author: WELLS, Judge.

text:
    Richard RAMCHARITAR, Appellant, v. Erzulie DEROSINS and Sky Chefs, Inc., a foreign corporation, Appellees.
    No. 3D09-1313.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Feiler & Leach and Martin E. Leach, for appellant.
    Carlton Fields, Nancy C. Ciampa, Stephanie C. Zimmerman and Emmet J. Sehwartzman, Miami, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

In this personal injury action, Richard Ramcharitar appeals the entry of a final summary judgment in favor of the defendants below, Erzulie Derosins and Sky Chefs, Inc., claiming that the lower court erred in finding that the defendants were immune from tort liability pursuant to Florida’s Workers’ Compensation Law. We agree and reverse.

Richard Ramcharitar is a flight operations manager for American Airlines responsible for overseeing movement of airplanes to and from terminals at Miami International Airport. On July 14, 2001, while directing an aircraft pulling away from a terminal gate, Mr. Ramcharitar allegedly was struck by a Sky Chefs vehicle being operated by Erzulie Derosins. Sky Chefs, which provides beverages and food, is an American Airlines subcontractor; Ms. Derosins is a Sky Chefs employee.

Following this incident, Mr. Ramchari-tar received workers’ compensation benefits from American Airlines. He also filed suit against Sky Chefs and Ms. Derosins. Both Sky Chefs and Ms. Derosins denied responsibility for the accident and asserted workers’ compensation immunity as a defense.

In December 2008, Sky Chefs and Ms. Derosins moved for summary judgment arguing that Sky Chefs, as a subcontractor of American Airlines (the general contractor), along with Ms. Derosins its employee, were immune from tort liability under the 2001 version of sections 440.10(1) and 440.11 of the Florida Statutes, which were in effect at the time Mr. Ramcharitar was injured. These provisions of Florida’s Workers’ Compensation Law afforded certain tort immunity to subcontractors where the contractor provided workers’ compensation coverage for the employees of both the contractor and its subcontractors. See §§ 440.10(1) and 440.11, Fla. Stat. (2001). Summary judgment was granted. We reverse this final judgment because the Florida Supreme Court’s opinion in Employers Insurance of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983), which interprets this version of section 440.10, mandates this result.

In 1937, Florida’s Workers’ Compensation Law was amended to confer statutory immunity on a subcontractor against tort claims brought by an employee of either the general contractor (vertical immunity) or another subcontractor (horizontal immunity) where the general contractor had secured workers’ compensation insurance for the subject employee, the rationale being that the employees of both the general contractor and the subcontractor(s) were all engaged in a common enterprise. See Carter v. Sims Crane Serv., Inc., 198 So.2d 25, 26-27 (Fla.1967) (finding that a subcontractor had horizontal immunity from a tort claim brought an employee of another subcontractor); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, 693 (1940) (finding that a subcontractor had vertical immunity from a tort claim brought by an employee of the general contractor).

In 1974, the law was amended to expressly eliminate horizontal immunity, that is, to eliminate the statutory immunity for claims brought by an employee of one subcontractor against another subcontractor:

A subcontractor is not hable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness-of-liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

See Ch. 74-197, § 6, at 546, Laws of Fla.; § 440.10(1), Fla. Stat. (1974).

While this amendment terminated horizontal immunity between subcontractors, subcontractors continued to enjoy vertical immunity from actions brought by a contractor’s employees as recognized in Carter and Younger. However, in 1988, the Florida Supreme Court decided Employers Insurance of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983), in which it held that the 1974 amendment to section 440.10 modified the “common employment premise” set forth in Younger and Carter, so that subcontractors were no longer immune from suit by a contractor’s employee (eliminating vertical immunity), even if that employee had received workers’ compensation benefits from the contractor:

The justification for limiting liability or granting immunity is the substitution of something else in its place, a quid pro quo. The duty to provide workers’ compensation benefits supplants tort liability to those injured on the job. If the duty to provide such coverage does not exist, then one has no reason to expect immunity from wrongdoings committed against a third party.... [W]e recede from Younger ..., thus allowing a third-party action against one who has no duty to afford compensation benefits.

Abernathy, 442 So.2d at 954 (citations omitted).

This interpretation of the 1974 amendment to the workers’ compensation law, section 440.10, remained in effect for the next twenty years. See Bruno v. Destiny Transp., Inc., 921 So.2d 836, 841 (Fla. 2d DCA 2006) (citing Abernathy for the proposition that statutory immunity does not apply “to situations where a general contractor’s employee is injured by the negligence of a subcontractor’s employee”); Sherrill v. Corbett Cranes Servs., Inc., 656 So.2d 181, 183 (Fla. 5th DCA 1995) (citing Abernathy and finding that “[i]t is now well established under Florida law that a subcontractor or independent contractor can be liable in tort for injuries sustained by the employees of a general contractor on a construction site”). In 2003, the Florida Legislature amended section 440.10 to restore subcontractor immunity from tort claims brought by either a general contractor or another subcontractor’s employee (vertical and horizontal immunity):

A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:
1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees ...; and
2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.

Ch. 2003-412, § 8, at 3879, Laws of Fla. (emphasis added).

Sky Chefs and Ms. Derosins do not dispute the fact that Mr. Ramcharitar was injured before the 2003 amendment to the workers’ compensation law and that under the 1974 amendment as interpreted by Abernathy, they would not be immune from suit. They instead point to the fact that Mr. Ramcharitar filed the underlying lawsuit in 2005, after the statute was amended, and argue that we may conclude that they enjoy immunity because Abernathy was wrongly decided or alternatively because the 2003 revision should be applied retroactively. We decline to adopt either proposition.

It is axiomatic that stare decisis obligates this court to follow Florida Supreme Court precedent. See Hoffman v. Jones, 280 So.2d 431, 440 (Fla.1973) (“We hold that a District Court of Appeal does not have the authority to overrule a decision of the Supreme Court of Florida.”). This obligation extends to the circuit courts of this state as well, which are further obligated to follow the decisions of the district courts of appeal “unless and until they are overruled by the supreme court.” See Chapman v. Pinellas County, 423 So.2d 578, 580 (Fla. 2d DCA 1982). We therefore decline the appellees’ invitation to simply ignore Abernathy as either an aberration in the decisional law — which it clearly was not given its repeated application over some twenty years — or as being wrongly decided. See Breed Tech. v. AlliedSignal Inc., 861 So.2d 1227, 1231 (Fla. 2d DCA 2003) (finding that the trial court erred in disregarding existing case law based on its view that the case “was wrongly decided and therefore not binding on it”). At the time Mr. Ramcharitar was injured, prevailing Supreme Court precedent provided no immunity to subcontractors sued by their contractor’s employees for workplace injuries.

Sky Chefs and Ms. Derosins are also not immune from suit by virtue of the 2003 amendment to section 440.10 because it does not apply retroactively. “In the absence of clear legislative intent to the contrary, a law is presumed to operate prospectively.” Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, 986 So.2d 1279, 1284 (Fla.2008). Therefore, in determining whether a statute applies retroactively, we must consider: “(1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2) whether retroactive application is constitutional.” Id. With respect to the first prong, when considering legislative intent “both the terms of the statute and the purpose of the enactment must be considered.” Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 488 (Fla.2008) (quoting Metro. Dade County v. Chase Fed. Housing Corp., 737 So.2d 494, 500 (Fla.1999)). If the first prong is not satisfied, there is no need to consider the second prong. Id.; see also Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784 So.2d 438, 441 (Fla.2001) (finding it unnecessary to determine whether the retroactive application of a statute was constitutional because the statute did not “set forth the clear legislative intent” that it be applied retroactively).

To this end, we find that while the 2003 amendment to section 440.10 effectively abrogated Abernathy with respect to vertical immunity for a subcontractor, there is no clear legislative intent that the amendment be applied retroactively. Neither the language of section 440.10 nor the enacting legislation evinces such intent. On the contrary, the enacting legislation expressly provided that the revisions to section 440.10 were to become effective on January 1, 2004, see Ch. 2003-412, § 8, at 3879, Laws of Fla., which was some three months later than the effective date provided for most all other revisions that were addressed in this legislation. See Ch. 2003^12, § 50, at 3969, Laws of Fla. (“Except as otherwise provided herein, this act shall take effect October 1, 2003.”). The inclusion of this effective date rebuts the suggestion that the 2003 revision of section 440.10 was intended to apply retroactively. See State, Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353, 358 (Fla.1977) (finding that the Legislature’s inclusion of an effective date in enacting legislation amending existing law “effectively rebuts any argument that retroactive application of the law was intended”); see also Feraci v. Grundy Marine Constr. Co., 315 F.Supp.2d 1197, 1205 n. 11 (N.D.Fla.2004) (citing Zuckerman-Vemon Corp. for the proposition that because Chapter 2003-412 of the Laws of Florida set an effective date of October 1, 2003 for an amendment to section 440.11 with respect to the intentional tort exception to workers’ compensation immunity, “such inclusion rebuts an argument that a retroactive application was intended”).

