author: WARNER, J.

text:
    Jimmy TURNER a/k/a Tommie Wilson, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2678.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.

      Carey Iiaughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Jimmy Turner, was convicted of fleeing and eluding a law enforcement officer, giving a false name to an officer, and driving while license suspended. He contends that the trial court erred in failing to grant his motion for judgment of acquittal based upon his defense of duress to the fleeing and eluding charge. Because the evidence supporting his defense, namely his own testimony, was rebutted, we affirm. He also moved for judgment of acquittal on the charge of driving while license suspended. Because the state failed to prove the element of knowledge of the suspension, we reverse that conviction.

While on road patrol one evening, a law enforcement officer observed a vehicle operating without headlights. The officer activated his lights and siren and attempted to conduct a traffic stop. The vehicle continued eight blocks without slowing down, turned onto another street, continued one more block, and then turned again into a shopping plaza before coming to a stop. The officer testified that the vehicle did not stop at all when it got to the street where it turned. Two passengers, one of whom was carrying a handgun, exited the vehicle and fled. The officer approached Turner, the driver. At the time Turner was out on bond on another felony. Turner gave the officer a false name, and he was booked into jail under that name. He also told the officer that he did not know his passengers.

At trial, Turner presented a duress defense, claiming that his cousin and a friend were the passengers with him in the vehicle. When the officer turned on his lights and sirens, his cousin “flipped out” and told him to go on. He drove about eight blocks with his cousin screaming at him not to stop. At a corner, Turner stopped but his cousin demanded that he continue to drive. His cousin told him that he had bullet proof vests and masks in the vehicle. The cousin was also wanted on an outstanding warrant. Turner, however, was worried that he was in his girlfriend’s car, and the police could take the car if he continued to “go away.” Then his cousin “pulled it out.” Turner then turned the corner. He eventually stopped in a shopping plaza where his cousin and the passenger fled.

On direct, Turner also told his attorney that he never saw the gun. Then he testified that his cousin’s friend was holding it and running away. Yet on cross-examination he said he actually saw the gun.

Turner admitted that he told the officer that he did not know the names of the people in the car, and he never told the officer that he had been threatened by them. He explained this by saying they were “blood.” He also testified that he did not give the officer his real name, because he was a convicted felon and felt he would not be well-treated by the officer. Defense counsel moved for a judgment of acquittal, which the trial court denied. The jury convicted Turner of all charges, and Turner appeals.

Turner claims that he presented, as a defense to the charge of fleeing and eluding, unrebutted evidence that he was under duress. As well, he asserts that the state presented no evidence that he knew that his license was suspended. Therefore, as to those two charges he claims that the trial court erred in denying his motion for judgment of acquittal.

A de novo standard of review applies in reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). A court should grant a motion for judgment of acquittal only if “the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. The court should submit the case to the jury “[w]here there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts.” Id. Generally, an appellate court will not reverse a conviction supported by competent substantial evidence. Pagan, 830 So.2d at 803. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.

Turner submits that his testimony as to the claim of duress, which would exonerate his conduct, was unrebutted. Therefore, it must be accepted by the trier of fact, and the trial court must enter a judgment of acquittal. In Dudley v. State, 511 So.2d 1052, 1057-58 (Fla. 3d DCA 1987), the court succinctly stated the impact of a criminal defendant’s testimony:

It is well settled in Florida that a defendant’s otherwise reasonable, unrebutted, and unimpeached testimony in a criminal case must be accepted by a trier of fact and — if such testimony is entirely exonerating, the trial court is obligated to enter a judgment of acquittal for the defendant on the crime charged. On the other hand, where the defendant’s exonerating testimony (a) is not reasonable on its face, or (b) is contradicted by other evidence in the case, or (c) is otherwise impeached, the trier of fact is privileged to reject such testimony and convict the defendant of the crime charged, providing, of course, there is otherwise sufficient evidence of guilt,

(footnote omitted). The issue of an affirmative defense should not be resolved by a judgment of acquittal and should be submitted to the jury where the facts are disputed. See Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002).

To prove the defense of duress, a defendant must demonstrate six elements:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

Driggers v. State, 917 So.2d 329, 331 (Fla. 5th DCA 2005) (citing Fla. Std. Jury Instr. (Crim.) 3.6(k)).

Moreover, as this court has articulated:

A threatened harm that is “impending” is not only one that is “temporal, i.e. about to take place, but includes whether there is, no matter the lapse of time, a reasonable opportunity to escape the compulsion without committing the crime.” Wright v. State, 402 So.2d 493, 497 n. 6 (Fla. 3d DCA 1981). An “imminent” danger is one which cannot be guarded against by calling for the protection of the law. Id. Thus, the defense does not apply where a defendant has an opportunity to escape the compulsion without committing the crime. Id.; see Gahley v. State, 567 So.2d 456, 459 (Fla. 1st DCA 1990); Corujo v. State, 424 So.2d 43, 44 (Fla. 2d DCA 1982).

Mickel v. State, 929 So.2d 1192, 1196 (Fla. 4th DCA 2006).

Turner provided equivocal testimony as to the elements of duress. While he testified that his cousin “flipped out” when the officer turned on his lights in an attempt to stop the vehicle, Turner did not mention the gun or any use of force until his cousin told him to turn onto another street. Thus, the evidence is equivocal as to whether the threat of harm was real when he eluded the police for eight blocks. Moreover, his testimony regarding the gun was not consistent, having testified at one point that he never saw the gun and that the friend, not his cousin, was carrying the gun. Secondly, the threat came from his cousin who allegedly pulled the gun on him, yet he refused to divulge his name or this danger to the officers when he finally did stop, because his cousin was “blood.” His explanation that he would not divulge the name of someone who has threatened his life and was capable of inflicting mortal harm simply because he is a relative is less than reasonable. Finally, the officer contradicted his testimony, because the officer testified that Turner did not stop before he turned the corner to the second street, while Turner testified that he did stop. Because Turner’s testimony was not completely reasonable and unrebutted, the court did not err in denying the motion for judgment of acquittal and submitting the case to the jury.

On the motion for judgment of acquittal as to the charge of driving with a suspended license, Turner argued that the state did not present any evidence that he knew his license had been suspended, and he testified that in fact he did not know of it. The Department of Motor Vehicles had suspended his license for failure to pay traffic fines. Its record, admitted into evidence, shows that notice of the suspension was sent to Turner pursuant to section 322.251, Florida Statutes.

Section 322.34(2)(a) provides that a person whose driver’s license has been suspended who, knowing of such suspension, drives any motor vehicle upon the highways of this state while such license is suspended, is guilty of a second-degree misdemeanor. Knowledge is satisfied if the person was previously cited for driving with a suspended license, the person admits to knowledge of the suspension, or the person received notice by way of a judgment or order suspending the driver’s license. § 322.34(2), (4), Fla. Stat. The state did not offer evidence that the defendant received the notice from the Department. Thus, it did not prove that he had knowledge of the suspension. See Brown v. State, 764 So.2d 741 (Fla. 4th DCA 2000). Although the state sought to rely on a rebuttable presumption that the knowledge requirement was satisfied because there was a notation on the Department’s records that a judgment or court order had been entered suspending his license, the presumption does not apply to the administrative suspension for failure to pay traffic fines. See § 322.34(2), Fla. Stat.; Brown, 764 So.2d at 744; see also Haygood v. State, 17 So.3d 894 (Fla. 1st DCA 2009).

While the driving record did not prove that Turner had knowledge of his suspended license, the state contends that it presented other evidence from which knowledge could be reasonably inferred. See § 322.34(3), Fla. Stat. (“In any proceeding for a violation of this section, a court may consider evidence, other than that specified in subsection (2), that the person knowingly violated this section.”). Specifically, Turner fled and eluded the police officer who attempted to stop him, and, when he finally stopped, Turner gave the officer a false name. That evidence is equivocal at best to prove knowledge of the suspension. Turner was out on bond on another felony charge. He knew that one of his passengers, his cousin, was wanted on a warrant. His cousin told him that they had masks and bullet proof vests in the vehicle. The cousin and the other passenger escaped from the vehicle, one with a gun. Turner could have been fleeing the officer because of any of these factors. For instance, being a four-time convicted felon, he may have been concerned with being apprehended with a firearm in his vehicle. The evidence does not exclude these other equally reasonable inferences. And in this case, his direct testimony that he did not know his license was suspended because he had not received notice of it was not rebutted or challenged.

In opposing the motion for judgment of acquittal the prosecutor relied on the re-buttable presumption, which Brown shows is not applicable to this case. Moreover, the state erroneously argued to the jury that the DMV record created a rebuttable presumption of knowledge, and the trial court instructed the jury on the statutory requirements and rebuttable presumption, never informing the jury that it could rely on other evidence from which knowledge could be inferred. On this record, we are compelled to reverse the conviction, as the state did not prove the element of knowledge to support the charge of driving while license suspended.

