author: ROTHENBERG, J.

text:
    Moralinda RACHID, Appellant, v. Omaira Torres PEREZ, etc., Appellee.
    No. 3D08-1210.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      S. Peter Capua, Miami, for appellant.
    Barreto & Romero and Luis E. Barreto, Miami; Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Moralinda Rachid appeals the order denying her motion for rehearing and her motion to set aside the order granting the motion to enforce the mediated settlement agreement. Because we find that the trial court did not abuse its discretion in concluding that Rachid presented no valid basis for relief, we affirm.

In 1978, Rachid and Arnaldo Martell, the Decedent, entered into a prenuptial agreement, which provided that the past, present and future property of each spouse would remain the property of the respective spouse. Martell died in 2006 while divorce proceedings were pending. Ra-chid sought an elective share of the Decedent’s estate, among other property. The trial court ordered mediation; the parties reached a mediated settlement; and the trial court approved the agreement. When Rachid failed to comply with the settlement agreement, the personal representative of the estate moved to enforce the settlement.

Just prior to the hearing, Rachid moved for a continuance “to review the documentation relevant to this matter.” The motion was denied. At the hearing, Rachid’s counsel advised the trial court that he had a conflict of interest and could not take a position on the motion. Rachid testified that she wanted more time to consult with another attorney and to investigate the settlement and the prenuptial agreement. She contended that she had not been given enough information on the value of some of the Decedent’s assets and that her attorney told her she could file an appeal after she settled.

The trial court granted the motion to enforce the settlement agreement. Rachid did not appeal this order. Instead, she hired new counsel who filed an emergency motion to stay the proceedings and a motion for rehearing and to set aside the order granting the motion to enforce the mediated settlement agreement. In her motions, Rachid raised the conflict issue, alleged that she was uninformed or misunderstood significant facts, and questioned the validity of the prenuptial agreement. The motions were denied. This appeal followed.

Rachid seeks rescission of the settlement agreement based upon unilateral mistake. Because her appeal is directed to the order denying her motion for rehearing and a denial of her motion to set aside the order granting the motion to enforce the mediated settlement, the standard of review is gross abuse of discretion. LPP Mortgage Ltd. v. Bank of Am., N.A., 826 So.2d 462, 463-64 (Fla. 3d DCA 2002) (holding that whether relief should be granted ... is a fact specific question and the trial courts ruling should not be disturbed on appeal absent a gross abuse of discretion). We additionally note that [t]here is a more stringent standard of review, however, when the final judgment to be vacated follows a mediated settlement agreement. Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, 816 So.2d 658, 660 (Fla. 5th DCA 2002).

We begin our analysis with Ra-chid’s failure to present the legal argument of unilateral mistake below. To preserve an issue for appellate review, it “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Roth v. Cohen, 941 So.2d 496, 500 (Fla. 3d DCA 2006) (quoting Archer v. State, 613 So.2d 446, 448 (Fla.1993)). Because Rachid failed to raise the argument of unilateral mistake at the trial court level, this issue is not preserved and not properly before this Court.

Even if Rachid had preserved the issue of unilateral mistake, we would affirm. First, Rachid’s burden when seeking rescission of a settlement agreement on this legal theory is a particularly difficult one. See Tilden Groves, 816 So.2d at 660 (“[Clases settled in mediation are especially unsuited for the liberal application of a rule allowing rescission of a settlement agreement based on unilateral mistake.”); see also Sponga v. Warro, 698 So.2d 621, 625 (Fla. 5th DCA 1997).

Second, Rachid’s argument is without merit as the record does not support the legal remedy of rescission on the basis that the settlement agreement was the product of a unilateral mistake. Under Florida law, the party seeking rescission based on unilateral mistake must establish that:

(1) the mistake was induced by the party seeking to benefit from the mistake, (2) thei’e is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.

Lechuga v. Flanigan’s Enters., Inc., 533 So.2d 856, 857 (Fla. 3d DCA 1988). Here, Rachid does not claim that any party misled or induced her to enter into the settlement agreement. Rather, she contends that her attorney misled or induced her. Thus, her claim fails as a matter of law. Rachid also cannot demonstrate that there was “no negligence or want of due care” on her part because she had an obligation to read and know the legal parameters regarding the validity and application of the prenuptial agreement prior to mediation. Leff v. Ecker, 972 So.2d 965 (Fla. 3d DCA 2007) (holding that where the plaintiff entered into a mediated settlement agreement with a limited knowledge of the relevant facts, the plaintiff bore the risk of mistake). Additionally, Rachid was represented by counsel at mediation, and she failed to demonstrate that denial of rescission would be inequitable or that granting relief would be unjust. Thus, we conclude that even if Rachid had properly preserved her claim of unilateral mistake, on appellate review her claim would have failed on the merits.

We, therefore, address the argument that Rachid did raise — that there was no meeting of the minds. As to the trial court’s rejection of this argument, we find no abuse of discretion. See Tanner v. Tanner, 975 So.2d 1190 (Fla. 1st DCA 2008) (holding that “ ‘[bjuyei^’s remorse’ is not a sufficient basis for overturning a marital settlement agreement freely and voluntarily entered into”); see also BMW of N. Am., Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985) (rejecting BMW’s appeal to set aside a judgment based on BMW’s failure to include a condition in its settlement offer). We therefore affirm the order under review.

Affirmed.

      . The settlement provided that Rachid would receive $300,000 in exchange for relinquishing her interest in two parcels of real property and the financial accounts of the Decedent and acknowledging the validity and enforceability of the Decedent's will and trust.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Saydel MAS, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD, Appellee.
    No. 3D09-1933.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Randy A. Fleischer, Davie, for appellant.
    Jean Marie Middleton, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SUAREZ, JJ.
   PER CURIAM.

Saydel Mas appeals the Final Order of the appellee Miami-Dade County School Board adopting the Recommended Order of the Division of Administrative Hearings (DOAH). We reverse and remand the case with instructions that the DOAH issue an order addressing Mas’ exceptions and providing Mas with a remedy.

By letter dated July 23, 2008, the School Board of Miami-Dade County informed Mas that it had suspended him and initiated proceedings to dismiss him from all employment with the Miami-Dade Public Schools, effective at the close of the work day on August 4, 2008. The letter stated that the School Board was taking action for just cause, including allegations that Mas received funds directly from a vendor while employed by the School Board and that he viewed inappropriate material on a School Board computer.

By letter dated August 15, 2008, Mas requested a formal hearing. At the hearing, the School Board called five witnesses and offered into evidence eleven exhibits. Mas called one witness and stipulated to the School Board’s exhibits. The parties submitted proposed recommended orders. In his proposed recommended order, Mas requested reinstatement and backpay. The transcript of the hearing was submitted to the Administrative Law Judge (ALJ). On April 16, 2009, the ALJ issued his recommended order, finding that the School Board failed to prove that Mas violated any of the cited rules or statute as to the computer pornography and failed to prove that Mas violated any of the cited rules or statute regarding accepting pay from a vendor while employed with the School Board. The ALJ recommended that “Petitioner enter a final order dismissing the Notice of Specific Charges.”

