text:
    Jesus GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-373.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Grisel Ybarra, Miami, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jesus Gomez appeals the trial court’s denial of his motion to vacate or set aside judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. Because we find error in the trial court’s failure to allow Gomez to correct the insuf-ficiencies in his motion and its failure to attach supporting documents, such as the plea agreements or plea colloquy, to its decision, we reverse and remand.

On August 16,1999, Gomez was arrested and charged with one count of false imprisonment, one count of domestic battery, and one count of tampering. After the arrest, the State of Florida filed an Information charging Gomez with one count of false imprisonment and one count of domestic battery. On September 17,1999, pursuant to a plea agreement entered into by Gomez and the State, Gomez pled guilty to the domestic battery charge. The trial court accepted the plea, entering a withholding of adjudication and placing Gomez on one year probation. The false imprisonment charge was nolle prossed.

On October 24, 2008, Gomez filed a post-conviction motion to vacate or set aside judgment and sentence, pursuant to Florida Rule of Criminal Procedure 3.850. He contended that the trial court failed to comply with Florida Rule of Criminal Procedure 3.172(c) in advising Gomez that his guilty plea for domestic battery could subject him to deportation from the United States and that trial counsel had been ineffective in failing to inform Gomez that he could be deported from the United States. The trial court did not require the State to respond to Gomez’s motion, and the State never responded.

On November 17, 2008, the trial court denied Gomez’s post-conviction motion without an evidentiary hearing. In its decision, the trial court admitted that Gomez was convicted of a deportable offense, that Gomez was not advised by the trial court that he could be deported, as required by rule 3.172(c), and that there was no indication that his attorney had informed him of the deportation at the time of his plea. Notwithstanding this, the trial court denied Gomez’s motion, finding that Gomez had not proven that he was subject to potential deportation as result of the domestic battery charge due to the fact that his file contained some separate criminal activity prior to the charges that brought about the plea.

On December 2, 2008, Gomez moved for a rehearing on the trial court’s denial of his post-conviction motion, which tolled the time to appeal the initial denial. In the motion for rehearing, Gomez addressed the trial court’s sole issue in denying the post-conviction motion by arguing that the only criminal judicial disposition that subjects Gomez to deportation is the September 17th, 1999 conviction for domestic battery. Gomez stated that on February 28, 1998, prior to the domestic battery incident, he was arrested in Miami-Dade County, Florida for driving under the influence, in violation of section 316.193, Florida Statutes, for which he pled nolo contendere, was adjudicated guilty, and was ordered to pay a fine of $884.25. Gomez argued that a simple DUI is not a crime involving moral turpitude that would subject him to deportation from the United States. Gomez claimed that his two other arrests in Monroe County, Florida, which occurred subsequent to the domestic battery conviction, also did not subject him to deportation from the United States.

On January 14, 2009, the trial court denied Gomez’s motion for rehearing. The trial court held that having denied Gomez’s initial post-conviction motion, the court was without jurisdiction to determine the issues on the motion for rehearing. Gomez now appeals, contending that the trial court erred in denying his post-conviction motion to vacate or set aside the judgment and sentence without ordering the state attorney to file an answer and without affording Gomez an evidentiary hearing as prescribed by Florida Rule of Criminal Procedure 3.850(d).

We agree with the State that the trial court did not err in not holding an evidentiary hearing regarding Gomez’s motion to vacate or set aside the judgment and sentence because the trial court had ruled that the pleading filed was legally insufficient. However, the State concedes that under Spera v. State, 971 So.2d 754 (Fla.2007), Gomez should have been allowed to file a legally sufficient pleading.

“When a trial court summarily denies a motion for post-conviction relief without holding an evidentiary hearing or attaching portions of the record to refute the allegations, review is limited to determining whether, accepting the allegations as true, the motion shows the defendant is not entitled to relief.” Davis v. State, 571 So.2d 118, 119 (Fla. 5th DCA 1990). Here, the trial court stated that Gomez’s motion was legally insufficient because “he must prove that he was subject to potential deportation due to the crimes sub judice, and not from a prior crime or crimes.” Gomez argued in his motion for rehearing that the other crimes the trial court referred to in the order were not deportable offenses. In Gomez’s motion, he alleges that his plea was not entered into knowingly or voluntarily and that the trial court did not inform him that entering into said plea could have subjected him to the possibility of deportation. However, Gomez did not meet the pleading requirements set forth in State v. Green, 944 So.2d 208, 218 (Fla.2006). He did not allege that he would not have entered into the plea if he had been informed of the possibility of deportation.

When a defendant’s initial rule 3.850 motion for post-conviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion in failing to allow the defendant at least an opportunity to amend the motion. Spera, 971 So.2d at 761. Thus, the trial court should have allowed Gomez to amend his motion. Then, upon filing a facially sufficient motion, Gomez may be entitled to an evidentiary hearing. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008). Gomez tried to cure the defects regarding the prior crimes issue in his motion for rehearing but this motion was legally insufficient as well, as it was not sworn to by Gomez.

In addition, in the order denying the post-conviction motion to set aside the judgment and sentence, the trial court stated that Gomez signed a plea agreement which informed him that he could be deported as a result of his plea and conviction and that he admitted under oath that he understood this agreement and its contents. However, the trial court noted that there was no indication that Gomez’s attorney discussed the contents of the plea agreement with him prior to the colloquy. See Hinds v. State, 726 So.2d 812, 813 (Fla. 5th DCA 1999) (holding that “the sentencing court did not specifically warn [the defendant] of the danger of deportation, but he was not prejudiced by the omission when the information was contained in the written plea agreement that [the defendant] testified he had read and understood”).

We also conclude that the trial court erred in not attaching any supporting documents to its decision on Gomez’s motion. In State v. Gonzalez, 787 So.2d 917, 918 (Fla. 3d DCA 2001), we held that “the defendant was not prejudiced by the trial court’s failure to specifically inform him that his plea may subject him to deportation because the plea agreement form provided this information and also indicated that the defendant had read the agreement and that the defendant discussed the agreement with his attorney”. Here, in the order denying Gomez relief, the trial court referred to both the plea colloquy and plea agreements but did not attach these documents to the order. We agree with the State that these attachments could refute Gomez’s claim, based on Hinds and Gonzalez, because they may indicate that Gomez read over the plea agreement with his attorney and that they contained a deportation warning.

In conclusion, because the trial court neither attached supporting documents to its order nor gave Gomez leave to correct the legal insufficiencies of his motion, we reverse and remand to the trial court with instructions that the trial court allow Gomez to file a facially sufficient motion. If on remand Gomez then raises a facially sufficient claim for rule 3.850 relief, and the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting Gomez’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded with instructions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rodriguez WEATHERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3875.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Rehearing Denied Feb. 17, 2010.
    Mark J. O’Brien of O’Brien Bower, PA, Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied. Petitioner has not alleged that his appeal was dismissed due to state action or ineffective assistance of counsel.

Petition for belated appeal DENIED.

MONACO, C.J., TORPY and EVANDER, JJ., concur.


text:
    J.R., Father of C.R., M.R., J.R., G.R., and M.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 5D09-1514.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.

      Barbara A. Eagan of Eagan Appellate Law, P.L.L.C., Orlando, for Appellant.
    Wendie M. Cooper, Appellate Counsel, Guardian Ad Litem Program, Tavares, and Patricia M. Propheter, Appellate Counsel, Children’s Legal Services, West Palm Beach, for Appellees.
   PER CURIAM.

J.R. appeals the termination of his parental rights to five adoptive children, C.R., M.R., J.R., G.R. and M.R., following the death of his sixth child, F.R. F.R. had been severely abused, sustaining over sixty injuries, of varying degrees of severity, to her head, back, buttocks and legs. The injuries causing F.R.’s death were thirteen separate rotational injuries to the head which caused internal bleeding and swelling of the brain. The evidence reflected the parents were the only caregivers during the critical time frame and, although neither parent admitted responsibility for the injuries to F.R.’s head, a review of the proceedings supports the trial court’s finding that J.R.’s wife inflicted the blows.

We find substantial, competent evidence to support the trial court’s decision terminating J.R.’s parental rights because J.R., despite knowing F.R. was injured and virtually non-responsive as a result of head trauma, neglected to seek medical attention for over six hours, a decision that ensured a tragic end for the two and one-half year old child. The trial court found J.R.’s conduct to be egregious and made the required findings pursuant to section 39.806, Florida Statutes. We affirm.

