author: GROSS, C.J.

text:
    Ann SCHAAB, a/k/a Ann Urich, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-405.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.

      Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

We affirm a circuit judge’s finding of contempt arising from a criminal case in the circuit court. Also, we agree with the appellate division of the circuit court that the indirect criminal contempt proceeding was a circuit court action, and not a county court misdemeanor, so that the appellate division properly transferred the appeal to this court.

Ann Schaab was the victim in an attempted second degree murder prosecution in the circuit court. Her former husband was the defendant. Pursuant to Florida Rule of Criminal Procedure 3.840(a), the state moved in the circuit court for the issuance of an order to show cause as to why Schaab should not be held in indirect criminal contempt for failing to obey a circuit court subpoena; that subpoena directed her to appear in the circuit court criminal case. The circuit judge issued an order to show cause. Although the signature line indicated that he signed the order as a “circuit court judge,” the order was styled as an order from the County Court of Martin County. The clerk assigned the order a misdemeanor case number. After Schaab was arrested in Citrus County, the circuit court issued a transport order styled as a circuit court case, but using the misdemeanor case number.

Ultimately, the contempt case was heard before the circuit judge who presided over the attempted murder prosecution and who issued the order to show cause. The court heard sworn testimony, including that of Schaab and her current husband. The circuit judge found Schaab guilty of contempt and sentenced her to 30 days in jail and placed her on six months probation. The probation order had a county court case number and, by interlineation, indicates that it was an order of the county court. However, the circuit judge signed it as a circuit judge. When asked which court had jurisdiction over the case, the circuit judge explained that he “prefer[red]” the contempt “to be treated as an independent misdemeanor case.” The circuit judge’s judgment of indirect criminal contempt was styled as a county court case.

Schaab appealed the conviction to the appellate division of the circuit court in the nineteenth circuit. The circuit court appellate panel held that it did not have jurisdiction because the judgment was a circuit court judgment, even though the trial judge had called it a county court case. The appellate panel noted that the contempt had occurred in a circuit court case and that a circuit judge with jurisdiction over the criminal case had entered the judgment of contempt. The appellate panel held that

[cjhanging the caption on the order and arbitrarily assigning a misdemeanor case number, does not magically transform the case from a circuit court case to a county court case. A rose by any other name is still a rose. This is a circuit court action, pure and simple.

Consequently, the appellate panel transferred the appeal to this court. We agree with the analysis of the appellate panel.

A criminal contempt is “ ‘a crime in the ordinary sense.’ ” Pompey v. Cochran, 685 So.2d 1007, 1012 (Fla. 4th DCA 1997) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). Section 38.22, Florida Statutes (2008), provides both circuit and county courts with the authority to “punish con-tempts,” “whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.” No statute defines the crime of contempt or establishes the punishment. Moorman v. Bentley, 490 So.2d 186, 187 (Fla. 2d DCA 1986). “[T]he power of courts to punish for contempt was recognized at common law.” Id. (citation omitted). Where there is no existing statutory provision on a subject, the “common law of England in relation to crimes” is “of full force” in Florida. § 775.01, Fla. Stat. (2008); Moorman, 490 So.2d at 187. Section 775.02, Florida Statutes (2008), provides that when there exists no statutory provision for a common law offense, “the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months.”

In sum, “[cjontempt is a common law crime in Florida, which, although recognized by statute, is not specifically classified by statute as either a felony or a misdemeanor.” Graves v. State, 821 So.2d 459, 460 (Fla. 2d DCA 2002) (citation omitted). Both the circuit and county courts have jurisdiction to hear criminal con-tempts.

The contempt in this case arose from a felony proceeding, a circuit court case. Section 38.22 gave the circuit judge jurisdiction to hear and punish the contempt. The clerk’s assignment of a misdemeanor case number did not affect the status of the contempt as a circuit court matter over which that court had jurisdiction. “[F]ile numbers are merely an administrative convenience for the clerk but not a statutory prerequisite for filing by the parties to the action.” Tanner v. State, 744 So.2d 1017, 1019 (Fla. 4th DCA 1997). Case numbers assist a clerk in satisfying the statutory duty to keep all papers filed “with the utmost care and security, arranged in appropriate files.” § 28.13, Fla. Stat. (2008). Because the judgment of indirect criminal contempt was a circuit court matter, the appellate division of the circuit court did not have jurisdiction to hear the appeal.

On the merits, we affirm the circuit judge’s finding of contempt. The court expressly found that Schaab’s credibility was the main issue in the contempt case. Schaab’s testimony was evasive and contradictory on several points and her husband’s testimony was similarly questionable. Schaab contends that the evidence was insufficient to support the finding of contempt, which boils down to an argument that the trial court should have granted a motion for judgment of acquittal. On appeal, we must “consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State.” McDuffie v. State, 970 So.2d 312, 332 (Fla.2007). “The fact that the evidence is contradictory does not warrant a judgment of acquittal since the weight of the evidence and the witnesses’ credibility are questions solely for the [fact finder].” Morrison v. State, 818 So.2d 432, 451 (Fla.2002) (quoting Donaldson v. State, 722 So.2d 177, 182 (Fla.1998)).

Affirmed.

POLEN and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    INPHYNET CONTRACTING SERVICES, INC. and Team Health, Inc., Appellants, v. David M. SORIA, M.D., Appellee.
    No. 4D08-4922.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Rehearing Denied May 20, 2010.

      Beverly A. Pohl, Peter R. Goldman and Vanessa M. Serrano of Broad and Cassel, Fort Lauderdale, for appellants.
    Glenn J. Waldman and Douglas T. Marx of Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., Weston, for appellee.
   WARNER, J.

In this litigation over contractual bonus payments to physicians, the trial court certified a class of physicians, all of whom had similar contracts with InPhyNet. While InPhyNet has challenged the certification order on multiple grounds, we need address only one. Because the trial court failed to conduct an appropriate analysis of whether common questions predominated over individual issues, and the proper analysis shows that the common questions do not predominate, we reverse.

This case concerns the propriety of two related orders certifying a class of emergency room physicians currently or formerly employed by appellants, InPhyNet Contracting Services, Inc., and its parent Team Health, Inc., which in this opinion we refer to collectively as “InPhyNet.” InPhyNet contracts with hospitals around the state of Florida to provide physicians to staff hospital emergency rooms. In-PhyNet contracted with appellee, Dr. David Soria, to work as an emergency room physician at Wellington Regional Medical Center. To induce physicians to work in the emergency room, InPhyNet included a “Physician Incentive Plan” (PIP) as part of its contract with each physician it employed. With respect to the bonus payments, Dr. Soria’s contract stated:

We maintain Physician Incentive Plans on a facility-by-facility basis. All facility plans must be approved by our affiliate CEO and are subject to revision without notice to You or Your approval. Amounts to be placed in the bonus pool for any facility shall be at Our sole discretion. To the extent that a bonus pool is established for a facility, eligibility and payment shall be in accordance with the criteria set forth below.

To participate, a physician must work “full time” as defined in the agreement, not be in breach of his or her contract of employment, and have been working at least ninety days prior to the distribution date of the bonus payments. Each physician would be paid a portion of the bonus pool in accordance with a formula based upon various factors including the physician’s performance, productivity, teamwork, and length of service.

Dr. Soria acted as InPhyNet’s Medical Director at Wellington Regional until In-PhyNet’s contract with Wellington was terminated in favor of a competitor who retained Dr. Soria. Because InPhyNet included a covenant not to compete in Dr. Soria’s contract, and InPhyNet believed that Soria had actively engaged with the competitor to terminate InPhyNet’s contract with Wellington Regional, InPhyNet sued Soria for breach of an employment agreement, breach of fiduciary duty, and tortious interference with a business relationship (“Soria I ”).

Soria counterclaimed against InPhyNet in Soria I, raising a class action claim regarding the Physician Incentive Plan (“PIP”). We need not detail the complicated procedural moves in this case, but eventually Soria’s individual claim with respect to the bonus payments remained as a counterclaim in Soria I, and Soria filed a separate class action lawsuit, the present case (“Soria II ”).

Soria alleged in his class action complaint that the contracts of the physicians employed by InPhyNet included Physician Incentive Plans substantially similar to the one contained in Soria’s contract with In-PhyNet. He further alleged that “[u]nder the Physician Incentive Plan Dr. Soria and the other class members were entitled to receive as incentive compensation a percentage of the profits from Defendants’ contract with the respective facilities, including Wellington Regional.” (emphasis supplied). Soria alleged that InPhyNet had failed to pay the class members all of the incentive compensation to which they were entitled, claiming InPhyNet had inflated its expenses through a “phantom” expense line of “Other Physician Benefits” which reduced the profits available for bonus payments.

Soria alleged five different causes of action based upon the foregoing facts. First, he claimed that InPhyNet had breached an implied duty of good faith by failing to properly account for the revenues and expenses generated at each facility, specifically by including the “other Physician Benefits” which reduced the profits for the bonus distribution. This reduced payments to the class members. Second, he claimed that through this conduct InPhy-Net violated the Florida Deceptive and Unfair Trade Practices Act. Third, he alleged that InPhyNet had breached a fiduciary duty or engaged in constructive fraud in creating accounting statements which included the Other Physician Benefits, reducing the bonus pool available for the class members. Fourth, he alleged unjust enrichment on the ground that In-PhyNet retained benefits conferred by the class members but failed to properly compensate them. Finally, he also made a claim for conversion against InPhyNet.

The class Soria identified in his complaint included physicians previously employed by InPhyNet in Florida within the past five years, with some exceptions. The class included well over 100 members. Soria alleged that the common questions of fact or law among all class members involved the establishment of the Physician Incentive Plan at each facility and InPhy-Net’s practice of inflating expenses and reducing profits of each facility through the use of the Other Physician Benefit expense item. His own claim was typical of those of the class, and he alleged that he was an adequate representative of the class. The complaint alleged that common issues would predominate over individual claims.