Turner also argues that the trial court erroneously denied his motion to discharge counsel so that he could retain private counsel. The record, however, does not show that Turner ever requested to discharge his counsel. On the day of trial, he asked the court if he could hire his own counsel, but the court denied the request unless private counsel was present in the courtroom. Counsel was not present, nor is it clear that private counsel had actually been retained. The public defenders assigned to represent Turner told the court they were ready to try the case but admitted that their first conversation with Turner was the day before. Turner had been in prison and had just been returned to Broward County for this trial. He told the court that he did not know about the trial until he was transferred to Broward. The public defender told the court that Turner had wanted them to call a witness but they informed him that it was too late to list a witness. The public defenders did not request a continuance, and the court seemed anxious to get the case to trial as it had been pending for ten months. Turner had not sought to hire counsel during that ten-month period until he appeared for trial. Under these circumstances, the court did not err in denying his request for private counsel. See, e.g., Evans v. State, 741 So.2d 1190 (Fla. 4th DCA 1999).

We affirm the convictions for fleeing and eluding and giving a false name. We reverse the conviction for driving on a suspended license with directions to vacate the conviction and sentence.

LEVINE, J. and McCANN, JAMES, Associate Judge, concur.


source: Caselaw Access Project

author: MAY, J. GERBER, J.,

license: Public Domain

text:
    Christina BENEMERITO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-558.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied March 30, 2010.
    Mardi Levey Cohen of Law Office of Mardi L. Cohen, P.A., Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, J.

The defendant appeals her conviction and sentence for possession of cocaine with intent to deliver. She argues the trial court erred in denying her motion to suppress. We agree and reverse.

On May 7, 2008, an officer was patrolling the parking lot of Walgreens due to numerous complaints of drug transactions at the store and surrounding area. While on duty, the officer observed a parked vehicle at the entrance of the pharmacy. Thereafter, a truck entered the parking lot and parked a few spaces away from the vehicle under observation.

The defendant then entered the lot and parked her vehicle near the truck. The truck’s driver walked to the defendant’s vehicle, spoke briefly to the driver, and entered the backseat. While the officer could not see what was in the defendant’s hand, he could see silhouettes of people in the car. He observed the truck’s driver lean forward and extend his hand. The truck’s driver then exited the defendant’s vehicle, entered Ms truck, and drove off.

The officer radioed for backup. The backup officer followed the truck and stopped it for a traffic infraction. The truck’s driver informed the backup officer that he bought cocaine from the defendant, whom he knew as Alize. He informed the backup officer that she was wearing all black and had long black hair. He gave the backup officer the cocaine purchased from the defendant.

While the backup officer had the truck stopped, the original officer followed and stopped the defendant because he suspected that she was involved in a drug transaction. As the officer was speaking with the defendant, the backup officer informed him that the truck’s driver admitted to purchasing cocaine from the defendant. Thereafter, the officer charged the defendant with one count of possession of cocaine with intent to deliver or sell.

The defendant filed a motion to suppress her arrest. The State called only the original officer to testify. He testified that he had twelve years experience, and had served with the selective enforcement team for eight years. He made two drug arrests in the previous week at the same parldng lot, and had also made arrests at the plaza across the street. He had been patrolling the area for narcotic arrests for two months prior to the incident. While he did not know the defendant or the truck’s driver, the police department was making daily arrests in the same area based on the same behavior. He estimated that approximately 100 arrests had been made in the area over three to four months.

The trial court denied the motion to suppress. In so doing, the court found the original officer had reasonable suspicion to stop the defendant.

Specifically, number one, he was in the parking lot, because of the e mails and information that he had received, with regards to numerous drug transactions having taken place in the parking lot of the Walgreens, as well as the other shopping center across the street.
In addition to that, the sale of drugs and/or prescription drugs were [sic] known to take place there.
So, based on that, and what he saw, based on his training and experience, that is, he is involved in the selective enforcement unit. He has training in narcotics, as well as his other training, in robberies and burglaries, and that he recognized Ms. Benemérito doing in the vehicle what he believes to be a drug transaction.
And, that based upon the totality of the circumstances, and his experience, the Court will find that her behavior, and the behavior of the other person in the vehicle, and the fact that it’s in an area where there have been numerous drug transactions, he mentioned at least a hundred arrests made there, and he’s been involved in two of them, drug transactions over there.
There’s in [sic] a reasonable suspicion that those types of transactions are occurring there.
And the co Defendant was stopped, and stated that he had just bought cocaine from her, and he said it was about the same point in time that both vehicles were stopped, and he believed that a drug transaction may have taken place, and as a result of the stop of the other vehicle also, saying that she was involved.

Immediately thereafter, the defense asked the court for a ruling on the disposi-tive nature of the motion. The judge then stated “[tjhat’s not a problem.” The defendant then pled no contest to the charges reserving her right to appeal. The judge advised the defendant: ‘You are going to be entering a plea, with the reservation that you can take an appeal of the denial I just did of your motion to suppress.” The court withheld adjudication and placed the defendant on probation for a period of eighteen months.

On appeal, the defendant argues the trial court erred in denying the motion to suppress because the officer did not have reasonable suspicion to stop her. We agree and reverse.

This Court reviews de novo, “whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion.... ” Santiago v. State, 941 So.2d 1277, 1278 (Fla. 4th DCA 2006) (quoting Lee v. State, 868 So.2d 577, 579 (Fla. 4th DCA 2004)).

Whether an officer has the reasonable suspicion needed to justify an investigatory stop, based on the objective facts, depends on the totality of the circumstances observed in light of the officer’s experience....
It is not absolutely necessary that an officer observe drugs change hands in order to support a reasonable suspicion. Supporting circumstances may include whether the officer can see either drugs or money being transferred, the officer’s narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site. ■

Id. at 1279 (citations omitted).

Here, many of the Santiago factors are present. The officer had experience, knew the location’s reputation for drug transactions, had made arrests at the same location, and had been on surveillance. All of these factors would lead up to the establishment of reasonable suspicion. Yet, the officer observed nothing suspicious about the individuals or their actions. He witnessed only silhouettes in a car and the movement of one person’s arm. He did not know either driver or recognize their vehicles, had no tip regarding the individuals, did not see any drugs or money, and did not observe a hand-to-hand transaction. Rather, he witnessed a person enter the backseat of another vehicle for a few minutes, and move his arm. This observation was insufficient to raise the other factors to the level of reasonable suspicion. If we were to allow presence in a high crime area and prior arrests in the area to be sufficient to give rise to reasonable suspicion, then any law-abiding citizen who moves in such an area would be subject to an investigatory detention.

We disagree with the dissent’s suggestion that our opinion focuses on the fact that the officer neither saw the exchange nor knew the participants. Quite the contrary, we adhere to the well-established rule that each case must be judged on its particular facts and the “totality of the circumstances observed in light of the officer’s experience.” Id. The spectrum of other facts that might contribute to reasonable suspicion is as vast and varied as the human experience and incapable of being itemized. We simply find the facts to support reasonable suspicion in this case to be wanting.

For these reasons, we reverse the order denying the motion to suppress and remand the case to the trial court for further proceedings.

Reversed and Remanded.

POLEN, J., concurs.

GERBER, J., dissents with an opinion.

GERBER, J.,

dissenting.

I respectfully dissent. In Wallace v. State, 8 So.3d 492 (Fla. 5th DCA 2009), the fifth district reiterated the concepts which apply to a “reasonable suspicion” determination:

To determine whether an officer’s suspicions are supported by “more than a mere hunch,” the court must look at the “totality of the circumstances,” viewed in light of the officer’s “expei’ience and specialized training.” [United Slates v.] Arvizu, 534 U.S. [266,] 273-274, 122 S.Ct. 744, 151 L.Ed.2d 740 [(2002)]. Thus, even seemingly innocent behavior may support an inference that criminal activity is afoot when viewed from the perspective of an experienced officer. Id. at 274-75, 122 S.Ct. 744. It is the function of the trial court to determine the historical facts, which includes a determination of whether a particular police officer has the experience to draw a particular inference from a given circumstance and whether the officer actually drew the inference. We are to give deference to these factual determinations. Id. at 277, 122 S.Ct. 744; see Ornelas [v. United States ], 517 U.S. [690,] 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 [(1996)] (stating inferences drawn by police and trial judge from historical facts deserve deference). Whether the inference drawn by police was objectively reasonable involves the application of logic and judicial experience and is reviewable de novo. Ornelas, 517 U.S. at 696, 116 S.Ct. 1657.

Wallace, 8 So.3d at 494 (other internal citations omitted).

