author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Jean BEAUBRUN, Appellee.
    No. 3D09-2076.
    District Court of Appeal of Florida, Third District.
    June 9, 2010.

      Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Alberto J. Sabates, Certified Legal Intern, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The defendant, Jean Beaubrun, was charged with falsely personating a law enforcement officer, in violation of section 843.08, Florida Statutes (2008), which provides: “A person who falsely assumes or pretends to be a ... police officer ... and takes upon himself to act as such ... commits a felony of the third degree.” This statute “prohibits an individual from falsely assuming the persona of a law enforcement officer and acting as such.” State v. Alecia, 692 So.2d 263, 264 (Fla. 5th DCA 1997). The sole issue presented in this appeal is whether the trial court erred by granting the defendant’s motion to dismiss the information under Florida Rule of Criminal Procedure 3.190(c)(4).

Pursuant to rule 3.190(c)(4), a defendant may file a motion to dismiss criminal charges on the ground that “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” The purpose of a motion to dismiss filed under rule 3.190(c)(4) is to test the legal sufficiency of the case. State v. Arnal, 941 So.2d 556, 558 (Fla. 3d DCA 2006). If the State does not file a traverse specifically denying the factual matters asserted in the motion to dismiss, the factual matters are considered admitted. Fla. R.Crim. P. 3.190(d) (“Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse.”). However, “if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss,” the trial court must deny the motion to dismiss. Fla. R.Crim. P. 3.190(d). “To avoid dismissal under this rule, the State is not obligated to pre-try its case, only to provide sufficient facts, when viewed in a light most favorable to the State, to show that a reasonable jury could rule in its favor.” Arnal, 941 So.2d at 558.

At the hearing on the defendant’s sworn motion to dismiss, the trial court granted the defendant’s motion over the State’s objection, concluding that “none of the actions taken by the defendant can be characterized as acting as a police officer.” In this timely appeal from the subsequent written order granting the defendant’s motion to dismiss, the State argues that the trial court erred by granting the motion to dismiss where its traverse specifically disputes material facts and asserts additional material facts, which, when viewed in the light most favorable to the State, are sufficient to make a prima facie case of guilt against the defendant. We agree.

The defendant’s sworn motion to dismiss asserts that the undisputed material facts are as follows. On the day of the defendant’s arrest, he held Class D and G security licenses and a concealed weapons permit. While attending his uncle’s funeral, he volunteered to escort the funeral procession to the cemetery in his “security car,” which is equipped with a light bar that displays amber and green lights to the front of the car and green and red lights to the back of the vehicle. Further, the vehicle has the following phrases written on it: “K-9 Enforcement,” “911 Emergency,” and “Detection Unit.”

While acting as a funeral escort, the defendant used his vehicle to block oncoming traffic outside the funeral home, but never exited the vehicle when doing so. Thereafter, he drove behind the procession •with the light bar flashing. While escorting the procession on Interstate 95 (“I-95”), Officer Bryant stopped the defendant for failing to yield the right of way. When the defendant exited his “security car,” he was wearing gray cargo pants; a black shirt; a green traffic vest; and a nylon belt with a 9 mm gun, two magazines, a taser with two cartridges, pepper spray, and handcuffs. These items were not visible while he was in the vehicle. Thereafter, Officer Rogers, who responded to the scene, searched the trunk of the “security car,” finding a rifle, 119 rounds of ammunition, two bulletproof vests, and a Velcro patch labeled “police.” The motion to dismiss further asserts that at no time did the defendant identify himself to others as a police officer, wear anything identifying himself as a police officer, or detain or attempt to detain a citizen.

The State filed a traverse/demurrer, admitting the majority of the factual allegations contained in the defendant’s motion to dismiss, but denying certain material factual matters. The traverse denies the assertion in the motion to dismiss that the defendant remained in his “security car” while blocking oncoming traffic outside of the funeral home. Instead, the traverse states that it has not been determined if the defendant exited his vehicle while blocking oncoming traffic and it is unclear if the public saw the defendant in his “police looking garb.” In addition, the traverse denies the defendant’s assertion that he was acting as a funeral escort when he was pulled over by Officer Bryant on 1-95, explaining that before the procession entered 1-95, the police escort had arrived and was actively escorting the funeral procession. Nonetheless, the defendant, who was speeding and driving on the shoulder of the highway, continued to drive behind the police motorcycle at the end of the procession with his vehicle’s lights activated. The traverse asserts that the “actions of the Defendant were not that of one who was escorting a funeral procession, but one who was intending to deceive the public to believe he was a law enforcement officer.” Moreover, the traverse states that in addition to the phrases described in the motion to dismiss, the defendant’s vehicle also had the following markings and equipment — red and blue stripes; a State of Florida seal; the phrases “Warning: Work Dog” and “K-9 Officer Enforcement”; a laptop computer mounted on the front console; a K-9 cage; and a Police Athletic League license plate.

Construing the facts in the light most favorable to the State, it is clear that a jury could reasonably find that the defendant “falsely assume[d] or pretend[ed] to be a ... police officer .-.. and [took] upon himself to act as such,” in violation of section 843.08. In doing so, we focus on the following facts: the defendant’s attire — gray cargo pants; a black shirt; a green traffic vest; and a nylon belt with a 9 mm gun, two magazines, a taser with two cartridges, pepper spray, and handcuffs; the defendant’s vehicle, which resembled a law enforcement vehicle; and the defendant’s actions after the two motorcycle police officers arrived and began actively escorting the funeral procession — driving the vehicle at a high rate of speed and on the shoulder of the highway with the vehicle’s lights activated and following closely behind the motorcycle police officer that was at the back of the procession.

The markings on the defendant’s vehicle and his actions are of particular importance. Based on a combination of the “facts” listed in the defendant’s sworn motion to dismiss and the State’s traverse, the defendant’s vehicle was equipped with a light bar containing amber, green, and red lights; had the following phrases and markings on it: “K-9 Officer Enforcement” (emphasis added), “911 Emergency,” “Warning: Work Dog,” “Detection Unit,” and a State of Florida seal; and was equipped with a K-9 cage, a laptop computer mounted on the front console, and a Police Athletic League license plate.

Chapter 498, Florida Statutes (2008), regulates private security, investigative, and repossession services. Section 493.6124 prohibits the use of any pictorial portion of the seal of the State of Florida in connection with any activities regulated under Chapter 493.

Additionally, section 316.1974(2)(a), Florida Statutes (2008), specifies the type of lights that may be used by a non-law enforcement funeral escort vehicle. Section 316.1974(2)(a) provides that “[a]ll non-law enforcement funeral escort vehicles ... shall be equipped with at least one lighted circulation lamp exhibiting an amber or purple light.... Flashing amber or purple lights may be used only when such vehicles are used in a funeral procession.” The defendant’s vehicle was equipped with a light bar that displays amber and green lights to the front of the car, and green and red lights to the back of the car, and all lights were activated when he was pulled over by Officer Bryant.

Thus, based on the defendant’s attire, his vehicle, and his actions, the jury could reasonably find that the defendant “falsely assume[d] or pretend[ed] to be a ... police officer ... and [took] upon himself to act as such,” in violation of section 843.08. Accordingly, we reverse the trial court’s order of dismissal and remand for reinstatement of the charge against the defendant.

Reversed and remanded.

      . Section 493.6124 provides as follows:
      Use of state seal; prohibited. — No person or licensee shall use any facsimile reproduction or pictorial portion of the Great Seal of the State of Florida on any badge, credential, identification card, or other means of identification used in connection with any activities regulated under this chapter.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Andres ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3602.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Carey Haughwout, Public Defender, and Christine Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Andres Ortiz, appeals his convictions for organized scheme to defraud and first degree petit theft. Because the state failed to prove the value of the checkbook stolen as alleged in the information, we reverse the conviction for first degree petit theft, rejecting the state’s contention that the jury could consider the total amount on deposit in the bank account as the value of the checkbook. On all other issues we affirm.

The state charged Ortiz with engaging in an organized scheme to defraud, burglary of a dwelling, and petit theft. As to petit theft, the information alleged that Ortiz stole a checkbook belonging to the victim. The state proved at trial that Ortiz entered the victim’s home, took her checkbook, and then cashed several forged checks totaling $725. Appellant claimed that the alleged victim gave him the checks as payment for roofing work and a car he sold to her. The cashing of the forged checks constituted the proof of an organized scheme to defraud. At trial, the jury found Ortiz guilty of organized scheme to defraud and of first degree petit theft but acquitted him of burglary.

Ortiz moved for a judgment of acquittal of first degree petit theft. See Fla. R.Crim. P. 3.380(c); see State v. Stevens, 694 So.2d 731, 733 (Fla.1997). He argued that the state failed to prove the value of the checkbook that was stolen. In denying the motion, the trial court reasoned that the value of the checkbook was the value of the entire checking account. Ortiz appeals the denial of the motion for judgment of acquittal and his resulting conviction for first degree petit theft.

The standard of review for the denial of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

To establish the commission of a first degree petit theft, the state is required to prove that the property stolen is valued at $100 or more, but less than $300. § 812.014(2)(e), Fla. Stat. Where the state fails to prove that the stolen property is worth at least $100, a conviction for first degree petit theft must be reduced to second degree petit theft. See K.W. v. State, 13 So.3d 90, 92 (Fla. 3d DCA 2009) (reducing theft conviction to second degree petit theft where state failed to prove the value of the stolen cell phone exceeded $100).

The standard jury instruction on theft defines “value” as follows:

“Value” means the market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $100.
In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible.

See Fla. Std. Jury Instr. (Crim.) 14.1 (emphasis added).

