author: BROWNING, JR., EDWIN B„ Senior Judge.

text:
    Louise MASSIE, Petitioner, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Respondent.
    No. 1D09-1558.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.
    Rehearing Denied Jan. 14, 2010.

      Louis K. Rosenbloum, of Louis K. Ro-senbloum, P.A., Pensacola, and Arthur A. Shimek, of Arthur A. Shimek, P.A., Pensacola, for Petitioner.
    Betsy E. Gallagher and Amy L. Miles, of Kubicki Draper, P.A., Tampa, and James C. Rinaman, III, of Rinaman & Associates, P.A., Jacksonville, for Respondent.
   BROWNING, JR., EDWIN B„ Senior Judge.

In this second-tier certiorari proceeding our review is limited to whether a “departure from the essential requirements of law” occurred, as a violation of procedural due process is not an issue. See Kaklamanos v. Allstate Ins. Co., 796 So.2d 555 (Fla. 1st DCA 2001). We conclude such a departure occurred.

The sole issue presented is whether Petitioner’s attorney is entitled to a contingency fee multiplier on her attorney’s fees award in this personal injury protection (“PIP”) action. The Circuit Court on direct appeal reviewed and reversed the trial judge’s order awarding a multiplier because Petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier under Sun Bank of Ocala v. Ford, 564 So.2d 1078 (Fla.1990). To support her ruling, the circuit judge relied upon Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007), as precedent. However, this court concluded in McCarthy Brothers Co. v. Tilbury Construction Inc., 849 So.2d 7, 10 (Fla. 1st DCA 2003), that expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supports a multiplier’s imposition. Here, Petitioner presented such testimony, and the Circuit Court departed from the essential requirements of law by failing to apply a principle of law previously enunciated by this Court rather than that of our sister Fifth District Court of Appeal. See Stanfill v. State, 384 So.2d 141, 143 (Fla.1980); see Kaklamanos, 796 So.2d at 557, (stating a “departure from the essential requirements of law” occurs when a lower court fails to fulfill its constitutional duty to apply a correct principle of law to the admitted facts).

Accordingly, we grant the petition for writ of certiorari and quash the decision under review with directions that the Circuit Court affirm the trial court’s award of a contingency fee multiplier and remand to the trial court for further proceedings consistent with this opinion.

ROBERTS and CLARK, JJ., concur.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Marcus Antonio SOTO, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4621.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 28, 2010.
    James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.
    Marcus Antonio Soto, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Affirmed without prejudice to any right Marcus Antonio Soto may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 raising the grounds he has argued in his pro se brief.

NORTHCUTT and KHOUZAM, JJ, Concur.


author: FARMER, J. CIKLIN, J., HAZOURI, J.,

text:
    B.O., Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3682.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Rehearing Denied Feb. 11, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

An unarmed minor child burglarized a home and, among other things, took two hand guns. The charging document alleged only that he committed two counts of grand theft of a firearm. Neither count alleged that in stealing the firearms he possessed or used a firearm. He pleaded guilty to the crimes as charged and reserved his right to challenge a search. On appeal he also challenges the disposition (i.e. the sentence) increasing the standard penalty to 15 days of secure detention.

The Juvenile Delinquency Code, now part of the Criminal Code of the State of Florida, states that among its purposes are these: “To provide judicial and other procedures to assure due process through which children ... are assured ... enforcement of them constitutional and other legal rights....” In M.F. v. State, 583 So.2d 1383 (Fla.1991), the court made clear that:

“due process of law requires the state to allege every essential element when charging a violation of law, either in adult criminal or juvenile proceedings, to provide the accused with notice of the allegations. Art. I, § 9, Fla. Const.; see, e.g., State v. Rodriguez, 575 So.2d 1262 (Fla.1991); accord In re Gault, 387 U.S. 1, 31-34, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).” [e.s.]

583 So.2d at 1385-86. Our supreme court was obviously carrying out the holding of In re Gault:

“Due process of law requires notice ... which would be deemed constitutionally adequate in a ... criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.” [e.s., c.o.]

Gaidt explained: “the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.”

Our state supreme court has made clear that “[no] child can be placed in the status of a delinquent unless all provisions relating to delinquency are followed and all required due process rights are accorded.” [e.s.] It is equally settled that due process will not permit a juvenile to be adjudged delinquent on the basis of violations of law not alleged in the petition of delinquency. And, as we ourselves have said: “[i]t is axiomatic that a sentence can be molded to fit the crime, but the crime cannot be molded to fit the sentence.” [e.s.]

With these background principles in hand we turn to the statute employed by the trial judge in this case. The pertinent provisions of § 790.22(9) state:

“Notwithstanding s. 985.245, if the minor is found to have committed an offense that involves the use or possession of a firearm, as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order ... (a) for a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility ...” [e.s.]

The statute does not specify that it applies when the subject of the theft is a firearm. Rather its express term is use or possession of a firearm in the commission of an offense. The question presented in this case is therefore whether the statute applies when the petition neither cited the statute nor alleged that, in committing the theft, the child used or possessed a firearm.

In State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), the court held that to enhance a sentence because of a defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used. Similarly, in State v. Hargrove, 694 So.2d 729, 730 (Fla.1997), the court held that even where evidence regarding the use of a firearm is uncontradicted, a jury must still make that finding if a mandatory minimum sentence is to be imposed. In State v. Estevez, 753 So.2d 1 (Fla.1999), the court held that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved.

In Galindez v. State, 955 So.2d 517 (Fla.2007), our court recognized that the United States Supreme Court has itself now made clear that:

“Except for the fact of a prior conviction, a judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum, unless that fact inheres in the verdict, the defendant waives the right to a jury finding, or the defendant admits the fact.”

955 So.2d at 519. In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court held that the Due Process Clause and Sixth Amendment’s notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court held that, other than the fact of a prior conviction, any fact that increases the penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt. In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court held that the relevant statutory maximum is not the most severe sentence a judge may impose after finding additional facts but is instead simply the maximum available based on the charge and verdict dr plea without additional findings. In Blakely the Court noted that “an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason. ...”

State law now recognizes a broadly applicable Constitutional rule about punishment: the accused must be given notice in the charging document of any fact on which a sentencing enhancement will be based. See Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA 1999) (imposition of minimum three-year sentence for conviction of attempted second-degree murder with a firearm required reversal, where state failed to allege in information that defendant was being charged with use of a firearm and faced potential imposition of a three-year mandatory minimum sentence); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002) (absence of any allegation in the information that defendant “discharged” a firearm or destructive device during aggravated assault deprived defendant of notice that he was subject to a mandatory minimum sentence of 20 years for aggravated assault based on the discharge of the firearm); Davis v. State, 884 So.2d 1058, 1059 (Fla. 2d DCA 2004) (holding that imposition of sentencing enhancement for use of firearm during commission of offense was illegal in aggravated battery prosecution, where information failed to charge defendant with element of enhancement that defendant caused death or great bodily harm). The State has brought to our attention nothing in any statute that would dispense with the due process requirement of notice to support a sentencing enhancement in juvenile delinquency cases.

As all the above cases make apparent, the charging document serves an important purpose beyond merely alleging the elements of the crime charged. These cases hold that the charging document must also support the sentence imposed after a finding of guilt. Hence it is irrelevant to the disposition issue that the petition in this case charged all the elements of grand theft. The present issue involves the penalty that may be properly inflicted for the crime actually charged in the petition: the standard penalty or an enhanced penalty depending on facts in addition to the crime’s raw elements that were not alleged. Plainly under the above authorities, the only penalty that may be imposed is the one allowed by a charge lacking the facts supporting a § 790.22(9) enhancement.

It is argued that § 790.22(9) is couched in mandatory terms and that these due process principles do not apply in this juvenile delinquency case. The contention is that § 790.22(9) is “designed to get the immediate attention of all juveniles and to issue a “wake-up call’ that the state deems their firearm offenses to be serious enough to warrant the automatic deprivation of their liberty for a period of time, even on a first offense.” State v. J.Z., 957 So.2d 45, 46-47 (Fla. 3d DCA 2007) (quoting T.M. v. State, 689 So.2d 443, 446 (Fla. 3d DCA 1997)). But the child in J.Z. was charged and found guilty of carrying a concealed weapon and possession of a firearm by a minor. In other words — unlike the case we face today — the child was charged with the very predicate fact required by § 790.22(9): in committing his offense he possessed a firearm. Nothing in J.Z. supports a holding that § 790.22(9) may be employed in spite of the absence of notice in the charging document of the facts supporting the enhanced punishment.

Reversed.

CIKLIN, J., concurs specially with opinion.

HAZOURI, J., dissents with opinion.

CIKLIN, J.,

concurring specially.

I join the majority opinion but write separately to address- the dissent, which claims that our holding in State v. S. T., 803 So.2d 782 (Fla. 4th DCA 2001) was ignored by the majority and warrants a different outcome in this case.

In S. T, a juvenile was adjudicated delinquent for grand theft and burglary of a dwelling when he stole, among other things, two firearms. Id. While awaiting adjudication, he was placed on community control under the Department of Juvenile Justice and as a result, was given a full 15 days credit toward the minimum mandatory 15 days detention at the time the court finally disposed of the case. Id. This court reversed the 15 days credit, holding that strict application of section 790.22(9) requires an additional and separate minimum mandatory 15 days of secure detention after adjudication. Id. at 783.