Applying the foregoing concepts to this case, I would reach a different result after comparing this case with Santiago. In Santiago, we reversed an order denying a motion to suppress. We described the facts and our reasoning as follows:

The ari'esting officer, working on another case in the parking lot of a motel at approximately 7:00 p.m., noticed Appellant “pass [ ] up a lot of open parking spaces and [go] to the backside of the lot.” A minute or so later, he observed Appellant flash his headlights as another vehicle entered the parking lot. The other vehicle parked right beside Appellant’s vehicle. Appellant got out of his vehicle, spoke bi'iefly with the other driver, and returned to his vehicle. Appellant soon returned to the passenger side of the other vehicle. The parking lot was well lit and very open. The area was not known for narcotics transactions. Both vehicles then left the parking lot. The officer followed, stopped Appellant, and directed another unit to stop the other vehicle.
The arresting officer testified to his extensive experience and training involving street crime, surveillance, and drug transactions. He was not sure what, if anything, passed between Appellant and the occupant of the other vehicle, but concluded that he had witnessed a hand-to-hand drug transaction. He acknowledged, however, that it could have been an innocent transaction. Appellant introduced the dispatch tape of the incident. On the tape, the officer states, “I don’t know if that’s a hand-to-hand or what the story is.”
[Notwithstanding that the arresting officer saw a transaction of some kind, he did not see an exchange of drugs or currency. We conclude that under the totality of the circumstances, there was not a reasonable suspicion to justify a stop. The transaction did not occur in a location known for drug transactions or arrests, the participants were not known to the officer, and neither the area nor the parties were under surveillance for this purpose. In this case, the only factors relied on by the officer to interpret the subsequent conduct of the participants were then.' chosen location within the parking lot and the flashing of the lights.... While the officer believed that he was acting on “more than a hunch” in making the stop, we conclude that parking at this location, accompanied by the blinking of car lights and followed by an apparent exchange of something, otherwise completely innocent acts, are not, alone, sufficient to support a reasonable and founded suspicion that a crime had occurred, notwithstanding that the observation was by an experienced officer.

Santiago v. State, 941 So.2d 1277, 1278-80 (emphasis added).

As in Santiago, the officer here did not see an exchange of drugs or currency, and did not know the participants. However, unlike Santiago, the transaction here did occur in a location known for drug transactions and arrests, and the area was under surveillance for that purpose on the night in question. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (fact that stop occurred in “high crime area” was among relevant contextual considerations in analysis under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Because this court found the absence of those two factors significant in Santiago, I believe the presence of those two factors here, along with the surveilling officer’s observations and experience, established reasonable suspicion in this case.

The majority minimizes those factors and the surveilling officer’s observations and experience, contrary to Arvizu and Ornelas. Instead, the majority focuses on the facts that the officer here did not see an exchange of drugs or currency and did not know the participants. However, as we stated in Santiago, “[i]t is not absolutely necessary that an officer observe drugs change hands in order to support a reasonable suspicion.” 941 So.2d at 1279. Further, the fact that the officer did not know the participants should be the least significant consideration given the low likelihood that an officer will know a participant in any given case.

In sum, “[a]lthough each individual action [of the defendant] might have been innocent enough to an untrained observer, when considered together, from the vantage point of the seasoned police officer, the inference of criminal conduct drawn by the officer was logically deduced, reasonable, and certainly sufficient to satisfy the ‘more than a mere hunch,’ standard announced in Terry.” Wallace, 8 So.3d at 495. “[G]iving due weight to the factual inferences drawn by the law enforcement officer and the [trial] judge, as we must,” id. at 494 (internal quotations and citation omitted), I would affirm.

      . The defendant sought to suppress the stop and arrest because without them, the officer had no way of obtaining her identification. Neither the officer nor the driver of the truck knew the defendant or her correct name.

      . The State questions whether the trial court's ruling was dispositive. Our review of the transcript reflects that the trial court believed the ruling to be dispositive. J.J.V. v. State, 17 So.3d 881, 883 (Fla. 4th DCA 2009) (stating that “the lack of an express finding that the issue is dispositive is not fatal”).


author: GROSS, C.J.

text:
    Eugene HARRIELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2470.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied April 7, 2010.

      Philip J. Massa, Regional Counsel, and Genevieve Hall, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, C.J.

Appellant was convicted of robbery, burglary, grand theft, and attempted aggravated battery. We write to address his argument that the state improperly exercised a peremptory challenge against an African-American juror. We affirm, because appellant failed to preserve his claim that the prosecutor’s challenge to a prospective juror was based on non-verbal behavior unsupported by the record.

The state exercised a peremptory challenge against juror Sanders. The prosecutor explained that the juror “was sleeping. He had his eyes closed and I was watching him for ten minutes.” The attorney for the codefendant said that she “didn’t see him sleeping at all,” to which the trial judge replied, “I didn’t see him sleeping either.” However, appellant’s attorney did not dispute the prosecutor’s observation; he said, “Whether he’s sleeping or not, if he had his eyes closed, it doesn’t matter. He can still be listening. He could be resting his eyes.” The trial court allowed the peremptory challenge. Although appellant’s attorney generally objected to the exercise of the challenge, he did not directly refute the prosecutor’s adamant claim that the juror had been sleeping.

Appellant mainly relies on Dorsey v. State, 868 So.2d 1192 (Fla.2003). There, the state exercised a peremptory challenge against an African-American woman, on the ground that she “appeared disinterested throughout” and “was sort of staring at the wall.” Id. at 1194. Defense counsel disputed the prosecutor’s observations by pointing out that the woman was attentive and was the only person to indicate that she was happy to be at jury duty. Id. The trial court allowed the state’s challenge, stating that, although he “didn’t notice” the woman’s disinterest, he would “take [the prosecutor] at her word.” Id. at 1195 (brackets in original).

The supreme court reversed and held that the state did not satisfy its burden of production under step 2 of the Melbourne v. State analysis, since it did not proffer a non-discriminatory reason for the challenge that was either observed by the trial court or supported by the record. Dorsey, 868 So.2d at 1199-1200, 1202-03. Step 2 of the Melbourne process requires the proponent of a strike to offer a “raceL neutral explanation” for the strike. Melbourne, 679 So.2d at 764. A race-neutral explanation is one where “no predominant discriminatory intent is apparent” from the given explanation, taken at face value. Id. at 764 n. 6. In essence, the supreme court in Dorsey created a new hurdle for a proponent of a strike when the basis is nonverbal behavior. Such nonverbal behavior must either be observed by the trial court or supported by the record.

Significantly, however, before this hurdle arises, “opposing counsel [must] challenge[ ] the factual basis for the explanation [if] the trial court does not observe the behavior, and the record does not otherwise support the reason advanced.” Dorsey, 868 So.2d at 1196 (footnote omitted). The supreme court was clear on the need for a lawyer to preserve a Dorsey claim: “[T]his issue does not arise where the opponent does not dispute the observation proffered as the reason for the strike.” Id. at 1196 n. 3 (citation omitted). Failure to preserve the issue removes the Dorsey hurdle.

In this case, unlike the codefen-dant’s lawyer, appellant’s attorney did not preserve his claim as required by Dorsey because he did not expressly dispute the prosecutor’s observations about juror Sanders. At best, the defense attorney conceded that the juror’s eyes may have been closed, but suggested that the juror may not have been sleeping. Sleeping is a race-neutral reason for exercising a challenge against a prospective juror. See Davis v. State, 560 So.2d 1346, 1347 (Fla. 3d DCA 1990). As the supreme court stated in Dorsey, once the “burden of production is satisfied, the proponent is entitled to the presumption that the reason is genuine.” Dorsey, 868 So.2d at 1199.

On the remaining issue, we find no error in the trial court’s denial of appellant’s motions for judgment of acquittal, because the state presented evidence sufficient to establish all the elements of the crimes charged. As to the grand theft charge, there was evidence that appellant had possession of the recently stolen van, which gave rise to the presumption that he knew, or should have known, it was stolen. See § 812.022(2), Fla. Stat. (2008).

Affirmed.

MAY and CIKLIN, JJ., concur.

      . At one point, the prosecutor asserted:
      I saw him sleeping. As an officer of the court, I saw his eyes close for over five minutes. I looked at the clock when I first looked at him. I watched the clock, I watched his eyes. Again, and I would also ask the court to take judicial notice of the other members of the — of the panel. It's a diverse panel.
      The state did not exercise any challenge as to three other African American members of the venire. The “racial make-up of the venire" is a circumstance that a court may take into consideration in ruling on the genuineness of a proffered race-neutral explanation for a strike. Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) (quoting Melbourne, 679 So.2d at 764 n. 8).

      . 679 So.2d 759 (Fla.1996).


author: PER CURIAM.

text:
    Charles O’BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2322.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied April 14, 2010.

      Charles O’Berry, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s rule 3.800(a) motion, but for reasons other than those provided by the trial court.

We agree with appellant that there is no time limit for asserting a claim of illegal sentence pursuant to rule 3.800(a). See Fla. R.Criin. P. 3.800(a). Nevertheless, the trial court did not err in denying the motion.

Appellant’s first ground, based on double jeopardy, could have been denied as successive. In any event, it lacked merit. Compare Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991) (rejecting double jeopardy argument pertaining to a 1987 offense, where each assault occurred at different time and location, and the defendant had time to pause and reflect before each one).

The second ground, claiming illegality of the 100-year sentence for count II, is unsupported by any authority. See § 794.01, Fla. Stat. (1967, 1969) (providing sentence of death, life in prison, or any term of years, in the trial court’s discretion). The ground asserted in the “supplement” filed below concerning police practices did not even seek relief, was not cognizable in connection with a rule 3.800(a) motion because it did not challenge the sentence, and lacks any merit.

We take this opportunity to caution appellant that the continued filing of frivolous pleadings will result in the sanction of this court no longer accepting his pro se filings and may result in his referral to the Department of Corrections for disciplinary procedures.

Affirmed.

STEVENSON, DAMOORGIAN and CIKLIN, JJ„ concur.

