author: LaROSE, Chief Judge.

text:
    Damarcus J. KIRKLAND-WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1525
    District Court of Appeal of Florida, Second District.
    Opinion filed November 3, 2017

      Howard L. Dimmig, II,' Public Defender, and Ivy R. Ginsburg,’ Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Chief Judge.

Damarcus J. Kirkland-Williams challenges his judgment and sentences for first-degree felony murder while engaged in aggravated child abuse (count 1), and aggravated child abuse (count 2). We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm Mr. Williams’ judgment and sentences in all respects. We write to address his argument that the trial court erred in admitting Williams rule evidence.

Factual Background

Mr. Williams had been watching his girlfriend’s thirteen-month-old son, E.M., for most of the day on May 18, 2011. Early on May 19, E.M. died. He sustained multiple blunt trauma injuries to his head and lacerations to his liver and spleen. E.M. also had multiple bruises and contusions all over his body. Mr. Williams told detectives that E.M.’s injuries were accidental. He explained that when E.M. was crying, he accidently hit E.M. on his back a couple of times and squeezed his stomach. When E.M. continued to cry, Mr. Williams tossed E.M. towards the bed; E.M.’s stomach hit a dresser. Mr. Williams also stated that E.M. slid off the bed and bumped his head.

The State charged Mr. Williams with first-degree felony murder while engaged in aggravated child abuse, and aggravated child abuse. Prior to trial, the State filed a notice of intent to rely on Williams rule evidence and a supplemental argument in support. The State sought to admit a video recording and eyewitness testimony that less than three weeks before E.M.’s death, Mr. Williams struck F.M., E.M.’s two-year-old sister, several times at a public park. At the Williams rule hearing, the State presented the testimony of the eyewitness and of the officer who investigated the incident at the public park. The State also played the video recording. The eyewitness testified that E.M. was crying a lot; the eyewitness started recording Mr. Williams and saw Mr. Williams shake E.M. The recording depicted Mr. Williams striking F.M. several times with a blunt object and then picking up F.M. by the arm and striking her with the object repeatedly, resulting in “numerous bruises and contusions on her body.”

After viewing the video and the transcript of the interview between Mr. Williams and detectives, the trial court concluded as follows:

[T]he Court is going to find that both criminal acts, both of the incidents involving these children were committed within a very short period of time of each other; both of these incidents involved situations in which the defendant was the caregiver at the time that these incidents took place. These children were close in age. Their injuries were consistent with each other that they both sustained blunt trauma injuries and that the State should be allowed to use it to show the absence of mistake or accident, and I’m going to allow the Williams[ ] [rjule evidence in, the evidence during the trial.

At trial, the State presented the Williams rule evidence to the jury. The trial court explained the proper use of the Williams rule evidence to the jury before the eyewitness testified and in its final charge to the jury. The State also presented Mr. Williams’ statements to detectives about E.M.’s injuries, as well as other testimony and evidence concerning the trauma E.M. endured. Specifically, the State presented the testimony of Dr. Mary Mainland, the chief medical examiner who performed E.M.’s autopsy. She testified that E.M. received numerous strikes or blows from a blunt object. She discounted the possibility that falling on a blunt object would have caused E.M.’s extensive injuries. The jury found Mr. Williams guilty as charged. The trial court sentenced him to life in prison for count one, first-degree felony murder, and to thirty years in prison for count two, aggravated child abuse.

Analysis

Mr. Williams argues that (1) the Williams rule evidence was irrelevant and its prejudicial effect substantially outweighed its probative value, and (2) the State’s notice of intent was insufficient. “We review the trial court’s admission of Williams 'rule evidence for an abuse of discretion.” Corson v. State, 9 So.3d 765, 766 (Fla. 2d DCA 2009).

1. The Admission of the Williams Rule Evidence

Mr. Williams argues that the trial court abused its discretion when it admitted the Williams rule evidence because the evidence was not relevant when his defense was not that E.M.’s death was a mistake or an accident, but instead that Mr. Williams did not cause''.-the injuries that ultimately killed E.M. Alternatively, Mr. Williams asserts, even if the Williams rule evidence was relevant, its prejudicial effect substantially outweighed its probative value. More specifically, he contends that the emotional impact of the evidence improperly suggested to the jury that he had a propensity to hurt children. We disagree.

Section 90.404(2)(a), Florida Statutes (2011), provides that similar fact evidence of collateral crimes “is admissible when relevant to prove a material fact in issue,” such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” See also Wright v. State, 19 So.3d 277, 291-92 (Fla. 2009) (same).

Sadly, there are significant similarities between the incident involving E.M. and the incident involving F.M. The victims were siblings and resided with Mr. Williams. The victims were toddlers. Both victims were entrusted to Mr. Williams’ care at the time of the respective incidents. Witnesses placed Mr. Williams as the unsupervised caretaker of both victims when they were injured. E.M. was crying immediately before both incidents of abuse. The eyewitness testified that E.M. was -crying immediately before the incident involving F.M. Mr. Williams admitted to detectives that he became frustrated when E.M. would not stop crying; Mr. Williams hit and tossed him.

Both victims were struck repeatedly. Dr. Mainland testified that E.M.’s injuries could have resulted from someone striking the child with a blunt object numerous times. And the video clearly showed Mr. Williams repeatedly striking F.M. with a blunt object. Furthermore, both victims suffered similar injuries, bruises, contusions, and abrasions. Both victims were subjected to blunt force trauma. Aso, the temporal proximity between the incidents was close—both incidents occurred less than three weeks apart. See Evans v. State, 693 So.2d 1096, 1099 (Fla. 3d DCA 1997) (finding that .a prior incident that occurred two months before the homicide in question was not too remote in time to be relevant as collateral crime evidence). The circumstances are so strikingly similar as to point directly to Mr. Williams.

Accordingly, we conclude that the' Williams rule evidence was admissible to prove absence of accident, intent, identity, and opportunity. See Pausch v. State, 596 So.2d 1216, 1219 (Fla. 2d DCA 1992) (holding Williams rule evidence admissible to show the absence of accidental death when defendant stated that victim must have fallen on the floor while sleeping); Barber v. State, 781 So.2d 425, 428-29 (Fla. 5th DCA 2001) (holding collateral'offense testimony of'an infant’s injuries admissible to show identity, opportunity, intent, absence of mistake, and common plan or scheme when defendant claimed she did not cause the injuries of the victim, a different infant). Even though Mr. Williams did not raise the defense of accident at' trial, the Williams rule evidence was relevant to refute Mr. Williams’ claims to detectives pri- or to trial suggesting E.M.’s injuries were accidentally - sustained. See Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding Williams rule evidence relevant to eliminate the possibility of accident and show intent when defendant “claimed prior to trial that [victim] had injured herself by falling from the couch,”, even .though defendant did not raise accident as a defense at trial); Evans, 693 So.2d at 1102 (adopting the Court’s “sound reasoning” in Estelle); see also Moore v. State, 78 So.3d 46, 49-50 (Fla. 4th DCA 2012) (affirming the admission of Williams rule evidence because it was apparent from defendant’s pretrial statements that his anticipated defense was accidental death).

We also reject Mr. Williams’ argument that the-' probative value of the Williams rule evidence was substantially outweighed by the danger of unfair prejudice. See § 90.403 (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice .... ”). The presentation of the Williams rule evidence at trial was limited to establishing .an intentional act and to rebut Mr. Williams’ pretrial stater ments that E.M.’s injuries were accidental. The trial court properly instructed the jury on the.,proper use of the evidence before the eyewitness’s testimony and during the final charge. See McLean v. State, 934 So.2d 1248, 1263 (Fla. 2006) (holding that the probative value of the evidence of the collateral.offenses was not substantially outweighed by unfair prejudice when the evidence was not a feature of the trial and the trial court gave the necessary jm-y instructions). The Williams rule evidence was not a feature of the trial. See generally Fitzsimmons v. State, 935 So.2d 125, 129 (Fla. 2d DCA 2006) (evaluating the number of witnesses who testified concerning the collateral crime evidence and the prosecutor’s references to it during closing argument to determine whether it became a feature-of the trial). Thus, we conclude that the trial court did not abuse its discretion in admitting the evidence. The evidence was relevant, and its probative value was not substantially outweighed by the danger of unfair prejudice.

2. The Sufficiency of the Notice of Intent to Rely on Williams Rule Evidence

Mr.-,Williams claims that the trial court should have excluded .the Williams rule evidence because the State’s notice of intent to rely on such evidence was defective. He contends - that the State’s , notice failed to provide, with specificity, the reasons why it intended to offer the evidence. Mr. Williams relies on State v. Zenobia, 614 So.2d 1139, 1140 (Fla. 4th DCA 1993), where the Fourth District found the notice to be insufficient because the State, failed “to suggest in its notice what particular aspect—i.e., motive, opportunity, intent, preparation, plan, knowledge, or lack of consent—it [sought] to prove by such evidence.”