Relying on the portion of the jury instruction pertaining to theft of a written instrument, the trial court concluded that the jury could consider the value of the entire checking account in determining the value of the checkbook. Likewise, on appeal the state argues the amount in the checking account represented the greatest economic loss the victim could suffer by virtue of the loss of her checkbook. However, the state specifically alleged the theft of the checkbook. The state did not prove a value of the checkbook itself.

The Third District confronted an analogous situation in S.P.S. v. State, 801 So.2d 951 (Fla. 3d DCA 2001), involving the value of stolen phone cards with a face value of $99.99 each. Those cards were usable only if they were first activated at the checkout counter. Because the defendant did not check out, the cards were not activated. The Third District reasoned that an unactivated phone card “is worth nothing more than the nominal value of the materials contained in the card itself.” Id. at 951.

Similarly, in this ease there was no testimony establishing the fair market value of the victim’s stolen checkbook itself. Furthermore, because there was no testimony establishing that the checkbook contained anything other than blank checks, there was no “amount due or collectible” with respect to the blank checks inside the checkbook. Instead, the blank checks in the checkbook were worth only the paper they were written on. While the theft of a checkbook may potentially lead to the commission of still other crimes, this does not affect the value of the stolen checkbook itself. Id. at 952 (“That the situation may have involved the potential commission of still other crimes does not affect the value of the property stolen under section 812.014(2), Florida Statutes (2000), which is the only issue before us.”). In fact, Ortiz was charged with and convicted of organized fraud for cashing the forged checks. Because the state failed to prove that the checkbook was worth more than $100, we reverse Ortiz’s conviction for first degree petit theft.

We reject Ortiz’s other contention that the court erred in denying his motion for mistrial for a comment on Ortiz’s right of silence. A trial court’s ruling on a motion for mistrial is reviewed under an abuse of discretion standard. See Cole v. State, 701 So.2d 845, 853 (Fla.1997). Based upon our review of the trial transcript, we cannot conclude that the court abused its discretion.

We affirm Ortiz’s conviction for organized fraud and reverse his conviction and sentence for first degree petit theft, directing the court to enter a judgment of conviction and sentence for second degree petit theft.

DAMOORGIAN and LEVINE, JJ., concur.


author: CIKLIN, J.

text:
    Jerry L. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2278.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Jerry Jones was charged with and found guilty of first degree premeditated murder with a firearm and possession of cocaine. On appeal, Jones asserts that the trial court erred when it denied his motion for judgment of acquittal because the State failed to prove the element of premeditation. He also argues the trial judge committed reversible error in admitting statements of the victim under the dying declaration exception to the hearsay rule. Because the State introduced extensive evidence from medical and weapons experts as well as pre-trial statements from Jones himself — all of which was sufficiently inconsistent with Jones’ hypothesis that the shooting was accidental — the issue of premeditation was properly submitted to the jury for resolution. Because testimony from responding police officers and a treating paramedic indicated the victim’s statements were made at a time when the victim feared his imminent death, we find that the trial court’s eviden-tiary ruling should not be disturbed.

At trial, the State introduced testimony from a variety of witnesses beginning with Sheila Kohr, a woman who lived with Jones and the victim. Kohr stated that during the midnight hours of September 26-27, 2006, she and Jones argued after she saw him with a crack pipe in his mouth. She told Jones to leave the home and then walked away from him. She then stopped in the victim’s room to say goodnight to him and proceeded to her room to go to sleep. She soon heard Jones muttering to himself and then the noise of Jones’ truck door open and close. Moments later, and after she heard Jones come back inside, Kohr heard the victim ask Jones something to the effect of whether he was “through bitching yet.” Kohr then heard Jones say, “You want some of me mother fucker” and then almost instantaneously, the sound of a gun firing.

After Kohr, the State presented testimony from Deputy Sheriff Augustin Saucedo. Deputy Saucedo stated that he arrived at the home and found Jones pacing, telling officers that the man inside had been shot as the result of an accidental firing. Deputy Saucedo stated that the victim was moaning and complaining of pain. Deputy Saucedo then asked the victim if he was shot on purpose to which the victim replied “yes.”

Jay Curtis, a paramedic/emergency medical technician, hooked the victim up to an IV to replace fluids and give him oxygen. Curtis testified that the victim repeatedly disagreed with the paramedics’ attempts to reassure him that he would be okay. On cross-examination, Jones’ attorney asked:

Q: Would you say that his — would you characterize his statement such that he knew and appreciated his condition as being that of an approach to certain and immediate death?
A: Yes, I think that’s true.

Curtis also testified that while the victim was being transported in an ambulance, the victim told him Jones shot him.

Over Jones’ hearsay objections, the testimony from Saucedo and Curtis as to the victim’s statements was admitted as dying declarations.

Detective Marty Faulkner testified that after arriving at the scene, he observed the victim in an ambulance being treated for a gunshot wound to his abdomen. Faulkner testified that the victim had lost a significant amount of blood and appeared very-pale, clammy looking, and was having great trouble breathing.

The State then played Jones’ interview with Detective Faulkner. During this interview, Jones admitted to the shooting but claimed it was an accident because the rifle had a “hair trigger.” Jones later stated that he picked up the gun when the victim came out of his bedroom and toward him. Jones said he told the victim to stay away. At some point throughout the recorded interview, Jones stated that he thought the gun was unloaded. At another point in the interview, however, he admitted that he intentionally cocked the gun to put a bullet in the chamber as the victim approached him. After the shooting, Jones called 911, gave the phone to Kohr, grabbed some towels and unloaded the gun. Jones admitted that he smoked crack cocaine on the night of the shooting and said that while the victim was coming towards him, he feared a confrontation and “pulled the trigger and it went off.” Jones said the victim at times made him feel inferior and that it was Jones’ intent to either shoot or stab the victim because he felt threatened by him. Jones also recalled that when the victim was coming towards him, Jones said something to the effect of “come on mother fucker, you want some of me.”

The State presented testimony from Indian River crime lab firearm examiner, Mark Chapman. Chapman said that the recovered Winchester 30-30 rifle had no unusual defects and functioned properly. He testified that the casing found at the scene was fired from the rifle. He opined that the rifle had a weight trigger pull between 4-4.75 pounds, which was normal for this weapon.

The State concluded its case in chief by presenting the testimony of Medical Examiner Dr. Roger Mittleman. Mittleman performed the autopsy on the victim and determined the cause of death was a gunshot wound to the abdomen. The State then rested.

Jones moved for a judgment of acquittal as to the charge of premeditated murder with a firearm, arguing that there was no showing of premeditation and that there was a reasonable hypothesis that the victim was killed in an accidental shooting during the course of an altercation.

The trial court denied the motion for judgment of acquittal and reaffirmed a previous ruling that the victim’s statements were admissible as dying declarations. We affirm.

Premeditation

An appellate court’s review of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. In moving for a judgment of acquittal, a defendant “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). “[T]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal.” Hartman v. State, 728 So.2d 782, 784 (Fla. 4th DCA 1999) (citation omitted).

The unlawful killing of a human being when perpetrated from a “premeditated design to effect the death of the person killed” is murder in the first degree. § 782.04(l)(a)l., Fla. Stat. (2008). The essential element distinguishing first degree murder from second degree murder is premeditation. Green v. State, 715 So.2d 940, 943 (Fla.1998). “Premeditation can be formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’” DeAngelo v. State, 616 So.2d 440, 441 (Fla.1993) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)). Premeditation can occur a mere moment before the act of killing. See Hartman, 728 So.2d at 784.

“Where the element of premeditation is sought to be established by circumstantial evidence, the evidence relied upon by the state must be inconsistent with every other reasonable inference” in order to defeat a motion for judgment of acquittal. Cochran v. State, 547 So.2d 928, 930 (Fla.1989) (emphasis added). “Premeditation may be inferred from the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted.” Id. at 938.

The instant case is analogous to this court’s holdings in Fennell v. State, 959 So.2d 810 (Fla. 4th DCA 2007) and Dixon v. State, 911 So.2d 1260 (Fla. 4th DCA 2005).

In Fennell, the appellant and victim lived together and were romantically involved in a volatile relationship. After one argument resulted in the defendant moving out of the home, the appellant told a few neighbors that “If I ever get back there, I am going to kill this bitch.” Id. at 812. On the night of the murder, a witness saw the victim go inside the home and immediately heard gunshots. The police were summoned and found the victim dead. The defendant was arrested and told police officers the location of the weapon. The bullets recovered from the victim’s body were a match for those fired by the recovered handgun.

At trial, evidence indicated that there was no struggle or fight between the couple and that it took a heavier force to pull the trigger than most handguns. A medical examiner testified that the cause of death was one of four gunshots; a fatal shot that penetrated the back of the victim’s neck. The State rested and appellant moved for judgment of acquittal on the issue of premeditation which the trial court denied. Id. at 813. The defendant then testified that on the night of the murder, the couple was arguing about financial obligations. The defendant stated that the victim drew a gun on him and that while she was distracted, he grabbed for the gun and when the two fell to the floor, it discharged several times.

After a renewed judgment of acquittal was denied, the appellant was convicted of first degree premeditated murder and appealed. Id. at 813. This court held the evidence at trial was inconsistent with the appellant’s hypothesis of an accidental discharge. In support of our decision we pointed to the lack of evidence indicating the shooting was a result of a close-contact fight, evidence that the defendant had made statements expressing intent to kill the victim prior to the shooting, as well as testimony that the amount of force necessary to activate the handgun’s trigger was sufficient to establish premeditation. Id. at 814-815.

