion, pointing to an unpublished decision from a federal district court. U.S. v. Diaz , 2009 WL 3675006 (N.D. Fla. Oct. 30, 2009). There, federal agents went on to the defendant's fifty acre property, which contained two residences and two barns, for the purpose of performing a "knock and talk." Id. at *1. As the agents were driving onto the property, they saw a truck move from one of the residences to one of the barns. Id. Based on the truck's movements, the agents went straight to the barn where they encountered the defendant emerging from a hidden hatch in the barn floor leading to a grow house. Id. After he was arrested, the defendant moved to suppress the evidence against him, arguing that the agents "exceeded the lawful purpose of their entry when they sought him out at the barn instead of going to the residence." Id. The district court denied the defendant's motion to suppress, ruling that an officer's "approach [pursuant to a knock and talk] is not restricted to the front door ... [i]f it appears that someone is in or around a house, officers may take reasonable steps to initiate contact by going to other areas of the property." Id. at *2.

The State's reliance on Diaz is contrary to established Florida law. Glass v. State , 736 So.2d 788, 788-89 (Fla. 2d DCA 1999) (officer was not authorized to enter backyard of home during "knock and talk" because he saw people in the back yard). Further, even if we were persuaded by Diaz , we would not use it to affirm the agents' actions because, unlike in that case where the agents had visual confirmation of someone's presence at the barn, the agents in this case left the main house and went to the barn without knowing whether anyone was actually at the barn at the time.

Having concluded that the agents did not have the property owner's consent to enter upon the land or any structure contained thereon and that there were no exigent circumstances, the agents' "knock and talk" license was limited to, at most, entering the property and approaching the front door. By approaching the side door and then going to the barn, the agents exceeded the scope of a valid "knock and talk." These actions violated the Fourth Amendment's guarantee against unreasonable search and seizures. Accordingly, the trial court erred in denying Appellant's motion to suppress all evidence confiscated at the barn and thereafter, regardless of a later issued warrant. Lollie , 14 So.3d at 1079-80 (suppressing all evidence found after officers converted "knock and talk" into warrantless search by entering back yard even though a subsequent warrant was obtained). Appellant's "convictions are therefore reversed and, because the suppression ruling was established as a dispositive issue, the [A]ppellant is entitled to be discharged." Id.

Reversed.

Gerber, C.J., and Klingensmith, J., concur.

      The specific charges were: one count of manufacture of a schedule I substance, one count of unlawful possession of property for the purpose of manufacturing a controlled substance, one count of possession of marijuana with intent to sell, and one count of possession of paraphernalia.

      In support of this conclusion, the court cited to an Eleventh Circuit case, U.S. v. Taylor , 458 F.3d 1201 (11th Cir. 2006), which the State likewise cites. In Taylor , the court held that law enforcement did not exceed the lawful scope of a "knock and talk" when, after knocking on the residence's front door, they heard and saw the defendant approaching them and moved towards the defendant. Id. at 1204 -05. The court reasoned that, "[s]uch a minor departure from the front door under these circumstances does not remove the initial entry from the 'knock and talk' exception to the warrant requirement." Id. at 1205. The agents' actions in this case were more than a "minor departure from the front door." Accordingly, we also reject the State's application of Taylor to this case.


author: Taylor, J.

text:
    Volvick VASSOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3401
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Aubrey Webb, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Volvick Vassor appeals his conviction and life sentence for first-degree murder. The state prosecuted appellant for first-degree murder on dual theories of premeditation and felony murder, based on allegations that appellant was a lookout during a residential burglary that resulted in the shooting death of the homeowner, Nelson Heck. We affirm as to all issues raised and write to address appellant's argument that the trial court erred in giving jury instructions on premeditation because there was insufficient evidence to support a premeditation theory for first-degree murder.

Appellant, along with co-defendants Jaquan Jean-Baptiste and Rivky Tamar, was charged by indictment with first-degree murder for killing Heck. The state alleged that the defendants acted "with a premeditated intent to cause the death of Nelson Heck and/or Nelson Heck's death occurred as a consequence of and while [the defendants] were engaged in the commission, or attempted commission of a burglary ...."