      . On this point, we direct the appellant to the state’s response to the rule 3.850 motion which he served on October 31, 2007, the denial of which this court affirmed per cu-riam in case no. 4D08-1513. In that response, the state referenced the prior resolution of the same claim for relief, on the merits, in an order which this court affirmed in case no. 4D81-1705.


text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. CHARLIE’S TREE SERVICE, INC., Scott Rosen, as Personal Representative of the Estate of Elias Caballero, Valentin Bautista-Bautista, Minerva Bautista Aleman, his wife, Juan Victorino Cordoso, and Big Lake Roofing Enterprises, Inc., Appellees.
    No. 4D09-3192.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied April 1, 2010.

      Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tallahassee, for appellant.
    Keith E. Hope of The Hope Law Firm, P.A., Gulfport, for appellee Scott Rosen, as Personal Representative of the Estate of Elias Caballero.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Brent L. Probinsky, P.A., Sarasota, for appellees, Valentin Bautista-Bautista and Minerva Bautista Aleman, his wife.
   GROSS, C.J.

Because a policy exclusion applies, we reverse a final declaratory judgment finding that insurance coverage exists for a lawsuit arising out of an automobile accident.

Valentin Bautista-Bautista and Elias Caballero were employees of Charlie’s Tree Service, Inc. While both were on the job, Caballero was driving a company truck in which Bautista was a passenger. The truck was in an accident that killed Caballero and injured Bautista.

Bautista settled with Charlie’s for worker’s compensation benefits and sued Caballero’s estate. Mercury Insurance Company of Florida had issued a commercial auto policy where Charlie’s was the named insured. Mercury filed a declaratory judgment action to establish that exclusions in the policy precluded coverage for Bautista’s claim against Caballero’s estate. Both parties moved for summary judgment. The circuit court granted summary judgment in favor of Bautista, ruling that there was coverage under the Mercury policy for Bautista’s claims against Caballero’s estate.

The facts of this case fall under at least one exclusion in the policy, so the court should have granted judgment in favor of Mercury.

The policy provides that coverage and Mercury’s duty to defend “does not apply to”

6. Bodily injury to an employee of an insured ... arising out of or within the course of employment, except with respect to a domestic employee if benefits are neither paid nor required to be provided under any Workers’ Compensation, disability benefits or other similar law. This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury.

There is no dispute (1) that Charlie’s is “an insured” within the meaning of the exclusion, (2) that Bautista was an employee of Charlie’s, and (3) that Bautista’s injuries arose out of or within the course of his employment with Charlie’s.

We reject Bautista’s argument that “an insured” must refer only to Caballero, because Caballero is the only “insured” he has sued. The exclusion is not confined to the parameters of a particular lawsuit, but is directed at the facts of the accident for which coverage is sought. There is no getting around the fact that Charlie’s is “an insured” under the policy. We agree with the observations of the second district that exclusions such as this one

are inserted in business policies for the benefit of the employer. An employer is required to protect its employees pursuant to the Workers’ Compensation Statute .... The employer then protects the general public by purchasing a liability insurance policy. Because employees are already protected by workers’ compensation, the insurance policy bought to protect the general public generally specifically excludes coverage for injuries covered by workers’ compensation. The insurance policy premium would necessarily be higher were this not so.

Aetna Fire Underwriters Ins. Co. v. Williams, 422 So.2d 7, 9 (Fla. 2d DCA 1982). See also Webb v. Am. Fire & Cas. Co., 148 Fla. 714, 5 So.2d 252 (1941); 8 Couch on Insurance § 115:26 (3d ed. 2008).

We reverse the final summary declaratory judgment and remand for the entry of a judgment in favor of Mercury establishing that there is no coverage under the policy for Bautista’s lawsuit against Caballero’s estate.

WARNER and LEVINE, JJ., concur.

      . A policy definition of “insured” includes "[a]ny additional driver listed" on the policy "but only while driving” an insured auto. Caballero was a listed driver driving an insured auto.


author: JACOBUS, J.

text:
    Heather APPEL, et al., Appellants, v. LEXINGTON INSURANCE COMPANY, Appellee.
    No. 5D08-1131.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.

      J. Lester Kaney, of Cobb Cole, Daytona Beach, William Christopher Carmody of Susman Godfrey, LLP, pro hac vice, New York, NY, and Charles R. Eskridge, III, of Susman Godfrey, LLP, pro hac vice, Houston, TX, for Appellants.
    Rosemary B. Wilder of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for Appellee.
   JACOBUS, J.

The Appellants challenge the dismissal of their complaint and the subsequent entry of summary final judgment in favor of the Appellee. We agree that the complaint failed to state a cause of action and therefore affirm.

The Appellants are a group of creditors who fell victim to a Ponzi scheme when they invested in a company known as SOS Industries, Inc. (SOS). SOS was in the business of providing medical monitoring devices to people, mainly the elderly, which enabled them to alert emergency services in the event of an in-home emergency. Evidently, SOS purchased only a fraction of the devices it purported to put into service. Instead, the company used investors’ money to pay new investors in a classic Ponzi scheme.

The Appellants’ initial lawsuit against SOS included claims against two directors of the corporation, Glenn Green and Gary Martz, for breaching their fiduciary duty by not discovering the Ponzi scheme. Directors Green and Martz were unaware of this scheme, as it was perpetrated by the company president, William Kane.

The Appellee, Lexington Insurance Company, provided coverage to SOS Industries under two commercial comprehensive general liability insurance policies (CGL), which included professional liability coverage, and an umbrella policy. Lexington refused to defend Green and Martz in the SOS lawsuit on the basis that there was no coverage for the type of claim asserted by the Appellants. Green and Martz then sued Lexington for breach of contract and declaratory relief. Ultimately, Green and Martz entered into a consent judgment with the Appellants and assigned them claim against Lexington to the Appellants. The Appellants were substituted as parties.

To complicate matters further, after Lexington was served with the complaint for failure to defend its insureds, it failed to timely answer, and a default was entered against it. When the Appellants moved for a judgment to be entered against Lexington in the amount of the consent judgment, Lexington defended by filing a motion to dismiss the complaint for failure to state a cause of action. The trial court found that under the unambiguous terms of the policy, Lexington had no duty to defend directors Green and Martz against the allegations in the SOS lawsuit. The trial court therefore granted the Ap-pellee’s motion to dismiss the complaint for failure to state a cause of action and denied the Appellants’ motion for entry of a judgment on the default and summary judgment on damages. We agree with the trial court’s decision.

The Appellants are not entitled to the entry of a judgment on the default if the coverage complaint fails to state a cause of action. The default operates as an admission by Lexington of the well-pled allegations of the complaint, but not as an admission of facts not properly pled or conclusions of law. See Hogan v. Garceau, 880 So.2d 823 (Fla. 5th DCA 2004); Becerra v. Equity Imps., Inc., 551 So.2d 486 (Fla. 3d DCA 1989). The defense of failure to state a cause of action may be raised by motion, even after a default, and may be raised at the trial on the merits. See Fla. R. Civ. P. 1.140(h)(2).

Ultimately, the sufficiency of the coverage complaint hinges on whether the allegations that Lexington had a duty to defend Green and Martz in the SOS lawsuit are negated by the terms of the insurance policies. This is determined by examining the Fifth Amended Complaint in the SOS lawsuit, which is incorporated in the coverage complaint, and the plain language of the insurance policies, which are attached to the coverage complaint. Where a document on which the pleader relies in the complaint directly conflicts with the allegations of the complaint, the variance is fatal and the complaint is subject to dismissal for failure to state a cause of action. See Fladell v. Palm Beach County Canvassing Bd., 772 So.2d 1240, 1242 (Fla.2000); Geico Gen. Ins. Co. v. Grad, 849 So.2d 1196, 1199 (Fla. 4th DCA 2003).

“[A]n insurer must defend a lawsuit against its insured if the underlying complaint, when fairly read, alleges facts which create potential coverage under [the] policy.” McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 695 (Fla. 4th DCA 2000). The Fifth Amended Complaint alleges that Green and Martz breached their fiduciary duty to the Appellants by: (1) failing to examine the financial books and records of SOS; (2) failing to follow the recommendations of an accounting firm to obtain counsel to investigate questions relating to the operation of the business; and (3) negligently relying on the assertions of the company president, William Kane, that the accounting firm did not understand the nature of SOS’s business. As a result of the breach of duty of care by Green and Martz, the Appellants are alleged to have sustained monetary damages. Thus, the Fifth Amended Complaint alleges that, as directors, Green and Martz owed a duty to the Appellants to protect them from the Ponzi scheme perpetrated on them by William Kane.

The coverage complaint asserts that, under the professional liability endorsement contained in the CGL policies, Lexington was obligated to defend Green and Martz against the foregoing allegations of the Fifth Amended Complaint. The professional liability endorsement provided coverage for “those sums that the insured becomes legally obligated to pay as damages because of negligent acts, errors, or omissions arising out of ‘professional services’ rendered for others by the insured.” The policy defined “professional services” as follows:

“Professional Services” shall mean professional services rendered in the business of selling, installing, maintaining, monitoring or providing connection services for:
1. Alarm/Security Systems
2. Phone Networks
3. Video/Video Dial-a-tone
4. Wireless Communications
5. Cable
6. Internet
7. Web and Fax services
This shall include design, feasibility studies and consulting that may result in the sale or installation of the services listed above.