After much procedural maneuvering and many discovery disputes, Dr. Soria moved to certify the class. InPhyNet requested an evidentiary hearing, contending that there were multiple disputed issues of fact in regard to the class certification. Nevertheless, the court conducted a non-eviden-tiary hearing lasting over two days with additional hearings after the initial ones. The court considered multiple depositions, documents, and affidavits, but took no live testimony.

In the end, the court granted certification of a class consisting not only of the class alleged in Dr. Soria’s complaint but expanding it to include physicians currently employed at any of the InPhyNet facilities. The court’s order addressed each of the threshold requirements of class certification, namely: 1) numerosity, 2) commonality, 8) typicality, and 4) adequacy.

As to the numerosity element, the trial court noted that there were at least 120 physicians who participated or were eligible to participate in appellants’ PIP plan, finding that “this number of proposed class members is sufficient to comply with the numerosity requirement” and that a separate joinder would be impracticable. As to commonality, the court concluded that Dr. Soria satisfied this requirement, reasoning that the putative class members “entered into substantially similar PIP agreements with the defendants” and that their claims “arise from the same course of conduct on the part of the defendants.” Specifically, the court noted that “all of the putative class members’ claims concern or relate to defendants’ use of the allegedly illegitimate expense category, ‘Other Physician Benefits,’ in their income statements, thereby reducing the amount of incentive benefits each physician received.”

The trial court further found that, despite the presence of unique defenses pertaining to Dr. Soria’s conduct at Wellington Regional, Dr. Soria’s claims “are typical of the claims of the other class members,” noting that the claims all centered on the appellants’ alleged practice of deceptively deducting non-existent expenses. However, as to the adequacy prong, the trial court found that Dr. So-ria failed to meet the adequacy requirement based on the potential conflict of interest with the other class members due to his pending counterclaim in his individual capacity in Soria I, reasoning that “Dr. Soria could possibly compromise the best interests of the class as a whole for a favorable result in his own personal lawsuit.” Consequently, the trial court stopped short of certifying the class in its first order, but stated that the conflict would be resolved if Dr. Soria dismissed or abated the counterclaim in Soria I.

The trial court then addressed the plaintiffs claims under rule 1.220(b)(3), finding that the defendants’ alleged use of an unsupported category of expense (“Other Physician Benefits”) in order to reduce the profitability at each facility where its physicians were employed, if true, presented common questions of law or fact which predominate over individual questions relating to the eligibility and/or amount of additional incentive benefits owed to any individual member of the class. The court thus found both that common questions predominated and that class resolution was a superior method of adjudication of the case.

Dr. Soria filed a voluntary dismissal in Soria I. Consequently, the court entered a second order confirming class certification, and InPhyNet now appeals both orders.

“Generally, we review a trial court’s certification of a class action using an abuse of discretion standard.” Olen Props. Corp. v. Moss, 981 So.2d 515, 518 (Fla. 4th DCA 2008). However, where the trial court has decided issues of fact without an evidentiary hearing, we give its factual determinations less deference. See, e.g., Parker v. State, 873 So.2d 270, 279 (Fla.2004) (explaining that deference to the trial court’s findings of fact does not fully apply where the findings are based on evidence other than live testimony). Because Florida’s class action rule is based on Federal Rule of Civil Procedure 23, Florida courts may generally look to federal cases as persuasive authority in their interpretation of rule 1.220. Seven Hills, Inc. v. Bentley, 848 So.2d 345, 352-53 (Fla. 1st DCA 2003).

The movant for class certification bears the burden of establishing all the requirements of Florida Rule of Civil Procedure 1.220. Chase Manhattan Mortg. Corp. v. Porcher, 898 So.2d 153, 156 (Fla. 4th DCA 2005). The trial court must conduct a “rigorous analysis” to determine whether class certification is warranted. Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d 19, 21-22 (Fla. 4th DCA 1999); Earnest v. Amoco Oil Co., 859 So.2d 1255 (Fla. 1st DCA 2003). Actual, not presumed, compliance with the rule is required. See Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Baptist Hosp. of Miami, Inc. v. Dentario, 661 So.2d 319 (Fla. 3d DCA 1995). Baptist Hospital explains that this adherence is necessary because “the granting of class certification considerably expands the dimensions of the lawsuit, and commits the court and the parties to much additional labor over and above that entailed in an ordinary private lawsuit.” Id. at 321.

Initially, the movant for class certification must establish the following four prerequisites, which are:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

Fla. R. Civ. P. 1.220(a). These threshold requirements are often referred to as “the numerosity, commonality, typicality, and adequacy of representation elements of class certification.” Marco Island Civic Ass’n v. Mazzini, 805 So.2d 928, 930 (Fla. 2d DCA 2001).

In addition to satisfying Rule 1.220(a), a plaintiff also must satisfy one of the three subdivisions of Rule 1.220(b). Rule 1.220(b)(3), often applicable in actions predominantly seeking damages, requires that common questions of law or fact predominate over any individual questions of the separate members, and the class action must be superior to other available methods for a fair and efficient adjudication of the controversy. Rollins, Inc. v. Butland, 951 So.2d 860, 868 (Fla. 2d DCA 2006). In order to establish predominance, the class representative must “demonstrate the existence of a reasonable methodology for generalized proof of class-wide impact and damages.” Id. at 872 (internal quotation omitted). The predominance requirement is established if the class representative can prove his own individual ease and, by so doing, necessarily prove the cases for each of the other class members. Seminole County v. Tivoli Orlando Assocs. Ltd., 920 So.2d 818, 824 (Fla. 5th DCA 2006). While the predominance requirement parallels the commonality requirement under rule 1.220(a), the predominance requirement in subdivision (b)(3) is more stringent because common questions must pervade. Rollins, 951 So.2d at 868.

InPhyNet does not challenge the trial court’s findings as to numerosity or typicality. It does argue, however, that the trial court’s analysis is inherently flawed as to commonality and predominance. It also argues that the trial court erred in failing to conduct an evidentiary hearing which would show that common issues would not predominate over individual issues, given the fact that the PIP plans in each of the fifteen facilities staffed by In-PhyNet were different. No company-wide method of calculating the bonus pool existed.

We agree that the court did not conduct a “rigorous analysis” of the predominance factor, but it is not necessary to remand for an evidentiary hearing. An examination of Dr. Soria’s complaint and the evidence produced shows that the common questions do not predominate. The trial court made no analysis, other than to state that the common question regarding the expense deduction for “Other Physician Benefits” predominated. It did not analyze any of the other issues involved in that determination.

Recently, the Eleventh Circuit addressed the issue of predominance in Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Services, Inc., 601 F.3d 1159 (11th Cir.2010). The court explained that predominance can only be determined after considering the value of the resolution of the common class-wide issue will have to each individual class member’s claim. Common issues of fact and law predominate if they “ ‘ha[ve] a direct impact on every class member’s ef-fox*t to establish liability’ that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member.” Id. at 1170 (emphasis omitted) (quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1270 (11th Cir.2009), in turn quoting Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.2004)). If a class representative must still present a great deal of individualized proof or argue individualized legal points to establish most or all of the elements of his claims, class certification is not appropriate. St. Joe Co. v. Leslie, 912 So.2d 21, 24 (Fla. 1st DCA 2005). Where both liability and damages depend on individual factual determinations, resolution of these claims can only be decided on an individual basis. Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 267 (Fla. 5th DCA 2002). “To assess the impact of a common question on the class members’ claims, a ... court obviously must examine not only the defendant’s course of conduct towards the class members, but also the class members’ legal rights and duties.” Sacred Heart, at 1170 (emphasis supplied). Thus, claims for breach of contract require an analysis of the parties’ agreement.

Dr. Soria’s PIP plan, which he states is substantially similar to other class members’ plans, does not explain how the bonus pool is created. It simply states that a pool will be created at the “sole discretion” of InPhyNet. The complaint, however, states that the class members were entitled to a percentage of profits from the incentive plan. Nowhere in the written plan does InPhyNet represent that it will pay a percentage of the profits into a bonus pool; Yet, Dr. Soria’s entire complaint is based upon this representation and obligation on behalf of InPhyNet. Therefore, whether representations regarding the funding of the bonus pool were made by InPhyNet to its contract physicians must be determined before addressing the question of whether InPhyNet breached any obligations imposed as a result of that agreement.

To prove his claim that the physicians were entitled to a percentage of InPhy-Net’s profits, Dr. Soria relied on testimony of a company practice, not any written contract, that physicians would receive 60% of earnings before interest and taxes as part of the PIP plan at each facility. Because there is no written obligation to pay a percentage of profits to the bonus pool, InPhyNet’s liability would have to be established by oral promises, if any, made to the individual physicians beyond the four corners of the PIP plans themselves. These claims would necessarily require individualized determinations about what was promised to each physician and the existence of a deceptive act for purposes of FDUTPA. Rather than being susceptible to class-wide proof, this case will ultimately require the very sort of mini-trials on liability which this court has explained are inappropriate for class treatment. See Porcher, 898 So.2d at 157-58 (agreeing with the proposition that the trial court must determine whether there is one body of evidence that will resolve the issue for all class members, or if a mini-trial will be required to determine liability).

This case is similar to Vega, where the Eleventh Circuit reversed a class action certification order concerning a T-Mobile incentive compensation plan. An employee brought a class action accusing T-Mobile of violating the plan by improperly charging back certain sales commissions previously earned by the employees. Although the Eleventh Circuit addressed multiple abuses of discretion with respect to the class certification order, the portion of the opinion most relevant to this case is the court’s discussion of the “predominance” element of Rule 23, which the court found to be “perhaps the central and overriding prerequisite for a Rule 23(b)(3) class.” Id. at 1278.