The evidence at trial established the following facts. On the evening of November 15, 2011, the victim's neighbor, James Keefe, was home when he heard sounds like gunshots nearby. He walked outside to his driveway, saw a car drive by, and then noticed the victim's front door wide open with the foyer light on. When Keefe walked over to the victim's house, he saw the victim lying face up in a pool of blood on the floor of the foyer. He contacted the Fort Lauderdale police.

During their investigation, the police learned that another neighbor had a surveillance system installed outside his residence in an apartment complex less than a quarter mile from the victim's house. The neighbor informed the police that he recorded a video around the time of the incident. The surveillance video showed two cars pull into the complex's parking lot. The video showed two men getting out of one car and entering the other car. At one point, the interior light in one of the cars was illuminated, and the neighbor saw the driver putting on gloves. The two cars then left the area. Less than five minutes later, the video captured the sound of gunshots.

Officer Erik Good watched the video multiple times, noting the physical characteristics and clothing of one occupant, later identified as appellant, who was wearing Adidas shorts. Officer Good also observed on the video a Ford Taurus or Fusion and a dark-colored, two-door Nissan Altima.

Officer Good patrolled the area in search of the vehicles and occupants he had seen on the surveillance tape. About ninety minutes after the initial call to police, and about five miles from the victim's house, Officer Good stopped a two-door, black Nissan Altima. The driver, appellant, matched the description of the man wearing Adidas shorts in the video. The officer handcuffed appellant and transported him to the police station.

At the station, officers took appellant's belongings, including his cellphone, and placed him in an interview room. One officer noticed that someone named "Gator Tom" was repeatedly calling appellant's phone, so the officer wrote down the caller's name and phone number. The phone was returned to appellant before his release from jail, and the police used both video and audio surveillance to monitor the calls he made while he was alone in the interview room.

The next day, the police located the Ford Taurus. Christopher Zetrenne's sister told the police that her brother had rented the car, which he had cleaned earlier that day. Zetrenne went to the police station, where detectives showed him photos from the surveillance video. Zetrenne admitted that he was the driver of the Ford and that appellant drove the Altima. Zetrenne denied being involved in the burglary and murder and said they were only there to smoke marijuana. The police released him. Zetrenne later pled to accessory after the fact and received probation.

After obtaining search warrants, the police searched the Ford and the Altima, finding the victim's blood inside both cars. Through cell tower data, the police obtained records showing numerous calls between appellant, Jean-Baptiste, Zetrenne, and "Gator Tom"-later identified as Tamar-on the day before the burglary and homicide. The records further showed that on the day of the burglary and homicide, there were more than forty calls between appellant and Zetrenne, and more than twenty calls between appellant and Tamar. On the day after the burglary and homicide, there were three calls from appellant to Jean-Baptiste and three calls from Jean-Baptiste to appellant.

Appellant and co-defendant Tamar were tried together. Jean-Baptiste testified that Tamar was the shooter. Jean-Baptiste said that on the night of the burglary and shooting, Tamar and Zetrenne picked him up in a Ford Taurus. They drove to a home, where Tamar exited Zetrenne's vehicle and walked into the backyard of the home. Around this time, appellant arrived driving a Nissan Altima. When Tamar returned from the backyard, he was carrying a black shirt wrapped up in his hand with something inside. He got into appellant's Altima. The two vehicles left and met outside another house. Tamar and appellant got into the Taurus, where Jean-Baptiste and Zetrenne were already seated. The four men discussed a plan, which involved appellant and Zetrenne watching for the police while Tamar and Jean-Baptiste walked up to the door of a targeted home to check for anyone present before breaking in. Jean-Baptiste and Tamar were to then remove items from the home and place them in appellant's and Zetrenne's vehicles.

When they arrived at the victim's home, Jean-Baptiste and Tamar exited the Taurus and walked up to the door, while Zetrenne turned the vehicle around. Appellant drove off. Tamar borrowed Jean-Baptiste's phone and called someone to confirm that they were ready before they rang the victim's doorbell. When the victim opened the door, Jean-Baptiste believed Tamar saw that the victim had a gun, because Tamar pushed Jean-Baptiste toward the victim. The two struggled on the floor and the victim shot Jean-Baptiste in the hand. Tamar then grabbed the victim and started hitting him in the head with a gun. As Jean-Baptiste ran from the home, he turned to see Tamar point a gun and shoot twice. They ran to the backyard, jumped a fence, and left in Zetrenne's waiting Taurus.