Mr. Williams’ reliance on Zenobia is unavailing. The State is not required to set forth in its notice the “specific reasons or explanations of what the jury might deduce from the [Williams rule] evidence.” Quinn v. State, 662 So.2d 947, 954 (Fla. 5th DCA 1995) (disagreeing with Zenobia). Instead, the State is only required to, “no fewer than 10 days before trial, ... furnish to the defendant or to the defendant’s counsel a .written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information.” § 90.404(2)(d)(1).

' The State filed its notice and supplement more than ten days before trial. The notice described the Williams rule evidence it sought to admit into evidence at trial. Further, the supplement detailed specific reasons and explained why the evidence-was relevant to show identity, intent, absence of .mistake or accident, common plan or scheme, and opportunity. The supplement also detailed the similarities between the incidents involving E.M. and F.M. This was more than adequate to meet the requirements of section 90.404(2)(d)(1).

For the foregoing.reasons, we find,no abuse of discretion in admitting the Williams rule evidence,, and we affirm Mr. Williams’, judgment and sentences.

Affirmed.

CRENSHAW and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MIDLAND FUNDING, LLC., Petitioner, v. Burton SCOTT, Respondent.
    CASE NO. 1D17-3631
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017.
    Rehearing Denied December 12, 2017
    Roberta G. Mandel of Mandel Law Group, P.A., Miamii of counsel to Joseph Rosen of Pollack & Rosen, P.A., Coral Gables, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Bared & Co., Inc. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) ("If petitioner has failed to make a prima facie showing of irreparable harm, we lack jurisdiction and will enter an order dismissing the petition.”).

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    Silas KENDRICKS, DOC #122288, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D17-1193
    District Court of Appeal of Florida, Second District.
    Opinion filed November 8, 2017
    Silas Kendricks, pro se.'
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We construe the petition for writ of certiorari in case number 2D17-1193, which seeks review of the Desoto County Circuit Court’s “Order Denying Petition for Writ of Habeas Corpus and Denying Motion for Appointment of Counsel,” as a summary appeal pursuant to Florida Rule of Appellate Procedure 9.141(b)(2), see Fla. R. App. P. 9.040(c); cf. Fla. R. App. P. 9.030(b)(2), and we dismiss as duplicative of the summary appeal of the same order in case number 2D17-1137.

Dismissed.

SILBERMAN, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. George J. DION, as personal representative of the Estate of Marion T. Dion, deceased, Appellee.
    Case No. 2D16-3632
    District Court of Appeal of Florida, Second District.
    Opinion filed November 8, 2017
    Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, Tampa; Charles R.A. Morse of Jones Day, New York, New York; Benjamin M. Flowers, of Jones Day, Columbus, Ohio; and Jason T. Burnette of Jones Day, Atlanta, Georgia, for Appellant.
    David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter; and William J. Wichmann of William J. Wichmann, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

R.J. Reynolds Tobacco Company appeals from a final judgment following a jury trial in this Engle progeny tobacco litigation case. We affirm the final judgment in all respects. As we did in Philip Morris USA Inc. v. Boatright, 217 So.3d 166 (Fla. 2d DCA 2017), we certify conflict with R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), on R.J. Reynolds’s argument pertaining to comparative fault. We also note that R.J. Reynolds seeks to preserve for further review its federal preemption and due process arguments, both of which have previously been rejected. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 430-31 (Fla. 2013); Philip Morris USA, Inc. v. Lourie, 198 So.3d 975, 977-79 (Fla. 2d DCA 2016), review denied, No. SC16-1629, 2017 WL 2628171 (Fla. June 19, 2017), petition for cert. filed, No. 17-401 (Sept. 15, 2017).

VILLANTI, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . See Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).


author: BADALAMENTI, Judge. SILBERMAN, Judge, SLEET, Judge,

text:
    Tippy MCCULLOUGH, Appellant, v. STATE of Florida Appellee.
    Case No. 2D16-31
    District Court of Appeal of Florida, Second District.
    Opinion filed November 8, 2017.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   BADALAMENTI, Judge.

Tippy McCullough stole a 2013 Cadillac XTS out óf a car wash in Manatee County. McCullough’s theft precipitated a high-speed police chase, during which she struck—and caused the death of—a bicyclist. She now appeals her judgment and sentences after entering an open plea of no contest to leaving the scene of a crash with death, fleeing or eluding a law enforcement officer causing serious bodily injury or death, vehicular homicide, grand theft of a motor vehicle, resisting an officer without violence, and driving with a suspended license. See §§ 316,027(2)(c), .1935(3)(b), 322.34, 782.071(1)(a), 812.014, 843.02, Fla. Stat. (2015). The trial court sentenced her to imprisonment for an overall length of thirty years,

McCullough challenges her sentences for leaving the scene of a crash with death, fleeing or eluding a law enforcement officer causing serious bodily injury or death, and vehicular homicide (“homicide offenses”). McCullough’s overarching argument on appeal is that the trial court violated her double jeopardy protections by sentencing her for all three of the homicide offenses. She contends that she can be punished for only one of the homicide offenses because they all related to a single homicide-r-that of the bicyclist. McCullough’s argument invokes what we will refer to as the “single homicide rule”—a judicially created extension of the constitutional and statutory double jeopardy bar. It provides that although a defendant can be charged and convicted under multiple criminal statutes for conduct causing another’s death during one criminal episode, that ■ criminal defendant can only be punished once for that death. See State v. Cooper, 634 So.2d 1074, 1074-75 (Fla. 1994); Houser v. State, 474 So.2d 1193, 1197 (Fla. 1985); Rodriguez v. State, 875 So.2d 642, 645 (Fla. 2d DCA 2004).

Bound by the supreme court’s Cooper decision, we hold that the trial court erred by sentencing McCullough for fleeing or eluding causing serious bodily injury or death and vehicular homicide, in contravention of the single homicide rule. We thus reverse and remand with, instructions for the trial court to vacate the vehicular homicide conviction and corresponding fifteen-year sentence. We affirm McCullough’s remaining convictions and sentences.

Double Jeopardy Framework in Florida

1. Constitutional and Statutory Framework

The Fifth Amendment to the U.S. Constitution and article I, section 9 of the Florida Constitution both protect individuals from being twice put in jeopardy for the same offense. A double jeopardy claim based upon undisputed facts presents a pure question of law, which we review de novo. Roughton v. State, 185 So.3d 1207, 1209 (Fla. 2016) (citing State v. Drawdy, 136 So.3d 1209, 1213 (Fla. 2014)). “The Double Jeopardy Clause presents no substantive limitation on the legislature’s power to prescribe multiple punishments, but rather, seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.” Id. (quoting Borges v. State, 415 So.2d 1265, 1267 (Fla. 1982)); accord Valdes v. State, 3 So.3d 1067, 1076 (Fla. 2009) (“[Tjhere is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishments.” (citing Hayes v. State, 803 So.2d 695, 699 (Fla. 2001))).

The legislature has codified the double jeopardy bar within section 775.021(4)(a)-(b), Florida Statutes (2015). Section 775.021(4)(a)-(b) is, at its core, a recitation of the well-known Blockburger test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (“[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied ... is whether each provision requires proof of a fact which the other does not.”). The Blockburger test is a rule of statutory construction which “serves as a means of discerning [legislative] purpose” only where there is no “clear indication of contrary legislative intent.” Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

The plain and ordinary language of section 775.021(4) unambiguously states that it is the legislature’s intent “to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent.” An individual who “commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively.” § 775.021(4)(a) (emphasis added). “[Ojffenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” Id.; see also Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

The legislature has prescribed three, and only three, exceptions to the statute’s aforementioned intent to punish for each criminal offense in the course of one criminal episode. The legislature does not intend to allow separate sentencing for related offenses (1) that “require identical elements of proof,” (2) that “are degrees of the same offense as provided by statute,” or (3) that “are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)(l)-(3).

Accordingly, “[ajbsent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test,” as set forth in section 775.021(4). Rodriguez, 875 So.2d at 644 (quoting Gordon v. State, 780 So.2d 17, 19-20 (Fla. 2001)).

2. Florida’s Single Homicide Rule

The single homicide rule was birthed from cases where a single manslaughter caused by an offender’s operation of a motor vehicle was punished by two manslaughter statutes, one of which simply cross-referenced the other. See Phillips v. State, 289 So.2d 769, 770-71 (Fla. 2d DCA 1974) (reversing manslaughter by culpable negligence conviction because defendant was also convicted and sentenced for operating a motor vehicle while intoxicated, stating “[i]n any case, only one judgment and sentence is appropriate”); Carr v. State, 338 So.2d 267, 267 (Fla. 1st DCA 1976) (“[Ajppellant could be adjudged guilty of only the one manslaughter which the jury found he committed by both of the two means specified.”); Stewart v. State, 184 So.2d 489, 491 (Fla. 4th DCA 1966) (“[T]he jury found the defendant guilty in one count charging manslaughter by culpable negligence and in the other count charging manslaughter by the operation of a motor vehicle while intoxicated. The same person was killed as a result of each criminal act. The information charged only one offense.”).

