author: WELCH, Judge.

text:
    Corey Lee WILLIAMS v. STATE of Alabama.
    CR-06-1451.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied May 16, 2008.
    Certiorari Denied Aug. 8, 2008
    Alabama Supreme Court 1071198.

      M. Joanne Camp, Opelika, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   WELCH, Judge.

Corey Lee Williams was convicted of assault in the second degree for injuries he inflicted upon a police officer during the course of the officer’s duties, a violation of § 13A-6-21(a)(4), Ala.Code 1975. Williams was sentenced to ten years’ imprisonment and was fined $2,000.

The evidence adduced at trial tended to show the following. On the afternoon of March 11, 2006, Opelika police officers Gary Jernigan and James Daniel separately responded to a report of possible drug activity at the corner of South 4th Street and Bankston Alley in Opelika. Neither officer saw anyone at the corner, so Officer Jernigan told Officer Daniel they needed to drive down Bankston Alley to investigate. Officer Daniel’s car was ahead of Officer Jernigan’s car as they drove down the street, which was described as a one-way dead-end street about 100 yards long at most. The houses along the street have little room between them.

The officers saw two men outside of a house about halfway down Bankston Alley. The officers stopped their patrol cars and approached the two men. At the time, the officers did not know who the men were. They were later identified as Clint Flakes and Tyrone Flakes. Officer Jernigan asked Tyrone “what he was doing there” (R. 136) and explained that the police were investigating a report of drug activity in the area.

Clint began loudly complaining and cursing. Officer Jernigan said he asked Clint to calm down, but Clint became belligerent and “giving [him] that stare. A real mean stare.” (R. 190.) The Flakeses refused to show the officers their identification. Clint finally admitted there was a warrant pending for his arrest and said, “Come get me, motherfuckers.” (R. 192.) At that point, Officer Jernigan told Clint he was arresting him for disorderly conduct, and Clint turned and ran inside the house.

Officer Jernigan and Officer Daniel followed Clint into the house, with Officer Jernigan in the lead. Clint ran into the kitchen. As Officer Jernigan entered the kitchen, somebody hit him from the right, knocking him to the floor and knocking off his glasses. Officer Jernigan said he lost consciousness for a brief time.

Officer Daniel sprayed Officer Jerni-gan’s assailant with Freeze Plus P brand mace and then began to fight with him. Officer Daniel could not identify Officer Jernigan’s assailant. While Officer Daniel was fighting with that person, however, someone knocked the mace from his hands and he was hit on the head from behind. Officer Daniel said he was assaulted by three people.

Officer Jernigan came to on the ground to someone kicking him in the face. He testified that four black males were involved in the assault on him and Officer Daniel, but he could not identify any of them except Clint Flakes. Officer Jerni-gan was able to get on his hands and knees and spray mace on the person on top of him and the two that were on top of Officer Daniel. Officer Daniel grabbed one of his assailants around the leg and was able to pull of his shoe before the assailant fled. Neither officer sprayed mace again at the house. Medical records show that Officer Jernigan suffered a broken nose in the assault.

The people involved in the assaults of the officers fled the house. Some suspects who were known to the officers were identified from a patrol car videotape showing the assailants as they fled the house. One suspect seen on the tape was not identified. One of the officers’ patrol cars was blocking a car at the house. An investigation showed that the car belonged to Williams.

Officer Jernigan testified that the Freeze Plus P mace had a range of seven to 10 feet as it left the can. Martin Cash, a distributor of Freeze Plus P mace, testified that when the mace is sprayed, it does not disseminate like an aerosol, but shoots in a straight stream. The mace contains a fluorescent substance that glows under ultraviolet light, or a black light. The substance becomes embedded in the skin and is difficult to wash off. The substance, invisible to the naked eye, can be detected by black light up to 72 hours. The substance is intended to allow police to identify people who have been sprayed with mace when they are placed under a black light.

On the morning of March 13, 2006, less than 48 hours after the assault had taken place, the suspects whom police had identified and Williams came to the police station for questioning. Williams was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he made a statement in which he never admitted striking either Officer Jernigan or Officer Daniel. He refused to sign the statement.

After making the statement, Williams was asked to go to another office. He went with several police officers to a windowless room with ordinary lighting. In that office, an ultraviolet light and a digital camera were mounted on a tripod. The ordinary lighting was turned off, and the ultraviolet light was turned on. The officer could see on Williams’s skin a fluorescent pattern consistent with that of someone who had been directly sprayed with Freeze Plus P, and not from a possible hit from mace sprayed over a large area. The officer photographed the fluorescent pattern. After Williams was photographed, he was allowed to leave the police station. He was arrested and charged with the assault four days later.

I.

Williams contends that the trial court improperly denied his motion to suppress the photograph taken under ultraviolet light at the Opelika police station. Specifically, Williams argues that the photograph taken of him showing a fluorescent pattern constituted an illegal search.

The suppression hearing on the issue whether the photograph of Williams taken under ultraviolet light was due to be suppressed was held outside the presence of the jury; therefore, we would ordinarily review the evidentiary findings of the trial court under the ore tenus standard. Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004). However, here, the evidence adduced at the suppression heai’ing regarding how the photographs came to be taken and the manner in which they were taken was undisputed. ““Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and [this Court] will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” ’ ” Jackson, 886 So.2d at 159, quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting in turn Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980).