However, at the summary judgment hearing, the trial court was persuaded to find otherwise because of “the cases that say if there is a legislative change that was intended to clarify what the legislative intent was before an intervening Supreme Court of Florida case, [the court] can apply that legislative change retroactively without doing violence to the constitution or to the Florida Supreme Court.” We disagree, given that the 2003 revision to section 440.10 occurred twenty years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10. As was held by the Court in similar circumstances, given that the membership between the 1974 and 2003 Legislatures was substantially different, it would be absurd to consider the 2003 revision as a clarification of the Legislature’s original intent in 1974:

The Laforets, citing Lowry v. Parole and Probation Commission, 473 So.2d 1248 (Fla.1985), and other cases, also argue that the Legislature was perfectly within its rights to clarify its intent and to apply the statute retroactively. We did state in Lowry that a clarifying amendment to a statute that is enacted soon after controversies as to the interpretation of a statute arise may be considered as a legislative interpretation of the original law and not as a substantive change. It would be absurd, however, to consider legislation enacted more than ten years after the original act as a clarification of original intent; the membership of the 1992 legislature substantially differed from that of the 1982 legislature. Compare Kaisner v. Kolb, 543 So.2d 732 (Fla.1989) (subsequent legislatures, in the guise of “clarification” cannot nullify retroactively what a prior legislature clearly intended).

State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 62 (Fla.1995); M.W. v. Davis, 756 So.2d 90, 103 n. 26 (Fla.2000) (finding that “due to the [thirteen year] gap between when the language was originally placed in the statute and the most recent amendment, the 1999 amendment cannot be seen as clarifying the Legislature’s intent in 1986”); Parole Comm’n v. Cooper, 701 So.2d 543, 544M5 (Fla.1997) (“[I]t is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent.”).

Having found no clear legislative intent that the 2003 revision of 440.10 be applied retroactively, it is unnecessary to determine if the retroactive application of the statute would be constitutional. Mem’l Hosp.-W. Volusia, Inc., 784 So.2d at 441.

In the absence of a clear legislative intent, the appellees alternatively argue that the 2003 revision should nevertheless be applied retroactively because the law is remedial in nature, and does not affect substantive rights. See, e.g., Basel v. McFarland & Sons, Inc., 815 So.2d 687, 692 (Fla. 5th DCA 2002) (“In the absence of clear legislative intent, a law affecting substantive rights is presumed to apply prospectively only while procedural or remedial statutes are presumed to operate retrospectively.”). We disagree, as the Florida Supreme Court has rejected an almost identical argument on a sufficiently analogous set of facts with respect to the 1974 amendment to section 440.10. See Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977).

In Halligan, the plaintiff, an employee of a subcontractor, was injured due to the alleged negligence of another subcontractor’s employee on the jobsite. Under the version of section 440.10 in effect at the time of the injury, see § 440.10, Fla. Stat. (1971), the defendant subcontractor had horizontal immunity from a negligence action by the plaintiff. However, after the Legislature amended section 440.10 in 1974 to eliminate a subcontractor’s horizontal immunity, the plaintiff filed a negligence action against the defendant subcontractor. The trial court determined that the 1974 amendment was remedial and that it should be applied retroactively to the date of the plaintiff’s injury, so that the defendant subcontractor no longer enjoyed immunity from suit under the 1971 statute. The trial court therefore denied the defendant subcontractor’s motion for summary judgment, which had relied on the law as it existed at the time the alleged tort was committed.

On appeal, the Florida Supreme Court reversed, finding that the immunity at issue was a “substantive right which vested before the passage of the new statute” and that this substantive statutory right could not be retroactively withdrawn. Id. at 243. We see no distinction between the Halligan court’s treatment of an amendment expressly eliminating tort immunity to the detriment of the employer, and the instant amendment which reinstates tort immunity to the detriment of the injured employee. As the Halligan Court explained:

“It is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen’s Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of the parties established by this contractual relationship.”

Id. (quoting Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960)). The 2003 amendment, being substantive, does not apply retroactively.

Accordingly, because Sky Chefs and Ms. Derosins were not immune from suit under the version of section 440.10 in effect at the time of Mr. Ramcharitar’s injury, as interpreted by Abernathy; because there is no clear legislative intent that the 2003 revision of the statute be applied retroactively to this case; and because the 2003 revision is not remedial, summary judgment should not have been entered in their favor.

The order on review is, therefore, reversed.

      . Section 440.10(1) of the Florida Statutes (2001) provides, in relevant part:
      (a) Every employer coming within the provisions of this chapter ... shall be liable for, and shall secure, the payment to his or her employees ... the compensation payable under ss. 440.13, 440.15, and 440.16

      (b) In case a contractor sublets any parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

      (e) A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness-of-liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.
      Section 440.11 of the Florida Statutes (2001) provides, in relevant part:
      The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee ... and anyone otherwise entitled to recover damages from such employer at law ... on account of such injury or death.... The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter.

      . We further note that the Florida Supreme Court previously determined that the 2003 codification of the intentional tort exception to workers' compensation immunity, which was enacted by the Florida Legislature in the very legislation that is at issue here, effective October 1, 2003, see Ch. 2003-412, § 14, at 3890, Laws of Fla., and which abrogated existing Florida Supreme Court precedent in order to heighten the standard for applying said exception, does not apply retroactively. See Bakerman v. The Bombay Co., Inc., 961 So.2d 259, 262 n. 3 (Fla.2007); Cabrera v. T.J. Pavement Corp., 2 So.3d 996, 998 n. 3, 999 n. 4. (Fla. 3d DCA 2008) (citing Bakerman, and applying the version of the workers’ compensation law in effect at the time of the employee's death on the jobsite).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Shannon SMITH, Appellant, v. LOEWS MIAMI BEACH HOTEL OPERATING COMPANY, INC., Appellee.
    No. 3D09-1244.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Rehearing Denied June 5, 2010.
    James A. Barrios, Lakeland, for appellant.
    Restani, Dittmar & Hauser and Helen Ann Hauser, Coral Gables, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Shannon Smith, the plaintiff below, appeals the final judgment awarding attorney’s fees and costs to Loews Miami Beach Hotel Operating Company, Inc. (“the Hotel”) following the voluntary dismissal without prejudice of her negligence lawsuit against the Hotel. Because we conclude that Smith properly preserved her objection to the award of attorney’s fees and costs below and because such an award based on a dismissal of the cause of action requires that the dismissal be with prejudice, we reverse.

Smith sued the Hotel for damages in June 2005. The sole claim pled was a tort claim seeking damages for negligent infliction of emotional distress. The Hotel served Smith with a Proposal of Settlement in February 2006 to which she did not respond. Nearly one year later, the Hotel filed a motion for final summary judgment alleging that the impact rule precluded Smith’s action. Prior to the hearing on the Hotel’s motion, Smith served the Hotel with a Notice of Voluntary Dismissal without prejudice, upon which the Hotel filed its motion seeking an award of attorney’s fees and costs based on its Proposal of Settlement and pursuant to section 768.79, Florida Statutes.

On January 13, 2009, the trial court conducted a hearing on the Hotel’s motion for attorney’s fees and costs. The sole objection raised at that hearing was that the settlement proposal was not made in good faith. After determining that Smith’s dismissal of her complaint was in recognition that the only claim she had raised in her complaint was vulnerable to the impact rule, and that in all likelihood the trial court would have granted the Hotel’s motion for summary judgment, the trial court concluded that the proposal for settlement was not made in bad faith and thus the Hotel was entitled to its fees and costs. The trial court told the parties that it would set a hearing to determine the amount of attorney’s fees and costs to be awarded, and informed the parties that the hearing would be conducted by the successor judge who had been assigned to preside over that division.

At the specially set hearing to determine the amounts to be awarded, Smith renewed her objection to the award of attorney’s fees and costs on the ground that the settlement offer was not made in good faith and she raised a new objection: that the voluntary dismissal, which was without prejudice, did not act as a disposition on the merits of the case. Smith then informed the trial court that she had filed a new complaint in another division. Because we conclude that Smith’s objection was sufficiently preserved and the law supports Smith’s objection, the trial court erred in awarding the Hotel attorney’s fees and costs.

Florida Rule of Civil Procedure 1.420(a)(1) provides in pertinent part:

Except in actions in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment.... Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

(emphasis added). In accordance with this rule, the “party seeking affirmative relief has an almost absolute right to dismiss his entire action once without a court order by serving a notice of dismissal at any time before a hearing on a motion for summary judgment.” Marine Contractors, Inc. v. Armco, Inc., 452 So.2d 77, 79 (Fla. 2d DCA 1984) (citing Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978)).

Section 768.79, the Offer of Judgment statute, allows a party to recover attorney’s fees “when a party has satisfied the terms of the statute and rule.” Attorneys’ Title Ins. Fund, Inc. v. Gorka, — So.3d - , - (Fla. 2010) (citing MGR Equip. Corp. v. Wilson Ice Enters., Inc., 731 So.2d 1262, 1263 (Fla.1999)). Under section 768.79, a defendant who files an offer of judgment which is not accepted by the plaintiff within thirty days is entitled to an award of attorney’s fees and costs where: (1) the judgment is one of no liability; (2) the judgment obtained by the plaintiff is at least twenty-five percent less than the defendant’s offer; or (3) the cause of action was dismissed with prejudice.