The three drove back to Jean-Baptiste's neighborhood. About two or three minutes later, appellant arrived. They discussed what had happened. Tamar told Jean-Baptiste he could not go to the hospital because they all would be incriminated. Later that night, appellant and Tamar went to Jean-Baptiste's home and discussed how police were everywhere and that they would get the bullet out of Jean-Baptiste's hand the following day. The next morning, appellant, Tamar, and Zetrenne picked up Jean-Baptiste and brought him to an apartment, where they watched the news about the shooting and used supplies from a drugstore to remove the bullet from Jean-Baptiste's hand.

During the state's case, the defense attacked Jean-Baptiste's credibility, based on his plea agreement for a reduced charge. After the state rested, defense counsel moved for a judgment of acquittal of first-degree murder, arguing that the state had failed to introduce sufficient evidence of premeditation. The trial court denied the motion.

Appellant took the stand and testified about his background and college prospects. He said he sold marijuana and was present at the scene only to handle a marijuana transaction and to give Jean-Baptiste a ride home. He denied any involvement in the burglary.

The trial court instructed the jury on first-degree murder, including both premeditation and felony murder theories. The trial court also instructed the jury on the law of principals, explaining that if a defendant helped another person commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the other things that the other person did, regardless of whether the defendant was present or not when the crime is committed or attempted.

The jury returned a general verdict finding appellant guilty of first-degree murder.

On appeal, appellant argues that the trial court erred by giving a first-degree murder instruction on the dual theories of premeditation and felony murder where there was no evidence to support premeditation. Specifically, appellant argues that because there is no way to know upon which alternative ground the jury based its verdict, and because the evidence was legally insufficient to support a premeditation theory, the verdict must be set aside.

"It is well established that a general jury verdict cannot stand where one of the theories of prosecution is legally inadequate." Fitzpatrick v. State , 859 So.2d 486, 490 (Fla. 2003). Florida courts have reiterated this principle in multiple cases. See id. at 490-91 (reversing the defendant's conviction for first-degree murder where the alternative theory of felony murder based on robbery and burglary was legally insufficient because entry into the victim's home was consensual, and there was no evidence that the defendant surreptitiously remained therein); Shavers v. State, 86 So.3d 1218, 1222-23 (Fla. 2d DCA 2012) (reversing the defendant's general verdict conviction for first-degree murder where the jury may have relied on a felony murder theory that was legally inadequate because the jury found the defendant guilty of a lesser-included offense that was not a qualifying offense for felony murder);

Phillips v. State , 100 So.3d 249, 249-50 (Fla. 4th DCA 2012) (holding that a jury instruction on felony murder which set forth a predicate felony of attempted murder was legally invalid, where attempted murder had not been a predicate felony of felony murder at the time of the defendant's offense); see also Valentine v. State , 688 So.2d 313, 317 (Fla. 1996) (invalidating an attempted first-degree murder conviction which rested on alternate theories of attempted first-degree premeditated murder and attempted first-degree felony murder where the court subsequently held that attempted first-degree felony murder does not exist in Florida; it was thus a legally unsupportable theory on which the jury may have relied).

Appellant argues that this principle should apply to his case because the state proceeded on two theories of first-degree murder: one which was supportable (felony murder), and the other which was not (premeditation). He contends that there was no evidence whatsoever of premeditated murder, and that the evidence at trial showed that the defendants were surprised when the victim answered the door. Appellant's case, however, is distinguishable from those cases where the general verdict was reversed because one of the alternative theories was legally inadequate.

Appellant relies on Mackerley v. State , 777 So.2d 969 (Fla. 2001), to argue that the trial court erred in giving an instruction on premeditation as an alternative basis for his first-degree murder conviction. In Mackerley, the Florida Supreme Court considered the following certified question from our court:

Is it harmless error when a defendant is convicted by general verdict for first degree murder on the dual theories of premeditation and felony murder where the felony underlying the felony murder charge is based on a legally unsupportable theory of which the defendant is nevertheless convicted, and there is evidence in the record to support the jury's finding of premeditation?

777 So.2d at 969. In answering the certified question in the negative, the court cited its decision in Delgado v. State , 776 So.2d 233 (Fla. 2000).

