author: PER CURIAM. VILLANTI, J.,

text:
    Christian N. ZARRA; Genesis One, LLC; and Lee Alexander, on behalf of themselves and all others similarly situated, Appellants, v. Ken BURKE, Clerk of the Circuit Court for Pinellas County, Florida, and as representative of all other Florida clerks of the circuit courts similarly situated, Appellee.
    No. 2D09-1181.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2010.
    Andra T. Dreyfus and Morten B. Chris-toffersen of Andra Todd Dreyfus, P.A., Clearwater; and F. Wallace Pope, Jr., and Kimberly L. Sharpe of Johnson, Pope, Bo-kor, Ruppel & Burns, LLP, Clearwater, for Appellants.
    Barry Richard and Glenn T. Burhans, Jr., of Greenberg Traurig, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellant Christian N. Zarra filed a class action complaint seeking a declaratory judgment regarding the clerk of court’s authority to charge a reopen fee for cases previously reported as disposed of. The complaint also sought a refund of the disputed fees. Zarra made three attempts to amend the complaint to overcome pleading deficiencies. Because the second amended complaint failed to cure the deficiencies, the trial court dismissed the complaint with prejudice and, thus, did not address the underlying challenge to the reopen fee. Therefore, the only issue before this court, for de novo review, is whether the complaint states a cause of action. See Lutz Lake Fern Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380 (Fla. 2d DCA 2000). In a lengthy order, the trial court noted the pleading deficiencies and explained its reasoning for dismissal. We agree with the trial court’s ruling and, therefore, affirm.

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

VILLANTI, J., Concurs specially with opinion.

VILLANTI, J.,

Concurring specially.

Once again, the issue sought to be raised is the proper interpretation of sections 28.241(l)(b) and 34.041(2), Florida Statutes (2008), which allow the clerk of the court to set and charge a fee for reopening a civil action that has been “previously reported as disposed of.” The problem is that the term “previously reported as disposed of’ is not defined by either statute. Given the lack of a definition, the clerk has defined the term “disposed of’ based on the definition of “disposition” contained in the Summary Reporting System Manual (SRS Manual). That manual was created by the Office of the State Court Administrator pursuant to section 25.075, Florida Statutes (2008), to measure judicial workload. The definition of “disposition” contained therein was not intended to apply in the context of section 28.241(l)(b) to establish fees payable to the clerk of court for filings in circuit court cases.

In this case, based on the SRS Manual’s definition, the clerk charged the appellants multiple reopening fees. The appellants alleged that these fees were improperly assessed in cases which should have never been closed or deemed “disposed of,” and they filed a class action complaint requesting, inter alia, declaratory relief. Specifically, they asked the circuit court to determine the proper definition of the term “disposed of’ under sections 28.241(l)(b) and 34.041(2).

In its order granting the clerk’s motion to dismiss the second amended complaint, the trial court noted that it did not “doubt there have been instances of abuse in the imposition of the statutorily authorized [reopening] fees that are the subject of this action.” In fact, there is at least one case in which the reopening fee was found improper. See Burke v. Esposito, 972 So.2d 1024 (Fla. 2d DCA 2008) (denying petition for certiorari review where the clerk had been ordered to refund a $50 reopening fee). Based on this history, one wonders why a public service office such as the clerk’s has not worked with reasonable dispatch to formulate appropriate guidelines and thereby ensure public confidence in its assessment of reopening fees. Unfortunately, neither the Florida Association of Court Clerks & Comptrollers nor the local clerk of court has revised the definition of “disposed of’ utilized by the clerk to address concerns that reopening fees are being assessed in cases which “from any reasonable perspective” should not have been “closed” or should not have been charged multiple fees. See id. at 1025.

In Esposito, Judge Altenbernd’s concurring opinion aptly noted the need for a more appropriate definition for the term “disposed of.” 972 So.2d at 1029. I endorse his views of the two potential means to achieve this result — legislatively and judicially. Naturally, a definition created by the legislature would be the preferred method because it would be the quickest and most efficient means to uniformly address this issue, given the varied legal and policy concerns which would need to be considered in crafting an appropriate definition. Those considerations are best served if fleshed out in a friendly legislative committee rather than in adversarial trial proceedings, such as might be available in county court on a case-by-case basis.

In conclusion, in my view, charging a “reopening fee” is not, on its face, an unreasonable concept. It is the manner, in certain instances, in which that fee is being assessed that has come under attack. Thus, as this case shows, public confidence will not be restored regarding the assessment of reopening fees until uniform and reasonable guidelines are established independently of the SRS Manual.

      . This issue was previously raised in a petition for writ of certiorari in Burke v. Esposito, 972 So.2d 1024 (Fla. 2d DCA 2008).

      . As tills case demonstrates, attempting to establish a plaintiff and a defendant class in a declaratory setting will, in most instances, be difficult if not impossible to do.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fausto JUAREZ, Appellant, v. R.B. BAKER CONSTRUCTION, INC. and Amerisure Mutual Insurance Co., Appellees.
    No. 1D08-2575.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Steven M. Meyers of Meyers & Stanley, Orlando, for Appellant.
    Michael C. Crumpler of Law Offices of Michael C. Crumpler, PA, Jacksonville, for Appellees.
   PER CURIAM.

Because the Judge of Compensation Claims (JCC) lacked authority to vacate his abbreviated final order, he also lacked authority to enter subsequent orders, and the abbreviated final order remains in effect. See § 440.25(5)(a), Fla. Stat. (2007); Fla. R.App. P. 9.180(b)(2); Millinger v. Broward County Mental Health Div. & Risk Mgmt., 672 So.2d 24 (Fla.1996). Cf. Johnson v. Terry Hunt Constr. Co., 878 So.2d 1282 (Fla. 1st DCA 2004) (reversing order of JCC that denied appellant’s motion to vacate final order where JCC made findings that supported granting relief and erroneously determined he lacked authority to do so). Because the subsequent orders were void ab initio, the Order Vacating Abbreviated Final Order, dated October 30, 2007, and the Final Compensation Order Denying Benefits, dated May 7, 2008, are hereby VACATED. See Kelly v. Colston, 977 So.2d 692 (Fla. 1st DCA 2008).

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


author: SALTER, J.

text:
    Katie K. SEYMOUR as mother and next friend of Marquese Williams, a minor, Appellant, v. PANCHITA INVESTMENT, INC., Appellee.
    No. 3D09-1558.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Jorge A. Duarte, South Miami, for appellant.
    Juan C. Zorrilla; John Phillips, Jr., for appellee.
    Before WELLS, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

Katie Seymour, on behalf of her minor child, appeals a circuit court order setting aside a final judgment awarding her money damages. The child was allegedly injured while she and her mother occupied a rental apartment owned and maintained by the appellee, Panchita Investment, Inc. The final judgment below was based on Panchita’s failure to file any pleading or paper, a default entered by the court, and a trial by jury (in which Panchita did not participate) on damages. The judgment was set aside by the trial court upon later motion by Panchita because “both the summons and the verified return of service were defective and legally ineffectual to serve Panchita Investment, Inc. with process.”

We are compelled to affirm despite our complete agreement with the appellant that this corporate defendant surely must have known that it was being sued by Ms. Seymour. We remand the case for further proceedings on the merits based on Ms. Seymour’s amended return of service dated May 11, 2009.

The original summons in this single-defendant case against Panchita stated that it was to be served on:

Jorge Ramos 14024 NW 82 Avenue Miami Lakes, Florida 33016

The summons and complaint were served on Mr. Ramos two days after the complaint was filed. Five days later, the process server filed an original return of service stating under oath that the process server “individually served the within named person,” Ramos individually. The return of service, like the summons itself, did not identify any corporate position or capacity in which Ramos was served.

It is undisputed that Mr. Ramos is, and always has been, Panchita’s registered agent and sole officer and director, and that the address shown on the summons is Panchita’s principal place of business, its mailing address, and its registered agent’s and sole officer/director’s address. The caption for the lawsuit on the summons and complaint, and the allegations within the complaint, disclosed that Panchita, not Ramos, was the defendant. The issue is whether these facts cure the threshold deficiency in the summons and return of service regarding the identity of the defendant being served and the corporate capacity of that person.

A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant. A rather straightforward group of rules and statutes sets out bright-line, well-tested procedures for preparation and service of the summons with the complaint. Despite those clear-cut provisions and procedures (and because lawyers and process servers are as fallible as any other group), the rules are occasionally disregarded, twisted, or tested.

In this case, the summons and return of service erroneously identified Jorge Ramos personally as the individual being served. The summons and return of service did not state that the corporation (appellee, Panchita Investment, Inc.) was served, or that Ramos was only being served as a registered agent or corporate officer of a corporation. Most defendants receiving initial legal papers are not lawyers, and the persons who are to supervise the preparation and filing of those papers are ordinarily licensed to practice law. A non-lawyer receiving the summons and complaint in the record here might reasonably conclude that he or she was served erroneously. If the intention was to sue Jorge Ramos individually, the complaint fails to state that and Ramos could safely disregard the papers. If the intention was to sue Panchita, the summons fails to state that and Panchita could assume that the plaintiffs failed to specify which “person,” the individual or the corporation, they intended to sue. In this case, Panchita filed no pleading or paper in the case until it moved to vacate the final judgment after default, so no waiver argument can succeed.