As such, the facts in S. T. are inapposite. Unlike the instant case, S.T. did not involve any type of allegation that the juvenile lacked notice of the 15 day mandatory detention if found to have committed an offense that involves the use or possession of a firearm. The S.T. court reversed because the plain language of 790.22(9) strictly prohibits a minor from receiving credit for time served before adjudication. Id.

Although cases cited by the dissent suggest section 790.22(9)’s mandatory sentence serve to deter delinquent acts involving firearms, these cases do not suggest the statute’s legislative intent goes so far as to usurp quite basic principles of due process.

As noted by the majority, “due process of law requires the state to allege every essential element when charging a violation of law, either in adult criminal or juvenile proceedings, to provide the accused with notice of the allegations.” M.F. v. State, 583 So.2d 1383, 1385-86 (Fla.1991) (citation omitted).

A juvenile receives notice of the crimes charged and automatic enhanced penalties that will follow by way of a specifically charged petition for delinquency, not from conjecture surrounding the acts that led to its filing. See D.M.M. v. State, 275 So.2d 308 (Fla. 2d DCA 1973). As suggested in the majority opinion, a sentence can be molded to fit the crime, but the crime cannot be molded to fit the sentence.

Since the subject charging document failed to use the words necessary to trigger an automatic penalty enhancement, B.O.’s sentence for grand theft of a firearm was not subject to that automatic enhancement, after the fact. See Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA 1999).

The majority’s holding in this case imposes no new, additional or unjust requirements on the State. If the State seeks to “get the immediate attention of all juveniles and to issue a wake-up call” as referenced by the dissent, all it must do is simply add the words “and in so doing used or possessed a firearm” to its charging document. In my opinion, it is constitutionally impermissible to bury the “wake-up call” in an innocuous charge calling attention only to the crime alleged without setting forth, with specificity, the aggravating facts that will lead to an automatic deprivation of freedom. Contrary to the argument set forth by the State, the legally insufficient petition for delinquency filed in this case was not dose enough. I understand the basis of the dissent’s emphasis that juveniles are entitled to a “minimum standard of due process” but not a “full panoply ... of rights.” Still, it is not too much to expect the State to carefully prepare a charging document which includes specific elements required for an automatic penalty enhancement. This is not an undue burden when justice and liberty hang in the balance, and I believe, included among those most minimum of due process standards afforded even to juveniles.

HAZOURI, J.,

dissenting.

I respectfully dissent. The majority fails to address this court’s holding in State v. S.T., 803 So.2d 782 (Fla. 4th DCA 2001), which involves a factually similar scenario. In that case, the trial court adjudicated a defendant delinquent for the offenses of grand theft and burglary of a dwelling. The only time a firearm appeared during the commission of the crime was when it was “[ajmong the items stolen.” Id. at 782. The trial court did not commit the defendant to fifteen days detention, as required by section 790.22(9); but rather, it credited the defendant with fifteen days for time served in detention. Id. This court reversed and remanded, requiring the strict application of section 790.22(9) and its mandatory fifteen-day detention period. Id. at 783.

In this case, the petition alleged two counts of grand theft of a firearm. B.O. did not, nor did the petition say that B.O. did, use or possess a firearm in any other capacity during the commission of the crime. The petition also did not cite section 790.22(9)’s possible application. B.O.’s petition, however, gave him proper notice of section 790.22(9)’s possible application because, as in S.T., the taking of a handgun by a juvenile, alone, gives notification of section 790.22(9)’s mandatory application — even if that theft is the only time in which the juvenile had possession of a handgun during the commission of a crime. Such a strict application of section 790.22(9) is well-recognized and in accordance with section 790.22(9)’s legislative purpose of deterring future crimes by juveniles, especially those involving firearms. See State v. J.Z., 957 So.2d 45, 46-47 (Fla. 3d DCA 2007) (stating that section 790.22(9) is “ ‘designed to get the immediate attention of all juveniles and to issue a “wake-up call” that the state deems their firearm offenses to be serious enough to warrant the automatic deprivation of their liberty for a period of time, even on a first offense’ ” (quoting T.M. v. State, 689 So.2d 443, 446 (Fla. 3d DCA 1997))); see also State v. R.C.S., 837 So.2d 517, 518 (Fla. 3d DCA 2003) (stating that “the legislature purposely intended the mandatory minimum detention provision of [section 790.22(9) ] to act as an example of what might lie ahead should one persist in further criminal activity”); T.M., 689 So.2d at 446 (stating that section 790.22(9)’s “intent clearly is to have a deterrent effect to hopefully prevent the juvenile’s escalation into the adult criminal justice system”). By disregarding S.T., the majority has in turn disregarded section 790.22(9)’s legislative purpose and accompanying case law.

The majority also concludes that the petition for delinquency in this case does not comport with due process because its specific wording cited neither the possible sentencing under section 790.22(2), nor used the express terms of use or possession of a firearm in setting forth the elements of the crime under which B.O. was charged. This proposition, however, goes against well-settled precedent. Namely, that juvenile offenders are treated differently in the criminal justice system, as they are entitled only to a minimum standard of due process. To support its argument, the majority cites both statutory and case law for the general proposition that juveniles are entitled to due process. While juveniles are entitled to due process, they are not entitled to the panoply of rights of due process accorded to adults, as they are treated differently and more sympathetically than adults in the criminal justice system. This was well-articulated by the Florida Supreme Court in In Interest of C.J.W., 377 So.2d 22 (Fla.1979). There, the court stated:

[W]e note that certain significant distinguishing characteristics justify the differences of approach and procedure between the juvenile justice system and the criminal justice system. A child offender, even after being adjudged delinquent, is never held to be a criminal, even if the act would be considered a crime if committed by an adult. The key to this difference in approach lies in the juvenile justice system’s ultimate aims. Juveniles are considered to be rehabilitatable. They do not need punishment. Their need lies in the area of treatment. Therefore, while a juvenile whose liberty the state seeks to restrain mu,st be afforded, a certain minimum standard of due process, it has never been held that he enjoys the full panoply of procedural rights to which one accused of a crime is entitled.

Id. at 23-24 (emphasis added).

Furthermore, the majority’s position im-permissibly expands on the procedural requirements of a petition for delinquency by seeking to hold the state accountable for not stating in the petition that either section 790.22(9) was applicable or that B.O. used or possessed a firearm during the commission of a crime when this is not otherwise required under the law. Although “due process of law requires the state to allege every essential element when charging a violation of law,” a petition fulfills this notice requirement when it “properly allege[s] every essential element of the offense.” M.F. v. State, 583 So.2d 1383, 1385-86 (Fla.1991); see also T.C.E. v. State, 965 So.2d 338, 340 (Fla. 5th DCA 2007) (holding that “[a] charging document is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct, or indefinite that the defendant is misled or exposed to double jeopardy” (emphasis added)). Nowhere has it been held that a petition must specifically cite section 790.22(9) or include the express terms use or possession of a firearm in order to trigger section 790.22(9)’s application. In fact, section 790.22(9) contains no pleading requirement and its plain meaning requires its application when, simply, “the minor is found to have committed an offense that involves the use or possession of a firearm.” Id. (emphasis added). That is exactly the case here, as B.O. was a minor found guilty of an offense that involved, the possession of a firearm, i.e., when B.O. took two firearms into his possession during the commission of a crime.

Accordingly, the omission of the possible application of section 790.22(9) and of the words use or possession of a firearm in a petition for theft of a firearm does not, in and of itself, violate the notice requirements of due process or render that petition inadequate. This proposition is bolstered by our decision in S.T., which holds that the theft of a firearm, alone, will sufficiently notify a juvenile offender of section 790.22(9)’s possible application. The majority’s position, in contrast, imper-missibly expands both the due process rights of juveniles and the procedural requirements of a petition by calling for more than what the law requires. I, therefore, dissent.

      . We affirm on the issue involving the search without further comment.

      . § 985.01(1)(a), Fla. Stat. (2008).

      . 387 U.S. at 33-34, 87 S.Ct. 1428.

      . 387 U.S. at 21, 87 S.Ct. 1428.

      . D.T.H. v. State, 348 So.2d 1155, 1157 (Fla.1977).

      . D.M.M. v. State, 275 So.2d 308 (Fla. 2d DCA 1973).

      . In Interest of S.L.D., 394 So.2d 1072 (Fla. 4th DCA 1981).

      . No one disputes that a factual issue submitted to a jury for resolution must first be alleged in the charging document.

      . 542 U.S. at 301-02, 124 S.Ct. 2531; see also Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (sentencing judge may not rely on aggravating factors not inherent in verdict or embraced by defendant's plea).

      . Gault took notice of the following, however: " 'Unless appropriate due process of law is followed, even the juvenile who has violated the law may not feel that he is being fairly treated and may therefore resist the rehabili-talive efforts of court personnel.’ " 387 U.S. at 26, 87 S.Ct. 1428 (quoting Juvenile Delinquency — Its Prevention and Control (Russell Sage Foundation, 1966), p. 33).

