author: CASANUEVA, Chief Judge.

text:
    Jose Edilberto PALACIOS, Appellant, v. FLORIDA FUNDING TRUST; Easy Homes 123, LLC, as Trustee of the Marigold # 1441 Trust dated 01/07/06; Lynn Browning, Beneficiary of the Marigold # 1441 Trust dated 01/07/06; Wachovia Bank, N.A.; and Barbara Collins, Appellees.
    No. 2D09-3335.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.

      Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    Marie Tomassi and Lisa Easier of Tre-nam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellee Wachovia Bank, N.A.
    No appearance for Appellees Florida Funding Trust; Easy Homes 123, LLC, as Trustee of the Marigold # 1441 Trust dated 01/07/06; Lynn Browning, Beneficiary of the Marigold # 1441 Trust dated 01/07/06; and Barbara Collins.
   CASANUEVA, Chief Judge.

Pursuant to a final judgment of foreclosure, the Clerk of Court for Polk County held a foreclosure sale at which Appellant Jose Edilberto Palacios was the successful bidder. After this sale, the circuit court substantially modified the final judgment of foreclosure by reducing the amount the foreclosing first mortgagee, Appellee Florida Funding Trust, was owed on its first mortgage. When the circuit court refused to set aside the sale on Mr. Palacios’ motion to vacate it, he appealed. We reverse.

Background Facts

The facts of this case are undisputed, and only Mr. Palacios and the second mortgagee, Appellee Wachovia Bank, N.A., are interested parties in this appellate proceeding. On April 15, 2008, the circuit court entered a final summary judgment of foreclosure in favor of Florida Funding for $60,136.09. On May 9, 2008, the Clerk conducted the foreclosure sale, at which Mr. Palacios and Florida Funding were the only bidders. Florida Funding bid $40,000 and Mr. Palacios ultimately prevailed with a bid of $41,000. Shortly thereafter, Mr. Palacios moved to release his money from the Clerk because he discovered that there was a second mortgage on the property. Then, on May 19, 2008, Wachovia moved to set aside the foreclosure judgment and the sale, claiming that it had not been properly served in the initial proceedings and that there were substantial unexplained irregularities in the final judgment concerning the proper amount owed to Florida Funding. At the hearing on Wachovia’s motion, the circuit court determined that, instead of more than sixty thousand dollars, Florida Funding was owed in total only $16,427.28 on its first mortgage because its contract did not properly secure future advances on the mortgage. The circuit court denied Wa-chovia’s motion to set aside the final judgment of foreclosure and sale and instead merely modified the final judgment to reflect the newly corrected amount owed to Florida Funding. This postsale modification left over twenty-four thousand dollars in excess of the first mortgage to satisfy junior lien holders like Wachovia. The circuit court also retained jurisdiction to later consider Mr. Palacios’ pending motion to return his money.

Mr. Palacios then amended his pending motion to change tack, claiming that the amended final judgment of foreclosure and foreclosure sale should be vacated because the judgment was substantially modified after the sale was held. He cited section 45.081, Florida Statutes (2007), which states that a judicial sale will be held no sooner than twenty days after entry of the final judgment. His motion argued that allowing the sale to stand when such a substantial change was made to the final judgment would defeat the intent of the statute and result in a fraud on and injustice to the third-party bidder who has a right to rely on the affidavits and judgments filed prior to a sale. The circuit court heard argument on this motion from Mr. Palacios and Wachovia at a hearing but denied the motion. The circuit court reasoned that there were no known irregularities before the sale, distinguishing 601 West 26 Corp. v. Equity Capital Co., 174 So.2d 626 (Fla. 3d DCA 1965), on this point. Further, because the amended final judgment decreased rather than increased the amount due, the circuit court concluded that the third-party bidder was neither disadvantaged at the time of the sale nor thereafter. We do not agree.

Analysis

Wachovia adopts the circuit court’s reasoning on appeal, emphasizing that because there were no irregularities noted before the sale, all requirements of the statute were complied with. This is true but misses the point. The statutory notice requirements are meant to ensure that the public, i.e., a potential third-party bidder like Mr. Palacios, is adequately on notice in order to determine his fair market bidding price at the foreclosure sale. Mr. Palacios was prejudiced here by the faulty original foreclosure judgment because it misled him as to the property’s foreclosure market value. Had the correct amount due to Florida Funding under its first mortgage — approximately $16,427 — been known and set forth in the final judgment of foreclosure at the time of the sale, Mr. Palacios would not have been required to outbid Florida Funding’s interest by offering $41,000; a bid of slightly more than $16,427 would have sufficed. At that point, a junior lienor would have been required to bid more or lose its interest in the foreclosed property. Thus, Wachovia, which had a position subordinate to Florida Funding in the foreclosure sale process, would have been required to bid higher or lose the property. Depending on what a junior lien holder would have done at the sale, Mr. Palacios could have bid higher— or not — depending on his evaluation of his particular circumstances. He may not have had to bid much more than $16,000 to acquire the property.

To conduct a fair foreclosure sale, the correct amount needed to pay off the foreclosing first mortgagee must be known to all potential bidders, be they outsiders like Mr. Palacios or junior lien holders like Wachovia. This is so each bidder can assess the situation corresponding to that bidder’s individual circumstance and decide what the bidder is -willing to pay to protect that bidder’s interest. When the true circumstances became known to the circuit court, it should have set aside the final judgment of foreclosure and the sale. Instead, the process the circuit court utilized conferred a benefit to the subordinate lien holder, and a corresponding detriment to Mr. Palacios, by awarding Wachovia the amount remaining after satisfaction of the first mortgage, a benefit to which Wacho-via was not entitled by law.

Wachovia cites Sundie v. Haren, 253 So.2d 857 (Fla.1971), for the proposition that “[a]s to non-party persons, a purchase at an execution sale pursuant to a judgment afterwards reversed is final.” Id. at 859. Sundie is distinguishable in many respects, not least of which is that the third-party bidder there, unlike Mr. Palacios, was not contesting the final judgment of foreclosure or objecting to the sale. Moreover, the supreme court ultimately dismissed Mr. Sundie’s petition for certiorari, deciding it was without jurisdiction because there was no conflict between the decision on which he sought review, Haren v. Sundie, 233 So.2d 417 (Fla. 3d DCA 1970), and Horn v. Horn, 73 So.2d 905 (Fla.1954). This result left standing the Third District’s decision to reverse and remand to the circuit court with directions to enter a final judgment of foreclosure and proceed with a new foreclosure sale.

Most telling of all is the supreme court’s warning that the result in Sundie “is limited to those situations in which the person required to make restitution was connected with the litigation. It is settled law that reversal of a decree on appeal does not affect the rights under that decree as to persons who were not parties to the appeal.” 253 So.2d at 859. Thus, the supreme court’s dictum in Sundie regarding non-party persons is not controlling here.

It is the Third District’s opinion in Sun-die that is more persuasive here. In its decision, the Third District had stated: “[T]he [foreclosed mortgagors] urge that the final judgment should have ordered a sale of the property so that they might exercise their right of redemption. It is apparent that a sale pursuant to a judgment which has been reversed is not a valid sale.” 233 So.2d at 418 (emphasis added). Thus, although the final judgment of foreclosure sale in Mr. Palacios’ case was not technically reversed on appeal, the circuit court in fact reversed itself when it modified the final judgment by modifying it from $60,136.09 to $16,427.28.

Conclusion

“Whether the complaining party has made the showing necessary to set aside a [foreclosure] sale is a discretionary decision by the trial court, which may be reversed only when the court has grossly abused its discretion.” Ingorvaia v. Horton, 816 So.2d 1256, 1259 (Fla. 2d DCA 2002) (quoting United Cos. Lending Corp. v. Abercrombie, 713 So.2d 1017, 1018 (Fla. 2d DCA 1998)). We conclude that the circuit court grossly abused its discretion in declining to vacate the foreclosure sale when the final judgment of foreclosure was substantially modified after the sale. Mr. Palacios made the necessary showing to set aside the sale and his motion to vacate the sale should have been granted.