The case law has distinguished “void” service, which fails to confer jurisdiction over the defendant, from “irregular” service, which is voidable and “close enough” to obligate the recipient to respond (via a timely motion to quash service). Ms. Seymour’s initial attempt at service falls into the first category, a “void” attempt at service on a corporate defendant.

For example, Ms. Seymour cites State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936), for the distinction between “a total want of service where the defendant received no notice at all” and “a service which is irregular or defective but actually gives the defendant notice of the proceedings against him,” arguing that in the present case Panchita did have notice of the proceedings against it. In State ex rel. Gore, however, the defendant was properly named in his “individual and representative capacity” in the summons; the issue was the timing of the service and the constitutionality of a “show cause” procedure for the enforcement of a mechanic’s lien. 171 So. at 651. That case did not determine whether a summons identifying and served on the wrong “person” (an individual versus a corporation) is merely voidable rather than void.

In a nutshell, the question before us is whether an individual served with a summons naming him individually is charged with “notice” of (1) the contents of the complaint attached to the summons and (2) the current corporate information on file with the Division of Corporations regarding the individual’s status as a registered agent or officer with a corporation identified in the complaint. Turning to the more recent cases on that point, there are distinguishable because they involved subsequently-amended, inapplicable corporate service provisions specifying the order in which a process server was to attempt service. In Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969), for example, the then-applicable statute required the process server to establish the absence of the corporate directors before the complaint could be served on a manager at the place of business. The district court of appeal classified the service in that case as “irregular” and “voidable” rather than “void.” But in that case, there was no doubt that the corporation was the “person” being served; both the summons and the return of service stated that “J.M. Fields, Inc.,” the corporate defendant, was the entity being served.

In Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla.2006), the court states that service of process is merely a “means of notifying a party of a legal claim.” That phrase, however, is followed by a reaffirmation of case law establishing that the service of process must give notice “to the defendant in the case that he is answerable to the claim of plaintiff.” Id. (emphasis supplied). Ramos was not a defendant in Ms. Seymour’s case.

Similarly, this Court’s decision in American Hospital of Miami, Inc. v. Nateman, 498 So.2d 444, 445 (Fla. 3d DCA 1986), employed a broad definition of “notice” regarding a summons. In that case, John Mudd was served “as Resident Agent for American Hospital of Miami, Inc.,” and the “complaint that accompanied the summons named American, not John Mudd, as the defendant.” Id. This Court properly rejected “this hypertechnical defect in the summons” because of well-settled law that “service on a resident agent or on the head of a corporation as resident agent or as head of a corporation is service on the corporation.” Id. (emphasis supplied). In the present case, however, Ramos was served as Ramos, not “as resident agent” or as an officer of the corporate defendant, Panchita.

Finally, Cannella v. Auto-Owners Ins. Co., 801 So.2d 94 (Fla.2001), does not require a different result here. The issue in that case was whether service of process on Monica Mock as registered agent of a dissolved corporation (Mock Plumbing, Inc.) would suffice in view of a specific statute requiring service on a dissolved corporation to be made “on one or more directors of the corporation as trustee.” 801 So.2d at 96. The strange circumstance in that case was that the corporate records did not include the identification of any director; Ms. Mock had been listed as president and registered agent, and no other person was identified in any capacity for the corporation before or after dissolution. Our Supreme Court’s analysis, though unquestionably correct and just, has no bearing on the facts of the case presently before us:

The purported “no director/no service” theory advanced by Auto-Owners attempts to thrust Mock [the dissolved corporation] into a veritable “unserva-ble” limbo status after Mock inflicted injuries on a Florida citizen. This position is not supported by the corporate documents filed with the State of Florida, nor is it consistent with logic, common sense, or Florida’s scheme for corporate operation. A corporation is required to have a director and, if not, director responsibilities are placed on those performing director functions. See § 607.0801, Fla. Stat. (1991); In re Holiday Isles, Ltd., 29 B.R. 827, 829 (Bankr.S.D.Fla.1983) (recognizing that a person exercising the duties of a director of a corporation who has not been elected as a director is treated by courts as a de facto director who is subject to all duties and liabilities of a de jure director).

Canella, 801 So.2d at 99 (citations omitted).

In the present case, Panchita had not been dissolved, and the public records made it easy to serve Panchita properly. Ms. Seymour’s counsel and process server simply failed to follow the rules until 2009, when the amended summons was served, the amended return of service was filed, and the trial court allowed the amendment.

The statutes regarding service of process on corporations “must be strictly construed and strictly complied with.” Lisa, S.A. v. Gutierrez, 806 So.2d 557, 559 (Fla. 3d DCA 2002) (quoting Washington Capital Corp. v. Milandco, Ltd., Inc., 665 So.2d 375 (Fla. 4th DCA 1996)). A rule of notice allowing service on an individual as an individual to constitute service on a corporation because of a connection that is not made clear on the face of the summons is a rule susceptible to factual disputes, inviting “close enough” as in hand grenades and horseshoes. Such an approach has been specifically rejected in similar cases.

A further consequence of this analysis is that Panchita’s motion to vacate the judgment was well taken, and not subject to a one-year time limit, because the judgment (like the purported service) was “void” under Florida Rule of Civil Procedure 1.540(b)(4). The trial court was also correct in its ruling on this point.

For these reasons, we affirm the order below and remand the case to the trial court so that Panchita may respond (based on the amended return of service approved by the trial court in 2009 and Panchita’s appearance in the case) and the injury claim may proceed, better late than never.

Affirmed; case remanded for further proceedings.

      . The dates are critical in this saga.
      • June 30, 2002: Ms. Seymour's child was allegedly injured.
      • October 18, 2004: Her complaint was filed, and the initial, defective summons was issued.
      • October 20, 2004: Jorge Ramos, individually, was served.
      • October 25, 2004: The return reflecting that individual service was filed.
      • November 29, 2004: Ms. Seymour filed a motion for default. Despite the failure of Ramos or the corporate defendant to file any pleading or paper, the clerk would not enter a clerk’s default, prompting this motion for default. As the trial judge who later vacated the default final judgment observed, the fact that the clerk did not enter a clerk's default is itself quite telling.
      • April 2005: An order of default was entered after a hearing on that motion.
      • May 1, 2006: The damages case was tried by a jury.
      • May 8, 2006: A final default judgment was entered.
      • October 2006: Panchita's first motion to vacate that judgment was filed (prompted, no doubt, by discovery in aid of execution).
      • April 30, 2009: The trial court enters an order vacating the judgment following Panchita amended motion to vacate the judgment in 2008.
      • May 11, 2009: Eleven days later, the process server prepared an amended return of service regarding the summons served over four years earlier — the amended return reported under oath that the process server received the summons for service on Panchita (not Ramos individually) “by serving its registered agent: Jorge Ramos [address]” and that indeed Panchita had been served on October 20, 2004, by delivering a true copy to "Jorge Ramos as registered agent [address].”
      • May 12, 2009: Ms. Seymour moved to amend the return of service pursuant to section 48.21, Florida Statutes (2004).
      • August 6, 2009: That motion was granted, over seven years after the child’s accident.

      . As to the corporate defendant in this case, see Fla. R. Civ. P. 1.070 and 1.080, and §§ 48.081, 48.21, 607.0504 and 607.0505, Fla. Stat. (2009).

      . Our Supreme Court’s opinion states that service of process was accomplished by personal service upon Ms. Mock “as a ‘registered agent' rather than as a ‘director.’ ” Cannella, 801 So.2d at 99. Thus in her case, unlike the present case, the summons made it clear that the person served was being served in a corporate capacity. The underlying district court opinion also states that "service of process was improperly made upon the registered agent of the dissolved corporation,” indicating that the summons identified Ms. Mock’s representative capacity on behalf of the dissolved corporation. Auto-Owners Ins. Co. v. Cannella, 737 So.2d 1129, 1130 (Fla. 2d DCA 1999).

      . In McLendon v. Smith, 589 So.2d 410 (Fla. 5th DCA 1991), a summons was served on Ms. McLendon in her individual capacity, but that was found to be insufficient to establish jurisdiction over her as personal representative of an estate. The district court of appeal found that this was not a "technical variance or minor deficiency,” and that the summons "failed altogether to summon the defendant [the estate].” 589 So.2d at 412. In Dade Erection Service, Inc. v. Sims Crane Service, Inc., 379 So.2d 423, 425 (Fla. 2d DCA 1980), another district court of appeal cited several cases and the applicable statutes for these propositions: corporations are fictional entities and thus there can be no "personal” service on them; service can only be made on some representative or agent of the corporation designated by law; the applicable statutes provide the exclusive means of effecting service; and those provisions must be strictly construed. Applying those basic principles, the court found no jurisdiction had been acquired over a corporation and that a default final judgment was void. That is what we are required to do.