In Dixon, the appellant shot and killed the victim during an attempted robbery. The defense hypothesis at trial was that the appellant panicked during the robbery and fired the gun accidentally. 911 So.2d at 1262. The State introduced the testimony from a witness who heard someone say “I will shoot the mother fucker” minutes before hearing gunshots. The victim’s son, present during the crime, testified that the defendant yelled while pulling at the victim’s jewelry, “take off your jewelry, I am going to kill you.” Id. at 1262.

The State argued that these statements, made just minutes before the victim was shot and killed, proved premeditation. This court agreed, holding that “[sjtate-ments of an accused expressing an intent to kill, followed not too remotely by the act of killing, may be evidence of premeditation.” Id. (quoting Sierra v. State, 429 So.2d 882, 833 (Fla. 3d DCA 1983)) (holding that both general statements that the defendant would kill anyone followed by a separate statement that he would kill his wife were relevant to establish premeditation).

In the matter before us, the evidence introduced by the State to prove premeditation was inconsistent with Jones’ hypothesis of an accidental discharge. Like Fennell and Dixon, shortly before the shooting Jones was heard by a witness saying that “I’ve got something for you mother fucker” and then again right before the shooting, asking the victim, “you want some of me mother fucker”? During his interrogation, Jones acknowledged making these statements — or statements of a similar nature.

Also, as in Fennell, here the State introduced evidence from a firearm expert indicating the rifle was functioning normally, showed no visual defects, and performed within the normal range on the weight trigger pull test — thus militating a suggestion of an accidental discharge and refuting Jones’ claim that the rifle had a “hair trigger.”

Jones himself told police officers that he cocked the rifle in order to chamber a bullet and raised and pointed the rifle directly at the victim. We find this evidence sufficient to vitiate Jones’ contention that the shooting was accidental. See Wheeler v. State, 4 So.3d 599, 605 (Fla.2009) (holding that pumping a rifle to chamber a round is evidence of premeditation).

The State produced substantial and competent evidence to support a finding of premeditation which was inconsistent with Jones’ hypothesis of an accidental shooting. We find that Jones’ motion for judgment of acquittal was appropriately denied.

Dying Declarations

“Dying declarations” are admissible as exceptions to the rule against hearsay. See § 90.804(2)(b) (2009). A dying declaration is “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.” Id.; see also Williams v. Stale, 967 So.2d 735, 749 (Fla.2007) (“For a statement to be admissible under this hearsay exception, the declarant must believe death is imminent and inevitable with no hope of recovery.”). Although the admissibility of evidence is generally reviewed for abuse of discretion, “whether a proper and sufficient predicate has been established for the admission of a statement under the dying declaration hearsay exception is a mixed question of law and fact that is reviewed under a ‘clearly erroneous’ standard.” Id.; see also Teffeteller v. State, 439 So.2d 840, 843-44 (Fla.1983).

Jones contends that the victim’s statements should not have been admitted as dying declarations because the statements were not made at a time when the victim feared his imminent death. The evidence adduced at trial suggests otherwise.

Testimony from Deputy Saucedo and Paramedic Curtis revealed that the victim said he was purposely shot by Jones. Detective Faulkner testified that he first found the victim stretched out on a gurney in an ambulance. The detective testified that the victim’s appearance was very pale and clammy looking and that he had labored breathing and was in great pain. The detective also stated the victim had lost quite a bit of blood. Paramedic Curtis stated that the victim repeatedly disagreed with medical technician assurances that he would survive. See Williams, 967 So.2d at 749 (“[RJelevant to [the victim’s] perception of ... imminent death” is the victim’s recognition that he or she is attached to medical machinery and has indicated that, despite supportive attempts by hospital personnel, the patient does not believe there is hope for recovery.).

We find this evidence clearly establishes that the victim’s statements were made at a time when the victim was in fear of imminent death without any hope for recovery. See Labon v. State, 868 So.2d 1222 (Fla. 3d DCA 2004) (holding that statements made while victim lost sensation to his legs as a result of gunshot wounds, was rushed to the trauma center for emergency care, and, when victim saw intravenous tubes placed in his veins in preparation for emergency surgery, were made while the victim feared imminent death).

Under these facts, we conclude that the admission of the victim’s statements as dying declarations was not clearly erroneous.

Affirmed.

TAYLOR and GERBER, JJ., concur.

      . Jones was also charged with possession of a firearm by a convicted felon to which he entered a plea of guilty prior to trial.

      . Jones makes additional points on appeal concerning Brady and Giglio violations, all of which we find without merit and therefore choose not to address.

      . A “weight trigger pull” is the amount of force necessary to activate the trigger.


author: POLEN, J.

text:
    S & I INVESTMENTS, Ilene Richmond and Stephanie Richmond, Appellants, v. PAYLESS FLEA MARKET, INC., a Florida corporation, Appellee.
    No. 4D08-486.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.

      Beverly A. Pohl and Barbara Viota-Sawisch of Broad and Cassel, Fort Laud-erdale, for appellants.
    Stephen Rakusin of the Rakusin Law Firm, Fort Lauderdale, for appellee.
   On Motion for Rehearing and Clarification

POLEN, J.

We grant the appellee’s motion for clarification in part, deny the appellee’s motion for rehearing, withdraw our April 7, 2010 opinion, and substitute the following:

In this commercial landlord-tenant dispute, S & I Investments and its two general partners, llene Richmond and Stephanie Richmond (collectively, “S & I”), appealed a final judgment for money damages in favor of Payless Flea Market, Inc., which found: (a) that the 2003 commercial lease is a valid, binding lease between the parties; and (b) that Payless was entitled to recover $106,018.00 against appellants, jointly and severally, for breach of the lease, together with $14,951.53 in prejudgment interest, plus post-judgment interest, llene Richmond, the only remaining appellant, raises three issues: (1) whether the 2003 lease is unenforceable because it lacks two subscribing witnesses, as required by section 689.01, Florida Statutes; (2) alternatively, if the lease is deemed valid, whether judgment should have been granted for the lessor on the breach of contract claim where, under the 2003 lease, the lessor had “sole and unfettered discretion” to withhold consent to subleases; and (3) alternatively, whether the evidence did not support the damages awarded. Because we reverse on the first issue, and find that the 2003 lease was void from its inception, we need not address the remaining issues. We will comment only briefly on the issues raised in the cross-appeal, which we affirm.

In August of 1995, S & I and Payless entered into a ten-year commercial lease for a building on Las Olas Boulevard. Milton Richmond signed the agreement on behalf of the lessor, S & I. When Richmond passed away in 1996, his daughters, llene and Stephanie, became joint partners of S & I. There was no written partnership agreement, but llene assumed the day-to-day management of S & I.

In 1999, Isaac Asulin, who operated a clothing store as a subtenant in the building, purchased Payless from the prior owners.

In February of 2003, Asulin contacted llene Richmond about renewing the lease, which was due to expire in August 2004. Over the next several months, they exchanged draft leases. Ilene’s attorney, David Stolar, sent a letter to Stephanie’s attorney, Lori Sochin, advising that llene had commenced negotiations with Payless. Ms. Sochin responded that Stephanie did not authorize llene to enter into any long-term agreement with a tenant for the Las Olas property without Stephanie’s express consent.

On October 8, 2003, llene and her attorney, Mr. Stolar, dropped a proposed lease with Asulin for his review, at which time they discussed final changes. llene and Stolar returned on October 16, 2003, to execute the lease. Only one change was made in the percentage of sales tax; both parties initialed the change. llene and Asulin signed the lease, which was witnessed by one of Asulin’s employees. There was only one witness, although the signature page of the lease provided for two subscribing witnesses. llene gave Asulin an executed original and kept the other. llene claimed that Asulin knew Stephanie’s approval was required, but that he asked to retain a copy of the signed lease to reread, saying, “don’t you trust me?” Against her counsel’s advice, and with Asulin’s alleged promise to return the lease if Stephanie or her counsel did not approve it, llene left him a copy. Asulin denied any understanding or conversation that the signing was not final, and was conditioned on Stephanie’s approval. The jury obviously accepted Mr. Asulin’s testimony.

On October 24, 2003, llene called Asulin, demanding that he return his copy of the lease. When Asulin refused, llene admittedly “went ballistic,” believing “[i]t was a tremendous betrayal of trust.” She left him an angry voicemail and “screaming and threatening and yelling” messages to his counsel, demanding that the lease be returned. llene did not want Stephanie to find out that the lease had been signed without Stephanie’s approval. In addition, Asulin’s counsel, Mr. Nurieli, was notified prior to the effective date of the lease, November 1, 2003, that it lacked two subscribing witnesses. When Asulin refused to return his copy or take her calls, llene advised him, via e-mail, that she was withdrawing her consent to the lease.

Asulin remained on the premises, collecting rent from the subtenants and paying rent into the court registry pending a resolution of the dispute. llene told Asu-lin he was not to enter into subleases while the litigation was proceeding. llene told several subtenants about the dispute and that she was evicting Payless. Payless’s theory of damages was that those contacts, as well as S & I’s refusal to recognize the 2003 lease, constituted a breach of the lease that caused damages to Payless, because it was unable to enter into any long-term leases with the subtenants. No long-term subleases were ever presented to S & I for its approval, and no subtenant testified at trial.

S & I filed a complaint for tenant eviction and two counts of rescission. The latter two counts were voluntarily dismissed. Payless filed a second amended counterclaim for declaratory relief, tor-tious interference with contract rights, abuse of process and breach of contract. Payless later filed a separate complaint against S & I, alleging tortious interference with contract rights, abuse of process and breach of contract. Cross motions for summary judgment were filed, and the trial court granted summary judgment in S & I’s favor on the abuse of process claim.