In MX Investments, Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997), the Florida Supreme Court concluded that to be entitled to an award of attorney’s fees under section 768.79 based on a dismissal of the cause, the dismissal must be with prejudice. In explaining what constitutes a dismissal with prejudice, the Court made it clear that for purposes of the offer of judgment statute, the dismissal must represent a judgment of no liability. Id. Thus, an involuntary dismissal, a dismissal with prejudice, and a second voluntary dismissal (which serves as adjudication on the merits pursuant to rule 1.420(a)(1)) all qualify as a basis of an award of attorney’s fees under section 768.79. The Florida Supreme Court in MX found that the defendant-hotel was not entitled to an award of attorney’s fees where the plaintiff rejected a proposal of settlement and then voluntarily dismissed his complaint without prejudice. Similarly, in the instant case, the Hotel is not entitled to an award of attorney’s fees and costs because Smith’s voluntary dismissal was her first notice of dismissal, her voluntary dismissal was without prejudice, and her voluntary dismissal did not operate as an adjudication on the merits. Accordingly, we reverse the order under review.

Reversed.


author: PER CURIAM.

text:
    J.F.O., Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN AND FAMILIES, State of Florida Guardian Ad Litem Program for the 14th Judicial Circuit, T.J.W., G.W., J.A.O. (a minor child), and C.A.O. (a minor child), Appellees.
    No. 1D10-0228.
    District Court of Appeal of Florida, First District.
    May 14, 2010.
    Richard D. Ogburn, Panama City, for Appellant.
    Ward L. Metzger, Department of Children and Families, Jacksonville, for Appel-lee Department of Children and Families; Kelley Schaeffer, Guardian ad Litem Program, Tavares, for Appellee Guardian ad Litem Program.
   PER CURIAM.

AFFIRMED. Shuler v. Guardian Ad Litem Program, 17 So.3d 333 (Fla. 5th DCA 2009).

WOLF, KAHN, and ROBERTS, JJ., concur.


text:
    SUPERIOR FENCE & RAIL OF NORTH FLORIDA, etc., et al., Petitioners, v. James O. LUCAS, III and Dorothea Y. Lucas, et al., Respondents.
    No. 5D09-4213.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    Margaret A. Wharton, of Wharton Law Group, P.A., Oviedo, for Petitioners.
    Koko Head, of Law Office of Koko Head, P.A., St. Johns, for Respondents.
   PER CURIAM.

Superior Fence & Rail of North Florida, Inc. and Christopher Johnson seek certio-rari review of the trial court’s order denying their motion to intervene in a landlord-tenant dispute. As explained hereafter, we treat their petition as a direct appeal of a final order and affirm. See Fla. R.App. P. 9.110(k); In re S.N.W., 912 So.2d 368, 370 (Fla. 2d DCA 2005).

The allowance of intervention is subject to the trial court’s discretion. See Allstate Ins. Co. v. Johnson, 483 So.2d 524, 525 (Fla. 5th DCA 1986). Intervention is appropriate only when the intervenor has a direct and immediate interest in the litigation such that the intervenor “will either gain or lose by the direct legal operation and effect of the judgment.” Harbor Specialty Ins. Co. v. Schwartz, 932 So.2d 383, 386 (Fla. 2d DCA 2006) (quoting Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992)). Having carefully reviewed the record, we find no error in the trial judge’s determination that Superior and Johnson have no direct and immediate legal interest in the underlying litigation.

We take this opportunity to clarify deci-sional law from this Court regarding whether the denial of a motion to intervene is reviewed by certiorari or appeal. In at least two cases, In re J.S., 404 So.2d 1144 (Fla. 5th DCA 1981), and Grudzinski v. Voyer, 654 So.2d 675 (Fla. 5th DCA 1995), we reviewed the denial of a motion to intervene by certiorari. However, in Hart v. Atlantic International Investment Corp., 513 So.2d 768 (Fla. 5th DCA 1987), and Vanguard, Insurance Co. v. Townsend, 544 So.2d 1153 (Fla. 5th DCA 1989), receded from on other grounds by Allstate Insurance Co. v. Conde, 595 So.2d 1005 (Fla. 5th DCA 1992), we reviewed such denials by appeal.

We believe that an order denying a motion to intervene is appealable as a matter of right, by plenary appeal, because the order constitutes a final determination of the proceeding as to the parties seeking to intervene. In re S.N.W., 912 So.2d at 370; J.R. v. R.M., 679 So.2d 64, 65 n. 1 (Fla. 4th DCA 1996); see also City of Dania v. Broward County, 658 So.2d 163, 164 (Fla. 4th DCA 1995); Citibank N.A. v. Blackhawk Heating & Plumbing Co., 398 So.2d 984, 986 (Fla. 4th DCA 1981). We recede from our prior case law holding that the denial of a motion to intervene is reviewable by certiorari. Instead, we hold that the denial of a motion to intervene is reviewable by appeal.

AFFIRMED.

MONACO, C.J., GRIFFIN, SAWAYA, PALMER, ORFINGER, TORPY, LAWSON, EVANDER, COHEN and JACOBUS, JJ., concur.

      . Conversely, an order granting intervention is necessarily interlocutory and can only be reviewed by certiorari. In re J.P., 12 So.3d 253, 254 (Fla. 2d DCA 2009).


author: WETHERELL, J.

text:
    Sherri McARTHUR, Appellant, v. MENTAL HEALTH CARE, INC./SUMMIT CLAIMS CENTER, Appellees.
    No. 1D09-4299.
    District Court of Appeal of Florida, First District.
    May 14, 2010.

      Michael J. Winer of the Law Office of Michael J. Winer, Tampa, for Appellant.
    Ben H. Cristal and Dixie T. Switzer of the Cristal Law Group, Tampa, for Appel-lees.
   WETHERELL, J.

In this workers’ compensation appeal, Claimant seeks review of a final order denying all of her claims for benefits pursuant to the so-called “fraud defense” in section 440.09(4), Florida Statutes (2007). Claimant raises three issues on appeal: 1) whether the Judge of Compensation Claims (JCC) erred in finding that Claimant committed fraud by failing to disclose the extent of her prior injuries and medical care; 2) whether the JCC erred in not ruling on Claimant’s claim that the employer/carrier (E/C) and its attorney committed fraud in their handling of this matter; and 3) whether Claimant is entitled to a one-time change in physician notwithstanding the finding of fraud. We affirm the first and third issues without discussion, and we affirm the second issue for the reasons that follow.

The final hearing in this case addressed six petitions for benefits filed by Claimant over the course of a year. One of the petitions — the fourth of six — sought a determination that “the employer/carrier and/or its agents/attorney committed workers’ compensation fraud by failing to disclose a complete medical history and/or misrepresenting the claimant’s medical history to her treating doctors for the purposes of denying her workers’ compensation claim.” At the final hearing, in response to the JCC’s inquiry regarding the precise relief that Claimant was requesting in this petition, Claimant’s attorney argued that the E/C should be penalized just as a claimant would — the denial of all benefits — or, alternatively, that the E/C should be stripped of its defenses. Claimant’s attorney acknowledged that chapter 440 did not specifically provide for that sanction, but argued, in effect, that the JCC had inherent authority to make findings on the issue of fraud by the E/C and its attorney and impose appropriate sanctions. The JCC did not make any findings on this issue in the final order.

Section 440.105(4)(b)l. provides that it is unlawful for “any person ... [t]o knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.” A person who violates this statute is subject to criminal, civil, and administrative penalties. See § 440.09(4)(a), 440.105(4)®, 440.106, Fla. Stat.

The process by which an employee may be sanctioned for violating section 440.105 is set forth in section 440.09(4). That statute, which is commonly referred to as the “fraud defense,” provides that the employee is not entitled to any compensation or benefits under chapter 440 if the JCC (or an administrative law judge, court, or jury) determines that the employee knowingly and intentionally engaged in any of the acts prohibited by section 440.105. See § 440.09(4)(a), Fla. Stat. Thus, not only does section 440.09(4) specifically authorize the JCC to determine whether an employee has violated section 440.105, but it also sets forth the sanction that the JCC is required to impose upon finding that a violation occurred.

The process by which an attorney or carrier may be sanctioned for violating section 440.105 is set forth in section 440.106, which provides in pertinent part:

(1) Whenever any circuit or special grievance committee acting under the jurisdiction of the Supreme Court finds probable cause to believe that an attorney has violated s.440.105, such committee may forward to the appropriate state attorney a copy of the findings of probable cause and a copy of the report being filed in the matter.
* * *
(3) Whenever any group or individual self-insurer, carrier, rating bureau, or agent or other representative of any carrier or rating bureau is determined to have violated s.440.105, the agency responsible for licensure or certification may revoke or suspend the authority or certification of the group or individual self-insurer, carrier, agent, or broker.

§ 440.106, Fla. Stat. This statute does not grant the JCC any authority to determine whether an attorney or carrier has violated section 440.105, nor does it give the JCC any authority to impose sanctions for such violations.