      . The trial court allowed the return of service to be amended in an order entered in August 2009, well after Panchita and its counsel appeared and began to participate. In allowing the amended return, it would appear that the court has exercised its discretion not to enforce the 120-day period ordinarily allowed for service pursuant to Fla. R. Civ. P. 1.070(j). Our Supreme Court softened that rule in 1998 after recognizing that "the old rule was a litigation breeder wherein the dismissal of one action in the name of judicial case management simply generated another action predicated upon legal malpractice.” Totura & Co., Inc. v. Williams, 754 So.2d 671, 677 (Fla.2000). Ms. Seymour's filing of the complaint in October 2004 tolled the running of the applicable statute of limitations. Szaho v. Essex Chem. Corp., 461 So.2d 128 (Fla. 3d DCA 1984).


text:
    E.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D09-1988.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Sanford Rockowitz, for appellant.
    Karla F. Perkins, Department of Children and Families, Miami; Hillary Kamb-our, Guardian Ad Litem, for appellees.
    Before RAMIREZ, Chief Judge, and SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

Just as we have affirmed recently the termination of parental rights of the mother, M.S., to the child, X.M., we, now likewise, affirm the termination of parental rights as to the father, E.M. See M.S. v. Dep’t of Children & Family Servs., 26 So.3d 691 (Fla. 3d DCA 2010); L.M. v. Dep’t of Children & Family Servs., 963 So.2d 871 (Fla. 3d DCA 2007).

Affirmed.


text:
    Alexis QUEVEDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2748.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    Carlton OWENS, Appellant, v. The STATE Of Florida, Appellee.
    No. 3D09-1763.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg and Amy Weber, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

PER CURIAM.

Upon considering the State’s confession of error, with which we agree, we hereby reverse and remand for re-sentencing.

Reversed and remanded.


author: ROTHENBERG, J.

text:
    Leonardo PEREZ-CARDOSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-279.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

On January 14, 2009, after conducting a community control violation hearing, the trial court found that the defendant, Leonardo Perez-Cardosa, had willfully violated his community control in Case Numbers 05-12730, 07-14594, and 07-89894 by changing his residence without the consent of his community control officer and failing to attend a drug/alcohol evaluation as instructed by his community control officer. Although the defendant was initially sentenced to ten years incarceration on each case, the following day the trial court reduced each of these sentences to seven years.

The sole issue raised in this appeal is the trial court’s failure to enter written orders memorializing its oral findings at the hearing. On September 11, 2009, this Court relinquished jurisdiction to allow the trial court to enter written orders of violation of the defendant’s community control. See Greene v. State, 919 So.2d 684 (Fla. 2d DCA 2006) (relinquishing jurisdiction for the entry of an order revoking probation); Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2008) (relinquishing jurisdiction for entry of an order revoking probation specifying the conditions violated).

On December 4, 2009, this Court granted the State’s motion to supplement the record with the written orders subsequently entered by the trial court. Because the sole issue raised on appeal was the failure to issue these orders and that issue has now been resolved, we affirm the judgments and sentences under review.

Affirmed.


text:
    William C. HAUCK, Appellant, v. The STATE of Florida, DEPARTMENT OF REVENUE, etc., Appellee.
    No. 3D08-2235.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    William C. Hauck, in proper person.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Shojaie v. Gables Court Prof'l Ctr., Inc., 974 So.2d 1140 (Fla. 3d DCA 2008).


author: WARNER, J.

text:
    STATE of Florida, Petitioner, v. Joel DE LA OSA, Respondent.
    No. 4D09-5003.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for petitioner.
    Teresa Williams, Fort Lauderdale, for respondent.
   WARNER, J.

The state petitions for a writ of certiora-ri to review the trial court’s order denying disqualification of defendant’s attorney, Teresa Williams, a former assistant statewide prosecutor in Broward County. It claims that the attorney was in charge of the investigative unit of the statewide prosecutor’s office from which defendant’s prosecution arose. Ms. Williams left her position four years prior to the institution of the charges in this case. We deny the petition.

While the state claims that Ms. Williams had substantial participation in this case as a prosecutor, at an evidentiary hearing on the issue, the trial court found that she did not. Competent substantial evidence supports the trial court’s finding. The task force in which Ms. Williams was involved targeted hundreds of individuals. Ms. Williams had limited involvement as a prosecutor regarding a co-defendant’s bond hearing in another case; names of some witnesses in the current case appeared in notes she took during staff meetings, but with no information related to the present cases; she represented the state at a hearing when two witnesses entered pleas; and she sat in for another prosecutor at a meeting with law enforcement regarding a co-defendant who could become a state witness. The state suggests that it is clear she has an actual or potential conflict because her employment with the task force gave her insight on the state’s strategy and position. However, during the hearing, at a private sidebar discussion between the state and the court without Ms. Williams present, the state did not point to any specific strategic insight or confidential information she would have.

To grant a writ of certiorari to quash a non-final order, the petitioner must show: (1) the order departed from the essential requirements of law; (2) the order will cause material injury; (3) and the injury must be irreparable, i.e., one for which there will be no adequate remedy after final judgment. Am. Express Travel Related Servs., Inc. v. Cruz, 761 So.2d 1206, 1208 (Fla. 4th DCA 2000) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987) and Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc)).

The denial of a motion to disqualify counsel may be reviewed in a petition for writ of certiorari. See Frank, Weinberg & Black, P.A. v. Effman, 916 So.2d 971 (Fla. 4th DCA 2005); Sultan v. Earing-Doud, 852 So.2d 313 (Fla. 4th DCA 2003); Matluck v. Matluck, 825 So.2d 1071, 1072 (Fla. 4th DCA 2002). The party seeking disqualification of counsel has the burden of proving that disqualification is necessary. Herschowsky v. Guardianship of Herschowsky, 890 So.2d 1246, 1247 (Fla. 4th DCA 2005).

Although the state has cited civil cases supporting its contention that disqualification is necessary, the test for disqualification of counsel in a civil case does not apply in a criminal case where the defendant’s Sixth Amendment rights are involved. See Freeman v. State, 503 So.2d 997, 998 (Fla. 3d DCA 1987); see also Endress v. Coe, 433 So.2d 1280, 1281 (Fla. 2d DCA 1983) (observing “the test to disqualify defense counsel in a criminal proceeding will not always be the same as the test that may disqualify counsel in a civil proceeding”).

The Sixth Amendment right to counsel includes a criminal defendant’s right to secure counsel of his own choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Although there is a presumption in favor of the defendant’s choice of counsel, the presumption may be overcome if the there is a showing of an actual conflict or “serious potential for conflict.” Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); see also United States v. Ross, 33 F.3d 1507, 1522-23 (11th Cir.1994). In moving for disqualification of counsel, the state has the burden of overcoming this presumption. See State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471, 481 (2001) (concluding the trial court erred in applying presumptions in favor of disqualification that apply in civil cases to disqualification of chosen counsel in a criminal case and concluding the burden of proof should be on the state).

The Ninth Circuit Court of Appeals has addressed the necessity of disqualification in circumstances quite similar to the present case. Like this case, United States v. Washington, 797 F.2d 1461 (9th Cir.1986), involved former government lawyers representing a criminal defendant. In Washington, the Ninth Circuit concluded the trial court erred in disqualifying the defendant’s chosen attorneys who previously worked for a Justice Department “strike force” based on a mere appearance of impropriety. In finding the trial court did not give proper deference to the defendant’s choice of counsel, the court reasoned:

We have grave doubts whether an appearance of impropriety would ever create a sufficiently serious threat to public confidence in the integrity of the judicial process to justify overriding Sixth Amendment rights. It is easy to express vague concerns about public confidence in the integrity of the judicial process. It is quite a different matter to demonstrate that public confidence-will in fact be undermined if criminal defendants are permitted to retain lawyers who worked for the government in the field of law implicated by an indictment. We are unwilling to sacrifice a defendant’s Sixth Amendment right to counsel of his choice on such an unsubstantiated premise. Indeed, for all we as judges know in a vacuum, the public very well may have greater confidence in the integrity of the judicial process assured that a criminal defendant’s right to counsel of his choice will not be lightly denied.

Id. at 1466. The court remanded for an evidentiary hearing to determine whether, as a result of their work with the strike force, the attorneys had received confidential information which was material to the government’s case and would give the defense an advantage. See also Robinson v. State, 750 So.2d 58, 60 (Fla. 2d DCA 1999) (noting that “a criminal defendant has a constitutional right to counsel of choice which cannot be overcome by mere unsubstantiated fears or allegations, and that an order disqualifying a defendant’s counsel over his or her objection must generally be supported by specific findings of fact in order to withstand appellate review”). As noted above, the trial court conducted an evidentiary hearing and determined that Ms. Williams had not obtained confidential information nor had the state proved that her work with the government four years earlier would provide her with an advantage in this case.

The state relies on cases such as United States v. Brothers, 856 F.Supp. 370 (M.D.Tenn.1992), and State v. Medina, 201 N.J.Super. 565, 493 A.2d 623 (1985). In each of those cases, however, a former prosecutor was properly disqualified from defending a criminal ease where the attorney, while working as a prosecutor, had learned of confidential information or evidence critical to the current prosecution. In Medina, for example, the court affirmed the disqualification of the defense attorney who, as a prosecutor, had learned of information bearing on a crucial element of the case against his client. In this case, the state was not able to prove to the trial court’s satisfaction such specific knowledge or involvement in defendant’s case by Ms. Williams.