The case proceeded to trial, and the jury found that the 2003 lease was a valid, binding lease between S & I and Payless, and that S & I had breached the lease by not allowing Payless to enter into any written subleases with its subtenants. The jury awarded Payless $106,018.00 in damages. The jury found in favor of S & I and llene Richmond on the tortious interference claim.

The trial court denied S & I’s post-trial motions, including motions for judgment in accordance with the motion for directed verdict, motion for new trial and motion for remittitur. The trial court entered final judgment on the jury verdict. This appeal and cross-appeal follow.

In its post-trial motion for judgment in accordance with prior motions for directed verdict, S & I argued that the 2003 lease is a new lease which must comply with the statute of frauds. The 2003 lease was for a term in excess of ten years, but was signed by only one subscribing witness. See § 689.01, Fla. Stat. (requiring that a transfer of a leasehold interest for a period longer than one year must be in writing and signed by the party transferring the interest in the presence of two subscribing witnesses). The motion was denied. Payless persuaded the court that because the lease was a “renewal,” rather than a “new” lease, there was no need for two subscribing witnesses.

In considering a motion for a directed verdict, the trial court is required to view the evidence in the light most favorable to the nonmoving party and draw all reasonable conclusions and inferences favorable to the nonmoving party. A directed verdict should not be granted unless no view of the evidence could support a verdict for the nonmov-ing party.

Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 171 (Fla. 4th DCA 1994) (citations omitted). The same standard applies to appellate review of the trial court’s ruling on the motion. See id. at 171-72.

llene Richmond argues that the only reasonable conclusion to be drawn from the facts is that the 2003 lease was not a renewal of the 1995 lease, but a new lease with different terms and involving different parties. Therefore, the court’s legal conclusion that the 2003 agreement was a renewal lease was erroneous. And, because the 2003 lease was a new lease, it must comport with section 689.01 to be enforceable. Since it did not, llene contends that the final judgment must be reversed and entered in her favor.

Payless responds that the 2003 lease was enforceable, because it was a renewal lease, and thus, two witnesses were not required. Alternatively, Payless contends that Ilene’s argument is precluded by the invited error doctrine. Finally, relying on the tipsy coachman rule, Pay-less contends that this court should uphold the trial court’s order based on the theory of estoppel. Specifically, Payless contends that llene is estopped to complain about the lack of two witness signatures because the renewal lease was executed under the supervision of her own counsel and with the same formality as the original 1995 lease; there were witnesses to the signing that could have subscribed as the second witness, and because S & I accepted almost one million dollars in rents under the original lease, which had only one witness.

At the outset, we reject Payless’s argument that appellant(s) invited the error when stipulating that the trial court could determine the issue of whether the 2003 lease was a renewal as a matter of law. Counsel stipulated only that the trial court could make the “new versus renewal” determination as a matter of law; the adverse ruling, itself, was not invited. See Zanoletti v. Norle Props., Corp., 688 So.2d 952, 954 (Fla. 3d DCA 1997) (“Invited error occurs when the appellant somehow induced the specific ruling by her affirmative action or inactivity.”) (emphasis added).

On the merits, we find that, regardless of whether the lease was deemed new or a renewal, two signatures were required under the applicable statute of frauds, § 689.01. We further find that, given the particular facts herein, the doctrine of es-toppel does not apply.

Section 689.01, Florida Statutes, requires that a lease for a term of more than one year be in writing and signed in the presence of two subscribing witnesses:

No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or heredit-aments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year,....

§ 689.01, Fla. Stat. (2003) (emphasis added). Thus, a lease that has only one subscribing witness is unenforceable. See Fla. Women’s Med. Clinic, Inc. v. Sultan, 656 So.2d 931 (Fla. 4th DCA 1995) (affirming trial court’s dismissal of a complaint that sought to enforce a lease because the lease had only one subscribing witness); Tino v. Outdoor Media, Inc., 242 So.2d 196 (Fla. 3d DCA 1970) (affirming trial court’s dismissal of complaint for breach of lease where lease was invalid and unenforceable, in part, because it was “not witnessed as required by § 689.01, Fla. Stat.”). It is undisputed that the 2003 lease had only one subscribing witness, and thus, failed to comply with section 689.01.

Payless argues, however, that the 2003 lease was a valid extension by renewal of the 1995 lease, with substantially the same terms and executed in the same manner as the earlier lease. Therefore, two subscribing witnesses were not required.

Both parties rely on Taylor v. Rosman, 312 So.2d 239, 241 (Fla. 3d DCA 1975), as the key case on the issue. In Taylor, the tenant moved to dismiss a complaint seeking rent payments under the second lease between the parties. Id. at 240. The tenant argued the lease was unenforceable under section 689.01, because there was only one subscribing witness. Id. The lower court granted the motion. Id. In reversing, the appellate court found that “[t]he two rental agreements are substantially the same form, contracts, and both agreements were even executed in a similar manner (including one witness to the signature of the landlord and tenant).” Id. (emphasis added). The court therefore concluded that “the second agreement was not a ‘new lease’ as contended by the appellee, but merely constituted an extension by renewal of the first lease.” Id. (emphasis added). The court further held that the tenant was estopped to defeat the second lease agreement by asserting section 689.01 because she and her husband occupied the apartment for almost two years under the similar first rental agreement, making rental payments thereunder. Id. at 241.

To the extent Taylor suggests that a renewal lease would not have to meet the two-witness requirement under section 689.01, we disagree with the opinion in Taylor. The language of the statute makes no such distinction. To the contrary, it states in relevant part that “[n]o estate or interest of freehold, or for a term of more than 1 year, ... shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses .... ” § 689.01 (emphasis added.)

As for Taylor’s finding that the tenant was estopped to defeat the second lease agreement by asserting section 689.01 because she and her husband occupied the property for almost two years under the similar first rental agreement, making rental payments thereunder, 312 So.2d at 241, the Third District more recently noted in Skylake Insurance Agency, Inc. v. NMB Plaza, LLC, 23 So.3d 175 (Fla. 3d DCA 2009), that:

In the decided estoppel cases involving leases, the tenant took possession and the landlord accepted the rent. The Florida Supreme Court said in one such case that the lessors were
estopped from contending that the lease here involved is invalid for the reason that it was executed in the presence of only one subscribing witness .... [The lessors] have accepted benefits under the lease, have placed the lessee in possession, have negotiated to convey the lands subject to the lease, and in an all respects have recognized it as being an effective conveyance, and in equity they ought not to be permitted to disavow it now.

Id. at 178 (citing Gill v. Livingston, 158 Fla. 577, 29 So.2d 631, 632 (1947); Taylor, 312 So.2d at 241; Arvanetes v. Gilbert, 143 So.2d 825, 826 (Fla. 3d DCA 1962); Lipkin v. Bonita Garden Apartments, Inc., 122 So.2d 623, 624 (Fla. 3d DCA 1960)).

In Skylake, the landlord was the developer of an office building. 23 So.3d at 176. While the building was under construction, the landlord signed a ten-year lease with the tenant. Id. The tenant’s occupancy was to begin ninety days after completion of the building. Id. The lease was signed on behalf of the landlord by a member of the developer company, and on behalf of the tenant by the tenant’s president and vice president. Id. There were no witnesses to any of the signatures. Id.

As the building neared completion, the landlord repudiated the lease because there were no witnesses to the signatures. 23 So.3d at 176. The tenant brought an action for specific performance of the lease and made an alternative claim for damages for fraud. Id. The trial court entered summary judgment for the landlord, and the tenant appealed. Id.

The Third District found that “the bare failure of the landlord to have his signature witnessed does not give rise to an estoppel, because to so hold would in effect render section 689.01 unenforceable. For an estoppel to operate, the tenant must have changed position in more than an insubstantial way.” Id. at 178 (emphasis added). No such facts were shown in that case. Id. Accordingly, the court affirmed that part of the trial court’s order which denied specific performance because of the lack of two-witness signatures under section 689.01. Id.

Here, too, the tenant, Payless, did not “change[ ] position in more than an insubstantial way,” where it was notified prior to the effective date of the new lease (November 1, 2003), that it lacked two subscribing witnesses, and the original lease— still in effect — was not due to expire until August 2004.

Gill v. Livingston, 158 Fla. 577, 29 So.2d 631 (1947), is also instructive. In that case, while the court found that “as a matter of fact all four defendants were physically present at the time of execution of the lease, and might have subscribed as witnesses to the signature of each other,” the court found that estoppel applied because the lessors accepted benefits under the lease, placed the lessee in possession, “negotiated to convey the lands subject to the lease, and in all respects have recognized it as being an effective conveyance, and in equity they ought not to be permitted to disavow it now.” 29 So.2d at 632. In the case at bar, however, while Mr. Asulin and llene Richmond could have witnessed each other’s signatures, S & I challenged the validity of the second lease from the outset (and prior to its November 1, 2003 effective date), and went to great lengths so as not to accept benefits under the October 2003 lease. As stated, all of Payless’s rent payments have been deposited in the court registry pending the outcome of this dispute.

Based on the foregoing, we conclude that the 2003 lease was void from its inception, and therefore, we reverse and vacate the final judgment below and direct the entry of a judgment in favor of llene Richmond, as general partner of S & I. As Ilene’s remaining claims are contingent upon our affirming the judgment of the trial court, we need not address them. Nor do we need to address Payless’s first point on cross-appeal, that the trial court erred in giving a jury instruction which suggested that the landlord’s consent was required before Payless could sublease to its subtenants under the 2003 lease. We do, however, address the second point on cross-appeal, that the trial court erred in granting S & I’s motion for summary judgment on Payless’s claim of abuse of process against S & I and llene Richmond.