The appellate court found the absence of analysis on that factor to be fatal to the class certification order: “The district court’s omission of an independent and substantial, let alone rigorous, analysis of Rule 23(b)(3), in addition to the facts that Vega has not established predominance and likely has not shown superiority, further demonstrates that certification of this class was an abuse of discretion.” Id. at 1279. The court noted that T-Mobile’s compensation program document cautioned that “T-Mobile retains sole discretion to determine what transactions qualify for commission payout.” Id. at 1273. Even assuming that the compensation program created a binding contract, which arguably could create common issues of law and fact, the court reasoned that the class issues would still lack predominance. Id. In explaining the commonality and predominance problems associated with the class representative’s claims, the court noted that “whether or not a given commission charge back was ‘unjust’ will depend on what each employee was told and understood about the commission structure,” and as a consequence the “uncommon and individualized nature of this critical inquiry, and its foundational importance to the liability determination for each class member, renders class certification inappropriate.” Id. at 1275.

Similarly, whether or not a physician was promised that the bonus pool would be funded with a fixed percentage of the profits of InPhyNet must be determined on an individualized basis, because no written statement of the obligation exists. Like Vega, InPhyNet reserved “sole discretion” to determine the funding of a bonus pool. It is hard to imagine how one can translate “sole discretion” into a breach of an implied good faith duty in the accounting of the profits, without a representation on which a participating physician relied in entering into a contract with InPhyNet.

Although there is a commonality of issues pertaining to the allegedly improper Other Physician Benefits deduction, individual issues regarding the formation of each contract, especially the inclusion of a particular bonus pool provision, will predominate over common issues such that class representation is not practical. See Black Diamond Props., Inc. v. Haines, 940 So.2d 1176, 1178 (Fla. 5th DCA 2006) (holding that individual issues predominated where complaint was based upon allegation of misrepresentations in 500 separate oral contracts); Marino v. Home Depot U.S.A., Inc., 245 F.R.D. 729, 737 (S.D.Fla.2007) (denying certification of a FDUTPA class suit over carpet installation costs because such a class claim “would be an exercise in inefficiency, and the need for individualized determinations as to the existence of a deceptive act leads to the conclusion that common facts do not predominate as to Plaintiffs FDUTPA claim”).

We therefore reverse the order granting certification of class status, as Dr. Soria has failed to prove that the common claim will predominate over the individual issues in this case.

STEVENSON and LEVINE, JJ, concur.

      . Without further comment, we hold that class certification is not appropriate in this case under either Rule 1.220(b)(1) or (b)(2).


author: STEVENSON, J.

text:
    Roberto LEMUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4729.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Roberto Lemus was tried by jury and convicted of two counts of aggravated assault, with a firearm, on a law enforcement officer (counts I and II) and one count of discharging a firearm in public (count III). Relying upon the so-called “10/20/life” provision of the Florida Criminal Code, the judge sentenced Lemus to a twenty-year mandatory minimum term of incarceration for counts I and II and to time served for count III. In this appeal, Lemus asserts (1) that the trial court erred in denying his motion for judgment of acquittal in light of the evidence regarding his insanity at the time of the commission of the crimes and (2) that the evidence did not permit a finding that he discharged a firearm during the commission of the aggravated assaults, and, thus, the imposition of sentence under the 10/20/life statute was in error. We affirm Lemus’s convictions without further comment. We find merit in his argument regarding the sentence and write to address that issue.

The evidence at trial established that, at around 8 a.m., police responded to an apartment on S.W. 44th Terrace after the defendant’s father called 911. After being there about ten minutes, police heard a gunshot and, thereafter, myriad officers arrived as back-up and the SWAT team was called. Twenty to thirty minutes later, the defendant came out of the apartment with a gun in his hand, ignored commands for him to drop the gun, fired a shot into the ground, and went back inside the apartment.

At about 9 a.m., SWAT members heard gunshots inside the apartment and took steps to attempt to see inside the apartment. At around 4 p.m., the defendant came out of the apartment and aimed his gun at Deputy Brady (aggravated assault count I), retreating inside the apartment when the SWAT containment team fired shots. This happened twice more and, during one of the encounters, the defendant also aimed his gun at Deputy Davis (aggravated assault count II). The defendant did not, however, fire his gun during these encounters when he pointed the gun at Deputies Brady and Davis. The defendant, who had been shot, exited the apartment a final time, complied with the officers’ commands, and was arrested without further incident.

Section 775.087(2)(a)2., Florida Statutes (2005), provides that

[a]ny person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q. [which includes aggravated assault], regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years, (emphasis added).

The defendant admits that he discharged a firearm during the stand-off with police. He insists, however, that the plain language of the statute provides for the imposition of the mandatory minimum sentence only if he discharged the firearm “during the commission of the felony,” i.e., the aggravated assaults on Deputies Brady and Davis, and that the evidence at trial does not permit such a finding. The meaning of the words “during the commission of the felony” is a question of statutory construction. Principles of statutory construction require that the statute’s words be afforded their plain meaning, and, if there is any ambiguity, such ambiguity must be resolved in favor of the defendant (the rule of lenity). See, e.g., Gonzalez v. State, 941 So.2d 1226, 1229 (Fla. 5th DCA 2006); see also § 775.021(1), Fla. Stat.

Applying these principles to the present case, we agree that the evidence could not support a finding that the defendant discharged a firearm during the commission of the aggravated assaults on Deputies Brady and Davis. The aggravated assaults were committed when the defendant, using a gun, threatened and placed in fear Deputies Brady and Davis. See §§ 784.011(1) (defining crime of assault), 784.021 (defining crime of aggravated assault), 784.07(2)(c) (defining crime of aggravated assault on a law enforcement officer). The State argues that the phrase “during the course of’ contained in section 775.087(2)(a)2. should be interpreted to mean any action occurring during the “temporal episode” surrounding the charged criminal offense. The State thus maintains that since Lemus fired a revolver while earlier engaged in the standoff, the weapon was fired during the “criminal episode” of the aggravated assault offenses. We reject the State’s broad interpretation of the statute as contrary to both the plain meaning of the statute and the “rule of lenity.” The evidence at trial established that the defendant’s discharge of the firearm, by firing a shot into the ground, took place some seven hours prior to his threatening Deputies Brady and Davis with a gun, i.e., the commission of the aggravated assaults. Indeed, there was no evidence that either Deputy Brady or Deputy Davis actually saw, or was aware of, the defendant firing a shot into the ground. Under the circumstances of this case, it cannot be said that the discharge of the firearm occurred “during the course of the commission” of either of the aggravated assault charges.

Accordingly, the twenty-year mandatory minimum sentences imposed for counts I and II, pursuant to the 10/20/life statute, are therefore reversed and the matter is remanded for re-sentencing as to these counts.

Affirmed in Part; Reversed in Part; and Remanded.

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


author: PER CURIAM.

text:
    Teejay MAPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-820.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Juan E. Mourin of the Law Offices of Grey and Mourin, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Roman v. State, 786 So.2d 1220 (Fla. 4th DCA 2001).

CIKLIN, GERBER, JJ., and COX, JACK S., Associate Judge, concur.


author: DAMOORGIAN, J. FARMER, J.,

text:
    Barbara SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-233.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.

      Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Barbara Simpson appeals the trial court’s order denying her motion to dismiss. We affirm based on the tipsy coachman rule.

While at the Fort Lauderdale International Airport, Simpson was approached by two detectives. The detectives conducted a search of her purse and discovered a pill box and burgundy change purse, both of which contained oxycodone tablets and other controlled substances. Based upon a combination of the controlled substances in her pill box and change purse, Simpson was charged with one count of trafficking in oxycodone, along with two other controlled substance offenses. Simpson subsequently filed a motion to dismiss as to two charges, one of which was trafficking in oxycodone.

In the motion, Simpson alleged that she and her husband had valid prescriptions for the oxycodone in her pill box and change purse, respectively, and that she was the custodian for her ill husband of the oxycodone in her change purse. The State responded with a traverse, specifically denying that Simpson’s husband had a valid prescription and that she was the custodian of the oxycodone in her change purse. The State further asserted in its traverse that Simpson’s prescription was invalid because she fraudulently obtained it by not telling her prescribing doctor about a previously-issued oxycodone prescription from another doctor. At the conclusion of the hearing on the motion to dismiss, the trial court denied the motion. The court found that Simpson unlawfully obtained her prescription by misrepresentation, constituting fraud. Simpson now appeals the trial court’s denial of her motion to dismiss only as to her trafficking in oxycodone charge and contends that the court erred in denying the motion because she legally possessed the oxycodone in her pill box under a valid prescription.

The standard of review of a trial court’s denial of a motion to dismiss is de novo. State v. Santiago, 938 So.2d 603, 605 (Fla. 4th DCA 2006) (citing State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004)). “A motion to dismiss ... shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Fla. R.Crim. P. 3.190(d) (emphasis added).

We affirm the trial court’s denial of Simpson’s motion to dismiss based on the tipsy coachman rule, see Kennard, 903 So.2d at 245-46, because the State specifically denied in its traverse that Simpson’s husband had a valid oxycodone prescription and that she was the custodian for her ill husband of the oxycodone in her change purse, see Fla. R.Crim. P. 3.190(d). At this stage, the State sufficiently traversed, specifically denying two material facts, and the trial court was required to deny the motion to dismiss because the State charged Simpson with only one count of trafficking in oxycodone. Accordingly, we need not address the trial court’s conclusion that Simpson unlawfully obtained her oxycodone prescription by misrepresentation.

Affirmed.

HAZOURI, J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

I do not agree that the trial judge correctly denied the motion for the wrong reason. I do agree that he correctly considered the traverse sufficient to defeat the motion to dismiss. This case presents no occasion for the Applegate rule.