In Delgado , the defendant was convicted of two counts of first-degree murder by general verdict based on dual theories of premeditation and felony murder. 776 So.2d at 236. The supreme court reversed the defendant's first-degree murder convictions and remanded for a new trial, holding that the underlying felony (burglary) and thus the felony murder theory were legally inadequate. Id. at 242. The court ruled that the state relied upon an invalid theory of burglary to support the felony murder charge. Id . at 236, 241-42. It explained that the "remaining in" language of the burglary statute applied only to situations where there was consensual entry and the "remaining in" was done surreptitiously. Id. at 240. The court stated:

This is not a case where there was merely insufficient evidence to support the burglary charge. The jury in this case was instructed that a defendant can be found guilty of burglary, even if the initial entry was consensual, if the victims later withdrew their consent. This theory of burglary was also relied on by the State as the underlying felony to support the felony murder charge. Pursuant to our analysis in today's opinion, such a theory of burglary (and felony murder) is legally inadequate.

Id. at 242.

Delgado cited Yates v. United States , 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), wherein the United States Supreme Court "held that a conviction under a general verdict is improper when it rests on multiple bases, one of which is legally inadequate." 776 So.2d at 242.

The Delgado decision noted the distinction between a legally inadequate theory and a factually insufficient theory, citing language from Griffin v. United States , 502 U.S. 46, 112, 112 S.Ct. 466, 116 L.Ed.2d 371 (1881) :

In Griffin v. United States , 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed. 2d 371 (1991), the Supreme Court clarified that the Yates rule did not apply when the alternative ground was legally proper but failed because of insufficient evidence. See also San Martin v. State , 717 So.2d 462, 470 (Fla. 1998) ("While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory, reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient."). The Griffin court explained the distinction between a legally inadequate theory and a factually insufficient theory:
Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence , see Duncan v. Louisiana, 391 U.S. 145, 157[, 88 S.Ct. 1444, 20 L.Ed. 2d 491] (1968).

776 So.2d at 241-42 (quoting Griffin , 502 U.S. at 59-60, 112 S.Ct. 466 ) (emphasis added).

Here, unlike in Mackerley and Delgado , neither the premeditation nor the felony murder theory rested upon a legally inadequate theory. The trial court in this case did not provide an erroneous definition of premeditation or an erroneous jury instruction, and the felony murder theory was not based on a non-qualifying underlying offense or an erroneously-defined underlying offense. See Griffin , 502 U.S. at 59, 112 S.Ct. 466 ("the term 'legal error' means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence"). Appellant mainly challenges the sufficiency of the evidence to support premeditation for first-degree murder. However, as explained above, the relevant inquiry is not whether the state advanced a factually insufficient alternative theory, but rather whether the state advanced a legally inadequate theory. Here, the record does not show that the jury was led to rely upon a legally inadequate theory.

As the state correctly argues, Mackerley does not abrogate Florida's longstanding principle that a general guilty verdict may be upheld where the evidence is sufficient to establish either felony murder or premeditation. In this case, the evidence strongly supported first-degree murder based on the felony murder rule. And although the evidence of premeditation was weaker, premeditation was not a legally inadequate or an unconstitutional theory of first-degree murder. Moreover, any possible error in instructing on both theories would be harmless because the evidence supported a conviction based on felony murder. See Crain v. State , 894 So.2d 59, 75 n.16 (Fla. 2004) ("Because we determine that the evidence is sufficient to support a first-degree felony murder conviction, we decline to directly address Crain's argument that the evidence is insufficient to establish first-degree premeditated murder. Any error in instructing the jury on premeditated murder based on insufficient evidence of premeditation is necessarily harmless."); Jones v. State , 748 So.2d 1012, 1024 (Fla. 1999) ("[E]ven if the evidence does not support premeditated murder, any error in charging the jury on that theory is harmless where the evidence supports a conviction for felony murder, which has also been charged."). In other words, we need not reach the issue of the sufficiency of the evidence supporting premeditation because there was ample evidence supporting the felony murder theory. See Brown v. State , 644 So.2d 52, 53 (Fla. 1994).

In sum, because the state presented two legally adequate grounds for first-degree murder, premeditation and felony murder, and there was competent substantial evidence supporting felony murder, the trial court did not reversibly err in instructing the jury on both theories of first-degree murder. Any error is necessarily harmless. Accordingly, we affirm appellant's conviction and sentence.