Reversed and remanded with directions to vacate the sale and proceed thereon in accordance with established procedure based on the amended final summary judgment of foreclosure filed July 1, 2008, that awarded $16,427.28 to Florida Funding.

KELLY and CRENSHAW, JJ., Concur.

      . Mr. Palacios’ original pleading was an unti-tied pro se "petition” to release purchase money; it was renamed to “supplemental/amended motion to vacate sale,” filed by newly retained counsel.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Darius HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1976.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Rehearing Denied May 7, 2010.

      Carey Haughwout, Public Defender, Paul Petillo and Timothy D. Kenison, Assistant Public Defenders, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

In challenging his convictions for possession of cocaine and resisting without violence, appellant claims that the trial court erred in denying his motion to suppress and motion for judgment of acquittal, which were both based upon his contention that the officers who stopped him lacked reasonable suspicion of a crime. We agree that the totality of the circumstances did not amount to reasonable suspicion that a criminal act had occurred or was about to occur. We reverse.

At the suppression hearing two officers with the Fort Lauderdale Police Department testified that they were working a burglary deterrence action plan on an August evening. Sometime between eleven and midnight they received a dispatch call regarding “a couple of black males standing behind a closed church in a dark alleyway.” The officers drove to the area and stopped, and one of them exited the vehicle and saw two black males sitting under a tree in an area which was half-way between a closed church and an apartment complex. The church and the residences essentially backed up to one another, with an alley in between them. Thus, the backyard of the residential complex was on the alleyway on one side, and the back of the church was on the other side.

Before announcing his presence, the officer observed the men sitting and rummaging into their pockets. He believed that they were in an area “where normal people wouldn’t be,” in the dark behind closed businesses and a church. The officers were on a team to deter burglaries, although the officers never testified that there had been burglaries in the area or that it was a “high crime” area. The officer’s intent at that point was to investigate the men. He did not intend to search them but just to make contact with them.

The officer approached and announced his presence, saying “Police.” He did not order the men to stop. The men stood up and ran around the corner of the residence. The officer followed them and stopped them as they tried to enter the residence, briefly struggling with appellant Hunter. After the officer subdued Hunter, Hunter gave him an incorrect name. The officer arrested him, searched him, and found cocaine.

Based upon the totality of circumstances, the trial court found that the officers had reasonable suspicion of loitering and prowling sufficient to stop Hunter and his co-defendant. The officers had received a dispatch reporting “suspicious activity” of two males sitting behind a closed church in a dark alleyway. The first officer saw the men with their hands in their pockets, and the men ran away when the officers announced their presence. The court determined that when the officers captured Hunter and he gave them an incorrect name, they had probable cause to arrest him. The court denied the motion to suppress.

At trial, Hunter moved for judgment of acquittal as to the resisting arrest charge, arguing that the officers had no basis to order him to stop and thus were not within the lawful performance of their duties. The court denied the motion, and the jury found Hunter guilty on both charges. Hunter appeals the denial of the motion to suppress as well as the denial of the motion for judgment of acquittal.

We review a trial court’s ruling on a motion to suppress as a mixed question of law and fact. A reviewing court presumes the trial court’s findings as to historical facts to be correct but reviews rulings on questions of law de novo. Falls v. State, 953 So.2d 627 (Fla. 4th DCA 2007); Hollingsworth v. State, 991 So.2d 990 (Fla. 4th DCA 2008).

To justify a stop, the police must have reasonable suspicion that criminal activity is afoot. In Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the Supreme Court explained:

While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). The officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity. [Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ].

(footnote omitted). Following Wardlow, our supreme court recently summarized the requirements for a reasonable suspicion stop:

A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. See Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008); see also Popple v. State, 626 So.2d 185, 186 (Fla.1993). In turn, whether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop. See Travers v. State, 739 So.2d 1262, 1263 (Fla. 2d DCA 1999); McCloud v. State, 491 So.2d 1164, 1165 (Fla. 2d DCA 1986).

C.E.L. v. State, 24 So.3d 1181, 1186 (Fla.2009).

Hunter argues that the trial court erred in denying his motion to suppress the cocaine because the evidence failed to show that the officers had a reasonable suspicion that he had committed, was committing or about to commit a crime when they stopped him. The state contends that the totality of the circumstances supported the officers’ suspicion that Hunter was loitering and prowling when they observed him.

In E.C. v. State, 724 So.2d 1243, 1244-45 (Fla. 4th DCA 1999), we explained the elements of loitering and prowling:

To prove a charge of loitering and prowling, under section 856.021, Florida Statutes, the state must prove that (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) the loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. See State v. Ecker, 311 So.2d 104, 106 (Fla.1975). With respect to the first element, the state must establish that the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved. See D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985). The gist of this element is conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime and which must be alarming in nature, pointing toward an imminent breach of the peace or threat to public safety. Id. The statute is not directed at mere idling. Ecker, 311 So.2d at 110; D.A., 471 So.2d at 152.

Moreover, the conduct constituting the offense of loitering and prowling must be complete before any police action occurs. See Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008).

In Hollingsworth, we reversed an order denying a motion to suppress because the officers had not observed any conduct which would satisfy the elements of loitering prior to attempting a stop of the defendant. The officers had been called in the evening to an area of closed businesses because of drug activity. While parked along the street, the officers observed Hollingsworth walking along the street. When she saw the officers, she turned and walked briskly in the opposite direction and disappeared around a corner. The officers pursued her and saw her ducking behind a vehicle. She continued to flee, and the officers detained her. They arrested her for loitering and prowling, and a search revealed drugs.

Because the officers observed no conduct which raised a justifiable and reasonable alarm that a breach of the peace or threat to public safety was imminent, we held that the officers did not have reasonable suspicion to stop Hollingsworth. Mere presence in an area of closed businesses at a late hour was insufficient to raise an alarm of immediate threat to public safety. The mere fact that she fled and attempted to conceal herself after observing the police could not be “retroactively” used to support a suspicion of imminent criminal conduct.

In contrast, where a defendant was observed at 2:15 a.m., secreting himself in hedges between two rooming houses, by an officer who recognized the defendant and knew that the houses were not the defendant’s stated residence, we agreed that such conduct was not usual for law abiding citizens. See Battle v. State, 868 So.2d 587 (Fla. 4th DCA 2004). When the defendant attempted to hide something upon being observed by the officer, we held that the officer had reasonable suspicion that the defendant was loitering and prowling. Thus, the officer had reasonable suspicion to stop the defendant, who tried to walk away from the officer.

In this case, the totality of the facts does not support the conclusion that the defendants were loitering and prowling. The officer received a dispatch reporting a call regarding men in a dark alleyway behind a closed church, which the officers termed a “suspicious incident.” The anonymous report does not provide reasonable suspicion to stop unless the officers themselves observed corroborating evidence. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

When the officers arrived, they observed Hunter and his co-defendant sitting equidistant between residences and a closed church. As in Hollingsworth, mere presence close to closed businesses in the late evening is insufficient to justify alarm of imminent criminal activity. See also D.S.D. v. State, 997 So.2d 1191, 1193 (Fla. 5th DCA 2008). Because they were as close to the residences as they were to the churches, the facts do not suggest that they were engaged or were about to engage in criminal activity. It is equally likely that they were sitting outside their residence enjoying a summer evening.

One officer saw the defendants rummaging in their pockets. Yet we fail to see how rummaging in one’s pockets while seated under a tree in a backyard constitutes an act suggestive of criminal conduct. The officers did not describe this activity as an act of concealment, because the officers had not announced their presence before they observed this conduct.

Although the defendants both fled toward their residence when the officers announced their presence, this flight does not retroactively supply the elements that an officer must observe to satisfy the requirements of loitering and prowling. See Hollingsworth. In the seminal case of State v. Ecker, 311 So.2d 104, 110 (Fla.1975), our supreme court, after stating the two essential elements of loitering and prowling, said, “Clearly, when these elements are established and the individual either refuses or fails to properly identify himself or flees when confronted by a law enforcement office, the offense has been established.” (Emphasis and italics added). Mere flight from officers, without the officers having a factually based reasonable suspicion that criminal conduct either had occurred or was imminent, is insufficient.