The state has not shown that the trial court applied the wrong law or otherwise departed from the essential requirements of law. The petition for writ of certiorari is denied.

DAMOORGIAN and GERBER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Nicholas AGATHEAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4870.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied Feb. 24, 2010.

      Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND REHEARING EN BANC

DAMOORGIAN, J.

Nicholas Agatheas filed a Motion for Rehearing and Rehearing En Banc. We deny appellant’s motions, withdraw our opinion of December 16, 2009, and substitute the following.

After being tried and convicted of first degree murder with a firearm, Nicholas Agatheas (“the defendant”) appeals. We affirm.

On September 20, 2006, the defendant was arrested for murdering Thomas Villa-no (“the victim”). The State’s theory at trial was that the defendant hated the victim and retaliated against the victim for allegedly raping one of the defendant’s friends. The State argued that, on the night of the murder, the defendant showed up at the victim’s house and fatally shot him eight times in the head and neck.

The defendant’s former girlfriend testified that weeks prior to the murder, she walked in on the defendant in her bedroom dressed in black clothes wearing a bandana on his face and holding a revolver-type gun in his hand. She described the defendant’s appearance as that of a “gangster.” When she started to laugh, he grew very serious and told her that this was the way he was now.'

On the day of the murder, the defendant and the former girlfriend fought, and the defendant made arrangements to stay at a friend’s house that night. The former girlfriend then went to work and did not return home until later that evening. Shortly after arriving home, she noticed that the backpack in which the defendant stored his gun was missing from her closet. She had not spoken to the defendant since their fight earlier that day. Several hours after retiring to bed that night, she was awoken by the defendant’s phone call. According to the former girlfriend, the defendant called her from a pay phone and asked her to contact his friend and arrange for his friend to pick him up. The former girlfriend agreed and made the call.

A few nights later, while the former girlfriend and the defendant were watching TV, a news story aired about the victim’s murder. At this time, the defendant bragged to the former girlfriend that he murdered the victim because the victim raped one of his friends. He also admitted to her that he took off his t-shirt and left it at the scene of the crime. After murdering the victim, he drove the victim’s car around listening to music very loudly before abandoning it.

During the investigation of the murder, the police recovered a black t-shirt with the defendant’s DNA in the front yard of the victim’s residence. The police also recovered the victim’s vehicle near the pay phone the defendant used to call his former girlfriend on the night of the murder. The radio in the recovered vehicle was set at a high volume. Although there was evidence connecting the defendant to the crime, he was not charged at that time. It was not until the former girlfriend came forward years later that there was sufficient evidence to charge the defendant. With the former girlfriend’s statement, the police arrested the defendant for the murder. At the time of the arrest, the defendant had in his possession a backpack, which contained, among other things, a .45 caliber revolver and latex gloves nestled inside another pair of gloves.

At trial, the State introduced the actual contents of the defendant’s backpack and photographs of the contents, which included the .45 caliber revolver, latex gloves nestled inside another pair of gloves, a flashlight, batteries, a lighter, a screwdriver, and a bandana. However, as established by uncontroverted expert testimony, the gun used to murder the victim was a “.38 caliber gun or a .38 class gun.” The defendant’s counsel did not object at trial to the introduction of this evidence.

On appeal, the defendant claims that his trial counsel was ineffective for failing to object to the introduction of the .45 caliber revolver and the other contents of his backpack, and that the facts giving rise to this claim are apparent on the face of the record. See Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002) (“[Ineffective assistance of counsel will only be addressed on direct appeal for the first time when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.”). The defendant also argues that the introduction of the revolver was highly prejudicial and that it was fundamental error for the trial court to admit this evidence because the State failed to connect the revolver to the murder.

We first address the defendant’s ineffective assistance of counsel claim. An ineffective assistance of counsel claim is a mixed question of law and fact that is subject to de novo review. Bowman v. State, 748 So.2d 1082, 1083-84 (Fla. 4th DCA 2000). In State v. Pearce, the Florida Supreme Court cited the U.S. Supreme Court’s ineffective assistance of counsel test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and noted the heavy burden a defendant faces in order to prevail on an ineffective assistance of counsel claim:

[I]n ineffective assistance of counsel claims two requirements must be satisfied: (1) the claimant must identify a particular act or omission of the lawyer that is outside the broad range of reasonably competent performance under prevailing professional standards, and (2) the clear, substantial deficiency shown must further be shown to have affected the fairness and reliability of the proceeding so that confidence in the outcome is undermined. As to the first prong, the defendant must establish that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. There is a strong presumption that trial counsel’s performance was not ineffective.

994 So.2d 1094, 1099 (Fla.2008) (citations and quotation marks omitted).

As to the first prong of the Strickland test, as cited in Pearce, the defendant argues that his trial counsel should have objected to the admissibility of the backpack contents because the State failed to show how the contents were linked to the murder, and the evidence suggested that the defendant had a propensity to engage in criminal activities. We disagree and conclude that this evidence was relevant to corroborate the former girlfriend’s testimony. See Czubak v. State, 570 So.2d 925, 928-29 (Fla.1990); Williams v. State, 834 So.2d 923, 926 (Fla. 3d DCA 2003), rev’d on other grounds, 863 So.2d 1189 (Fla.2003) (citing Allen v. State, 662 So.2d 323, 327 (Fla.1995)); Kirby v. State, 625 So.2d 51, 53 (Fla. 3d DCA 1993) (stating that a photograph is admissible if relevant to an issue at trial, either independently or to corroborate other evidence, unless the probative value is outweighed by undue prejudice). On several occasions throughout the trial, the defendant’s trial attorney attacked the former girlfriend’s credibility, arguing, among other things, that she fabricated the story after a private investigator leaked information to her. The .45 caliber revolver and bandana recovered from the defendant’s backpack corroborated her testimony regarding her observations around the time the crime was committed. The photographs of these items were, therefore, relevant to her credibility. We also conclude that the latex gloves and photographs of the gloves were relevant and admissible because latex gloves like the ones found in the defendant’s backpack were found along the path from the victim’s vehicle to the pay phone that the defendant used to contact the former girlfriend on the night of the murder. The defendant’s trial attorney was not ineffective for failing to object to evidence that we conclude was relevant and admissible.

Although we have not found, and the State has not identified, any evidence connecting the flashlight, batteries, lighter, and screwdriver to the murder, we conclude that the erroneous admission of these items did not undermine confidence in the outcome of this cause and that the admission of this evidence was harmless. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Accordingly, we hold that the defendant has not stated a claim for ineffective assistance of counsel regarding the trial attorney’s failure to object to these items.

Having concluded that the .45 caliber revolver, bandana, and latex gloves, and photographs of these items were relevant and admissible, and that the admission of the other backpack contents was harmless error, we need not address the defendant’s claim that the admission of this evidence constitutes fundamental error.

We find no merit to any of the other issues raised.

Affirmed.

MAY and CIKLIN, JJ., concur.

      . The defendant correctly notes that fundamental error is the appropriate standard of review for this issue. Although a preserved argument regarding the admissibility of evidence is reviewed for abuse of discretion, the issue was not preserved for appellate review because no contemporaneous objection was made at trial; an unpreserved argument is reviewed only for fundamental error. See State v. Calvert, 15 So.3d 946, 948 (Fla. 4th DCA 2009).


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. Brandon ABBEY, Appellee.
    No. 4D09-88.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Mardi Levey Cohen of the Law Office of Mardi L. Cohen, P.A., Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

TAYLOR, J.

The defendant timely filed a motion for rehearing directed to our opinion dated November 18, 2009. We grant the motion for rehearing to the extent of substituting this opinion for our original opinion.

In this prosecution for vehicular homicide, the state appeals the trial court’s order granting the defendant’s motion to suppress evidence seized after execution of a search warrant. The trial court found that the affidavit and application for a search warrant for the “black box” from the defendant’s vehicle lacked sufficient facts to establish probable cause for issu-anee of the warrant. We disagree and reverse.

On September 25, 2006, around 12:48 p.m., the defendant was driving his Corvette northbound on Military Trail in the right lane, when Joseph Hatton, driving a Toyota Camry southbound in the left lane of Military Trail, attempted to make a left turn onto N.W. 5th Street in Deerfield Beach. The cars collided, and Hatton died as a result of his injuries from the crash.

Detective John Grimes of the Broward County Sheriffs Office investigated the accident and filed a General Affidavit and Application for Search Warrant for the sensing and diagnostic module (“SDM”) (also known as a “black box”) from the defendant’s vehicle. The officer alleged in his affidavit that his investigation “reveal[ed] that [the defendant] ... was traveling well in excess of the [40-m.p.h.] posted speed limit.” He stated that the “[p]ost impact distance traveled by both vehicles was greater than one hundred twenty five feet. There were no pre-impact tire marks, suggesting that no braking took place before impact. Post impact tire marks along with physical evidence on scene suggest that [the defendant’s] vehicle was traveling in excess of 70 [m.p.h.].” The affidavit further reported that an eyewitness “stated that she heard the tires on the vehicle that [the defendant] was driving ‘chirp’ as the vehicle was changing into a faster gear.”