“Generally, photographs are admissible into evidence in a criminal prosecution ‘if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge.’ Magwood v. State, 494 So.2d 124, 141 (Ala.Crim.App.1985), aff'd, 494 So.2d 154 (Ala.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). See also Woods v. State, 460 So.2d 291 (Ala.Crim.App.1984); Washington v. State, 415 So.2d 1175 (Ala.Crim.App.1982); C. Gamble, McElroy’s Alabama Evidence § 207.01(2) (3d ed.1977).”

Bankhead v. State, 585 So.2d 97, 109 (Ala.Crim.App.1989), aff'd in relevant part, 585 So.2d 112 (Ala.1991), rev’d on other grounds, 625 So.2d 1146 (Ala.1993).

Alabama’s appellate courts have not addressed this issue. In the past, this court has held that, “[i]n the context of the Fourth Amendment, ‘a “search” implies probing into secret places for that which is hidden [and] implies force, actual or constructive, or a forceable dispossession of property of one by exploratory acts.’ Cunningham v. State, 52 Ala.App. 440, 293 So.2d 865 (1974); Knox v. State, 50 Ala.App. 494, 280 So.2d 200 (1973).” Vogel v. State, 426 So.2d 863, 872 (Ala.Crim.App.1980). Additionally, this court has held that

“in general, the mere observation of a person’s physical characteristics does not constitute a Fourth Amendment search. See Nguyen v. State, 547 So.2d 582, 585 (Ala.Crim.App.1988). ‘ “Moreover, it is no search to ‘record’ those characteristics, in effect, by taking a picture of the individual.” ’ Nguyen v. State, 547 So.2d at 585, quoting LaFave, Search and Seizure, § 2.6(a) (1987).”

Powell v. State, 796 So.2d 404, 428-29 (Ala.Crim.App.1999).

As Professor Wayne LaFave points out, courts across the United States have struggled with the issue of whether use of an ultraviolet light to reveal whether a suspect has come in contact with a certain object or has been in a certain place constitutes a “search.” 1 Wayne R. LaFave, Search and Seizure § 2.2(d) (4th. ed.2004). Of the relatively few jurisdictions that have addressed the issue, the majority have found that it does not. The United States Supreme Court has not addressed the issue.

Professor LaFave cites Commonwealth v. DeWitt, 226 Pa.Super. 372, 314 A.2d 27 (1973), as illustrative of those cases in which courts have determined that use of an ultraviolet light in such instances does not constitute a search. In that case, customs agents found hashish hidden in a table with a false top, which had been shipped into the United States from overseas. The agents treated the hashish with fluorescent grease, repackaged it, and allowed it to be delivered. Agents then went to the address where the delivery had been made to execute a warrant for the hashish. While there, they passed an ultraviolet light over the hands of the defendants and learned that they had handled the hashish. Just as in the instant case, the defendants claimed that use of the ultraviolet light constituted an illegal search. The Pennsylvania Superior Court disagreed and wrote as follows:

“[Defendants had no reasonable expectation of privacy as to the presence of foreign matter on their hands independent of the expectation of the privacy of their premises, which had been legitimately invaded by the police. The grease may be compared to a physical characteristic, such as a fingerprint or one’s voice, which is ‘constantly exposed to the public.’ United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). The Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public.’ Katz v. United States, [389 U.S. 347] at 351 [ (1967) ].... It is true that the grease could not be detected with the naked eye, but then, neither may a fingerprint be examined until there has been an application of ink. Furthermore, the examination was both limited and controlled, affording no opportunity to learn any information other than that specifically sought: Have the person’s hands been in contact with the treated contraband? In this respect, the examination was more circumscribed than any eavesdropping, electronic surveillance, long-distance viewing with binoculars, or even the use of a flashlight. Also, it involved no personal indignities or physical discomfort, and was neither annoying, frightening, or humiliating. Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
“In these circumstances the use of the ultraviolet light to examine defendants’ hands did not amount to a search. It may well be that in other circumstances an examination by ultraviolet light would amount to a search.”

DeWitt, 314 A.2d at 30-31. See also United States v. Ukomadu, 236 F.3d 333, 338 (6th Cir.2001) (citing with approval United States v. Richardson, 388 F.2d 842, 845 (6th Cir.1968) (holding “[w]e do not regard the examination of appellant’s hands under the ultraviolet light as a search within the meaning of the Fourth Amendment”)); United States v. Williams, 902 F.2d 678, 680-81 (8th Cir.1990) (an ultraviolet light examination does not constitute a search for purposes of the Fourth Amendment); Williams v. City of Lancaster, 639 F.Supp. 377, 382 (E.D.Pa.1986); and United States v. DeMarsh, 360 F.Supp. 132, 137 (E.D.Wis.1973).