      . This legislative purpose was recognized by the Florida Legislature itself when this law was first enacted. In the 1993 Laws of Florida, it stated:
      WHEREAS, the love affair between juveniles and firearms has reached an all-time high here in Florida, and
      WHEREAS, the courts, the Legislature, and law enforcement cannot be the sole solution to stem our rising juvenile crime statistics, and
      WHEREAS, il is the will of the Legislature and all Floridians that parental involvement, accountability, and responsibility become the key to solving our existing broken juvenile criminal justice system, and

        WHEREAS, it is the will of Floridians all across this great state of ours that juveniles who violate laws pertaining to the illegal use of firearms be dealt with in a swift and certain and severe manner ...

        Ch. 93-416, Preamble, al 216, Laws of Fla. (emphasis added).


author: WETHERELL, J.

text:
    CAPITOL ENVIRONMENTAL SERVICES, INC., Appellant/Cross-Appellee, v. EARTH TECH, INC., Appellee/Cross-Appellant.
    No. 1D08-3016.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Rehearing Denied Jan. 14, 2010.

      Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellant/ Cross-Appellee.
    James H. Wyman of Hinshaw & Culbertson LLP, Miami, for Appellee/Cross-Appellant.
   WETHERELL, J.

Capitol Environmental Services, Inc. (CES), appeals a final judgment awarding $630,399.74 to Earth Tech, Inc., for breach of contract. CES raises four issues on appeal: 1) whether the trial court erred in denying its motion for summary judgment on Earth Tech’s breach of contract claim; 2) whether the trial court erred in denying its motion for summary judgment on Earth Tech’s contractual indemnity claim; 3) whether the trial court erred in refusing to set the indemnity claim for trial; and 4) whether the trial court erred in allowing the jury to award attorney’s fees and costs incurred by Earth Tech in a related declaratory judgment action. Earth Tech cross-appeals, arguing that the trial court erred by not awarding prejudgment interest on all of the damages awarded by the jury. We find no error in the trial court’s rulings on the first three issues raised by CES, and affirm those issues without discussion. For the reasons that follow, we also affirm the fourth issue raised by CES and we reverse the issue raised by Earth Tech on cross-appeal.

In June 2002, Earth Tech entered into a contract with the Florida Department of Environmental Protection to clean up a hazardous waste site at the St. Marks Refinery in Wakulla County. Earth Tech subcontracted with CES to provide for the transportation of waste from the refinery site to an off-site disposal location. CES in turn entered into a “subtier subcontract” with Freehold Cartage, Inc. (Freehold), to provide the necessary transportation services.

The contract between CES and Earth Tech required CES to obtain insurance to protect Earth Tech from personal injury and other claims that may ai’ise out of the performance of the contract by CES and its subtier subcontractors. The contract specifically required that Earth Tech be named as an additional insured on the policies obtained by CES. Although CES provided Earth Tech a “Certificate of Liability Insurance” indicating that Earth Tech was an additional insured on the policies obtained by CES, it was undisputed that Earth Tech was not actually named as an additional insured on the commercial automobile liability policy obtained by CES from United States Fire Insurance Company (U.S. Fire).

In May 2003, Annette Carey and her husband brought a negligence action (hereafter “the Carey lawsuit”) against Earth Tech, Freehold, and a Freehold employee for injuries Mrs. Carey suffered when her car collided with a Freehold tractor trailer that was backing into the refinery site. With respect to Earth Tech, the complaint alleged that one of its employees “negligently undertook to direct traffic” in order to allow the truck to back into the refinery site.

Earth Tech tendered the defense of the Carey lawsuit to U.S. Fire. After U.S. Fire denied coverage, Earth Tech filed a declaratory judgment action in federal district court in Virginia seeking a declaration that U.S. Fire had a duty to defend and provide coverage for Earth Tech in the Carey lawsuit. On January 4, 2006, the federal district court granted summary judgment in favor of U.S. Fire, finding that Earth Tech was not a named insured under the policy and that U.S. Fire was not otherwise obligated by the terms of the policy to defend or indemnify Earth Tech for the Carey lawsuit. See Earth Tech. Inc. v. U.S. Fire Ins. Co., 407 F.Supp.2d 763 (E.D.Va.2006).

On May 9, 2006, Earth Tech and Freehold settled the Carey lawsuit for $500,000, with each paying half. The settlement did not end the case, however, because Earth Tech had filed a third-party complaint against CES alleging, among other things, breach of contract and contractual indemnity claims.

The trial court granted summary judgment in favor of Earth Tech on the breach of contract claim, finding that it was undisputed that Earth Tech was not a named insured on the U.S. Fire insurance policy as required by the contract between Earth Tech and CES. The trial court denied CES’s motion for summary judgment on the breach of contract claim, as well as its motion for summary judgment on the contractual indemnity claim, finding that there were disputed issues of material fact related to the indemnity claim. Thereafter, the trial court severed the two counts and set the breach of contract claim for a jury trial on causation and damages.

The trial court instructed the jury that it had determined as a matter of law that CES breached its contract with Earth Tech and that the only issues for the jury to determine were whether CES’s failure to add Earth Tech as an additional insured to its insurance policy caused Earth Tech to sustain damages, and if so, the amount of the damages sustained. The jury returned a verdict in favor of Earth Tech, specifically finding that the breach of contract by CES was a legal cause of damage to Earth Tech. The jury further found that the amount of damages sustained by Earth Tech with respect to the Carey lawsuit was $554,000, and that the amount of damages sustained by Earth Tech with respect to the declaratory judgment action against U.S. Fire was $31,525.

The trial court entered a final judgment in favor of Earth Tech in the amount of $630,399.74, which is comprised of the damages awarded by the jury and prejudgment interest from May 9, 2006, on the $250,000 settlement payment in the Carey lawsuit. The trial court denied Earth Tech’s motion for prejudgment interest on the remainder of the damages awarded by the jury, which were comprised of the attorney’s fees and costs incurred in defending the Carey lawsuit and the attorney’s fees and costs incurred in the declaratory judgment action.

On appeal, CES does not challenge the attorney’s fees and costs included as part of the damages awarded to Earth Tech with respect to the Carey lawsuit. CES only challenges the award of the attorney’s fees and costs incurred by Earth Tech with respect to the declaratory judgment action, arguing that those fees and costs are not causally related to the breach of contract by CES.

It is well-settled that the injured party in a breach of contract action is entitled to recover monetary damages that will put it in the same position it would have been had the other party not breached the contract. See, e.g., Fla. E. Coast Ry. Co. v. Beaver Street Fisheries, Inc., 537 So.2d 1065, 1068 (Fla. 1st DCA 1989). The injured party is entitled to recover all damages that are causally related to the breach so long as the damages were reasonably foreseeable at the time the parties entered into the contract. Id. (citing Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854)); see also, Mnemonics, Inc. v. Max Davis Assocs., Inc., 808 So.2d 1278, 1279 (Fla. 5th DCA 2002) (“Damages recoverable by a party injured by a breach of contract are those that naturally flow from the breach and can reasonably be said to have been contemplated by the parties at the time the contract was entered into.”). Damages are foreseeable if they are the “proximate and usual consequence ” of the breaching party’s act. Fla. E. Coast Ry. Co., 537 So.2d at 1068 (emphasis in original.) It is not necessary that the parties have contemplated the exact injury which occurred as long as the actual consequences “could have been reasonably expected to flow from the breach.” Mnemonics, Inc., 808 So.2d at 1281. See also Hobbley v. Sears, Roebuck & Co., 450 So.2d 332 (Fla. 1st DCA 1984) (holding that non-breaching party could recover for physical discomfort due to failure to install furnace as required by contract where such damages arose “naturally from the breach” and were a “probable result” of the breach).

We agree with Earth Tech that all of the damages awarded by the jury were causally related to and a reasonably foreseeable consequence of the breach of contract by CES. With respect to the attorney’s fees and costs incurred in the declaratory judgment action, the record establishes that but for the breach by CES, Earth Tech would not have been required to pursue the declaratory judgment action in an effort to obtain the coverage that should have been provided under the contract. Moreover, because the declaratory judgment action filed by Earth Tech is a common response to an insurance carrier’s refusal to provide coverage, see Earth Tech, 407 F.Supp.2d at 768, the action (and the resulting attorney’s fees and costs) could have been reasonably expected to flow from the breach. The fact that the declaratory judgment action was unsuccessful does not preclude recovery of the related fees and costs. See Restatement (Second) of Contracts § 347, comment c (explaining that incidental damages that are recoverable in a breach of contract action include “costs incurred in a reasonable effort, whether successful or not, to avoid loss”). Accordingly, the trial court did not err in allowing the jury to award Earth Tech the attorney’s fees and costs that it incurred with respect to the declaratory judgment action.

Turning to the issue on cross-appeal, it is well-settled that prejudgment interest is due as a matter of law when a verdict liquidates the pecuniary losses suffered by the plaintiff. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985). The purpose of the award of prejudgment interest is to make the plaintiff whole from the date of the loss once the jury determines the defendant’s liability for damages and their amount. Id. Once the jury sets the amount of damages to be awarded, the damages are retroactively considered liquidated damages, and the plaintiff is entitled to prejudgment interest back to the date that the damages were due. Id.; see also H & S Corp. v. U.S. Fidelity & Guar., Co., 667 So.2d 393, 399 (Fla. 1st DCA 1995) (“A claim may become liquidated ... and thus susceptible of prejudgment interest, when a verdict has the effect of fixing damages as of a prior date.”).