On April 27, 2009, Mas timely filed Exceptions to the Proposed Order, specifically requesting that he be made whole by reinstating him and awarding him back pay from August 4, 2008, to the date of reinstatement, based on his pro rata salary of $56,000.00 annually. The record is silent regarding the DOAH review of Mas’ Exceptions, and Mas’ exceptions were never addressed.

On June 18, 2009, the School Board issued a Final Order adopting DOAH’s Recommended Order and dismissing the charges against Mas. Mas was not reinstated or provided backpay.

We agree with Mas that allowing him to request a hearing to appeal his termination is meaningless if the charges against him are dismissed but he is not reinstated with back pay. State v. Goode, 830 So.2d 817, 824 (Fla.2002). Mas prevailed at the DOAH hearing, and the charges against him were dismissed.

In addition, the exceptions Mas filed to the Proposed Order were never addressed, and the DOAH’s Final Order failed to specify any remedy for Mas. The School Board is required to rule explicitly on each exception which identifies the disputed portion of the Recommended Order by page number or paragraph. See § 120.57(1)(k), Fla. Stat. (2008); Boundy v. School Bd. of Miami-Dade County, 994 So.2d 433, 434-35 (Fla. 3d DCA 2008).

Accordingly, we reverse the Final Order of the Miami-Dade County School Board entered on June 18, 2009, and remand the case to the DOAH for a ruling on Mas’ exceptions and entry of an order providing Mas a remedy for terminating him without just cause.

Reversed and remanded with instructions.


text:
    Jerry Lavone DUCKSWORTH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3289.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Jerry Lavone Ducks-worth, appeals his life sentence, arguing that the trial court imposed a vindictive sentence. We affirm.

In 1999, the defendant was charged with one count of robbery with a deadly weapon and one count of aggravated assault. At the time of the charged offenses, the defendant was on probation, and therefore, the State filed an affidavit of probation violation, seeking to revoke the defendant’s probation.

At a pretrial hearing conducted on October 2, 2000, the State informed the trial court that the defendant scored eleven to nineteen years on the violation of probation, and that he qualified for enhanced sentencing in the new case as a habitual offender and prison releasee reoffender, and possibly as a habitual violent offender. The State then informed the trial court that it “had a standing offer of 20 years as a habitual offender to close all the matters, which I think is reasonable.” In response, the trial court stated, “I agree.” Defense counsel rejected the offer on the defendant’s behalf. Thereafter, the trial court, without further discussion regarding the State’s plea offer, granted a joint continuance.

In February 2001, the defendant’s trial resulted in a hung jury and mistrial. While the jury was deliberating, however, the trial court conducted a probation violation hearing. The trial court found that the defendant violated his probation and sentenced him to 9.9 years.

The defendant was retried in May 2001. The jury found the defendant guilty of robbery with a weapon, as a lesser included offense of robbery with a deadly weapon. Thereafter, the trial court sentenced the defendant to life in prison as a habitual violent felony offender and concurrent thirty-year minimum mandatory sentences as a prison releasee reoffender and three-time violent felony offender. In sentencing the defendant, the trial court stated: “It is obvious to this court that sentencing Mr. Ducksworth to the maximum possible sentence is necessary for the protection of society.”

This Court affirmed the defendant’s conviction, life sentence as a habitual violent felony offender, and thirty-year minimum mandatory sentence as a prison releasee reoffender, but struck the thirty-year minimum mandatory sentence as a three-time violent felony offender. Ducksworth v. State, 834 So.2d 951, 952 (Fla. 3d DCA 2003). Several years later, this Court granted the defendant a belated appeal on the claim of vindictive sentencing. Ducksworth v. State, 998 So.2d 614 (Fla. 3d DCA 2008), which is the subject of the present appeal.

The defendant contends that, based on the totality of the circumstances, the trial judge imposed a presumptively vindictive sentence. We disagree.

In Wilson v. State, 845 So.2d 142, 156 (Fla.2003), the Florida Supreme Court set forth the applicable standard when determining whether the defendant’s due process rights were violated by “the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated.” (emphasis added). As further explained in Wilson:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant ...; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. at 156 (citation omitted; footnotes omitted). If the totality of the circumstances gives rise to a presumption of vindictiveness, then the burden shifts to the State to produce evidence on the record to dispel the presumption. Id. at 156 n. 8 (“Where the totality of the circumstances does not give rise to a presumption of vindictiveness, the burden remains upon the defendant to prove actual vindictiveness.”).

Here, the trial judge did not participate in the plea negotiations. Instead, the record demonstrates that the State informed the trial court that the defendant scored eleven to nineteen years on the probation case and 10.8 years with a ten-year minimum mandatory on the new charges; the defendant qualified for enhanced sentencing on the new charges as a habitual offender, a prison releasee reof-fender, and possibly as a habitual violent offender; that the sentence on the new charges could be ordered to run consecutive to the sentence imposed on the probation violation; and that the State had offered the defendant a plea of twenty years “to close all matters,” commenting that it believed that the offer was “reasonable.” Thereafter, the trial judge merely agreed that the State’s plea offer sounded reasonable. After defense counsel rejected the plea offer on the defendant’s behalf, the trial judge did not comment on the defendant’s decision nor discuss the plea offer. Moreover, the record does not demonstrate that the trial judge was aware of the facts surrounding the newly charged crimes or that he would have accepted the plea after reviewing the facts of the case or the defendant’s prior criminal history. Based on the record before this Court, the totality of the circumstances does not give rise to a presumption of vindictiveness. Thus, the burden remained with the defendant to prove actual vindictiveness, and because the defendant failed to meet his burden, we affirm.

Affirmed.


author: LAGOA, J.

text:
    Beverly DELANCY, Appellant, v. Andrew TOBIAS, Appellee.
    No. 3D08-2159.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      Hoffman, Larin & Agnetti and David L. Perkins and John B. Agnetti, North Miami Beach, for appellant.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein and Kristen A. Tajak, Hollywood, for appellee.
    Before GERSTEN, SUAREZ, and LAGOA, JJ.
   LAGOA, J.

Beverly Delaney (“Delaney”) appeals from an order dismissing her action against appellee, Andrew Tobias (“Tobi-as”), for insufficiency of service. Because Delaney properly and timely perfected substituted service on Tobias, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

In 2006, Delaney filed a premises liability action against Tobias for injuries she suffered after a slip and fall accident at an apartment building owned by Tobias. Despite continued efforts to serve Tobias personally at two addresses, including a gated residence in Florida, Delaney was unsuccessful in serving him despite an extension of time to perfect service.

As a result, Delaney proceeded to seek substituted service. Delaney filed an amended complaint, which stated the necessary requirements for substituted service in compliance with sections 48.161 and 48.181, Florida Statutes, and further filed a motion for another extension of time to perfect service. Delaney also attached an Affidavit of Diligent Search to the Amended Complaint, which described Delaney’s efforts to locate and serve Tobias. The trial court granted Delaney’s motion for an extension of time to perfect service on Tobias.