The officer explained in the affidavit that the “black box” located in the defendant’s vehicle “may contain electronically stored data including, but not limited to, data pertaining to the pre impact speed of the vehicle, airbag system deployment time and status, engine RPM’s, brake circuit status, seat belt circuit status, Delta ‘V’ readings, and ignition cycles.” A search warrant was issued and executed.

The defendant filed a motion to suppress physical evidence from his vehicle, including information downloaded from the black box. After a hearing on the motion, the trial court granted the defendant’s motion to suppress the evidence. The court concluded “[t]hat the general affidavit and application for search warrant did not contain specific and sufficient facts to establish probable cause that a crime had been committed and that the evidence of that crime would be found in the defendant’s vehicle. Speed alone was insufficient.”

We review an appeal of an order granting a motion to suppress under the following standard of review:

Typically, “[t]he standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003) (citing Batson v. State, 847 So.2d 1149, 1150 (Fla. 4th DCA 2003)). However, where the issuance of a search warrant based on a probable cause affidavit is at issue, the standard of review is not de novo, but rather a standard of “great deference.” See United, States v. Soderstrand, 412 F.3d 1146, 1152 (10th Cir.2005). This standard of “great deference” is defined as follows:
“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of reviewing courts is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” DeLaPaz v. State, 453 So.2d 445, 446 (Fla. 4th DCA 1984) (quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)); see also Schmitt v. State, 590 So.2d 404, 409 (Fla.1991) (same). When so reviewing the issuance of a warrant based on a probable cause affidavit, a court is confined to a consideration of the four corners of the probable cause affidavit. See Schmitt, 590 So.2d at 409; Brachlow v. State, 907 So.2d 626, 628 (Fla. 4th DCA 2005). In sum, “[although the reviewing court ‘should afford a magistrate’s probable cause decision great deference,’ it should ‘not defer if there is no “substantial basis for concluding that probable cause existed.’” United States v. Beck, 139 Fed.Appx. 950, 954 (10th Cir.2005).

State v. Rabb, 920 So.2d 1175, 1180-81 (Fla. 4th DCA 2006) (alterations in original).

A search warrant for property may be issued “[w]hen any property constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2006) (emphasis added).

For the magistrate to determine that probable cause exists to issue a search warrant, two elements must be proven within the affidavit: “(1) the commission element—that a particular person has committed a crime—and (2) the nexus element—that evidence relevant to the probable cñminality is likely to be located at the place searched.” State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006) (citing Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003)) (emphasis added).

The Florida Supreme Court “defined ‘probable cause’ as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied.” Schmitt v. State, 590 So.2d 404, 409 (Fla.1991) (internal citations omitted). Further, the “existence of probable cause is not susceptible to formulaic determination. Rather, it is the ‘probability, not a prima facie showing, of criminal activity [that] is the standard of probable cause.’ ” Doorbal v. State, 837 So.2d 940, 952-53 (Fla.2003) (citing Illinois v. Gates, 462 U.S. 213, 230-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (alterations in original). The issuing magistrate’s duty “is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that ... evidence of a crime will be found in a particular place.” Rabb, 920 So.2d at 1180 (internal quotations and citations omitted).

Vehicular homicide is “the killing of a human being ... caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2006). Vehicular homicide, by definition, requires proving reckless driving, which is “driving with a willful or wanton disregard for safety.” D.E. v. State, 904 So.2d 558, 561 (Fla. 5th DCA 2005); accord § 316.192(1)(a), Fla. Stat. (2006).

We have held that “the rate of speed of a vehicle can be firmly shown ... to be so excessive under the circumstances that to travel that fast under the conditions is by itself a reckless disregard for human life or the safety of persons exposed to the speed.” Coperlino v. State, 726 So.2d 330, 332 (Fla. 4th DCA 1999). Speeding above the limit — for example, only five miles per hour above — does not normally prove the gross, wanton, or willful conduct that is associated with the “reckless disregard for human life or safety.” Id. We distinguished between speeding slightly over the speed limit, and speeding at “such an immensely excessive rate that no one could reasonably drive.” Id.

Although other “circumstances” are necessary to make a prima facie showing of vehicular homicide, such as location, time of day, and road conditions, see id., that is not the standard for probable cause in order to issue a search warrant. A magistrate may issue the search warrant “[w]hen any property constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (emphasis added). Excessive speed is a major factor in finding the crime of vehicular homicide occurred and therefore is relevant to proving the felony was committed, as required by section 933.02(3). See Copertino, 726 So.2d at 332-33 (affirming conviction of manslaughter by culpable negligence because the defendant was young, inexperienced, operating his vehicle in the late evening with reduced visibility at a major thoroughfare near residential areas in a large city, and his speedometer was locked at 90.41 m.p.h.); Pozo v. State, 963 So.2d 831, 832-33 (Fla. 4th DCA 2007) (holding that the mere fact that the defendant was driving at an excessive speed, between 67 and 90 m.p.h., in a residential neighborhood was enough to bring his case in line with Copertino and justify denying his motion for judgment of acquittal).

Here, the detective presented enough facts in his affidavit for the magistrate to make a practical, common-sense decision, based on the circumstances set forth in the affidavit, that the defendant committed the alleged crime (the commission element) and that “evidence relevant to the probable criminality [of vehicular homicide was] likely to be located at the place searched” — the Corvette’s black box (the nexus element). See Vanderhors, 927 So.2d at 1013. The affidavit alleged that the accident occurred on a Monday afternoon at 12:48 p.m. at the intersection of North Military Trail and N.W. 5th Street in Deerfield Beach. The affidavit further alleged that the defendant was traveling over 70 m.p.h., “well in excess of the [40-m.p.h.] posted speed limit.” Finally, the affidavit alleged that the vehicles traveled one-hundred-twenty-five feet after impact, that the lack of pre-impact tire marks suggested braking did not occur, and that a witness heard the gears “chirp” as the car accelerated to a faster gear. These facts showing excessive speed support the finding that there was a probability, though not necessarily a prima facie showing, of criminal activity — “operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat.

The magistrate needed only to determine whether the facts related in the supporting affidavit were sufficient to justify a probable cause determination, not whether the facts made a prima facie showing that the crime occurred. Doorbal, 837 So.2d at 952-53. Because the general affidavit and application for the search warrant in this case contained sufficient facts to establish probable cause that vehicular homicide was committed and that the evidence of that crime would be found in the defendant’s vehicle, the magistrate properly issued the search warrant. Accordingly, we reverse the trial court’s order suppressing the evidence.

Reversed.

GROSS, C.J., and HAZOURI, J., concur.

      . The defendant in Copertino appealed the denial of his motion for judgment of acquittal, 726 So.2d at 332, which has a higher standard than probable cause.


author: GROSS, C.J.

text:
    F.E.H., JR., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-740.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney Genera], West Palm Beach, for appellee.
   GROSS, C.J.

We reverse the circuit court’s finding that an interaction between appellant and a detective was a consensual encounter because, under the circumstances, a reasonable person would not have believed that he was free to disregard the order of a detective and leave the area. The stop and subsequent search therefore violated the Fourth Amendment.

Late one night a detective saw two males standing in the corner of the open parking lot of a closed daycare center. One of them was the 16 year old appellant. The detective got out of his car to investigate why the pair was on the property. At the same time, four or five other officers jumped out of their vehicles and walked past appellant to focus on other persons. When appellant walked away from the parking lot, the detective “called him back.” The detective did not pull his weapon. Appellant testified that he came back because “[h]e was a policeman; I had to come back.”

The area was a high narcotics area, so the detective asked appellant, “Is there anything I should know about? Is there anything on you I need to know about?” Appellant responded, ‘Tes, I have a bag of marijuana,” and handed it to the detective.

Appellant moved to suppress the seizure of the marijuana. After an evidentiary hearing, the circuit court denied the motion, holding that the stop was a consensual encounter and that appellant’s responses to the detective’s questions were voluntary. Appellant entered a plea of no contest to possession of less than 20 grams of cannabis and reserved the right to appeal the issue raised in the motion to suppress.

This case implicates the fuzzy constitutional line between a consensual encounter and an investigatory stop. See Johnson v. State, 785 So.2d 1224, 1228 (Fla. 4th DCA 2001) (acknowledging the “analytical difficulty” in distinguishing a citizen encounter from an investigatory stop). The Florida Supreme Court has described “three levels of police-citizen encounters” for the purpose of Fourth Amendment analysis. Popple v. State, 626 So.2d 185, 186 (Fla.1993). A first level “consensual encounter” involves “only minimal police contact,” during which

a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. at 186 (citing U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). The second level of police-citizen encounter is an investigatory stop. Id. At this level,

a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

Id. (citations omitted). Thus, an investigatory stop is a seizure for constitutional purposes, which requires a factual basis to support it. However, a consensual encounter is not a seizure, so it may occur without repercussion, even when a police officer has no reason to suspect that criminal activity is afoot.