Because the facts do not show that the officers had any more than a bare suspicion of any incipient criminal conduct when they approached the seated Hunter, the trial court should have granted the motion to suppress the evidence seized as a result of the stop and seizure. Therefore, we reverse appellant’s conviction for possession of cocaine. Because the cocaine must be suppressed, appellant is entitled to discharge on the charge of possession of cocaine.

We also reverse the denial of Hunter’s motion for judgment of acquittal as to the charge of resisting arrest without violence. To convict for resisting an officer without violence the state must show that: 1) the officer was engaged in the lawful execution of a legal duty; and 2) the action by the defendant constituted obstruction or resistance to the lawful duty. See Blue v. State, 837 So.2d 541, 547 (Fla. 4th DCA 2003). The officers had no reasonable suspicion to stop Hunter. Therefore, they were not engaged in the lawful execution of a legal duty. See Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008). Hunter is entitled to discharge on this crime, as well. Id.

Reversed and remanded with instructions for the court to discharge appellant on both charges.

POLEN and STEVENSON, JJ., concur.

      . At trial the officers testified that the men were sitting in chairs. The chairs were not mentioned at the motion to suppress.

      . The second officer also testified to essentially the same facts.


author: FARMER, J.

text:
    Anthony L. HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3055.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Rehearing Denied May 11, 2010.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

Defendant appeals a conviction for possession of cocaine for sale. We agree the trial court should have granted his motion to suppress evidence obtained in an invalid search.

Two officers, Lucas and Schmidt, were involved in the search and seizure of defendant. Lucas heard that a certain address was a problem area in the community. Residents at homeowners meetings, along with reports from confidential informants, gave Lucas to believe that people might be selling drugs at this residence. He conducted surveillance from an unmarked vehicle.

Defendant arrived at the address late one afternoon and walked up to 3 or 4 people on the front porch. Defendant’s contact with them was very brief. According to Lucas, defendant opened his hand and looked up and down the street. Lucas could not see what was in his hand. Each one of the porch people took something from his hand and handed him money. Defendant pocketed what he received from them and drove away.

Lucas radioed other officers. Schmidt pulled defendant over. He saw defendant reach in the direction of the auto’s center console and toward the floor. Acting on the radio call from Lucas that a narcotics transaction had just taken place, and suspecting possession also of a weapon, he directed defendant to exit the auto. He asked defendant if he had any weapons on him, and defendant said he did not, raising his shirt to show his torso. Schmidt proceeded to perform a search of defendant’s person. As he carried out the search he asked if defendant had anything in his shoes. Defendant responded in the negative. Before he could order defendant to remove his shoes, defendant began doing so. A bag of what appeared to be cocaine lay inside one shoe. Schmidt proceeded to complete the arrest. Defendant was incarcerated, tried and convicted.

Both officers testified as to their experience over many years investigating narcotics transactions. Both told of similar patterns for such transactions. Lucas cited the brevity of the event, the lack of eye contact between the persons involved, the manner of looking up and down the street, and the exchange of paper currency for some object, as all being “consistent with hundreds of transactions I’ve witnessed.”

The only argument made by the state at the suppression hearing to justify the seizure and search of defendant was that police had probable cause of a narcotics violation when they stopped his auto and seized him. Conspicuously, the state made no attempt to argue in the trial court — as it now does on appeal — that defendant consented to the search. We thus proceed to analyze the propriety of the seizure and search solely on the basis of probable cause without consent.

We accept the trial court’s findings of historical fact as correct but review de novo whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling. Parker v. State, 873 So.2d 270, 279 (Fla.2004); see also Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Defendant argues that this case cannot be fairly distinguished from Coney v. State, 820 So.2d 1012 (Fla. 2d DCA 2002). There police watched defendant exchange an object for money in an area known for drug activity and arrests. From their training and experience, they believed they had seen a narcotics violation. They pursued Coney and as they approached perceived he had something in his mouth. They ordered him to spit out the object, and a bag of marijuana emerged. The trial court denied suppression. The Second District reversed, explaining that in spite of their reasonable suspicion to detain, police did not have probable cause to search. “[Tjhey did not see what was in [his] hand ... they did not see what was in [his] mouth ... and they did not see [him] involved in more than one transaction.” 820 So.2d at 1014. “While the officers saw money in Coney’s hand after the transaction, and while they had a suspicion that a crime might have occurred, they did not have probable cause to effect Coney’s arrest before Coney was ordered to empty his mouth.” Id. at 1015.

Similarly, in this case Lucas did not see what defendant exchanged for money. Schmidt did not see what was in his shoe. They did not see him similarly involved in more than one occasion. These patterns on which they rely also occur in innocent public transactions and are not unique to narcotics violations. These patterns may be enough to inform a suspicion for further investigation — perhaps even enough for a Terry stop or a stop under the Florida Stop and Frisk Law — but they fall short of the requirements for probable cause. As in Coney, police did not have probable cause to search him without his consent. See also Robinson v. State, 976 So.2d 1229, 1233 (Fla. 2d DCA 2008) (mere suspicion person is carrying illegal drugs insufficient for probable cause).

Reversed.

WARNER and LEVINE, JJ., concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . § 901.151, Fla. Stat. (2009).


author: GRIFFIN, J.

text:
    James Lee BULLARD, Appellant, v. STATE of Florida and Department of Corrections, Appellees.
    No. 5D09-2520.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2010.
    James L. Bullard, Bonifay, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

James Lee Bullard [“Bullard”] appeals the trial court’s denial of his petition for writ of habeas corpus. We affirm.

In 2008, the State charged Bullard with driving while license revoked as a habitual traffic offender in violation of section 322.34(5), Florida Statutes (2008). Bullard pled nolo contendere to the charge, and he was accordingly adjudicated and sentenced. Thereafter, Bullard filed a petition for writ of habeas corpus with the trial court, alleging he is being illegally detained because the State was allowed to use his pre-1997 convictions to enhance his conviction for driving with a suspended license to a felony in case number 2008-CF-13769, contrary to the Florida Supreme Court’s ruling in Thompson v. State, 887 So.2d 1260 (Fla.2004).

As correctly found by the trial court, habeas corpus is not a proper vehicle to raise this issue, nor is there any merit to his claim.

AFFIRMED.

PALMER and JACOBUS, JJ., concur.


author: PER CURIAM.

text:
    Robert Morris McKELVY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2626.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ibarrondo v. State, 1 So.3d 226 (Fla. 5th DCA 2008), review denied, 19 So.3d 985 (Fla.2009).

WARNER, DAMOORGIAN and LEVINE, JJ., concur.


author: BENTON, J.

text:
    H.K. DEVELOPMENT, LLC., Danny R. Kemp and Thomas B. Henry, Jr., Appellants, v. Michael D. GREER, Appellee.
    No. 1D08-0960.
    District Court of Appeal of Florida, First District.
    April 7, 2010.

      Matthew W. Burns, Destín, for Appellants.
    Hayward Dykes, Jr., of Conerly, Bowman & Dykes, L.L.P., Destín, for Appellee.
   BENTON, J.

We have for review an Order to Compel and an Order of Contempt. Both orders impose monetary fines: Discrete discovery violations were committed in the course of a judgment creditor’s efforts to enforce a consent judgment against appellants. We reverse both orders insofar as they retrospectively impose sanctions payable to the judgment creditor — absent evidence of the amount of damages occasioned by the sanctioned conduct — and remand for further proceedings.

On April 30, 2007, after entry of consent judgment in his favor, Michael D. Greer secured an ex parte order requiring all appellants to file fact information sheets (using Form 1.977 of the Florida Rules of Civil Procedure) within 45 days of the order. The appellants failed to comply with the order.