AFFIRMED.

SAWAYA, LAWSON and COHEN, JJ„ concur.


text:
    Leslie SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4451.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See United States v. Morgan, 936 F.2d 1561 (10th Cir.1991).

PALMER, TORPY and COHEN, JJ„ concur.


text:
    Robinson V. GONZALEZ, Appellant, v. Jannecy BERRIOS, Appellee.
    No. 5D09-778.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.
    Robinson V. Gonzalez, Trevose, Pa., pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s order granting the former wife’s motion for civil contempt/enforcement. Our affirmance is without prejudice to the former husband’s right to file a new supplemental petition for modification of child support.

AFFIRMED.

MONACO, C.J., GRIFFIN and EVANDER, JJ., concur.


author: PALMER, J.

text:
    Duane L. BARTEE, a/k/a Donald Bourdeau, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2444.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.

      Duane L. Bartee, Raiford, pro se.
    No Appearance for Appellee.
   PALMER, J.

Duane L. Bartee (defendant) appeals the trial court’s order summarily denying his motion to correct sentence, filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. Although the defendant raises several claims for relief in his motion, only one merits discussion.

The defendant was sentenced as a habitual felony offender (HFO) and a prison releasee reoffender (PRR), on his conviction for aggravated assault with a deadly weapon on a law enforcement officer, to a term of thirty years’ incarceration. Although there is no double jeopardy violation in sentencing a person both as an HFO and PRR for a single conviction, the PRR term of incarceration acts as a minimum mandatory term and, under the PRR statute, it must be less than the overall HFO sentence. See Grant v. State, 770 So.2d 655 (Fla.2000). See also Michel v. State, 935 So.2d 1228 (Fla. 5th DCA 2006)(reversing an order denying the defendant’s rule 3.800(a) motion because the defendant was sentenced as an HFO and a PRR but did not receive a greater HFO term of incarceration). As such, the defendant’s thirty-year sentence is improper.

The order denying the defendant’s rule 3.800(a) motion is reversed in part. The case is remanded to the trial court to impose a fifteen-year PRR term of incarceration if the aggravated assault on a law enforcement officer conviction is a second-degree felony. If the felony was reclassified to a first-degree felony, then the thirty-year mandatory PRR sentence shall remain in effect, but the thirty-year HFO sentence must be vacated. Cf. Michel v. State, 935 So.2d 1228 (Fla. 5th DCA 2006).

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA and TORPY, JJ., concur.

      . The limited record provided in this appeal prevents this court from determining whether the aggravated assault on a law enforcement officer was charged as a second-degree felony or a first-degree felony.


author: WHATLEY, Judge.

text:
    Wardell BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-117.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.

      . Brown relies on White v. State, 892 So.2d 541, 542 (Fla. 1st DCA 2005), and the cases cited therein.

   WHATLEY, Judge.

Wardell Brown challenges the postcon-viction court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm. Our affirmance is without prejudice to Brown to seek habeas relief in the circuit court of the county in which he is currently incarcerated.

A jury found Brown guilty of committing an aggravated battery, a second-degree felony. § 784.045, Fla. Stat. (1991). The trial court sentenced Brown to twenty years in prison as a habitual felony offender (HFO) followed by five years of probation. Brown was released from prison in October 2005 after serving about fourteen and one-half years. He violated probation and was sentenced on March 27, 2007, to four and one-half years in prison. The trial court at revocation (hereinafter, “revocation court”) did not orally mention HFO status, and the revocation sentencing documents do not specify that the sentence is a habitualized sentence.

In a subsequent postconviction proceeding, not at issue here, the postconviction court granted Brown credit for time served. The awarded credit exceeded the post-revocation four-and-one-half-year sentence; as a result, that sentence had been fully served as of the date of revocation. However, the Department of Corrections (DOC) forfeited the 2000 days of gain time that Brown had earned during his original period of incarceration and did not apply the awarded credit to the gain time.

In his rule 3.800(a) motion, Brown raises two issues that, he argues, require his immediate release. Brown first argues, essentially, that because the time-served credit granted subsequent to the revocation proceeding should have been granted at revocation itself, his sentence as of revocation was zero; therefore, he should be released now. We note, however, that any error associated with the revocation court’s failure to award credit has already been corrected and that the awarded credit has apparently been applied by DOC. As such, no additional relief is available to Brown under rule 3.800(a). Instead, for Brown to challenge DOC’s authority to forfeit his gain time and continue to imprison him, he must file a petition for writ of habeas corpus in the circuit court in the county in which he is currently incarcerated. See McCrae v. Wainwright, 439 So.2d 868, 870 (Fla.1983) (“The purpose of the ... writ of habeas corpus is to inquire into the legality of a prisoner’s present detention.”); Bush v. State, 945 So.2d 1207, 1213 n. 11 (Fla.2006) (“[A] habeas petition filed in circuit court alleging entitlement to immediate release ‘shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.’ See § 79.09, Fla. Stat. (2005).”).

In his second issue, Brown argues that the failure of the revocation court to repro-nounce him an HFO made the post-revocation sentence illegal and that the court was required to impose, at most, the statutory maximum with appropriate time-served credit. We agree with the postconviction court’s conclusion that the revocation court’s sentence was not an HFO sentence. The court was permitted to sentence Brown for as many as fifteen years for the underlying second-degree felony, provided that the court granted credit for time served. See Poore v. State, 531 So.2d 161, 164 (Fla.1988). As already noted, a sentence of four and one-half years was imposed, and credit was granted in a subsequent postconviction proceeding. Because any error susceptible to rule 3.800(a) relief was corrected once credit was granted, as with Brown’s first issue we conclude that whatever relief may be available to Brown must be sought by a habeas petition, not a motion under rule 3.800(a).

Affirmed.

SILBERMAN, J., and FULMER, CAROLYN K, Senior Judge, Concur.

      . It would thus appear that the entirety of Brown’s post-revocation imprisonment has been the result of the forfeited gain time.

      . Brown appears to be arguing that had the credit been applied at revocation, he would have been released then and would not have been remanded to DOC custody; as a result, no gain time forfeiture could have taken place. In other words, the narrow issue would appear to be whether, after time-served credit is applied leaving forfeited gain time as the sole basis for a defendant’s entire post-revocation incarceration, DOC may continue to hold the defendant in custody. We conclude that any relief that may be available to Brown must be sought by habeas petition in the appropriate court. Brown complains in a motion for rehearing in this appellate proceeding that he has filed for habeas relief already and not succeeded. Although Brown’s earlier habeas petition or petitions are not before us, it would appear from his arguments in the present proceeding that Brown may not have brought to the court's attention the narrow issue as identified here.

      . The underlying issue and potential avenue of relief are the same as that recited in footnote 2.


text:
    Irfan NAWAZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1072.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.

      Michael D. Walsh and Michelle R. Walsh of Michael Walsh, P.A., Miami, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his sentence after entering a guilty plea for traveling to meet a minor to commit an unlawful sex act and for soliciting a minor to engage in unlawful sexual conduct. He asserts that he is entitled to have his sentence vacated and to be resentenced by another judge because the trial court improperly considered appellant’s national origin when imposing the sentence.

During the sentencing hearing, the prosecution played portions of a taped interview of appellant after his arrest in which he expressed his views regarding the morality of American women. Specifically, he stated that during conversations with underage women, he laughed at how stupid American women are and expressed his beliefs regarding the immorality of Americans. During the interview, appellant also remarked how glad he was to have married a woman from his home country of Pakistan: “[I] thank God that I did not marry anyone from this country who are that sexually hungry and who want that many stupid things to be done to them by a stupid stranger.”

The transcript of appellant’s sentencing reflects the following exchange before the trial court pronounced its sentence:

THE COURT: Irfan Nawaz, you are a degenerate. You are a hypocrite and you are a bigot. You invited behavior from young women that would confirm your contempt for this country and then you laugh at them and ridicule them when you succeed in leading them astray. That is contemptible.
THE DEFENDANT: Yes, sir.
THE COURT: On behalf of my countrywomen I join you in thanking God that you did not marry an American woman.
THE DEFENDANT: Yes, sir.
THE COURT: If in the days to come, Irfan Nawaz, you find yourself in a living hell it is because you deserve it.
THE DEFENDANT: Yes, sir.
THE COURT: As to count one, it is the judgment and sentence of this court that you be committed to the Department of Corrections for a period of 15 years. As to count two, you are committed to the custody of the Department of Corrections for a term of five years, sentences to run consecutive. If you believe this sentence to be illegal, you have 30 days from today’s date to commence an appeal.