The supreme court formally adopted the single homicide rule in its 1985 Houser decision. 474 So.2d at 1197. There, the defendant was convicted and sentenced for both DWI manslaughter and vehicular homicide. Id. at 1194. Applying the Block-burger test, the First District held that because DWI manslaughter and vehicular homicide “each requir[e] proof of an element which the other does not,” punishing Houser for both crimes was permissible. Id. at 1196. The supreme court disagreed with the First District’s analysis and reversed. The supreme court reasoned that although it is true the pairing of DWI manslaughter and vehicular homicide satisfy the Blockburger test, “Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes.” Id. at 1197. It thus held that double jeopardy principles bar punishing Houser for both DWI manslaughter and vehicular manslaughter for causing a single death. Id. at 1196-97. In so holding, the supreme court clarified that the single homicide rule applies regardless of whether two offenses satisfy the Blockburger test. Id. at 1197; McKay v. State, 925 So.2d 1133, 1134 (Fla. 2d DCA 2006) (remanding to postconviction court because the single homicide rule was violated, even though “vehicular homicide and third-degree murder require different elements of proof’).

Since Florida’s statutory codification of the Blockburger test, courts have repeatedly reaffirmed the continuing viability of the single homicide rule. See State v. Chapman, 625 So.2d 838, 839-40 (Fla. 1993) (explaining that the.legislature’s codification of the Blockburger test did not affect its jurisprudence on the single homicide rule, holding that sentences for both DUI manslaughter and vehicular homicide violated the single homicide rule, and determining that section 775.021(4) did not abrogate Houser); Rodriguez, 875 So.2d at 645 (explaining that the single homicide “rule retains viability today”); Ivey v. State, 47 So.3d 908, 911 (Fla. 3d DCA 2010) (“Although the defendant’s criminal charges stem from two separate statutes, as stated in Houser and its progeny, we are convinced the Legislature did not intend to punish the single death here by two separate homicide convictions.”). -

Thus, even if our analysis of the statutory elements of two homicide offenses satisfies the statutory- double jeopardy bar prescribed by the-legislature in section -775.021, we are bound to apply the single homicide rule, which affords a second tier of double jeopardy protection. See Chapman, 625 So.2d at 839-40; Rodriguez, 875 So.2d at 644-45 (citing Lawrence v. State, 801 So.2d 293, 294-95 (Fla. 2d DCA 2001) (en banc)).

Double Jeopardy Analysis

Against this backdrop, we apply the statutory Blockburger test set forth by our legislature in -section 775.021,. and the single homicide rule, to the pairings of offenses which McCullough challenges.

1, Vehicular Homicide and Leaving the Scene of a Crash with Death

It is clear that vehicular homicide and leaving the scene of a crash with death do hot share the same elements. Vehicular homicide requires reckless operation of a vehicle, but leaving the scene of a crash with death does not' require that the vehicle be operated in-any particular manner. Compare § 782.071(l)(a) (vehicular homicide), with § 316,027(2)(c) (leaving the scene of a crash with death). Moreover, leaving the scene of a crash with death also' requires that a defendant willfully leave the scene of a crash, whereas vehicular homicide has no such element. Compare § 782.071(l)(a), with § 316.027(2)(c). Accordingly; these two offenses satisfy the statutory Blockburger test set forth in section 775.021(4). Lastly, the'two offenses are not degrees of the same offense, nor is one a lesser offense subsumed by the greater offense. § 775.021(4)(b)(2)-(3). Accordingly, McCullough’s convictions for vehicular homicide and leaving the scene of a crash with death satisfy the double jeopardy statute.

These two convictions also do not violate the single homicide rule. To establish the crime of leaving -the scene of a crash with death, the State need only prove that the defendant left the scene of a crash which resulted in death—not that the defendant caused • the death. § 316.027(2)(c) (requiring ■ only that the crash “results in the death of a person”). Our court has held that the single homicide rule only applies where both homicide offenses require the defendant to cause the death in question. See Lawrence, 801 So.2d at 295 (affirming convictions for DUI manslaughter and leaving the scene of a crash with death under the single homicide rale and reasoning that “although the offense of leaving the scene of an accident involving death requires a showing that the defendant , was involved in an accident resulting in death, it does not require a showing that the defendant actually caused the death”). Here, because vehicular homicide requires McCullough to actually cause a death and leaving the scene of. an accident with death does not, this pairing of offenses does not violate the single homicide rule.

2, Leaving the Scene of a Crash with Death and Fleeing or Eluding Causing Serious Bodily Injury or Death

Fleeing or eluding causing serious bodily injury or death requires.the willful attempt to flee or elude a law enforcement officer in an authorized patrol vehicle. § 316,1935(3). Leaving the scene of a crash with death does not contain such an element and instead requires willfully leaving the scene of a crash with death. § 316.027(2)(c). It is clear that these two offenses each require proof of an element that the other does not. Furthermore, this pairing of offenses does not fall under either of the enumerated exceptions'in sections 775.021(4)(b)(2) or (b)(3) because the two offenses are not degrees of the same offense, nor is one a lesser offense subsumed by the greater offense. As such, McCullough’s convictions for leaving the scene of a crash with death and fleeing or eluding causing serious bodily injury' or death satisfy the statutory Blockburger test. § 775.021(4).

Like the previous pairing, this pairing does not run afoul of the single homicide rule. To establish the crime of fleeing or eluding causing serious bodily injury or death, the State must prove that the defendant actually caused serious bodily injury or death. § 316.1936(3)(b). Ás we already explained, to establish the crime of leaving the scene with death, the State need only prove that the defendant left the scene of a crash which resulted in death, without having to prove that an offender caused the death, § 316.027(2)(c). Our decision in Lawrence again guides our 'conclusion. 801 So.2d at 295. We thus hold that sentencing McCullough for the crimes of leaving the scene with death and fleeing or eluding causing serious bodily injury or death satisfies the statutory Blockburger test and is not in contravention of the single homicide rule.

3. Vehicular Homicide and Fleeing or Eluding Causing Serious Bodily Injury or Death

We now arrive at the final pairing of offenses—second-degree vehicular homicide and fleeing or eluding causing serious bodily injury or death. We hold that McCullough’s sentences for both second-degree vehicular homicide and fleeing or eluding violate the single homicide rule.

Fleeing or eluding causing serious bodily injury or death requires that the defendant willfully flee or attempt to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding, the defendant (1) drives at a high speed or in any manner demonstrating a wanton disregard for the safety of persons or property, and (2) causes serious bodily injury or death to another person. § 316.1935(3)(b). Vehicular homicide requires that the defendant (1) kill a human being, (2) by the operation of a motor vehicle, (3) in a reckless manner likely to cause death or great bodily harm to another. § 782,Ó71(l)(a)'. “

In Cooper the supreme court approved of the Fifth District’s holding that convictions for DUI manslaughter and driving while license suspended (DWLS) causing death or serious bodily injury violated the single homicide rule. 634 So.2d at 1074-75. The DWLS statute at issue in Cooper contained language which is congruent to the fleeing or eluding statute here—the defendant must have caused “death of or serious bodily injury to another.” See Cooper v. State, 621 So.2d 729, 732 (Fla. 5th DCA 1993) (quoting § 322.34(3), Fla. Stat. (1991)), approved, 634 So.2d 1074 (Fla. 1994). The supreme court in Cooper paid no mind that DWLS causing death or serious bodily injury does not necessarily require that the offender cause the death of another. That is, the same crime can be committed if the offender causes serious bodily injury, not death. The Cooper court invoked the single homicide rule to reverse the sentence relating to DWLS causing death or serious bodily injury, even though DWLS causing death or serious bodily injury does not require death. We can discern no meaningful difference between DWLS causing death or serious bodily injury at issue in Cooper and the fleeing and eluding “caus[ing] serious bodily injury or death to another.” § 316.1935(3)(b) (emphasis added). According to the rationale in Cooper, that section 316.1935(3)(b) does not necessarily require that an individual cause the death of another to satisfy a prima facie case does not preclude it from being characterized as a “homicide” for the purpose of the single homicide rule. Indeed, the Cooper defendant caused the death of an individual and was convicted under a statute where death was not required to sustain a conviction—DWLS causing death or serious bodily injury.

Here, like the Cooper defendant, McCullough committed one homicide and was sentenced for two homicide offenses—vehicular homicide and fleeing or eluding causing serious bodily injury or death. Because McCullough was punished twice for causing the same death, we are compelled by supreme court precedent to hold that this pairing of convictions places McCullough in double jeopardy. See Cooper, 634 So.2d at 1075; Houser, 474 So.2d at 1197; Linton v. State, 212 So.3d 1100, 1102 (Fla. 5th DCA 2017); cf. Rodriguez, 875 So.2d at 645.