“[W]hether a person has been seized in the constitutional framework -will be judged in accordance with the reasonable-person standard articulated by the United States Supreme Court in United States v. Mendenhall .... ” G.M. v. State, 19 So.3d 973, 978 (Fla.2009). In Menden-hall, a plurality of the Court concluded

that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

G.M., 19 So.3d at 978 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870 (emphasis added) (footnote omitted)); see also Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (where Supreme Court adopted the “free to leave” analysis utilized by the Menden-hall plurality to determine whether a seizure has occurred). Whether a seizure has occurred “is determined by what a reasonable person in [the defendant’s] position would have concluded based upon the conduct of the officers.” G.M., 19 So.3d at 980 n. 5 (citation omitted).

Here, appellant began to walk away from the detective. He returned to engage the detective as the result of what a reasonable person would believe was an order, so this response was more of a surrender to authority than an act of free will. Florida courts have held that a police officer’s direction to a person to do a particular thing, such as to get out of a car, to take hands out of pockets, or to open a mouth are indicative of a seizure. See Popple, 626 So.2d at 188 (concluding that deputy’s “direction” for defendant to “exit his vehicle constituted a show of authority which restrained [defendant’s] freedom of movement” amounted to a seizure); Kramer v. State, 15 So.3d 790, 791 (Fla. 5th DCA 2009) (ordering Kramer to open his mouth transformed consensual encounter into an investigatory stop); Johnson, 785 So.2d at 1228 (explaining that “ ‘[orders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.’ ” (quoting Harrison v. State, 627 So.2d 583, 584 (Fla. 5th DCA 1993))); Grant v. State, 596 So.2d 98, 100 (Fla. 2d DCA 1992) (finding encounter not consensual where officer ordered defendant to come over and talk with him).

This case resembles D.G. v. State, where this court held that a reasonable juvenile would not feel free to leave, where

the officer did not approach the juveniles, nor did he ask whether they minded approaching him to answer some questions. On the contrary, he ordered them to come over to him, using words of compulsion.

714 So.2d 644, 646 (Fla. 4th DCA 1998).

Here, the detective stated that when he saw appellant walk down the street, “that’s when I got out of my car and I called out to him.” He stated that he “called him back.” Appellant testified that the detective said, “Yo, come here” and that the detective “told me to come here.” He did not feel free to disobey that directive, because he knew the detective was an officer in the middle of a police action in which four or five other officers were involved. The detective’s words were more indicative of a command than a question, so this case is distinguishable from the line of cases holding encounters to be consensual where a policeman’s words were non-aggressive, indicative of a docile request suggesting that a defendant had the option to refuse. See P.W. v. State, 965 So.2d 1197, 1198 (Fla. 4th DCA 2007) (police officer in marked car pulled up next to juvenile and asked to speak with him through open window); Chapman v. State, 780 So.2d 1036, 1037 (Fla. 4th DCA 2001) (holding that one officer asking defendant to “[c]ome here for a minute, can I talk to you,” was not a seizure); State v. Crumpton, 676 So.2d 987, 988-89 (Fla. 2d DCA 1996) (asking defendant if “he ‘minded’ coming over to the unit and telling the officer what he had placed in his pocket” did not constitute a seizure).

Another factor supporting the finding of a seizure is that the detective approached appellant during a police sweep involving other officers. A police action involving a number of officers is a fact that can influence a person’s perception that he is not free to ignore an officer’s command. Thus, in Clayton v. State, 616 So.2d 615, 616-17 (Fla. 4th DCA 1993), the presence of four officers from a narcotics task force was one factor that “communicated to [the] defendant that he was not at liberty to ignore their presence and go about his business.” Compare J.N. v. State, 778 So.2d 440, 442 (Fla. 3d DCA 2001) (where three uniformed officers in police cars pulled up alongside juvenile and ordered him to stop, court concluded that a seizure had occurred), with State v. Triana, 979 So.2d 1039, 1044 (Fla. 3d DCA 2008) (observing that “[t]he presence of police officers alone, absent any indication of coercive words or acts, misrepresentation, deception, or trickery is insufficient to raise an inference of submission to police authority”).

In this case, the convergence of the police officers combined with the detective’s order created a display of authority sufficient to convince a reasonable juvenile that he had no choice but to comply with the detective’s direction. For this reason we hold that a seizure occurred when appellant returned to face the detective.

Finally, we reject the state’s alternative argument that the detective had reasonable suspicion to make an investigatory stop of appellant for trespassing. The parking lot where appellant was standing was an open parking lot on a corner, and people walking down the street often cut the corner by walking through the unenclosed lot. The state did not present sufficient evidence that the lot was “posted” within the meaning of subsections 810.09(l)(a) and 810.011(5)(a), Florida Statutes (2008). See Baker v. State, 813 So.2d 1044 (Fla. 4th DCA 2002); Smith v. State, 778 So.2d 329, 330 (Fla. 2d DCA 2000). Appellant had already left the premises when he was stopped. See L.J.S. v. State, 905 So.2d 222, 225-26 (Fla. 2d DCA 2005).

We reverse the conviction for possession of cannabis and remand to the circuit court to discharge the defendant.

MAY and CIKLIN, JJ., concur.

      . The third level of police-citizen encounter is an arrest supported by probable cause that a crime has been or is being committed. Popple, 626 So.2d at 186. Here, once appellant turned over the marijuana, there was probable cause to arrest. This case turns on the issue of whether there was an earlier constitutional violation.


text:
    L.M.B., Mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES and S.M.J., Father of L.A.J., a child, Respondents.
    No. 4D09-3088.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.

      Tami L. Augen of the Law Offices of Tami L. Augen, P.A., West Palm Beach, for petitioner.
    Jeffrey Dana Gillen, West Palm Beach, for Respondent Department of Children and Families.
    Philip J. Massa, Regional Counsel, and Patrick J. Reynolds, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for S.M.J. Father of L.A.J.
   PER CURIAM.

L.M.B., the mother, petitions for a writ of certiorari seeking to quash the trial court’s shelter order which sheltered her three-year-old child in the father’s home. See § 39.402, Fla. Stat. (2009). Before entering the order, the trial court conducted a shelter hearing pursuant to section 39.402(8) but refused to permit the mother to present evidence on the issue of whether the child should be removed. § 39.402(2), Fla. Stat. (2009) (requiring that certain criteria be met and that court make a finding regarding “the necessity for removal”). The court expressed its policy of determining probable cause for removal from the “four corners” of the verified shelter petition. The court’s refusal to permit the mother to present evidence regarding the necessity for removal was a departure from the essential requirements of law.

Since the filing of this petition, the mother has consented to an adjudication of dependency. Ordering a new shelter hearing would be ineffectual. We withhold issuing the writ, but because the issue is important and capable of repetition yet evading review, we write to express agreement with the holdings of our sister courts. L.M.C. v. Dep’t of Children & Families, 935 So.2d 47 (Fla. 5th DCA 2006) (confirming that a parent has a right to be heard and “to present evidence on the issue of probable cause” at a shelter hearing); In re J.P., 875 So.2d 715 (Fla. 2d DCA 2004) (holding that a refusal to permit a parent to be heard at a shelter hearing violated the statutory right to be heard).

The Florida Legislature has provided parents with a statutory right to present evidence at shelter hearings. § 39.402(8)(c)3., Fla. Stat. (2009) (providing that at a shelter hearing, the court shall “[g]ive the parents or legal custodians an opportunity to be heard and to present evidence”). See also § 39.402(5)(b)l., Fla. Stat. (2009) (providing that parents must be given notice that “[tjhey will be given an opportunity to be heard and to present evidence at the shelter hearing”).

The department has suggested that the right to present evidence regarding the existence of “probable cause” is not clear because of an alleged conflict within Florida Rule of Juvenile Procedure 8.305(b). Subdivision (b)(3) of this rule provides: “The issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant.” Fla. R. Juv. P. 8.305(b)(3). Subdivision (b)(4) provides: “At the hearing, all interested persons present shall have an opportunity to be heard and present evidence on the criteria for placement provided by law.” Fla. R. Juv. P. 8.305(b)(4). See J.B. v. Dep’t of Children & Families, 936 So.2d 665, 666 (Fla. 5th DCA 2006) (Griffin, J., concurring specially) (noting the inconsequential nature of the apparent inconsistency because — whether viewed as the existence of “probable cause” or the “criteria for placement” — the underlying issue (the need for temporary removal) is the same).

At a shelter hearing, to continue the child in shelter care, the department “must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement.” § 39.402(8)(d)l., Fla. Stat. (2Ó09). The hearing, however, is not limited to whether the department has established probable cause. To order placement, the court must determine that “placement in shelter care is necessary based on the criteria of subsections (1) and (2).” § 39.402(8)(h)l., Fla. Stat. (2009). The court must also find that “placement in shelter care is in the best interest of the child.” § 39.402(8)(h)2., Fla. Stat. (2009). A parent has a right to be heard and present evidence regarding these and other relevant issues.

If a parent is not permitted to be heard at the hearing, and only the department’s evidence will be considered, then the one-sided hearing would be a pointless formality. This is clearly not what the statute or rule contemplates. See J.P., 875 So.2d at 718 (“Had that been the intent of the rule it would provide that shelter of a child could be ordered without a hearing if the written submission established probable cause for shelter of the child.”).