We agree with Earth Tech that the trial court should have awarded prejudgment interest on the entire jury verdict, including the portions attributable to the attorney’s fees and costs incurred in the Carey lawsuit and the declaratory judgment action. Where, as here, attorney’s fees and costs are awarded as an element of damages, prejudgment interest is to be awarded. See Butler v. Yusem, 3 So.3d 1185, 1186-87 (Fla.2009) (distinguishing between fees awarded pursuant to a prevailing party provision and fees awarded as an element of damages, and explaining that prejudgment interest should be awarded on the latter type of fees because the amount and entitlement to those fees were fixed upon payment).

Damages can become fixed on different dates for purposes of an award of prejudgment interest. See Underwriters Ins. Co. v. Kirkland, 490 So.2d 149, 153-54 (Fla. 1st DCA 1986). Here, the damages incurred by Earth Tech related to the declaratory judgment action became fixed on January 4, 2006, when that matter concluded and the federal district court determined that Earth Tech was not covered by the U.S. Fire policy as required by the contract between Earth Tech and CES; and, the damages related to the Carey lawsuit became fixed on May 9, 2006, when Earth Tech settled that case. Those are the dates that should be used for purposes of calculating prejudgment interest.

For the foregoing reasons, we affirm the final judgment in all respects, except for the trial court’s failure to award prejudgment interest on all of the damages awarded by the jury. We remand this case to the trial court for the entry of an amended final judgment that includes prejudgment interest from January 4, 2006, on the damages awarded by the jury with respect to the declaratory judgment action, and from May 9, 2006, for all of the damages awarded by the jury with respect to the Carey lawsuit.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

HAWKES, C.J., and WOLF, J., concur.


author: SILBERMAN, Judge.

text:
    Jeffrey DOBY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-712.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    Rehearing Denied Jan. 28, 2010.
    Jeffrey Doby, pro se.
   SILBERMAN, Judge.

Jeffrey Doby appeals the dismissal of his petition for writ of habeas corpus, specifically challenging the postconviction court’s treatment of his petition as a motion filed under Florida Rule of Criminal Procedure 3.850. Mr. Doby cites his actual innocence as the sole ground for his habeas petition. The postconviction court dismissed Mr. Doby’s claim as untimely, successive, and an abuse of process. We write only to clarify the reasons Mr. Doby’s petition was correctly treated as a postconviction motion filed under rule 3.850.

A petition for a writ of habeas corpus is to be filed in the circuit where the prisoner is detained. § 79.09, Fla. Stat. (2008). In this instance, the Charlotte County Circuit Court does not have jurisdiction over Mr. Doby’s habeas petition because Mr. Doby is incarcerated in Hendry County. However, the postconviction court appropriately treated Mr. Doby’s petition as a rule 3.850 motion because it sought to collaterally attack his conviction. See Valdez-Garcia v. State, 965 So.2d 318, 322-23 (Fla. 2d DCA 2007).

The postconviction court also appropriately dismissed Mr. Doby’s claim as untimely. Rule 3.850(b) requires that a motion for postconviction relief be filed within two years of the date the judgment and sentence become final in noncapital cases like this one. Mr. Doby’s judgment and sentence became final on June 14, 2000, when this court issued mandate in his direct appeal. See O’Neill v. State, 6 So.3d 630, 630 (Fla. 2d DCA 2009) (holding that a judgment and sentence becomes final when direct appeal proceedings are concluded). While rule 3.850(b)(1) recognizes an exception to this time limitation for newly discovered evidence, Mr. Doby does not cite newly discovered evidence but merely rehashes the evidence presented at his 1999 trial, the arguments presented in his 2000 appeal, and the claims raised in his 2001 motion for postconviction relief. Furthermore, the Florida state courts do not recognize such freestanding claims of actual innocence in rule 3.850 motions or habeas petitions. See Tompkins v. State, 994 So.2d 1072, 1089 (Fla.2008), cert. denied, - U.S. —, 129 S.Ct. 1305, - L.Ed.2d -(2009).

Affirmed.

KELLY and CRENSHAW, JJ„ Concur.


author: PER CURIAM.

text:
    Derk L. ALLABEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5670.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2009.
    Rehearing Denied Jan. 14, 2010.

      Derk L. Allaben, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Arlene PECORA, Petitioner, v. SIGNATURE GARDENS, LTD., a Florida limited partnership; Deux Michel, Inc., a Florida corporation; Signature Grand, Ltd., a Florida limited partnership; and Grand Partners, Inc., a Florida corporation, Respondents.
    No. 4D09-1192.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 2009.
    Rehearing Denied Feb. 5, 2010.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Steven M. Katzman of Katzman, Wasserman, Bennardini & Rubinstein, P.A., Boca Raton, for petitioner.
    Glenn J. Waldman and William E. Cal-nan of Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., Weston, for respondents.
    G. Bart Billbrough of Billbrough & Marks, P.A., Coral Gables, for intervener Bret Berlin, as Personal Representative of the Estate of Jerome Berlin.
   PER CURIAM.

Arlene Pécora appeals the Broward Circuit Court’s non-final order “abating” her action pending resolution of a parallel receivership proceeding in Miami-Dade County. An order abating or staying an action pending disposition of another action is not a reviewable non-final order. See REWJB Gas Invs. v. Land O’Sun Realty, Ltd., 645 So.2d 1055 (Fla. 4th DCA 1994); Hedin v. Indian River County, 610 So.2d 715 (Fla. 4th DCA 1992). We treat the appeal as a petition for writ of certio-rari and deny the petition in light of the Third District’s per curiam affirmance of the Miami-Dade Circuit Court’s jurisdiction, see Pecora v. Berlin, 23 So.3d 727 (Fla. 3d DCA 2009), and leave undisturbed the “abatement” of the petitioner’s action in Broward County.

Petition denied.

WARNER, LEVINE, JJ., and McCANN, JAMES W., Associate Judge, concur.

      . Although the trial court designated its order as an abatement, the order was effectively a stay, as it did not terminate the action. See Century Sur. Co. v. de Moraes, 998 So.2d 662, 663 n. 1 (Fla. 4th DCA 2009) ("Abatement has been utilized to terminate one of two actions pending simultaneously which involve the same parties and the same issues. A stay, by contrast, essentially postpones one proceeding until a contingency occurs.”).


text:
    William BLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4080.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    William Bland, pro se, Appellant.
    Bill McCollum, Attorney General, and Donna Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order denying his Florida Rule of Criminal Procedure 3.850 motion, in which he raises several claims of ineffective assistance of trial counsel and asserts that his plea was involuntarily entered. The trial court denied the motion because the appellant had entered a plea. The court did not attach any portion of the record that conclusively refuted the appellant’s claims, nor did it hold an evidentiary hearing.

We reverse and remand the order for the trial court to either attach the relevant portions of the record that conclusively refute the appellant’s claims, or to hold an evidentiary hearing. See Yeager v. State, 514 So.2d 73 (Fla. 1st DCA 1987) (reversing a claim of an involuntary plea where the court failed to attach any record portions refuting the claim); compare Knowles v. State, 582 So.2d 167 (Fla. 1st DCA 1991) (affirming where the attached plea agreement and colloquy refuted the claim of an involuntary plea).

REVERSED AND REMANDED.

KAHN, BENTON, and ROBERTS, JJ., concur.


author: WARNER, J. CIKLIN, J.,

text:
    Fulvio REGALADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1609.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.
    Rehearing Denied Feb. 10, 2010.

      Samuel S. Fields of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Fulvio Regalado appeals his conviction and sentence for carrying a concealed weapon, contending that the trial court erred in denying his dispositive motion to suppress. Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant’s possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop. The court erred in denying the motion to suppress. We reverse the conviction.

In the early hours of one morning, Officer Jeffrey Castro was finishing an off-duty detail in downtown Fort Lauderdale. He was in uniform and just getting into his police cruiser when a man approached him and said that “some guy was over there flashing his gun to a couple of friends.” The informant explained that a man in a restaurant had raised his shirt, exposing the gun in his waistband to his friends at the table. He did not take the gun out of his waistband. The officer asked the informant to give him a description of the person who exposed the weapon. The informant provided the officer with a description of the man with the gun. As they were talking, appellant Regalado walked by, and the informant identified him as the man with the gun in the restaurant. Officer Castro asked the informant for his name, but he refused because he was scared. The informant then took off. In court the officer identified Regalado as the person who was pointed out to him by the informant.

Officer Castro then called dispatch and asked for more units to assist him. He noticed Regalado start to walk south on 1st Avenue in the Riverfront area. Despite the time, there was still a heavy crowd in the area. Castro started to follow Regalado. As the officer got within six or eight feet, he could see Regalado turn and look around. The officer observed a bulge in the suspect’s waistband, which, from his training and experience, he believed was the butt of a pistol or handgun. Because Regalado and the friend with whom he was walking began to blend into the crowd, for the safety of the citizens of Fort Lauderdale and himself, the officer pulled his service weapon and called to the suspect at gunpoint, ordering him to the ground. Both Regalado and his friend complied. The officer patted down Rega-lado’s shirt, felt the firearm, recognized it, and took it out. On cross-examination, the officer admitted that it is not against the law to carry a firearm and that when he ordered Regalado to the ground he was not free to leave. Regalado had not threatened the officer, nor had the officer seen Regalado threaten anyone else. The informant had not reported that Regalado had threatened anyone with a gun. The officer had not observed any crime take place.