Because defendant has entered pleas and been sentenced on the charge, there are no further proceedings to be had. So this case has proceeded beyond the pretrial stage to final judgment. Accordingly I would address defendant’s contention that the final sentence from his order denying the motion to dismiss is improper.

In deciding a motion to dismiss a criminal charge, rule 3.190 neither requires nor permits the judge to engage in fact finding. The court simply lays the traverse beside the charging document and motion to dismiss, ascertaining whether the traverse properly appears to deny critical facts involved. In this sense it is different from a motion to suppress where the judge is called upon to take testimony and resolve factual conflicts.

The motion to dismiss simply required the judge to make a legal determination about the effect of the traverse. His gratuitous “finding” that defendant was guilty of fraud in obtaining the prescription is a legal nullity. We should strike it from the order.

      . See Kennard v. State, 903 So.2d 244, 245-46 (Fla. 1st DCA 2005) ("[T]he Tipsy Coachman Rule ... provides that an appellate court may affirm a trial court's judgment if the judgment is legally correct, regardless of the trial court’s reasoning.”).

        . Applegate v. Barnett Bank of Tallahassee, 3,77 So.2d 1150, 1152 (Fla.1979) ("The written final judgment by the trial court could well be wrong in its reasoning, but the decision of the trial court is primarily what matters, not the reasoning used”). For me it is long past the time for retiring that lamentable locution, "Tipsy Coachman Rule.” To paraphrase John Ford, when the cliché becomes law, judges seem to print the cliché. It is as dubious and inartful a metaphor as I have ever heard. Anyway it takes less wind or fewer words to say Applegate.

      . See Fla. R.Crim. P. 3.190(c)(4),(d).


text:
    Robert Dennis LOUDERMILK, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-293.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Grier v. State, 27 So.3d 97 (Fla. 4th DCA 2009).

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


text:
    S.D.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1955.
    District Court of Appeal of Florida, Fourth District.
    April 21, 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 General, West Palm Beach, for appellee.
   GROSS, C.J.

We hold that the contents of a BOLO dispatch were non-hearsay admissible to establish an element of the crime of resisting an officer without violence. See § 843.02, Fla. Stat. (2008).

To find appellant guilty, the trial judge relied on a BOLO dispatch received by the arresting officer, which described two theft suspects at a Wal-Mart. Seeing two persons leaving the Wal-Mart who matched the description in the BOLO, the officer approached and said that he wanted to talk to them. One of the suspects was S.D.T., who fled in spite of the officer’s command to stop. The officer ran down S.D.T. catching up with him around the corner of the store.

S.D.T. contends that because the content of the dispatch was hearsay, the trial court was precluded from relying on it to find him guilty. However, the dispatch was not hearsay, because the state did not offer it for the truth of its contents.

One of the elements of resisting an officer without violence is that, at the time of the resisting, the officer was engaged in the lawful execution of a legal duty. See C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). If an officer has reasonable suspicion to make an investigatory stop, then an officer is engaged in the lawful execution of a legal duty. Id. at 1186. “To be guilty of unlawfully resisting an officer, an individual who flees must know of the officer’s intent to detain him, and the officer must be justified in making the stop at the point when the command to stop is issued.” Id. (citations omitted).

Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2008). For the purpose of a hearsay analysis, the declar-ant in this case was the dispatcher who broadcast the BOLO giving the description of the theft suspects at the Wal-Mart. The state offered the BOLO not to prove the truth of its contents — that the suspects had committed a theft — but to establish that the arresting officer was engaged in the lawful execution of a legal duty at the time of the stop. Regardless of the truth of the statements in the BOLO, the officer was justified in relying on it to make an investigatory stop.

This non-hearsay use of the BOLO to establish an element of the crime of resisting without violence distinguishes this case from those cases which have held that the contents of a BOLO are inadmissible hearsay. See Conley v. State, 620 So.2d 180 (Fla.1993); Owens v. State, 948 So.2d 1009 (Fla. 4th DCA 2007); Taylor v. State, 845 So.2d 301 (Fla. 2d DCA 2003); Tosta v. State, 786 So.2d 21 (Fla. 4th DCA 2001); Horne v. State, 659 So.2d 1311 (Fla. 4th DCA 1995); Jones v. State, 625 So.2d 1291 (Fla. 4th DCA 1993).

For example, in Conley, the defendant was charged with armed burglary, armed robbery, and sexual battery with a deadly weapon. 620 So.2d at 182. The state offered the testimony of an officer who received a police dispatch report of “a man chasing a female down the street” with “some type of gun or rifle.” Id. The Supreme Court held that the BOLO statements were hearsay, since the state used the evidence to prove the truth of the matter asserted, that is, to prove that the defendant “carried a rifle during the criminal episode.” Id. at 182.

Similarly, in Taylor, the defendant was charged with carrying a concealed firearm and possession of a firearm by a convicted felon. 845 So.2d at 302. Two deputies testified that they received a radio dispatch about a man in a white Ford pickup truck who was waving around a gun. Id. at 302. A dispute at trial centered on whether the defendant was aware of a .44 magnum revolver found between the passenger door and the seat of the pickup truck. Id. at 302-03. The state used the contents of the radio dispatch to argue that the defendant knew about the gun. Id. at 303. The second district rejected the state’s argument that the “entire content of [the] dispatch was admissible to explain why police officers arrived at a crime scene.” Id. Citing Conley, the court held that the state “normally ... may not introduce the hearsay content of a dispatch, especially to prove the truthfulness contained within that content.” Id. The court recognized that “[t]he content of a dispatch is often relevant at a pretrial suppression hearing” to establish that an officer acted with probable cause and observed that such content “typically plays no role in establishing the elements of the offense at trial.” Id.

This case fits within the latter situation acknowledged in Taylor. Without regard to the truth of the matters asserted in the BOLO, the fact that the dispatch was received by the arresting officer went to prove an element of the crime, that when S.D.T. fled, the officer was engaged in the lawful execution of a legal duty.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . Because we hold that the BOLO was non-hearsay in this case, it is not necessary to address the double hearsay issue inherent in any BOLO.


text:
    Mark A. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-861.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.
    Robert Wesley, Public Defender, and Amber Contreras, Assistant Public Defender, Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 09-CF-008754-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D)..

TORPY, LAWSON and JACOBUS, JJ., concur.


text:
    Carol A. BUONANNO n/k/a Carol A. Murillo, Petitioner, v. Stephen P. BUONANNO, Respondent.
    No. 5D10-376.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.
    Norman D. Levin of Norman D. Levin, P.A., Longwood, for Petitioner.
    Alan C. Jensen, Jacksonville, for Respondent.
   PER CURIAM.

Petition for Writ of Mandamus denied. See Fla. Pharmacy Ass’n, Inc. v. Strong, 604 So.2d 529 (Fla. 1st DCA 1992) (where private individual seeks mandamus to compel public official to perform duty, individual must first make express and distinct demand on public official to perform duty before remedy of mandamus will be considered).

PETITION DENIED.

PALMER, EVANDER and JACOBUS, JJ., concur.


author: ORFINGER, J.

text:
    Karl Ernest HINDLE, Appellant, v. Sheila Kay FUITH, Appellee.
    No. 5D08-3850.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.

      Karl E. Hindle, Richmond, VA, pro se.
    C. Kim Banister, Daytona Beach, for Appellee.
   ORFINGER, J.

The father, Karl E. Hindle, appeals a final judgment of paternity, which determined that Florida courts have jurisdiction over the custody dispute concerning the parties’ eight-year-old daughter; granted custody of the child to the mother, Sheila K. Fuith; ordered monthly child support; and placed the burden of visitation costs entirely on the father. We find that the circuit court had subject matter jurisdiction to make an initial custody determination and acted within its discretion in granting custody to the mother. ’’ However, we reverse as to the child support and visitation costs.

Subject matter jurisdiction over child custody matters is governed by the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), sections 61.502 to 61.542, Florida Statutes (2003). See Arjona v. Torres, 941 So.2d 451, 454 (Fla. 3d DCA 2006). One of the stated purposes of the UCCJEA is to “[ajvoid jurisdictional competition and conflict with courts of other states in matters of child custody.” § 61.502(1), Fla. Stat. (2003). Under the UCCJEA, a foreign country is treated “as if it were a state of the United States” for purposes of applying the provisions of the UCCJEA. § 61.506(1), Fla. Stat. (2003). A Florida court has jurisdiction to make an initial child custody determination if Florida “is the home state of the child on the date of the commencement of the proceeding.” § 61.514(l)(a), Fla. Stat. (2003). “Home state” is defined in relevant part as “the state in which a child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.” § 61.503(7), Fla. Stat. (2003).

The UCCJEA gives jurisdictional priority to the child’s home state. Arjona, 941 So.2d at 455. However, the UCCJEA grants an exception to the home state jurisdictional requirement when “[a] court of another state does not have jurisdiction § 61.514(l)(b), Fla. Stat. (2003). Therefore, under the UCCJEA, even if Florida is not the child’s home state, Florida may exercise subject matter jurisdiction over a child custody matter if another state does not have jurisdiction.

On the date that the paternity action was commenced in this ease, Florida was not the “home state” of the child because the child had not lived in Florida for six consecutive months prior to the commencement of the paternity action in November 2003. § 61.503(7), Fla. Stat. (2003). However, no other state had jurisdiction since the mother and the child had lived in several states in the six months prior to their arrival in Florida and the commencement of the paternity action. § 61.514(l)(a)-(b), Fla. Stat. (2003). As a result, because no court of any other state would have had jurisdiction under section 61.514, the Florida trial court had jurisdiction to make an initial custody determination.