We conclude that the acts and omissions of Green and Martz alleged in the Fifth Amended Complaint did not constitute “professional services rendered for others by the insured” under the policies issued by Lexington. Despite the complexities of the underlying litigation, the case boils down to this: Green and Martz’s negligence in failing to detect a fraudulent Pon-zi scheme engineered by the company president does not fall within the definition of “professional services” and, therefore, there is no coverage for the cause of action as set forth in the Fifth Amended Complaint. In other words, the plain language of the professional liability endorsement negated the cause of action alleged in the coverage complaint.

Accordingly, the trial court was correct in granting the Appellee’s motion to dismiss for failure to state a cause of action and in denying the Appellants’ motion for entry of a final judgment. The final judgment in favor of the Appellee is therefore affirmed.

AFFIRMED.

SAWAYA and ORFINGER, JJ„ concur.


author: ORFINGER, J.

text:
    Rachael FULLER, Appellant, v. Michael FULLER, Appellee.
    No. 5D08-3211.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.

      Steven J. Guardiano, Daytona Beach, for Appellant.
    Kenneth D. Morse, of Kenneth D. Morse, P.A., Orlando, for Appellee.
   ORFINGER, J.

ON MOTION FOR REVIEW UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.400(C)

This matter makes its second appearance before this Court. Previously, we reversed the trial court’s order regarding child custody and imputation of income. Fuller v. Fuller, 13 So.3d 1108 (Fla. 5th DCA 2009). We also entered an order granting the former wife’s motion for appellate attorney’s fees conditioned upon a finding by the trial court of need and a commensurate ability to pay after appropriate consideration of the financial resources of both parties. On remand, the trial court conducted a hearing on the fee issue. At that hearing, the parties agreed that: (a) the former husband’s gross annual income is $70,000; (b) the former wife’s gross annual income is $20,000; and (c) the former wife reasonably expended $15,337.50 for the services of her appellate attorney. After considering the evidence, the trial court issued an order, without factual findings, concluding that while the former wife had demonstrated that she had a need for assistance with the payment of her attorney’s fees, she had not demonstrated that the former husband had the ability to pay those fees. We review this case pursuant to Florida Rule of Appellate Procedure 9.400(c).

Need and the ability to pay are the primary considerations in deciding entitlement to attorney’s fees in a dissolution proceeding. Rosen v. Rosen, 696 So.2d 697 (Fla.1997). The idea is to “ensure that both parties have similar access to competent legal counsel.” Id. at 699. After reviewing the equitable distribution of assets, the relative financial resources of the parties, as well as the significant disparity in income between the former husband and former wife, we conclude that the trial court erred in not awarding attorney’s fees to the former wife. Accordingly, we reverse the trial court’s order and remand for the entry of an order awarding the former wife her appellate attorney’s fees. In the discretion of the trial court, a reasonable payment schedule may be established.

REVERSED and REMANDED.

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


text:
    Marcia D. ECKERT, Appellant, v. David L. ECKERT, Appellee.
    No. 5D09-605.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.

      Kenneth D. Morse, of Kenneth D. Morse, P.A., Orlando, for Appellant.
    Tatiana Leo, of Pratt & Morrision, P.A., Winter Park, for Appellee.
   PER CURIAM.

Appellant, Marcia Eckert [“Wife”], seeks review of the “Supplemental Final Judgment of Dissolution of Marriage,” rendered on January 9, 2009. She challenges the amount of alimony she was awarded.

The parties resided together from the date of their marriage in 1983 until they separated in August of 2004. Appellee, David Eckert [“Husband”], owned his own business installing telephonic data cables and programming johone systems. Wife was not employed during the marriage. In early 2005, the parties entered into a mediation agreement which settled all the equitable distribution issues. The only issues remaining to be decided were alimony and attorney’s fees. During the course of the proceedings, Wife was awarded $1,000 per month as temporary alimony.

A trial to determine alimony was conducted on August 7, 2006. The evidence at trial showed that the parties lived a comfortable life during the marriage. Wife did not work during the marriage, and Husband acknowledged that Wife had been a good mother and homemaker until, at the end of the marriage, Wife engaged in numerous adulterous affairs.

Both Husband’s ability to pay alimony and the amount of Wife’s need were disputed issues at trial. At the close of trial, the court took the matter under advisement and, according to subsequent filings, communicated by letter with counsel about its ruling. The parties were unable to agree on the form of a judgment because of the lack of findings contained in the letter. Finally, in November 2007, Wife filed a motion to have the court enter a judgment with findings of fact. In support of that motion, the transcript was prepared and filed for the court’s use. Eventually, some twenty-eight months later, in January 2009, the final judgment was entered.

The final judgment is sparse. On the issue of need and ability to pay, there are only three findings: that Husband’s net income was between $7,000 and $12,000 per month, that Wife has illnesses that prevent her from working full time and that she has “substantial” medical and drug expenses. The court concluded that the $1,000 temporary alimony Wife had been receiving was inadequate and awarded $1,800 per month. On appeal, Wife contends that an award of $1,800 per month is so inadequate for her needs that the award constitutes an abuse of discretion. For his part, Husband contends that all of the court’s findings are wrong: Husband’s net income was much less than $7,000 to $12,000 per month; Wife was perfectly able to work, as even her own physician testified; and Wife’s medical and drug expenses as documented at trial were a fraction of the $1,100 per month she claimed. Nonetheless, Husband urges that the $1,800 award should be sustained because it is supported by record evidence.

We find the judgment to be inadequate in several respects. The finding of such a wide range for Husband’s income is too uncertain, and is not warranted by the evidence. There is a lack of findings on Wife’s need, an issue greatly disputed at trial, making it impossible for this Court to make any meaningful review. These deficiencies are combined with a twenty-eight month delay between the trial and entry of the judgment and appear to be related. Even though the trial court was eventually provided a transcript, it is doubtful, with the passage of so much time, that issues of credibility and weight of evidence could accurately be recalled. Loath as we are to require parties to incur the cost and delay of a retrial, it is necessary in this case, and the parties are partly responsible for the delay. A new hearing of all alimony issues, including whether Wife’s adultery should affect the amount of alimony awarded, is required. The currently assigned judge, with the benefit of current information on the issues of need and ability will be able to render a more reliable decision, even if the figure is the same. See Rosario v. Rosario, 945 So.2d 629 (Fla. 4th DCA 2006) (In considering alimony award, the trial court is authorized to consider any factor necessary, including adultery, to do justice between the parties). Accordingly, we vacate the judgment and remand for a new hearing on the issue of alimony.

JUDGMENT VACATED and REMANDED.

GRIFFIN, TORPY, JJ., and THOMPSON, E., JR., Senior Judge, concur.

      . Wife has also appealed attorney's fees, but concedes that this issue is not ripe for review.

      . There is abundant case law requiring a retrial where there has been a long delay between the conduct of a trial and the issuance of a judgment, if circumstances suggest that the passage of time may have adversely affected the accuracy of the judgment. See, e.g., Porter v. Estate of Spates, 693 So.2d 88 (Fla. 1st DCA 1997). In this case, both the lack of findings and the lack of precision in the income and expense figures strongly suggest that the passage of time adversely affected the judgment.

      . The case was heard by a senior judge in 2006.


author: PALMER, J.

text:
    S.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2203.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

S.G. (defendant) appeals her adjudication of delinquency. The State properly concedes that the trial court reversibly erred in reclassifying the defendant’s battery conviction from a first degree misdemeanor to a third degree felony. Accordingly, we reverse.

The defendant was charged with committing the crime of battery in violation of section 784.03 of the Florida Statutes (2008), a first degree misdemeanor. The State sought to reclassify the charge to a third degree felony pursuant to section 784.081(2) of the Florida Statutes (2008) based on the fact that the victim of the defendant’s crime was a school employee. At trial, testimony established that the defendant engaged in a verbal altercation with another student at the Great Oaks Village youth shelter. A school employee attempted to escort the other student out of the classroom. As the employee was removing the other student, the defendant threw a stapler in the student’s direction with the intent to strike the student. However, the stapler struck the employee. The defendant argued that the State’s evidence could not elevate the simple battery charge to a felony absent proof of her specific intent to strike the victim. The court disagreed and found the defendant guilty of battery on a school employee.

The doctrine of transferred intent transfers the defendant’s intent as to the intended victim to the unintended victim. Mordica, v. State, 618 So.2d 301, 304 (Fla. 1st DCA 1993). However, Florida courts have expressly held that the transferred intent doctrine is inapplicable to enhance the severity of a crime against an unintended victim. See B.L.L. v. State, 764 So.2d 837, 838 (Fla. 2d DCA 2000) (holding that transferred intent was not applicable when a student intended to strike a fellow student, but instead struck a school employee); D.J. v. State, 651 So.2d 1255, 1256 (Fla. 1st DCA 1995) (explaining that “only the appellant’s intent to strike his opponent — a student — could be transferred, and there could be no intent to strike a school employee”); Sagner v. State, 791 So.2d 1156, 1158 (Fla. 4th DCA 2001)(stating that the doctrine of transferred intent is inapplicable to enhance the severity of the intended crime against an unintended victim).