Appellant raises, for the first time, on appeal that the trial court improperly considered his national origin in imposing his guidelines sentence of twenty years. Because he did not preserve the issue by raising a contemporaneous objection in the trial court, this court may consider the error only if it is fundamental. See, e.g., Jackson v. State, 983 So.2d 562, 574 (Fla.2008) (“[A]n unpreserved error may be considered on appeal only if the error is fundamental.”); Hannum v. State, 13 So.3d 132, 135 (Fla. 2nd DCA 2009). Although a defendant challenging a sentencing error must generally file a motion under rule 3.800(b), Florida Rules of Criminal Procedure, in order to raise fundamental error on appeal, if the error is not an error in the sentencing order, but rather an error in the sentencing process, rule 3.800(b) does not apply. See Jackson, 983 So.2d at 569, 573-74. Here, the fundamental error asserted by appellant is the trial judge’s consideration of appellant’s national origin during the sentencing process, not an error in the sentencing order. See Hannum, 13 So.3d at 135 (citing Brown v. State, 994 So.2d 480, 481 (Fla. 1st DCA 2008)). Accordingly, appellant was not required to file a rule 3.800(b) motion before raising fundamental error in this appeal. See Hannum, 13 So.3d at 135. We, therefore, review the trial court’s conduct under the fundamental error standard.

Fundamental error “must be basic to the judicial decision under review and equivalent to a denial of due process.” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)). Although an appellate court generally may not review a sentence that is within statutory limits under the Criminal Punishment Code, an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence. See, e.g., Evans v. State, 816 So.2d 742, 743-44 (Fla. 4th DCA 2002); Dowling v. State, 829 So.2d 368, 370-71 (Fla. 4th DCA 2002); Johnson v. State, 679 So.2d 831 (Fla. 1st DCA 1996) (remanding for resentencing where comments by trial court could be read to infringe upon defendant’s decision to exercise his constitutional right to a jury trial); Peters v. State, 485 So.2d 30 (Fla. 3d DCA 1986) (vacating sentence where court penalized the defendant for exercising his religious freedom by possessing a Bible in court as well as “for exercising his privilege against self-incrimination, his right to be tried by a jury, and his right to testify in his own behalf’). Reliance on constitutionally impermissible factors is a violation of the defendant’s due process rights. Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004) (remanding sentence where court impermissibly considered defendant’s privilege to exercise his right against self-incrimination); see also Hannum, 18 So.3d at 135-36. Accordingly, we must consider whether the trial judge’s comments during sentence were “so erroneous as to be equivalent to a denial of due process.” Hannum, 13 So.3d at 135.

Here, appellant asserts that the trial court considered a constitutionally impermissible factor, namely appellant’s national origin, during the sentencing process. As far as we have been able to determine, this case presents an issue of first impression in Florida. Several federal courts have held that national origin is a constitutionally impermissible factor to consider as a basis for sentencing. See, e.g., United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir.1991) (“[Sentencing an offender on the basis of factors such as race, national origin, or alienage violates the Constitution.”); see also United States v. Edwardo-Franco, 885 F.2d 1002, 1005 (2d Cir.1989) (“[R]ace and nationality should play no adverse role in the administration of justice.”). However, reference to national origin during sentencing “is permissible, so long as it does not become the basis for determining the sentence.” United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994) (emphasis added) (finding national origin was not the basis for sentencing where trial judge clarified in sentencing order that defendant’s intelligence and lack of remorse and not his naturalized status were the basis for the sentence); see also Onwuemene, 933 F.2d at 652 (holding that remand was necessary where court’s statements at sentencing included both permissible and impermissible considerations and court could not determine whether sentence would have been rendered absent impermissible considerations).

We find the rationale followed by the federal courts to be persuasive with regard to the challenge raised by appellant. We agree with appellant that the comments by the trial judge could reasonably be construed to suggest that the trial judge based appellant’s sentence, at least in part, on his national origin.

We are further mindful of the mandate that, for justice to be done, it must also appear to be done. See, e.g., Scott v. Anderson, 405 So.2d 228, 234 (Fla. 1st DCA 1981) (“[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’”) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). Because it is unclear whether the trial court would have imposed the same sentence absent consideration of appellant’s national origin, we must vacate appellant’s sentence and remand for resentencing before a different judge.

REVERSED AND REMANDED.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: FARMER, J. WARNER, J.,

text:
    Mary CRESPO, Appellant, v. David CRESPO, Appellee.
    No. 4D08-4171.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.
    Rehearing Denied March 16, 2010.

      Sandy T. Fox of Sandy T. Fox, P.A., Aventura, for appellant.
    Daniel Bachert of the Bachert Law Firm, P.A., West Palm Beach, for appellee.
   FARMER, J.

The parties settled their dissolution of marriage case with a marital settlement agreement (MSA) formally approved and incorporated into a final judgment. At the time of their agreement he had suffered from a back injury for several years during which he was unemployed, and had no assets then immediately convertible to cash. His only asset for equitable distribution was the 1100 Douglas Building in New York, titled in his name alone. Their MSA contains the following provisions:

23. DISTRIBUTION OF OTHER REAL PROPERTY. ...
A. The Husband owns the following real property titled solely in Husband’s name....
The Wife in recognition of and exchange for the funds Wife shall receive for equitable distribution under this Agreement waives any right, title or interest she may have by or under the Parties’ marriage to the 1100 Douglas Building and confirms and agrees that the property shall remain the sole property of the Husband.
28. DISTRIBUTION TO WIFE: The Wife shall receive from the Husband as and for equitable distribution of all of the Parties Marital Assets the sum of One Hundred and Forty Five Thousand Dollars ($145,000) less the Wife’s debt ... totaling Three Thousand, Seven Hundred and Thirty Six dollars and Twenty Eight cents ($3,736.28) for net payment due to Wife from the Husband in the amount of One Hundred, Forty One Thousand, Two Hundred and Sixty Three Dollars and Seventy Two cents ($141,263.72).

No date of payment was specified in the MSA. The final judgment ordered the parties to comply with the MSA.

A few months after entry of judgment, she filed a motion to enforce the MSA provisions set out above. She argued that payment was to be made upon the entry of judgment. He argued that both understood payment was to come from the proceeds of sale of the 1100 Douglas Building, and that he had extended his best efforts to effect a sale, having promptly listed the building and later significantly reduced the price being sought — from $625,000 to $450,000. The MSA being silent about the intent of the parties as to when payment would be due — and therefore ambiguous— the trial court thought the issue indicated an occasion for extrinsic evidence from the parties as to their mutual intent at the time of contracting about the time of payment.

At that evidentiary hearing, she testified that she assumed she was to receive the equitable distribution payment upon receipt of the Final Judgment. He testified that he had not been gainfully employed for some seven years before the final judgment due to a back injury, that he had no appreciable liquid assets from which he could have paid the equitable distribution payment at the time of the Final Judgment. He noted that she concedes he made full and fair disclosure to her of his finances. He testified that the intent was that the equitable distribution payment would be made upon the sale of the New York property. He explained that the property has been continuously listed for sale and that he has reduced the listing price by $175,000 to promote a sale.

He also pointed out that he had primary residential custody of the four minor children of the marriage. The final judgment required her to pay child support to him. She has made no such payments, he testified, leaving him with the full financial burden of raising the children. Nevertheless he had tried to make some installment payments on the equitable distribution. She admitted that since the final judgment he has paid her $2,500.00 on June 20, 2007, $1,500.00 on August 17, 2007, $10,000.00 on October 13, 2007, $1,000.00 on December 12, 2007 and $500.00 on May 13, 2008.

In announcing her decision to deny the motion at the conclusion of the evidentiary hearing, the trial judge said:

“[t]he agreement, if you look at it, it does identify the property in New York going to the husband. And you could assume that he’s going to sell that. And the evidence is that it’s actively listed. It’s been reduced at a reasonable rate. He has made payments, as you pointed out, all the way into 2008. So he’s not coming in here with unclean hands saying he’s done nothing to try to satisfy the debt.”