In making an initial custody determination, the trial court must evaluate the non-inclusive factors listed in section 61.13(3), Florida Statutes, and determine the best interests of the child. See § 61.13, Fla. Stat. (2008); Fuller v. Fuller, 13 So.3d 1108, 1109 (Fla. 5th DCA 2009); see Burgess v. Burgess, 347 So.2d 1078, 1079 (Fla. 1st DCA 1977) (stating that polestar for guidance in custody proceedings is best interests of child). However, there is no statutory requirement that the trial court make specific written findings in a custody decision. See Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998); Murphy v. Murphy, 621 So.2d 455, 456-57 (Fla. 4th DCA 1993). Thus, a final judgment is not erroneous simply for failing to list the factors on which it relied in making its determination. Aguirre v. Aguirre, 985 So.2d 1203, 1206 (Fla. 4th DCA 2008).

Here, the court found that it was in the best interest of the child that the mother have primary residential custody. A finding that primary residential custody is in the “best interests” of the child, whether made in the final judgment or at trial, is sufficient to uphold a custody determination so long as there is substantial competent evidence in the record that permits the court to properly evaluate the relevant factors. Aguirre, 985 So.2d at 1206; see Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002); Bader v. Bader, 639 So.2d 122 (Fla. 2d DCA 1994). Because no transcript of the final hearing is contained in the record, this Court can review only errors that appear on the face of the judgment. Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). As no error appears on the face of the judgment, this Court is unable to review the eviden-tiary basis of the court’s ruling, and must affirm on appeal. Aguirre, 985 So.2d at 1206.

However, our review of the judgment does reveal several matters requiring further consideration. In determining child support, the court found that the mother earned $8 per hour working twenty hours per week. With respect to the father’s income, the court found that he “has the capacity to be employed[,] earning at least minimum wage and has no disability that would prevent him from working a full-time schedule of forty (40) hours per week.” The court then calculated the father’s current child support obligation to be $623.53 per month, and determined that he owed retroactive child support in the amount of $29,154. The judgment required the father to pay $124.71 per month toward the arrearage for a total support obligation of $748.24. However, in calculating child support, the court never disclosed the net incomes of each party and the parties’ respective shares of the child support expenses. And, the Child Support Guidelines Worksheet, which would have provided some insight on this issue, was not attached to the final judgment of paternity as the final judgment indicated.

Child support awards must be supported by substantial competent evidence. Reddick v. Reddick, 728 So.2d 374 (Fla. 5th DCA 1999). The failure to make adequate findings requires remand for determination of child support. Armour v. McMiller, 15 So.3d 923, 925 (Fla. 5th DCA 2009); Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005). In making an award of child support, the trial court is required to determine the net income of each parent pursuant to section 61.30, and to include findings in the final judgment. See Deoca v. Deoca, 837 So.2d 1137, 1138 (Fla. 5th DCA 2003); see also § 61.30(2) (includable income), (3) (allowable deductions), (4)-(6) (determination of net income), Fla. Stat. (2008). On remand, the trial court shall make sufficient findings to permit meaningful review of its ruling on any child support amount, both monthly and retroactive. See, e.g., Aguirre, 985 So.2d at 1207 (explaining that final judgment is facially erroneous, requiring remand, where it does not make any findings as to net income of each party as starting point for calculating child support or explain how calculation was performed); Sumlar v. Sumlar, 827 So.2d 1079, 1083 (Fla. 1st DCA 2002) (explaining that final judgment must include factual findings sufficiently specific to allow reviewing court to ascertain basis of calculations relating to child support); Savery v. Savery, 670 So.2d 1034, 1035 (Fla. 4th DCA 1996) (explaining that to determine child support, trial court required to make specific findings with regard to parties’ net incomes, derived from gross incomes minus allowable deductions).

The father also contends that the trial court erred when it ordered him to bear all visitation costs associated with visiting the child in Florida. He contends that these costs should be borne equally by both parents. The child was born in the United Kingdom where the father resides and removed to Florida by the mother’s unilateral decision. The trial court ruled that the father can only visit the child in Florida, thereby, incurring substantial travel expenses to effectuate his visitation.

The expense of visiting the child in Florida from the father’s residence in the United Kingdom is a childrearing expense like any other. See Miller v. Miller, 826 So.2d 480 (Fla. 1st DCA 2002); Drakulich v. Drakulich, 705 So.2d 665, 667 (Fla. 3d DCA 1998). Child support guidelines provide that transportation expenses, like other childrearing costs, should be shared by the parents in accordance with their financial means. McKenna v. Fisher, 778 So.2d 498, 499 (Fla. 5th DCA 2001). On remand, the trial court is directed to reconsider the visitation expense issue. See Bevil v. Carson, 966 So.2d 1007, 1009 (Fla. 5th DCA 2007).

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY and LAWSON, JJ., concur.

      . “Subject matter jurisdiction — the 'power of the trial court to deal with a class of cases to which a particular case belongs’ — is conferred upon a court by constitution or by statute." Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla. 1994)). Parties cannot agree to jurisdiction over the subject matter where none exists, and the defense of lack of subject matter jurisdiction can be raised at any time. Cunningham, 630 So.2d at 181. “A trial court’s lack of subject matter jurisdiction makes its judgments void....” Strommen, 927 So.2d at 179.

      . Contrary to the mother’s contention, section 61.1312, Florida Statutes (2002), does not apply in this case. In 2002, the Florida Legislature adopted the UCCJEA, to replace the Uniform Child Custody Jurisdiction Act, sections 61.1302 to 61.1348, Florida Statutes, which had included that section. The UCCJEA became effective on October 1, 2002. See ch. 2002-65, Laws of Fla. As this paternity action was commenced in November 2003, the applicable statute is section 61.514, Florida Statutes.

      . We cannot determine how the court calculated the father's child support obligation. At the time that the final judgment was entered, the federal minimum wage was $6.55 per hour, which multiplied by 40 totals $262 per week and a gross salary of $1,126.60 per month. The court found that the mother earned $8 per hour, which multiplied by 20 hours, totals a gross salary of $688 per month. Thus, the parties’ combined gross income is $1,814.60, which under the guidelines provides for the sum of $400 to $410 in monthly child support. While it does not appear that the court used the parties’ financial affidavits, even if calculated based on those numbers (which include the father’s disability checks), the court's child support calculation is still unclear. According to the father, he has a net monthly income of $2,823.01 and the mother calculates her net income as $1,161.75, for a combined net income of $3,984.76, which under the guidelines provides for $819 to $828 in monthly child support. If the court did use the father's disability benefits to calculate the child support obligation (after finding that he was not disabled), then it must make specific findings, clarifying this source of income.


author: GRIFFIN, J.

text:
    Houston WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3360.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   GRIFFIN, J.

Houston Whitfield [“Whitfield”] appeals his judgment and sentence for trafficking in over twenty-eight grams of cocaine. He pled nolo contendere to the charge, reserving his right to appeal the denial of his motion to suppress evidence of the cocaine seized during the search of an automobile. Whitfield contends that the cocaine was discovered in his vehicle pursuant to an illegal detention, and thus should have been suppressed. We agree and reverse.

The evidence and testimony presented at the suppression hearing revealed that the arresting officer, Florida Highway Patrolman, James Barley [“Trooper Barley”], initiated a traffic stop for unlawful speed on the turnpike in Osceola County. Whitfield was driving a rental car with his son as a passenger. They were on their way back to Georgia from the South Florida area. Upon stopping Whitfield, Trooper Barley asked Whitfield to step out of the car and asked for his driver’s license. He had Whitfield return with him to the trooper’s vehicle. Though not apparent from the video, Trooper Barley testified that Whitfield was nervous throughout the encounter. Trooper Barley said that he engaged Whitfield in idle conversation to calm him down. This consisted of a series of rapid-fire questions on a wide range of topics, beginning with, “What are you up to today?” While he waited for dispatch to report back on the status of Whitfield’s driver’s license and warrants check, Trooper Barley asked Whitfield his occupation. Whitfield answered that he was in the commercial lawn care business. Trooper Barley asked him about the type of equipment Whitfield used in his business. Trooper Barley testified that he did not believe Whitfield owned his own business because Whitfield gave him common brand names of equipment, not brands Trooper Barley knew were used for commercial purposes.

After checking Whitfield’s license, at approximately six to seven minutes into the traffic stop, Trooper Barley, for the first time, inquired about the car’s registration. He required Whitfield to remain by his police vehicle while he went up to the passenger side of Whitfield’s car and asked the son to give him the papers. As he did so, he proceeded to ask the son a series of questions similar to those he had been asking Whitfield.

When Trooper Barley’s review of the rental car documents revealed that Whitfield was not the renter of the vehicle, Whitfield told Trooper Barley that his friend, “Terry,” had rented it because Whitfield did not have a credit card. Whitfield said he went to Avis and was added as an additional driver. The rental agreement did have a page attached that listed Whitfield as an authorized driver. At approximately twelve minutes into the stop, Trooper Barley ran a check to verify the car was not reported stolen.

Fifteen minutes into the stop, Trooper Barley inquired whether Whitfield had a criminal record. Whitfield admitted to numerous past arrests. The next several minutes were then taken up with questions about which crimes he had been arrested for, which were the most serious, which were the most minor, whether any were homicides, and the like. Then, eighteen minutes into the traffic stop, Trooper Barley asked Whitfield a series of questions about whether he had any contraband, narcotics, weapons, or large sums of cash in the car. Whitfield answered “no” to all of his questions. Trooper Barley then asked Whitfield for consent to search his car. Whitfield declined, citing the delay and the rain. As a result, at 19:55 minutes into the traffic stop, Trooper Barley called for a K-9 unit.