In its second amended counterclaim and consolidated amended complaint, Payless alleged that the complaint in an earlier case, S & I Investments v. Payless Flea Market, Inc., Case No. 03-020914, 2003 WL 25863321, and subsequent amendments to the complaint in that case, constituted an abuse of process.

We apply a de novo standard of review to an order granting summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Payless contends that, shortly after the execution of the 2003 lease, llene Richmond, in a series of communications with Mr. Asulin, stated that she not only would not honor the lease, but would also “keep Payless in litigation for ten years”; “make Isaac Asulin’s life a living hell”; “cost Asu-lin and Payless thousands in legal fees”; and finally, “would try everything to get him evicted.” Payless argues that those statements are evidence of an improper purpose for the S & I lawsuit. We disagree and affirm.

“[T]he usual case of abuse of process involves some form of extortion,” see Bothmann v. Harrington, 458 So.2d 1163, 1169 (Fla. 3d DCA 1984), but even extortion-sounding threats, if made prior to the institution of process and litigation, fall outside the parameters of the tort of abuse of process. “There is no abuse of process [ ] when the process is used to accomplish the result for which it was created, regardless of an incidental or concurrent motive of spite or ulterior purpose.” Id. (emphasis supplied).

A cause of action for abuse of process contains three elements: (1) that the defendant made an illegal, improper, or perverted use of process; (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage. Della-Donna v. Nova Univ., Inc., 512 So.2d 1051, 1055 (Fla. 4th DCA 1987). The plaintiff must prove that the process was used for an immediate purpose other than that for which it was designed. Biondo v. Powers, 805 So.2d 67, 69 (Fla. 4th DCA 2002). Where the process was used to accomplish the result for which it was intended, “regardless of an incidental or concurrent motive of spite or ulterior purpose,” there is no abuse of process. Id. (quoting Scozari v. Barone, 546 So.2d 750, 751 (Fla. 3d DCA 1989)).

“[T]he mere filing of a complaint and having process served is not enough to show abuse of process.” Della-Donna, 512 So.2d at 1055 (citing McMurray v. U-Haul Co., 425 So.2d 1208 (Fla. 4th DCA 1983)). The plaintiff must prove improper use of process after it issues. Id. at 1056.

In McMurray, despite the existence of illegal, improper and/or perverted motivations by the appellee occurring before service of process, which may well sustain a cause of action for malicious prosecution, all the appellee did was file a complaint and have process served upon the appellant. This court held:

Abuse of process in this case required more; namely, an act which constituted misuse of the process after it was issued. There is no such allegation of a post-issuance act other than service of what was issued.- In 1 Am. Jur. 2d Abuse of Process § 2 at 250 (1962), the test applicable to this case is described without semantic vagueness:
An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued.

Id. at 1209 (footnote omitted); see also Marty v. Gresh, 501 So.2d 87, 90 (Fla. 1st DCA 1987) (holding events before service of process which may have suggested malicious intent did not advance cause of action for abuse of process); Yoder v. Adriatico, 459 So.2d 449, 450 (Fla. 5th DCA 1984) (“The tort of malicious prosecution is concerned with maliciously causing process to issue, whereas the tort of abuse of process is concerned with the improper use of process after it issues.”); Cazares v. Church of Scientology of Cal., Inc., 444 So.2d 442, 444 (Fla. 5th DCA 1983) (“[A]buse of process requires an act constituting the misuse of process after it issues. The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process.”); Peckins v. Kaye, 443 So.2d 1025, 1026 (Fla. 2d DCA 1983) (holding abuse of process consists not in issuance of process, but rather in perversion of process after its issuance; writ or process must be used in manner or for purpose not intended by law).

Payless contends that S & I did more than just file the complaint and serve it upon Payless, stating: “After it recognized that the lawsuit was premature and subject to dismissal, it continued in its attempt by filing two amended complaints which it knew were legally unsustainable.” In pleading this claim, however, Payless alleged only that llene Richmond and S & I filed the case (in November 2003) and subsequently voluntarily dismissed the complaint (in July 2004). As discussed, Ilene’s pre-suit sentiments are irrelevant. Therefore, all Payless has shown is that llene and S & I filed a lawsuit and took a voluntary dismissal eight months later. Accordingly, Payless’s abuse of process claim was properly dismissed on summary judgment. We therefore affirm on this point.

To the extent this opinion is in conflict with Taylor v. Rosman, we certify such conflict.

Reversed in part, affirmed in part, and remanded with directions.

WARNER and STEVENSON, JJ., concur.

      . During the course of this appeal, appellant Stephanie Richmond filed an involuntary petition for Chapter 11 bankruptcy against S & I. That petition was granted and a bankruptcy trustee was appointed. In the bankruptcy case, S & I (through the trustee) and Stephanie Richmond (individually, not as a general partner) reached a settlement agreement with Payless, which was approved by the bankruptcy court. This settlement agreement terminated S & I's and Stephanie Richmond’s participation in this appeal. Although it appears that the final judgment has now been fully satisfied — as advised by the parties at oral argument — another related appeal is pending before this court, seeking review of the attorney's fee judgment entered against S & I and in favor of Payless. See Case No. 4D08-4257. As the outcome of this case may affect the fee judgment, we therefore address this appeal on the merits.

      . Presently, Payless is not an "operational” business; it acts merely as a "middleman,” collecting rent from subtenants and paying rent to S & I.

      . Under the "tipsy coachman" rule, when the "trial court reaches the right result, but for the wrong reasons, [that decision] will be upheld [on appeal] if there is any basis which would support the judgment in the record.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).

      . The trial court determined that the terms of the two leases were substantially the same and that their differences were not drastic enough to destroy the character of the second lease as a renewal lease. The trial court stated:
      As a matter of law, I'm finding that the lease in question is a renewal. I’m basing this ruling on the factual finding that the space is the same, the occupancy if you will in terms of that space are the same, the overlap, the fact that this same.... Legally, I'm finding that the terms are substantially the same, although I do acknowledge there are different considerations, i.e., the personal guarantee, i.e., the sales tax, has modified, i.e., the roof, et cetera, et cetera.

      . Although the court in Bothmann denied summary judgment because facts were in dispute, 458 So.2d at 1170; here, S & I argued that Payless failed to state a claim for abuse of process, even assuming the allegations to be true.


author: PER CURIAM.

text:
    Stanley WINCHESTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3259.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Stanley Winchester, Wewahitchka, pro se.
    No appearance for appellee.
   PER CURIAM.

Stanley Winchester appeals from an order treating his letter to the presiding judge as a motion for rehearing as to the denial of his rule 3.170(£) motion to vacate plea, and denying it. The undated letter was filed nearly two months after the date of entry of the order denying the motion to withdraw plea, on April 27, 2009. The notice of appeal was filed three months after that date.

In his initial brief, Winchester asks this court to consider the letter to be a rule 3.850 motion for postconviction relief. We decline to do so, and instead dismiss the appeal as untimely. See Bridges v. State, 863 So.2d 366 (Fla. 5th DCA 2003) (dismissing appeal for lack of jurisdiction because notice of appeal was not timely; defendant’s pro se letter requesting reconsideration of order denying motion to withdraw plea was unauthorized).

Dismissed.

WARNER, HAZOURI and LEVINE, JJ., concur.

      . The notice of appeal bears a certificate of service dated July 28, 2009. See Fla. R.App. P. 9.420(a)(2).


text:
    Osvaldo CACERES, Appellant, v. SEDANO’S SUPERMARKETS and John Eastern Co., Inc., Appellees.
    No. 1D09-5962.
    District Court of Appeal of Florida, First District.
    June 9, 2010.
    William F. Souza of The Law Offices of William F. Souza, P.A., North Miami Beach, for Appellant.
    Barbara K. Case of Angones, McClure & Garcia, P.A., Miami, for Appellees.
   PER CURIAM.

Osvaldo Caceres appeals an order of the Judge of Compensation Claims (JCC) enforcing a settlement agreement. Because the severance agreement and release, which the JCC concluded was a material part of the overall settlement agreement, provides that Caceres may revoke the agreement within seven days following the date of execution of the agreement, and because Caceres expressly rejected the settlement prior to executing the settlement documents, the JCC erred in finding the parties had reached a settlement of the workers’ compensation case. See Jones v. Miami-Dade Cmty. Coll., 933 So.2d 1221 (Fla. 1st DCA 2006).

REVERSED.

WOLF, KAHN, and ROBERTS, JJ., concur.


text:
    Deborah R. HOLMES, Appellant, v. BROWN, TERRELL, HOGAN, ELLIS, et al., Appellees.
    No. 1D10-1714.
    District Court of Appeal of Florida, First District.
    June 9, 2010.
    Deborah R. Holmes, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

Appellant’s response to this court’s order to show cause dated April 7, 2010, failed to adequately illustrate why the appeal should not be dismissed as the notice of appeal was not timely filed. This court’s order specifically warned Appellant: “Failure to timely comply with this order may result in the imposition of sanctions, which may include dismissal of the appeal, without further opportunity to be heard. Florida Rule of Appellate Procedure 9.410.” By notice of appeal filed April 5, 2010, Appellant seeks review of an order rendered September 13, 2005. Accordingly, we DISMISS this appeal for lack of jurisdiction. See § 440.25(5)(a), Fla. Stat. (2005) (providing that orders of judges of compensation claims “shall become final 80 days after mailing of copies of such order to the parties” unless timely appealed); Fla. R.App. P. 9.180(b)(3) (providing this court’s jurisdiction is invoked if notice of appeal is filed within thirty days of rendition of order to be reviewed); see also, e.g., Metellus v. State, 900 So.2d 491, 495 (Fla.2005) (noting jurisdictional rule cannot be altered by court or by agreement of parties); Troche v. BJ’s Wholesale Club, Inc., 954 So.2d 685, 686 (Fla. 1st DCA 2007) (“It is well settled that to be timely, a notice of appeal must be filed in the appropriate court within the appropriate time period.”); Metro. Dade County v. Vasquez, 659 So.2d 355, 356 (Fla. 1st DCA 1995) (dismissing untimely appeal for lack of jurisdiction).