Her written order of denial further stated:

“[a]s long as Former Husband has the New York property up for sale with a reasonable asking price and the Former Husband continued to make a good faith effort by paying anything toward Former Wife’s equitable distribution the Former Husband has satisfied the terms and the Final Judgment as written.”

Her argument on appeal is that the court erred in admitting parol evidence, that the court misinterpreted the MSA, and that the court has effectively modified the equitable distribution provision in the MSA. We disagree.

As to the admission of parol evidence about the intent of parties regarding the time for payment, she failed to object to any of the evidence or even to having an evidentiary hearing. Apart from failing to preserve the issue, we also conclude that in any event the evidence was not improper. The MSA failed to specify a time for payment and was thus ambiguous as to the intent of the parties in that regard. A latent ambiguity arises, “where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Syverson v. Jones, 10 So.3d 1123, 1125 (Fla. 1st DCA 2009). ‘Where the language of a contract is ambiguous or unclear as to a particular right or duty, the court may receive evidence extrinsic to the contract for the purpose of determining the intent of the parties at the time of the contract.” Gulf Cities Gas Corp. v. Tangelo Park Serv. Co., 253 So.2d 744, 748 (Fla. 4th DCA 1971). Generally, where a contract fails to specify the rights or duties of the parties, “extrinsic evidence is necessary for interpretation” and the court may consider parol evidence. Jones v. Treasure, 984 So.2d 634, 637-38 (Fla. 4th DCA 2008).

The evidence was that both knew he had no cash or income to make such a payment when the MSA was being negotiated. Both knew the New York building was the only source of such funds. Both facts support the trial judge’s finding that the real intent of the parties was that payment would be due from the proceeds of the sale of the New York building. The factual resolution of such an ambiguity as to the due date of the payment does not modify their agreement; it merely clarifies the inherent ambiguity therein.

Affirmed.

LEVINE, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would hold that the Marital Agreement as written was unambiguous and contemplated the exchange of the sum for equitable distribution for the wife’s waiver of any rights in the husband’s New York property. The agreement did not contemplate the sale of the New York property. Instead, it confirmed that the property would remain the sole property of the husband. He could have obtained a mortgage on it to satisfy the wife’s equitable distribution payment, but he did not. The fact that the husband thought he would sell his property to secure the funds is immaterial. The money was due when the wife waived her rights to the property. Therefore, she was entitled to a money judgment for the unpaid sum together with interest.

      . These are the complete provisions bearing on the subject.


text:
    Nathaniel GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6602.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2010.
    Nathaniel Graham, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Mark Douglas STRICKLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6349.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2010.
    Mark Douglas Stricklen, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: LEVINE, J.

text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Frances CORRIDORI and Cheryl D. Corridori, Appellees.
    No. 4D09-2502.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.
    Rehearing Denied March 22, 2010.

      Steven G. Schwartz and William R. McMahon of Schwartz & Horwitz, PLC, Boca Raton, for appellant.
    Mary E. Kestenbaum Fortson and Robert A. Reynolds of Merlin Law Group, Coral Gables, for appellees.
   LEVINE, J.

The issue presented is whether the trial court erred in finding that appellees were entitled to an appraisal pursuant to a homeowners’ insurance policy where coverage issues remained in dispute. We conclude that the appraisal was premature, and we reverse.

Appellees purchased homeowners’ insurance from appellant in 2005. After sustaining damage during Hurricane Wilma, appellees filed a claim for reimbursement. Appellant paid that claim and closed the case. Two years later, appellees submitted a “supplemental claim” for damages discovered by a public adjuster. In response, appellant requested a sworn proof of loss, to be filed within ninety days, and examinations under oath. Appellees did not comply with the deadlines, and the late submission was, according to appellant, incomplete and inaccurate. Appellant denied the claim, concluding that the damages claimed were not in fact “supplemental” to the original damages. Appellants further claimed that appellees breached the contract by failing to comply with the proof of loss requirement, and appellees materially breached the policy.

Appellees responded by filing a petition to compel an appraisal in the trial court. Without taking any evidence, the trial court concluded that the new claim was supplemental and that appellees had not materially breached the policy. The trial court ordered the parties to appraise the loss. Appellant claims that the trial court erred by holding, as a matter of law, that the new claims are covered by the policy.

We review de novo a trial court’s order compelling an appraisal under an insurance policy. Fla. Ins. Guar. Ass'n v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009).

In Johnson v. Nationwide Mutual Insurance Co., 828 So.2d 1021, 1025-26 (Fla.2002), the Florida Supreme Court recognized that coverage issues must be resolved before an appraisal of the amount of a loss is ordered. Issues of coverage are “for judicial determination by a court,” not the appraisal panel. Id. at 1026. Once the court establishes that the losses are covered by a policy, then those losses may be appraised.

The parties dispute whether the claimed losses are covered by the policy and whether appellees complied with the policy requirements. Specifically, appellees claim that their compliance with the policy requirements was not necessary because appellant previously admitted coverage. Even if appellant did not admit coverage, appellees argue that they substantially complied with the requirements and should not be found in breach of the policy. By contrast, appellant claims it never admitted coverage and maintains that appellees’ compliance with the policy demands was insufficient.

As this court has previously noted, where the “insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented” regarding the necessity or sufficiency of compliance. Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001) (citation omitted). Whether appellees’ compliance with the policy terms was necessary or sufficient is a dispute of fact. The trial court, without taking any evidence, did not resolve this dispute of fact with competent evidence to support its determination of coverage.

Because the trial court must resolve all underlying coverage disputes pri- or to ordering an appraisal, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

GROSS, C.J., and WARNER, J., concur.


author: EVANDER, J.

text:
    John STACKMAN and Beverly Stackman, Appellants, v. Susan POPE, POA for the Owners, etc., Appellee.
    No. 5D09-772.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.

      Michael Massey, of Massey & Duffy, LLC, Gainesville, for Appellant.
    Helen A. Hauser, of Restani, Dittmar & Hauser, P.A., Coral Gables, and Dennis R. Haber, of Dennis R. Haber, P.A., Palmetto Bay, for Appellee.
   EVANDER, J.

John and Beverly Stackman appeal from a final summary judgment imposing a prescriptive easement on their property. The uncontroverted evidence in the record was insufficient to establish the required elements of a prescriptive easement on behalf of appellee, Susan Pope, or any of the other homeowners on whose behalf she purported to bring this action. Therefore, we reverse.

Pope filed the action below seeking a judicial determination that homeowners of the Hooperville Subdivision in Marion County had the right to use a boat ramp located on the Stackman property. She alleged that she was “the authorized and appointed representative by Power of Attorney for the property owners covered by the Power of Attorney who are property owners at the Hooperville Subdivision....”

Pope subsequently filed a motion for summary judgment, attaching fourteen affidavits of various property owners. The affidavits were all in the same format and included the following language:

AFFIDAVIT OF_
4. I own property located at _which is located in the Hooperville subdivision in Marion County Florida.
5. I have continuously used the boat ramp located on Section 12, Township 13, Range 25, plat Book 009, Hooperville for the past_years.
6. I have used the boat ramp described above under the belief that I had the right to use the same.
7. I have never requested the permission of any title holders of the property to use the boat ramp.
9. I have used the boat ramp described above openly and without reservation from any prior title holders of the property and with the full knowledge of the prior title holders.

As to paragraph 5 of the form affidavit, only three of the fourteen affiants averred that they had used the boat ramp for at least twenty years. None of the affidavits referenced use by predecessors in title, nor did any of the affidavits contain specific factual representations to support the conclusionary claim of “continuously used.”

The Stackmans filed several affidavits in opposition to the motion for summary judgment. Without detailing the aver-ments of each counter-affidavit, it is sufficient to state that the property owners’ claims of continuous and open use of the boat ramp were disputed by individuals who had resided within -view of, or regularly traveled by, the boat ramp. Additionally, in two of the counter-affidavits, the affiants claimed that the boat ramp was unusable for a significant period of time because of the lack of maintenance on the property.

In granting Pope’s motion for summary judgment, the trial court determined that a prescriptive easement existed on the Stackmans’ property. The trial court’s final order failed to identify the property to be benefitted by the easement.