The trial court denied the motion to suppress relying on Baptiste v. State, 959 So.2d 815 (Fla. 3d DCA 2007) (Baptiste I), in which the Third District held that a stop was permissible based upon a tip that a firearm was being openly displayed, when an anonymous informant revealed himself to the officers after the defendant was stopped but before the pat-down. After the denial of the motion, Regalado pled to the charge, reserving his right to appeal the denial of the motion to suppress.

Regalado appeals claiming the stop violated the Fourth Amendment. While much of the argument focuses on the status of the anonymous informant, we address the issue of whether the stop met the Terry requirements. We conclude that it did not.

Florida recognizes three levels of police citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. Popple v. State, 626 So.2d 185, 186 (Fla.1993). In order to justify an investigatory stop, police must possess specific, articulable facts that would warrant a man of reasonable caution in the belief that a person has committed, is committing, or is about to commit a crime. Id.; § 901.151, Fla. Stat.

The trial court relied on Baptiste I which was later reviewed and reversed by the supreme court. See Baptiste v. State, 995 So.2d 285 (Fla.2008) (Baptiste II). The state maintains that the supreme court’s opinion in Baptiste II, however, would still support the denial of the motion to suppress based upon the facts of this case. We disagree that its reasoning would support the validity of the stop.

In Baptiste an anonymous informant called 911 to report that a man was waving a firearm in front of a grocery store. The first police officer to arrive on the scene saw Baptiste, who matched the description given by the informant, walking down the street with no visible gun. She stopped him at gunpoint. A second officer arrived and the two officers together ordered Baptiste to the ground. A person then approached the officers, indicating that he was the one who had called. He refused to give his name but confirmed that the person being held at gunpoint was the person identified in his anonymous call. The informant then left and was never identified. The officers patted Baptiste down. Baptiste told them he had a handgun, which they found in his front pocket. Baptiste was charged with unlawful possession of a firearm by a convicted felon and filed a motion to suppress, contending that the information provided in the anonymous tip was insufficient to establish a reasonable suspicion to detain him.

Key to the application of Baptiste II to this case is the fact that the officers there had received information from dispatch reporting a man waving a gun in front of a grocery store. The improper exhibition of a weapon is a crime. See § 790.10, Fla. Stat. (“[i]f any person having or carrying any ... firearm ... shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree”). Thus, the tip in Baptiste related criminal activity. The officers investigated and saw Baptiste walking down the street. They observed no suspicious behavior. Nevertheless, because of the report of the defendant brandishing the gun, one of the officers drew her gun and ordered Baptiste on the ground. After Baptiste was stopped, an unknown person emerged to say that he had called in the report. He then disappeared.

The Baptiste II court analyzed the case under the principles of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court held:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Reasonable suspicion of criminal activity may arise from tips that law enforcement receives, but whether tips can provide reasonable suspicion depends upon both the quantity and quality of the information, or its degree of reliability. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

The Baptiste II court determined that the tip called into 911 regarding the man waving his gun in front of the grocery store was an anonymous tip, because the tipster did not reveal himself to the police until after Baptiste was stopped. The court thus distinguished the tip in Baptiste from a citizen informant tip where a citizen approaches the police with information before the police encounter the suspect. Nevertheless, the court stressed that the information supplied by the tipster must be of illegal activity to constitute reliable information for investigation:

State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a “citizen informant” who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale. See State v. Maynard, 783 So.2d 226, 228 (Fla.2001).

Baptiste II, 995 So.2d at 291 (emphasis supplied). The court looked to Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), which involved a truly anonymous tip that a juvenile standing at a bus stop had a gun. The possession of a gun by a juvenile is a crime in Florida. When officers checked out the tip, they observed the juvenile matching the description given in the tip but observed no suspicious behavior. The Supreme Court held that the Terry stop violated the Fourth Amendment. In doing so, the Court noted, “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L., 529 U.S. at 272, 120 S.Ct. 1375 (emphasis supplied). Following J.L., the Baptiste II court held that the stop in that case was illegal because, after having received an anonymous tip of illegal activity, the officers observed no suspicious conduct which would provide reasonable grounds to believe illegal activity was occurring. In dicta the court noted that the officers had not observed any other illegal or suspicious conduct, and they had not observed a firearm or bulge in his clothing. Baptiste II, 995 So.2d at 298. The state seizes on this dicta to claim that the officer in this case had sufficient facts to support a reasonable suspicion stop, because he had observed a bulge in the clothing which looked like a gun. We disagree.

The facts of this case differ from Baptiste. The tipster here was somewhat less than a citizen informant who provides some identification, but he was more than a completely anonymous tipster who has no face-to-face contact with the police. He approached the officer and told him that the defendant had shown a gun to friends in a restaurant. However, he did not state that the defendant ever took the gun out of his waistband.

In other words, the only information received by the officer was that the individual had a gun. Possession of a gun is not illegal in Florida. Even if it is concealed, it is not illegal if the carrier has obtained a concealed weapons permit. Although the officer observed a bulge in Regalado’s waistband, which in his experience looked like a gun, no facts and circumstances were presented to show that Regalado’s carrying of a concealed weapon was without a permit and thus illegal.

The officer admitted in his testimony at the suppression hearing that he had not observed any criminal behavior. He did not see the defendant threaten anyone with a gun, nor had the anonymous tipster mentioned the defendant threatening anyone with a gun or even removing it from his pants. The officer did not observe any threatening act against him, which might provide sufficient reasonable suspicion of an assault to permit a Terry stop. See Baptiste II, 995 So.2d at 297 (citing United States v. Gooden, 273 F.3d 1100, 1100 (5th Cir.2001)) (unpublished opinion) (after anonymous tip of gun possession, when officer encountered suspect, the suspect reached in his waistband as if grabbing for a gun). The officer also did not know whether the defendant had a permit for carrying a concealed weapon. The officer had no reasonable suspicion of any criminal activity. The tipster had not reported any illegal activity, and the officer observed no conduct which would constitute a crime or impending crime.

This case is most like United States v. Ubiles, 224 F.3d 213 (3d Cir.2000). During a carnival celebration in the U.S. Virgin Islands an elderly gentleman reported to a police officer that a young man in the crowd had a gun. The tipster then disappeared. The officer approached the young man but observed no suspicious behavior. Nevertheless, he frisked the defendant, finding an unregistered firearm. The defendant was charged with possession of an unregistered firearm. He filed a motion to suppress, contending his seizure and search were illegal, which the trial court denied.

The Third Circuit reversed the denial of the motion to suppress. The court emphasized the Terry requirement that the officer have reasonable suspicion of criminal activity. A reasonable suspicion of criminal activity may result from viewing exclusively legal activity, but it depends upon the totality of the circumstances. It cited to Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), where the Supreme Court held that headlong flight from police officers in a high crime area noted for narcotics could constitute reasonable suspicion of criminal activity.

Analyzing the evidence, the court determined that the officer did not have reasonable suspicion of criminal activity, because possession of a firearm was not illegal in the U.S. Virgin Islands. Although possession of an unregistei’ed or defaced firearm would be a crime, the officer possessed no information which would suggest that the gun was unregistered. Therefore, the authorities had no reason to believe that the defendant was planning or had participated in criminal activity merely based upon his possession of a gun.

In contrast to Ubiles, the Third Circuit found reasonable suspicion to support a Terry stop in another case with a tipster similar to the one in this case. In United States v. Valentine, 232 F.3d 350 (3d Cir. 2000), an anonymous person approached officers saying he had just seen the defendant with a gun. After discussing the reliability of the tipster, the court looked at the larger context of the report to determine whether the officers had reasonable suspicion to stop the defendant. There, the defendant was walking around at 1:00 a.m. in a high crime area where reports of shootings were common. When the officers stopped to investigate and asked Valentine to approach, he ran and an officer tackled him. According to Wardlow, such circumstances, including flight, provide reasonable suspicion to conduct a Terry stop.

Valentine, of course, is distinguishable from the present case. Whereas the officers encountered Valentine in a high crime area known for its shootings, the officer saw Regalado amidst a crowd in downtown Fort Lauderdale along the Riverfront. There is no information in this record that the Riverfront is considered a high crime area. Furthermore, the defendant did not attempt to flee when approached by the officer. In fact, the officer did not stop to investigate, he ordered the defendant to the ground at gunpoint.

While there are several cases from the United States D.C. Circuit, which hold that an officer has reasonable suspicion to conduct a Terry stop based upon an anonymous tip that a suspect is armed, all of these occurred in the District of Columbia, where, at least until the Supreme Court’s decision in District of Columbia v. Heller, — U.S. —, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), possession of a hand gun was illegal. See, e.g., U.S. v. Holmes, 360 F.3d 1339 (D.C.Cir.2004), vacated and remanded on other grounds, 543 U.S. 1098, 125 S.Ct. 1046, 160 L.Ed.2d 992 (2005); U.S. v. Thompson, 234 F.3d 725 (D.C.Cir.2000). In Florida, possession of a handgun is legal, so long as the person has a concealed weapons permit.