A JCC has only those powers expressly provided by statute. See Pace v. Miami-Dade County Sch. Bd., 868 So.2d 1286, 1287 (Fla. 1st DCA 2004) (explaining that a JCC has “no authority or jurisdiction beyond what is specifically conferred by statute” and holding that a JCC has no jurisdiction to sanction an attorney for violating the Florida Rules of Professional Conduct) (quoting Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999)); see also McFadden v. Hardrives Constr., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA 1991) (“Unlike a court of general jurisdiction, a [JCC] does not have inherent judicial power but only the power expressly conferred by chapter 440.”). And as the JCC recognized at the final hearing, had the Legislature intended to give the JCC the authority to sanction an E/C or its attorney for violating section 440.105, it could have easily done so as it did in section 440.09(4) for fraud by employees.

We certainly do not condone fraud by anyone involved in the workers’ compensation system. But it is not within our power to read into chapter 440 authority that the Legislature has not, for whatever reason, given to the JCCs. Accordingly, because the JCC lacked the authority to grant the relief sought by Claimant, the final order is AFFIRMED.

DAVIS and CLARK, JJ., concur.

      . In response to the argument put forth by Claimant's attorney, the JCC rhetorically asked "[i]f the Legislature specifically stated a sanction in the event that the claimant committed fraud, don’t you think it would be within the province of the Legislature to state what the sanction would be if the [E/C] committed fraud?”

      . We do not reach the question of what type of sanctions the JCC is authorized to impose pursuant to section 440.33 or Florida Administrative Code Rule 60Q-6.125 because that issue was not specifically raised before the JCC and Claimant did not allege that the E/C or its attorney violated any rule of procedure or order of the JCC. See Lincoln Assoc. & Constr., Inc. v. Wentworth, 26 So.3d 638 (Fla. 1st DCA 2010) (explaining that it is necessary for JCC to find a party willfully disregarded JCC’s authority before imposing sanctions such as striking E/C's defenses).


text:
    Keith Robert TOLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4749.
    District Court of Appeal of Florida, First District.
    May 14, 2010.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Keith Robert Toler seeks reversal of his conviction for sale of cocaine. We affirm.

With the assistance of counsel, Toler pled no contest to the offense of sale of cocaine. Thereafter, Toler, while represented by counsel, announced at the beginning of the sentencing hearing that he wanted to withdraw his plea and that he had several written grounds therefor. Upon reading this pro se request, the trial court declared it to be a nullity given Toler’s representation by counsel. The trial court added that there was no request to remove appointed counsel nor was there any claim of ineffective assistance of counsel. The trial court further added that not only was the motion a nullity but that its contents were conclusively refuted by the record. Thereafter, appellant was adjudicated guilty and sentenced to 36 months in prison.

On appeal, Toler argues the trial court erred in not holding a hearing upon receipt of the motion to withdraw a plea. Toler argues that such a hearing is mandated by Sheppard v. State, 17 So.3d 275 (Fla.2009). This argument is without merit.

The Florida Supreme Court announced in Sheppard that the trial court should grant a hearing on a pro se motion filed pursuant to rule 3.170(£) when the motion gives rise to the suggestion that an adversarial relationship exists between counsel and the defendant, unless the allegations of the motion are conclusively refuted by the record. Rule 3.170(1), Florida Rules of Criminal Procedure, authorizes a motion to withdraw a plea after sentencing under certain circumstances. There is no provision for a motion to withdraw before sentencing under rule 3.170(1). Because the rule announced in Sheppard applies only to motions timely filed pursuant to this rule, the trial court did not violate the requirements of Sheppard by not conducting a hearing. Further, Sheppard holds that a hearing was not required since the trial court here found the allegations of the motions to be conclusively refuted by the record.

The judgment of conviction and sentence are AFFIRMED.

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


text:
    Karla MARADRIAGA, Appellant, v. 7-ELEVEN and Kemper Group, Appellees.
    No. 1D09-6394.
    District Court of Appeal of Florida, First District.
    May 14, 2010.
    Albert Marroquin and Richard E. Zaldi-var of Richard E. Zaldivar, P.A., Miami, for Appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauder-dale, for Appellees.
   PER CURIAM.

Following dismissal of Appellant’s appeal for lack of jurisdiction, an order was issued on March 10, 2010, to Appellant’s attorneys directing them to show cause why attorneys’ fees pursuant to section 57.105(l)(b), Florida Statutes (2009), should not be awarded against them and Appellant. This show cause order noted that Appellant was directed on January 12, 2010, to show cause why her appeal

should not be dismissed because the order does not appear to be either a final order or a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.180. Rather, the order appears to be merely a denial of a motion to enforce a purported settlement agreement in which the Judge of Compensation Claims administratively re-opened the case and instructed the parties to attend a “duly noticed final hearing” on the matter.

Appellant responded that “[t]he findings being appealed are erroneous based on the evidence presented at the time of the evidentiary hearing” and “[i]f this Court were to find that a settlement did occur between the parties, then that ruling would be a final adjudication on all issues.” Because the JCC’s order was neither a final order nor a non-final appeal-able order, the appeal was dismissed. See Maradriaga v. 7-Eleven, 29 So.3d 440 (Fla. 1st DCA 2010).

In their response to the show cause order issued on March 10, Appellant’s attorneys simply expanded on the previously stated reason as to why the JCC’s order should be viewed as final, and advised they relied on a per curiam affirmance, without opinion, in conducting their analysis. A per curiam affirmance, without opinion, has no precedential value. See State, Dep’t of Revenue v. Kemper Investors Life Ins. Co., 660 So.2d 1124, 1129 n. 4 (Fla. 1st DCA 1995). Appellant’s attorneys’ response offered no good reason why attorneys’ fees should not be awarded in this case. The show cause order sought a response regarding the jurisdiction of this court to review the JCC’s order, not the merits of the appeal. This is not the first time Appellant’s attorneys have appealed a clearly unappealable order. See Boladares v. Olemshoe Corp., 28 So.3d 176 (Fla. 1st DCA 2010) (dismissing appeal because order granting motion to dismiss is not ap-pealable final order).

Because Appellant’s attorneys’ response to this court’s show cause order continues to evince ignorance of the rules of appellate procedure and case law, attorneys’ fees pursuant to section 57.105, Florida Statutes (2009), are hereby imposed against Appellant’s attorneys and Appellant. Because section 57.105 does not authorize the exclusion of Appellant from the responsibility to pay a portion of the fee, on remand for determination of a reasonable fee, the JCC should also determine whether Appellant should be afforded an opportunity to obtain conflict-free counsel.

Attorneys’ fees pursuant to section 57.105(l)(b), Florida Statutes (2009), are AWARDED, and the matter is REMANDED for proceedings consistent with this opinion.

LEWIS, THOMAS, and WETHERELL, JJ., concur.


text:
    Vincent B. HOWARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1918.
    District Court of Appeal of Florida, First District.
    May 14, 2010.

      Matt Shirk, Public Defender, Fourth Judicial Circuit, and Todd Niemczyk, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Vincent B. Howard is hereby afforded belated appeal of his judgment and sentence in Duval County case number 16-2007-CF-014742-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). The appointment of the Office of the Public Defender, Fourth Judicial Circuit, for that appeal shall remain in effect.

PETITION GRANTED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Vincent B. HOWARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1920.
    District Court of Appeal of Florida, First District.
    May 14, 2010.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Todd Niemczyk, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Vincent B. Howard is hereby afforded belated appeal of his judgment and sentence in Duval County case number 16-2007-CF-014496-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The appointment of the Office of the Public Defender, Fourth Judicial Circuit, for that appeal shall remain in effect.

PETITION GRANTED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Allen REYES, Appellant, v. AREDA CONSTRUCTION, INC. and FB & WC Constructions Corp., and Travelers Insurance Company and AIG Domestic Claims, Appellees.
    No. 1D09-3817.
    District Court of Appeal of Florida, First District.
    May 14, 2010.

      Jorge A. Calil, Miami, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s March 16, 2010, order to show cause, we conclude Appellant has failed to show cause why the appeal should not be dismissed for failure to timely file the record on appeal. See Fla. R.App. P. 9.410. Accordingly, the appeal is DISMISSED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Mark LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2634.
    District Court of Appeal of Florida, Second District.
    May 19, 2010.
    Mark Lawson, pro se.
   NORTHCUTT, Judge.

Mark Lawson filed a motion requesting documents contained in the state attorney’s file in his case. See § 119.11, Fla. Stat. (2009); Roesch v. State, 633 So.2d 1, 2 (Fla.1993) (stating that certain portions of the state attorney’s investigation file are public records once a defendant’s conviction and sentence becomes final; a defendant may obtain copies of these records but must pay for the copies). The State provided copies of certain documents, but Lawson contended he had requested others that were not produced. The State replied that the missing documents had not been sought in Lawson’s original request and that one of the documents, described by Lawson as “chain of custody,” did not exist. The court denied Lawson’s request for the additional records, finding that the documents either were not in the State’s possession, had already been provided, or were not requested.

We affirm the circuit court’s decision without prejudice to Lawson’s filing another request for production of records if he wishes to do so. He states he needs these documents to prepare a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. We remind him that his judgment and sentences became final on the date this court’s mandate issued in his direct appeal. See Anton v. State, 976 So.2d 6, 8 (Fla. 2d DCA), review denied, 988 So.2d 621 (Fla.2008). A rule 3.850 motion filed more than two years after that date cannot be considered. Fla. R.App. P. 3.850(b).