To establish a prescriptive easement, a claimant must prove, by clear and positive proof, 1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; 2) that the use was related to a certain, limited and defined area of land; 3) that the use has been either with the actual knowledge of the OAvner, or so open, notorious, and visible that knowledge of the use must be imputed to the OAvner; and 4) that the use has been adverse to the ovmer — that is, Avithout permission (express or implied) from the owner, under some claim of right, inconsistent with the rights of the owner, and such that, for the entire period, the OAvner could have sued to prevent further use. See Downing v. Bird, 100 So.2d 57, 64 (Fla. 1958); Dan v. BSJ Realty, LLC, 953 So.2d 640, 642 (Fla. 3d DCA 2007); Suwannee River Water Mgmt. Dist. v. Price, 651 So.2d 749 (Fla. 1st DCA 1995); Crigger v. Florida Power Corp., 436 So.2d 937, 944-45 (Fla. 5th DCA 1983).

Significantly, a party claiming a private prescriptive easement may only rely upon use of the subject property by himself or his predecessors in title in attempting to show actual and continuous use for the prescribed time period. See Brewer v. Flankey, 660 So.2d 761 (Fla. 5th DCA 1995); Supal v. Miller, 455 So.2d 593 (Fla. 5th DCA 1984). In the present case, the evidence in the record was clearly insufficient to meet the twenty-year requirement for the majority of the property owners purportedly represented by Pope. As to the property owners who swore to actual and continuous use for at least twenty years, material disputed issues of fact were created by the counter-affidavits as to the first, third, and fourth elements listed above. Summary judgment is improper where there is a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

On remand, the trial court must evaluate each property OAvner’s prescriptive easement claim separately. A party seeking to establish a private prescriptive easement may not “bootstrap” onto the claim of another. Supal, 455 So.2d at 595.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.

      . At oral argument, Pope’s counsel advised that not all property owners in the Hooper-ville Subdivision had given a power of attorney to Pope. The issue of whether Pope had standing to bring this action on behalf of other property owners was not raised below or on appeal, and, accordingly, we decline to address it.


text:
    Dwight BEST, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3606.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Sean M. Wagner, Melbourne, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Dwight Best, filed a petition for writ of habeas corpus asserting that the pretrial bail set in his criminal case was tantamount to no bond and bond should be reduced. We agreed that the writ should issue and the petition was granted by order, with this opinion to follow.

Petitioner was originally arrested for attempted murder of a law enforcement officer, aggravated assault of a law enforcement officer, fleeing and eluding, reckless driving, and driving while license was suspended. No bond was originally set for the attempted murder offense and $100,000, $100,000, $10,000, and $10,000, were set respectively for the remaining offenses. At first appearance, the court set bond on the attempted murder charge at $100,000 and left the remaining bond amounts undisturbed, with a total bond amount of $320,000. Subsequently, the State filed an information charging Petitioner only with aggravated assault, fleeing and eluding, and driving while license was suspended. As a consequence of the State’s abandonment of the attempted murder charge, counsel for Petitioner filed a motion to reduce bond. The motion was heard by the trial court, with Petitioner arguing that, based on his financial situation, a $320,000 bond was excessive and amounted to no bond at all.

During the hearing, the trial court inquired as to whether the State might want to establish that “proof was evident and presumption was great in an Arthur hearing,” in order to set “no bond.” The defense objected, asserting that the life felony charge had been abandoned. There was then discussion regarding a possible attempt by the State to revoke bond pursuant to section 907.041, Florida Statutes, since aggravated assault is a “dangerous crime.” However, these suggestions by the trial judge did not go any further. The trial court then denied the motion to reduce bond, stating that Petitioner was an unreasonable danger to the community based on the fact that the offenses involved violence against a law enforcement officer.

A subsequent hearing was held after Petitioner filed a motion to disqualify the trial judge. During that hearing, which resulted in the judge’s granting of the motion to disqualify, the judge explained his earlier denial of the motion to reduce bond:

[A] high bond is really no bond for this Defendant unless he’s — and I don’t think the wealthy should be receiving preference over anyone else.
And so that’s why I made that suggestion to the State, that if they really felt he was dangerous to the community, which was the argument made to me, I believe that the appropriate motion really would be a no bond as opposed to just asking me to keep a high bond.
My thinking was he could not come up with the amount of that bond and I — in essence, what I was doing was no bonding him by the amount of his bond.

It is clear from these statements that it was the trial judge’s intent to set a bond that was unattainable for Petitioner based on his financial circumstances in order to keep him incarcerated. The court abuses its discretion when it sets an excessive bail that is designed to be the functional equivalent of no bail. See Good v. Wille, 382 So.2d 408, 410 (Fla. 4th DCA 1980). As such, Petitioner is entitled to a new bond hearing before the successor judge.

PETITION GRANTED.

GRIFFIN, EVANDER and COHEN, JJ., concur.

      . State v. Arthur, 390 So.2d 717 (Fla.1980).

      . Petitioner was out on bond for separate misdemeanor cases at tire time of the offenses in this case.

      . In the State’s response to Petitioner, although they contend that bond was not excessive, considering the severity of the crimes charged and the criminal history of Petitioner, they concede that "this court may have concerns based on the events that followed the bond hearing.”

      .We have been informed that the trial court has already conducted such a hearing and has reduced the bond.


author: WALLACE, Judge.

text:
    Todd Matthew CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1852.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.

      Todd Matthew Clark, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Todd Matthew Clark appeals the denial of his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). In his motion, Mr. Clark sought jail credit for the time that he spent first in the secure lockdown unit of a psychiatric hospital and later in a nonse-cure drug treatment facility. Mr. Clark was ordered to both of these facilities after his arrest but before any determination of guilt. Because Mr. Clark’s time in the secure facility was the functional equivalent of jail and a coercive deprivation of liberty, we conclude that the postconviction court erred by denying his request for credit for time served in that facility. We affirm the postconviction court’s denial of Mr. Clark’s request for credit for the time he spent in the nonsecure drug treatment facility.

I. THE FACTS AND PROCEDURAL HISTORY

Mr. Clark was arrested on charges of aggravated assault on law enforcement officers following a standoff with sheriffs deputies at his home. During a bond hearing held prior to determination of guilt, Mr. Clark was ordered to a “medical furlough” in the secure lockdown unit of the psychiatric hospital subject to stringent controls: (1) Mr. Clark was to be transported to the hospital by sheriffs deputies; (2) he was to be held at the hospital “under police hold”; (3) he was not permitted to leave the hospital absent a court order; and (4) upon his discharge from the hospital, he was to be returned to the county jail. After spending 177 days in the psychiatric hospital, Mr. Clark’s “medical furlough” was amended at his request and he was released to a nonse-cure drug treatment facility.

Subsequently, Mr. Clark pleaded guilty to three counts of aggravated assault on law enforcement officers. The trial court imposed a split sentence on each of the three counts. Mr. Clark was sentenced to a term of twelve years on each count. After serving a three-year mandatory minimum term in prison, the remainder of the sentence was suspended and Mr. Clark was to be placed on probation for a period of nine years. The sentences were designated to run concurrently. The trial court also granted Mr. Clark ninety-three days’ jail credit for the time he had spent in the county jail.

II. DISCUSSION

Where the State, prior to any determination of guilt, assumes total custody of a defendant, even if constructive, and such custody is the functional equivalent of jail, the defendant is entitled to jail time credit. Tal-Mason v. State, 515 So.2d 738, 740 (Fla.1987). The trial court’s order placing Mr. Clark “under police hold” in a locked unit at the psychiatric hospital constituted an assumption by the State of total custody of Mr. Clark. Absent a court order, Mr. Clark was prohibited from leaving the secured confines of the hospital. Upon medical discharge from the hospital, he was not to be at liberty but rather to be returned to the county jail. Unquestionably, Mr. Clark’s detention in the hospital was intended to be and was a “coercive deprivation of liberty.” Id. Mr. Clark “was not free on bail, had no control over his place of custody and was never free to leave the hospital[]. For all practical intents and purposes, he was still in jail.” See id. (quoting State v. Mackley, 220 Kan. 518, 552 P.2d 628, 629 (1976)); see also Maniccia v. State, 931 So.2d 1027, 1029 (Fla. 4th DCA 2006) (quoting the foregoing statement from Tal-Mason).

Mr. Clark’s detention in the psychiatric hospital was the functional equivalent of his detention in the county jail. Accordingly, the postconviction court erred in failing to correct his sentence by granting him credit for the 177 days that he spent there.