As a result of the extension, on February 14, 2008, the Secretary of State was served, and the notice of service on the Secretary of State was mailed to Tobias by regular and certified mail. Subsequently, after receiving a certified mail receipt for the notice of service on Tobias, Delaney filed a Notice of Filing Affidavit of Service with the trial court.

Shortly thereafter, Tobias sought to quash service and to dismiss the complaint, contending that Delaney did not demonstrate due diligence or that Tobias had concealed his whereabouts. In response, Delaney argued that the substituted service was sufficient. The trial court quashed service of process, and dismissed the complaint finding that the affidavit did not demonstrate due diligence. This appeal ensued.

II. ANALYSIS

Section 48.181(1) provides for substituted service on residents who conceal their whereabouts and engage in a business in Florida. The plaintiff must “show by affidavit or otherwise that sufficient search and inquiry was actually made to ascertain that the defendant was concealing his whereabouts.” Bird v. Int’l Graphics, Inc., 362 So.2d 316, 317 (Fla. 3d DCA 1978). In relying upon substituted service, Delaney must show diligence in endeavoring to locate Tobias’s whereabouts:

The test ... is not whether it was in fact possible to effect personal service in a given case, but whether the [plaintiff] reasonably employed knowledge at [her] command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable [her] to effect personal service on the defendant.

Grammer v. Grammer, 80 So.2d 457, 460-61 (Fla.1955) (quoting McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926)); see also Dubois v. Butler, 901 So.2d 1029 (Fla. 4th DCA 2005); DeVico v. Chase Manhattan Bank, 823 So.2d 175, 176 (Fla. 3d DCA 2002); Cross v. Kalina, 681 So.2d 855 (Fla. 5th DCA 1996).

Here, Delaney made “an honest and conscientious effort” to obtain information that would enable her to serve Tobias personally. She therefore demonstrated the requisite diligence in attempting to locate Tobias and his avoidance of that service. The affidavit of diligent search and the process server’s diligence worksheets delineate the substantial efforts made to locate Tobias’s whereabouts and numerous attempts to personally serve Tobias. For example, Delaney attempted to serve Tobias twenty-two times over a three-month period at his admittedly correct Florida address. However, because the residence is gated, the process server was barred from access to the front door. While “[l]itigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access.” Bein v. Brechtel-Jochim Group, Inc., 6 Cal.App.4th 1387, 1393, 8 Cal.Rptr.2d 351 (1992). As such, based upon this record, Delaney properly resorted to substituted service on Tobias. See Luckey v. Smathers & Thompson, 343 So.2d 53, 54 (Fla. 3d DCA 1977) (holding that “there is no rule of law which requires that the officers of the court be able to breach the self-imposed isolation in order to inform the defendant that a suit is filed against him”); see also Boatfloat LLC v. Golia, 915 So.2d 288 (Fla. 4th DCA 2005) (noting the challenge of successfully serving a limited liability company when the registered agent’s only address is a gated residential community with no regular, public business hours); Harris-Scott v. Jackson, 2008 WL 3122178 (Cal.Ct.App. Aug. 7, 2008) (permitting service by publication upon finding that plaintiff demonstrated diligence in attempting to serve defendant, including attempted service at his gated ranch property, where the process server was unable to gain access) (unpublished). See generally 818 Asset Management, Inc. v. Neiman, 22 So.3d 659 (Fla. 3d DCA 2009) (Wells, J., specially concurring) (stating that there was no factual issue as to concealment of defendant’s whereabouts where, among other circumstances, plaintiff unsuccessfully attempted to serve defendant multiple times at her correct condominium address).

Because no issue exists as to whether Delaney either served Tobias during the extension of time granted by the trial court or properly complied with the substituted service requirements, or whether To-bias received the summons and complaint by mail at his gated residence, we find that Delaney properly effectuated substituted service on Tobias during the trial court’s extension of time to perfect service.

Accordingly, because Delaney properly and timely served Tobias by substituted service during the trial court’s extension of the service period, we reverse the order dismissing the complaint.

Reversed and remanded.

      . The amended Complaint alleged that Tobias owned and operated an apartment business in Miami-Dade County, but that Delaney had been unable to serve Tobias as he was concealing his whereabouts.

      . Section 48.181(1), Florida Statutes, provides that any person doing business in this state is amenable to service of process on the Secretary of State if that person is concealing his or her whereabouts:
      [A]ny person ... who is a resident of the state and who ... conceals his or her whereabouts ... [and who accepts] the privilege ... to operate, conduct, engage in, or carry on a business ... in the state constitutes an appointment ... of the Secretary of State ... as their agent on whom all process in any action ... arising out of any transaction or operation connected with or incidental to the business or business venture may be served.


author: SHEPHERD, J.

text:
    T.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-808.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Rehearing Denied Feb. 10, 2010.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

T.R., a juvenile, appeals her withhold of adjudication and sanction for simple battery. She argues she is entitled to a new disposition hearing before a different judge because the trial court impermissi-bly relied upon the fact that she maintained her innocence to the charged offense throughout the proceeding below. We agree and reverse.

T.R. was charged with simple battery for smacking the victim, a fellow student, with her lunch box at a bus stop for allegedly making sexually offensive remarks to T.R. T.R. maintained her innocence and requested an adjudicatory hearing by the court below. The only two witnesses at the adjudicatory hearing were the victim and T.R. The evidence was conflicting as to whether T.R. intentionally swung her lunch box at the victim, or whether it accidentally hit the victim as T.R. maneuvered to try to get away from the victim. At the conclusion of the hearing, the trial court judge found T.R. guilty as charged, stating:

[T]his is something that should have been resolved by the parents a long time before this got to me, but for whatever reason it was not, so therefore it was placed in front of me, and I have a legal obligation to follow where the evidence takes me ... to the inevitable conclusion that this, in fact, was a battery.

(emphasis added). The court then set the case for a later disposition hearing.

At the disposition hearing, the Juvenile Probation Officer (JPO) recommended that T.R. be referred to Juvenile Alternative Services Sanctions (JASS), a diversion program. The State opposed the recommendation on the ground T.R. twice had been offered and rejected the same offer, once on the day before trial. According to the State, giving T.R. the same sanction post-adjudication as she was offered before trial “would be a get out of jail free card.” The trial court agreed with the State and rejected the recommendation by the JPO, stating:

I also have a specific recollection of taking a break in this case and sending everyone out of here to try to resolve the case in a different way, so that essentially this Court would not have to make a decision based on the facts that I heard in this case, and that was rejected by the defense.
There is [no] possible way for me to go ahead and offer this young lady diversion at this point in time.
The family rejected the Civil Citation, they rejected the JAS[S] offer, prior to the State bringing this case.
Everybody walked away from the opportunity that the Court gave them to try to resolve this case in a different way, at the time of trial, after I heard the majority of the case, and the facts before I rendered a decision.
At this point, this young lady has gone to Court, gone to trial, exercised her rights under the Constitution, and now it is my job to sentence her.
It is not the Department’s job to make the State’s decision to send her to a diversion program.
It is unfortunate that everybody walked away from the opportunity to have this case g[o] in a different direction. Unfortunately, here we are.
Perhaps there was another way of handling this case before, but we are not at that point'anymore. We are beyond that point.