Affirmed.

DAVIS and LaROSE, JJ., Concur.


author: SHEPHERD, J.

text:
    Andrew FOSTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1893.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.

      Carlos J. Martinez, Public Defender, and J. Rafael Rodriguez, Special Appointed Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   SHEPHERD, J.

Andrew Foster appeals his convictions on charges of first-degree murder, attempted second-degree murder, armed burglary, use of a firearm during commission of a felony, and possession of a firearm by a convicted felon. We find merit in Foster’s contention that the trial court reversibly erred by precluding him from calling alibi witnesses on the basis that Foster’s Notice of Alibi failed to comply with Florida Rule of Criminal Procedure 3.200, and accordingly reverse and remand this case for a new trial. A brief recounting of the relevant facts is necessary to explain our decision.

FACTS

Foster’s criminal case was pending in the circuit court for over three years at the time the matter proceeded to trial. Approximately a year and a half prior to the start of trial, the defendant provided the State with its Notice of Alibi. The notice reads as follows:

NOTICE OF ALIBI
The Defendant, Andrew Foster, pursuant to Rule 3.200 of the F.R.Cr.P. gives notice of alibi and would state as follows:
1. At the time of the alleged offense, the defendant was in the company of Behyah Chandler, 12804 SW 31st Street, Miramar, FL 33027.
2. The names of (sic) the addresses of the witnesses by whom the defendant proposes to establish the alibi are as follows:
a) James Lee Briggs, III 161 NW 38th Avenue Miami, Florida
b) Darrell Bridges c/o Alan R. Soven, Esq. 1571 NW 13th Court Miami, FL 33125
c) Brandon Duhart c/o Alan R. Soven, Esq. 1571 NW 13th Court Miami, FL 33125
d) Patrick Jenkins c/o Alan R. Soven, Esq. 1571 NW 13th Court Miami, FL 33125
e) William Jenkins 1625 NW 39 Court Miami, Florida

The filing of the notice did not prompt any action by the State prior to trial. The assistant state attorney assigned to the case at the time of trial, the fifth in a line of those assigned, was not the assigned attorney to the case at the time the notice was filed. It appears he discovered the notice during the presentation of his case, at which time he demanded in open court that defense counsel produce the witnesses for deposition. The trial court responded by ordering the defense to use its best efforts to produce the witnesses for deposition during a one-day recess, planned for the following day. When defense counsel’s efforts failed, the State moved to strike the witnesses, arguing the Notice of Alibi did not comply with the requirements of Rule 3.200. At the hearing on the motion, the defense withdrew its intent to call three of the witnesses: Briggs, Duhart and William Jenkins. After further argument, the trial court granted the State’s motion to strike the remaining witnesses, finding the notice violated Rule 3.200. At the conclusion of the State’s case, the defense rested without presenting any evidence.

ANALYSIS

Florida Rule of Criminal Procedure 3.200 (2003) reads as follows in relevant part:

Notice of Alibi
On written demand of the prosecuting attorney, ... a defendant in a criminal case who intends to offer evidence of an alibi in defense shall, not less than 10 days before trial or such other time as the court may direct, file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and as particularly as is known to the defendant or the defendant’s attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi.

(Emphasis added). The rule further provides for sanctions for noncompliance, as well as a mechanism by which a trial court may waive those sanctions, stating:

If the notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of the witness as particularly as is known to the defendant or the defendant’s attorney is not stated in the notice ... For good cause shown the court may waive the requirements of this rule.

Id. (emphasis added).

The State made three arguments below in support of its motion to strike the listed witnesses: (1) alibi witness, Behyah Chandler, should have been listed in paragraph two of the notice instead of paragraph one; (2) the defense violated the rule by listing defense counsel’s address as the address for the witnesses, Bridges and Patrick Jenkins; and (3) the defense failed to produce the witnesses for deposition. As to the witness Chandler, the defense acknowledged, in light of circuit custom that paragraph one of a Notice of Alibi ordinarily is reserved for the “place of alibi” and “the addresses of the witnesses by whom the defendant proposes to establish the alibi” are customarily placed in a second paragraph, the notice may have been “inartfully drawn.” As to the remaining two witnesses, Bridges and Patrick Jenkins, whose addresses are listed as that of defense counsel, counsel stated he used this protocol because the witnesses were too fearful to disclose their true addresses. Although defense counsel had telephone numbers for these witnesses, there is no evidence these two witnesses gave defense counsel their respective addresses. Finally, the defense noted that not only did the State fail to take any action to discover the knowledge of these witnesses during the eighteen months before the commencement of the trial, it also failed to take any step to seek better addresses for any of these witnesses. After hearing argument, the trial court excluded the testimony of Behyah Chandler, finding that portion of the notice to be “intentionally misleading.” It excluded the testimony of the remaining two alibi witnesses, Bridges and Patrick Jenkins, on the ground that listing the addresses in care of defense counsel “kind of puts the State at a disadvantage” and also caused the State prejudice.

The Florida Supreme Court has established a two-step analysis to determine whether a trial court properly excluded defense witnesses pursuant to Rule 3.200:(1) whether there was in fact a violation of the rule, and (2) if so, whether good cause exists to waive the noncompliance. Small v. State, 630 So.2d 1087, 1089 (Fla.1994). This case is resolvable on the first step of the analysis.

On this step, we begin by noting that the Notice of Alibi was timely filed and served. Second, whatever may be the custom among those who labor before the bar in the criminal division of the Eleventh Judicial Circuit, the State cannot credibly assert, based upon the Notice of Alibi filed in this case, that it would not see Behyah Chandler called as a witness at trial. In fact, the content of the notice suggests defense counsel might well be ineffective if he did not call her. Finally, it is noteworthy, albeit not legally significant in this case because our supreme court has said that prejudice is not a factor to be considered in a compliance examination made under Rule 3.200, see id., the police report contained Behyah Chandler’s name, address and personal information, and law enforcement officers had obtained a sworn statement from her prior to the filing of the charges in the case, including her assertion that Foster was with her, at her home, on the date of the offense.

Finally, there is no record evidence to demonstrate the addresses provided for any of the witnesses listed in the Notice of Alibi were anything less than “as particularly as is known to the defendant or the defendant’s attorney.” See Fla. R.Crim. P. 3.200. In the criminal underworld, witnesses might have good reason to be chary about disclosing where they may be found. We observe the Office of the State Attorney sometimes is faced with the same difficulty. As previously stated, there is no evidence defense counsel had physical addresses for Bridges and Patrick Jenkins. The fact that defense counsel gave addresses for half the individuals listed in the notice and his office address for the other half suggests a lack of legerdemain. Accordingly, we find the trial court reversibly erred by denying Foster his right to call these two witnesses as well.

Reversed and remanded for a new trial.

      . We hasten to add that, unlike the procedure required to be followed where a violation of a rule of discovery has occurred in a criminal proceeding, see Richardson v. State, 246 So.2d 771 (Fla.1971), the failure of a trial court to afford a defendant a second-prong "good cause” hearing in the event of noncompliance with Rule 3.200 does not constitute reversible error per se. Small, 630 So.2d at 1089.

      . Of course, in such a case, counsel who provides his office address as the address of the witness must produce the witness for discovery upon a timely demand.


author: SUAREZ, J.

text:
    Frantzy JEAN-MARIE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-880.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Rehearing Denied June 21, 2010.

      Frantzy Jean-Marie, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

Frantzy Jean-Marie (“the defendant”) petitions for a writ of habeas corpus alleging ineffective assistance of appellate counsel. We have jurisdiction. See Rutherford v. Moore, 774 So.2d 687 (Fla.2000). We deny the petition.

The defendant asserts that his appellate counsel was ineffective for failing to raise a double jeopardy claim at trial for charges of armed burglary and carrying a concealed firearm. The defendant claims also that his appellate counsel was ineffective for failing to raise the argument that proof of carrying a concealed firearm as an underlying offense was inadequate to sustain the armed burglary conviction and for not raising a claim for a violation of double jeopardy. Both of these claims were raised and reviewed on direct appeal. See Jean-Marie v. State, 947 So.2d 484 (Fla. 3d DCA 2006). The armed burglary conviction was upheld as supported by the defendant’s intent to carry a concealed firearm. The defendant’s conviction and sentence for carrying a concealed firearm were vacated on double jeopardy grounds. The double jeopardy claim was addressed again in the defendant’s motion for post-conviction relief. See Jean-Marie v. State, 27 So.3d 709 (Fla. 3d DCA 2010). If an issue actually is raised on direct appeal, a subsequent habeas petition is inappropriate to consider the claim that appellate counsel was ineffective for failing to raise additional arguments on the same issue. See Rutherford, 774 So.2d at 645. We therefore deny the petition for habeas corpus on the grounds already raised on direct appeal.