We are mindful that McCullough could have committed fleeing or eluding causing serious bodily injury or death even if the bicyclist did not die but rather suffered a serious bodily injury. But that mechanical, same-elements analysis is not appropriate to determine a violation of the protections of the single homicide rale. Just as in Cooper, McCullough was charged and sentenced pursuant to two statutes, one of which required causation of a death as a necessary element in all circumstances (vehicular homicide) and a second which could have been charged without any death (fleeing or eluding causing serious bodily injury or death). See §§ 316.1935(3)(b), 782.071(l)(a). We find no meaningful way to distinguish Cooper from the present case and thus are bound by its rationale. See Linton, 212 So.3d at 1103; cf. Crusaw v. State, 195 So.3d 422, 422 (Fla. 1st DCA 2016) (concluding that Cooper is controlling and holding that trial court erred by sentencing a defendant for both vehicular homicide and careless driving with suspended license causing death or serious bodily injury). But see McKinney v. State, 51 So.3d 645, 648 (Fla. 1st DCA 2011) (affirming the trial court’s punishment of a defendant for both fleeing or eluding causing serious bodily injury or death and third-degree murder under both section 775.021(4) and the single homicide rule, even if it was based on a single homicide).

We discern that the First District has been hesitant to apply the single homicide rule to fleeing or eluding causing serious bodily injury or death. In McKinney, the trial court sentenced McKinney for both third-degree murder and fleeing or eluding causing serious bodily injury or death. Id. at 646-47. On appeal, the First District reasoned that because fleeing or eluding causing serious bodily injury or death does not necessarily require a homicide, it is not a “homicide offense.” Id. at 648. Thus, the McKinney court, conducting a Blockbur-ger-type same-elements analysis, held that the single homicide rule is inapplicable where death is not the only means by which an offender may violate a statute, even if a single death resulted. Id. at 648-49. In so doing, the McKinney court did not consider Cooper and instead relied upon Houser and other appellate decisions reversing under the single homicide rule, where the pertinent statutes could only have been violated if the offender caused death. Id. at 647-48 (citing, inter alia, Houser, 474 So.2d at 1196-97; McKay, 925 So.2d at 1134; Rodriguez, 875 So.2d at 642).

Furthermore, the McKinney court did not adhere to the plain and ordinary language of section 775,021(4)(a), which only bars consideration of an “accusatory pleading” or “the proof adduced at trial” when a court is looking at two offenses and trying to decide “if each offense requires proof of an element that the other does not.” (Emphasis added.) No part of section 775.021 instructs courts to utilize the single homicide rule as though it were the statutory Blockburger test. On the contrary, Chapman made clear that the statutory codification of the Blockburger test did not affect our supreme court’s jurisprudence on the single homicide rule. 625 So.2d at 839-40. In other words, the McKinney court erred because it tried to import the alternative conduct analysis of section 775.021(4)(a) into its independent analysis of the single homicide rule. But to hold that the alternative conduct analysis of the statutory Blockburger test also applies to the single homicide rule is the same as holding that there is no single homicide rule at all. Confusion as to the applicability of the same elements test set forth in section 775.021(4) to the single homicide rule is evident in the case law. Compare McKinney, 51 So.3d at 647-48, with Crusaw, 195 So.3d at 422.

Accordingly, we certify conflict with McKinney because we do not believe that principles from the statutory Blockburger test impact our supreme court’s jurisprudence on the single homicide rule. We agree with the Linton decision, where the Fifth District applied Cooper to hold that convictions for fleeing or eluding causing serious bodily injury or death and DWLS causing death or serious bodily injury violate the single homicide rule. See Linton, 212 So.3d at 1102. Bound by Cooper, we hold that the sentencing court erred by punishing McCullough for both vehicular homicide and fleeing or eluding causing serious bodily injury or death.

Conclusion

The trial court erred by punishing McCullough for both her convictions for vehicular homicide and fleeing or eluding causing serious bodily injury or death because it violated the single homicide rule. Because fleeing or eluding causing serious bodily injury or death is a first-degree felony, we reverse and remand with instructions for the trial court to vacate the lesser, second-degree felony of vehicular homicide. See Cooper, 621 So.2d at 732. We affirm, however, McCullough’s conviction as-to leaving the scene of a crash with death, as its pairing with either of the. two aforementioned offenses does not constitute double jeopardy. Because we have affirmed her thirty-year sentence for leaving the scene of a crash with death,McCullough’s sentence of imprisonment for an overall length of thirty' years will remain unchanged. We affirm McCullough’s remaining convictions and sentences.

We also instruct the trial court to correct a scrivener’s error in the judgment to clarify that McCullough’s conviction for leaving the scene of a crash with death was pursuant to section 316.027(2)(c), not section 316.027(l)(b). See Mosely v. State, 688 So.2d 999, 999-1000 (Fla. 2d DCA 1997).

Affirmed in part; reversed in part and remanded with instructions; conflict certified.

SILBERMAN, J., Concurs with opinion.

SLEET, J., Concurs with opinion.

SILBERMAN, Judge,

Concurring,

I fully agree with' Judge Badalamenti’s thorough analysis and resolution of each of the double jeopardy pairings. I write to note two points. First, as to footnote six of the majority opinion, I do not read Valdes v. State, 3 So.3d 1067 (Fla. 2009), as casting doubt on the continued viability of the single homicide rule. Second, although McCullough’s appellate argument for-reversal focused primarily on the single homicide rule, the State argued for affir-mance based on. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In light of our conclusion that McCullough is entitled to relief under the single homicide rule, we need not address the State’s Blockburger argument. However, if we were to reach that issue I would agree with Judge Sleet that as to the pairing of vehicular homicide and fleeing or eluding causing serious bodily injury or death, a Blockburger analysis would not support affirmance.

SLEET, Judge,

Concurring.

I concur with Judge Badalamenti’s conclusion that McCullough’s convictions for first-degree fleeing or eluding a law enforcement officer causing serious bodily injury or death and second-degree vehicular homicide violate double jeopardy and that we must reverse her conviction and sentence for vehicular homicide and affirm her remaining convictions. However, unlike Judge Badalamenti, I conclude that McCullough’s convictions and sentences for both of these' offenses in this case not only violate the single homicide rule but also violate the Blockburger test as codified in section 775.021(4), Florida Statutes (2015). I write to discuss the proper application of the Blockburger test as set forth in section 775.021(4).

Under Blockburger, “[a] defendant is placed in double jeopardy where based upon the same conduct the defendant , is convicted of two offenses, each of which does not require proof of a different element.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006). Section 775.021(4)(a) sets forth the legislature’s intent that a defendant who

in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal' offenses, upon conviction and adjudication of: guilt, shall be sentenced separately for each criminal offense .... [Ojffenses are separate if each offense requires -proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial. ■

§ 775.021(4)(a); see also Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

In reviewing a double jeopardy claim, “we first consider whether the convictions arose from the same criminal transaction or episode.” Fleming v. State, No. 2D16-469, 227 So.3d 1254, 2017 WL 4272109 (Fla. 2d DCA Sept. 27, 2017) (citing § 775.021(4); Lee v. State, 223 So.3d 342, 348 (Fla. 1st DCA 2017)). If we conclude that they do, “we must then determine if the convictions were predicated- on distinct acts.” Id. (quoting Lee, 223 So.3d at 348). “In determining whether convictions arose from the same criminal episode or were based on distinct acts, ‘the reviewing court examines the entire record, including all evidence admitted at trial.’” Id. (quoting Lee, 223 So.3d at 349). “Only after determining that the convictions arose from the same criminal episode and were not based on distinct acts do we then consider whether each offense requires an element that the other does not.” Id. (citing Batchelor v. State, 193 So.3d 1054, 1058 (Fla. 2d DCA 2016)).

Here, there is no dispute that the charged offenses of first-degree fleeing or eluding a law enforcement officer causing serious bodily injury or death and second-degree vehicular homicide arose out of the same criminal episode and are both based on the death of the same victim. Therefore, the issue becomes whether each offense requires an element of proof that the other does not. I conclude that they do not and that therefore McCullough’s convictions for both offenses in this case constitute a double jeopardy violation under section 775.021(4).

The offense of vehicular homicide is subsumed within the offense of fleeing or eluding a law enforcement officer causing serious bodily injury or death in this case. The elements of vehicular homicide require a showing that the. defendant (1) killed a human being (2) by the operation of a motor vehicle (3) in a reckless manner likely to cause death or great bodily harm to another. § 782.071(l)(a), Fla. Stat. (2015). Fleeing or eluding a law enforcement officer causing serious bodily injury or death requires a showing that the defendant (1) willfully fled or attempted to elude a law enforcement officer in an authorized law enforcement patrol vehicle with siren and lights activated, (2) drove at a high speed or in any manner demonstrating a wanton disregard-for the safety of persons or property, and (3) caused serious bodily injury or death to another person. § ■ 816.1985.(8)00, Fla. Stat. (2015). While section 316.1935(3)(b) contains the additional elements of fleeing or attempting to elude a law enforcement officer, speeding, and causing serious bodily injury, each element of section 782.071(l)(a) is also an element of section 316.1935(3)(b). As such, vehicular homicide does not “require[ ] proof of an element that [fleeing or eluding a law enforcement officer causing serious bodily injury or death] does not.” See § 775.021(4). The offenses therefore cannot be considered separate offenses pursuant to the statute.