Other courts, on the other hand, have found use of an ultraviolet light on a defendant’s body to be a search. Professor LaFave uses United States v. Kenaan, 496 F.2d 181 (1st Cir.1974), as an example of the reasoning courts have used to reach that conclusion. The facts in Kenaan are similar to those in DeWitt. In Kenaan, the United States Court of Appeals for the First Circuit explained its holding as follows:

“Appellant contends that the results of the inspection of his hands should have been suppressed at trial, since the inspection was, in effect, a personal search unauthorized by the warrant to search the premises. There can be little doubt that an inspection of one’s hands, under an ultraviolet lamp, is the kind of governmental intrusion into one’s private domain that is protected by the Fourth Amendment. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). If the reach of the Fourth Amendment extends to fingerprinting, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and a search of one’s clothing or personal effects, United States v. Micheli, 487 F.2d 429 (1st Cir.1973), it should certainly encompass a detailed inspection, by special instrument, of one’s skin.”

Kenaan, 496 F.2d at 182. See also People v. Santistevan, 715 P.2d 792, 794-95 (Colo.1986); and State v. Hardaway, 307 Mont. 139, 36 P.3d 900 (2001) (overruling State v. Holzapfel, 230 Mont. 105, 748 P.2d 953 (1988) (viewing defendant’s hands under an ultraviolet light was not a search) in determining that swabbing defendant’s hands for blood evidence without a warrant constituted an unlawful search).

We question the assertion in Kenaan that taking a fingerprint constitutes a search: this court has held that taking the fingerprints of a person who is not under arrest does not constitute a search under the Fourth Amendment. Nguyen v. State, 547 So.2d 582, 585 (Ala.Crim.App.1988).

In Nguyen, police fingerprinted and photographed a man, Thanh Ba Tiet, and three others at the police station, where the men were attempting to secure a friend’s release from jail. A policeman testified that he took the fingerprints and photographs because he had learned that a previous robbery he was investigating had been perpetrated by Vietnamese. Thanh Ba Tiet and the others with him were not under arrest, and Thanh Ba Tiet said that he did not give his consent to be fingerprinted and photographed. This court held that even though he was not under arrest, taking his fingerprints and photograph “did not constitute an unconstitutional search” because the action merely “recorded” characteristics constantly exposed to the public. Nguyen, 547 So.2d at 585.

Under settled Alabama law, a “search” involves probing into secret places for that which is hidden, and implies a forcible dispossession of property of one by exploratory acts. In this case, police merely had Williams enter a room. When the room was darkened and an ultraviolet light was turned on, a fluorescent pattern appeared on Williams’s face. Williams was not asked to bare any part of his body that was not already open to public view. Police did not have to touch his body in an attempt to discover whether a fluorescent pattern would emerge. It involved no personal indignities or humiliations. We fail to see that having one’s photograph made while under an ultraviolet light is any more or less intrusive than having a photograph taken under any other circumstances. See, e.g., Nguyen. Therefore, we hold that law enforcement’s use of ultraviolet light, without more, to determine whether a suspect has come in contact with a fluorescent substance does not constitute a search.

We recognize that in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the United States Supreme Court found that fingerprints taken during the brief detention of the suspect at the police station were subject to exclusion from evidence because the prints were taken while the suspect was being improperly detained without probable cause. In Davis, the suspect was one of at least 24 black youths who, as part of a dragnet, were brought in to the Meridian, Mississippi, police station without probable cause or a warrant, driven to a distant city, and held overnight so that law-enforcement officials could get fingerprints for use in their investigation of a rape.

As pointed out above, in this case, it is not clear from the record how Williams arrived at the police station the day he was exposed to the ultraviolet light. There is no evidence as to whether he voluntarily came to the police station, or whether police brought him into the station for questioning. We do note, however, that after his photograph was taken, Williams was allowed to leave. Furthermore, in this case, unlike the situation in Davis, police already had evidence that Williams’s car was parked outside the house where the altercation occurred. Therefore, they already had grounds independent of the fluorescent marks to reasonably suspect that Williams may have been involved in the assault on the police.

Moreover, Williams does not argue that he was either illegally detained or under arrest at the time he was exposed to the ultraviolet light. Therefore, based upon the record before us, we cannot say that the photograph taken of Williams under exposure to ultraviolet light was the fruit of an illegal detention.

Accordingly, the trial court correctly denied Williams’s motion to suppress the photographic evidence at issue.

II.

Williams contends that the State failed to present sufficient evidence to convict him of assault in the second degree.

“ ‘ “In reviewing the sufficiency of the evidence in criminal eases, we are to view the evidence and all inferences that may reasonably be drawn from it in a light most favorable to the government. ... Whether evidence is direct or circumstantial, we must accept all credibility choices that tend to support the jury’s verdict.... The standard of review is whether a reasonably minded jury must necessarily have entertained a reasonable doubt of the defendant’s guilt. If the jury could not reasonably have concluded that the evidence excluded every reasonable hypothesis but that of guilt, then we must reverse the convictions.”
‘United States v. Hinds, 662 F.2d 362, 366 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1720, 72 L.Ed.2d 140 (1982).’ ”

Hamilton v. State, 680 So.2d 987, 994-95 (Ala.Crim.App.1996).