As to the perceived conflict within the rule, Rule 8.305(b) was formerly Rule 8.710(b). The rule was renumbered in 1991. See In re Petition of The Fla. Bar to Amend the Fla. Rules of Juvenile Procedure, 589 So.2d 818 (Fla.1991). Former Rule 8.710(b) contained identical “conflicting” language. See Fla. R. Juv. P. 8.710(b) (1989). Thus, the language in the rule is longstanding.

In 1990, the legislature provided a statutory right for parents to present evidence at shelter hearings. Ch. 90-306, § 5, Laws of Fla. (adding the following language to section 39.402(8)(a): “The parents or legal guardians of the child shall be given an opportunity to be heard and to present evidence at the detention hearing.”). The statutory right clearly controls over any perceived conflict within the language in the rule.

The statutory right to be heard and to present evidence is buttressed by notions of procedural due process: a parent should have a meaningful opportunity to be heard on the key issue of the “need for removal”. See J.P., 875 So.2d at 718 (“Section 39.402 and rule 8.305 afford parents due process in judicial proceedings in matters involving the State’s temporary removal of children from the home.”).

Trial courts have expressed concern about the time required to conduct eviden-tiary hearings on shelter petitions. We note, without deciding, in some circumstances, the right to present evidence at the shelter hearing may be satisfied by providing sufficient notice and permitting the parent or guardian an opportunity to present evidence in the form of affidavits. See Fla. R. Juv. P. 8.305(b)(5) (“The court may base its determination on a sworn complaint, testimony, or an affidavit....”).

The petition is denied.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Denise LAWYER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-173.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Denise Lawyer appeals her conviction and life sentence for second-degree murder, a crime for which she was charged on a principal theory with her co-defendant James Williams. The two were tried together for an incident in which her co-defendant shot and killed the victim outside a club in Broward County.

We reverse and remand for a new trial on the second-degree murder charge based on Williams v. State, 982 So.2d 1190 (Fla. 4th DCA 2008), in which we reversed the conviction of her co-defendant as a result of an erroneous self-defense instruction as well as the trial court’s refusal to admit crucial evidence to his self-defense claim. Because Lawyer’s defense in this case was so closely intertwined with her co-defendant’s self-defense claim, we hold that the improper jury instruction and evi-dentiary rulings that entitled Williams to a new trial also require a new trial for Lawyer. If Williams were exonerated on a self-defense claim, then Lawyer would almost certainly be acquitted as well.

We affirm without further comment on the other issues in the case, except that on retrial, the trial court should not admit into evidence the post-arrest photograph of Lawyer, which depicted her in handcuffs in front of a sheriffs squad car at the scene of the incident. Lawyer’s identity was not at issue and this photograph was not relevant to any material issue in the case.

Reversed and remanded for a new trial.

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


text:
    Sonya A. DAVIS, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, and Gulfstream Goodwill, Appellees.
    No. 4D09-1030.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied March 24, 2010.
    Sonya A. Davis, Riviera Beach, pro se.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee, State of Florida, Unemployment Appeals Commission.
    Carlos D. Cabrera of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee Gulfstream Goodwill.
   PER CURIAM.

Affirmed. See Jodnauth v. Fla. Unemployment Appeals Comm'n, 964 So.2d 803 (Fla. 3d DCA 2007).

GROSS, C.J. FARMER and CIKLIN, JJ., concur.


text:
    C.K. Mother of K.K. and A.K., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-2901.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2010.
    Lori D. Loftis and Jeffrey Deen, Office of Regional Counsel, Altamonte Springs, and Mark A. Skipper, Office of the Criminal Conflict, etc., Orlando, for Appellant.
    Jeffrey Dana Gillen, Children’s Legal Services, West Palm Beach, for Appellee.
    Wendie Michelle Cooper, Tavares, for Guardian Ad Litem.
   PER CURIAM.

Pursuant to the Appellee’s confession of error, the Order Closing Dependency Case and Terminating Supervision entered July 8, 2009, is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

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


author: MORRIS, Judge.

text:
    Jose Luis Sanchez VASQUEZ and Arnulfo Sanchez Hernandez, Appellants, v. SORRELLS GROVE CARE, INC., Sorrells Brothers Packing Company, Inc., and J. Felix Ramos, Appellees.
    No. 2D08-4936.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa; Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee; and John T. Kennedy of The Injury Law Offices of John T. Kennedy, P.A., Stuart, for Appellants.
    Alan J. Landerman of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellees.
   MORRIS, Judge.

Jose Luis Sanchez Vasquez and his father, Arnulfo Sanchez Hernandez, appeal a final summary judgment entered in favor of the appellees, Sorrells Grove Care, Inc., Sorrells Brothers Packing Company, Inc. (Packing Company), and J. Felix Ramos. We reverse the final summary judgment and remand for further proceedings.

The initial facts of this case are set forth in Vasquez v. Sorrells Grove Care, Inc., 962 So.2d 411 (Fla. 2d DCA 2007), wherein this court reversed an order granting summary judgment in favor of the appellees in a civil suit against the appellees for negligence and vicarious liability based on injuries Sanchez Vasquez allegedly sustained while picking oranges for Packing Company. The appellees initially filed a motion for summary judgment on the basis that the appellants’ claims were barred by the doctrine of election of remedies. Id. at 412. The trial court granted the motion and entered final summary judgment in favor of the appellees. Id. at 413. This court reversed and remanded for further proceedings, holding that the appellants were not barred from filing a civil suit by the doctrine of election of remedies. Id. at 415.

On remand, the appellees filed a second motion for summary judgment, arguing this time that the facts are undisputed that Sanchez Vasquez was an employee of Packing Company at the time of the injury and that the appellees are therefore entitled to workers’ compensation immunity. The trial court granted the appellees’ motion for summary judgment and entered final summary judgment in their favor, which the appellants now appeal.

We must reverse the final summary judgment because, as the appellants argue, a factual dispute exists regarding whether Sanchez Vasquez was an employee of Packing Company at the time he sustained his injuries. In support of their motion, the appellees relied on the depositions of Sanchez Vasquez and Sanchez Hernandez in arguing that there is no dispute that Sanchez Vasquez was hired to pick oranges by J. Felix Ramos, an employee of Packing Company. However, these same depositions raise a question as to whether Ramos was authorized to hire Sanchez Vasquez to pick oranges for Packing Company. See Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1132-33 (Fla. 2d DCA 2004) (recognizing that an employment relationship may exist where an employee is authorized to and does hire a subemployee). Sanchez Vasquez and Sanchez Hernandez testified that Sanchez Vasquez was not registered to work in the United States for Packing Company; that Sanchez Vasquez was paid under the table by Ramos; that nobody else in the company, except for some of the fruit pickers, knew about Sanchez Vasquez’s arrangement with Ramos; and that after the accident, Ramos told Sanchez Hernandez not to tell anybody with the company about the arrangement. In addition, the appellees’ motion for summary judgment acknowledged that Ramos told Sanchez Vasquez that he had to be paid in cash because he was not registered to work in this country for Packing Company.

“[T]he burden to prove the nonexistence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.” Holl v. Talcott, 191 So.2d 40, 43-44 (Fla. 1966). “[I]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000). “[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Id. “The question of whether there exists an employer/employee relationship is normally reserved for the jury to determine. This is especially true where there exist disputed issues of fact.” Sagarino v. Marriott Corp., 644 So.2d 162, 164 (Fla. 4th DCA 1994) (citation omitted).

In viewing the facts in a light most favorable to the nonmoving parties, there is a disputed fact as to whether Ramos was authorized by Packing Company to hire Sanchez Hernandez to pick oranges. Therefore, the appellees did not meet their burden of proving that it is undisputed that Sanchez Hernandez was an employee of Packing Company. Accordingly, the granting of summary judgment was improper, and we reverse and remand for further proceedings.

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


author: DAVIS, Judge.

text:
    Jeffrey Robert COLLETT, Appellant, v. STATE of Florida, Appellee.
    No. 2B08-5645.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Jeffrey Robert Collett challenges his judgments and sentences for armed burglary of a structure, battery, and aggravated assault with a deadly weapon. Because it is not clear from the record whether the trial court utilized the correct standard in evaluating and denying his motion for new trial, we are compelled to reverse and remand for reconsideration of the motion using the proper standard.

Collett allegedly entered a home in the middle of the night while armed with a handgun. Once inside, Collett threatened the occupants of the home, specifically grabbing and pointing the gun at one victim. At trial, Collett was identified by numerous witnesses as the man who entered the home, and the BB-pistol that Collett surrendered to police upon his arrest was identified as the gun he brandished while threatening the victims. Col-lett testified and admitted that he was present at the home but denied possessing a gun. After he was convicted, Collett’s counsel moved for a new trial, alleging that the verdicts were contrary to the weight of the evidence because the evidence failed to support the finding that he used a deadly weapon. Specifically, he alleged that the victims’ descriptions of the gun as small did not match the dimensions of the BB-pistol, a gun designed to look like a 9mm handgun. Without the BB-pistol, Collett argued, there was no evidence that a deadly weapon was used. The trial court denied the motion for new trial as it related to this issue, making the following findings on the record:

In regard to the issue surrounding the firearm or gun, dangerous weapon, deadly weapon — dangerous weapon, I guess, I believe that there is sufficient evidence that supports the verdict. The jury is the tryer [sic] of fact and they listened to all the evidence and they wade through that and they can believe or disbelieve all or any part of the testimony. I don’t know what they believed or disbelieved, but I know that they reached a unanimous verdict and returned that verdict. So as to that, I deny the motion for new trial.