(emphasis added). The trial court withheld adjudication of delinquency and placed T.R. on reporting probation with conditions.

Juveniles have a constitutional right not to be unfairly penalized for the assertion of innocence and demand for trial. A.S. v. State, 667 So.2d 994, 995-96 (Fla. 3d DCA 1996) (“‘The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.’ ”) (quoting City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985)) (internal citation omitted); Fraley v. State, 426 So.2d 988, 985 (Fla. 3d DCA 1983); R.A.B. v. State, 399 So.2d 16, 18 (Fla. 3d DCA 1981) (holding improper decision to adjudicate a juvenile delinquent based upon his asserted Fifth Amendment right to remain silent and right to plead not guilty); McEachern v. State, 388 So.2d 244, 248 (Fla. 5th DCA 1980). This is so even if the juvenile’s desire to maintain her innocence was not the sole factor in the court’s decision making process. A.S., 667 So.2d at 996.

The facts of this case are only slightly less compelling than those in AS. In A.S., the H.R.S. (the predecessor to the Department of Juvenile Justice) recommended to the court that A.S. not be committed, receive a withhold of adjudication, and be ordered to perform twenty hours of community service. The prosecutor opposed the recommendation, stating:

In my opinion, his failure to accept responsibility warrants more. There is no recommendation except for 20 hours of community service and a withhold. That’s a slap on the wrist. I think this case warrants a lot more. I think it warrants an adjudication of delinquency, and I think it warrants a commitment to level 6[.]

Id. at 995.

Thereafter, the trial court stated:

I’m not so sure that’s what we want in this time when violence in our community amongst young people is escalating. And especially, I’ve got a case here where this child is saying, T didn’t do it.’ So I guess there was a phantom stabber that night, June 20. He didn’t do it. And if she [victim] fell and there happened to be some bottles there, she fell against the broken bottle and cut her neck[.]
I mean, this is a very bad act. This wasn’t just a little pen knife that happened to be nearby or something. This was gotten and he came back to the scene. And now we have somebody saying, I didn’t do it.

Id. Further in its written order of disposition, the trial court expressly included its observation that A.S. showed no remorse for his action and maintained his innocence as reasons for the disposition of this cause. Id.

We concluded in AS. the trial court had made it “abundantly clear” on the record that its disposition was influenced significantly by A.S.’s continued protestation of innocence. Id. at 996. Although the trial court here did not take the additional step taken in AS. to commit his improper action to writing, it is our judgment that it also nevertheless is “abundantly clear” from the record provided that T.R.’s election to assert her innocence and demand a trial was at least “a factor” in the trial judge’s adjudication and disposition of this case. See id.; see also B.R. v. State, 902 So.2d 333, 334 (Fla. 5th DCA 2005) (remanding for new disposition hearing in juvenile proceeding based, in part, upon trial judge’s statement, “I don’t admire the fact that you have taken up this Court’s time, when this case could have been resolved appropriately”).

For these reasons, we reverse the adjudication and disposition by the trial judge in this case, and remand the case for a new trial. In an abundance of caution and to insure completely fair proceedings, we remand for retrial and redisposition of T.R. before a different judge. See K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001); Hubler v. State, 458 So.2d 350, 353 (Fla. 1st DCA 1984).

Reversed and remanded with instructions.

      . The Juvenile Probation Officer’s reasons for this recommendation were: (1) T.R. does not have a history with the Department; (2) T.R. has very good grades; (3) T.R. presented no risk of getting into trouble again; and (4) to avoid T.R. having a record with the State.

      . The trial court required T.R. to: (1) attend and complete an anger management program; (2) write a letter of apology to the victim within thirty days and provide it to her probation officer; (3) report, in person, to her probation officer at least once a month; (4) perform twenty hours of community service; (5) go to school and continue to be a good student; and (6) pay restitution in an amount to be determined at a later time.


author: SUAREZ, J.

text:
    Nicholas ROSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2823.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      Nicholas Ross, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Nicholas Ross appeals from the summary denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Ross was convicted of robbery while wearing a mask, without a firearm. On direct appeal from his judgment and sentence, this Court affirmed. Ross v. State, 976 So.2d 1118 (Fla. 3d DCA 2008). Ross raised thirteen issues in his motion for postconviction relief, which the trial court summarily denied as legally insufficient. Our review of the record shows that throughout the transcript of the court’s hearing on Ross’s rule 3.850 claims, the court stated that it would attach specific portions of the record that conclusively refuted the defendant’s claims, but the promised attachments are not in the record. We must reverse because, on appeal from a summary denial, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing on certain of Ross’s postconviction claims, we reverse the order and remand for attachment of appropriate records or for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief on the stated claims.

We further note that the trial court misapplied the term “legally insufficient” in its description of defendant’s claims, and as. a result, the defendant asserts in this appeal that he should be granted leave to amend those “legally insufficient” claims pursuant to Spera v. State, 971 So.2d 754 (Fla.2007) (holding that, in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion by failing to allow the defendant at least one opportunity to correct the deficiency, unless it cannot be corrected). This is only true, however, if the legal insufficiency is based on a pleading deficiency. 971 So.2d at 755, 762. Here, it is clear from the record that the trial court ruled on the merits of the defendant’s postconviction claims. The claims were not “legally insufficient” pleading deficiencies. What the trial court failed to do was apply the two prongs of Strickland to examine each of the defendant’s claims of ineffective assistance of counsel, and then to use accurate language to describe its determination of the claims. The trial court ruled on the merits, but mischarae-terized the claims as legally insufficient.

As such, the defendant is not entitled to amend his postconviction motion. See Solorzano v. State, 25 So.3d 19 (Fla. 2d DCA 2009) (holding that, because a claim was denied on its merits, the defendant is not entitled to leave to amend under Spera). Further, our decision to remand for attachment of portions of the record that conclusively refute Ross’s claims or to hold an evidentiary hearing on the disputed issues, moots Ross’s assertion that he should be granted leave to amend under Spera. See id.; Spera, 971 So.2d at 762 (holding that when trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings).

In addition, the transcript of the hearing shows that the trial court mentioned, but failed to separate out those claims that either were or should have been brought on direct appeal and were procedurally barred. We thus reverse and remand for the trial court to attach records to conclusively refute Ross’s postconviction issues 1, 4, 5, 8, 9, 11, and 12. We affirm all remaining issues..

Affirmed in part, reversed and remanded in part.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . See Fla. R.Crim. P. 3.850(c) (“This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”); see, e.g., Maharaj v. State, 684 So.2d 726, 728 (Fla.1996) ("It does appear that a substantial number of [defendant's] claims may properly be denied without an evidentiary hearing because they were either raised or could have been raised on direct appeal and, consequently, cannot be relitigated in postconviction relief proceeding.”).


author: CRENSHAW, Judge. WALLACE, Judge,

text:
    Cavokia EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3579.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.

      Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Cavokia Evans appeals his judgment and sentence for trafficking in cocaine in violation of section 893.135, Florida Statutes (2005). Among the claims raised, he argues the trial court erred in denying his motion for judgment of acquittal. For reasons discussed below, we find no merit in Evans’ argument that the trial court erred by denying this motion. However, because we find the trial court erred by failing to declare a mistrial after the State made improper comments during closing arguments regarding Evans’ right to remain silent, we reverse his judgment and sentence and remand for a new trial.

I. Background

This case arises from a narcotics investigation of a private residence owned by Ricky Kutner. After receiving several complaints from neighboring residents about possible illegal activity at Kutner’s house, the Pinellas County Sheriffs Office conducted a surveillance of the property. During the course of their investigation, police repeatedly found drug paraphernalia in trash cans located near the street. Based on the paraphernalia found in the trash, law enforcement was able to obtain a search warrant. Law enforcement proceeded to assemble a substantial narcotics team to execute the search warrant during the evening of October 28, 2005.

While the team was approaching the front of the house, a woman standing on the front porch, later identified as Heather Trummell, noticed the officers and alerted the home’s occupants to the impending police raid. The police, realizing that their operation was being compromised, rushed into the front of the residence. In the meantime, several people scattered throughout the house. The police swept the premises and noticed a bathroom door located directly across the hall from a room dubbed the “east bedroom” was slightly ajar. Upon opening the door, they discovered Evans sitting on an open toilet seat with his pants pulled down. Evans was also wearing a pair of latex gloves. The police promptly arrested Evans and found $1785 in cash, mostly in twenty-dollar increments, in Evans’ pants pockets. They noted the water in the toilet was undisturbed and did not contain urine, excrement, or any sign that it had been used to flush any contraband. They also found a man, later identified as Glenn Adams, hiding at the bottom of the bathroom closet attempting to conceal himself with towels. No cocaine was found in the bathroom or on Evans’ gloves.

No one was found in the east bedroom. However, the police did discover forty dollars, a cell phone, and a latex glove strewn across the bed. On the floor by the east side of the bed, they discovered a fake Pepsi soda can and a police scanner. The fake Pepsi soda can held a plastic baggie with pieces of crack cocaine. On the floor by the west side of the bed, they found an open cereal box and another plastic baggie containing crack cocaine. The cereal box, positioned haphazardly on its side, was covered in small amounts of crack cocaine spilling off the box onto the floor. A razor blade was on the floor next to the cereal box. The box itself contained a pair of latex gloves. The police found a plastic Walmart bag nearby containing various CDs, a digital scale, plastic baggies, and a fake Mountain Dew soda can, which also contained a baggie with pieces of crack cocaine. The police also found a razor blade and a drink bottle positioned on an end table along the northwest wall of the room, a drug ledger in a shoebox, keys from a rental car parked in front of Kut-ner’s house, and a cigar box and another latex glove on the dresser along the south wall. Evans’ fingerprints matched prints taken from the cigar box, shoebox, a drink bottle, CDs, rental car, and cereal box. During Evans’ trial, a law enforcement official opined that because the east bedroom appeared to serve as the production and distribution center for the crack cocaine, the gloves could have been used to protect the person cutting and packaging the drugs from having any substances seep into their skin.

II. Evans’ Motion for Judgment of Acquittal

At the conclusion of the State’s case, Evans moved for a judgment of acquittal, arguing the State failed to offer any independent evidence sufficient to establish Evans’ constructive possession of the cocaine. The trial court denied the motion. This appeal follows.

A trial court’s denial of a motion for judgment of acquittal is reviewed under a de novo standard and an appellate court will not reverse a conviction which is supported by competent substantial evidence. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). After viewing the evidence in the light most favorable to the State, if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, then sufficient evidence exists to sustain the conviction. Id. (citing Banks v. State, 732 So.2d 1065 (Fla. 1999)). “However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Pagan, 830 So.2d at 803; see also State v. Law, 559 So.2d 187, 188 (Fla.1989). If an inconsistency exists between the defendant’s theory of innocence and the State’s evidence, then the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency. Boyd v. State, 910 So.2d 167, 181 (Fla.2005). A motion for judgment of acquittal should not be granted unless “ ‘there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.’ ” Williams v. State, 967 So.2d 735, 755 (Fla.2007) (quoting Gudinas v. State, 693 So.2d 953, 962 (Fla.1997)).

Because the cocaine was found in a room across the hall from Evans’ location, and in a house which had several occupants, the State must demonstrate Evans constructively possessed the cocaine by showing he had “dominion and control” over the contraband and knowledge of the presence of the contraband. State v. Holland, 975 So.2d 595, 597 (Fla. 2d DCA 2008). Evans did not have exclusive possession of the cocaine at the time he was discovered by police; thus, the two elements cannot be inferred and must be proven by independent proof. See Brown v. State, 8 So.3d 464, 465 (Fla. 2d DCA 2009); Holland, 975 So.2d at 598. This proof “may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge.” Wagner v. State, 950 So.2d 511, 513 (Fla. 2d DCA 2007).

At trial and throughout his appeal, Evans theorized that someone else in the house threw the drugs into the east bedroom during the police raid. In support of his argument, Evans pointed out that there were other fingerprints obtained from the east bedroom that did not match his. However, Evans’ assertion merely creates a dispute of material fact as to the exclusive occupancy of the east bedroom. See Holland, 975 So.2d at 598. When we infer the evidence in the light most favorable to the State, the evidence suggests that Evans was cutting crack cocaine with a razor on top of the cereal box, but stopped and ran into the bathroom when he heard the police entering the premises. The State’s case is supported by the location of the crack cocaine, which police found scattered on top of the cereal box all over the floor by the door of the east bedroom. Evans’ fingerprints were found on the cereal box. Evans was also wearing latex gloves, which a law enforcement official testified were customarily used by drug distributors to keep the crack cocaine from being contaminated or coming into contact with human skin. A pair of these gloves was found in the cereal box containing Evans’ fingerprints. Similar gloves were found on the dresser and on the bed next to the two twenty-dollar bills. The room also contained a drug ledger, digital scale, and police scanner. Evans’ fingerprints were also found on some of the CDs in the Walmart bag, which also held the digital scale and the fake Mountain Dew can containing crack cocaine.

Based on the evidence, one could infer that when Evans fled into the bathroom, he dropped his pants and sat on the toilet in an attempt to separate himself from the drugs in the east bedroom. Law enforcement reported the bathroom door being ajar, not closed, when they were surveying the house, which supports the theory that Evans ran into the bathroom and, in his haste, did not shut the door. In the meantime, Adams was hiding in the bathroom closet and attempting to cover himself with towels. The toilet itself contained no urine or excrement, most likely due to the short time span between the police entry and Evans’ mad dash across the hall. Most importantly, Evans was still wearing the latex gloves when he was discovered. The gloves are an important factor connecting him between the bathroom and the drug activity in the east bedroom.