“Where a defendant’s conviction is based solely on circumstantial evidence, ‘if the circumstances can be reconciled with the theory that someone else may have done the act, then the conviction is due to be reversed.’ Ex parte Brown, 499 So.2d 787, 788 (Ala.1986) (emphasis in original). ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Crim.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985). ‘It is not necessary for a conviction that the defendant be proved guilty to the “exclusion of every possibility of innocence.” ’ Burks v. State, 117 Ala. 148, 23 So. 530 (1898). ‘The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant.’ Howard v. State, 108 Ala. 571, 18 So. 813, 815 (1895).”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

Section 13A-6-21(a), Ala.Code 1975, provides, in pertinent part:

“A person commits the crime of assault in the second degree if the person does any of the following:
“(4) With intent to prevent a peace officer, as defined in Section 36-21-60, ... from performing a lawful duty he or she intends to cause physical injury or he or she causes physical injury to any person.”

Here, Williams was indicted for assaulting Opelika Police Officer Jernigan. The State presented evidence that two Opelika police officers, Jernigan and Daniel, were attempting to investigate a report of suspicious activity in the neighborhood when Clint Flakes became aggressive, admitted that there was a warrant pending against him, and told the officers to “come get” him. Officer Jernigan had entered the house into which Clint Flakes had fled and was attempting to arrest Flakes for disorderly conduct when both he and Officer Daniel were hit. Both men were knocked to the floor. Officer Jernigan suffered a broken nose in the fight.

Although officers Jernigan and Daniel were unable to identify the men who assaulted them, they were able to determine that there were four men — other than themselves — involved in the fight. During the course of the fight, Jernigan’s nose was broken. Both officers were able to spray mace containing a fluorescent substance at their attackers.

The police investigation showed that a car that had been blocked in at the house by one of the patrol cars belonged to Williams. When Williams came to the police department for questioning regarding the assault, he was led into a room that was darkened and an ultraviolet light was turned on in the room. Under the ultraviolet light, a fluorescent pattern consistent with a direct spray of Freeze Plus P mace was visible on Williams’s skin. From this evidence, a jury reasonably could have concluded that Williams participated in the fight with officers Jernigan and Daniel in an effort to prevent them from carrying out their legal duty in arresting Clint Flakes for disorderly conduct.

Williams contends that there is no proof that he actually hit Officer Jerni-gan, and that even if he hit Officer Daniel, that should be considered a separate offense from the offense with which he was charged. Williams offers no authority in support of his assertion, which we find to be without merit.

It is well settled in Alabama that “ ‘[a] person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“ ‘(2) He aids or abets such other person in committing the offense.... ’
“§ 13A-2-23, Ala.Code 1975.
“ ‘The words “aid and abet” encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [v. State, 494 So.2d 936 (Ala.Crim.App.1986) ]; Sanders v. State, 423 So.2d 348 (Ala.Crim.App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. “The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.” Walls v. State, 378 So.2d 1186, 1191 (Ala.Crim.App.1979), cert. denied, Ex parte Walls, 378 So.2d 1193 (Ala.1980). Such facts as the defendant’s presence in connection with his companionship, and his conduct at, before and after the commission of the act, are potent circumstances from which participation may be inferred.’
“Henry v. State, 555 So.2d 768, 769 (Ala.Crim.App.1989).”

Peraita v. State, 897 So.2d 1161, 1210 (Ala.Crim.App.2003).

Accordingly, even if Williams hit Officer Daniel and did not actually hit Officer Jernigan, the jury could have concluded that in participating in the attack on officers Daniel and Jernigan, he was legally accountable for the actions of whichever individual actually hit Officer Jernigan.

III.

Williams contends that the trial court ignored the Voluntary Sentencing Standards of the Alabama Sentencing Reform Act of 2003, § 12-25-30 et seq., Ala.Code 1975 (the “Sentencing Act”), and instead sentenced him pursuant to the provisions of the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975.

The stated purpose of the Sentencing Act is “to protect public safety by providing a fair, effective, and efficient criminal justice system” through a variety of means, including the use of “[voluntary sentencing standards used to guide judicial decision makers in determining the most appropriate sentence for convicted felony offenders.” § 12—25—31(a)(1), Ala.Code 1975.

However, the Sentencing Act specifically provides that “[fjailure to follow any or all of the provisions of this section [titled “Use of voluntary sentencing standards”], or failure to follow any or all of the provisions of this section in the prescribed manner, shall not be reviewable on appeal or the basis of any other post-conviction relief.” § 12-25-35(f), Ala.Code 1975 (emphasis added).

Accordingly, this argument is without merit.

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN and WISE, JJ., concur. BASCHAB, P.J., and SHAW, J, concur in the result.

      . It is unclear from the record whether the suspects were brought in by police or whether they came voluntarily.


source: Caselaw Access Project

author: CANADY, J.

license: Public Domain

text:
    PHANTOM OF BREVARD, INC., Petitioner, v. BREVARD COUNTY, Florida, Respondent. Brevard County, Florida, Petitioner, v. Phantom of Brevard, Inc., Respondent.
    Nos. SC07-2200, SC07-2201.
    Supreme Court of Florida.
    Dec. 23, 2008.
    Rehearing Denied Feb. 17, 2009.