The defendant next contends that his appellate counsel was ineffective for failing to raise issues regarding numerous jury instructions that the defendant claims were improper. The defendant has not met his burden of showing ineffective assistance of appellate counsel for not raising the claims of instructional error on direct appeal. See Rutherford, 774 So.2d at 637. Jury instructions are subject to the contemporaneous objection rule and, absent an objection at trial, can be raised on direct appeal only if fundamental error occurred. The defendant has not asserted that trial counsel objected to any of these instructions. The defendant has not shown that any of the alleged instructional errors was fundamental error that could have been raised on appeal even though not preserved at trial. See Israel v. State, 985 So.2d 510 (Fla.2008). Therefore, appellate counsel cannot be deemed ineffective for not raising these jury instruction issues on appeal. The defendant’s claims of error on the jury instruction issues are denied.

Even if the claims had been preserved for appellate review, appellate counsel cannot be deemed ineffective for failing to pursue the claims we conclude are merit-less. Likewise, we find no merit on the defendant’s claims of improper prosecuto-rial comment on the definition of resisting an officer without violence and lawful execution of a legal duty or in the defendant’s claims of improper consideration of misconduct in sentencing.

Petition for writ of habeas corpus is denied.

      . The defendant argues error in the failure to give or in the allegedly erroneous giving of jury instructions on the following issues: the definition of the execution of a legal duty; resisting an offense without violence as an underlying offense of burglary; proof of intent for burglary; the use of the conjunction "and” and "or” in arguing resisting arrest without violence and carrying a concealed firearm; the use of the conjunctions "and” and "or" in referring to the names of the police officers; and the reference to being armed in the attempt to commit the offense of flight after the commission of the crime.


author: SCHWARTZ, Senior Judge.

text:
    Bryan A. EXILE and Elliot M. Bloom, Appellants, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D09-2768.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Florida Institutional Legal Services, and Cassandra Capobianco, and Robert Dwyer, Christopher Jones and Peter Sleasman; American Civil Liberties Union Foundation, and Maria Kayanan and Randall C. Marshall; Jeanne Baker, for appellants.
    R.A. Cuevas, Jr., County Attorney, and Thomas W. Logue, Assistant County Attorney, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

As the trial court held in an excellent opinion, we conclude that Section 21-281 of the Miami-Dade County Code , which prohibits convicted sexual offenders from residing within 2500 feet of a school, is not invalidated by Florida law and therefore remains in full force and effect. Neither of the appellants’ contentions to the contrary is well taken:

(a) The legislature has not clearly preempted local regulation of the field of sexual predators, so as to invoke the severely restricted and strongly disfavored doctrine of “implied preemption.” See Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637 (Fla. 2d DCA 2007), reversed on other grounds 28 So.3d 880 (Fla.2010); City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006); Tribune Co. v. Cannella, 458 So.2d 1075, 1077 (Fla.1984); Phantom of Clearwater v. Pinellas County, 894 So.2d 1011, 1019 (Fla. 2d DCA 2005), approved sub. nom., Phantom of Brevard v. Brevard County, 3 So.3d 309, 315 (Fla.2009); Lowe v. Broward County, 766 So.2d 1199, 1207 (Fla. 4th DCA 2000), rev. denied, 789 So.2d 346 (2001) (“The courts should be careful in imputing intent on behalf of the Legislature to preclude a local elected governing body from exercising its home rule powers.”); Tallahassee Mem. Reg. Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996); and

(b) The 2500 foot provision is not in cognizable “conflict” with the less restrictive 1000 foot buffer zone provided by Section 794.065(1) Florida Statutes. See Laborers’ Int’l Union of N. Am., Local 478 v. Burroughs, 541 So.2d 1160 (Fla.1989) (holding ordinance did not conflict with statute because a party could comply with the ordinance without violating the statute); Metro. Dade County v. Santos, 430 So.2d 506 (Fla. 3d DCA 1983); Jordan Chapel Freewill Baptist Church v. Dade County, 334 So.2d 661, 664 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 949 (1977); E.B. Elliott Advertising Co. v. Metro. Dade County, 425 F.2d 1141, 1150 (5th Cir.1970) (holding a county ordinance that required outdoor signs to be set back 200 feet from streets did not conflict with a state statute that required outdoor signs be set back 15 feet from the streets because a person could comply with the County ordinance without violating the state statute). Compare Scavella v. Fernandez, 371 So.2d 535 (Fla. 3d DCA 1979) (expressly distinguishing Jordan Chapel and E.B. Elliott).

Affirmed.

      . "It is unlawful for any person who has been convicted of a violation of Sections 794.011 (sexual battery), 800.04 (lewd and lascivious acts on/in presence of persons under age 16), 827.071 (sexual performance by a child) or 847.0145 (selling or buying of minors for portrayal in sexually explicit conduct), Florida Statutes, or a similar law of another jurisdiction, in which the victim of the offense was less than sixteen (16) years of age, to reside within 2,500 feed of any school.” Miami-Dade County, Fla., Code of Ordinances, § 21— 281(a) (2009).

      . "It is unlawful for any person who has been convicted of a violation of s. 794.011, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, regardless of whether adjudication has been withheld, in which the victim of the offense was less than 16 years of age, to reside within 1,000 feet of any school, day care center, park, or playground....” § 794.065(1) Fla. Stat. (2009).


author: COPE, J.

text:
    Frank Joseph WELDE, Appellant, v. TOP VIDEO & PRODUCTIONS USA, INC., Appellee.
    No. 3D08-3115.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.

      Frederick Charles Sake, Miami, for appellant.
    Ray Garcia and Alexis C. Rodriguez, Miami, for appellee.
    Before COPE, GERSTEN and LAGOA, JJ.
   COPE, J.

This is an appeal of an order denying specific performance of a purchase option contained within a commercial lease. The lessor, Top Video & Productions USA, Inc., maintained that the lessee was not entitled to exercise the purchase option. The lessor’s main defense below was that it properly had terminated the commercial lease and allowed the lessee Frank Joseph Welde to stay on as a month-to-month holdover tenant. The lessor took the position that because the commercial lease had been terminated, the purchase option was extinguished. After a bench trial, the trial court ruled that the lessor did not properly terminate the lease and that the lease was still in effect.

The lessor’s alternative argument was that the lessee had failed to comply with the terms of the purchase option. The purchase option said, “Lessor hereby grants to Lessee, during the term of this Lease, and provided that the Lessee is not in default of any part of this Lease Agreement, an option to purchase the property for the following prices.... ” The trial court took this language to mean that if the lessee had ever been in default at any time in the past, the lessee could not exercise the option to purchase — even if the lessee had brought all obligations current by the time the lessee exercised the option. We respectfully disagree with the trial court’s interpretation. The language means that the lessee must not be in default on the date that the lessee exercises the option. See S. Inv. Corp. v. Norton, 57 So.2d 1, 2-3 (Fla.1952).

The evidence showed the lessee had been in default on various occasions because of late rent payments. Because the trial court believed the existence of any default at any time during the term of the lease made the lessee ineligible to exercise the option, the court did not make any determination whether a default existed at the time the lessee exercised the option.

The evidence showed the lessee sent the lessor written notices of his intention to exercise the option on three separate occasions. If on any of these three dates the lessee was not in default, then the lessee was entitled to exercise the option. If the lessee was in default on all three exercise dates, then the lessee was not entitled to exercise the option. Therefore, we reverse and remand for further proceedings. On remand, if the existing record is sufficiently clear for the trial court to make the factual findings, the court may do so.- If, on the other hand, the record is not sufficiently clear, then the record must be reopened for presentation of further evidence.

Reversed and remanded for proceedings consistent with this opinion.

       However, in each instance, the rent payment ultimately was made.


text:
    Leroy G. MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3209.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Leroy G. Marshall, Jasper, pro se.
    No response required for appellee.
   PER CURIAM.

Affirmed. A rule 3.800(a) motion cannot be used to challenge the factual basis for a plea. See Sanchez v. State, 979 So.2d 1004 (Fla. 3d DCA 2008).

WARNER, TAYLOR and MAY, JJ., concur.


text:
    Gleston N. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3309.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Gleston N. Edwards, Raiford, pro se.
    No brief filed on behalf of appellee.
   PER CURIAM.

The defendant appeals the denial of his Rule 3.800(a) motion, challenging the sufficiency of the evidence presented at trial. We affirm. A Rule 3.800(a) motion cannot be used to challenge the conviction. See Prince v. State, 903 So.2d 1068 (Fla. 2d DCA 2005).

Affirmed.

WARNER, TAYLOR and MAY, JJ., concur.


text:
    Edward FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3708.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Edward Francis, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Jorge MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2889.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.

      Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

The defendant, Jorge Morales (“Morales”), appeals convictions and sentences for grand theft auto and fleeing or eluding a police officer. We find that there was substantial competent evidence to support the jury’s verdict and affirm.