Immediately thereafter, although Trooper Barley had confirmed that the rental car was not stolen, he resumed examining the authorized driver documentation, expressing doubt about its authenticity because it was a carbon copy with writing on it. He suggested that “anyone” could attach an authorized driver form to a rental contract. He then informed Whitfield that he was going to verify that he was an authorized driver of the vehicle. At 24:53 minutes into the traffic stop, Trooper Barley gave dispatch the long distance number for Avis located on the rental agreement and asked them to find out whether Whitfield was an authorized driver. At 26:13, Trooper Barley can be heard on the video telling dispatch or another officer that “the guy doesn’t want me to search so I am waiting on Harold,” presumably, the K-9 unit. At 26:45 on the video, the K-9 unit is seen driving past their location on the opposite side of the turnpike.

Trooper Barley gave Whitfield a completed written warning at 27:26. It was undisputed at the hearing, however, that Whitfield was still not free to leave because Trooper Barley had not yet received confirmation that Whitfield was an authorized driver of the rental car. At 27:55, Trooper Barley instructed Whitfield’s son to exit the vehicle for the canine sniff. At 28:36, dispatch informed Trooper Barley that Whitfield was an authorized driver. At 28:44 into the stop, the dog cannot be seen in the video and had not begun to search. The canine does not appear in the video until 28:57 to begin his sniff search. Shortly, thereafter, the canine alerted, the officers conducted a search and drugs were discovered.

The trial court rendered a written order denying Whitfield’s motion to suppress. Although the trial court found that the stop of Whitfield lasted approximately thirty minutes, because the K-9 unit arrived within a minute of the verification that Whitfield was an authorized driver, he found the delay in conducting the canine search was not unreasonable and Whitfield was not entitled to suppress the evidence. Whitfield contends on appeal that the charges against him stemmed from an unreasonably prolonged traffic stop and, therefore, the trial court erred in denying his motion to suppress.

There is no issue in the case concerning the propriety of the traffic stop. A traffic violation creates probable cause to stop the driver of a vehicle. See McNeil v. State, 656 So.2d 1320 (Fla. 5th DCA 1995). Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. This investigation may include asking the driver for an operator’s license, insurance and registration. See State v. Robinson, 756 So.2d 249 (Fla. 5th DCA 2000). Also, the officer may run a computer check to determine whether the vehicle involved in the stop has been stolen and whether the driver has any outstanding warrants. See State v. Brooks, 662 So.2d 440, 440-41 (Fla. 5th DCA 1995) (Sharp, J., dissenting.). However, absent an articulable suspicion of criminal activity, the time an officer takes to issue a citation should last no longer than is necessary to make any required license or registration checks and to write the citation. Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001) (citing Cresswell v. State, 564 So.2d 480 (Fla.1990)); Sands v. State, 753 So.2d 630 (Fla. 5th DCA 2000). See also Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

It is well established that the use of a narcotics dog to sniff a vehicle does not constitute a search and may be conducted during a consensual encounter or traffic stop. Caballes, 543 U.S. at 408-09, 125 S.Ct. 834. However, the canine search of the exterior of the vehicle must be completed within the time required to issue a citation. Eldridge v. State, 817 So.2d 884, 887 (Fla. 5th DCA 2002). If a properly trained police dog alerts to the presence of illegal drugs during this time period, the officer will have probable cause for a vehicle search. Id.

Here, Trooper Barley stopped Whitfield’s vehicle for speeding and immediately indicated to Whitfield he was issuing him a written warning for excessive speed. Whitfield’s vehicle could be properly subjected to a canine search as long as the search was done within the time required to issue the citation, provided the time were not unreasonably prolonged. Caballes, 543 U.S. at 407, 125 S.Ct. 834. The record in this case reflects that the routine investigation had been completed within approximately twelve minutes after Whitfield’s vehicle was stopped and that the amount of time reasonably required to do the necessary license/warrant checks and issue the citation — even including the several minutes expended on verifying Whitfield’s authority to drive the car — was significantly less than the twenty-nine minutes expended.

In Sparks v. State, 842 So.2d 876, 877 (Fla. 2d DCA 2003), the deputy had finished writing a citation for driving with a broken headlight before the canine unit arrived twenty minutes after the initial stop, and the court found an illegal detention. Similarly, in Williams v. State, 869 So.2d 750 (Fla. 5th DCA 2004), an officer stopped Williams for a traffic violation, issued a citation thirty-five minutes later and then conducted a dog sweep, leading to Williams’ arrest. The court found the delay to be unreasonable, and further said that, even if the time had been reasonable, because the officer had already issued the citation before commencing the dog sniff, the detention for the sniff was illegal. See State v. Brown, 691 So.2d 637 (Fla. 5th DCA 1997) (officer permitted to run drug sniff until traffic stop concluded, unless unreasonably prolonged to do so). See also Nulph v. State, 838 So.2d 1244 (Fla. 2d DCA 2003).

Here, Trooper Barley had completed all routine investigation within twelve minutes of the traffic stop and, but for the extended interrogation of Whitfield, there is no apparent reason why the citation should not have been issued within a short time thereafter. Because Trooper Barley decided he would confirm that Whitfield was contractually authorized by Avis to drive the vehicle before issuing the citation, eight-and-one-half minutes of the thirty-minute detention were taken up with that question. It is not clear on the record what criminal offense Trooper Barley was holding Whitfield to investigate. In its written order, the trial court indicated that Trooper Barley’s actions were reasonable in light of the recent theft of rental cars in the Central Florida area; however, Trooper Barley had already confirmed that the car was not stolen and no effort was made to determine that the lessee had not given permission for Whitfield to use the vehicle. This investigation extended the traffic stop to more than twenty-eight minutes, which, coincidentally or not, was exactly the same amount of time it took Trooper Barley to get a drug sniff dog on the scene.

We do not see how the length of this stop could be justified by the circumstances. Even adding up separately the amount of time to: (1) run the registration/warrants checks and stolen car checks, (2) complete the warning paperwork and (3) verify that Whitfield was authorized to drive the car, the time reasonably required for this traffic stop was several minutes less than the time that was taken. This court has previously disapproved of such desultory, wide-ranging interrogation of the motorist that has nothing to do with the ostensible purpose of the stop. Maxwell, 785 So.2d 1277. Had the officer started and completed his traffic duties instead of expending the majority of his time asking the motorist about matters having nothing to do with the issuance of a traffic citation, the stop would have been completed before the dog arrived to conduct a sniff search. Time spent by law enforcement asking such questions can rise to the level of unreasonable delay. Id. at 1280.

Even assuming, however, that Trooper Barley had the right to continue to detain Whitfield for twenty-eight minutes in order to ascertain whether he was authorized by Avis to drive the vehicle, the motion to suppress still should have been granted because the search did not begin until after the citation was issued and the purpose of the traffic - stop completed. WTien Whitfield finally was handed the written speed warning at 27:26 minutes into the stop, the K-9 unit had still not begun to search. The trial court made no finding that the dog sniff had occurred by the time Trooper Barley handed over the written warning.

The State urges this Court to approve the search by adopting the de minimis rule found in some federal court cases, most notably, out of the Eighth Circuit. This notion, as articulated in United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir.1999), holds that “when a police officer makes a traffic stop and has at his immediate disposal the canine resources to employ this uniquely limited investigative procedure, it does not violate the Fourth Amendment to require that the offending motorist’s detention be momentarily extended for a canine sniff of the vehicle’s exterior.” Courts applying this rule reject what they perceive to be an artificial distinction between the traffic stop and the time required for the canine sniff, reasoning that “the artificial line marking the end of a traffic stop does not foreclose the momentary extension of the detention for the purpose of conducting a canine sniff of the vehicle’s exterior.” United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir.2006). See also United States v. Martin, 411 F.3d 998 (8th Cir. 2005).

In contrast to the approach of the Eighth Circuit is the view taken by our Eleventh Circuit Court of Appeals. In United States v. Pruitt, 174 F.3d 1215 (11th Cir.1999), the court held that a detention violated the Fourth Amendment where, on facts similar to this case, the officer who stopped the appellants for speeding spent an inordinate amount of time asking questions about matters unrelated to the stop, culminating in a request for consent to search the car, which was declined. This led to a call for the drug-sniff canine and a delay by the officer in issuing the warning for speeding until the drug dog arrived. In the view of the Eleventh Circuit, after a traffic citation has been processed, a citizen should be free to go, absent reasonable suspicion of criminal activity, or consent. United States v. Ramirez, 476 F.3d 1231 (11th Cir.2007).

There is only one case we can find from a Florida court endorsing the de minimis rule, and even that was a bare-bones statement in dicta. State v. Griffin, 949 So.2d 309 (Fla. 1st DCA 2007). In Griffin, a canine handler stopped Griffin for speeding and failing to maintain a single lane. Five to ten minutes later, while writing the citation, a second deputy arrived as backup. At the point when the second officer arrived, the canine handler stopped writing the citation and walked the dog around the vehicle. The dog alerted and the police conducted a search of the occupants. The Griffin court reversed the conviction on the basis that the dog alert did not authorize a search of the occupants. However, the court went on to say that the delay caused by the officer’s decision to stop writing the ticket to conduct the search was not unreasonable and the intrusion into Griffin’s liberty was de minimis. Id. at 315.