Because these two offenses do not pass the Blockburger test as codified in section 775.021(4), it is unnecessary to conduct a single homicide analysis in this case. Nevertheless, I concur with the result of Judge Badalamenti’s single homicide analysis and agree that McCullough’s sentences for both convictions also constitute a doublé jeopardy violation pursuant to the single homicide rule because they are for homicide offenses that are based on the death of a single victim. See State v. Cooper, 634 So.2d 1074, 1074 (Fla. 1994) (“[T]here can be but one penalty imposed for causing the death of a single victim.”); Houser v. State, 474 So.2d 1193, 1196-97 (Fla. 1985) (“[Ojnly one homicide conviction and sentence may be imposed for a single death.... Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes.”); Linton v. State, 212 So.3d 1100 (Fla. 5th DCA 2017) (holding that convictions for fleeing or eluding a law enforcement officer causing serious bodily injury or death and driving without a valid license causing serious bodily injury or death violate the single homicide rule where they were based on the same homicide); Ivey v. State, 47 So.3d 908, 911 (Fla. 3d DCA 2010) (reaffirming “the well-settled principle that a single death cannot give rise to dual homicide convictions”). See generally State v. Chapman, 625 So.2d 838, 839 (Fla. 1993) (holding that the enactment of section 775.021(4) did not overrule the Florida Supreme Court’s holding in Houser “that a single death cannot support convictions of both DUI manslaughter and vehicular homicide”).

Furthermore, I concur in certifying conflict with the First District’s opinion in McKinney v. State, 51 So.3d 645, 648 (Fla. 1st DCA 2011), in which that court held that fleeing or eluding a law enforcement officer causing serious bodily injury or death is not a homicide offense and that thus, the defendant’s convictions for fleeing and eluding and DUI manslaughter based on the death of a single victim did not violate the single homicide rule. That a violation of section 316.1935(3)(b) may be committed by causing serious bodily injury and not death does not alter the application of the single homicide rule; an appellate court is not precluded from considering the pleadings or evidence adduced at trial in determining whether a defendant has been convicted of two homicide offenses based on a single death. See, e.g., Crusaw v. State, 195 So.3d 422, 422 (Fla. 1st DCA 2016) (holding that convictions for vehicular homicide and careless driving with a suspended license causing death or great bodily injury violated the single homicide rule when “[tjhe information listed the same victim for both crimes”); Linton, 212 So.3d at 1102-03. In McKinney, the First District conflates the same elements test under section 775.021(4) and the single homicide rule, incorrectly stating that “[tjhe fact that [the defendant’s] conviction for fleeing or eluding was based upon a death, rather than serious bodily injury, is irrelevant to the double jeopardy analysis.” 51 So.3d at 648. As the First District explained in Lee, it is only when applying the same elements test—the third step of the double jeopardy analysis under section 775.021(4)(a)—that “the accusatory pleading or the proof adduced at trial” may not be considered. 223 So.3d at 350. Because section 316.1935(3)(b) includes the element of causing a death, it is a homicide offense. See Lawrence v. State, 801 So.2d 293, 294-95 (Fla. 2d DCA 2001). And when a conviction for fleeing or eluding causing serious injury or death is based on causing the death of a single victim, it is subject to the single homicide rule. See, e.g., Cooper, 634 So.2d at 1074; Crusaw, 195 So.3d at 422-23.

Finally, I disagree with Judge Badalam-enti that the Florida Supreme Court’s opinion in Valdes v. State, 3 So.3d 1067 (Fla. 2009), called into question whether the single homicide rule will remain good law. “Valdes involved convictions for both shooting from a vehicle and shooting into an occupied vehicle arising from a singular shooting incident that did not result in death. Thus, the Valdes court did not determine the double jeopardy consequences of dual homicide convictions arising from a single death.” Ivey, 47 So.3d at 910.

      . Although the parties do not dispute that McCullough was charged with and pleaded no contest to leaving the scene of a crash with death pursuant to section 316.027(2)(c), we note that the information and judgment, list section 316.027(l)(b) as the appropriate statute. This mistake appears to be due to a recent statutory reorganization. See ch. 2014-225, § 2, at 1-4, Laws of Fla. But this citation error is of no consequence because McCullough pleaded no contest to all necessary elements of this offense and was advised of the statutory maximum of thirty years’’ imprisonment during the change-of-plea colloquy. See Mosely v. State, 688 So.2d 999, 999-1000 (Fla. 2d DCA 1997) (“Because the information recited the appropriate factual description ... we treat the citation'to the incorrect statute as a scrivener’s error and remand this case for correction of the judgment .... ”).

      . When Phillips was decided, the statute which criminalized "operating a motor vehicle while intoxicated” stated that a death resulting from such operation was “manslaughter” and was to be punished "by existing law relating to manslaughter.” White v. State, 666 So.2d 895, 896 n.1 (Fla. 1996) (quoting § 860.01(2), Fla. Stat. (1975)).

      . In this case, vehicular homicide was not reclassified into a first-degree felony for failure to remain at the scene and comply with Florida’s statutory information-giving and aid-giving duties. See § 782.071(l)(b). If it had been so reclassified, these two convictions would have created double jeopardy. See Haag v. State, 67 So.3d 351, 352 (Fla. 2d DCA 2011); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000); Colon v. State, 53 So.3d 376, 378-79 (Fla. 5th DCA 2011); Ivey v. State, 47 So.3d 908, 911 (Fla. 3d DCA 2010); cf. Kelly v. State, 987 So.2d 1237, 1239 (Fla. 2d DCA 2008) (holding that reclassification to driving without a valid license with serious bodily injury created double jeopardy violation, where defendant was also sentenced for D.UI with serious bodily injury).

      . The legislature has clearly expressed its intent to allow for the crime of fleeing or eluding causing serious bodily injury or death to be charged together with leaving the scene of a crash with death, so long as the defendant was in the course of leaving the scene when they began to flee. § 316.1935(4)(b). McCullough was not, however, charged under section 316.1935(4)(b).

      . Unlike the prior two offense pairings, we need not conduct a section 775,021(4) double jeopardy analysis for this pairing because reversal is mandated mnder the single homicide rule.

      . It is unclear whether Cooper will remain good law based on our supreme court’s rationale in Valdes v. State, 3 So.3d 1067, 1077 (Fla. 2009), where the supreme court dispensed with the judicially created "primary” or "same evil test,” which is akin to die judicially created single homicide rule. That said, we are compelled to follow Cooper because the supreme court does not intentionally overrule its prior precedent sub silentio. See Puryear v. State, 810 So.2d 901, 905 (Fla. 2002).

      . This court hás explained that section 316.1935(3)(b)’s "wanton disregard” language is synonymous with section 782.071(l)’s "reckless operation” language. See State v. Del Rio, 854 So.2d 692, 693 (Fla. 2d DCA 2003).


author: LAMBERT, J.

text:
    Laura MURPHY, Appellant, v. CACH, LLC, Michael Murphy and Errol Equestrian Center, Inc., Appellees.
    Case No. 5D17-2384
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017

      Gary S. Israel, Orlando, for Appellant.
    Bryan Manno, Ashley L. Moore, and Tina D. Gayle, of Federated Law Group, PLLC, Juno Beach, for Appellee, Cach, LLC.
    No Appearance for other Appellees.
   LAMBERT, J.

Appellant, Laura Murphy, appeals the order denying her motion to quash service of process. Appellant asserts that the trial court never acquired personal jurisdiction over her because the amended affidavit of substitute service did not strictly comply with section 48.21, Florida Statutes (2015), as it does .not provide the name of the person upon whom service was .made. We agree and, as explained below, reverse and remand for further proceedings.

■ Appellant was sued for damages by Ap-pellee, Cach, LLC, for breach of a personal guaranty on a debt owed by a codefen-dant. The amended affidavit of service filed in this case states that - substitute service of process was obtained upon Appellant When a copy of the summons and a copy of the complaint with exhibits was personally left with “John Doe,” who was described in' the affidavit -of service as a “black-haired white male” and Appellant’s “co-residént.” The affidavit also relates that' service was obtained- at Appellant’s usual place of abode in Apopka, Florida, Appellant timely moved to quash service of process and, following a hearing at which no evidence was received, the trial court entered the unelaborated order now on appeal.

Where, as here, the trial-court’s ruling on a motion to quash service of process is based on issues of law, our review on appeal is de novo. Davidian v. JP Morgan Chase Bank, 178 So.3d 45, 47 (Fla. 4th DCA 2015) (citing Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 179 (Fla. 3d DCA 2011)). Further, “[statutes governing service of process must be strictly construed and enforced.” Koster v. Sullivan, 160 So.3d 385, 388 (Fla. 2015) (citing Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla. 2001)).