      Mark D. Shuman of GrayRobinson, P.A., Melbourne, FL, for Petitioner/Respondent.
    Scott L. Knox, County Attorney, Viera, FL, for Respondent/Petitioner.

      . The Pinellas County provision provides:
      In furtherance of the provisions of Sec 62-88, all sellers of fireworks, must keep in force an insurance policy showing general, comprehensive, liability and property damage insurance coverage on an occurrence basis with minimum limits in the policy of not less than one million dollars ($1,000,-000.00) combined single limit coverage for each loss that may result from the activities of the sellers. Sellers must maintain Workers' Compensation coverage as required pursuant to Chapter 440, Florida Statutes. A failure to maintain this required coverage after the procurement of a permit shall be a violation of this Division and grounds for suspension of their permit from the Authority and the sale of the permitted goods as set forth in Sec 62-82 shall cease until such time as the required insurance is obtained.

        Phantom of Clearwater, 894 So.2d at 1028-29 (quoting Pinellas County, Fla., Ordinance No. 03-48 (June 24, 2003)).

   CANADY, J.

Phantom of Brevard, Inc. and Brevard County seek review of the decision of the Fifth District Court of Appeal in Phantom of Brevard, Inc. v. Brevard County, 966 So.2d 423 (Fla. 5th DCA 2007), on the ground that it expressly and directly conflicts with the decision of the Second District Court of Appeal in Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011 (Fla. 2d DCA 2005). The district courts disagree about whether substantially similar county ordinance provisions related to the regulation of fireworks conflict with chapter 791, Florida Statutes. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated below, we quash the Fifth District’s decision in Phantom of Brevard to the extent it is inconsistent with this opinion, and we approve the Second District’s decision in Phantom of Clearwater on the conflict issue.

FACTUAL AND PROCEDURAL BACKGROUND

Phantom of Brevard, Inc. (Phantom) sought a judgment declaring Brevard County, Florida, Ordinance No. 05-60 (December 6, 2005), as amended by Brevard County, Florida, Ordinance No. 06-18 (April 11, 2006), unconstitutional. Phantom of Brevard, 966 So.2d at 425. The circuit court entered a final summary judgment in favor of Brevard County, concluding that it was required to follow the Second District’s decision in Phantom of Clearwater. The Second District in Phantom of Clearwater had upheld a similar Pinellas County fireworks ordinance with the exception of one sentence that Brevard County had since removed from its fireworks ordinance. Phantom appealed the circuit court’s judgment.

On appeal, the Fifth District affirmed in part and reversed in part the circuit court’s judgment. Phantom of Brevard, 966 So.2d at 428. First, the Fifth District held that chapter 791, Florida Statutes (2006), does not expressly preempt the regulation of fireworks. Id. at 427. Second, the Fifth District concluded that the legislative history of chapter 791 does not support implied preemption. Id.

However, the Fifth District reversed in part and remanded with instructions to sever certain provisions of the ordinance that it found in conflict with chapter 791. Id. at 428. Among the provisions that the Fifth District found to be in direct conflict is section 10, entitled “Evidence of financial responsibility,” with which businesses must comply in order to receive a permit for selling fireworks and sparklers in Brevard County. See id. at 428-29. Section 10 provides:

In furtherance of the provisions of sections 8 and 9, all sellers of fireworks must keep in force an insurance policy showing general, comprehensive, liability and property damage insurance coverage on an occurrence basis with minimum limits in the policy of not less than $1,000,000.00 combined single limit coverage for each loss that may result from the activities of the sellers. Sellers must maintain Workers’ Compensation coverage as required pursuant to F.S. Ch. 440. A failure to maintain this required coverage after the procurement of a permit shall be a violation of this ordinance and grounds for suspension of their permit from the authority and the sale of the permitted goods shall cease until such time as the required insurance is obtained.

Id. at 428 (quoting Ordinance No. 05-60, § 10). The Fifth District explained its reasoning and its disagreement with the Second District as follows:

Upon considering substantially similar language in the Pinellas County ordinance, the Phantom of Clearwater court determined that a county may, as part of its permitting process, demand proof of the seller’s ability to respond in damages. 894 So.2d at 1023. We disagree. Brevard County’s financial responsibility ordinance is in direct conflict with section 791.001, Florida Statutes, which provides that chapter 791 “shall be applied uniformly throughout the state.” Because chapter 791 does not contain any financial responsibility standard or requirement, retailers and other supply-side entities are subject to potentially disparate obligations throughout the state. Although the legislature has provided counties with considerable discretion to determine the amount of a bond required of a fireworks display licensee under section 791.03, there is no reason to believe that the legislature would have countenanced a system in which a seller of fireworks or sparklers must maintain a particular amount of liability insurance simply because one of the counties in which it does business requires such coverage.

Id. at 428-29.