Later Mr. Greer filed a notice of taking deposition (and served a subpoena duces tecum) in aid of execution, setting the deposition of appellant Thomas B. Henry, Jr., for December 17, 2007. On the scheduled date, Mr. Henry did not appear. He filed a motion for protective order instead, a copy of which was delivered by hand to Mr. Greer’s counsel on the day the deposition was to have gone forward.

On December 20, 2007, Mr. Greer filed a motion to compel Mr. Henry to honor a second subpoena duces tecum and to appear for deposition. The next day Mr. Greer filed a separate motion for contempt asking that the appellants be found in contempt for failure to comply with the trial court’s April 30, 2007 order requiring the filing of completed Forms 1.977. Both motions were heard on January 15, 2008. The trial court disposed of both motions by entering the two orders now before us, the Order [on Motion] to Compel [Discovery] on January 24, 2008, and the Order of Contempt on January 22, 2008.

In its Order to Compel, the trial court sanctioned Mr. Henry (for failing to appear and to comply with the subpoena duces tecum) in the amount of $1,000 per day from December 17, 2007, until the date on which he appeared for deposition with the documents requested in the subpoena duces tecum. The Order to Compel did not find him in contempt, but decreed that Mr. Greer “shall take judgment against Henry for $31,000.00 (December 17, 2007 through January 16, 2007[sic]; 31 days), for which let execution issue.”

In its Order of Contempt, the trial court found all three appellants in contempt for failure to comply with the April 30, 2007 order (requiring them to file Forms 1.977) and sanctioned each in the amount of $100 per day — from June 14, 2007, until the hearing date (and beyond). Ruling that disobedience of its April 30, 2007 order was contempt of court, the trial court decreed that Mr. Greer “take judgment against” each of the three appellants “for $21,000.00 (June 14, 2007 through January 16, 2008; 217 days), for which let execution issue.”

We first consider the Order to Compel. The Order to Compel makes no finding of contempt. See Stewart v. Jones, 728 So.2d 1233, 1234 (Fla. 4th DCA 1999) (holding that the “assessment of a fine in the discovery context must be predicated on a finding of contempt”). See also Channel Components, Inc. v. Am. II Elec., Inc., 915 So.2d 1278, 1283 (Fla. 2nd DCA 2005) (noting that “rule 1.380[, Florida Rules of Civil Procedure,] does not specifically provide for the imposition of a monetary sanction or fine unconnected to the expenses (such as attorneys’ fees) caused by the failure to provide discovery. Thus the assessment of a fine in the discovery context must be predicated upon a finding of contempt.”).

Mr. Greer’s motion to compel requested that the trial court award fees and costs incurred in connection only with the deposition Mr. Henry had failed to attend and the single hearing on the motion. Making no mention of the Forms 1.977, the motion to compel did not seek adjudication of contempt for failure to appear or honor the subpoena.

Even without an adjudication of contempt, a trial court may order a properly noticed party who fails to appear for deposition to make other parties whole for financial losses that the failure to appear causes. Florida Rule of Civil Procedure 1.380(d) provides that, if a party fails “to appear before the officer who is to take the deposition after being served with a proper notice, ... the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust.” The trial court’s implicit findings and conclusions that Mr. Henry’s failure to appear was not justified and that no other circumstances would make an award of expenses unjust are not in question here.

The sanctions in the Order to Compel cannot, however, be upheld on the authority of Rule 1.380(d), because no evidence was adduced at the January 15, 2008 hearing to prove what relationship, if any, the $31,000 sanction bears to “reasonable expenses caused by the failure.” The amount of “reasonable expenses caused by the failure” defines the lawful extent of any sanction under the rule. The $31,000 judgment imposed against Mr. Henry as a sanction for failure to attend the December 17, 2007 deposition must be reversed, and the matter must be remanded for findings on the amount of fees and costs his failure to appear caused, and entry of an order tailoring any sanction accordingly.

We turn now to the Order of Contempt. This order found all three appellants in contempt for failure to comply with the order requiring them each to file Form 1.977 within 45 days. Rule 1.380(b)(2)(D), Florida Rules of Civil Procedure, provides that if “a party ... fails to obey an order to provide or permit discovery” the court may make “an order treating as a contempt of court the failure to obey.” In the Order of Contempt, the trial court did precisely that.

The trial court did not err in finding appellants in contempt for their failure to comply with its April 30, 2007 order. Purposeful disobedience of a court order that has not been stayed or appealed is quintessentially contumacious. See Johnson v. Allstate Ins. Co., 410 So.2d 978, 980 (Fla. 5th DCA 1982) (“A party may not ignore a valid order of court except at its peril. There are avenues of redress by appellate review for orders which may be erroneous, but so long as such orders are entered by a court which has jurisdiction of both the subject matter and the parties, they cannot be completely ignored without running the risk that an appropriate sanction may be imposed.”).

The parties were powerless to amend the court’s order, by their agreement to abate the proceedings or otherwise. See Johnson v. Bednar, 573 So.2d 822, 824 (Fla.1991) (“If a party can make oneself a judge of the validity of orders issued by trial courts, and by one’s own act of disobedience set them aside, then our courts are devoid of power, and the judicial power ... would be a mockery.” (citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911))), receded from on other grounds in Parisi v. Broward County, 769 So.2d 359, 365 (Fla.2000). “[CJourts have the authority to enforce a judgment by the exercise of their contempt powers.” Id.

But the Order of Contempt is ambiguous on the question whether the monetary sanctions it imposes are criminal or civil in nature. The $21,000 judgment resembles a criminal sanction in that the appellants have no “opportunity to reduce or avoid the amount of the fine through compliance.” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). See Parisi, 769 So.2d at 365 (“[A]ny ‘flat, unconditional fine’ is considered a criminal sanction because it does not afford the opportunity to purge the contempt through compliance.” (quoting Bagwell, 512 U.S. at 829, 114 S.Ct. 2552)).

We cannot construe these monetary sanctions as criminal, however, because the moneys are ordered to be paid, not to the fisc, but to a private party. “A fine imposed as a punishment for criminal contempt is to be paid to the state or into the public treasury, and not to the complaining or moving party.” 17 C.J.S. Contempt § 108 (1999). “Fundamentally, a criminal contempt proceeding is between the public and the defendant.” S. Dade Farms, Inc. v. Peters, 88 So.2d 891, 899 (Fla.1956) (“It is not directly a part of the original cause. It involves punishment for an offense against the court itself as distinguished from the commission of an act in derogation of the rights of a party to the cause”). See In re S.L.T., 180 So.2d 374, 378 (Fla. 2d DCA 1965) (In criminal contempt proceedings, “[t]he government, the courts and the people are interested in its prosecution and the state is the real prosecutor,” while the “purpose of civil contempt proceedings is to preserve and enforce rights of private parties to suits and to compel obedience to orders and decrees made for benefit of such parties.”).

The retrospective portions of the monetary sanctions the Order of Contempt imposes are not properly viewed as coercive civil contempt sanctions, either. There is no purge provision: the retrospective portions of these monetary sanctions, based on past failures to obey the court’s order, cannot be avoided. Pro tan-to, these sanctions cannot — and are not designed to — compel performance of any act yet to be taken. (We are not concerned here with any provision of the order under review that looks to the future.) The monetary sanctions at issue were imposed for past noncompliance and, because they are payable to a private party litigant, are lawful only insofar as they compensate the private party litigant for damages the contumacious conduct caused.

“While courts have the unquestioned authority to order a civil contempt fíne to compensate for losses sustained, ‘[i]f compensation is intended, the fine must be based on evidence of the injured party’s actual loss.’ Parisi, 769 So.2d at 366 (citing Johnson, 573 So.2d at 824). See also United States v. United Mine Workers of Am., 330 U.S. 258, 304, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (same); Schoenthal v. Schoenthal, 138 So.2d 802, 803-04 (Fla. 3d DCA 1962) (although the court may coerce performance of a required act by assessment of “a compensatory fine to the extent of the damage suffered to be paid to the party injured by the wrongdoing party,” by “definition a compensatory fine is one which has a relationship to the loss suffered”). The Order of Contempt’s retrospective sanctions cannot be upheld as valid, compensatory, civil contempt sanctions because there is no evidence that the amount of the sanctions has (or any indication it was intended to have) any relationship to the amount of damages suffered as a result of the appellants’ failure to comply with the trial court’s April 30, 2007 order.