On appeal Collett argues that the trial court applied the incorrect legal standard in evaluating whether the verdict was contrary to the law or weight of the evidence. Specifically, Collett argues that the trial court employed the standard for a motion for judgment of acquittal — sufficiency of the evidence — rather than the standard required for a motion for new trial — weight of the evidence. Collett is correct that the language used by the trial court to deny the motion suggests the use of a sufficiency of the evidence standard.

Regardless of the disputed nature of the evidence, there is no question that the State presented sufficient evidence to overcome a motion for judgment of acquittal and allow the jury to reach a verdict on Collett’s charges. See, e.g., Berube v. State, 5 So.3d 734, 743 (Fla. 2d DCA 2009) (“When considering a motion for judgment of acquittal, the question is whether, ‘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.’ ” (quoting Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005))). However, Col-lett raised this evidentiary issue in the context of a motion for new trial, which requires the trial court to consider “whether the evidence presented was adequate to support a conviction.” See Ferebee v. State, 967 So.2d 1071, 1073 (Fla. 2d DCA 2007).

Although this court typically reviews the denial of motions for new trial under an abuse of discretion standard, the standard becomes de novo if, as a matter of law, the trial judge applies the incorrect legal standard in denying the motion. Id. “[A] trial court is not compelled to use ‘magic words’ when ruling on a motion for new trial, but the ruling should demonstrate that the proper standard was applied to the motion.” Geibel v. State, 817 So.2d 1042, 1045 (Fla. 2d DCA 2002). In the instant case, we are unable to ascertain, as a matter of law, whether the trial court utilized the improper standard as is suggested by the language used in its order, or merely used improper wording while actually applying the correct standard. Accordingly, we reverse and remand for the trial court to reconsider the motion for new trial using the proper standard.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . Collett also moved for a new trial based on the use of allegedly improper comments during the State’s closing argument. We find no error in the trial court’s denial of the portion of the motion for new trial related to this issue.


author: SILBERMAN, Judge.

text:
    Antonio IRRIZARY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5190.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
   SILBERMAN, Judge.

We reverse the circuit court’s order of October 8, 2009, which dismissed Antonio Irrizary’s motion filed on September 8, 2009, pursuant to Florida Rule of Criminal Procedure 3.800(a) for lack of jurisdiction. When it dismissed Mr. Irrizary’s motion, the circuit court was under the impression that the prior denial of a rule 3.800(a) motion raising related issues was pending on appeal. However, Mr. Irrizary had voluntarily dismissed that appeal, 2D09-3733, on September 9, 2009, approximately one month prior to rendition of the dismissal order in this case. Because the circuit court did have jurisdiction, we reverse and remand for the court to consider the merits of the motion filed on September 8, 2009.

VILLANTI and MORRIS, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Shedrick Antwan RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4380.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
    Shedrick Antwan Russell, pro se.
   ALTENBERND, Judge.

Shedrick Antwan Russell appeals an order denying his petition for writ of habeas corpus that was filed with the circuit court in the circuit where he was convicted. “After careful review,” the trial court denied the motion without any explanation or attachment. We reverse.

Mr. Russell is serving a life sentence for robbery. His direct appeal was affirmed in June 2009. Russell v. State, 11 So.3d 364 (Fla. 2d DCA 2009) (table decision). It is obvious that this petition for writ of habeas corpus is his first postconviction proceeding challenging the robbery conviction. He claims, in part, that a witness recanted her testimony shortly after the trial.

The trial court should not have denied this motion on its merits. It should have treated the filing as a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. See Valdez-Garcia v. State, 965 So.2d 318, 322 (Fla. 2d DCA 2007). As such, it may have been facially insufficient and subject to an order of dismissal without prejudice — preferably with leave to amend so as to avoid an appeal from an order that did not reach the merits. See Spera v. State, 971 So.2d 754, 755 (Fla.2007). In any event, it should not have been denied in this manner.

Reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.


author: LaROSE, Judge.

text:
    Madeleine DEEGAN, Appellant, v. Antonio TAYLOR, Appellee.
    No. 2D08-6166.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.

      Michael A. Hymowitz of Braverman & Hymowitz, Ft. Lauderdale, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   LaROSE, Judge.

Madeleine Deegan appeals the trial court’s order finding her former husband, Antonio Taylor, in contempt for nonpayment of alimony and legal expenses. We reverse the trial court’s order to the extent that it denied Ms. Deegan’s motion for attorney’s fees. We affirm on the remaining issues without further discussion.

Ms. Deegan and Mr. Taylor married in 1993. In 1999, they divorced pursuant to a Canadian court decree. Among other things, the decree awarded permanent periodic alimony to Ms. Deegan. The parties resolved a subsequent enforcement action in 2004 through a settlement agreement. The agreement provided that the prevailing party in any future enforcement action would recover attorney’s fees. A Canadian court adopted the 2004 settlement agreement as a support decree. A Florida court domesticated that decree in 2005.

The parties learned later that Ms. Deegan’s divorce from a previous spouse was not final when she married Mr. Taylor. In 2006, the Canadian court granted Mr. Taylor an annulment. But, because of the six-year putative marriage, the Canadian court declared that the parties “shall benefit from the effect of the judgment of divorce and all accessory measures ... rendered by the [Canadian] Court.”

Upon Ms. Deegan’s petition, the trial court, in May 2008, domesticated the 2006 decree, finding that the Canadian court had jurisdiction and that the decree did not offend Florida’s public policy. See Nahar v. Nahar, 656 So.2d 225, 229 (Fla. 3d DCA 1995) (“[A]ny foreign decree should be recognized as a valid judgment, and thus be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.”); cf. Johnson v. Lincoln Square Props., Inc., 571 So.2d 541, 543 (Fla. 2d DCA 1990) (holding wife could bring consortium claim based on out-of-state common-law marriage even though Florida no longer allowed common-law marriage).

In September 2008, Ms. Deegan moved for contempt and enforcement of Mr. Taylor’s obligations for alimony and legal expenses. Within a couple of months, the trial court found Mr. Taylor in contempt, set a purge amount, and entered a money judgment in Ms. Deegan’s favor for the arrears. The trial court, however, denied Ms. Deegan’s request for prevailing party attorney’s fees, reasoning that the 2004 settlement agreement on which Ms. Deegan relied was “based on the premise of a valid marriage when it has subsequently been determined that such was not the case.” This was error. By the terms of the domesticated 2006 Canadian decree, the 2004 settlement agreement, including the prevailing party attorney’s fees provision, is an order on accessory measures rendered by the Canadian court; by its terms, it survives the annulment.

Burger v. Burger, 166 So.2d 433 (Fla. 1964), cited in the trial court’s order, is inapplicable. Burger was an original divorce action in which the parties married assuming in good faith that their Mexican mail-order divorces from previous spouses were valid. Id. at 434. When the wife later sought a divorce, the trial court found the Mexican divorces invalid and granted divorce, alimony, attorney’s fees, and other relief. Id. On appeal, the Third District held that the trial court lacked jurisdiction to grant divorce in the absence of a valid marriage. Id. The supreme court reversed, holding that section 65.04(9), Florida Statutes (1962), authorized a “divorce” by judicial decree “in a situation where both parties have innocently undertaken to complete a marriage contract, even though both were incapable of doing so at the time.” Id. at 436. The supreme court held, however, that the trial court erred in awarding the wife permanent alimony and attorney’s fees where the wife was equally responsible in creating a bigamous marriage; the trial court could allow permanent alimony and attorney’s fees on equitable principles and under section 65.08, Florida Statutes (1962), only “[w'jhen a wife is an innocent victim of the husband’s wrong.” Id.

The request for fees does not require us to explore the equitable principles apparently at play in Burger. Rather, the real issue is the deference owed to the Canadian decree. In handling Ms. Deegaris motion for contempt and enforcement, the trial court was called upon to enforce a domesticated Canadian decree that specifically retained all accessory measures, despite the grant of annulment. Accordingly, Ms. Deegan is entitled to prevailing party attorney’s fees as an accessory measure that survived the annulment of her marriage to Mr. Taylor. We reverse the order on appeal to the extent it denied fees; we affirm the order in all other respects.

Reversed in part, affirmed in part, and remanded.

WALLACE and CRENSHAW, JJ., Concur.

      . "Accessory measures” or "corollary relief" refers to measures in a judgment granting divorce, separation or dissolution of a civil union that settle various matters that do not pertain to the basic issue of divorce, such as support, custody, and visiting rights. Gou-vernement du Québec, Ministére de la Justice, "Joint Application for Divorce on Draft Agreement,” http://www.justice.gouv.qcx a/englisb/ publications/generale/dem-conj-a.htm (last visited Jan. 25, 2010); see Divorce Act, R.S.C., ch. 3, § 15 (2d Supp. 1985) (respecting "Corollary Relief" provisions for child support, spousal support, and custody); Carol Rogerson, The Canadian Law of Spousal Support, 38 Fam. L.Q. 69, 74 n. 12 (2004).