Thus, we believe the surrounding circumstances of Evans’ location, combined with the location and amount of narcotics and drug paraphernalia found in the east bedroom, provided sufficient justification for a rational jury to conclude beyond a reasonable doubt that he constructively possessed the drugs. See Jackson v. State, 995 So.2d 535, 541 (Fla. 2d DCA 2008) (“The fact that Jackson was known to habitually carry a purse and the presence of his credit card support the conclusion that the Burberry purse [containing drugs] was Jackson’s.”); cf. Wagner, 950 So.2d at 513 (noting the absence of fingerprints failed to connect Wagner to the contraband or the containers in which it was found).

Finally, Evans relies on Edison v. State, 954 So.2d 1235 (Fla. 2d DCA 2007), for the concept that “ ‘[w]here two or more inferences in regard to the existence of a criminal act must be drawn from the evidence and then pyramided to prove the crime charged, the evidence lacks the conclusive nature to support a conviction.’ ” Id. at 1238 (quoting I.F.T. v. State, 629 So.2d 179, 180 (Fla. 2d DCA 1993)). However, Evans and I.F.T. are the progeny of Benson v. State, 526 So.2d 948, 952 (Fla. 2d DCA 1988), which specifically states “the general rule against the pyramiding of inferences is not rigidly applicable in all cases.” The exception provides that “ ‘when no contrary reasonable inference may be indulged, such inference is elevated for the purpose of further inference to the dignity of an established fact.’ ” Benson, 526 So.2d at 952 (quoting Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 407 (Fla.1954)); see also Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923) (noting the pyramiding of inferences is prohibited “[i]f the facts in proof are equally consistent with some other rational conclusion than that of guilt”).

“[T]he circumstantial evidence test guards against basing a conviction on impermissibly stacked inferences.” Miller v. State, 770 So.2d 1144, 1149 (Fla.2000). Circumstantial evidence, by its very nature, is not free from alternate interpretations, and “[t]he State is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Law, 559 So.2d at 189 (quoting State v. Allen, 335 So.2d 823, 826 (Fla.1976)). Otherwise, “circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.” Allen, 335 So.2d at 826.

Here, the State met its threshold burden establishing a reasonable theory that, upon being warned of the police raid, Evans ran out of the east bedroom to the bathroom across the hall in an attempt to fool the police into believing that he was merely using the bathroom at the time of the police’s search of the premises. However, Evans’ attempt to evade police was thwarted by the hurried condition of the drugs left in the east bedroom, the partially open bathroom door, the undisturbed water in the toilet, his gloved attire, and Adams’ presence in the bathroom closet. Though it is possible someone else threw the drugs into the east bedroom, Evans’ theory is merely an alternate interpretation and “it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Law, 559 So.2d at 189. Accordingly, we find that, when construing the evidence in the light most favorable to the State, a rational trier of fact could find Evans constructively possessed the crack cocaine, and thus Evans is not entitled to relief on this argument.

III. The Improper Closing Arguments

Evans also argues the trial court erred in denying his motions for a mistrial after the State improperly commented on his right to remain silent during closing arguments. The State highlighted the fact that Evans was the only person found in the house wearing gloves and said:

[Assistant State Attorney]: [B]ut if [Evans] wasn’t guilty, if he wasn’t guilty, wouldn’t there be some reasonable explanation for him wearing these gloves under the totality of what we find in that house, the circumstances?
[Defense Counsel]: Objection. Judge, I would like to approach.
The court: Approach.
[Defense Counsel]: Judge, I object as to improper argument in closing.
The court: Well, I’m going to have him move on. I certainly don’t want him to dwell on it. It’s certainly not the burden of the defendant to explain anything.
[Defense Counsel]: And I would ask for a mistrial at this point.
The court: Your motion will be denied.

Shortly thereafter, the State remarked, “And be very clear, evidence that there is no reasonable explanation for him having those gloves on except that he was in control of the east bedroom.” Evans objected again and, before the trial court could respond, the State commented in front of the jury, “What other reasonable conclusion can we draw?” The tidal court overruled the objection. Though Evans did not make any further objections, the State continued to comment that “there is no reasonable explanation for [Evans’ location in the house]” and “[t]here is no reasonable explanation for those gloves and the circumstances, especially when nobody else had them on.”

“In Florida, we have adopted a very liberal rule for determining whether a comment constitutes a comment on silence: any comment which is ‘fairly susceptible’ of being interpreted as a comment on silence will be treated as such.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). This is because the State, not the defendant, is required to prove an element of a crime beyond a reasonable doubt. Likewise, the defendant has the constitutional right to decline to testify against himself in a criminal proceeding. Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000). Therefore, the State is prohibited from commenting on the defendant’s failure to produce evidence to refute an element of the crime “because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” Jackson v. State, 575 So.2d 181, 188 (Fla. 1991); see also Fla. R.Crim. P. 3.250. We find the State’s comments are susceptible of being interpreted by the jury as an impermissible comment on Evans’ right to remain silent or his failure to mount a defense.

In response, the State contends any error was harmless because there was overwhelming evidence of Evans’ guilt. For the State to prevail on a harmless error argument, it must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So.2d at 1138. If this court “cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id. at 1139. Upon reviewing the record, we cannot say beyond a reasonable doubt that the State’s comments on Evans’ right to remain silent did not contribute to the jury’s finding of guilt. Accordingly, we find the trial court erred by failing to declare a mistrial and reverse Evans’ judgment and sentence.

Reversed in part, affirmed in part, and remanded for a new trial.

KHOUZAM, J., Concurs.

WALLACE, J., Concurs in part and dissents in part.

WALLACE, Judge,

Concurring in part and dissenting in part.

I concur with the majority that the trial court erred in denying Mr. Evans’ motion for a mistrial after the prosecutor improperly commented on the exercise by Mr. Evans of his right to remain silent. However, I respectfully dissent from the majority’s holding concerning the sufficiency of the evidence to establish that Mr. Evans was in constructive possession of the cocaine found in the east bedroom of the residence owned by Ricky Kutner. Because Mr. Evans’ conviction is not supported by competent, substantial evidence, I would reverse his judgment and sentence for trafficking in cocaine and remand for discharge.

Because Mr. Evans did not actually possess the cocaine, the State was required to prove that he was in constructive possession of it. See King v. State, 817 So.2d 935, 937 (Fla. 5th DCA 2002). To prove constructive possession, the State had to establish that Mr. Evans knew of the presence of the cocaine and that he was able to exercise dominion and control over it. See Edison v. State, 954 So.2d 1235, 1237 (Fla. 2d DCA 2007). This court recently summarized what the State must prove to establish constructive possession of contraband as follows:

If the State proves that the contraband was in plain view, then the defendant’s knowledge of the contraband’s presence is established. Brown v. State, 428 So.2d 250, 252 (Fla.1983). However, the issue of control is not established by the fact that the contraband is in plain view unless the accused is an occupant or owner. Id. In the event the accused is a mere visitor in jointly possessed premises, then the State must establish control of contraband in plain view by independent evidence. Taylor v. State, 319 So.2d 114, 116 (Fla. 2d DCA 1975).