III. CONCLUSION

We affirm the postconviction court’s order to the extent that it denied Mr. Clark credit for the time he spent in the nonse-cure drug treatment facility. We reverse the order to the extent that it denied Mr. Clark credit for the time he spent in the psychiatric hospital. We remand for the postconviction court to enter an order correcting Mr. Clark’s sentence by awarding him credit for the 177 days that he spent in the psychiatric hospital.

Affirmed in part, reversed in part, and remanded.

LaROSE and CRENSHAW, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Timothy BLOYE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3070.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.

      Mark O’Brien of O’Brien Bower, P.A., Tampa, for Appellant.
   ALTENBERND, Judge.

Timothy Bloye appeals an order denying his postconviction motion, which he filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Bloye declined to amend his motion after the trial court struck the motion with leave to amend on grounds that it was facially insufficient. When Mr. Bloye filed no amended motion, the trial court entered an order denying relief. We affirm.

In May 2006, Mr. Bloye pleaded guilty to charges of lewd and lascivious conduct and received a sentence of eighty-two months’ imprisonment. He filed a petition for a belated appeal that was dismissed. Bloye v. State, 959 So.2d 260 (Fla. 2d DCA 2007) (table decision).

Mr. Bloye filed this motion for postcon-viction relief in September 2007 with the assistance of the same attorney who represents him on appeal. The motion is a bare-bones motion. The first thirteen enumerated paragraphs of the motion apparently provide only the information that one would use to fill in the blanks on the form motion contained in Florida Rule of Criminal Procedure 3.987. We say “apparently” because, for example, one allegation — “3. The Defendant was sentenced to eighty-two months in prison” — would be a proper response to section three of the form motion in which the defendant provides the length of his sentence. On the other hand, section eight of the form asks whether the defendant appealed from the judgment of conviction, and Mr. Bloye’s motion contains an allegation — “8. Yes. The Defendant testified at his sentencing” — which is not responsive to the question in the form.

The grounds for the motion are contained in paragraph 14. In its entirety, paragraph 14 states:

14. Grounds:

A.) The conviction was obtained as a denial of effective assistance of counsel.
1.) Petitioner’s trial counsel promised Petitioner a downward departure at sentencing.
C.) The conviction was obtained due to a conflict of interest between the Petitioner and the trial court.
1.) The trial court removed the Petitioner’s children from his custody due to his arrest in Family Court. Judge Babb was then transferred to Criminal Court and handled his case after the matter began with Judge Tepper.
D.) The conviction was obtained as a denial of effective assistance of counsel.
1.) Trial counsel failed to bring forth this conflict of interest and ask that the trial court excuse herself.

The trial court entered a “nonflnal order” on October 16, 2008, addressing each ground. As to ground A, it explained that the motion did not even allege that the eighty-two-month sentence was not a downward departure. The trial court ruled that the content of ground A was facially insufficient to allege either deficient performance of counsel or prejudice. Accordingly, it struck ground A.

As to ground B, the court merely noted that no such ground had been pleaded. As to ground C, the trial court noted that Mr. Bloye appeared to be alleging that Judge Babb should have recused herself in the absence of a motion to disqualify. The trial court concluded that this ground raised an issue that could or should have been raised on direct appeal and that the better postconviction approach to the issue was provided in ground D. Accordingly, it denied this ground without leave to amend.

As to ground D, the trial court noted that failure to file a motion to disqualify could be ineffective assistance of counsel but that the allegations did not contain enough information to establish that Judge Babb’s involvement in the family law case would have been a basis to file a motion to disqualify. Accordingly, it struck this ground with leave to amend. The trial court granted Mr. Bloye’s attorney thirty days in which to file an amended motion and expressly advised that the order was not an appealable order.

When no amended pleading had been received by December 1, 2008, the trial court entered a final order denying post-conviction relief. No appeal of that order was timely filed, and this appeal is the result of a petition to file a belated appeal. Bloye v. State, 8 So.3d 360 (Fla. 2d DCA 2009) (table decision).

The procedures followed by the trial court are in accordance with Spera v. State, 971 So.2d 754 (Fla.2007). In this case, more than two years and a month had elapsed from the entry of the judgment and sentence by the time the trial court entered its nonflnal order. A new motion would have been untimely and the trial court was giving Mr. Bloye a final opportunity to plead a facially sufficient claim. Thus, our issue on appeal is whether the trial court properly struck and denied the original grounds in its earlier nonflnal order. We conclude that the trial court’s analysis was appropriate in that order and that it had the authority to enter the final order on the merits when it received no amended motions.

Affirmed.

VILLANTI and WALLACE, JJ., Concur.


author: WEBSTER, J.

text:
    Atim Nkang ITIAT, Personal Representative of the Estate of Mandu Peter Itiat, Appellant, v. Raymond FOSKEY, individually, and Raymond Foskey d/b/a Monticello Towing, Appellees.
    No. 1D09-2069.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Burney Bivens and Edward W. Dawkins of Bivens, Jones & Associates, Orange Park, for Appellant.
    E.T. Fernandez, III, Matthew C. Both-well and John M. Hatfield of Fernandez Trial Lawyers, P.A., Jacksonville, for Ap-pellees.
   WEBSTER, J.

Appellant, as the personal representative of her late husband’s estate, requests review of an adverse summary final judgment entered in her action seeking damages for the wrongful death of her husband. Because we conclude that the record demonstrates the existence of genuine issues as to material facts, we reverse.

Appellant’s husband died as the result of a rear-end collision with a tow truck on Interstate 10 following a rain storm. The trial court entered summary judgment in favor of the appellees based upon its determination that appellant had “failed to provide ... evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision.” Our standard of review is de novo. E.g., The Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

The law in Florida regarding summary judgments is well settled:

[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.... A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law....
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.

Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) (citations omitted). Succinctly put, “[w]hen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied.” Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991) (citations omitted).

The summary judgment was based upon the trial court’s determination that appellant had “failed to provide ... evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision,” citing Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla.2001), and Tozier v. Jarvis, 469 So.2d 884 (Fla. 4th DCA 1985). Those two cases stand for the general proposition that a rebuttable presumption of negligence on the part of the rear driver arises in rear-end collision cases and, accordingly, the burden rests on the rear driver to present evidence that “ ‘fairly and reasonably tends to show that the presumption of negligence is misplaced.” Clampitt, 786 So.2d at 573 (quoting Guile v. Boggs, 174 So.2d 26, 29 (Fla.1965)). Once such evidence is presented, the presumption dissipates, and the case must go to the jury “to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence.” Gulle, 174 So.2d at 29. See also Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 650 (Fla. 5th DCA 2006). “There are three general categories of affirmative explanations that [have been held to] effectively rebut the presumption of negligence: 1) an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected change of lanes ...; 2) a mechanical failure, i.e., sudden brake failure, that causes the rear driver to collide with the lead driver ...; and 3) the lead vehicle is illegally and, therefore, unexpectedly stopped.” Id. at 649-50 (citations omitted).

Having carefully reviewed the record, we conclude that, drawing every reasonable inference in favor of appellant, genuine issues exist as to material facts— i.e., whether appellee Foskey suddenly changed lanes and reduced his speed and, if so, whether the collision was caused by those actions. Accordingly, we conclude, further, that the trial court incorrectly determined that appellant had “failed to provide ... evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision.” Therefore, we reverse the summary final judgment, and remand for further proceedings.

REVERSED and REMANDED.

WOLF and THOMAS, JJ., concur.


text:
    John D. COGBILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5717.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    John D. Cogbill, pro se, Petitioner.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the amended order of probation rendered September 10, 2008, in Bay County Circuit Court case number 03-2343-C. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


text:
    Marvin L. NETTLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5273.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Marvin L. Nettles, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Marvin L. Nettles is afforded a belated appeal from judgment and sentence in case number 08-CF-1973 in the Circuit Court for Escam-bia County. Nettles v. State, No. 1D09-2447 is hereby reinstated. The circuit court is directed to appoint counsel to represent Nettles in that appeal within 10 days of issuance of mandate in this cause if he qualifies for such an appointment. This court’s filing fee in case number 1D09-2447 shall be paid or waived within 30 days of issuance of mandate in this cause.

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Jennifer CASSELL, Mother, Appellant, v. Eugenio ERQUIAGA, Father, Appellee.
    No. 1D09-5214.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Dale G. Westling, Sr. and Stefani K. Nolan, Jacksonville, for Appellant.
    Marilyn K. Morris, Tallahassee, for Ap-pellee.
   PER CURIAM.