“As a general rule the amount of the fine will be limited to the actual damage sustained by the injured party. An award of compensatory damages should not be speculative or conjectural.... Where there is no proof of actual damages, the fine will be merely nominal or will not be imposed at all.” 17 C.J.S. Contempt § 115 (1999) (footnotes omitted). Actual damages incurred by a party to the action is the appropriate measure for a civil contempt sanction payable to the party, including fees and costs. See 17 C.J.S. Contempt § 116 (1999) (“In addition to compensation for loss to the injured party resulting from the contempt, the costs and expenses of the proceeding to punish the guilty party have been allowed.”). See also Levine v. Keaster, 862 So.2d 876, 880 (Fla. 4th DCA 2003) (“If a party is found in contempt, it is proper for the court to compensate the injured party by assessing attorney’s fees for the contempt proceedings.”); Worthington v. Harty, 677 So.2d 1371, 1371 (Fla. 4th DCA 1996) (“As a general rule, attorney’s fees may be awarded as a sanction in civil contempt proceedings without findings as to the parties’ respective need and ability to pay.”); Lamb v. Fowler, 574 So.2d 262, 268 (Fla. 1st DCA 1991) (“the court is empowered, in its discretion, to assess fines and award attorney’s fees and costs as sanctions for civil contempt”). The $21,000 judgment (imposed against each of the appellants for failure to comply with the April 30, 2007 order) must be reversed, and the matter must be remanded as to the Order of Contempt, too, for findings as to actual damages and entry of an order tailoring any sanctions accordingly.

Both the Order to Compel and the Order of Contempt are reversed and the matter is remanded with directions.

HAWKES, C.J. and HANKINSON, JAMES C., Associate Judge, concur.

      . We assume and reaffirm the power of a court to order civil contempt sanctions to coerce compliance with a lawful order where the defendant is "given the opportunity to purge through compliance.” J-II Investments, Inc. v. Leon County, 21 So.3d 86, 88 (Fla. 1st DCA 2009). We do not address possible, prospective sanctions outlined in the orders under review, however, which may never actually result in orders requiring a sum certain to be paid, or in any appealable order. In J-II Investments, Inc., we upheld sanctions designed to coerce compliance with a court order. There the trial court had ordered sanctions prospectively in the event of noncompliance.

      . In the motion, Mr. Henry asserted that the parties had agreed to abate any action to collect the judgment for six months and that the deposition was set prior to expiration of the six-month period.

      . On December 20, 2007, Mr. Greer filed another notice, scheduling Mr. Henry's deposition for January 9, 2008. Mr. Henry did not appear for this deposition, either.

      . The hearing consisted of argument and un-sworn representations of counsel. Counsel for Mr. Greer acknowledged that the parties had agreed to a six-month abatement in exchange for the appellants’ payment of $500,000.00, but noted that there was disagreement regarding when the abatement terminated. Counsel for Mr. Greer asserted the abatement terminated before the scheduled December 17, 2007 deposition, and counsel for Mr. Henry asserted the abatement terminated on January 2, 2008. Although counsel for Mr. Henry made reference to affidavits of Mr. Henry and Mr. Kemp, these affidavits are not in the record on appeal.
      An attorney's "unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.” Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982). Compare Brown v. Sch. Bd. of Palm Beach County, 855 So.2d 1267, 1269-70 (Fla. 4th DCA 2003) (reversing trial court's order sanctioning an attorney for fees and costs incurred when he failed to attend a scheduled deposition because the trial court improperly relied on unsworn statements in finding the failure to attend was not justified and was evidence of bad faith), with Carroll v. Carroll, 936 So.2d 706, 707 (Fla. 4th DCA 2006) (affirming award of attorneys’ fees where award was based primarily on the parties’ financial affidavits which, although not formally placed into evidence, were in the court file and were argued extensively as to their contents at the hearings, without objection).

      . Although the trial court made no finding in the Order to Compel regarding the parties' agreement to a six-month abatement, the fact the sanction was imposed for a period beginning December 17, 2007, implies the trial court found that the agreed abatement period had expired, a finding we would be obliged to accept.

      . Although the trial court's order imposed sanctions in the amount of $1,000 per day from his scheduled deposition date of January 10, 2008, until such date as Mr. Kemp appeared for deposition and produced the requested documents, the trial court apparently later rescinded this portion of the order.

      . Rule 1.410(f), Florida Rules of Civil Procedure, provides that the "[flailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued,” but the Order to Compel did not find Mr. Henry in contempt for failure to obey a subpoena.

      . The separately entered Order of Contempt deals only with appellants' failure to comply with the April 30, 2007 order requiring that Forms 1.977 be filed. The Order of Contempt makes no mention of any notice, subpoena duces tecum or deposition and does not address the events of the following December or January in any way.

      . As recognized in Parisi v. Broward County, 769 So.2d 359, 363-65 (Fla.2000),
      Contempt sanctions are broadly categorized as criminal or civil contempt. Civil contempt sanctions are further classified as either compensatory or coercive sanctions. See Johnson[v. Bednar], 573 So.2d [822,] 824 [ (Fla.1991)]. The same contemptuous conduct may be the subject of both criminal and civil proceedings. The distinction between criminal and civil contempt often turns on the "character and purpose” of the sanctions involved. [Int’l Union, United Mine Workers v.]Bagwell, 512 U.S. [821], 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 [(1994)] (quoting Gompers, 221 U.S. at 441, 31 S.Ct. 492, 55 L.Ed. 797). We have previously explained that "[t]he purpose of criminal contempt ... is to punish. Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court." Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). On the other hand, a contempt sanction is considered civil if it "is remedial, and for the benefit of the complainant.” Bagwell, 512 U.S. at 827-28, 114 S.Ct. 2552, 129 L.Ed.2d 642 (quoting Gompers, 221 U.S. at 441, 31 S.Ct. 492).
      ... The United States Supreme Court explained that a fine is criminal if "the con-temnor has no subsequent opportunity to reduce or avoid the amount of the fine through compliance.” Id. at 829, 114 S.Ct. 2552 (emphasis supplied).
      (footnote omitted).

      . In South Dade Farms, Inc. v. Peters, 88 So.2d 891, 899 (Fla.1956), our supreme court said:
      ... A civil contempt proceeding naturally involves in some measure a transgression against the dignity of the court and the prestige of its order, however, it is in actuality a proceeding between the parties to the cause and is instituted and tried as a part of the main case. It should be considered more nearly in the nature of a civil proceeding between the parties, and to the extent appropriate ndes governing civil causes should apply. When a judgment or decree in favor of one party is disregarded or violated by another party to the injury of the former, it is then appropriate for the injured party to call upon the court to exercise its contempt powers in the enforcement of its decrees for the benefit of the party in whose favor the decree has been entered.
      In an appropriate civil contempt case the court may compel performance of a required act by coercive imprisonment or in the event that the violation of the decree has resulted in damages to the injured party, there is adequate authority to support the assessment of a "compensatory fine” to be paid by the wrongdoing party to the party injured. The expression "compensatory fine" seems to have found its way into the law governing contempt in Gompers v. Buck’s Stove & Range Co., supra.

      . Furthermore, the retrospective monetary sanctions would not be affirmable as coercive civil contempt sanctions because no evidence regarding financial resources of the appellants was presented below. "[I]n imposing both criminal fines or coercive civil contempt fines, the court must consider the financial resources of the contemnor in setting the amount of the fine.” Parisi, 769 So.2d at 366.