Affirmed.

Warner and Damoorgian, JJ., concur.

      The jury found co-defendant Tamar, who did not testify, not guilty.

      After Delgado was decided, the Florida Legislature passed section 810.015, Florida Statutes (2001), which amended the burglary statute. See Fitzpatrick v. State , 859 So.2d 486, 493 (Fla. 2003).

      The trial court instructed the jury on first-degree premediated murder, based on the following:
      MURDER- FIRST DEGREE
      There are two ways in which a person may be convicted of first degree murder. One is known as premediated murder and the other is known as felony murder.
      To prove the crime of First Degree Premediated Murder, the State must prove the following three elements beyond a reasonable doubt:
      1. Nelson Heck is dead.
      2. The death was caused by the criminal act of VOLVICK VASSOR AND/OR RIVKY TAMAR .
      3. There was a premediated killing of Nelson Heck .
      An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.
      "Killing with premeditation" is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.
      The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.


author: Gerber, C.J.

text:
    Randy G. NAUGLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-2744 4D17-2745 4D17-3032 4D17-3303
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   Gerber, C.J.

We affirm the defendant's convictions and sentences following a plea. However, we remand for the circuit court to correct a scoresheet error.

As pointed out in the defendant's amended motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), two misdemeanor charges were erroneously scored as additional offenses instead of as prior offenses on the defendant's scoresheet. The circuit court denied the defendant's motion, adopting the state's reasoning that any error was harmless because the total points would not change as the result of any correction. We agree that the error was harmless because the sentence would have been the same. See Brooks v. State , 969 So.2d 238, 241 (Fla. 2007) (when scoresheet errors are presented via (1) direct appeal, (2) Florida Rule of Criminal Procedure 3.800(b), or (3) Florida Rule of Criminal Procedure 3.850, then "any error is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a corrected scoresheet").

However, the proper action should have been to grant the defendant's motion for the sole purpose of correcting the scoresheet. See Henion v. State , --- So. 3d ----, 2018 WL 2230718 (Fla. 4th DCA May 16, 2018) (affirming the defendant's sentence, but remanding for entry of a properly calculated scoresheet, even though the sentence would have been the same); but see McCool v. State , 211 So.3d 304, 305 (Fla. 1st DCA 2017) (where the defendant's scoresheet erroneously included a sixth "prior record" misdemeanor, sentence was reversed and remanded for resentencing based upon a correctly calculated scoresheet; rejecting the state's argument that the error was harmless because the points assessed for the sixth misdemeanor offense were the same as those that should have been assessed for misdemeanor battery as an "additional offense" on the scoresheet).

Based on the foregoing, we affirm the defendant's convictions and sentences, but remand for the circuit court to correct the scoresheet error. The defendant need not be present for the ministerial act of correcting the scoresheet on remand. Henion , --- So. 3d at ----.

Affirmed; remanded for correction of scoresheet only.

Warner and Forst, JJ., concur.


author: Per Curiam.

text:
    Linda PEDROZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2151
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant appeals the circuit court's denial of her motion to correct sentence under Florida Rule of Criminal Procedure 3.800(a), challenging the forty-year sentence imposed following a second-degree murder conviction. She has not shown that her sentence, imposed when she was a juvenile for the murder of her mother, violates the Eighth Amendment as construed by any decision of the Supreme Court of the United States. Nor has she identified any clear, binding Florida Supreme Court decision that requires resentencing. We note the Florida Supreme Court's recent decisions in both Morris v. State , --- So.3d ----, 43 Fla. L. Weekly S223a, 2018 WL 2146786 (Fla. May 10, 2018) and Williams v. State , --- So.3d ----, 43 Fla. L. Weekly S183, 2018 WL 1870518 (Fla. Apr. 19, 2018), involved concessions of error by the state.

Thus, we affirm based on Hart v. State , --- So.3d ----, 43 Fla. L. Weekly D970a, 2018 WL 2049668 (Fla. 4th DCA May 2, 2018) (en banc). As we did in Hart , we certify conflict with Cuevas v. State , 241 So.3d 947, 2018 WL 1219720 (Fla. 2d DCA Mar. 9, 2018), Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018), Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017), Alfaro v. State , 233 So.3d 515 (Fla. 2d DCA 2017), and Burrows v. State , 219 So.3d 910 (Fla. 5th DCA 2017). We also certify conflict with Katwaroo v. State , 237 So.3d 446 (Fla. 5th DCA 2018) and Tarrand v. State , 199 So.3d 507 (Fla. 5th DCA 2016).