Frequently, the state has argued for a firearms exception to the requirements of a Terry stop. However, our supreme court rejected such an exception in J.L. v. State, 727 So.2d 204, 208-09 (Fla.1998), aff’d, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), where it stated:

We are aware that other jurisdictions appear to recognize a “firearm exception” to the reasonable suspicion test. See United States v. DeBerry, 76 F.3d 884 (7th Cir.1996) (holding that evidence is admissible based on mere verification of a presently-occurring innocent detail tip); United States v. Clipper, 973 F.2d 944 (D.C.Cir.1992) (same). We join the Supreme Court of Pennsylvania in rejecting this exception:
The Commonwealth takes the radical position that police have a duty to stop and frisk when they receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania, it is difficult to see where this shocking idea originates, notwithstanding the Commonwealth’s fanciful and histrionic references to maniacs who may spray schoolyards with gunfire and assassins of public figures who may otherwise go undetected. Even if the Constitution of Pennsylvania would permit such invasive police activity as the Commonwealth proposes-which it does not-such activity seems more likely to endanger than to protect the public. Unnecessary police intervention, by definition, produces the possibility of conflict where none need exist.
Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068, 1071 (Pa.1997). In Florida, it is generally not illegal to possess a firearm. See generally ch. 790, Fla. Stat. (1997). Additionally, Florida provides that individuals are permitted to carry concealed weapons with a proper license. See § 790.06, Fla. Stat. (1997). There are even certain situations (not involved here) where juveniles are permitted to possess firearms. See § 790.22, Fla. Stat. (1997).
For the reasons stated herein, we determine that there is no firearm or weapons exception to the Fourth Amendment and the bare-boned anonymous tip involved herein, by itself, did not provide the police with sufficient cause to stop and frisk.

(footnotes omitted)., Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment. In this case, neither the anonymous tip nor the officer’s observations revealed any suspicion of past, present, or future criminal activity. Therefore, there was no authority for the officer to pull his gun and order the defendant to the ground.

We reverse. Because the issue was dis-positive, we direct that appellant’s conviction and sentence be vacated.

GROSS, C.J., concurs.

CIKLIN, J., dissents with opinion.

CIKLIN, J.,

dissenting.

I must respectfully dissent. Regala-do’s pizza restaurant handgun exhibition as reported by the tipster, coupled with the observations made by Officer Castro, did constitute, under the totality-of-the-circumstances analysis, a reasonable suspicion justifying a Terry stop. Furthermore, the open display of a weapon, regardless of whether an individual holds a concealed weapons permit, is an illegal activity which might justify a stop. The trial court was correct when it denied Regalado’s motion to suppress.

The majority seems to hinge its opinion on the question of whether Regalado’s flashing of his handgun in a pizza parlor was in and of itself illegal. While I believe the law prohibits what Regalado did in the restaurant, illegal conduct is not the exclusive starting point in a Fourth Amendment analysis — even when a Terry stop originates with an anonymous tip. Fourth Amendment analysis begins with “a well-founded, articulable suspicion of criminal activity” — “a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). The flashing of a gun is simply one of the many factors to be considered in ascertaining the required “suspicion” for a Terry stop. The body of caselaw in this area utilizes a totality-of-the-circumstances analysis in consideration of a proper stop. See Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (holding an anonymous tip may be sufficiently corroborated by the observations of officers in the field to serve as a basis for an investigatory stop); Cox v. State, 975 So.2d 1163, 1167 (Fla. 1st DCA 2008) (“The articulable, reasonable suspicion necessary to justify a lawful investigatory stop or detention is ‘not readily, or even usefully, reduced to a neat set of legal rules,’ and the courts must consider the totality of the circumstances.” (citations omitted)); Lee v. State, 868 So.2d 577, 580 (Fla. 4th DCA 2004) (“While an anonymous tip can provide the basis for an investigatory stop, the tip must contain sufficient indicia of reliability to furnish the police with reasonable suspicion that defendant is engaged in criminal activity; such reliability is judged by (a) its specificity and (b) independent police corroboration of significant aspects of the informant’s predictions.” (citations omitted)); Grant v. State, 718 So.2d 238, 239 (Fla. 2d DCA 1998) (“Factors that may be considered [in determining an officer’s reasonable suspicion of criminal activity to justify an investigatory stop] include: the time of day; the appearance and behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” (citation omitted)); Burnette v. State, 658 So.2d 1170, 1171 (Fla. 2d DCA 1995) (Factors important to assess whether to approve a stop and search by an officer who has not actually seen money or drugs exchange hands in a drive-up situation include “the officer’s narcotics experience; the reputation of the location for drive-up transactions; the extended period of surveillance; and the history of previous multiple arrests from that site.”); State v. Wise, 603 So.2d 61, 63 (Fla. 2d DCA 1992) (discussing factors bearing on whether officer has reasonable suspicion to conduct a stop pursuant to a be-on-the-lookout report, including amount of. time since offense, distance from offense, specificity of description of vehicle and occupants, and source of BOLO information); Steele v. State, 561 So.2d 638, 641 (Fla. 1st DCA 1990) (“The reasonableness of the officer’s suspicion must be based on the totality of the circumstances, encompassing such factors as the time of day, the locale of the stop, the appearance and behavior of the suspect, and the officer’s training and experience.” (citations omitted)).

Indeed, most cases discuss “reasonable suspicion” to initiate a Terry stop as requiring an unlawful act or unusual conduct or suspicious behavior or a combination of these factors. This is an accumulative analysis not dependent on one single fact.

The majority’s concentration on whether Regalado’s initial weapon exhibition was illegal or not, is, I respectfully submit, not the determining factor in our analysis. If there is any central theme to the decisional law that has developed in this area, it is this:

In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.
In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.

Illinois v. Wardlow, 528 U.S. 119, 124-25, 126, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citations omitted).

Under a totality-of-the-circumstances analysis, it is clear that the trial court was correct when it denied Regalado’s motion to suppress.

Unlike the facts in J.L., Ubiles, and Baptiste II, as cited by the majority to support its decision, the facts of this case provided Officer Castro with a reasonable suspicion to conduct a stop to investigate what, at the very least, was unusual conduct or suspicious behavior. In the instant matter, we have a tipster’s report of a person with a gun tucked into his waistband showing off the weapon to his friends in a pizza restaurant. We have a face to face conversation between the tipster and the investigative officer with the tipster specifically pointing out the gun flashing suspect before the stop. We have the investigating police officer maintaining visual contact with the suspect from the instant the tipster pointed him out until the investigating officer conducted the Terry stop. We have furtive movement by the suspect blending into a large crowd of Riverfront patrons who, as observed by Officer Castro and in the words of the officer, was “looking back and forth and back and forth.” We have a police officer who was within six to eight feet of an alleged gun toting suspect with a bulge under his shirt who, based on the training, experience, and opinion of Officer Castro, was most likely carrying a firearm in his waistband. In other words, Regalado was not stopped solely because he might be in possession of a gun.

The majority also emphasizes the possibility that Regalado may have had a concealed weapons permit, the lack of which, the majority urges “cannot [be] glean[ed] by mere observation.” To suggest that an officer must engage in an analysis as to whether a gun wielding suspect might possess a concealed weapons permit, which cannot be readily observed, is a dangerous premise. Indeed, in Terry v. Ohio, 392 U.S. at 23-24, 88 S.Ct. 1868 the United States Supreme Court clearly indicated the need to ensure safety of law enforcement officers:

... [I]t would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

(footnote omitted).

Even if Officer Castro had been required to consider whether Regalado had a concealed weapons permit, it does not change the fact that there was the equal possibility that the defendant did not have a permit:

Even in Terry, the conduct justifying the stop was ambiguous and susceptible for an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. All of this conduct was by itself lawful, but it also suggested that the individuals were easing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity.

Wardlow, 528 U.S. at 125, 120 S.Ct. 673 (citations omitted).

Assume, for argument’s sake, that the majority is correct in suggesting that a report of illegal conduct was necessary in this case before Officer Castro could effectuate a stop. Section 790.053(1), Florida Statutes (2008), prohibits “any person to openly carry on or about his or her person any firearm.” See also § 790.10, Fla. Stat. (“If any person having or carrying any ... firearm ... shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree.”). The majority is correct that a person may obtain a license to carry a concealed weapon, but that protection only extends so long as the gun is concealed. § 790.06(1), Fla. Stat. (“The Department of Agriculture and Consumer Services is authorized to issue licenses to carry concealed weapons or concealed firearms.”). A concealed weapon is defined to include a deadly weapon “carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.” § 790.001(3)(a), Fla. Stat. Openly showing a gun to another person violates section 790.053(1), Fla. Stat., whether or not the owner has a license to carry a concealed weapon. See Op. Att’y Gen. Fla. 91-36 (1991) (“Thus, the possession of a concealed weapons license does not authorize a person to openly carry a weapon.”). I believe Regalado’s improper exhibition of the gun that he had stuck in his pants was an illegal activity.