We are not persuaded by the State to apply this de minimis rule. For one thing, most of the federal cases cited by the State, and Griffin, are different from this case in that the canine unit was available immediately. In Caballes, the Court specifically noted a distinction between a dog sniff occurring during a routine traffic stop and one occurring during an “unreasonably prolonged traffic stop.” 543 U.S. at 407, 125 S.Ct. 834 (citing to People v. Cox, 202 Ill.2d 462, 270 Ill.Dec. 81, 782 N.E.2d 275 (2002)). In Caballes, because the dog sniff was performed by one officer while a second officer was writing the warning ticket, and the entire episode lasted less than ten minutes, the duration of the traffic stop was not extended. Referring to Cox’s holding that a dog sniff and subsequent discovery of contraband during an unreasonably prolonged traffic stop was the product of an unconstitutional seizure, the Caballes court said: “We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.” 543 U.S. at 408, 125 S.Ct. 834. This suggests that there is a constitutionally significant line of demarcation between a routine traffic stop that includes a dog sniff and one in which a dog sniff is conducted after the investigative procedures incident to the traffic stop have been completed. From the video of the traffic stop contained in the record, it is apparent in this case that the drugs were found after the routine traffic stop had ended and detention for deployment of the canine had begun. Admittedly, the delay was short — de minimis, if you will — but Florida is not a de minimis jurisdiction. In Florida, when the purpose of the traffic stop has been completed, the right to delay the motorist for the conduct of a sniff search expires.

As previously cited Florida cases demonstrate, Florida has not recognized a rule that a completed traffic stop can be extended to conduct a dog sniff search, even if the delay is de minimis. In Florida, a sniff search can be conducted before the traffic stop has been concluded, but not after. See Brown, 691 So.2d at 638. This is a desirable bright-line test, not a subjective measure like de minimis that can be applied inconsistently. A bright-line rule is preferable for several reasons. First, it eliminates the problem of figuring out how long a traffic stop should have taken and how long is “unreasonably prolonged.” See Tracey Maclin, Police Interrogation During Traffic Stops: More Questions Than Answers, 31 Champion 34, 37-38 (2007). Even trickier is deciding how much time is de minimis. If a citizen has completed the ordeal of a traffic stop and is entitled to leave, the citizen’s view of de minimis is likely very different from that of law enforcement or a judge sitting in his chambers. Innocent or guilty, a sniff search is not nothing. As Professor LaFave has outlined in his treatise on search and seizure law, even if the time spent stalling until the dog arrives is not counted, a dog sniff search does take time to conduct, and is rarely the benign, seamless event that the court dealt with in Caballes. As in this case, passengers are ordered from the vehicle, leaving the driver and passengers exposed to the dangers of standing on the shoulder of the roadway. Although in the mind’s eye, these events occur in daylight and good weather, that is not necessarily the case. In this case, for example, although it was daylight, it was raining. The temperature might be very cold or very hot. In Florida, during much of the year, thirty minutes spent standing on the shoulder of a roadway exposed to the sun and heat can easily be an adverse health event. It is a humiliating and, for some, a frightening experience. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.3 (4th ed.) (2009). Sniff searches are not free from error, both because of the limitations of the canines and because drug residue can often be found on common items, like currency. Even in innocent circumstances, such a search can lead to further intrusive, time-consuming and destructive searches. Although a canine drag sniff may be permissible, if conducted while the motorist is already detained for a traffic ticket, to extend the detention to conduct a sniff search in order to obtain probable cause for a search where none otherwise exists, is unjustified.

Other jurisdictions have reached differing conclusions about how to fit a dog sniff into a traffic stop without violating the motorist’s Fourth Amendment rights. We find sensible the reasoning of the 2008 decision of the Supreme Court of Nebraska, State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008). In Louthan, a traffic stop was initiated for an expired tag. As in this case, the driver declined consent to search the car. After verifying that the driver’s license was valid and there were no outstanding warrants, rather than issue the ticket, the driver was instructed to remain with another officer while the officer who conducted the stop went to his vehicle, retrieved his drug detection dog and conducted a search. Approximately eleven minutes after the initial stop, the dog alerted. The Louthan court found the search to be invalid because, unlike in Caballes, the drug detection dog was not deployed until after the investigative steps lawfully incident to the traffic stop had been completed. Id. The court rejected a scheme that required a subjective evaluation of whether the detention for purposes of a sniff search was “unreasonably prolonged.” Rather, once the traffic stop had ended, the Louthan court concluded, the only justification for any continuation of the stop was the existence of reasonable, articulable suspicion of unlawful drug activity. Id. at 462. This is consistent with the historical approach of Florida courts.

The State argues, alternatively, that, even if the stop were unreasonably prolonged, Trooper Barley had a reasonable, articulable suspicion that Whitfield was engaging in illicit drug activity because: 1) the rental vehicle Whitfield was driving was not rented to him; 2) the rental contract did not contain Whitfield’s name; 3) Whitfield was unduly nervous; 4) Whitfield did not fully disclose his prior criminal record; and 5) Whitfield’s story about his business was not credible. These facts fall short of establishing reasonable suspicion of criminal activity sufficient to detain Whitfield past the time reasonably necessary to issue him a citation for speeding. Eldridge, 817 So.2d at 888.

Here, this traffic stop should have been concluded by the issuance of the written warning long before it was. It was indisputably over when Whitfield finally got his warning for speeding — almost thirty minutes after being stopped. The fact that the dog sniff began a short period of time — a de minimis amount of time — after the traffic stop was concluded, does not save the search.

REVERSED and REMANDED.

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

      . The entire traffic stop was recorded from the patrol car and admitted into evidence at the suppression hearing.

      . The questions continued along the lines of: "Where is Crawfordville?” "On vacation?” "Family there?” "How are they?” "Where do they live?” "What do you do for a living?” Business slow?”

      . All time references in the opinion refer to the number appearing in the lower left-hand portion of the computer screen as the DVD recording of the stop proceeds.

      . The record suggests that Trooper Barley spent some time vainly looking for a ''local” number because he did not want to incur the cost of a cell phone call.

      .Because the turnpike is divided with guardrails, the K-9 unit had to go two to three miles past their location to turn around.

      . As Whitfield described it at the suppression hearing: "I already had the ticket in my pocket at that point when we was waiting for the officer to go down and come back.”

      . The trial court also expressed at the hearing that Trooper Barley "did everything he could to expedite the stop” because he called for the canine as soon as consent was refused and it took time for the closest canine to get there.

      . Even in the Eighth Circuit, a prolonged delay in completing the stop due to extensive use of questions unrelated to the traffic violation can be a constitutional violation. United States v. Peralez, 526 F.3d 1115, 1121 (8th Cir.2008). In Peralez, however, the court found the delay did not cause law enforcement to discover the contraband.

      . See also United States v. Williams, 2009 WL 3230781 (M.D.Fla. Sept.30, 2009) (extending a stop beyond the time required to issue the warning and detaining the driver for arrival of a drug-sniffing dog once driver has refused consent to search violates Fourth Amendment), amended on reconsideration, 2010 WL 144870 (M.D.Fla.2010) (because warrants-check still outstanding and traffic warning not issued when sniff search concluded, search was valid.) For an up-to-date discussion of this dichotomy of approach and relevant secondary sources, see Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops after Herring: Brief Delays as Isolated Negligence, 76 U. Chi. L.Rev. 1781 (2009).

      . See United States v. Everett, 601 F.3d at 492 (6th Cir.2010).

      . There is also the inevitable creep. If a one minute delay is de minimis in case No. 1, the two minute delay in case No. 2 is only a de minimis amount longer than the acceptable delay in Case No. 1, and so it goes....

      . 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.3 (4th ed.) (2009).

      . Caballes, 543 U.S. at 411-12, 125 S.Ct. 834 (Souter, J., dissenting); United States v. Limares, 269 F.3d 794, 797 (7th Cir.2001) (error rate of up to 38% acceptable); United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir. 1997). See also Jeffrey S. Weiner & Kimberly Homan, Those Doggone Sniffs Are Often Wrong; The Fourth Amendment Has Gone to the Dogs, 30 Champion 12 (2006). LaFave, supra, § 9.3.

      . See generally Craig Schemer, Time is of the Es’scents’, 76-Mar. Fla. B.J. 26 (2002).

      . See Cresswell v. State, 564 So.2d 480, 481 (Fla.1990).

      . In 1990, the First District Court of Appeal decided a case, Blackmon v. State, 570 So.2d 1074 (Fla. 1st DCA 1990), whose underlying facts are remarkably similar to this case. There, the search was validated precisely because, within three or four minutes into the stop, a second trooper arrived with the dog, without being summoned, and concluded the search while the first officer legitimately completed the traffic stop. The court said that appellant did not experience a greater delay than he would have experienced as a result of his traffic violation. The court also ironically remarked that any intrusion into his liberty was "de minimis." This “de minimis,” however, is a different "de minimis” from the one with which we are dealing. The Blackmon “de minimis " refers to the question whether a sniff search was permissible at all, a question that remained in doubt until Caballes. 543 U.S. at 409-10, 125 S.Ct. 834.


text:
    A.B.E., Appellant, v. SCHOOL BOARD OF BREVARD COUNTY, Appellee.
    No. 5D08-2690.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.

      Scarlett G. Davidson, of Roberts & Cul-mer, P.A., Roekledge, for Appellant.
    Patricia K. Olney, of Patricia K. Olney, P.A., Port Canaveral, and Harold T. Bist-line, of Stromire, Bistline & Miniclier, Roekledge, for Appellee.
   GRIFFIN, J.

Appellant, A.B.E. appeals the School Board of Brevard County’s [“the School Board”] final administrative order expelling her. She argues that the School Board not only erred in finding that it had the power to regulate the conduct for which she was charged but also erred in finding that requisite proof existed in the record to support a finding that she violated sections A.2. and B.2.a. of School Board Rule 5500.