      . The rule is different where the purpose of a civil contempt fine is not compensatory but contains a purge provision and is intended to coerce compliance, as in J-II Investments, Inc. v. Leon County, 21 So.3d 86, 88 (Fla. 1st DCA 2009). In such cases, the trial court must set the fine high enough to create an effective incentive for compliance, and enjoys considerable discretion in this regard.


author: WOLF, J.

text:
    Zander KELLY, Appellant, v. Clara COLSTON, k/n/a Clara Collins, Appellee.
    No. 1D09-4853.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Neibra Washington Collins, Tallahassee, for Appellant.
    Ruth Stone of Public Interest Law Center, Tallahassee, for Appellee.
   WOLF, J.

The former husband seeks review of a final judgment determining issues of parental responsibility. The former husband alleges, among other things, that the trial court erred in placing restrictions on his visitation without providing appropriate factual findings. Because of the lack of findings to support the unique restriction imposed in this case, we reverse and remand for further proceedings.

In the final order, the trial court noted it was “concerned that during times the minor child has been left with the [former husband’s] relatives without the [former husband] present, the child has witnessed or been subjected to acts of violence or left without proper supervision.” Based on this finding, the trial court allowed the former husband liberal time-sharing to include Christmas Break, Easter Break, and five weeks over the summer; however, the court directed that:

The Respondent Father must be personally present during all of his timesharing with the minor child. The Respondent Father may not leave the child with relatives or friends during the Father’s timesharing. The Father forfeits his timesharing for any time he is not able to be physically present with the minor child. The Petitioner Mother is allowed to pick the child up at any time the child is left unsupervised by the Respondent Father.

A trial court is required to “determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child ....”§ 61.13(2)(c), Fla. Stat. (2009). The determination of the best interests of the child shall be made by evaluating over 20 factors affecting the welfare and interests of the child. § 61.13(3), Fla. Stat. (2009). While a trial court need not address each of these factors independently, a trial court must make a finding that the time-sharing schedule is in the child’s best interests. Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002) (citing Duchesneau v. Duchesneau, 692 So.2d 205 (Fla. 5th DCA 1997)).

Here, the trial court’s order, while initially appearing to grant liberal time-sharing, in fact, severely limits the former husband’s visitation. Visitation is limited to only those periods in which the former husband is not working and is personally able to be with the minor child. He is totally restricted from leaving the child with any member of his family or any of his friends. While certain allegations were made in a pre-hearing Motion for Testimony and Attendance of Minor Child which, if true, support a total limitation of unsupervised visitation as opposed to the limitation ordered, the trial court made no findings as to those allegations and the findings made were insufficient to support the unique remedy fashioned here.

The severe restriction imposed in this case must be accompanied by specific findings concerning the frequency, nature, and severity of the violence as well as details concerning what role family members and friends played in the alleged violent behavior. The order is also silent as to what extent the husband’s employment situation would allow him to comply with the trial court’s order. Without these specific findings, it is impossible for us to conduct appropriate appellate review.

The order of the court determining visitation with the minor child is reversed and the case is remanded to the trial court for entry of a new order or to conduct further proceedings as it deems appropriate to address the best interests of the child. However, the present order shall remain in effect until the trial court enters a new order upon remand.

LEWIS and MARSTILLER, JJ., concur.

       We unfortunately do not have a transcript of the proceedings in the trial court to enlighten us as to the trial court's reasoning. While normally the lack of a transcript (even after the parties were given the opportunity to provide one) would mandate affirmance, we are not precluded from reviewing errors which appear on the face of an order. Harris v. McKinney, 20 So.3d 400, 403 (Fla. 2d DCA 2009) (citing Baratta v. Valley Oak, 891 So.2d 1063, 1065 n.4 (Fla. 2d DCA 2004)).


author: KAHN, J.

text:
    Michael Jay EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-798.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Nancy A. Daniels, Public Defender; and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General; and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

A jury found Michael Jay Evans (appellant) guilty of actual or constructive possession of two controlled substances (Counts Two & Four) and possession of drug paraphernalia, including pipes or other items used with controlled substances (Count Five). Appellant argues the trial court erred, in pertinent part, by denying a motion for judgment of acquittal (JOA) on Counts Two and Four, where the circumstantial evidence was insufficient to establish that appellant constructively possessed the controlled substances. On this argument, we reverse the judgment and sentence on these two counts. The evidence supports appellant’s conviction in Count Five, for which the trial court sentenced him to time served.

FACTUAL & PROCEDURAL BACKGROUND

Officers with a search warrant went to appellant’s residence, where their search disclosed a duffel bag atop the bed in the master bedroom. A confidential informant had identified this bedroom as appellant’s but did not identify who owned the duffel bag. Inside the bag, officers found appellant’s passport, a memo book, and a small travel toiletry bag. Inside the toiletry bag, they discovered a glass smoking device and a pain reliever bottle containing miscellaneous pills, eventually analyzed and identified as MDMA and Carisoprodol. During the search, appellant, another man, and appellant’s daughter were in the residence. Also, the confidential informant, appellant’s relatives, and several other people frequently visited or stayed at the residence. Some of these visitors had ready access to the master bedroom and had stored illicit drugs there.

The defense theorized the premises were under joint possession and because the officers did not find the contraband on appellant’s person, his mere occupancy of the residence could not establish the necessary elements of constructive possession. Defense counsel, on that basis, moved for JOA on Counts Two and Four. The trial court denied the motion.

ANALYSIS

We review de novo the denial of a motion for JOA to determine whether the evidence is legally sufficient to prove the charged offense. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). “[Wjhere a conviction is based wholly upon circumstantial evidence, a special standard of review applies.” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (stating the evidence must be inconsistent with any reasonable hypothesis of innocence, an issue of fact for the jury to decide based on competent substantial evidence).

“Proof of possession of a controlled substance may be actual or constructive.” Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009); see § 893.13(6)(a), Fla. Stat. (2007). Constructive possession exists where the accused does not have physical possession of the contraband but knows of its presence on or about the premises and can maintain dominion and control over it. See Brown v. State, 428 So.2d 250, 252 (Fla.1983). The charges in Counts Two and Four referred to the pills hidden in a pain reliever bottle inside a small black travel toiletry bag, which itself was inside the duffel bag. Someone placed appellant’s passport inside the duffel bag. Other occupants of the residence had access to the master bedroom, but no one had actual physical possession of the duffel bag and its contents at the time of the search. The State adduced no fingerprints from the duffel bag or on the pain reliever bottle, nor did the officers ask who owned the pill bottle.

Because the premises where the officers found the contraband were in joint, rather than exclusive, possession, one cannot infer either the “knowledge” or “ability to maintain dominion and control” element from mere ownership of the residence or proximity to the contraband. The State must establish both elements by independent proof. See id.; Taylor, 13 So.3d at 80-81.

Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.

Robinson v. State, 936 So.2d 1164, 1167 (Fla. 1st DCA 2006) (quoting Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981)). Questioning what “independent proof’ the prosecution offered to prove constructive possession of MDMA and Carisoprodol in the jointly occupied premises, appellant relies on S.B. v. State, 657 So.2d 1252 (Fla. 2d DCA 1995) (concluding that the State failed to prove S.B. constructively possessed marijuana found in a grocery bag in the trunk of a car carrying him and several other passengers, where, although S.B. admitted owning the bag, the officer never asked if S.B. owned the container in which the marijuana was found, never inventoried the contents of the bag, and never obtained fingerprints from the container); and N.K.W. v. State, 788 So.2d 1036 (Fla. 2d DCA 2001) (concluding the evidence failed to show N.K.W. ■constructively possessed LSD found inside a baggy in his wallet, as the wallet was located in plain view on a bedroom closet shelf to which many people attending a party had access, N.K.W. did not admit owning the LSD, officers obtained no fingerprints from the baggy, and no direct evidence established his knowledge of the presence of the contraband).

By analogy to S.B., the evidence here showed appellant jointly occupied the residence and the master bedroom where the officers found the contraband hidden inside the duffel bag. The evidence did not show who owned the duffel bag. S.B. had admitted ownership of the grocery bag, yet that admission, along with mere location, did not suffice to prove constructive possession in a jointly occupied car. See 657 So.2d at 1253. The district court in N.K.W. applied the same analysis used in S.B., concluding the State did not present independent proof of the accused’s knowledge of the presence of drugs in his wallet. See N.K.W., 788 So.2d at 1037-38.