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    Amada LAMA, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 1D10-1467.
    District Court of Appeal of Florida, First District.
    June 9, 2010.
    Richard A. Sicking, Coral Gables, for Appellant.
    Douglas W. Rice, Assistant County Attorney, Miami, for Appellee.
   PER CURIAM.

Upon review of Appellant’s response to this Court’s show cause order of April 14, 2010, we dismiss this appeal because the order on appeal is neither a final order nor a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.180. Here, the Judge of Compensation Claims’ (JCC’s) order effectively purports to reserve jurisdiction on the ripe issue of medical benefits. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680 (Fla. 1st DCA 1997).

DISMISSED.

WOLF, BENTON, and PADOVANO, JJ., concur.


author: DAMOORGIAN, J.

text:
    John DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-234.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

We reverse the trial court’s denial of John Dixon’s motions to suppress because the police entered Dixon’s apartment without consent and without sufficient exigent circumstances to justify a warrantless entry.

Dixon was charged with the following crimes: (1) trafficking in cocaine; (2) trafficking in oxycodone; (3) possession of al-prazolam; (4) possession of diazepam; (5) possession of carisoprodol; (6) possession of hydroeodone; (7) possession of cannabis; and (8) possession of drug paraphernalia. He filed pre-trial motions to suppress all evidence observed and seized prior to and after the issuance of the search warrant for his apartment. The trial court conducted a hearing on the motions, at which several witnesses testified about the events that led to the charges.

Sergeant Francis Leitman testified that he responded to a call about a home invasion robbery. When he arrived at the scene, he spoke with one of the robbery victims who had already left the location where the crime had occurred. This victim reported that the robbery occurred at Dixon’s apartment and that the robbers had fled. Leitman then walked to Dixon’s apartment and knocked on the door. Dixon answered the door after a minute or two, accompanied by his girlfriend. As Leitman began questioning Dixon about the robbery, he walked into Dixon’s apartment. Leitman did not ask for permission to enter, and Dixon did not object. Leit-man did not have a warrant to search the apartment.

Leitman testified that he entered Dixon’s apartment to make sure everything was all right and to get more information about the robbery. Another officer was also present. Dixon and his girlfriend continued to speak about the robbery. They confirmed that the robbers had already fled the apartment. Leitman observed evidence consistent with the events described to him by the victims. While Leitman was speaking with Dixon’s girlfriend, Dixon walked into his bedroom, closed the door for a minute or two, and then came back out. He appeared to be nervous and agitated and asked Leitman to leave the apartment. Leitman became concerned that there might be a suspect in the apartment, although he did not hear any noises coming from other rooms. He asked Dixon and his girlfriend to step outside. He then searched the kitchen, where they discovered a couple of baggies with white residue and a bottle with some possible cut material for cocaine. Next, he moved into the bedroom and bathroom area, where he saw more white powder on the sink, clear plastic bags in the closet, marijuana, and some money. On the night stand, there was a straw with white residue. Ail of these items were in plain view during the search of the apartment. Leitman did not find the robbery suspects in the apartment.

Dixon’s girlfriend testified that Dixon told the officers everything was fine and he did not want them in his apartment, but the officers ignored him and walked inside. She also testified that the officers told her to stay at the apartment door while they searched. Dixon’s neighbor testified he heard a loud noise and saw two men running down the middle of the driveway. About twenty-five minutes later, he saw several police officers enter Dixon’s apartment and then come out. At some point, the officers brought Dixon and his girlfriend out of the apartment. The neighbor heard Dixon tell the officers that he did not want them to go into his apartment.

After becoming suspicious that someone else was in the apartment, Leitman called a canine officer, who had been dispatched to the apartment to look for possible suspects. The canine officer observed Leit-man outside the apartment talking to Dixon. He heard Dixon tell Leitman that he did not want the officers to search his apartment. The officers ignored Dixon’s request and entered the apartment. The canine officer testified that Dixon’s actions and behaviors were consistent with him being a victim of an armed robbery, and were not unusual given the circumstances.

Eventually, a search warrant for the apartment was obtained based on information provided by Leitman and the results of field tests done on the narcotics located in Dixon’s apartment. A subsequent search revealed additional drugs and paraphernalia.

At the conclusion of the hearing, the trial court ruled that Leitman had sufficient cause to believe that the robbery suspects were in the apartment based on Dixon’s demeanor, Dixon’s disappearance to the bedroom for a period of time, and the evidence of the robbery inside the apartment. These facts constituted exigent circumstances justifying the warrant-less entry into Dixon’s apartment. Finally, because Leitman observed drugs and paraphernalia in plain view during the initial search for robbery suspects, the officers had probable cause to obtain the search warrant and conduct a further search of the apartment. Following the trial court’s ruling on his motions to suppress, Dixon pled no contest to the six remaining counts and reserved his right to appeal the court’s ruling on the motions.

Dixon argues that the trial court erred in denying his motions to suppress because he did not consent to the search of his apartment and there were no exigent circumstances justifying the warrantless search. The State responds that Dixon did not protest the officers’ entry into his apartment, and once inside, exigent circumstances developed which justified the officers’ search for additional people in the apartment. The drugs and paraphernalia were discovered in plain view during this search.

In reviewing an order on a motion to suppress, an appellate court should defer to the trial court’s factual findings but review de novo the application of the law to the facts. Reed v. State, 944 So.2d 1054, 1057 (Fla. 4th DCA 2006) (quoting Pantin v. State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004)).

“[T]he highest level of Fourth Amendment protection lies at the entrance of one’s home (or apartment).” Cote v. State, 14 So.3d 1137, 1139 (Fla. 4th DCA 2009). A warrantless search of a home is per se unreasonable and in violation of the Fourth Amendment. Seibert v. State, 923 So.2d 460, 468 (Fla.2006). However, a warrantless search may be legal if the State proves consent or exigent circumstances. Reed, 944 So.2d at 1058.

The State argues that Sergeant Leitman had implied consent to enter the apartment because Dixon opened the door and did not protest when Leitman followed him into the apartment. This argument is without merit. Dixon’s failure to protest Leitman’s entry into his apartment did not constitute consent to enter. “[T]he government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry. ‘This will not do.’ ” United States v. Shaibu, 920 F.2d 1423, 1427-28 (9th Cir.1990) (quoting Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948)); see also Phuagnong v. State, 714 So.2d 527, 531 (Fla. 1st DCA 1998) (“A positive response to a request to talk does not constitute consent to enter a citizen’s home.”).

The State did not meet its burden of proving consent; thus, Leitman’s entry was legal only if exigent circumstances existed at the time he entered the apartment. “Exigent circumstances are those characterized by ‘grave emergency,’ imperativeness for safety, and compelling need for action, as judged by the totality of the circumstances.” Reed, 944 So.2d at 1058. An immediate need for police assistance to protect life or substantial property interests can constitute an exigent circumstance. Seibert, 923 So.2d at 468. In addition, “[e]xigent circumstances have been determined to exist when 911 calls were received, even in cases when the callers did not identify a life-threatening emergency, when the officers arrived at the source of the 911 call to find suspicious circumstances at the residence.” Id. at 469. The focus of the inquiry is the reasonableness of the officer’s belief that an emergency existed at the time of entry. Id. at 468. A key ingredient of the exigency requirement is that the police lack time to secure a search warrant. Riggs v. State, 918 So.2d 274, 279 (Fla.2005).

Leitman certainly had a duty to investigate the 911 call until he was reasonably satisfied that no emergency existed or that a once-urgent situation was no longer urgent. See In re J.B., 621 So.2d 489, 490-91 (Fla. 4th DCA 1993). In order to justify a warrantless entry and search of Dixon’s apartment, however, the State was required to prove that exigent circumstances existed which required entry into the apartment immediately without a warrant. See Reed, 944 So.2d at 1058. Based on the testimony at the suppression hearing, such exigent circumstances did not exist.

When Leitman first arrived at Dixon’s apartment, before he entered, Dixon and his girlfriend informed him that the robbers had already left the apartment. The third victim confirmed that the robbers were no longer in the apartment and that he had been able to flee as soon as the robbers left. Leitman did not observe evidence of an ongoing burglary when he arrived at the apartment, which might have required immediate entry without a warrant. Furthermore, he did not testify that he was concerned there could be other victims of the robbery inside the apartment who needed immediate assistance.

Most importantly, Leitman did not testify that he suspected the robbery suspects were in the apartment as soon as he reached the apartment door. He became suspicious only after he entered the apartment without consent, saw evidence of the robbery, and observed Dixon nervous and agitated after disappearing to another room. These observations do not support Leitman’s warrantless entry into the apartment prior to making the observations.