Appellee, as the party seeking to invoke the jurisdiction of the court over a party, bears the burden of proving proper service. Id. at 389. To that end, “[tjhe return of service is the instrument a court relies on to determine whether jurisdiction over an individual has been established.” Id. at 388 (citing Klosenski v. Flaherty, 116 So.2d 767, 768-69 (Fla. 1959) (holding that an officer’s return .of service “is merely evidence to enable the trial judge to conclude that the court has acquired jurisdiction of the person, of the defendant, or has not done so, as the case may be”)). Thus, “[i]f ... the return is defective on its face, [then] it ‘cannot be relied upon as evidence that the court acquired jurisdiction over the person of the defendant.’” Klosenski, 116 So.2d at 769 (quoting Gibbens v. Pickett, 31 Fla. 147, 12 So. 17, 18 (1893)).

The dispositive question in the present case is whether the amended affidavit of service of process is regular or valid on its face. Section 48.21 governs the return of execution of process. This statute provides in pertinent part:

(1) Each person who effects service of process shall note op a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the. position occupied by the person.- The.return-of-service form must be signed by the person who effects the service of process ....
(2) A failure to state the facts or to include the signature required by subsection (1) invalidates the service, but the return is amendable to state the facts or to include the signature at any time on application to the court from which the process issued. On amehdment, service is as effective as if the return had originally stated the omitted facts or included the signature....

§ 48.21, Fla. Stat. (2015). Therefore, for a return of service of process to be facially •valid; it must include the following four facts: (1) the date and time the pleading is received ■ by the process server; (2) the date and time that process is served; (3) the manner of service, and (4) the name of the person served and, if served in a representative capacity, the position occupied by the person. Koster, 160 So.3d at 389 (citing Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 472 (Fla. 5th DCA 2007)).

Here, the amended affidavit of service of process is facially deficient under section 48.21 because it does not contain the name of the person served. Providing a physical description of "John Doe” in lieu of providing the individual’s name is insufficient compliance with section 48.21. Vives v. Wells Fargo Bank, N.A., 128 So.3d 9, 15 (Fla. 3d DCA 2012); see also Gonzalez v. Totalbank, 472 So.2d 861, 864 (Fla. 3d DCA 1985) (holding that return of service indicating that a Jane Doe was served was defective under section 48.21 and the service was invalid). Consequently, Appellee never met its initial burden of establishing proper service of process, personal jurisdiction over Appellant' has not been shown, and the trial court erred in denying Appellant’s motion to quash.

Finally, we reject Appellee’s argument that Appellant waived her objection to personal jurisdiction based upon her filing a motion to dismiss and a contemporaneously filed motion for protective order. Appellant filed these motions after the trial court entered its written order denying Appellant’s motion to quash and order'ed her to answer Appellee’s complaint and to respond to the outstanding discovery. A defendant who' asserts a timely challenge to personal jurisdiction may defend the matter on the merits without waiving his or her personal jurisdiction objection, as long as the defendant does not seek affirmative relief. Berne v. Beznos, 819 So.2d 235, 237-38 (Fla. 3d DCA 2002). Here, Appellant timely challenged jurisdiction and did not seek affirmative relief.

Accordingly, we reverse the trial court’s order denying Appellant’s motion to quash and remand for further proceedings.

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ„ concur.


text:
    Carlos TRAMONTANA, individually and as trustee under a trust agreement, and known as Trust No. 440, dated August 31, 2012, Appellant, v. BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005-51, Mortgage Pass-Through Certificates Series 2005-51; and 440 West, Inc., Appellees.
    Case No. 2D16-2990
    District Court of Appeal of Florida, Second District.
    Opinion filed November 15, 2017

      Ian P. Hudson of The Law Office of Francis M. King, St. Petersburg, for Appellant.
    Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee Bank of New York Mellon.
   LaROSE, Chief Judge.

Carlos Tramontana appeals the final judgment of foreclosure entered in favor of Bank of New York Mellon (BNYM). He maintains that BNYM failed to establish the amounts due and owing. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm the judgment.

Mr. Tramontana argues that the trial court erred in admitting BNYM’s loan payment history, which included records from prior loan servicers. He contends that BNYM failed to prove that the records qualified as business records under the evidence code. See § 90.803(6), Fla. Stat. (2014). BNYM could have established these documents as business records either by “providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy” or “establish[ing] trustworthiness by independently confirming the accuracy of the third-party’s business records upon receipt.” Bank of New York v. Calloway, 157 So.3d 1064, 1072 (Fla. 4th DCA 2015). Mr. Tramontana argues that the record fails to show that BNYM verified the prior servicers’ records or offered any witness testimony to establish such verification.

Fatally, there is no trial transcript. Without a transcript, and in the absence of fundamental error on its face, an appellate court will affirm a trial court’s decision. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”); see also 1321 Whitfield, LLC v. Silverman, 67 So.3d 435, 437 (Fla. 2d DCA 2011) (affirming final judgment of foreclosure where, due to absence of hearing transcript, this court was unable to meaningfully review the trial court’s findings).

In this case, there is no record of the trial testimony, any objections, or the trial court’s rulings on such objections. The record simply reflects that the trial court admitted the loan payment history into evidence. Further, the record is devoid of any evidence introduced by Mr. Tramonta-na to disprove the amounts reflected in the loan payment history. Without a transcript, Mr. Tramontana cannot prove that BNYM failed to establish amounts due and owing or that the trial court reversibly erred. See Snowden v. Wells Fargo Bank, 172 So.3d 506, 507-08 (Fla. 1st DCA 2015).

Affirmed.

LUCAS and BADALAMENTI, JJ., Concur.


author: YILLANTI, Judge.

text:
    Richard Edward NOH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4264
    District Court of Appeal of Florida, Second District.
    Opinion filed November 15, 2017

      Howard L. Dimmig, II, Public Defender, and Ivy R. Ginsberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   YILLANTI, Judge.

Richard Noh appeals his conviction for capital sexual battery and the resulting life sentence, raising four grounds for reversal. We find merit only in Noh’s argument that the trial court erred by denying his motion to suppress the statement he gave to police after he made a comment that indicated that he did not understand the Miranda warnings that had been given to’ him. On this basis, we reverse and remand for a new trial.

Noh was arrested and charged with capital sexual battery after his former stepdaughter told her father that Noh had engaged in certain sexual activity with her when she was nine years old. Noh was subsequently brought to the police station for an interview. After the investigating detective spoke with Noh for a few minutes, the following conversation ensued:

DETECTIVE: Okay. All right. .I’m just gonna read you the questions, then I’m gonna have you read them to yourself, okay? Do you understand you have the right to remain silent?. ,
NOH: Yes.
DETECTIVE: All right. Do you understand that anything you say can and will be used .against you in a court of law? . .
NOH: Yes.
DETECTIVE: Do you understand that you have the right to speak to a lawyer and have him or her present with you while you are being questioned?
NOH: Yes.
DETECTIVE: Do you understand that, if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish?
NOH: Yes.
DETECTIVE: Do you understand that you can decide at any time to exercise these rights and not answer any questions or make any statements?
NOH: Yes.
DETECTIVE: Do you understand each of these rights I’ve explained to you?
NOH: Yes.
DETECTIVE: Having these rights in mind, do you wish to talk to me now?
NOH: That’s fine.
DETECTIVE: Is that a yes?
NOH: Yes.
DETECTIVE: Okay. All right.’What I need you to do, if you would for me, I just want you to read through each one of these.
NOH: All right.
DETECTIVE: Jusi>-
NOH: It’s just kind of funny. You all put it in writing now where you used to never do it.
DETECTIVE: Yeah. It’s just—it’s just I wanna make sure people understand. ’Cause, see—
NOH: I know.
DETECTIVE:—see, here’s the thing, Richard. I’m not here to trick anybody.
NOH: I know.
DETECTIVE: I wanna talk to you, I wanna clear this stuff up and get you home. That’s kind of what I wanna do, okay. So, um, if—
NOH: Kind of what you wanna do?
DETECTIVE: That’s absolutely what I wanna do. You know, I—I mean I gotta—I gotta do my job. You know what I mean?
NOH: Okay.
DETECTIVE:. So, what I need you to do is I just need you to read through each one, sign each one, and then just witness it here for me, if you would.
NOH: Just—just sign each one?
DETECTIVE: Initial each one.
NOH: Oh, okay.
DETECTIVE: Read through each one, initial each one—
NOH: Right..
DETECTIVE:—and then, uh, sign right there for me at the bottom. Okay?
NOH: I can’t afford a lawyer anyhow.
DETECTIVE: Oops. Sorry.
NOH: Okay. Right here?

(Emphasis added.) At that point, without any further discussion or clarification of the fact that Noh could have an attorney appointed at no cost to him, the detective began questioning Noh about his stepdaughter’s allegations, and Noh made several incriminating statements during the interview.