In contrast to the Fifth District, the Second District in Phantom of Clearwater, 894 So.2d at 1023, had rejected the contention that the permitting requirement of compliance with the Pinellas County fireworks ordinance’s “Evidence of financial responsibility” provision conflicts with chapter 791. See id. The Second District reasoned:

Although the ordinance does establish a permitting process for all businesses involving fireworks and that process imposes additional requirements on businesses wanting to avail themselves of the benefits of doing business in Pinellas County, this permitting process does not directly conflict with the provisions of chapter 791.
... A person can comply with the requirements of the ordinance without violating chapter 791, and can comply with the requirements of chapter 791 without violating the ordinance.

Id.

Both Phantom and Brevard County sought review on the ground that the Fifth District’s decision in Phantom of Brevard is in express and direct conflict with the Second District’s decision in Phantom of Clearwater regarding whether these substantially similar “Evidence of financial responsibility” provisions conflict with chapter 791.

DISCUSSION

We begin our analysis by summarizing chapter 791, Florida Statutes (2006), and Brevard County Ordinance 05-06, as amended by Brevard County Ordinance 06-18.

Chapter 791, entitled “Sale of Fireworks,” is a relatively short chapter. It begins with section 791.001, which provides:

This chapter shall be applied uniformly throughout the state. Enforcement of this chapter shall remain with local law enforcement departments and officials charged with the enforcement of the laws of the state.

Then, the chapter defines various terms, including fireworks, sparklers, manufacturer, retailer, and wholesaler. In particular, “fireworks” is defined as including “any combustible or explosive composition or substance or combination of substances or, except as hereinafter provided, any article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation.” 791.01(4)(a), Fla. Stat. However, the term fireworks does not include snakes, party poppers, auto burglar alarms, and other expressly delineated items. § 791.01(4)(c), Fla. Stat. To be excluded from the term “fireworks,” sparklers must be tested and approved by the Division of the State Fire Marshal (Division) prior to retail sale. § 791.01(4)(b), Fla. Stat. Sparklers also must be stored in the manner described by section 791.015. And a retailer (defined by section 791.01(6) as someone engaged in selling sparklers) may not sell sparklers or other products authorized for sale by chapter 791 “unless the product was obtained from a manufacturer, distributor, or wholesaler registered with the division.” § 791.02(2), Fla. Stat.

Significantly, section 791.02(1) prohibits the use and sale of items that fall within the definition of fireworks. However, there are several exceptions to this general prohibition. First, there is an exception for the use and sale of fireworks for certain public displays of fireworks. See § 791.02(1), Fla. Stat.; § 791.04, Fla. Stat. The governing bodies of counties and municipalities can adopt rules for granting permits for the public displays of fireworks by fair associations, amusement parks, or other organizations. § 791.02(1), Fla. Stat. Boards of county commissioners must require bonds from licensees in an amount not less than $500. § 791.03, Fla. Stat. Further, outdoor displays are subject to the safety standards of “the National Fire Protection Association (NFPA) 1123, Code for Fireworks Display, 1995 Edition.” § 791.012, Fla. Stat. But “[a]ny state, county, or municipal law, rule, or ordinance may provide for more stringent regulations for the outdoor display of fireworks.” Id. And the Code for Fireworks Display does not govern fireworks displays on private, residential property. Id.

In addition to exempting the use and sale of fireworks for certain public displays, chapter 791 exempts the wholesale of fireworks if the sales are delivered to out-of-state entities or to other manufacturers, distributors, or wholesalers. § 791.04, Fla. Stat. Moreover, chapter 791 exempts the use of fireworks for signal purposes by railroad and transportation agencies, for quarrying purposes, for blasting or industrial purposes, for show or theatre purposes (blank cartridges), “or for signal or ceremonial purposes in athletics or sports, or for use by military organizations.” Id. Chapter 791 also exempts the sale and use of fireworks for “frightening birds from agricultural works and fish hatcheries.” § 791.07, Fla. Stat. This last use “shall be governed entirely by the rules prescribed by the Department of Agriculture and Consumer Services.” Id.

Brevard County’s fireworks ordinance begins with a list of definitions, including one that specifies that “[f]ireworks, sparklers, retailer, wholesaler, distributor, and manufacturer shall have the same meaning as specified in F.S. Section 791.01, as it may, from time to time, be amended.” Ordinance No. 05-60, amended by Ordinance No. 06-18, § 1(d). Additionally, the ordinance explains that it is “enacted pursuant to the Home Rule Charter of Brevard County, Florida and F.S. Chapter 791.” Id. § 2.

Section 5 of the fireworks ordinance requires the Brevard County Fire Chief to “develop an affidavit which all sellers of fireworks within the county shall use to determine the entitlement of any purchaser at retail or wholesale to buy fireworks.” Id. § 5(b). A purchaser must provide the seller with documentary evidence that the purchaser is entitled to purchase fireworks. Id. § 5(c). The seller is required to maintain copies of the records required by the ordinance for a period of four years from the sale date. Id. § 5(j). And vendors must provide purchasers with receipts. Id. § 6.

Section 7, which the Fifth District remanded with instructions for the circuit court to determine whether it should be severed, requires devices to have labels in English that describe the weight of the combustible substance, “the name of the chemical composition and a brief statement describing its action when ignited.” Section 8, which the Fifth District remanded for severance, designates sparklers and fireworks to be ultrahazardous and dangerous products, “subjecting the vendors, distributors and manufacturers to strict liability for any injury sustained by a purchaser or user.”