On May 24, 2005, after following Morales for two blocks and observing him drive the wrong direction on a one-way street, City of Miami Police Officer Crock-er attempted to pull over the defendant’s vehicle with the use of his emergency lights. Before attempting to stop Morales, Officer Crocker ran the license plate from the defendant’s vehicle and learned that it had been reported stolen. As the Officer opened his car door to exit his vehicle, the defendant sped away, running through a red light. Officer Crocker followed him with his lights and siren on until the defendant came to a stop in a parking lot. Officer Crocker approached with his gun drawn and ordered the defendant out of the car and to lie fiat on the ground. The defendant resisted. The officer opened the door and pulled the defendant out of the vehicle. The defendant curled up in a ball, flailing his arms, making it difficult for the officer to put handcuffs on him. The defendant told Officer Crocker that he had gotten the car from a friend. The Officer observed a broken steering column, wires sticking out of the ignition and that the ignition had been removed. Officer Crocker was unable to turn off the vehicle and it had to be towed while the engine was running. The defendant was charged with third-degree grand theft of a vehicle in violation of section 812.014(2)(c)(6), Florida Statutes (2004), willfully fleeing or attempting to elude a police officer in violation of section 316.1935(1), Florida Statutes (2004) and resisting an officer without violence in violation of section 843.02, Florida Statutes (2004).

At trial, the owner of the vehicle testified that the car the defendant was driving belonged to him and that it had been reported stolen since approximately May 1, 2005. It was returned to him approximately three weeks later with a hole in the ignition in an undriveable condition. After the State rested its case, the defendant moved for judgment of acquittal, and after defense counsel rested, he renewed his motion. The trial court denied the motions. The jury returned a guilty verdict on all counts. After the original sentence was vacated allowing for a suspended sentence on Count 3, the defendant was resentenced to 85.54 months in prison followed by two years community control followed by three years’ probation.

On appeal, Morales contends that the evidence was insufficient to support the convictions for grand theft auto and fleeing or eluding. He contends that the evidence was circumstantial and did not refute the reasonable hypothesis of innocence — that the car was not stolen when the defendant drove it and that, even if it were, the defendant had no knowledge that it was stolen. Further, he argues that the State presented no evidence that Morales willfully fled with knowledge that Officer Crock-er ordered him to stop.

On review of a motion for judgment of acquittal, the standard is de novo. Pagan v. State, 830 So.2d 792 (Fla.2002). If a conviction is based wholly on circumstantial evidence, there must be sufficient evidence establishing each element of the offense, and the evidence must exclude the defendant’s reasonable hypothesis of innocence. Pagan, 830 So.2d at 803. If the State presents both direct and circumstantial evidence, sufficient evidence exists to sustain a conviction if, after viewing all of the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Banks v. State, 732 So.2d 1065 (Fla.1999).

In this case, the State presented direct evidence in the form of testimony from Officer Crocker that the defendant stopped briefly when the officer’s emergency lights were activated and then drove away at a high rate of speed going through a red light. There was also direct evidence that the defendant continued to flee from Officer Crocker after the officer activated his emergency lights and siren pursuing him until he came to a stop in a parking lot. Such evidence has been held sufficient to sustain a conviction, under section 316.1935(1), Florida Statutes (1983), for willfully fleeing in an attempt to elude an officer. See Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). The defendant’s reasonable hypothesis of innocence, that he stopped for a red light and did not know that the officer had ordered him to stop is refuted by the record facts and Officer’s testimony sufficient to support a jury determination that Morales had knowledge that he had been directed to stop his vehicle by a police officer and willfully refused to do so. Jackson, 463 So.2d at 373 (holding evidence sufficient “to support jury determination that Jackson had knowledge that he had been directed to stop his vehicle by a police officer and willfully refused to do so” where officer approached defendant who got into vehicle and fled, followed by patrol cars with lights flashing, and stopped and drove off again, while officers pursued him with sirens on until vehicle came to a stop).

There was circumstantial evidence presented as to the grand theft count sufficient to rebut the defendant’s reasonable hypothesis of innocence that he was not driving a stolen car at the time of the accident. Officer Crocker testified that he ran the tag of the vehicle and that the information came back showing that it had been stolen. In addition, the defendant was observed driving the wrong way on a one-way street and he ignored the Officer’s signal to pull over. The defendant took off when the officer approached his vehicle and, although being pursued by the Officer with his siren on at a full rate of speed, Morales ran through a red light and traveled several blocks before stopping. He resisted the officer when the officer attempted to remove him from the vehicle. In addition, Officer Crocker observed that the ignition in the vehicle had been completely removed and that there were wires hanging from it. The vehicle had to be towed while the engine was still running. The defendant’s reasonable hypothesis of innocence that the car belonged to a friend is refuted by the fact that he could not provide the name or address of the friend, and the owner of the vehicle testified that the vehicle had been missing for approximately three weeks after it had been stolen. Unless satisfactorily explained, proof of possession of recently stolen property gives rise to an inference that the person in possession of the property knew, or should have known, that it was stolen. See § 812.022(2), Fla. Stat. (2009). “It was up to the jury to weigh the [defendant’s] explanation for possessing the car and decide whether to accept the correctness of the inference.” Bozeman v. State, 931 So.2d 1006, 1007-08 (Fla. 4th DCA 2006); citing Scobee v. State, 488 So.2d 595 (Fla. 1st DCA 1986) (upholding conviction for grand theft auto and rejecting defense that defendant did not know car was stolen where patrolling officer observed defendant’s recently stolen vehicle with headlights off, steering column damaged and keyless ignition).

The trial judge correctly determined that, beyond a reasonable doubt, the jury could find that, viewing the evidence in a light most favorable to the State, the State proved all of the elements of the crimes of grand theft auto and willfully fleeing or eluding a police officer.

Affirmed.

      . The State argues that the defendant’s reasonable hypothesis of innocence argument was not properly preserved below with an objection on specific grounds and therefore it was not preserved for appellate review. In an abundance of caution, we address the argument.


author: CORTIÑAS, J.

text:
    The STATE of Florida, Appellant, v. Jose CARRENO, Appellee.
    No. 3D08-1081.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.

      Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    Grey & Mourin and Juan E. Mourin, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   CORTIÑAS, J.

The State of Florida appeals the trial court’s order granting the motion of defendant Jose Carreno to suppress evidence seized from his home after execution of a search warrant. The trial court found that the affidavit in support of the search warrant lacked sufficient facts to establish probable cause for issuance of the warrant. We reverse.

In his affidavit in support of the warrant, Detective Robert Holleran of the Miami-Dade Police Department detailed how he received an anonymous tip that the defendant’s house was being used to grow marijuana and that the owner would be “cropping the harvest” that day. He explained that on the basis of that tip, the police set up surveillance at the property and saw the defendant’s blue Lincoln Navigator and a black Ford F-150 pickup truck enter the fenced-in property through an electronic gate. He stated that the bed of the pickup was empty when it entered but was filled with black garbage bags when it departed a short time later. He further stated that the police followed the pickup truck and soon stopped it for running a stop sign. Detective Holleran stated that he smelled marijuana emanating from the bags; after the driver gave his permission, Detective Holleran opened the bags and found marijuana clippings, marijuana leaves, and the root systems of marijuana plants. The affidavit further reported that the driver told police that the defendant, whom he claimed not to know, had paid him $800 to take the garbage bags to the dump.

Based upon these sworn facts, the original judge issued a warrant for the described premises. The police searched the residence and seized numerous marijuana plants and equipment, evidence that the house was being utilized as a “grow house” to cultivate marijuana. After a hearing on the defendant’s motion to suppress the evidence seized, the successor circuit court judge found that “[t]he anonymous tip coupled with the single search of the garbage bags, with no other observations suggesting there was a hydroponics laboratory inside the home, did not provide sufficient probable cause to search the interior of the defendant’s home.”

A review of the record shows that the original circuit court judge followed the correct standard for determining that there was probable cause to believe that evidence of a crime would be found in the defendant’s home. See State v. Woldridge, 958 So.2d 455, 458 (Fla. 2d DCA 2007). It was the reviewing court that failed to apply the proper standard, one of “great deference,” to the original judge’s determination. See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Section 933.02(3), Florida Statutes, provides that a search warrant for property may be issued “[w]hen any property constitutes evidence relevant to proving that a felony has been committed.” Before a court can issue a search warrant, however, “the judicial officer issuing such a warrant [must] be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.” Whiteley v. Warden, Wyo. State Pen., 401 U.S. 560, 564, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). More specifically, Section 933.18(5), Florida Statutes, provides that a search warrant shall be issued for the search of a private dwelling “on sworn proof by affidavit of some credible witness that he or she has reason to believe that one of said conditions [e.g., “[t]he law relating to narcotics or drug abuse is being violated therein”] exists, which affidavit shall set forth the facts on which such reason for belief is based.” Therefore, “the affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime ... and, second, that evidence relevant to the probable criminality is likely located at the place to be searched.... ” Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003). To that end, “the affidavit itself must contain either information concerning the informant’s veracity or sufficient independent corroborating evidence.” Woldridge, 958 So.2d at 458 (citing Pagan v. State, 830 So.2d 792, 806-07 (Fla.2002)).

It is the task of the issuing judge “to examine the affidavit for facts and fact-based conclusions” in determining whether probable cause exists for the issuance of a search warrant. Burnett, 848 So.2d at 1174. The Florida Supreme Court has

defined “probable cause” as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied.

Schmitt v. State, 590 So.2d 404, 409 (Fla.1991) (internal citations omitted). The judge’s duty “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To reiterate, “it is the ‘probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.’ ” Doorbal v. State, 837 So.2d 940, 952-53 (Fla.2003) (quoting Gates, 462 U.S. at 235, 103 S.Ct. 2317). This standard “requir[es] ‘more than mere suspicion but less evidence than is necessary to convict.’ ” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000) (quoting United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980)).