Here, the State relies solely upon the presence of appellant’s passport in the outer duffel bag to argue that it made a satisfactory prima facie case of possession of the contraband secreted inside the travel toiletry bag, itself enveloped in the duffel. The State does not attempt to grapple with either S.B. or N.K.W.

The required analysis for a constructive possession case where the premises, including the master bedroom, are jointly occupied, leads us to conclude the State offered no independent proof that appellant knew about the hidden controlled substances. See Cook v. State, 571 So.2d 530, 531 (Fla. 1st DCA 1990) (concluding the circumstantial evidence did not support a conviction of constructive possession of a crack pipe found in the defendant’s purse after the police raided a dance bar, where the defendant was performing on stage and lacked exclusive dominion and control over the place on the bar where the contraband was found near patrons of the establishment, and the State offered no independent proof of her knowledge of, or ability to control, the contraband); McClain v. State, 559 So.2d 425, 426 (Fla. 4th DCA 1990). The presence of appellant’s passport in the duffel bag suggests he could have placed the passport there. Such an inference, however, provides no time frame with regard to when the contraband came to reside in the bag, nor any help as to appellant’s present dominion over the contraband. Without more, the mere presence of the passport is no better proof of appellant’s knowledge of, and dominion over, the contraband than S.B.’s acknowledgment of ownership of the grocery bag or N.KW.’s admission of ownership of the wallet where officers found the drugs. Accordingly, we REVERSE the convictions and sentences for Counts Two and Four and REMAND with instructions to the trial court to discharge appellant for these offenses.

BENTON and ROBERTS, JJ., concur.


author: CRENSHAW, Judge.

text:
    Christina TILLOTSON, n/k/a Christina Sanchez, Appellant, v. Robert TILLOTSON, Appellee.
    No. 2D09-4288.
    District Court of Appeal of Florida, Second District.
    April 14, 2010.
    James E. Rawe, Bradenton, for Appellant.
    Laurie E. Baker of Laurie E. Baker, P.A., Bradenton, for Appellee.
   CRENSHAW, Judge.

Christina Tillotson, the Former Wife, appeals the trial court’s order denying her request to relocate with the parties’ children and temporarily granting Robert Til-lotson, the Former Husband’s, request for the same. We reverse the trial court’s order as it applies to the parties’ son, Dustin Tillotson, because Dustin Tillotson was no longer a minor child at the time of the relocation hearing. We affirm the trial court’s order on all other grounds because the record before this court is inadequate to demonstrate reversible error.

In 1997, the trial court entered a final judgment of dissolution of marriage providing the parties with shared parental responsibility of their two children, Dustin Tillotson, born July 2,1991, and B.T., born August 3, 1995. In November 2008 and March 2009 both parties filed a “notice of intent to relocate with children” pursuant to section 61.13001(3), Florida Statutes (2008), and the matter was heard August 24, 2009. Following the hearing, the trial court denied the Former Wife’s request to relocate the parties’ children to Illinois and temporarily granted the Former Husband’s request to relocate the children to North Carolina. This appeal follows.

A trial court’s order regarding relocation is reviewed on appeal under an abuse of discretion standard. Muller v. Muller, 964 So.2d 732, 733 (Fla. 3d DCA 2007) (citing Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003)). However, this court is unable to determine whether the order is supported by substantial competent evidence because the record before us does not contain a transcript from the relocation hearing, which was held without the presence of a court reporter. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Therefore, the order must be upheld to the extent that it is not erroneous as a matter of law. See Hoirup v. Hoirup, 862 So.2d 780, 782 (Fla. 2d DCA 2003) (“[W]here a trial transcript or proper substitute does not appear in the record on appeal, the trial court’s order must be upheld unless the order is fundamentally erroneous on its face.”).

We find that the trial court erred as a matter of law in entering the order of relocation as to the parties’ son, Dustin Tillotson, who was no longer a minor child at the time of the hearing. Section 61.13001(l)(b) defines “child” as “any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law.” The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) defines “child” as “an individual who has not attained 18 years of age.” § 61.503(2). Because Dustin Tillotson was eighteen years old at the time of the hearing, he no longer qualified as a child under the UCCJEA and was not subject to relocation under section 61.13001. Therefore, we find the court erred as a matter of law in granting the Former Husband’s request to relocate as it applies to Dustin Tillotson.

Accordingly, we reverse the order temporarily granting the Former Husband’s request to relocate as it applies to Dustin Tillotson, and we affirm on all other grounds.

Reversed in part; affirmed in part.

CASANUEVA, C.J., and KELLY, J„ Concur.


author: DAMOORGIAN, J.

text:
    Leon COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2492.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    .Leon Cooper, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Leon Cooper, appeals the trial court’s summary denial of his 3.800(a) motion to correct an illegal sentence in which he seeks resentencing due to a computation error in his sentencing score-sheet. In the proceedings below, the trial court denied Cooper’s motion, concluding that the error was so minimal that a correction would have only a de minimus effect and resentencing was unnecessary. Cooper argues that the trial court erred because his sentence of 288 months was based on miscalculations in his scoresheet. The State concedes that Cooper’s original scoresheet was incorrect and that Cooper’s maximum sentence under the corrected scoresheet is 285.5 months. - Nonetheless, the State argues that the error is de mini-mus and, therefore, resentencing is not required. We disagree with the State’s position and reverse and remand the trial court’s summary denial of Cooper’s claim with instructions that Cooper be resen-tenced with a corrected sentencing score-sheet.

Ordinarily, if correcting an erroneous sentencing scoresheet results in an “essentially de minimus” change, a claim for resentencing is without merit where the corrected score still falls within the same sentencing bracket. See Colon v. State, 738 So.2d 1023, 1024 (Fla. 4th DCA 1999); Brooks v. State, 969 So.2d 238, 243 (Fla.2007) (“[I]f the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless.”).

In this case, Cooper’s sentencing score-sheet error was not de minimus because Cooper was sentenced to 288 months, but a corrected scoresheet permits a maximum sentence of only 285.5 months. Therefore, the trial court could impose a maximum sentence of only 285.5 months. See Brooks, 969 So.2d at 243.

Accordingly, we reverse and remand for resentencing.

Reversed and Remanded.

FARMER and HAZOURI, JJ., concur.


text:
    J.R., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 4D09-2306.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    J. Patrick Reynolds, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, Children’s Legal Services, West Palm Beach, for appellee.
    Laura E. Lawson, Tavares, for Guardian ad Litem Program.
   PER CURIAM.

Affirmed. See E.I. v. Dep’t of Children & Families, 979 So.2d 378 (Fla. 4th DCA 2008).

POLEN, LEVINE, JJ., and GREENHAWT, SUSAN F„ Associate Judge, concur.


text:
    Aaron LAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-400.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Rehearing Denied May 10, 2010.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Dickerson v. State, 783 So.2d 1144 (Fla. 5th DCA 2001) and Royal v. State, 784 So.2d 1210 (Fla. 5th DCA 2001).

TAYLOR, CIKLIN and GERBER, JJ„ concur.


author: STEVENSON, J.

text:
    Kristy S. HOLT, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D09-3015.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Philippe Symonovicz of the Law Offices of Philippe Symonovicz, and Jerome R. Schechter, Fort Lauderdale, for appellant.
    Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for appellee.
   STEVENSON, J.

In this mortgage foreclosure case, the bank filed a complaint seeking to foreclose on a mortgage on real property located in Broward County, Florida. Holt, the out-of-state owner of the real property, was personally served with process at her California home and, when she failed to file an answer, a default was entered. Several months later, the non-resident property owner filed a motion to quash service of process and vacate the default, asserting the complaint did not allege facts that would support the exercise of personal jurisdiction under Florida’s long-arm statute. The trial court accepted the property owner’s argument and found that it lacked the personal jurisdiction necessary to enter a deficiency judgment, but refused to quash service of process as it had in rem jurisdiction over the Florida real property. The court vacated the default and afforded the property owner the opportunity to file an answer. Both parties have challenged the trial court’s July 13, 2009 order. We affirm the order appealed in all respects, save the trial court’s finding that it lacked personal jurisdiction over the non-resident property owner and write primarily to address that issue.