Assistant Principal Frank Forester, of Kennedy Middle School, described the events giving rise to the charge against A.B.E. that resulted in her expulsion:

On 4/21 during the first hour I heard a radio call about a sick student throwing up in a classroom. I responded at the same time as the school nurse and found [A.H.] sitting on the floor outside of the classroom with vomit all over her. She seemed unable to stand and the nurse took over and got her to the clinic. The following day, I heard from several different people that [A.H.] was sick because she had been drinking with ... [A.B.E.] before school. I also heard that they had been drinking before school on Field Day (April 4th).
Because [A.H.] had been absent on 4/22, I waited until 4/23 to speak to the girls. I brought [A.H.] to my office and with Ms. Koch present I questioned her about the drinking before school. She initially denied it so I brought [A.B.E.] up to a separate office and questioned her. They each gave additional information and they both admitted having a drink from ... [A.B.E.’s] family’s liquor cabinet. [A.H.] had spent the night with [A.B.E.] and they had decided to have a drink before coming to school on 4/21.

A.B.E. gave the following statement concerning the incident:

Me and [A.H.] woke up and we wanted to try drinking alcohol, so I looked and grabbed this stuff in my parent’s cabinet, and I put a little in 2 cups, and put coke in it. I thought it was disgusting, so I poured it out, and I didn’t give [A.H.] that much. When my sister woke up, she drove us to school, but she didn’t know. It was a horrible decision and I probably messed up my life, but I’m sorry.

As a result of the incident, a Child Study Committee met concerning A.B.E. The Child Study Committee Meeting, Recommendations and Documentation of Screening, Basic Education Student form, dated April 28, 2008, initially described the specific behavior being addressed as follows: “[A.B.E.] was under the influence of alcohol on school campus.” This description was amended on the form to read: “[A.B.E.] was attending school after drinking alcohol.”

In a letter to Brevard County Schools Superintendent Richard DiPatri and Area Superintendent Sandra Demmon, dated April 29, 2008, Kennedy Middle School Principal Richard Myers recommended the expulsion of A.B.E., writing in part:

Based on Florida Statute 1006.09, I hereby recommend that ... [A.B.E.] a student at Kennedy Middle School be expelled from basic education for the remainder of the 2007-2008 school year, and until the end of first semester 2008-2009 school year. This student committed a serious breach of conduct as described below.
The reason for this recommendation is attending school after drinking alcohol. This student’s actions substantially disrupted the orderly conduct of the school.

An Office of District and School Security Investigative Report, attached to Principal Myers’ letter, lists the “INCIDENT” as “Under the Influence of an Alcoholic Beverage” and the “MOTIVE” as “To Be Intoxicated.” Area Superintendent Demmon approved Principal Myers’ recommendation for expulsion and in a letter to A.B.E.’s parents, dated May 22, 2008, Superintendent DiPatri wrote in part:

This is to inform you that based on Florida Statute 1006.08(1) and the recommendation of Mr. Richard Myers, principal of Kennedy Middle School, as approved by Ms. Sandra Demmon, Area III Superintendent, we will recommend that ... [A.B.E.] be expelled from the basic program for the remainder of the 2007-2008 school year, summer sessions and the first semester of the 2008-2009 school year due to her conduct. She committed an act of gross misconduct, consumed alcohol prior to attending school at Kennedy Middle School.
The hearing on the recommendation for expulsion will be held at the school board meeting June 17, 2008....

A Board Agenda Item document, among the materials attached to Superintendent DiPatri’s letter, includes a “Brief Discussion” as follows:

The student committed a serious breach of conduct, which substantially disrupted the orderly conduct of the school. The student consumed alcohol prior to attending school and was under the influence of alcohol while on the campus of Kennedy Middle School.

Testimony given at the expulsion hearing was consistent with the previously described statements. On July 15, 2008, the School Board entered a final order expelling A.B.E. In its order, the School Board “found from the testimony and evidence that the student A.B.E. committed a serious breach of conduct which substantially disrupted the orderly-conduct of the school in that the student committed an act of gross misconduct, consumed alcohol with another student prior to attending school at Kennedy Middle School.” It also found “[tjhat the conduct of student A.B.E. as described ... constitutes conduct contrary to local School Board Rule 5500 A. 2.B and 2.a and this is an act which substantially disrupts the orderly conduct of the school.”

On appeal, A.B.E. first contends that the School Board erred in finding that it had the power to punish her for consuming alcohol prior to attending school. The School Board counters that, while A.B.E. consumed the alcohol at a time and place where it did not have supervisory authority, she came onto the school premises within less than an hour of consuming the alcohol and, therefore, “possessed the alcohol” at school.

The School Board Rule 5500 is entitled “STUDENT CONDUCT.” Section A.2. of Rule 5500 addresses student misconduct, providing:

Misconduct

Actions by students which are insubordinate or show disrespect for others or general misconduct which disrupts the learning situation shall not be tolerated. If the situation cannot be handled by the teacher, it shall be referred to an administrator. Definite corrective action appropriate to the individual situation shall be taken which may include suspension or expulsion.

Section B.2.a. addresses possession, sale, and/or use of alcoholic beverages, narcotics, illegal drugs, and/or prohibited substances, providing:

Notice is hereby given that possession or sale of controlled substances, as defined in F.S. Chapter 893, by any student while such student is upon school property or in attendance at a school function is grounds for expulsion. Student possession of or being under the influence of alcoholic beverages, and/or hallucinogenic drugs or combinations of drugs or substances have [sic] hallucinatory effects, marijuana, or under the influence of glue or other drugs, or combinations of drugs or drug paraphernalia expressly prohibited by Federal, State, or Local laws, including prohibited substances which shall include those substances possessed, sold, and/or used that are held out to be, or represented to be, controlled substances, illegal substances, or counterfeit in any respect illegal or controlled substances, at any school function or on school property is grounds for expulsion and referral to proper law enforcement agencies.
Further notice is hereby given that possession of prescription drugs, or any over-the-counter medication, not specifically ordered for the student by a physician or the student’s parent or guardian while the student is at any school function or on Board property is grounds for disciplinary action which may include suspension, or expulsion and referral to proper law enforcement agencies.

Based upon section 1006.07, Florida Statutes, and School Board Rule 5500, the School Board’s power to punish student conduct is limited to conduct that occurs either on school premises or during transportation to and from school premises if such transportation is an expense of the public school. See M.T. v. Sch. Bd. of Manatee County, 779 So.2d 328, 328 (Fla. 2d DCA 1999) (“the school board erred when it expelled M.T. because the incident which prompted the school board’s action did not occur at an event or on property subject to the school board’s authority”). Here, during the expulsion hearing, A.B.E. testified that she had “[t]wo sips” of alcohol at “[a]bout 8:15” in the morning at her home. A.B.E.’s sister also testified during the expulsion hearing that she dropped A.B.E. and A.H. off at school at “about 9:00, 9:05.” Based upon this testimony, the consumption of alcohol occurred at A.B.E.’s home approximately forty-five minutes before the start of school. As correctly contended by A.B.E., the School Board could not punish her for consuming the alcohol at home. However, the School Board clearly had jurisdiction over her conduct while she was attending school. Possession or being under the influence of alcohol while at school is plainly prohibited conduct. The question becomes whether the record evidence of A.B.E.’s conduct while attending school made her subject to expulsion as provided in sections A.2. and B.2.a. of Rule 5500.

The School Board presents no authority for its contention that A.B.E. “possessed alcohol” while attending school on April 21, 2008, simply by having consumed it less than one hour before coming to school. Nor does the record evidence establish that A.B.E. was under the influence of alcohol while at school on April 21, 2008. The record contains no evidence that A.B.E. behaved in an impaired manner. Rather, Assistant Principal Forester testified during the expulsion hearing that he neither remembered A.B.E. having acted out of the ordinary on April 21 nor had he received any complaints about A.B.E. on April 21. Further, A.B.E. testified during the hearing that after having sipped the alcohol she felt the same as she normally did, and she did not feel sick or as if she couldn’t function normally. A.B.E. also testified that her day at school on April 21 was “[t]he same as it usually is,” without any problems with any teacher, student, or school person.

Finally, the evidence does not establish that A.B.E.’s conduct while at school on April 21, 2008, disrupted the school’s learning environment. To the extent that there were calls to parents and student discussion or administrative activities that rose to the level of disruption, it was not due to any conduct by A.B.E. while she was at school on April 21.

Because the record does not contain competent, substantial evidence to support the School Board’s finding that A.B.E. was subject to expulsion under sections A.2. and B.2.a. of Rule 5500, we vacate the decision of the School Board.

ORDER OF EXPULSION VACATED.

SAWAYA and EVANDER, JJ„ concur.

      . Because Appellant is a minor, references will be by initials.

      . Based upon the structure of School Board Rule 5500, it appears that the final order contains an inadvertent error. In referring to the specific sections and subsections of Rule 5500, it appears that the final order should read "A.2. and B.2.a.” instead of "A. 2.B and 2.a.”

      . A.B.E. provided what appears to be a complete copy of Rule 5500 in the appendix to her initial brief. It does not appear that Rule 5500 defines "gross misconduct.” During the expulsion hearing, when asked whether "gross misconduct [is] identified or defined somewhere,” Principal Myers said: "I don’t know that it’s defined specifically, but when the operation of the school is affected by the behavior of a student, then that’s a matter that we would take a look at to see the impact it has on the school.” Further, when asked whether he ”h[ad] the definition of gross misconduct,” Principal Myers responded: "I would apply it to any situation that causes a disruption to the learning environment in the school.”

      . See Rigau v. Dist. Sch. Bd. of Pasco County., 961 So.2d 382, 384 (Fla. 2d DCA 2007) (finding that “the testimony presented at the hearing did not constitute competent substantial evidence that [the student] was under the influence”); Crawley v. Sch. Bd. of Pinellas County, 721 So.2d 396, 397 (Fla. 2d DCA 1998) (finding that "the record fails to present even a scintilla of evidence that either student was ‘under the influence’ ”).

      . In tacit recognition of their proof problem, on appeal, the School Board has shifted its focus to suggest that A.B.E. was properly expelled because she provided alcohol to A.H. and A.H. was disruptive.