However, in reviewing a prior determination of probable cause and the issuance of the search warrant, the reviewing court must “accord[ ] ‘great deference’ to a magistrate’s determination,” even in a marginal or doubtful case. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citing Spinelli, 393 U.S. at 419, 89 S.Ct. 584); see United States v. Lockett, 674 F.2d 843, 845 (11th Cir.1982). In fact, “once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised.... ” United States v. Giacalone, 541 F.2d 508, 513 (6th Cir.1976). Therefore, “the trial court should not disturb an issuing magistrate’s determination absent a clear determination that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause.” Woldridge, 958 So.2d at 458 (citing State v. Price, 564 So.2d 1239, 1241 (Fla. 5th DCA 1990)). To that end, the trial court, when reviewing the issuance of a warrant based on a probable cause affidavit, “does not conduct a de novo determination of whether there was probable cause to issue the warrant. Instead, the trial court determines only whether substantial evidence supported the magistrate’s determination that probable cause existed.” Woldridge, 958 So.2d at 458 (citing Bonilla v. State, 579 So.2d 802, 805 (Fla. 5th DCA 1991)).

When this Court reviews an order granting a motion to suppress, we must defer to the trial court’s findings of historical fact but “review de novo its application of established law to those facts.” Brachlow v. State, 907 So.2d 626, 628 (Fla. 4th DCA 2005) (citing McNamara v. State, 357 So.2d 410, 412 (Fla.1978)). Here, under the facts of this case, the trial court judge did not give great deference to the original judge’s probable cause determination.

The trial court, in holding that there was nothing in the affidavit to provide probable cause for a search of the defendant’s home, found that this case was similar to Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998), in which an anonymous tip and a one-time trash pull yielding cannabis residue were found to provide insufficient probable cause for issuance of a warrant. However, Raulerson is distinguishable in that it, like Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999), concerned a “small amount of marijuana ... consistent with personal use,” State v. Gross, 833 So.2d 777, 781 (Fla. 3d DCA 2002), which did “not suggest a pattern of continuous drug activity.” Raulerson, 714 So.2d at 537. Indeed, the court in Raulerson contrasted it with “those cases involving discovery of narcotics from a one-time trash pull, where additional information was included in the affidavits [that] suggested patterns of continuous drug activity,” id., such as State v. Mayes, 666 So.2d 165 (Fla. 2d DCA 1995), and Scott v. State, 559 So.2d 269 (Fla. 4th DCA 1990), both of which combined a single trash pull with police surveillance that corroborated an anonymous tip. See also United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir.1982) (holding that a single trash pull “might be sufficient,” but it helps if “other facts bolster the sufficiency of the affidavit in establishing probable cause to believe that illegal drugs would be found”); United States v. Biondich, 652 F.2d 743 (8th Cir.1981) (single trash pull sufficient, considering prior drug convictions); State v. Carbonell, 816 So.2d 1169, 1170-71 (Fla. 4th DCA 2002) (single trash pull and surveillance sufficient); Lopez v. State, 775 So.2d 1007-08 (Fla. 3d DCA 2001) (multiple tips regarding drug dealing and single trash pull yielding “a considerable amount of drug paraphernalia and cocaine residue” sufficient); cf. Thompson v. State, 548 So.2d 806, 808 (Fla. 1st DCA 1989) (finding a “bare assertion” insufficient “unless the affidavit demonstrates a factual basis for the belief’).

In both Raulerson and Gesell, unlike the instant case, “the officers did not conduct any surveillance or independent follow-up investigation to corroborate the anonymous tip.” Gesell, 751 So.2d at 105. Here, however, the anonymous caller reported that the defendant would be “harvesting the crop” that day; when police searched the garbage bags, they found clippings, leaves, and a root system, evidence that substantiated the caller’s claim. As in Baker v. State, 762 So.2d 977, 978 (Fla. 4th DCA 2000), “the items found in the trash pull ... were consistent with the specific information from the caller....” See also Gross, 833 So.2d at 781 (“In light of all of the other available information, the single trash search ... was sufficient to corroborate the anonymous tip and to provide probable cause.... ”).

Several cases require authentication of the defendant’s ownership of the drug paraphernalia or plants found in a curbside trash pull before the evidence is deemed sufficient probable cause for issuance of a search warrant. Such proof often comes in the form of personal papers, see, e.g., State v. Jacobs, 437 So.2d 166, 167 (Fla. 5th DCA 1983), or mail with the defendant’s name on it, see, e.g., Baker, 762 So.2d at 978; Mayes, 666 So.2d at 165. The ownership of the trash bags is a nonis-sue here, however: the police observed the removal of the bags from the fenced, gated yard of the defendant’s residence, and the pickup truck’s driver confirmed that the defendant had paid him to take them to the dump.

Here, Detective Holleran presented sufficient facts in his affidavit for the original judge “to make a practical, common-sense decision, based on the circumstances set forth in the affidavit, that the defendant committed the alleged crime ... and that ‘evidence relevant to the probable criminality [of marijuana trafficking was] likely to be located at the place searched[,]’” namely, the defendant’s residence. State v. Abbey, 28 So.3d 208, 212 (Fla. 4th DCA 2010) (quoting State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006)). The affidavit alleged that the police received an anonymous tip that marijuana was being grown in the defendant’s home; they set up surveillance and observed suspicious behavior, i.e., the driver of the pickup truck removing a number of garbage bags from next to the home; the odor of marijuana was emanating from the bags, which were found to contain marijuana clippings, leaves, and root systems; and the driver of the pickup stated that he had been paid $300, a disproportionately large amount, to take the bags to the dump. These facts “support the finding that there was a probability, though not necessarily a prima facie showing, of criminal activity.” Abbey, 28 So.3d at 212. Furthermore, given that the trash bags belonged to the defendant, and marijuana was not being grown in the yard, it was reasonable for Detective Holleran and the original judge to infer that marijuana was being grown inside the defendant’s home.

Because the detective’s affidavit in support of the search warrant contained sufficient facts to establish probable cause that the defendant was engaging in the trafficking of cannabis and that the evidence of the crime would be found in his home, we hold that the original judge properly issued the search warrant. Because the trial court failed to use the proper standard of review, according great deference to the original judge’s probable cause determination, we reverse the trial court’s order suppressing the evidence obtained as a result of that warrant.

      . The anonymous informant stated that the owner of the property drove a blue Lincoln Navigator.


text:
    Michael C. McGILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2528.
    District Court of Appeal of Florida, First District.
    May 19, 2010.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    ROCKLEDGE DESIGN STUDIOS, INC., Appellant, v. James R. HUNT, Appellee.
    No. 5D09-1916.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.
    Burton J. Green, Cocoa Beach, for Appellant.
    Charles A. Schillinger, of Schillinger & Coleman, P.A., Melbourne, for Appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. State, Dep’t of Revenue ex rel. Lamontagne, 973 So.2d 1236, 1239 (Fla. 1st DCA 2008) (“A party may forfeit the right to seek relief even from a void judgment if the party’s actions or statements have had the effect of ratifying the judgment or conceding its propriety.”) (citations omitted).

TORPY, LAWSON, and EVANDER, JJ., concur.


text:
    J.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2555.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

J.B. appeals that portion of the trial court’s order concerning fines, costs and fees requiring him and his parents to pay the costs of two mental competency evaluations ordered by the trial court in his delinquency case. In W.Z. v. State, 35 So.3d 51, 2010 WL 1507010 (Fla. 5th DCA 2010), this Court held that no statutory basis exists to assess such costs against a juvenile or his or her parents. Accordingly, we strike that portion of the order requiring J.B. and his parents to pay the costs of the mental evaluations.

COSTS STRICKEN.

MONACO, C.J., ORFINGER and JACOBUS, JJ., concur.


text:
    Eddie CARSWELL, Petitioner, v. FLORIDA PAROLE COMMISSION and State of Florida, Respondents.
    No. 5D10-182.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.
    Eddie Carswell, Bushnell, pro se.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, for Respondent.
   PER CURIAM.

Eddie Carswell seeks certiorari review of a circuit court order denying his second petition for writ of habeas corpus, seeking immediate release. Carswell argues that his current incarceration — ordered after Carswell violated a term of his conditional release — is illegal because the Florida Parole Commission never had authority to supervise him on conditional release. The trial court ordered a response from the Commission, and expressly authorized Carswell to file a reply. Although Cars-well timely filed a reply, the trial court did not await the reply and entered the denial order prior to receipt of Carswell’s reply. Under these circumstances, the Commission correctly concedes that the denial order should be quashed, with the matter remanded to the trial court to consider Carswell’s reply. See Salow v. State, 766 So.2d 1222 (Fla. 5th DCA 2000).

Accordingly, we GRANT the petition, QUASH the denial order, and REMAND with directions that the trial court consider Carswell’s reply before ruling on this matter.

GRANT PETITION, QUASH DENIAL ORDER and REMAND.

TORPY, LAWSON and COHEN, JJ., concur.