Prior to 1993, section 48.193(l)(c), Florida Statutes, provided that “[ojwning, using, or possessing any real property within this state” was sufficient to give rise to personal jurisdiction provided the cause of action arose from such ownership, use, or possession. Ownership of real property in Florida was thus held sufficient to establish personal jurisdiction where the cause of action arose from such ownership. See Nichols v. Paulucci, 652 So.2d 389, 392 n. 5 (Fla. 5th DCA 1995); cf. Damoth v. Reinitz, 485 So.2d 881, 883 (Fla. 2d DCA 1986).

In 1993, the legislature amended subsection (l)(c), adding the words “holding a mortgage or other lien on,” such that the statute now provides “[ojwning, using, possessing, or holding a mortgage or other lien on any real property within this state” gives rise to personal jurisdiction. Despite the appellant’s argument to the contrary, we do not believe that the amendment eliminated the ownership of real property as a basis for the establishment of personal jurisdiction and the exercise of long-arm jurisdiction. In context, the amended statute is more reasonably read as extending personal long-arm jurisdiction to those “holding a mortgage or other lien on” real property in Florida, rather than eliminating the long-standing jurisdictional basis for those “owning ... real property within this state.” The complaint in this case alleged Holt’s ownership of Florida real property and thus the trial court erred in ruling it lacked the personal jurisdiction necessary to support the entry of a deficiency judgment.

As for that portion of the trial court’s order which vacates the default, we find that the bank failed to meet its burden of establishing error. The instant case is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part; Reversed in pari; and Remanded.

GROSS, C.J., and POLEN, J., concur.


author: STEVENSON J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee, Under the Pooling and Servicing Agreement Relating to Impac Secured Assets Corp. Mortgage Pass-Through Certificates, Series 2006-5, Appellant, v. CORAL KEY CONDOMINIUM ASSOCIATION (AT CAROLINA), INC., and Dario Luna, Appellees.
    No. 4D09-3392.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Jack R. Reiter and Jordan S. Kosches of Adorno & Yoss LLP, Miami, for appellant.
    Steven A. Fein and Shelley J. Murray of Fein & Meloni, Esqs., Plantation, for ap-pellee Coral Key Condominium Association (at Carolina), Inc.
   STEVENSON J.

On May 12, 2008, Deutsche Bank National Trust Company filed a mortgage foreclosure complaint, naming the unit owner, Dario Luna, as well as the Coral Key Condominium Association (at Carolina), Inc., as defendants. After seven months of no record activity, the Association filed a motion to compel Deutsche to proceed with the foreclosure sale or pay monthly assessments due to the Association. The trial court granted the motion, explaining that it was fair and equitable for the mortgage holder to pay monthly assessments due to the Association if there is an extended period of delay in the foreclosure proceeding for no good reason. We reverse.

After the trial court entered the order appealed, the Third District issued U.S. Bank National Ass’n v. Tadmore, 23 So.3d 822 (Fla. 3d DCA 2009), which addressed this precise issue. In Tadmore, the court rejected the notion that equity and fairness support an order requiring a bank to pay condominium assessments while foreclosure proceedings are pending since section 718.116(1)(b), Florida Statutes (2009), makes it clear that the first mortgagee is required to pay assessments only after acquiring title, and equity follows the law. Id. at 823-24. We agree with Tadmore and reverse.

Reversed and remanded.

GROSS, C.J., and POLEN, J., concur.


text:
    J.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-392.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

We reverse the trial court’s assessment of $50 in court costs against J.C. under section 775.083(2), Florida Statutes (2008), because a trial court may impose court costs on a juvenile under this section only when he or she is adjudicated delinquent. See C.M.S. v. State, 997 So.2d 520, 521 (Fla. 2d DCA 2008); T.L.S. v. State, 949 So.2d 290, 292 (Fla. 5th DCA 2007). The trial court withheld J.C.’s adjudication in this case.

While the State concedes the trial court’s error, it nonetheless argues that the court should have imposed on J.C. the $50 statutorily-mandated cost for the Crimes Compensation Trust Fund under section 938.03(1), Florida Statutes (2008). We need not address this issue because the State did not raise this argument on cross appeal, or in a motion to correct disposition or commitment error under Florida Rule of Juvenile Procedure 8.135(b) filed prior to or pending the instant appeal.

Accordingly, we reverse and remand for the trial court to strike the $50 court cost assessment against J.C. under section 775.083(2).

Reversed.

WARNER and LEVINE, JJ., concur.


text:
    John W. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2488.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    John W. Harris, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

John Harris appeals the summary denial of his Rule 3.850 motion for postconviction relief. Harris entered a plea to robbery. The parties stipulated to a factual basis at the plea hearing but no record support for the factual basis was identified. Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (“[A] stipulation with no factual basis in the record is insufficient”). The state concedes that remand is necessary. See Guevara v. State, 647 So.2d 887 (Fla. 4th DCA 1994) (remanding for an evidentiary hearing or attachment of records — including the probable cause affidavit — which might refute movant’s postconviction claim).

In his sworn motion, Harris alleges that he took the victim’s bicycle as she entered a store. She came outside and confronted him, and Harris apologized and gave the bicycle back. He argues that he at no time used any “force, violence, assault, or putting in fear” necessary to support a robbery offense. § 812.13(1), Fla. Stat. (2008). See also § 812.13(3)(b), Fla. Stat. (2008) (defining when an act will be deemed to have occurred “in the course of the taking”).

“An appellant can challenge the factual basis for his plea in a rule 3.850 motion.” Franklin v. State, 645 So.2d 166, 166 (Fla. 4th DCA 1994) (remanding for attachment of records or evidentiary hearing on issue of whether a factual basis existed for defendant’s plea). In a postconviction motion, a movant must establish that plea withdrawal is necessary to correct a manifest injustice. Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993). See also Fla. R.Crim. P. 3.172(j) (requiring showing of prejudice).

Harris’ claim that no factual basis existed for the robbery, and that counsel was ineffective in permitting him to plead under these circumstances, is legally sufficient and not refuted by attached records. See, e.g., Young v. State, 935 So.2d 1263 (Fla. 2d DCA 2006); Benavidez v. State, 749 So.2d 528 (Fla. 2d DCA 1999); State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999). We reverse and remand for an evidentiary hearing or attachment of records refuting the claim.

On remand, Harris’ claim may be refuted by attachment of discovery documents — such as police reports, probable cause affidavits, or depositions — establishing that a factual basis actually existed for the robbery. The salient question is whether the undisputed facts support only a misdemeanor petit theft and not a robbery.

Reversed and remanded.

WARNER, MAY and GERBER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Jesus GONZALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5674.
    District Court of Appeal of Florida, Second District.
    April 23, 2010.
    Jesus Gonzales, pro se.
   NORTHCUTT, Judge.

Jesus Gonzales appeals the summary denial of his motion seeking credit for time served, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order denying the claims it addressed; however, we remand this case to the postconviction court for further proceedings on the additional claims of credit that the court failed to address.

In its order denying Mr. Gonzales’s motion, the postconviction court failed to determine whether Mr. Gonzales is entitled to credit for fourteen days between January 2003 and February 2003, allegedly spent in the Hillsborough County jail, and for four months and two weeks between February 2003 and July 2003, allegedly spent in a south Florida evaluations and treatment facility. To the extent Mr. Gonzales’s allegations are true, he is certainly entitled to credit for time spent in the Hillsborough County jail between January and February 2003. He may also be entitled to credit for time spent in a treatment facility. See Tal-Mason v. State, 515 So.2d 738, 740 (Fla.1987) (holding that a defendant must be granted credit for time served “in any institution serving as the functional equivalent of a county jail”).

Because the postconviction court failed to address two of Mr. Gonzales’s claims for credit, we must remand this case for further proceedings.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.