Affirmed; conflict certified.

Ciklin, Levine and Kuntz, JJ., concur.


text:
    Jimmy Lee WARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1193
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

A simple addition error on appellant's sentencing scoresheet led the state, defendant, and the trial judge to believe that appellant's lowest permissible sentence was 99.45 months instead of 57.45 months. The scoresheet error is not harmless because the record does not conclusively show that the judge would have sentenced the defendant to the same 99.45 month prison term, having stated that he was not inclined to "go against" the scoresheet. See Brooks v. State , 969 So.2d 238, 241 (Fla. 2007) ("When scoresheet error is presented ... any error is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.") (emphasis in original). We therefore reverse and remand to the circuit court for resentencing.

Gerber, C.J., Gross and Conner, JJ., concur.


author: Conner, J.

text:
    Alden Benjamin WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2282
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant Alden Benjamin White appeals his conviction and sentence to life in prison with twenty-five years as a minimum mandatory, after a jury found him guilty of a second degree murder with a firearm that he committed when he was 17 years old. Appellant raises two issues on appeal: (1) his sentence is illegal because it does not provide for a subsequent judicial review as required for juvenile offenders by section 921.1402, Florida Statutes (2016) ; and (2) the trial court erred in not granting his motions for judgment of acquittal.

We affirm the denial of Appellant's motions for judgment of acquittal without discussion. The State concedes that the trial court should have provided for sentence review after 25 years as required by section 921.1402(2)(b). We accept the concession and remand for the trial court to provide for sentence review. § 775.082(3)(a)5.c. Fla. Stat. (2016) ("The court shall make a written finding as to whether a person is eligible for a sentence review hearing under s. 921.1402(2)(b) or (c).").

The trial court at sentencing considered the factors set out in section 921.1401(2) in deciding whether to sentence Appellant to life in prison. Thus, a new sentencing hearing with Appellant's presence is not required for this ministerial sentence correction. See Jordan v. State , 143 So.3d 335, 339 (Fla. 2014) (finding the defendant's presence is not required where resentencing "involves only a ministerial act"); Cook v. State , 225 So.3d 268, 269 (Fla. 4th DCA 2017) (affirming the sentence but remanding for the trial court to enter a written finding allowing for sentence review).

Affirmed in part and remanded with instructions.

Ciklin and Forst, JJ., concur.


text:
    John Louis ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1131
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Whitehead v. State , 21 So.3d 157 (Fla. 4th DCA 2009).

Damoorgian, Kuntz, JJ., and Fahnestock, Fabienne, Associate Judge, concur.


text:
    Christopher THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3742
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant argues that the circuit court erred by revoking his youthful offender designation while sentencing him for violating probation. The defendant is correct that "once a trial court imposes a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control." Smith v. State , 143 So.3d 1023, 1024-25 (Fla. 4th DCA 2014) (citation and internal quotation marks omitted). The reason for this requirement is because "[a] youthful offender designation carries certain benefits within the criminal justice system that are not available to non-youthful offender prisoners." Id. at 1025 ; § 958.11, Fla. Stat. (2010).

Nevertheless, the defendant presently is not entitled to relief because he did not preserve this error for review by either objecting at sentencing or timely filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Davis v. State , 223 So.3d 1106, 1109 (Fla. 5th DCA 2017) ("The trial court erred in not maintaining [the defendant's] youthful offender status when it sentenced him after violating community control. Nevertheless, [the defendant] is presently not entitled to relief because he did not preserve this error for review by either objecting at sentencing or by timely filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b).").

Accordingly, we affirm the defendant's sentence, but without prejudice to the defendan t seeking postconviction relief related to his youthful offender designation.

Affirmed without prejudice.

Gross and Conner, JJ., concur.


author: EDWARDS, J.

text:
    A.M., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1062
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017
    James S. Purdy, Public Defender, and Benjamin A. Schumann, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

A.M. appeals the trial court's denial of his motion to suppress a pistol the police gathered during a warrantless arrest incidental to the theft of a "bait vehicle." For the reasons set forth below, we agree that the trial court erred in denying the motion to suppress because the investigating officer had insufficient evidence to order a patrol unit to stop a different "non-bait" vehicle in which Appellant was riding as a passenger.