The State properly concedes that the trial court erred in applying the transferred intent doctrine to enhance the severity of the defendant’s crime, and, therefore, the defendant can only be found to have committed a battery. Accordingly, the defendant’s adjudication of delinquency for battery on a school employee is reversed, and the case is remanded for the trial court to enter judgment on the battery charge and to sentence the defendant accordingly.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

      . Section 784.081(2)(c) of the Florida Statutes (2008) reclassifies the crime of battery from a misdemeanor of the first degree to a felony of the third degree when the battery is committed upon
      any elected official or employee of: a school district; a private school; the Florida School for the Deaf and the Blind; a university lab school; a state university or any other entity of the state system of public education, as defined in s. 1000.04; a sports official; an employee or protective investigator of the Department of Children and Family Services; an employee of a lead community-based provider and its direct service contract providers; or an employee of the Department of Health or its direct service contract providers, when the person committing the offense knows or has reason to know the identity or position or employment of the victim....

        See § 784.081(2) Fla. Stat. (2008).


text:
    HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. Debra BLANCHARD, as Personal, etc., Respondent.
    No. 5D09-2422.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.
    Scott Mason Baughan of Watson, Sol-ieau, DeLeo, Burgett, Pickles & Baughan, P.A., Cocoa, for Petitioner.
    Terry E. Resk of Haile, Shaw & Pfaffen-berger, P.A., North Palm Beach, for Respondent.
   PER CURIAM.

Although Petitioner has identified one potential error regarding the requirement that it produce records without prepayment of its reasonable charges, this is not the type of error that may be remedied by certiorari. W. Fla. Reg’l Med. Ctr., Inc. v. See, 18 So.3d 676, 683 (Fla. 1st DCA 2009). In all other respects, we deny the petition, concluding that no error has been demonstrated.

PETITION DENIED.

TORPY, LAWSON and EVANDER, JJ., concur.


author: GRIFFIN, J.

text:
    B.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2474.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

B.C. appeals his adjudication of delinquency and his commitment to a high-risk residential facility. We affirm.

B.C. was charged with battery upon a district school board employee and disruption or interference with an educational institution, both of which occurred while he was already in a high-risk facility for prior crimes. He pled guilty to the charges. The Department of Juvenile Justice [“the DJJ”] prepared a pre-disposition report which recommended that B.C. be “ADJUDICATED DELINQUENT and Committed to a Concurrent High Risk Program to be followed by Direct Release.” At the sentencing, the trial judge agreed with the State that sentencing B.C. to a concurrent term would send a message to others in the high-risk commitment program that there are no consequences for committing a new offense while already placed in a high-risk facility. The trial court adjudicated B.C. delinquent, but ordered his commitment to the high-risk commitment program be consecutive, not concurrent. Below, B.C.’s appellate counsel filed a motion for correction of the disposition order on August 25, 2009. The motion asserted that the trial court erred by not giving reasons for its departure from the recommendation of the DJJ. In denying this motion, the trial court found:

Because the Court sentenced the child to a residential commitment program at the same level recommended by the [DJJ], the Court does not need to provide any additional reasons for departing from a portion of the [DJJ’s] recommended sentence. The Court finds that the decision on whether a sentence should be concurrent or consecutive with a previously imposed sentence is well within the Court’s traditional discretion and is not prohibited by E.A.R. v. State, 4 So.3d 614 (Fla.2009).

On appeal, B.C. again contends that the trial court erred by sentencing him to consecutive terms, contrary to the recommendation of the DJJ. We agree with the succinct conclusion of the trial court.

AFFIRMED.

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


text:
    Alinton H. JOHN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3677.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.

      Alinton H. John, Raiford, pro se.
    Bill McCollum, Attorney General Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 08-CF-0012794-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Freddie Ken-J CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3250.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.
    Freddie Crawford, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee and, Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. 2009-CF-1891 in the Circuit Court in and for Lake County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Jean F. BARTHELEMY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-375.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.
    Robert Wesley, Public Defender and Al-iette-Marie Charles, Assistant Public Defender, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. 09-CF-10659-0 in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Sammie Lee STALLWORTH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0571.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Sammie Lee Stallworth, 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.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    CITY OF HAINES CITY, a Florida municipal corporation, Petitioner, v. STATE of Florida, DEPARTMENT OF COMMUNITY AFFAIRS, an agency of the State of Florida; State of Florida, Division of Administrative Hearings, an agency of the State of Florida, Respondents.
    No. 1D10-0562.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Thomas A. Cloud, Tracy A. Marshall and Rachael M. Crews of GrayRobinson, P.A., Orlando; Peter Antonacci of GrayRo-binson, P.A., Tallahassee, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA 1999).

VAN NORTWICK, LEWIS, and KAHN, JJ., concur.


text:
    Anthony I. MIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0339.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Anthony I. Mims, 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.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    Steve A. HUTCHINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0408.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Steve A. Hutchins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Chandler v. Dugger, 634 So.2d 1066 (Fla.1994).

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    Akram A. ISMAIL, M.D., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH and the Florida Board of Medicine, Appellees.
    No. 1D10-0218.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Michael R. Lowe, of Michael R. Lowe, P.A., Longwood; and Kristopher M. Cru-zada of Nejame, Lafay, Jancha, Ahmed, Barker & Joshi, P.A., Orlando, for Appellant.
    Josie Tamayo, General Counsel, and Charlyne “Khai” Patterson, Assistant General Counsel, Department of Health, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c)(3).

KAHN, PADOVANO, and WETHERELL, JJ., concur.


text:
    Brian Elvis RIGBY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-626.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2010.
    Robert Wesley, Public Defender, and Jamie David Parker Kane, Assistant Public Defender, Kissimmee, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Brian Elvis Rigby files an emergency petition for writ of habeas corpus after the trial court denied bond without considei’ing the applicable standards. The State files a limited concession that neither the arrest warrant, nor the order of probable cause determination explain the denial of bond. Rigby has been charged with a second degree felony, which is neither a capital offense nor a life felony. By all accounts, the requirements of Florida Rule of Criminal Procedure 3.131 have not been met. As such, we grant the petition and remand the case to the trial court for purposes of holding a hearing forthwith to consider the Petitioner’s request to set bond. See Vailbailon v. Bradshaw, 971 So.2d 289 (Fla. 4th DCA 2008).

PETITION GRANTED and REMANDED WITH INSTRUCTIONS.

ORFINGER, TORPY and COHEN, JJ. concur.


author: WELLS, Judge.

text:
    Willie LUMSDON, Appellant/Cross-appellee, v. The STATE of Florida, Appellee/Cross-appellant.
    No. 3D07-2324.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Willie Lumsdon appeals from convictions and sentences for second degree murder and throwing a deadly missile, both stemming from the shooting death of Malcolm Marshall. Lumsdon raises four arguments in support of reversal. First, he claims that the trial court reversibly erred in admitting testimony about a statement he made shortly before the shooting, regarding wanting to shoot someone’s head off. Second, he claims that the trial court reversibly erred in refusing to strike the testimony of a witness who refused to answer questions posed by the State, including a claim that the State’s questions created an inference of bad character. Third, Lumsdon claims reversible error stemming from statements made by the State during rebuttal closing argument. And, fourth, he claims that the trial court erred in denying his motion for judgment of acquittal where the State failed to prove the elements essential to a second degree murder conviction. We find no merit in any of these arguments and affirm.

The facts of this case, as relevant, are as follows. On Memorial Day 2004, the victim, Malcolm Marshall, and five of his friends loaded into two cars and headed to South Beach for a night of fun. Lumsdon and three of his friends were also headed to South Beach. The two groups crossed paths when forced to exit the Interstate because of a road closure.

Traffic on the exit ramp was snarled, resulting in the car in which Lumsdon was travelling (a Chevy Tahoe) idling next to the vehicle (a sedan) in which Marshall was travelling. Lumsdon, who occupied a rear seat on the passenger side of the Tahoe started “messing” with the passengers in the car in which Marshall, also in the rear seat on the passenger side, was travelling. The verbal repartee escalated, with Lumsdon and the rear seat passengers in the other car taunting, cursing, and arguing with one another. After something was tossed from the Tahoe into the car in which Marshall was riding, another occupant of Marshall’s car tossed a couple of beer bottles toward the Tahoe. Neither hit home, and as Marshall’s car moved on, Lumsdon fired a single gunshot which struck Marshall in the head, killing him instantly.

The Tahoe drove away, continuing on to Miami Beach. On the way, Lumsdon threw the spent bullet casing out the window and replaced the spent bullet with another, commenting to his car-mates that this “is how you get rid of evidence.” The Tahoe was later stopped and a search revealed a gun on the rear seat floor on the passenger side, the place occupied by Lumsdon. Significant gun shot residue was found on Lumsdoris hands and his DNA was found on the barrel of the gun.

Lumsdon subsequently was arrested and charged with second degree murder with a firearm, discharging a firearm from a vehicle, and shooting or throwing a deadly missile into a vehicle occupied by a person. Lumsdon admitted to shooting the gun, but claimed that he did not intentionally aim for the other car or anyone in it, but rather was shooting into the air to scare the occupants of that car in self defense.