Section 9(b) provides that any seller of fireworks within Brevard County must apply for and secure a permit from the Bre-vard County Fire Chief. Among other requirements, an applicant must demonstrate evidence of financial responsibility pursuant to section 10, which is quoted above and which the Fifth District remanded for severance. Id. § 9(e).

Section 12 includes specific requirements for the issuance of permits for public displays of fireworks. For example, one must submit an application to the appropriate fire department at least thirty days prior to the event and must include a diagram of the grounds where the fireworks are to be discharged. Id. § 12(a)(1).

Section 13, which the Fifth District remanded for severance, provides that the use, explosion, or storage of fireworks is prohibited in the county unless: (a) a county permit for public display is obtained; (b) the use is by a railroad or transportation agency for signal purposes or the use is for quarrying, blasting, or industrial purposes; or (c) the use is for a bona fide agricultural purpose.

Section 14, entitled “Penalties and enforcement,” explains that law enforcement has the authority to order the cessation of the sale of fireworks if a seller is selling fireworks without the required permits until the missing permits are obtained. This section also provides for a period of suspension of a permit for repeat offenders of the ordinance or chapter 791. Finally, Brevard County’s fireworks ordinance includes a severability clause. Id. § 15.

Brevard County’s Mandatory Insurance Provision Does Not Conflict with Chapter 791

Brevard County contends that section 10 of its fireworks ordinance, entitled “Evidence of financial responsibility,” does not conflict with chapter 791. We agree.

Pursuant to our Constitution, chartered counties have broad powers of self-government. See art. VIII, § 1(g), Fla. Const. Indeed, under article VIII, section 1(g) of the Florida Constitution, chartered counties have the broad authority to “enact county ordinances not inconsistent with general law.” See also David G. Tucker, A Primer on Counties and Municipalities, Part I, Fla. B.J., Mar. 2007, at 49. However, there are two ways that a county ordinance can be inconsistent with state law and therefore unconstitutional. First, a county cannot legislate in a field if the subject area has been preempted to the State. See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006). “Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature.” Id. (quoting Phantom of Clearwater, 894 So.2d at 1018). Second, in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996). Local “ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So.2d 468, 470 (Fla.1993); Hillsborough County v. Fla. Rest. Ass’n, 603 So.2d 587, 591 (Fla. 2d DCA 1992) (“If [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void.”); see also Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972) (“A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.”).

There is conflict between a local ordinance and a state statute when the local ordinance cannot coexist with the state statute. See City of Hollywood, 934 So.2d at 1246; see also State ex rel. Dade County v. Brautigam, 224 So.2d 688, 692 (Fla.1969) (explaining that “inconsistent” as used in article VIII, section 6(f) of the Florida Constitution “means contradictory in the sense of legislative provisions which cannot coexist”). Stated otherwise, “[t]he test for conflict is whether ‘in order to comply with one provision, a violation of the other is required.’ ” Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 649 (Fla. 2d DCA 2007) (quoting Phantom of Clearwater, 894 So.2d at 1020), review granted, No. SC07-2074 (Fla. Nov. 29, 2007).

In this case, nothing in the “Evidence of financial responsibility” provision conflicts with chapter 791 because chapter 791 does not in any way address the subject matter addressed by the “Evidence of financial responsibility” provision, namely the requirement that sellers of fireworks obtain liability insurance. Section 791.03 only provides that a county must require at least a $500 bond from licensees. Although “licensee” is not defined in chapter 791, it appears that section 791.03 “is intended to cover the persons who receive local permits for outdoor displays.” Phantom of Clearwater, 894 So.2d at 1016 n. 3. Therefore, when enacting section 10 of its fireworks ordinance, the county simply chose to legislate in an area where the Legislature chose to remain silent.

Specifically, when regulating businesses that sell fireworks within its borders, Bre-vard County chose to require that sellers of fireworks obtain and maintain a $1,000,000 single limit liability insurance policy. While this imposes an additional requirement on businesses that sell fireworks in Brevard County beyond the requirements imposed by chapter 791, this additional requirement does not directly conflict with any requirement, prohibition, or exemption in chapter 791. Businesses that sell fireworks in Brevard County can comply with the county’s additional insurance requirement without violating any provision of chapter 791. Thus, the “Evidence of financial responsibility” provision can coexist with chapter 791. There is no direct conflict. Cf. Dade County v. Acme Specialty Corp., 292 So.2d 378 (Fla. 3d DCA 1974) (holding that portion of county ordinance that banned the sales of sparklers was unconstitutional because it directly conflicted with section 791.01, Fla. Stat., which specifically approved the sale of sparkers).

The Fifth District concluded that the “Evidence of financial responsibility” provision conflicts with section 791.001, which provides that chapter 791 is to be “applied uniformly throughout the state.” More specifically, the Fifth District found that Brevard County’s “Evidence of financial responsibility” provision will subject fireworks businesses to varying insurance coverage requirements throughout the State. However, focusing on potential differences caused by varying local requirements confuses the issue. Because chapter 791 does not include an insurance coverage standard or requirement, chapter 791 is not being applied disparately. In other words, a state statute is not being applied in a non-uniform manner when a locality enacts a regulation on a particular matter that is not addressed in the statute. The statute is being applied uniformly. It is the local ordinance that is creating any variance between counties.