On October 13, 2009, Jennifer Cassell filed a notice of appeal seeking review of a “Final Order of Modification” entered below on March 17, 2009. The order, among other things, modified custody of the parties’ minor child and terminated the child support obligations of appellee, Eugenio Erquiaga. As to the child support, the order provided that the appellant “shall owe child support to Father [appellee], based on Florida Child Support Guidelines” and directed the parties to submit a joint child support worksheet and proposed order for the court’s consideration. Sua sponte this court issued an order directing appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. Having considered appellant’s response to the show cause order, this appeal is dismissed for lack of jurisdiction.

The March 17, 2009 order was a non-final order because it contemplated additional judicial labor to establish the amount of child support payable by appellant which would eventually culminate in an appealable final order. Although the March 17, 2009 order was an appealable non-final order under rule 9.130(a)(3)(C)(iii), Florida Rules of Appellate Procedure, a notice of appeal was required to be filed within 30 days of the rendition of the order. Rule 9.130(b), Fla. R.App. P. Further, appellant’s argument that her motion for rehearing suspended rendition of the March 17 order is without merit. Appellant’s motion for rehearing was not authorized because it was directed toward a non-final order, Ward v. Bragg, 957 So.2d 670, 670-71 (Fla. 1st DCA 2007); Wagner v. Bieley, Wagner & Assoc., Inc., 263 So.2d 1 (Fla.1972), and, accordingly, did not suspend rendition. See Fla.R.App. P. 9.020(h).

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


text:
    Michael JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4500.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Michael Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner filed a motion to modify his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). We treat the petitioner’s response to this Court’s show cause order as a petition for certiorari and deny the petition. See Brantley v. Holloway, 685 So.2d 31 (Fla. 2d DCA 1996).

DENIED.

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


text:
    Gregory Lee HICKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3862.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Gregory Lee Hicks, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Gregory Lee Hicks is hereby afforded a belated appeal of his judgments and sentences in Bay County Circuit Court case numbers 07-1980, 07-3383, 07-3472, and 07-3473. See State v. Trowell, 739 So.2d 77 (Fla.1999). 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 circuit court is directed to appoint counsel to represent Hicks in that appeal if he qualifies for such an appointment.

PETITION GRANTED.

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Grady M. KITTRELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3164.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Grady M. Kittrell, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of mandamus to compel the circuit court to rule on a pending motion for post-conviction relief. We grant the petition.

The motion for post-conviction relief and amendments have been pending for almost one year. The circuit court denied the motion in part and directed the State Attorney to file a response within 30 days to address the remaining claims. However, more than 90 days have elapsed and the state has not filed a response below. Accordingly, the petition for writ of mandamus is granted. Within 60 days, the circuit court is directed to either issue a final order disposing of all claims raised in the post-conviction motion or conduct an evi-dentiary hearing. Because we are confident that the circuit court will promptly comply with the ruling of this court, we withhold formal issuance of the writ. Golden v. Florida Dep’t of Corr., 739 So.2d 1273 (Fla. 1st DCA 1999).

PETITION GRANTED.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: ROBERTS, J.

text:
    SEMINOLE COUNTY GOVERNMENT and Johns Eastern Company, Inc., Appellants, v. Eric BAUMGARDNER, Appellee.
    No. 1D09-2465.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.

      Michael Broussard and John D.W. Beamer of Broussard, Cullen & DeGallier, P.A., Orlando, for Appellants.
    Kelli Biferie Hastings, Winter Park; Paul Kelley and Mike Clelland of Bichler and Kelley, P.A., Winter Park, for Appel-lee.
   ROBERTS, J.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) denying its request to apply a fifty-percent reduction to Claimant’s impairment benefits pursuant to section 440.15(3)(c), Florida Statutes (2005). Because the JCC correctly applied the statute, we affirm the JCC’s order.

The facts of the case are not in dispute. During the period for which Claimant was entitled to permanent impairment benefits, Claimant missed work on occasion and failed to earn one hundred percent of his pre-injury average weekly wage (AWW). The parties likewise stipulate that Claimant’s failure to earn one hundred percent of his AWW was unrelated to his compen-sable injury. Because Claimant’s reduced earnings were not causally related to his compensable injury, the E/C paid Claimant impairment benefits pursuant to the fifty-percent earned income reduction provided in section 440.15(3)(c). Claimant demanded benefits at the rate of seventy-five percent, arguing that the statute lacks a causation requirement and that impairment benefits are based purely on the amount of an employee’s actual earnings.

Accordingly, the question presented is whether section 440.15(3)(c) requires a causal connection between a claimant’s loss of earnings and his compensable injury before a claimant may receive the maximum percentage of impairment benefits. The pertinent language of section 440.15(3)(c), Florida Statutes (2005), provides:

Impairment income benefits are paid biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit not to exceed the maximum weekly benefit under s. 440.12; provided, however, that such benefits shall be reduced by 50 percent for each week in which the employee has earned income equal to or in excess of the employee’s [AWW].

We agree with the JCC that section 440.15(3)(c) is clear and unambiguous. An E/C’s obligation to pay impairment benefits at the rate of seventy-five percent is not expressly limited to periods in which an employee has not earned income equal to or in excess of the employee’s AWW because of the covered condition. The plain language of the statute does not require a claimant to show his lost earnings were causally related to his injury as a condition to receiving the maximum percentage of impairment benefits. The interpretation urged by the E/C would require the court to read words into the statute not included by the Legislature.

Consequently, under the facts of this case and because no affirmative defense was proven, the E/C was not permitted to apply the fifty-percent reduction to Claimant’s impairment benefits. The JCC’s order is AFFIRMED.

KAHN and BENTON, JJ., concur.


author: WETHERELL, J.

text:
    Marvin Dwayne COOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2847.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.

      Nancy A. Daniels, Public Defender and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant pled no contest to possession of cocaine, reserving the right to appeal the trial court’s denial of his dispositive motion to suppress. We reverse because the state failed to prove that the deputy who stopped Appellant had a reasonable suspicion of criminal activity to justify the stop.

On March 18, 2007, at a little after 4:00 a.m., an Escambia County Sheriffs Deputy was dispatched to investigate a report of suspicious activity called in by a hotel clerk identified in the record only as “Glenda.” At the suppression hearing, the deputy read the Computer Assisted Dispatch (CAD) report to which he was responding as follows:

It was Blue Angel Inn reference to a male subject that was trying to open the back door. She saw him there about one hour ago. They were in a maroon four door possible Lincoln. There were three black males in the car. And then it says complaint type changed from suspicious person to suspicious person vehicle. And then it reiterates Blue Angel Inn, sir.
The deputy further testified:
As per the call notes of which I was aware of that night, ... the clerk had attempted to ask the group of individuals to leave. One of the individuals had then opened [] what I was told was a back door. I’m still not very sure on exactly where that was. And the clerk fearing for her safety had called Escam-bia County sheriffs office dispatch.

En route to the hotel, the deputy saw a car matching the description in the CAD report. The deputy turned behind it and stopped the car. Appellant was driving and there was one other person in the car. The deputy told Appellant and the passenger, Jerry Gillard, that there was “suspicious activity at a hotel close by” and “they stated that they had been coming from that hotel.” The deputy asked Appellant to come to the back of the car, which he did. While Appellant remained behind, the deputy went to speak with Gillard. The deputy then noticed “a small baggie of green leafy substance pushed down next to [Gillard’s] leg.” The deputy asked Gillard to get out of the car and arrested him. The deputy then searched Appellant and found crack cocaine in his jacket, at which point he was arrested.

When asked why he stopped Appellant’s car, the deputy answered:

It closely matched a vehicle description given to us of a vehicle which had possibly been used in the commission of a crime.
[Defense counsel:] What crime was that?
[Deputy:] Well, sir, that’s what we were being dispatched to ascertain. And at the very least what I felt to be true when I was responding was at the very least, a trespassing and possibly an attempted burglary, sir.

When asked for his “reasonable articula-ble suspicion that [Appellant] had committed a crime, was committing a crime, or was about to commit a crime” when he stopped Appellant, the deputy answered:

Due to the complaint by an individual who had, who we did know the place of employment, she had given it the very least her first name. And I’m not really familiar with how dispatch works. I’m fairly certain that they have a caller ID and things of that sort. And she was the complainant on the suspicious activity, sir.