We find no abuse of discretion in either admitting Lumsdoris statement that he wanted to shoot someone in the head or in refusing to strike the testimony of a particularly damning witness, Will Catis, after the State inquired as to whether Catis was worried about testifying. The former statement went to Lumsdon’s state of mind, that is, whether he acted with the intent necessary for a conviction for second degree murder. See § 782.04(2), Fla. Stat. (2004) (defining second degree murder as the “unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual”). The latter statement was admissible in every respect.

Indeed, Lumsdoris real objection is not to Catis’ testimony, but to the question asked by the State as to what was worrying Catis, a question which Lumsdon claims suggested bad character on Lums-don’s part. This is meritless. This witness had testified before trial without reservation. However, at trial he initially refused to answer questions posed by the State. After receiving no response to a number of questions, the State finally asked whether Catis was “worried about testifying.” The defense objected, the jury was excused, the witness was ordered to testify, the jury returned, and the witness testified without further incident. Nothing that came before the question or after it suggested that Catis had been threatened by Lumsdon. If anything, Ca-tis’ testimony confirmed that he did not want to say things that would so clearly hurt his friend. The court below was correct in refusing to preclude or strike this testimony.

The court also did not err in refusing to grant a mistrial based on arguments made by the State in rebuttal to Lums-don’s closing arguments. During closing, Lumsdon’s counsel argued a number of facts, not in evidence, in support of Lums-don’s self defense claim. In response, the State advised the jury that argument of counsel is not evidence and that they were to decide the case on the facts. These arguments neither denigrated counsel, shifted the burden of proof onto the defendant, nor constituted a comment on Lums-don’s right to remain silent. See Caballero v. State, 851 So.2d 655, 660 (Fla.2003) (finding no burden shifting where the State emphasized uncontradicted evidence to rebut defense argument); Brown v. State, 771 So.2d 603, 605 (Fla. 4th DCA 2000) (confirming that the State may comment on a defendant’s failure to testify where such comment is invited by the defense); Otero v. State, 754 So.2d 765, 769 (Fla. 3d DCA 2000) (recognizing that where a defendant voluntarily assumes some burden of proof by asserting, among others, self defense, the State may comment of the defendant’s failure to adduce evidence).

Finally, we find the evidence was legally sufficient both to send this matter to the jury and to support Lumsdon’s conviction for second degree murder.

Accordingly, the convictions and sentences on appeal are affirmed. This result makes it unnecessary for us to address any of the State’s arguments raised in the cross-appeal.

      . Following oral argument, Lumsdon filed a supplemental brief arguing error in the jury instructions. We find no merit in this argument and affirm on the authority of Bonilla v. State, 23 So.3d 1256, 1257 (Fla. 3d DCA 2009), Valdes-Pino v. State, 23 So.3d 871, 872 (Fla. 3d DCA 2009), Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009) and Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). To preserve Lumsdon’s rights, however, as we did in Bonilla, and Valdes-Pino, we certify conflict with Montgomery v. State, - So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), which is currently pending review before the Florida Supreme Court, State v. Montgomery, 11 So.3d 943 (Fla.2009).


author: LAGOA, J.

text:
    Luis Enrique CRUZ-GOVIN, et al., Petitioners, v. Wilson TORRES, etc., Respondent.
    No. 3D09-1709.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.

      Marlow, Connell, Abrams, Adler, Newman & Lewis and Philip Glatzer, Coral Gables, for petitioners.
    Alan Goldfarb and Liah Catanese, Miami, for respondent.
    Before COPE, GERSTEN, and LAGOA, JJ.
   LAGOA, J.

Petitioners Luis Enrique Cruz-Govin and Luis N. Cruz, Jr., seek a writ of certiorari quashing several discovery orders, including a June 16, 2009 order denying their motion for protective order. Because we hold that the orders requiring disclosure of Cruz-Govin’s substance abuse treatment information and records violate his psychotherapist-patient privilege, we conclude that the trial court departed from the essential requirements of law. Accordingly, we grant the petition for certiorari and quash the orders.

I. FACTUAL AND PROCEDURAL HISTORY

On September 11, 2008, a car driven by Cruz-Govin and a car driven by Wilson Torres collided, resulting in serious injuries to Torres and the death of his wife, a passenger in his car. Torres, individually, and as personal representative of his -wife’s estate, filed a negligence action against Cruz-Govin, his father, Luis Cruz, Jr. (the owner of the car), and his mother, Claribel Lopez-Cruz.

After filing suit, Torres learned that several months after the accident, Cruz-Govin had been admitted to Sober College, a drug rehabilitation facility, located in California. Torres sought the issuance of a subpoena requiring Sober College to produce Cruz-Govin’s post-accident substance abuse treatment records. Torres also sought orders from the trial court compelling Cruz-Govin’s parents to answer interrogatories concerning their son’s treatment. The trial court rejected the petitioners objections to such discovery, and denied them motion for a protective order. This petition for writ of certiorari followed.

II. ANALYSIS

Certiorari is the proper vehicle to review discovery orders that require the production of information and records that are protected by the statutory psychotherapist-patient privilege. The entiy of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law. Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006); see also Viveiros v. Cooper, 832 So.2d 868, 869 (Fla. 4th DCA 2002); Palm Beach County Sch. Bd. v. Morrison, 621 So.2d 464, 468 (Fla. 4th DCA 1993).

Section 90.503(2), Florida Statutes (2009), provides that a patient has a privilege to decline to disclose information or records that are made in the diagnosis or treatment of mental conditions. The statutory privilege specifically applies to “confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction.” It is undisputed that the requested discovery falls within the purview of the statute. The only question is whether the requested discovery falls within one of the three exceptions to the privilege provided by statute, i.e., communications that are: (a) relevant to an issue in involuntary commitment proceedings; (b) made in the course of a court-ordered mental examination; or (c) relevant to an issue of the patients mental or emotional condition which the patient relies upon as an element of his or her claim or defense. See 90.503(4)(a)-(e); State v. Famiglietti, 817 So.2d 901, 903-04 (Fla. 3d DCA 2002) (en banc).

Torres asserts that the section (4)(c) exception is applicable, i.e., communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense. Torres, the party seeking production of the privileged information, has the burden to demonstrate that this exception to the privilege applies. See Brousseau v. Broward County Bd. of Comm’rs, 992 So.2d 882, 883 (Fla. 4th DCA 2008); Quinney v. Quinney, 890 So.2d 407, 409 (Fla. 5th DCA 2004); Morrison, 621 So.2d at 468. In support of his position, Torres relies upon: the allegations of the amended complaint stating that at the time of the accident Cruz-Govin was under the influence of drugs, alcohol, prescription medication and/or over-the-counter medication which impaired his ability to drive in a safe manner; the defendants denial of this allegation in their answer to the complaint; and, based on the discovery obtained to this point, a strong inference that Cruz-Govin was under the influence of illegal substances at the time of the accident.

We conclude that Torres did not meet his burden of showing that an exception to the psychotherapist/patient privilege applies. First, the complaints allegations as to Cruz-Govin’s impairment and the strong inference from other discovery of illegal drug use do not abrogate the privilege. The statutory exception applies when the patient, not the opposing party who seeks the privileged information, places his mental health at issue. Torres “cannot pierce the privilege by filing a claim that makes an issue of [Cruz-Go-vin’s] mental health.” Viveiros, 832 So.2d at 869; Bandorf v. Volusia County Dep’t of Com., 939 So.2d 249, 251 (Fla. 1st DCA 2006); Cohen v. Cohen, 813 So.2d 1060, 1061 (Fla. 4th DCA 2002); Morrison, 621 So.2d at 469; Hall v. Spencer, 472 So.2d 1205, 1206 (Fla. 4th DCA 1985).

Second, Cruz-Govin did not place his mental or emotional condition at issue by merely denying the opposing party’s allegations or suggestions of impairment at the time of the accident. It is Torres’s allegations of impairment that have made Cruz-Govin’s treatment a part of the case. Absent these allegations, Cruz-Govin would not have addressed this issue in his case. See C.L. v. Judd, 993 So.2d 991, 995-96 (Fla. 2d DCA 2007); Leonard v. Leonard, 673 So.2d 97, 99 (Fla. 1st DCA 1996); Peisach v. Antuna, 539 So.2d 544, 546 (Fla. 3d DCA 1989); see also Silveus v. Silveus, 807 So.2d 790 (Fla. 2d DCA 2002) (quashing order directing release of psychological records holding that petitioner did not place her mental health at issue by presenting evidence to counter allegations that she was mentally unstable); Arias v. Urban, 595 So.2d 230 (Fla. 3d DCA 1992) (holding that patient-defendant or anyone authorized to act on his behalf did not waive the psychotherapist-patient privilege by denying the complaint allegations as to knowledge of the patient-defendants mental instability).

Finally, Cruz-Govin has not relied on his mental or emotional condition as part of his defense in this case. In his answer, he raises several affirmative defenses, including comparative negligence, unforeseeability, failure to use a seat belt, and third-party negligence. These defenses, however, do not put his mental or emotional condition at issue. See C.L., 993 So.2d at 995-96 (holding that psychotherapist-patient privilege was not abrogated when the defendant raised defenses of estoppel and duress); Morrison, 621 So.2d at 468 (same; defenses that defendant acted reasonably and in good faith). Because Cruz-Govin has not relied upon his mental or emotional condition in this case, section 90.503(4)(c) does not abrogate the asserted privilege.