Sundin v. State, 27 So.3d 675, 677 (Fla. 2d DCA 2009).

In this case, the State’s proof established that the residence where the cocaine was found was owned by Mr. Kutner. There was nothing found in the trash pulls that linked Mr. Evans to the residence, and he was never seen at the residence during the surveillances that preceded the execution of the search warrant. When the sheriffs deputies entered the residence, there were eight people inside, including the owner. The State did not present evidence that Mr. Evans had any possessory interest either in the residence or in the east bedroom where the cocaine was found. Based on the evidence presented, Mr. Evans could only be considered to be one of multiple visitors to the residence. Thus the State’s proof completely failed to establish that Mr. Evans had exclusive possession of the east bedroom. I do not argue — as the majority suggests in footnote 4 — that the State was required to prove that Mr. Evans was in exclusive possession of the east bedroom. However, because the residence was jointly occupied and the cocaine in the east bedroom was readily accessible to all eight of the residence’s occupants, the elements of knowledge and control could not be inferred from Mr. Evans’ mere proximity to the cocaine but had to be shown by independent proof. See id.; Diaz v. State, 884 So.2d 387, 389 (Fla. 2d DCA 2004); S.B. v. State, 657 So.2d 1252, 1253 (Fla. 2d DCA 1995).

The evidence was insufficient to demonstrate that Mr. Evans had knowledge of or dominion and control over the cocaine. Although there were seven other people inside the residence during the execution of the warrant, none of them testified at trial to place Mr. Evans in possession of the cocaine in the east bedroom. There was no evidence that the deputies had sent a confidential informant into the residence to make a controlled purchase of cocaine. Furthermore, Mr. Evans did not make any incriminating statements indicating his dominion and control over the cocaine. No drugs were discovered on his person, and nobody testified that he had touched, handled, or discarded the cocaine. Although the latex gloves that Mr. Evans was wearing were tested for cocaine residue, none was found. Most of the cocaine was lying on the floor inside a clear plastic bag near the cereal box, between the bag and the cereal box, and on top of the cereal box. However, no fingerprints were found on the clear plastic bag. Likewise, no fingerprints were found on the fake Pepsi and Mountain Dew soda cans that contained baggies holding cocaine or on the baggies themselves.

Contrary to the majority’s reasoning, evidence showing that Mr. Evans’ fingerprints were found on various items inside the east bedroom did not tend to establish his knowledge of or dominion and control over the cocaine. Kresbach v. State, 462 So.2d 62 (Fla. 1st DCA 1984), is instructive in this regard. In Kresbach, a Federal Express employee found an open package inside a drop box. Id. at 63. Inside the package, he found a manila envelope that contained two plastic bags. Id. One of the bags contained cocaine. Id. The police found one fingerprint on the package, five fingerprints on the manila envelope, and twelve fingerprints on the plastic bags. Id. at 63-64. One of the five fingerprints found on the manila envelope matched the defendant’s fingerprints. Id. at 64. The First District found that the fingerprint evidence was insufficient to prove the knowledge and control elements because other prints were found and it could not be determined when the defendant had touched the manila envelope. Id. at 65.

The facts in Kresbach are analogous to the facts in this case. To be sure, Mr. Evans’ fingerprints were found on various items inside the east bedroom. But fingerprints belonging to another person or persons were also found on the plastic Walmart bag and on a compact disk inside the shoebox. The fingerprints of Kevin Lee, one of the eight persons inside Mr. Kutner’s house, matched prints taken from a compact disk found inside the rental car parked outside Mr. Kutner’s house, a DVD sleeve found inside the plastic Walmart bag, and the top of a can found inside the trash can where the sheriffs deputies found the cigar box. Mr. Evans could have touched the cereal box at any time before the cocaine was placed on top of it. The presence of Mr. Evans’ fingerprints on various items inside the east bedroom merely shows that he touched those items at an undetermined time and is not inconsistent with his reasonable theory of innocence that one of the other seven people in the house threw the drugs into the east bedroom. Because fingerprints belonging to other persons were found inside the east bedroom and the evidence does not reflect when Mr. Evans touched the cereal box, the fingerprint evidence was insufficient to prove that Mr. Evans knew of or had dominion and control over the cocaine. See Tanksley v. State, 332 So.2d 76, 77 (Fla. 2d DCA 1976) (reversing a conviction for possession of heroin where the defendant’s fingerprints were found on an envelope holding foil packets containing heroin because it was possible that the defendant handled the envelope before the cocaine was placed inside); McClain v. State, 559 So.2d 425, 426 (Fla. 4th DCA 1990) (reversing a conviction for attempted trafficking where multiple prints were found and the defendant could have touched the item before the drugs were placed inside); Kresbach, 462 So.2d at 65.

The majority’s reliance on Jackson v. State, 995 So.2d 535 (Fla. 2d DCA 2008), is unwarranted. In Jackson, police found drugs near the defendant at his residence after they entered to execute a search warrant. Id. at 537. The drugs were found about five feet away from the defendant in a change purse that appeared to have spilled from a larger purse. Id. at 540. Next to the change purse was a cigarette case that held a credit card bearing the defendant’s name and that also appeared to have spilled out of the same large purse. Id. at 537. The defendant was known to carry a large purse and there was no evidence that the purse belonged to anyone else. Id. at 541. This court held that this evidence was sufficient to support the defendant’s convictions and affirmed. Id.

Here, unlike in Jackson, the evidence did not show that any personal effects belonging to Mr. Evans were found in the east bedroom. The fingerprint evidence showed only that Mr. Evans and various other persons had touched various items in the east bedroom but did not demonstrate ownership. The majority relies heavily on the similarity of the latex gloves that Mr. Evans was wearing when he was arrested to the latex gloves found in the east bedroom. This reliance is misplaced. Latex gloves are mass-produced, fungible items readily available to anyone. Cf. Scruggs v. State, 785 So.2d 605, 607 (Fla. 4th DCA 2001) (noting that plastic baggies found in defendant’s vehicle “similar” to plastic baggies containing cocaine found on the ground “are fungible and readily available to anyone”). In addition, mass-produced disposable products such as latex gloves are substantially different from personal items owned or controlled by a defendant that may give rise to an inference of knowledge and dominion and control. See Jackson, 995 So.2d at 540 (credit card bearing defendant’s name); State v. Holland, 975 So.2d 595, 598 (Fla. 2d DCA 2008) (health insurance card and other belongings); Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981) (box bearing defendant’s name); see also Ladd v. State, 710 N.E.2d 188, 191 (Ind.Ct.App.1999) (defendant’s pay stub, bank receipts, and photographs); People v. Coleman, 26 A.D.3d 773, 808 N.Y.S.2d 527, 529 (N.Y.App.Div.2006) (prescription receipts in defendant’s name that listed the apartment being searched as his address). Thus the evidence concerning the items in the east bedroom did not give rise to an inference of knowledge or dominion and control.