We conclude that the exigency dissipated once Leitman received the initial description of the robbery from the victim who was out of harm’s way, and, thereafter, from his conversation with Dixon and his girlfriend at the apartment door. Accordingly, Leitman’s search of Dixon’s apartment leading to his discovery of evidence of criminal conduct constituted an unreasonable search and seizure. All physical evidence derived from the Leit-man’s initial unlawful search, including evidence discovered after the officers acquired a search warrant, should have been suppressed. Accordingly, we reverse the order denying Dixon’s motions to suppress, vacate Dixon’s convictions, and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

FARMER and HAZOURI, JJ., concur.

      . The State voluntarily dismissed counts 2 and 6.


author: GERBER, J.

text:
    STATE of Florida, Appellant, v. Zachary GOODWIN, Appellee.
    No. 4D09-3390.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    James S. Lewis, Fort Lauderdale, for appellee.
   GERBER, J.

The state appeals the circuit court’s order granting a motion to suppress. The court held that asking for a person’s driver’s license amounts to only a consensual encounter, but asking also for a person’s registration and proof of insurance converts the consensual encounter into an investigatory stop. We reverse.

The arresting officer testified that, on the night of the incident, she was in uniform in a marked police car at a public housing apartment complex. She was patrolling the complex pursuant to an approved security detail through her department. The complex was in a high-narcotics area and was being closed down. The officer’s responsibility was to check the names of every person who entered the complex against the authorized resident list. No vehicles were supposed to be in the complex.

At approximately 10:45 p.m., the defendant drove an SUV into the complex. The SUV went past the officer’s car, and then went around a building to the back of the complex. The officer thought the defendant was lost and would do a u-turn to exit. When the defendant did not exit after five minutes, the officer drove her car to the back of the complex. She saw the SUV parked at an angle. The officer pulled up between ten and twenty yards behind the SUV, but did not block it in. She also did not turn on her overhead lights. For safety, though, she turned on her spotlight to see inside the vehicle.

The officer then walked up to the SUV, which was running. She saw the defendant moving around in the driver’s seat. The officer approached the driver’s side with a flashlight. She asked the defendant what he was doing in the complex. The defendant responded that he was looking for his friend. The officer was skeptical of the response and asked the defendant for his driver’s license, registration, and proof of insurance. The defendant opened the center console. The officer saw a small amount of cannabis wrapped in plastic. She asked the defendant to step out of the SUV, and took him into custody. A pat-down search revealed various controlled substances in the defendant’s pocket.

The state charged the defendant with possession of the cannabis and controlled substances. The defendant filed a motion to suppress. The defendant argued that the officer conducted an investigatory stop without reasonable suspicion of a crime. The state responded that the officer and the defendant were engaged in a consensual encounter when the officer saw the cannabis in plain view.

The circuit court granted the motion to suppress, but not for the reason which the defendant argued. Instead, the court reasoned that asking for a person’s driver’s license amounts to only a consensual encounter, but asking also for a person’s registration and proof of insurance converts the consensual encounter into an investigatory stop. According to the court, the police have no reason to ask a person for their registration and proof of insurance other than to conduct a criminal investigation into whether the vehicle belongs to the person and whether the person has proper insurance. Based on those legal conclusions, the court found there was no reasonable suspicion to justify the stop. This appeal followed.

We reverse. “[T]he standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010) (citation omitted). Here, the trial court’s legal conclusions were incorrect. We are not aware of any authority holding that asking for a person’s registration and proof of insurance converts a consensual encounter into an investigatory stop. Nor are we aware of any authority holding that the police have no reason to ask a person for their registration and proof of insurance other than to conduct a criminal investigation.

Rather, we stand by the principle that “[t]he mere questioning of an individual, including a police request for identification, does not amount to a Fourth Amendment detention.” State v. Dixon, 976 So.2d 1206, 1208 (Fla. 4th DCA 2008) (emphasis added; citation omitted). Here, the officer requested three forms of identification — license, registration, and proof of insurance. Requesting all three types of identification is a reasonable way to verify a person’s identity. For example, if the defendant produced a driver’s license with one name yet produced registration or proof of insurance with another name, then the officer would have been justified in questioning the defendant’s identity and reason for being in the complex.

The defendant, perhaps recognizing the circuit court’s error, does not seek to uphold the court’s reasoning. Instead, the defendant asks us to affirm based on a more detailed argument from that which he raised in the circuit court. The defendant now argues, among other things, that the uniformed officer’s use of the spotlight and flashlight constituted a show of authority for which a reasonable person in the defendant’s position would not feel free to leave, thus amounting to an investigatory stop without reasonable suspicion of a crime.

We disagree. “When determining whether a particular encounter is consensual, the Court must look to the ‘totality of the circumstances’ surrounding the encounter to decide ‘if the police conduct would have communicated to a reasonable person that the person was free to leave or terminate the encounter.’” Hayward v. State, 24 So.Sd 17, 34-35 (Fla.2009) (citation omitted). Other Florida courts have found that a uniformed officer’s use of a spotlight or flashlight, without more, does not transform a consensual encounter into an investigatory stop. See, e.g., State v. Baez, 894 So.2d 115, 115-17 (Fla.2004) (officer engaged in consensual encounter where he came upon defendant’s vehicle, used flashlight to look inside, saw defendant slumped over, and knocked on window with flashlight to awaken defendant, who then voluntarily got out of vehicle before officer asked for identification); Blake v. State, 939 So.2d 192, 196-97 (Fla. 5th DCA 2006) (nothing more than consensual encounter occurred when officer illuminated his spotlight to see individuals sitting in vehicle and defendant subsequently exited vehicle); State v. Wimbush, 668 So.2d 280, 281-82 (Fla. 2d DCA 1996) (encounter was consensual where officer illuminated car’s interior with spotlight and asked driver for identification); State v. Hughes, 562 So.2d 795, 797-98 (Fla. 1st DCA 1990) (officers approaching defendant’s parked vehicle and shining flashlight inside was not functional equivalent of a stop). Like these courts, we find that the initial encounter in this case was consensual as well.

This case is distinguishable from our previous holding in Williams v. State, 874 So.2d 45 (Fla. 4th DCA 2004). There, we found that “a reasonable person would not feel free to end [an] encounter and to leave under circumstances where an officer shines a flashlight in his or her face, approaches with his hand on his weapon, and directs him or her to stand.” Id. at 47 (emphasis added). Here, unlike Williams, the officer did not approach with her hand on her weapon, nor did she direct the defendant to take any physical action other than producing his identification. Thus, the officer’s mere use of her spotlight and flashlight did not transform this consensual encounter into an investigatory stop.

Reversed.

TAYLOR and CIKLIN, JJ., concur.


author: LEVINE, J.

text:
    Stephen E. LIZIO, Appellant, v. Kevin A. McCULLOM and Wayna M. McCullom, Appellees.
    No. 4D09-1149.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.

      Robert P. Bissonnette, of Robert P. Bis-sonnette, P.A., Port Lauderdale, for appellant.
    Jerome R. Schechter, of Jerome R. Schechter, P.A., Fort Lauderdale, for ap-pellees.
   LEVINE, J.

The issue presented is whether the trial court erred in granting appellees’ motion to dismiss on the basis that appellant’s production of the original note and mortgage, along with a valid written assignment of the note and mortgage from the estate of the original mortgagee, was insufficient to establish “current” ownership of the mortgage. We find that the production of the original note, mortgage, and assignment did constitute prima facie evidence of ownership, and the trial court’s dismissal was reversible error.

Appellees executed a mortgage and a promissory note for $200,000 in favor of John Haner to purchase property in Wilton Manors in 2003. Subsequently, Haner died, and his estate assigned his interest in the note and mortgage to appellant. At some point, appellant filed a foreclosure action against appellees, claiming appellees failed to make required payments on the mortgage. The trial court denied appellant’s motion for summary judgment, and this case proceeded to trial.

At trial, the personal representative for Haner’s estate, Jeffrey Selzer, testified that the original note and mortgage were executed by appellees in 2003. Selzer stated that he executed an assignment of the mortgage to appellant in October 2007; the assignment was recorded a few days later. Selzer also testified that he received the original note and mortgage from Haner prior to his death, and the mortgage presented at trial was identical to the mortgage the decedent gave Selzer. Finally, Selzer concluded from reviewing Haner’s documents that appellees defaulted on the note in January 2006. Appellant did not testify on his own behalf. Prior to resting, appellant offered into evidence original copies of the assignment, note, and mortgage.

Appellees moved to involuntarily dismiss the case. The trial court granted appellees’ motion, finding that the assignment of the mortgage and note to appellant did not constitute prima facie evidence that appellant is the current owner and holder of the mortgage and note.

This court reviews the trial court’s order on a motion to dismiss de novo. Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008). “An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case” for which relief may be granted. Perez v. Perez, 973 So.2d 1227, 1231 (Fla. 4th DCA 2008). Thus, we must determine if appellant established a “prima facie case” requiring the trial court to deny the motion to dismiss.

The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action. Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortgage Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006). Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage, the issue of ownership becomes an issue the plaintiff must prove. Carapezza v. Pate, 143 So.2d 346, 347 (Fla. 3d DCA 1962).

In the present case, appellant possessed the original note, mortgage, and assignment executed by the personal representative of Haner’s estate. The note was payable to the late John Haner, and the assignment granted Haner’s rights under the note and mortgage to appellant. Thus, appellant “held” the note, which granted him standing to seek foreclosure of the mortgage. Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33, 34 n. 2 (Fla. 3d DCA 2007).

Appellees argued that the testimony of the personal representative demonstrated only that the note and mortgage was assigned by the estate of Haner but that Selzer’s testimony did not foreclose the possibility that appellant, who did not testify, may have executed a subsequent assignment of that same note and mortgage. Although appellees raise a point that the trial court may consider as part of appel-lees’ defense, we find, nonetheless, that the trial court erred in granting appellees’ motion for involuntary dismissal at that particular juncture. Appellant met his burden of providing a “prima facie case”; therefore we reverse and remand for further proceedings.