Accordingly, we grant the petition for certiorari and quash the discovery orders at issue.

Petition granted.

      . On May 21, 2009, the trial court also entered orders permitting Wilson Torres to subpoena Cruz-Govin’s Sober College records, and compelling Cruz-Govin's father to answer interrogatories concerning Cruz-Govin's participation in the Sober College drug rehabilitation program.

      . We also hold that the trial court abused its discretion in finding that Cruz-Govin waived the psychotherapist-patient privilege by failing to file a privilege log. Because petitioners' objection is "category,” not "document,'' specific, they were not required to file a privilege log. See Nevin v. Palm Beach County Sch. Bd., 958 So.2d 1003, 1008 (Fla. 1st DCA 2007) ("Waiver for failure to file a privilege log should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected.”).

      . Because we hold that the privilege precludes production of the information and records, we need not consider whether issuance of the subpoena to Sober College complied with other applicable provisions of Florida Rule of Civil Procedure 1.351(b). We note, however, that Torres failed to file a notice of intent to serve the subpoena, giving the petitioners ten-day notice, and that the subpoena did not inform the recipient that it may object. See Figaro v. Bacon-Green, 734 So.2d 579 (Fla. 3d DCA 1999).

      . Following a search, some items were taken from Cruz-Govin's car and sent to NMS Labs for testing. The tests revealed the presence of trace amounts of cocaine, THC and marijuana.


text:
    Juan Carlos ALBO and Sandra M. Albo, Appellants, v. Terry GILLEN and Directv, Inc., etc., Appellees.
    No. 3D09-946.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Leonardo A. Canton, Coral Gables, for appellants.
    Stump, Dietrich & Spears and Douglas C. Spears, Orlando, for appellees.
    Before GERSTEN, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Hickman v. Barclay’s Int’l Realty, Inc., 16 So.3d 154 (Fla. 4th DCA 2009).


text:
    GROVE SERVICES INCORPORATED OF MIAMI, et al., Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 3D09-1122.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Carolann A. Swanson, Miami; Malcolm A. Misuraca, Pro Hac Vice, for appellants.
    Adorno & Yoss and Wesley R. Parsons and Jack R. Reiter, Miami, for appellee.
    Before RAMIREZ, C.J., and SUAREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We hold that our decision in State, Department of Agriculture and Consumer Services v. Varela, 732 So.2d 1146, 1147 (Fla. 3d DCA 1999), relying on Department of Agriculture v. Polk, 568 So.2d 35 (Fla.1990), is dispositive of this appeal and decline the invitation to disapprove that decision.

Affirmed.


text:
    BISCAYNE PLAZA DOLLAR STORE, INC., et al., Appellants, v. GREEN EAST # 2, LTD., Appellee.
    No. 3D09-1251.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.

      Kevin Coyle Colbert, Miami, for appellants.
    Wadsworth Huott; Christopher W. Wadsworth and Guy F. Giberson, Miami, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Bradley v. Sanchez, 943 So.2d 218, 221-22 (Fla. 3d DCA 2006).


text:
    ARENA VENTURES, LLC, a Florida Limited Liability Company, Appellant, v. MIAMI-DADE COUNTY PROPERTY APPRAISER, Miami-Dade County Tax Collector, and Florida Department of Revenue, Appellees.
    No. 3D09-2312.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Zink, Zink & Zink and Larry A. Zink, Hillsboro Beach, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Thomas W. Logue, Assistant County Attorney, for appellees.
    Before RAMIREZ, C.J., CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Ward v. Brown, 894 So.2d 811 (Fla.2004).


text:
    Arturo VARELA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-133.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Arturo Varela, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

In his Rule 3.800(a) motion tiled below, Arturo Varela asserted that, according to his plea agreement, he is entitled to 576 days credit for time served. The trial court denied the motion, stating that he had previously received all credit for time served. The trial court, however, did not attach any records refuting Varela’s claim to such credit. In Varela’s motion for rehearing, he argued that he has only been awarded 263 days credit for time served and that a written sentencing order awarding him credit has not been entered in the violation of probation case. The trial court again summarily denied the motion without attaching documentation conclusively refuting appellant’s claims. Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to the credit for time served.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Elvis LOPEZ, Appellee.
    No. 3D09-1504.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellant.
    Allen S. Katz, Miami, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The State appeals from an order in a prosecution for cocaine trafficking and conspiracy which suppressed self-incriminating statements obtained after a Terry stop the lower court found was unsupported by founded suspicion of the defendant’s involvement in criminal activity. We reverse.

I.

The case stems from an undercover drug arrest. On June 12, 2008, undercover detective Valdez had arranged to purchase two kilograms of powder cocaine from Marcos Lopez. The officer had previously purchased drugs from him on several occasions, in all of which he had been assisted by others. Prior to the sting, Marcos was surveilled by officers who observed him arrive at a residence and then leave with another man, whom they did not know but who turned out to be his cousin, the defendant, Elvis Lopez. Elvis followed Marcos in his own car to a Benni-gan’s parking lot. Marcos met with Valdez on the east side of the lot while the defendant parked on the south side and remained in his vehicle.

After the faux transaction had been completed, a takedown unit moved in and arrested Marcos. Elvis immediately began bacldng up to leave, but Detective Oliva used his car to block and then detain him. After the stop, Elvis volunteered that Marcos owed him money, and that he was there to collect the debt from the proceeds of the sale he knew was going to take place. After the defendant agreed to accompany Oliva to the police station, he was read and waived his Miranda rights and then gave the recorded interview primarily at issue on appeal, in which he specifically admitted his involvement in the unlawful transaction.

At an evidentiary hearing on the defendant’s motion to suppress, which challenged the validity of the initial investigatory stop, Valdez testified that, based on his broad experience, a second vehicle follows a vehicle involved in a drug transaction to insure that there are no law enforcement officials at the transaction site. On the same basis, Oliva stated that the defendant’s behavior gave rise to the suspicion that he was in communication with Lopez during the drug sale. Notwithstanding all of this, the lower court suppressed the admissions, ruling that the stop of which the statements were products was unjustified.

II.

To the contrary, we think it clear that the circumstances apparent before the stop gave rise to a founded or reasonable suspicion, as required by the Constitution, that the defendant was a principal or accomplice in the ongoing drug transaction. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Baptiste v. State, 995 So.2d 285, 290 (Fla.2008) (“[T]he existence of a reasonable suspicion is based upon specific and articulable facts, and the rational inferences that may be drawn from those facts.”); State v. Arango, 9 So.3d 1251 (Fla. 3d DCA 2009); § 901.151(2), Fla. Stat. (2007) (“Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state ... the officer may temporarily detain such person.... ”).

The contrary conclusion, which seems to have been indulged by the trial judge, amounts to a finding not only that the defendant’s actions in accompanying, following, and waiting for Marcos and then attempting to flee when he was apprehended were completely innocent and the connections to the drug deal completely coincidental, but that the police were unreasonable as a matter of law in thinking otherwise. To put it mildly, that conclusion is unacceptable. As observed in State v. Maya, 529 So.2d 1282, 1287 n. 7 (Fla. 3d DCA 1988), these determinations do not “turn on whether an innocent explanation can possibly be conjured up from what are obviously incriminating circumstances. Rather, [they are] dependent on what a realistic view of the facts justifies or requires.” Not only can we not fault the police for stopping Elvis, but, as Terry itself says, “[i]t would have been poor police work indeed for [the] officer ... to have failed to investigate[ ][his] behavior.” Terry, 392 U.S. at 23, 88 S.Ct. 1868. See Terry; U.S. v. Canela, 144 Fed.Appx. 17 (11th Cir.2005), and Brown v. State, 719 So.2d 1243 (Fla. 5th DCA 1998). Applying these principles, the stop was justified, Terry; § 901.151(2), and the order under review cannot stand.

Reversed and remanded.

      . "There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate the behavior.” Terry, 392 U.S. at 22-23, 88 S.Ct. 1868.

      . In Canela, an officer conducting surveillance during an undercover drug transaction in a parking lot was told that a second or third "target” may be involved. During the observation, he noticed a brown Toyota Camry, driven by the defendant and not supposed to be there, doing what he thought was counter surveillance of the area. The unusual activity piqued the officer's interest as a drug deal was already taking place. During the takedown, the car left the scene, but was stopped by another officer, resulting in the recovery of a gun and cocaine from his person.

      .In Brown, an undercover officer arranged to purchase cocaine from an unknown drug dealer at a shopping center parking lot. The officer did not have a description of the suspect, but believed him to be a black male. The officer had provided the defendant with a description of his car and parked it diagonally over several spaces so that it would be easily identifiable. When the dealer was an hour late, the officer went to a nearby payphone to call him. Shortly after, a car driven by the a black male drove into the parking lot, circled the entire length of the lot from east to west, and pulled alongside the officer's vehicle to look inside. After doing so, the defendant drove away, circled the lot again, and once again pulled up next to the officer's car, taking a longer look before driving off. The officer radioed a patrol officer, part of the team, to stop the defendant’s vehicle. K-9 dogs signaled there were drugs in the car, and a search uncovered the evidence.