So while I obviously disagree with the majority’s contention that only a tip of illegal conduct can lead to a constitutionally permitted Terry stop, Regalado’s alleged and potentially. dangerous gun exhibition was just that. And whether Regalado may have been issued and continued to possess a valid concealed weapons permit is, on many different levels, of little import.

With well due and utmost respect to my colleagues in the majority, I dissent. This was a “good stop” and the trial court’s denial of Regalado’s motion to suppress should be affirmed.

      . We cannot help but comment that the court’s reference to "fanciful and histrionic references to maniacs who may spray schoolyards with gunfire and assassins of public figures" noted in the 1997 opinion in Commonwealth v. Hawkins, unfortunately is not fanciful at all in the present day.

      . In affirming our supreme court's decision in J.L. the United States Supreme Court also refused to create a "firearm’s exception" to the Fourth Amendment:
      Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U.S. at 30, 88 S.Ct. 1868. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms .... As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U.S. 385, 393-394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per se exception to the "knock and announce" rule for narcotics cases partly because "the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others,” thus allowing the exception to swallow the rule).

        J.L., 529 U.S. at 272-73, 120 S.Ct. 1375.

      .The dissent suggests that Regalado may have violated section 790.053(1), Florida Statutes, by "openly carry[ing]” a gun. We disagree. The gun in question was tucked in Regalado’s waistband and covered by his shirt. Openly carrying a weapon is the opposite of carrying a concealed weapon, which is defined as to be "in such a manner as to conceal the weapon from the ordinary sight of another person.” Here, the weapon was only revealed when Regalado allegedly raised his shirt to show his friends. At most, he "displayed" his gun to his friends. That is a crime only if it is done in a "rude, careless, angry, or threatening manner.” § 790.10, Fla. Stat. To the extent that "openly carry” is susceptible of different constructions, we construe it "most favorably to the accused.” § 775.021(1), Fla. Stat. To follow this rule of construction, we cannot construe "openly carry” as being synonymous with "display” or "exhibit.”


text:
    STATE of Florida, Appellant, v. Deon A. EDWARD, Appellee.
    No. 1D08-5032.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Jan. 14, 2010.

      Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellant.
    Curtis S. Fallgatter and Mark S. Barnett of Fallgatter, Farmand & Catlin, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The State appeals an order suppressing physical evidence and inculpatory statements made by appellee, Deon A. Edward, which were obtained after officers executed a search warrant of Edward’s residence and a subsequent arrest warrant. Because the incriminating evidence against Edward was discovered when officers illegally searched Edward’s trashcan on the carport of his home, and the State failed to establish that, absent the knowledge gained from this illegal search, the officers would have legally searched the garbage when it was placed curbside, we affirm.

Littleton McNeil was shot and killed August 29, 2007. Edward was a person of interest in the subsequent homicide investigation. Detectives went to his residence to interview him. As the trial court found, “they arrived with no intention to search the trash at the home.” However, upon finding no one at the home and being uncertain if the home was occupied, one of the detectives lifted the trashcan lid to see if there was trash. Inside were shoes and a garment that appeared bloodied. The detectives did not immediately seize the items, but waited until the trash was taken to the curb in the public right-of-way. Thereafter, the bloodied items and a black carry-on bag were seized from the trash. The evidence which was retrieved was cited in the applications for the search warrant and arrest warrant which were subsequently issued.

The State concedes that the initial search of the trashcan on Edward’s carport was illegal. Nevertheless, the State argues that, when the trashcan was placed on the street for collection, the contents therein were abandoned and Edward had no reasonable expectation of privacy in the trash.

The State’s argument, however, ignores the fact that the police acquired knowledge of the contents of the trash illegally, and the State never introduced evidence that, without this knowledge, officers would have nonetheless searched the trashcan.

The exclusionary rule provides that evidence obtained directly or indirectly from a violation of the fourth amendment is not admissible against an accused at trial. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The harsh consequences of the “fruit of the poisonous tree” doctrine are ameliorated by three crucial exceptions. A court may admit such evidence if the state can show that (1) an independent source existed for the discovery of the evidence, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); (2) the evidence would have inevitably been discovered in the course of a legitimate investigation, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); or (3) sufficient attenuation existed between the challenged evidence and the illegal conduct, Wong Sun ....

State v. Griffith, 500 So.2d 240, 243 (Fla. 3d DCA 1986) (emphasis added). Here, the trial court found that the State failed to present sufficient evidence that any of these exceptions apply.

AFFIRMED.

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


author: KAHN, J.

text:
    Larry Wayne HEBERT, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D07-1964, 1D07-5897.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   CORRECTED OPINION

KAHN, J.

We deny appellant’s motion for rehearing. We withdraw the opinion of September 10, 2009, and substitute the following corrected opinion.

A jury convicted appellant Larry Wayne Hebert for, among other things, grand theft and contracting without a license during a state of emergency. Hebert now appeals his convictions and sentences and, in a consolidated case, the purported denial of his motion to withdraw guilty pleas in a separate prosecution. As explained below, we dismiss the latter appeal for lack of jurisdiction, but we affirm Hebert’s convictions and sentences in the case that proceeded to trial.

The State presented evidence at trial that purported to support a conviction for grand theft on two theories: first, that appellant committed grand theft by refusing to refund a homeowner’s contractually required deposit for then-uncompleted solar-panel work; and, second, that Hebert arranged for associates to install a defective roof that now must be replaced at considerable expense. We find the State presented legally sufficient evidence to sustain the conviction, but only with respect to the first theory. A reasonable juror, considering the evidence in the light most favorable to the State, could have inferred that appellant acted with the requisite specific intent to commit grand theft on the basis of evidence that he withheld the homeowner’s deposit when asked to refund it. See § 812.014(1)(a), Fla. Stat. (2004). Unlike the contractor in Crawford v. State, 453 So.2d 1139, 1140 (Fla. 2d DCA 1984), a case upon which appellant relies, Hebert was unlicensed and thus did not hold a lawful claim to the deposit money. See § 489.128(1), Fla. Stat. (2004) (providing that, “[a]s a matter of public policy, contracts entered into ... by an unlicensed contractor shall be unenforceable ... by the unlicensed contractor”). By withholding funds to which he had no legal claim, appellant committed grand theft. § 812.014(l)(a), Fla. Stat. (2004).

In contrast, the State’s evidence of specific intent is lacking with respect to the second theory. Mere evidence of incompetent construction work is not enough to establish specific intent to commit grand theft. See generally Jones v. State, 4 So.3d 687, 689 (Fla. 1st DCA 2009). Here, because the State presented legally sufficient evidence with respect to one of the two alternative theories of guilt, we affirm appellant’s conviction for grand theft.

“[Reversal is not warranted” where the jury’s verdict “could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.” San Martin v. State, 717 So.2d 462, 470 (Fla.1998). As an example of convictions resting upon “a legally inadequate theory,” and thus requiring reversal, the court in San Martin referenced a case where one of the State’s theories would have led to a conviction violative of the First Amendment, Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and another that could have resulted in a conviction for an offense barred by the applicable statute of limitations, Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). San Martin, 717 So.2d at 470 n. 9 & 10. This court, in Jones, supra, reversed, not because of a legally inadequate theory, but because the evidence as to grand theft in that case was “insufficient as a matter of law.” 4 So.3d at 688. Nothing in the Jones opinion indicates that the State presented an alternative theory upon which to sustain the conviction for grand theft.

In Florida, a conviction for theft under section 812.014, Florida Statutes (2008), may be accomplished where the defendant obtained the subject property “by fraud, willful misrepresentation of a future act, or false premise.” § 812.012(l)(c), Fla. Stat. (2004). Jones simply stands for the proposition that shoddy, defective, or incomplete construction, without more, will not suffice to show the willfulness, or intent, aspect necessary for grand theft. See Hayward v. State, 746 So.2d 591, 592 (Fla. 2d DCA 1999) (finding circumstantial evidence in that case insufficient to prove “willful misrepresentation of a future act”). Moreover, Florida law is clear that the species of theft charged by the State in this case may, despite the requirement of specific intent, be shown “by circumstantial evidence found in the surrounding circumstances of the event.” McGeough v. State, 766 So.2d 454, 455 (Fla. 4th DCA 2000). Accordingly, although the State’s case, based upon installation of a defective roof, has ultimately failed because of insufficient proof, the prosecution did not suffer from a legally inadequate theory.

We also find legally sufficient record evidence to support appellant’s conviction for contracting without a license during a state of emergency. See §§ 489.127(l)(f), (2)(c), Fla. Stat. (2004). We affirm that conviction, as well.

Appellant last argues that, to the extent trial counsel failed to preserve some of his arguments regarding evidentiary sufficiency, counsel was ineffective. The record, however, does not bespeak such apparent ineffective assistance of trial counsel that appellant’s ineffective-assistance claim is cognizable on direct appeal, so we reject that claim, recognizing that appellant may seek postconviction relief in a collateral criminal proceeding. See Mansfield v. State, 758 So.2d 636, 642 (Fla.2000); Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987).