In addition, the State’s evidence was insufficient because it required the impermissible pyramiding of inferences in order to arrive at the conclusion of guilt. “[T]he jury cannot base inference upon inference in order to arrive at a conclusion of fact.” Sirmons v. Pittman, 138 So.2d 765, 770 (Fla. 1st DCA 1962). For this reason, the State cannot rely on the pyramiding of inferences to prove the necessary elements of a crime. See Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000). “ ‘Where two or more inferences in regard to the existence of a criminal act must be drawn from the evidence and then pyramided to prove the crime charged, the evidence lacks the conclusive nature to support a conviction.’ ” Id. (quoting Green v. State, 667 So.2d 208, 212 (Fla. 2d DCA 1995)).

In this case, the jury was required to pyramid at least four inferences to conclude that Mr. Evans had dominion and control over the cocaine. First, cocaine was being distributed out of the east bedroom. Second, Mr. Evans was responsible for preparing the cocaine for distribution. Third, Mr. Evans fled the east bedroom when he was alerted to the arrival of the sheriffs deputies. And, fourth, immediately before the raid began, Mr. Evans was actively engaged in preparing the cocaine for distribution. Because the testimony established that the cocaine was cut into pieces that would be sold for twenty dollars each and there was a large quantity of cocaine and related paraphernalia found in the east bedroom, I agree that it is reasonable to infer that the cocaine was being distributed out of the east bedroom.

Beyond the entirely reasonable inference about the activities being conducted in the east bedroom, the pyramid of inferences becomes unsupportable. Initially, there is no support for the inference that Mr. Evans was preparing the cocaine for distribution. The State did not establish how long Mr. Evans had been inside Mr. Kutner’s house. Although Mr. Evans had $1785 in cash in his possession when he was arrested, the State did not prove a link between the cash and the cocaine. At trial, the State relied heavily on the latex gloves Mr. Evans was wearing to establish his dominion and control of the cocaine. However, the State’s reliance on the gloves is an example of the logical fallacy of the undistributed middle. Presented in the form of a syllogism, the State’s argument was as follows:

1. Drug distributors wear latex gloves.
2. Mr. Evans was wearing latex gloves.
3. Therefore, Mr. Evans was a drug distributor.

Even if all drug distributors wear latex gloves to protect themselves and their merchandise, most people who wear latex gloves are not drug distributors. Many people wear latex gloves for legitimate purposes, e.g., food preparation, cleaning, and rendering medical and dental services. Law enforcement officers and other persons engaged in forensic work frequently wear latex gloves to avoid contaminating a crime scene. Clearly, the jury’s verdict finding Mr. Evans guilty of trafficking in cocaine could not have been reached without resort to a pyramiding of inferences.

In my view, the Voelker exception to the general rule against pyramiding inferences does not apply in this case. “[Wjhen an inference ... is inescapable, that is to say when no contrary reasonable inference may be indulged, such inference is elevated for the purpose of further inference to the dignity of an established fact.” Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 407 (Fla.1954). This exception applies in criminal cases, Benson v. State, 526 So.2d 948, 952-53 (Fla. 2d DCA 1988), and allows the pyramiding of an inference upon another inference “only if the prior or basic inference is established to the exclusion of any other reasonable theory should another be drawn from it,” Voelker, 73 So.2d at 407.

In this case, the inference that Mr. Evans was preparing the cocaine for distribution was not established to the exclusion of any other reasonable inferences. When the sheriffs deputies arrived to execute the search warrant, Mr. Lee and Ms. Trummell were at the front door of Mr. Kutner’s house. When Mr. Lee and Ms. Trummell saw the deputies approaching, they ran back inside the residence. The deputies found Mr. Lee in the hallway between the bathroom and the east bedroom. He had marijuana on his person. Based on these facts, it is just as likely that Mr. Lee — and not Mr. Evans — was the person who was preparing or selling the cocaine. Similarly, the inference that Mr. Evans fled the east bedroom as the deputies burst into the residence was not established to the exclusion of any other reasonable inferences. No one testified to how long Mr. Evans had been in the bathroom. The deputies found the bathroom door ajar and Mr. Adams hiding inside the bathroom closet beneath some towels. Mr. Adams, who was trying to conceal himself, may well have been the person who left the bathroom door ajar in his rush to hide from the deputies. In addition, Mr. Kutner, the owner of the residence, was on the premises during the execution of the search warrant. Because the State did not establish the inferences on which its theory of the case depended to the exclusion of other reasonable theories, the Voelker exception does not apply. See Green House, Inc. v. Thiermann, 288 So.2d 566, 568 (Fla. 2d DCA 1974) (refusing to apply the Voelker exception where the basic inference was not established to the exclusion of one other reasonable inference). Because the jury’s guilty verdict necessarily rests on an impermissible pyramiding of inferences, Mr. Evans’ conviction is unsupportable.

I concede that the unusual circumstances attendant on the deputies’ discovery of Mr. Evans in the bathroom of the Kutner residence lend a certain appeal to the intuitive leap required to presume his guilt. However, “intuition is not a substitute for evidence under our jurisprudence” and “ ‘guilt cannot rest on mere probabilities.’ ” Davis, 761 So.2d at 1159 (quoting Arant v. State, 256 So.2d 515, 516 (Fla. 1st DCA 1972)). For the reasons outlined above, the evidence presented by the State was insufficient to prove that Mr. Evans had knowledge of or dominion and control over the cocaine found in the east bedroom of Mr. Kutner’s residence. Accordingly, I would reverse Mr. Evans’ judgment and sentence and remand with instructions for his discharge,

      . In all, eight people were found inside the house, including Kutner.

      . Though the Walmart bag itself was not introduced into evidence, several pictures of the Walmart bag were received at trial. The pictures represented a fair and accurate representation of the bedroom and the Walmart bag as it appeared during the execution of the search warrant.

      . Circumstantial evidence involves certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. Orme v. State, 677 So.2d 258, 261 (Fla.1996) (citing Davis v. State, 90 So.2d 629, 631 (Fla.1956)).

      . Contrary to the dissenting opinion, the State did not need to prove that Evans was in exclusive possession of the east bedroom itself. Rather, the State needed to demonstrate Evans was in constructive possession of the cocaine located inside the east bedroom. See Holland, 975 So.2d at 598.

      . We note an exception to this rule is when the defendant voluntarily assumes some burden of proof by presenting the defenses of alibi, self-defense, or defense of others. See Jaclcson, 575 So.2d at 188. These factors are not present in this case.

      . The Florida Supreme Court emphasizes that the test of harmless error "is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.” DiGuilio, 491 So.2d at 1139.

      . The record reflects that this clear plastic bag was not the Walmart plastic bag mentioned in the majority opinion. The clear plastic bag contained only cocaine and was introduced into evidence as State's exhibit 13. The Walmart bag contained compact disk sleeves, DVDs, and the fake Mountain Dew soda can. The Walmart bag was not introduced into evidence.