Prior to trial, Noh moved to suppress his post-Miranda statement, arguing that the State could not establish that he had knowingly and intelligently waived his rights because the detective did not clarify, in response to Noh’s comment, that Noh was entitled to have a lawyer appointed at no cost to him if he wanted one. The trial court- denied the. motion, concluding that Noh’s comment constituted only an ambiguous request for counsel; hence, Noh’s statement was admitted at trial. Noh was subsequently convicted as charged and sentenced to life in prison.

In this appeal, as he did below, Noh argues that his motion to suppress should have been granted because the transcript does not establish that he knowingly and intelligently waived his Miranda rights before speaking with the detective. We agree.

This case is quite similar factually to that of Chavers v. State, 115 So.3d 1017 (Fla. 1st DCA 2013). There, the defendant was suspected of shooting a teenager following a confrontation. Id. at 1018. As the officer was reading Chavers his Miranda right concerning the appointment of an attorney, Chavers said, “I don’t even'have no money to call a lawyer.” Id. The officer responded, “Okay,' But, understand, you know, you could have one, but—do you have any questions about these?” Id. (emphasis omitted). When Chavers did not ask any other questions, the officer went forward with the interrogation, and Chavers made a number of incriminating statements. Id. Chavers filed a pretrial motion to suppress the statements, which was denied. Id. at 1018-19. Chavers was subsequently convicted as charged. Id. at 1019,

On appeal, the First District reversed the order denying suppression, concluding that the State had not established that Chavers had validly waived his Miranda rights. Id. The court first noted that the State carries “a heavy burden ... to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. (quoting United States v. Rodriguez, 518 F.3d 1072, 1076 (9th Cir. 2008)). Further, “[a]n ambiguous waiver must be clarified before initial questioning.” Id. (quoting Alvarez v. State, 15 So.3d 738, 745 (Fla. 4th DCA 2009)); see also Rodriguez, 518 F.3d at 1080 (holding that the interrogating officer has a duty to clarify any ambiguity before beginning an interrogation). Hence, because the officer did not make it clear to Chavers that he had the right to appointed counsel even if he could not afford one, the State did not establish that Chavers’ waiver of his rights was knowingly and intelligently made. Chavers, 115 So.3d at 1019.

Here, as in Chavers, Noh commented while the detective was still reading him his Miranda rights that he could not afford an attorney. Rather than attempting to ensure that Noh understood that he had the right to have counsel appointed even if he couldn’t afford one, the detective encouraged Noh to finish signing the Miranda waiver form, took the signed form from Noh, and began questioning him. But an officer cannot simply ignore a comment by a suspect that indicates that the suspect does not fully understand his or her Miranda rights and assume that a waiver predicated on that misunderstanding will be valid. Thus, because the detective never clarified for Noh that he had the right to appointed counsel at no cost, the State did not establish that Noh’s waiver of his right to counsel was knowingly and intelligently made. And faced with, at best, an ambiguity as to whether Noh understood the rights he was waiving, the trial court should have suppressed Noh’s statement to the detective.

Moreover, on this record, we cannot say that the error was harmless. We recognize, as the State points out, that Noh also made certain admissions during a controlled telephone call between himself and his stepdaughter and that a recording of that telephone call was admitted into evidence. However, the admissions made during that call were not as clear as those he made to the detective post-Miranda. During the controlled call, Noh repeatedly said that he would admit to doing the things his stepdaughter claimed had happened if his admission would “help her heal.” The tenor of Noh’s comments during that call was, “If that’s what you say I did and if it will help you heal, then I will say I did it.” But for the most part, he denied the conduct alleged by his stepdaughter. In light of the nature and entire context of those comments, the State cannot show beyond a reasonable doubt that the admission of Noh’s more incriminating statement to the detective did not contribute to the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986) (noting that the test for harmless error is whether there is a reasonable possibility that the error affected the verdict). Accordingly, we reverse Noh’s conviction and sentence, quash the order denying Noh’s motion to suppress, and remand for a new trial without the suppressed statements.

Reversed and remanded for a new trial.

KHOUZAM and SLEET, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We have specifically considered and rejected Noh’s arguments that the trial court abused its discretion by admitting the child hearsay testimony, abused its discretion by excluding alleged reverse Williams rule evidence, and abused its discretion by denying Noh’s request for an instruction on attempted sexual battery,

      . We note that this error was compounded by the fact that the detective never told Noh that counsel would be appointed at no cost to him. When the detective was reading Noh his rights, he asked Noh only whether he understood "that, if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning.” Nowhere during any of the detective’s statements did he advise Noh that such an appointment would be made without any cost to Noh.


author: Per Curiam.

text:
    GREEN EMERALD HOMES LLC, Appellant, v. GREEN TREE SERVICING LLC, Armando Henriques Diogo, Ana E. Aguasana, Edith Aguas, Dionicia Stella Diogo, unknown spouse of Ana E. Aguas, a/k/a Ana Edith Aguas, Boca Gardens Homeowners Association, Inc., Mortgage Electronic Registration Systems, Inc., as nominee for Amnet Mortgage, Inc., d/b/a American Mortgage Network of Florida; unknown tenant #1 n/k/a Jose Ingles, unknown tenant #2, Appellees.
    No. 4D17-983
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017

      . Brennan Grogan of-Levine Law Group, Palm Beach Gardens, for appellant.
    No brief filed for appellees.
   Per Curiam.

Green Emerald Homes, LLC, (“Green Emerald”) appeals the denial of its motion to quash service of process and vacate the cleyk’s default in the underlying mortgage foreclosure action. The plaintiff below, Green Tree Servicing, LLC, (“GTS”) attempted to serve Green Emerald through substitute service on the Secretary of State pursuant to section 48.181(1), Florida Statutes (2016). We reverse for two reasons. First, GTS failed to allege the requisite jurisdictional grounds for-substitute service provided under' section 48.181(1). Second, GTS failed to comply with the notice requirements under -section 48,161(1), Florida Statutes (2016).

Section 48.062(3), Florida ■ Statutes (2016), authorizes substitute service on a limited liability company’ (“LLC”) through the Secretary of State if the plaintiff has already made reasonably diligent efforts to serve the LLC under sections 48.062(1) and (2). Jupiter House, LLC v. Deutsche Bank Nat’l Tr. Co., 198 So.3d 1122, 1123 (Fla. 4th DCA 2016).

In order to perfect substitute service through the Secretary of State, the complaint must allege one of two jurisdictional grounds provided under section 48.181(1). Green Emerald Homes, LLC v. Fed. Nat’l Mortg. Ass’n, 224 So.3d 799, 802 (Fla. 2d DCA 2017) (citing Alhussain v. Sylvia, 712 So.2d 806, 806 (Fla. 4th DCA 1998)). Specifically, the complaint must allege that (i) the defendant is concealing his or her whereabouts or. (ii) the defendant previously conducted business in Florida, but has now become a nonresident. Id,

Furthermore, the plaintiff must also comply with section 48.161(1). Jupiter House, LLC, 198 So.3d at 1124-25. Under section 48.161(1), the plaintiff .must (i) send notice to the defendant, via certified or registered mail, that substitute service has been effected through the Secretary of State, (ii) file the return receipt from the defendant, and (iii) file an affidavit of compliance. Id. at 1123.

■■ In this case, GTS’s complaint merely alleges that Green Emerald owns the subject property, so GTS has failed to allege either of the jurisdictional grounds for substitute service provided under . section 48.181,(1). Furthermore, the record does not reflect that GTS complied with section 48.161(1) by (i) sending notice of service to Green Emerald, via certified or registered mail, (ii) filing the return receipt from Green Emerald, and (iii) filing an affidavit of compliance. Accordingly, we reverse the order denying Green Emerald’s motion to quash service of process, vacate the clerk’s default, and remand for further proceedings.

Reversed and remanded.

Warner, Conner and Forst, JJ., concur.


text:
    K.P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3652
    District Court of Appeal of Florida, Second District.
    Opinion filed November 17, 2017.

      Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, -Tampai for Appel-lee.
   PER CURIAM.

K.P. appeals from the disposition order withholding adjudication but finding him guilty of petit theft and burglary of a conveyance. The State’s case rested upon the inference in section 812.022, Florida Statutes (2015), that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should'have known that the property had been stolen.” See § 812.022(2). Because K.P. “satisfactorily explained” his possession of the stolen item with unrefuted testimony, the trial court erred in denying the motion for judgment of dismissal. We therefore reverse and remand for entry of a judgment of dismissal.

NORTHCUTT, BLACK, and SALARIO, JJ., Concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Teneka DIXON, Appellant, v. Anita Evette SERMON, Appellee.
    Case No. 2D16-3585
    District Court of Appeal of Florida, Second District.
    Opinion filed November 17, 2017.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellant.
    Anita Evette Sermon, pro se.
   ROTHSTEIN-YOUAKIM, Judge.