Appellant testified that he and his cousin, Gillard, went to the Rodeway Inn (which, according to the deputy, is either the same hotel as or is in “extraordinarily close proximity” to the Blue Angel Inn) and pulled up to the front door. The front door was locked, so Appellant walked around to the back. He put his ID in a slot through a Plexiglas window because he wanted to rent a room. An Asian man behind the counter told Appellant there were no rooms and Appellant got in his car and left. He testified that he did not try to get a room at the Blue Angel Inn.

The trial court denied Appellant’s motion to suppress. The court’s oral ruling (which was incorporated by reference in the written order denying the motion) did not discuss the reasonable suspicion that the court apparently found to have existed in order to justify the stop in the first instance. Instead, the trial court focused on the probable cause that existed to search the vehicle after marijuana was discovered on Gillard and the inevitability of Appellant being searched after additional marijuana was discovered in the arm rest of the car.

Appellant thereafter pled no contest to the drug possession charge (no charges related to the suspicious activity at the hotel were brought), reserving the right to appeal the denial of the motion to suppress. The trial court withheld adjudication and sentenced Appellant to two years of probation, with the condition that he remain incarcerated until he was accepted into a substance abuse program.

The trial court’s ruling on a motion to suppress is a mixed question of law and fact. Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009). The trial court’s findings of fact are entitled to deference, but its application of the constitutional standard to the facts is subject to de novo review. Id.

“In evaluating the legality of the [deputy’s] actions, we must examine the facts available to the [deputy] and the totality of the circumstances to determine whether [he] had a particularized, objective basis to suspect criminal activity.” Id. at 1265-66. To justify an investigatory stop, the deputy had to have a reasonable suspicion that Appellant had committed, was committing, or was about to commit a crime. King v. State, 17 So.3d 728, 730-31 (Fla. 1st DCA 2009) (quoting Popple v. State, 626 So.2d 185, 186 (Fla.1993)); see also § 901.151(2), Fla. Stat. (2006).

“ ‘Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances— the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.’ ” Baptiste v. State, 995 So.2d 285, 291 (Fla.2008) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). To create reasonable suspicion, a tip must be reliable not only in its description of the subject, but also “in its assertion of illegality.” Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

Appellant concedes that the hotel clerk who called the dispatcher is a citizen informant, and therefore “falls at the higher end of the reliability scale.” Baptiste, 995 So.2d at 291. Appellant essentially argues that, while the tip at issue is deemed relatively reliable, and that therefore under Baptiste comparatively less information is necessary to establish the l’equisite quantum of suspicion, the information in the CAD report does not clear even that low bar. In other words, Appellant argues that the deputies had no objective basis to stop him because what was reported to the dispatcher and relayed to the deputy in the CAD report did not create a reasonable suspicion that Appellant (or anyone else) had committed, was committing, or would commit a crime. We agree. To borrow J.L. ⅛ phrase, the tip was not reliable “in its assertion of illegality” and was therefore insufficient to justify the stop.

According to the deputy’s testimony, the hotel clerk told the dispatcher that a black man tried to open the back door of the Blue Angel Inn about an hour before she called, that the man left in a maroon Lincoln, and that there were a total of three black men in the car. Assuming all of this is true (as the trial court appears to have found it to be despite the fact the clerk did not testify and Appellant testified that he was at the Rodeway Inn, not the Blue Angel Inn), it is difficult to see how this forms a reasonable suspicion that Appellant had committed, was committing, or would commit a crime. Even the deputy did not know what crime had been committed; he was on his way to “ascertain” just that.

The deputy testified that he felt there might have been a trespass or attempted burglary, but the state makes no real attempt to argue that trying the back door to a hotel and then leaving rises to the level of those crimes, and it is noteworthy that Appellant was not charged with any offense related to the suspicious activity reported by the hotel clerk. Even if, as the police report states, the hotel clerk was afraid that the men she saw may have been trying to see whether she was alone for purposes of robbing her, the clerk’s “hunch” about the men’s intention (which apparently was not correct because the men left and no robbery occurred) was not enough to establish a reasonable suspicion that would justify the stop. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (explaining that the reasonable suspicion standard requires more than a “hunch” of criminal activity).

This case is analogous to R.E. v. State, 536 So.2d 1125 (Fla. 1st DCA 1988), in which we reversed the trial court’s denial of a motion to suppress because the information provided to the police by a citizen informant did not raise a reasonable suspicion that criminal activity was afoot. The informant in RE. reported that he observed a suspicious meeting between two individuals in a parking lot, and that although he did not observe any drugs or money exchange hands, the behavior of the individuals suggested to him that a drug transaction had taken place. Id. at 1126. We explained:

The state would have us treat the instant case as if [the citizen informantj’s information pertained to a specific offense. In such a case, reasonable suspicion would be found to exist upon a showing that the informant was reliable and the information contained sufficient detail to identify the suspect, [citation omitted]. The instant case, however, involved the report of generalized, allegedly suspicious activity. In such cases, it is necessary to make the additional showing that the information made it reasonable to suspect that a crime had been, was being, or would be committed. This showing was never made.
The absence of some reasonable basis to suspect that crime was afoot makes the instant case comparable to Hall v. State, 366 So.2d 865 (Fla. 4th DCA 1979). In Hall, the police received a report from the manager of a clothing store that two black males were in the store behaving suspiciously; they had been in the store several times during the day but did not seem interested in making a purchase. An officer arrived just as the suspects were leaving the store and driving away. The officer followed the suspects and eventually stopped them without having observed any additional cause for suspicion. Finding this insufficient to constitute reasonable suspicion, the Fourth District reversed the trial court’s denial of the motion to suppress. As in Hall, the instant case involves a citizen’s claim of suspicious activity that has a minimal objective basis and, except for innocent details of identification, is uncorroborated by law enforcement’s subsequent observations. Corroboration of nothing more than innocent details of identification (e.g., a license plate number) assists the state in making the required showing that the information was sufficiently detailed to single out the suspect. It does not, however, create or support a suspicion that crime is afoot, which is essential if a report of generalized, allegedly suspicious activity is to justify a stop. The absence of this suspicion is fatal to the state’s position and the trial court’s ruling.

Id. at 1128 (emphasis supplied).

The same reasoning applies in this case. There is no dispute as to the hotel clerk’s reliability. It is simply that the information provided by the clerk did not create a reasonable suspicion that criminal activity was afoot.

The state contends that a “be-on-the-lookout” alert (BOLO) was issued and that the BOLO provided a reasonable suspicion for the deputy to stop Appellant because his car matched the description in the BOLO and it was observed in the vicinity where the “crime” was reported. We disagree.

First, the record is unclear as to whether a true BOLO was issued; all but one record reference is to the deputy having been dispatched to the hotel to investigate a specific report of suspicious activity. Second, even if the CAD report was considered a BOLO, the problem remains that (as was the case in R.E.) the BOLO was not based upon a report of any criminal activity; it was based only upon a report that a man tried the door to a hotel and left an hour prior to the report. Third, the cases relied on by the state for the proposition that a BOLO can provide a reasonable suspicion for an investigatory stop are distinguishable because those cases involved BOLOs for suspects in ongoing or prior crimes. See State v. Webb, 398 So.2d 820 (Fla.1981) (BOLO for a man “who had committed two armed robberies at two named drug stores on the two previous days”); State v. Setzler, 667 So.2d 343 (Fla. 1st DCA 1995) (BOLO for a “cream colored pick-up with three black males leaving the scene of a robbery”); Cobb v. State, 642 So.2d 656 (Fla. 1st DCA 1994) (BOLO for three black males who fled from an armed robbery on foot).

In sum, the totality of the circumstances did not provide the deputy with a reasonable suspicion sufficient to justify the stop and, therefore, the trial court should have granted Appellant’s motion to suppress. Accordingly, we reverse and remand with directions to grant the motion to suppress, vacate the conviction and sentence in this case, and discharge Appellant to the extent that he is not being held in other cases.*

REVERSED and REMANDED with directions.

KAHN and LEWIS, JJ., concur.

       We are reluctant to direct the trial court to discharge Appellant without this qualification because the record reflects that the state advised the trial court at the sentencing hearing that Appellant had committed three additional offenses while he was out on bond in this case. The record does not reflect the disposition of those new cases, which were not before the trial court at the time of sentencing in this case.


text:
    Joe SMITHWICK, IV, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1975.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2010.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

MONACO, C.J., PALMER and COHEN, JJ., concur.