Hebert also challenges, under separate case number, the purported denial of a motion to withdraw two guilty pleas in prosecutions for similar offenses committed against different victims. The record, however, does not contain a written final order formally disposing of the motion. This court consequently lacks jurisdiction to consider the matter. See Fla. R.App. P. 9.020(h); Billie v. State, 473 So.2d 34, 34 (Fla. 2d DCA 1985). We therefore dismiss Hebert’s appeal in Case No. 1D07-5897.

In Case No. 1D07-1964, appellant’s convictions and sentences are AFFIRMED. Case No. 1D07-5897 is DISMISSED without prejudice to Hebert’s right to seek further relief in the trial court.

THOMAS and ROBERTS, JJ., concur.


author: DAMOORGIAN, J. CIKLIN, J.,

text:
    Mary Lou GORDON, Appellant, v. Michael A. GORDON, Appellee.
    No. 4D08-604.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellant.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The former wife, Mary Lou Gordon, timely appeals the final judgment dissolving her marriage to the former husband, Michael A. Gordon. We affirm the final judgment and write only to address the validity of the parties’ prenuptial agreement (“the agreement”).

The parties were married for ten years and have one minor child together. The former wife had been married twice before. She has a college degree in nursing and, prior to this marriage, owned a health care agency. While employed, she earned a salary of approximately $70,000 per year. The former husband is a pilot for a major domestic airline and disclosed his annual income as $150,000.

The agreement was executed about ten days before the wedding. The parties had discussed the agreement several months before its execution. The former husband prepared the agreement and neither party consulted legal counsel in connection with the preparation or execution of the agreement. The former husband told the former wife that he would not marry her unless she signed the agreement.

The agreement provided, among other things, that each party’s property at the time of the marriage was to remain his or her separate property. The agreement included a section titled “Pension Benefits” in which each party specifically waived his or her rights to the other’s pension benefit plans. In addition, the agreement included a provision stating that “[a]ll savings, investments, retirement accounts, 401K accounts, USAF retirement account and property listed on the attached schedules as property owned by a party prior to the marriage shall remain the property of the person who brought such property into the marriage.” (emphasis added).

The parties each attached a financial disclosure to the agreement. The former husband’s financial disclosure did not list his-airline pension. The former wife testified that she only learned about the airline pension when the parties attended a retirement seminar about a year after their marriage. After the seminar, the former wife discussed the pension funds with the former husband, but they did not modify the agreement.

At the conclusion of the first portion of the bifurcated trial, the trial court found that the former wife failed to establish that the agreement was reached by fraud, deceit, duress, coercion, misrepresentation or overreaching. See Casto v. Casto, 508 So.2d 330, 333 (Fla.1987). The trial court ruled that the former husband’s disclosure of his financial assets was adequate, citing O’Connor v. O’Connor, 435 So.2d 344, 345 (Fla. 1st DCA 1983), for the proposition that a financial disclosure need not be “minutely detailed nor exact.”

A trial court’s findings on a motion to set aside a prenuptial agreement should not be disturbed absent a showing that the findings are not supported by competent, substantial evidence. Waton v. Waton, 887 So.2d 419, 422 (Fla. 4th DCA 2004) (citing Baker v. Baker, 394 So.2d 465, 468 (Fla. 4th DCA 1981)).

In Casto, the Florida Supreme Court set forth two separate grounds for a trial court to set aside a postnuptial agreement, which also apply to prenuptial agreements. 508 So.2d at 333; Waton, 887 So.2d at 423 n. 1 (stating that Casto controls as to prenuptial agreements). Only the first ground is relevant to this appeal. Under the first ground, “a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.” Casto, 508 So.2d at 338.

The issue before us is whether the former wife satisfied her burden to establish that the agreement was reached by fraud, deceit, duress, coercion, misrepresentation, or overreaching as a result of the former husband’s failure to specifically disclose his airline pension plan.

We first address whether the agreement was reached under duress, coercion, or overreaching. The record be-, fore us presents the former wife as an individual with a high level of education and business acumen who, having twice married, understood the significance of the document she was about to sign and chose not to seek the advice of a lawyer. And, while the parties disagreed over the amount of time the former wife had to contemplate the agreement, we hold that a trial court does not abuse its discretion by declaring that a period of ten days prior to the marriage is sufficient time for one to exercise the opportunity to review the agreement, and, if one so chooses, to seek the advice of legal counsel. See Waton, 887 So.2d at 422. Accordingly, there is ample evidence in the record to support the trial court’s conclusion that the agreement was not reached under duress, coercion, or overreaching.

We next address whether the former husband’s failure to specifically disclose his airline pension plan constitutes fraud, deceit, or misrepresentation. The agreement specifically provided that each party shall retain as separate property all retirement accounts and property listed on the attached schedules. Additionally, the agreement included a provision specifically addressing pension benefits under its own section heading. The former husband’s schedule of property referenced “Retirement Plans (Keogh, 401(k), etc.)” and specifically listed the former husband’s 401 (k) plan through his employer; however, no mention was made of the airline pension plan of which the former husband was a beneficiary.

The former husband argues that the trial court was correct in concluding that the former wife had a general and approximate knowledge of his resources and that the former husband was under no obligation to disclose every minute detail nor to be exact. See id. at 424. Although Waton was decided on the second ground in Casto, rather than the first ground at issue in this appeal, the court’s analysis is still highly relevant. The primary issue in Waton was whether the former husband made a full and fair disclosure of his net worth to his former wife at the time they entered into the prenuptial agreement. Id. Exhibit A to the Waton agreement listed the former husband’s assets, although several of the assets were listed as “exact value unknown” and other language to that effect. Id. at 421. One of the assets without an exact value was the former husband’s interest in a business. Id. This Court held that the former husband made a full and frank disclosure of his assets even though he did not assign a specific value to his interest in the business. Id. at 424-25.

In this appeal, the former husband disclosed substantial assets, and the undisclosed pension plan can be understood to constitute only a small fraction of the former husband’s total net worth. Moreover, the agreement included, under the section heading “Pension Benefits,” a provision that explicitly waived each party’s rights to the other party’s pension benefits. Contrary to the dissent, we consider the prominent mention of pension benefits in the content of the agreement to be similar to the listing of the “exact value unknown” assets at issue in Waton. When considering the value of the employer pension in light of the other substantial assets that the former husband fully disclosed, the prominent mention of pensions in the body of the agreement is sufficient to provide the former wife with a general and approximate knowledge of the former husband’s resources. Moreover, it was not error for the trial court to consider the fact that former wife learned the details of the airline pension plan less than a year after they were married and made no attempt to modify the agreement to account for these benefits. Accordingly, the trial court did not err in determining that there was no fraud, deceit, duress, coercion, misrepresentation, or overreaching in the execution of the prenuptial agreement.

Affirmed.

MAY, J., concurs.

CIKLIN, J., dissents with opinion.

CIKLIN, J.,

dissenting.

I must respectfully dissent. The primary issue raised in this appeal concerns the former wife’s contention that the former husband failed to make a full and fair disclosure of his net worth at the time the parties entered into a prenuptial agreement.

The record reveals that the former husband underreported the value of his various pension plans anywhere between $143,000-$229,000. While the prenuptial agreement specifically provided that each party was to retain as separate property all retirement accounts, such a provision did not obviate the requirement that the former husband make a full disclosure as to the assets that he enjoyed at the time of signing the prenuptial agreement. See Waton v. Waton, 887 So.2d 419 (Fla. 4th DCA 2004) (stating that a full and fail-disclosure of the husband’s net worth is necessary to allow the wife “to make a free and voluntary relinquishment of her property rights” to the husband’s assets).

As the Florida Supreme Court stated in Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962):

A valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband’s worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband’s property. The term ‘approximate’ is, for this purpose, held synonymous with ‘near’, ‘close to’ or ‘approaching’.

In affirming the trial court’s order upholding the validity of the prenuptial agreement, the majority cites (as does the lower court) the First District’s decision in O’Connor v. O’Connor, 435 So.2d 344 (Fla. 1st DCA 1983) for the proposition that a financial disclosure need not be “minutely detailed nor exact.”

In my opinion, an undervaluation of at least $143,000 (and perhaps as high as $229,000) is neither a minute detail nor excusably inexact.

I do not believe that the trial court’s findings as to the motion to set aside the prenuptial agreement were supported by competent, substantial evidence and I would reverse on this point.


text:
    LAKE CHARLESTON MAINTENANCE ASSOCIATION, INC., Appellant, v. Colleen E. FARRELL, Appellee.
    No. 4D08-2841.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Rehearing Denied Feb. 11, 2010.
    Keith F. Backer of Backer Law Firm, P.A., Boca Raton, for appellant.
    Steven H. Meyer of Steven H. Meyer, P.A., Boca Raton, for appellee.
   PER CURIAM.

Lake Charleston Maintenance Association, Inc. appeals the award of attorney’s fees in favor of Colleen E. Farrell. The underlying case, upon which the award was predicated, was reversed by this court. See Lake Charleston Maint. Ass’n, Inc. v. Farrell, 16 So.3d 182 (Fla. 4th DCA 2009). Accordingly, we reverse the award of attorney’s fees. See City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006).

Reversed and remanded.

TAYLOR, HAZOURI, JJ., and BEACH, MARCIA, Associate Judge, concur.