Teneka Dixon appeals a fifty-year permanent injunction against stalking Anita Sermon. Because competent, substantial evidence does not support a finding that Dixon’s conduct was directed at Sermon, we reverse.

In June 2016, Sermon petitioned for an injunction for protection against stalking, alleging that Dixon had repeatedly sought out and threatened Sermon, putting Sermon in fear for her life. After granting a temporary injunction pursuant to section 784.0485(5)(a), Florida Statutes (2015), the trial court held a hearing to determine whether a permanent injunction was warranted. At that hearing, Sermon testified as follows:

Dixon was having an affair with Sermon’s husband. Sermon first caught Dixon with Mr. Sermon in Mr. Sermon’s car and “from that point on [Dixon] would come to the house.” On those occasions, Dixon would repeatedly ring the doorbell, pound on the door, or honk her car horn. Each time, either Mr. Sermon would go outside to talk with Dixon or no one would go outside to talk with her and she would eventually leave.

When Dixon came to the house on May 28, 2016, however, Sermon came outside, and Dixon expressed surprise to discover that Sermon lived at the house. She told Sermon: “[Y]ou’re not supposed to be here. • You live in Jacksonville.” Sermon told Dixon to leave, and Dixon left, only to return the next morning and repeatedly ring the doorbell.

Mr. Sermon went outside to argue with Dixon while Sermon called her sister-in-law to complain that Dixon had returned. Sermon then went outside and demanded that Mr. Sermon stop disrespecting her and that Dixon leave. When Dixon refused, Sermon went back inside to call the police.

Sermon told the trial court: “[Dixon] don’t know me, know me, but she have a tendency when she upset with him or they not together or they mad or whatever they may be going through, I got nothing to do with that. All I want her to do is not come to [my house].”

Dixon denied that she had repeatedly gone to Sermon’s house and testified that she had only gone there once, on May 28, 2016, at Mr. Sermon’s invitation. She also testified that Mr. Sermon had told her that Sermon did not live at the house but lived in Jacksonville. After hearing her testimony and questioning Mr. Sermon, the trial court granted a fifty-year permanent stalking injunction against Dixon.

Pursuant to section 784.0485, a person may obtain an injunction for protection against stalking. “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking .... ” § 784.048(2). Relevant to our analysis is that “‘[h]arass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” § 784.048(l)(a).

Dixon argues that the evidence does not support the injunction because, among other reasons, her conduct was directed not at Sermon but at Mr. Sermon. We agree. Although ample evidence supports a finding that Dixon, contrary to her testimony, repeatedly came to Sermon’s house, that same evidence only supports the finding that she did so to engage Mr. Sermon and that her interactions with Sermon were purely incidental. The evidence indicates that, initially, Dixon expressed surprise to learn that Sermon even lived at the house, because she had been led to believe that Sermon lived in Jacksonville. On the few occasions on which Dixon did interact with Sermon, Dixon came to the house apparently to confront Mr. Sermon, and Sermon either answered the door in Mr. Sermon’s absence or injected herself into the ongoing argument between Dixon and Mr. Sermon. Indeed, Sermon herself acknowledged at the hearing, “[Dixon] don’t know me, know me, but she have a tendency when she upset with him or they not together or they mad or whatever they may be going through, I got nothing to do with that.” The record simply fails to establish that Dixon’s conduct was directed at Sermon.

Because the evidence was insufficient to establish a prima facie case of stalking, the trial court erred in granting Sermon’s petition for injunction. Accordingly, we reverse and remand for the court to vacate the injunction and dismiss the petition.

Reversed; remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.

      . The alternate forms of stalking under the statute, i.e., following or cyberstalking, are not at issue in this appeal.

      . In her petition, Sermon alleged that Dixon had gone into Sermon’s garage and had scratched her car with a key. Sermon alleged further, however, that she had not seen Dixon do it, and, even if Dixon had done it, Sermon did not allege that Dixon had known that it was Sermon’s car. At the hearing, Sermon did not mention the incident at all.

      . Having so concluded, we need not reach Dixon’s alternate arguments that the trial court erred by failing to allow her to cross-examine Sermon and that a fifty-year injunction was excessive.


author: EOTHSTEIN-YOUAKIM, Judge.

text:
    Angela Stacey DENO, DOC #Y07534, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-567
    District Court of Appeal of Florida, Second District.
    Opinion filed November 17, 2017
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   EOTHSTEIN-YOUAKIM, Judge.

Angela Stacey Deno entered a negotiated no-contest plea to introducing contraband into a county detention facility. She timely appeals her judgment and'sentence and argues- that the trial court’ erred in denying her dispositive motion to suppress evidence. We disagree and affirm, ,

Factual and Procedural History

Lee County Sheriffs Sergeant George Mingione conducted a lawful traffic stop of a vehicle that had a defective taillight and lacked a rear bumper, James Russell was driving the vehicle, and Deno was in the-front passenger seat, At the time, Deno had an outstanding arrest warrant for - a probation violation. Sergeant Mingione explained- the reason for the stop and- asked Russell and Deno for identification, which he typically did as a matter of-course both for his own edification and so that he could check for outstanding warrants. Russell provided the requested information, but Deno told Sergeant Mingione that her name.-was Mindy Deno. When Sergeant Mingione ran that name through the system, the photograph that it brought up was plainly of someone else.

Sergeant Mingione returned to the vehicle, asked Deno to step out, and asked her about the" photograph. Deno claimed that she had lost 140 pounds, but ■ Sergeant Mingione still did not believe that she was the woman in the picture because they had different 'facial' features. .Consequently, Sergeant Mingione asked Deno to provide a fingerprint for his portable scanner. After she had obliged and he had run the results through a fingerprint database, Sergeant Mingione ascertained her true identity and discovered her outstanding warrant for the probation violation; When Sergeant Mingione confronted Deno with this information, she explained that she had provided a false name because she knew about the outstanding warrant and did not want to go to jail. ■ ■

Deno was' then arrested not only on the outstanding warrant but also for providing a false-name to a law enforcement officer, see § 901.36(1), Fla. Stat. (2014), and she was taken to the Lee County Jail. While Deno was changing into her jail uniform, a deputy saw a small baggie- containing what appeared to be crack cocaine fall from her pants. Consequently, Deno was also charged in a separate case with introducing contraband into a county detention facility. See § 951.22, Fla. Stat. (2014).

Deno moved to suppress all of the evidence against her based on what she contended was an illegal arrest for providing false information to a law enforcement officer. Specifically, Deno argued, as she argues on appeal, that she had been neither under arrest nor lawfully detained when she had provided the false name, and, therefore, Sergeant Mingione, as a matter of law, could not have had reasonable suspicion that she had violated section 901,36(1). After an evidentiary hearing, the trial court denied her motion.

Analysis

In reviewing the trial court’s ruling on a motion to suppress evidence, we will not disturb the trial court’s findings of fact as long as competent, substantial evidence supports those findings, but we review its application of law to those facts de novo. State v. Godard, 202 So.3d 144, 145-46 (Fla. 2d DCA 2016).

Section 901,36(1) provides, “It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel.” (Emphasis added.) Although both Deno and the State assert that Sergeant Mingione’s request for Deno’s identification occurred during a consensual encounter (with their arguments, of course, diverging from there), Deno, as the passenger in a vehicle subject to a valid traffic stop, was lawfully detained at that point. See Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (holding that lawful traffic stop subjects not only driver but also passenger to seizure under Fourth Amendment); see also Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, .and inform the driver and passengers they are free to leave,”); Presley v. State, 227 So.3d 95, - -, 42 Fla. L. Weekly S817, S819-21 (Fla. 2017) (discussing Brendlin and Johnson, holding that officers may prevent passengers from leaving traffic stop without running afoul. of Fourth Amendment as long as detention is only for duration reasonably necessary to complete purpose of traffic stop, and disapproving prior case law to contrary). Moreover, had Deno responded truthfully to Sergeant Mingione’s request at the outset, the request would not have extended the duration of the stop and, therefore, did not lead to an unlawful detention. See Johnson, 555 U.S. at 333, 129 S.Ct. 781 (“An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”).

Because Deno was lawfully arrested for providing' a false name to a law enforcement officer, the trial court did not err in denying her motion to suppress evidence.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

      . Opinions construing as a consensual encounter a law enforcement officer’s request for identification from a passenger during a lawful traffic stop predate Brendlin and Johnson. See, e.g., State v. Galicia, 948 So.2d 983, 984-85 (Fla. 2d DCA 2007); Cooks v. State, 901 So.2d 963, 964 (Fla. 2d DCA 2005); Morrow v. State, 848 So.2d 1290, 1292-93 (Fla. 2d DCA 2003); State v. Gonzalez, 919 So.2d 702, 703-04 (Fla. 5th DCA 2006). The only exception is Teart v. State, 26 So.3d 644, 645-46 (Fla. 1st DCA 2010), but Teart, an appeal from the summary denial of a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, simply relied on Cooks.