As part of normal operations, the sheriff's department placed a "bait vehicle" on the street to determine if somebody would attempt to steal it. Indeed, somebody did enter and drive the bait vehicle from its original location and parked it near a wooded area and a house. The investigating deputy, Deputy Schmeltzer, testified that he responded to the new location where he observed two males walking back and forth between the bait vehicle and the house. The car doors were already open when Schmeltzer arrived. He did not see either male touch the car doors, sit in, drive, move, or take anything from the bait vehicle. Specifically, he did not see A.M. sit in the car, take anything from or place anything in the car, or move the car. During the hours that he observed the bait vehicle, Schmeltzer observed A.M. lean into the vehicle twice.

Schmeltzer observed a second vehicle ("non-bait vehicle") arrive at the house, the two males he was surveilling got in, and the second vehicle left the house with four occupants. Schmeltzer radioed a request to have the non-bait vehicle stopped for the sole purpose of identifying the two males he observed near the bait vehicle. Deputy Bonetti, in a marked patrol car, stopped the non-bait vehicle based upon what he understood to be a felony stop for grand theft of a motor vehicle. Bonetti had no independent probable cause for the stop and assumed that the auto crimes unit requesting the stop had probable cause. Deputy Borrero was also involved in the stop; however, he also had no independent probable cause to stop or search the non-bait vehicle. The officers neither identified nor relied upon any traffic infractions as a basis for the stop. A K-9 officer and Borrero searched the occupants of the non-bait car. Borrero found a gun in A.M.'s waistband; however, police did not find the keys or anything else related to the bait vehicle in A.M.'s possession.

The State charged A.M. by delinquency petition with carrying a concealed weapon, possession of a weapon by a minor, and trespass in a conveyance. Defense counsel filed a motion to suppress all evidence resulting from the warrantless non-bait vehicle stop and search and argued that Schmeltzer's observations of A.M. did not support a reasonable suspicion that A.M. was committing a crime. The trial court denied the motion to suppress, finding that leaning into the bait vehicle twice was sufficient exercise of control over the stolen bait vehicle to justify probable cause that A.M. had committed grand theft of a motor vehicle, which in turn justified stopping and searching the non-bait vehicle and its occupants. At the subsequent disposition hearing, the trial court granted the defense motion for judgment of acquittal regarding the charge of trespass in a conveyance, finding that the State failed to prove A.M. had knowledge of the stolen nature of the bait vehicle. The court found sufficient evidence to find A.M. delinquent regarding the firearm charges and placed him on probation with restrictive terms, but withheld adjudication.

In order for a person to commit grand theft of a motor vehicle, he or she must exercise some control over the vehicle, and at a minimum have knowledge that he lacked permission to drive, occupy, or enter that vehicle. See M.D.S. v. State , 982 So.2d 1282, 1284 (Fla. 2d DCA 2002). The State does not claim that A.M.'s mere presence near the stolen bait vehicle supplied probable cause. Indeed, it is well settled that mere proximity to stolen property without more is insufficient. See Bronson v. State , 926 So.2d 480, 485 (Fla. 2d DCA 2006). However, the State argued below and on appeal that leaning into the bait vehicle twice over a period of hours, without more, provided probable cause. By leaning into the vehicle, A.M. certainly demonstrated some level of curiosity or interest in the bait vehicle; however, without more, this action is not evidence that he had committed or was committing any crime. See M.D.S. , 982 So.2d at 1284-85 (holding that juvenile's possession of the stolen vehicle's keys, which he claimed to have found outside the vehicle, would not support a finding of probable cause). Under the circumstances of this case, we hold that there was insufficient probable cause to stop the non-bait vehicle; thus, all evidence obtained from the unlawful stop should have been suppressed as fruit of the poisonous tree. See Wong Sun v. United States , 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly we reverse the trial court's order finding A.M. delinquent based on the firearm charges and order that there shall be no further proceedings against A.M. based on those charges as the State offered no evidence separate from that obtained during the stop.

REVERSED.

SAWAYA and BERGER, JJ., concur.