Reversed in part, affirmed in part, and remanded.

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

      . Appellant’s initial motion for summary judgment was granted and then summarily vacated for reasons unspecified. We find the appellant's objection to the court's vacatur of the summary judgment to be without merit and affirm the trial court on this issue.

      . Pursuant to section 701.01, Florida Statutes (2008), "Any mortgagee may assign and transfer any mortgage made to her or him ... and that person ... may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage."


text:
    Willie MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2892.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Willie Monroe, Miami, pro se.
    No response required for appellee.
   PER CURIAM.

Affirmed. Appellant’s sentence of thirty-five years in prison with ten years probation for second degree murder is not illegal, as the statutory maximum is thirty years to life. See §§ 782.04(2), 775.082(3)(b), Fla. Stat. (1997); see also Mills v. State, 642 So.2d 15 (Fla. 4th DCA 1994) (affirming a fifty year sentence for second degree murder).

WARNER, DAMOORGIAN and LEVINE, JJ., concur.


text:
    SEMINOLE COUNTY GOVERNMENT and Johns Eastern Company, Inc., Appellants, v. Craig KIMMEL, Appellee.
    No. 1D10-1749.
    District Court of Appeal of Florida, First District.
    June 9, 2010.
    Michael Broussard and Meredith Barrios of Broussard, Cullen & DeGailler, P.A., Orlando, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this Court’s show cause order of April 14, 2010, we dismiss this appeal because the order on appeal is neither a final order nor a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.180. Here, the Judge of Compensation Claims’ (JCC’s) order generally awards indemnity benefits but does not clarify whether they are temporary total disability benefits or temporary partial disability benefits, as illustrated by the sentence, “Jurisdiction is reserved if the parties are not able to administrative calculate the type and amount of indemnity awarded.” See Life Care Ctr. of Winter Haven v. Benjamin, 22 So.3d 152 (Fla. 1st DCA 2009) (dismissing appeal where JCC reserved jurisdiction on litigated issue and directed parties to administratively determine additional facts and calculate the benefits thereon).

DISMISSED.

WOLF, BENTON, and PADOVANO, JJ., concur.


author: EVANDER, J.

text:
    Javier DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1904.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

After executing a detailed written plea agreement with the State, Davis entered a guilty plea to six felony offenses. The trial court accepted Davis’ plea and, except as to one minor provision, imposed a sentence consistent with the plea agreement.

On appeal, Davis challenges the imposition of six probation conditions which he asserts are not reasonably related to the offenses. We find it unnecessary to determine whether the challenged conditions were reasonably related to Davis’ crimes because Davis specifically agreed to these conditions as part of his plea agreement. He cannot accept the benefits of his bargained-for plea agreement without also accepting its burdens. State v. Swett, 772 So.2d 48, 52 (Fla. 5th DCA 2000).

There does, however, appear to be one sentencing error that was raised both on appeal and in a motion to correct sentence. The -written plea agreement called for Davis to comply with a mandatory daily curfew from 10:00 p.m. to 6:00 a.m. as part of his sex offender probation. See also § 948.E0(l)(a), Fla. Stat. (2008) (court must impose mandatory curfew from 10:00 p.m. to 6:00 a.m. as condition of probation or community control for certain sex offenses). However, without explanation (and perhaps inadvertently), the trial court pronounced a 9:00 p.m. to 7:00 a.m. curfew. On remand, the trial court is directed to correct this error. The defendant need not be present for such hearing.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN and SAWAYA, JJ., concur.

      . Davis’ motion to correct sentence was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


author: KELLY, Judge.

text:
    Shawn Dewitt RUSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3422.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Shawn Dewitt Russ pleaded nolo conten-dere to robbery with a deadly weapon (count one) and resisting arrest without violence (count two). He was sentenced to 364 days’ incarceration followed by three years’ probation on count one, and a concurrent term of 364 days’ incarceration on count two. Russ was later found in violation of his probation and sentenced to seven years’ incarceration on count one and one year’s incarceration on count two. He subsequently filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct illegal sentence alleging, in part, that his sentence on count two is illegal because he was never placed on probation for that offense. The trial court granted Russ’s motion, but in resentencing the court again imposed a term of 364 days in jail on count two. As the State acknowledges, this was error because Russ was never sentenced to probation on count two and, therefore, the sentence imposed on that count following the revocation of his probation on count one is invalid.

Accordingly, we vacate Russ’s sentence on count two and remand with instructions that it be stricken from the written sentencing documents.

NORTHCUTT and KHOUZAM, JJ., Concur.


text:
    Jerry A. RIGGS, Sr., Appellant, v. AURORA LOAN SERVICES, LLC, Appellee.
    No. 4D08-4635.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2010.
    Jerry A. Riggs, Sr., Cooper City, pro se.
    Diana B. Matson and Roy A. Diaz of Smith, Hiatt & Diaz, P.A., Fort Lauder-dale, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellee Aurora Loan Service, LLC’s motion for rehearing, withdraw our previous opinion of April 21, 2010, and replace it with the following.

Aurora filed a mortgage foreclosure action against Jerry Riggs, Sr., alleging that it was the “owner and holder” of the underlying promissory note. With the complaint, Aurora filed copies of the mortgage and promissory note, which named Riggs as the mortgagor and First Mangus Financial Corporation as the mortgagee. Aurora asserted that the original note was in its possession.

Aurora moved for summary judgment. In support of the motion, it filed two affidavits attesting that it owned and held the note and mortgage. At the hearing on the motion, Aurora produced the original mortgage and promissory note. The note had an indorsement in blank with the hand printed signature of Humberto Alday, an agent of the indorser, First Mangus. The circuit court granted summary judgment in favor of Aurora over Riggs’s objections that Aurora’s status as lawful “owner and holder” of the note was not conclusively established by the record evidence.

We agree with the circuit court that Aurora sufficiently established that it was the holder of the note.

Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms. The note was a negotiable instrument subject to the provisions of Chapter 673, Florida Statutes (2008). An indorsement requires a “signature.” § 673.2041(1), Fla. Stat. (2008). As an agent of First Magnus, Alday’s hand printed signature was an effective signature under the Code. See §§ 673.4011(2)(b), 673.4021, Fla. Stat. (2008). The indorsement in this case was not a “special indorsement,” because it did not “identify] a person to whom” it made the note payable. § 673.2051(1), Fla. Stat. (2008). Because it was not a special in-dorsement, the indorsement was a “blank indorsement,” which made the note “payable to bearer” and allowed the note to be “negotiated by transfer of possession alone.” § 673.2051(2), Fla. Stat. (2008). The negotiation of the note by its transfer of possession with a blank indorsement made Aurora Loan the “holder” of the note entitled to enforce it. §§ 673.2011(1), 673.3011(1), Fla. Stat. (2008).

There is no issue of authentication. The borrower did not contest that the note at issue was the one he executed in the underlying mortgage transaction. With respect to the authenticity of the indorsement, the note was self authenticating. Subsection 90.902(8), Florida Statutes (2008), provides that “[cjommercial papers and signatures thereon and documents relating to them [are self authenticating], to the extent provided in the Uniform Commercial Code.” Subsection 673.3081(1), Florida Statutes (2008), provides that “[i]n an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings.” Nothing in the pleadings placed the authenticity of Alday’s signature at issue.

We distinguish BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010), on its facts. In that case, the second district reversed a summary judgment of foreclosure where the plaintiff seeking foreclosure filed no supporting affidavits and the original note did not identify the plaintiff as its holder. Id. at 938-39. The court explained its holding by pointing out that the plaintiff had failed to offer “evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” Id. at 939. Unlike the plaintiff in BAC Funding, Aurora offered both affidavits and the original note with a blank endorsement that supported its claim that it was the proper holder of the note and mortgage.

Affirmed.

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


text:
    Jose Israel NEGRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1855.
    District Court of Appeal of Florida, Second District.
    June 18, 2010.
    Jose Israel Negron, pro se.
   PER CURIAM.

Jose Israel Negron appeals an order denying his motion for postconviction relief. See Fla. R.Crim. P. 3.850. We affirm, in part, reverse, in part, and remand for further proceedings.

Mr. Negron filed his motion in August 2008. On February 2, 2009, the postcon-viction court denied claims one, three, four, five, and seven; it struck claims two and six, with leave to amend within thirty days. The postconviction court noted that its order was nonfinal and nonappealable.

Apparently, Mr. Negron filed a motion to extend the time in which he could amend his claims. See Fla. R.Crim. P. 3.050. According to Mr. Negron, he gave it to prison officials for mailing on February 23, 2009. See Haag v. State, 591 So.2d 614, 616-17 (Fla.1992) (explaining “mailbox rule”); Bulley v. State, 857 So.2d 237, 239 (Fla. 2d DCA 2003) (“[A] pro se postcon-viction relief motion is deemed filed on the date the inmate relinquished control of the document to State officials for delivery.”). It does not appear that the motion for extension of time was before the postcon-viction court when, on March 17, 2009, it entered a final order denying Mr. Neg-ron’s rule 3.850 motion in its entirety.

The postconviction court properly denied claims one, three, four, five, and seven. We affirm as to those claims. But, we reverse and remand as to claims two and six. The postconviction court should consider whether a proper motion for extension of time was filed. If so, the post-conviction court should address whether further consideration, by amendment or otherwise, is warranted for claims two and six.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY, WALLACE, and LaROSE, JJ., Concur.