Brevard County’s “Evidence of financial responsibility” provision could only be hindering a uniform application of chapter 791 if chapter 791 included a standard insurance standard or requirement. But, as stated earlier, chapter 791 includes no such standard or requirement. Thus, there is no conflict.

CONCLUSION

Because chapter 791 is silent regarding insurance requirements for businesses that sell fireworks, Brevard County’s “Evidence of financial responsibility” provision does not conflict with chapter 791. Accordingly, we quash the Fifth District’s decision in Phantom of Brevard to the extent it is inconsistent with this opinion, and we approve the Second District’s decision in Phantom of Clearwater.

It is so ordered.

QUINCE, C.J., and ANSTEAD, PARIENTE, LEWIS, and POLSTON, JJ., concur. WELLS, J., recused.

      . While Phantom's jurisdictional brief argued that this Court has jurisdiction because the district courts are in conflict regarding whether the “Evidence of financial responsibility” provisions conflicts with chapter 791, Phantom’s merits briefs did not specifically address this issue. And, during oral argument, Phantom conceded this conflict issue. However, we do not address Phantom's preemption arguments because the Fifth and Second Districts do not conflict on the issue of preemption. See Savona v. Prudential Ins. Co. of Am., 648 So.2d 705, 707 (Fla.1995).


author: DAVIS, Judge.

text:
    In the Interest of H.E., a child. P.E., Appellant, v. Department of Children and Family Services, and the Guardian Ad Litem Program, Appellees.
    No. 2D07-4605.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2008.
    Rehearing Denied Jan. 21, 2009.
    Lorena L. Kiely, Plant City, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Annette M. Lizardo, Orlando, for Appel-lee Guardian ad Litem Program.
   DAVIS, Judge.

P.E. (“the Mother”) challenges the trial court’s termination of her parental rights to her child, H.E., which was based on the Mother’s failure to appear at the final adjudicatory hearing. We reverse and remand.

On appeal, the Mother argues that the trial court erred by failing to require the Department to prove the basis for the termination. The Mother maintains that pursuant to S.S. v. Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), after the trial court found that she consented to the TPR by her failure to appear, it was still required to take evidence to determine whether the Department could prove the allegations made in the termination petition.

In S.S., the Third District concluded that ‘“implied, presumed, or constructive consent’ under ... ‘section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.’ ” S.S., 976 So.2d at 43 (quoting Dep’t of Children & Families v. A.S., 927 So.2d 204, 208 (Fla. 5th DCA 2006); see also R.H. v. Dep’t of Children & Family Servs., 860 So.2d 986, 988 (Fla. 3d DCA 2003) (“[T]he trial court erred when it terminated the father’s parental rights without the taking of any evidence in support of such termination.”). The Fifth District also has followed this line of reasoning. See Dep’t of Children & Families v. A.S., 927 So.2d 204, 208 (Fla. 5th DCA 2006) (“[C]onsent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.”).

We agree with the Third and Fifth Districts that deeming a parent’s failure to appear to be a consent to termination does not end the trial court’s judicial labor. We disagree, however, that the trial court must hear evidence in support of the grounds alleged in the petition for termination.

Section 39.802(4), Florida Statutes (2007), requires that a petition for termination of parental rights contain facts supporting

(a) That at least one of the grounds [for termination of parental rights] listed in s. 39.806 has been met.
(b) That the parents of the child were informed of their rights to counsel at all hearings that they attended and that a dispositional order adjudicating the child dependent was entered....
(c) That the manifest best interests of the child, in accordance with s. 39.810, would be served by the granting of the petition.

One of the grounds included in section 39.806 is a parent’s voluntary surrender and “consent[ ] to the entry of an order giving custody of the child to the department for subsequent adoption.” § 39.806(1)(a). Additionally, section 39.801(3)(d) states that if a parent is provided the proper notice, his or her failure to appear at the adjudicatory hearing “shall constitute consent for termination of parental rights.”

This court has determined that the termination of rights resulting from this statutory consent is a voluntary, rather than an involuntary, termination. See C.C. v. Dep’t of Children & Family Servs. (In re A.D.C.), 854 So.2d 720, 721-22 (Fla. 2d DCA 2003). We understand that this determination renders the consent imposed under section 39.801(3)(d) for failure to appear to be like the consent that results from the execution of a written surrender pursuant to section 39.806(l)(a). If the Department were still required to prove an additional ground for termination as specified in section 39.802, the resulting termination would be, in our opinion, involuntary in nature. Furthermore, if the Department is required to present evidence of an additional ground for termination, the legislature’s decision to label this failure to appear a “consent” would be rendered meaningless. See A.D.C., 854 So.2d at 722 (“Consent is defined as ‘[v]oluntarily yielding the will to the proposition of another; acquiescence or compliance therewith.’ Black’s Law Dictionary 276 (5th ed. 1979).” (alteration in original)). In keeping with our prior determination in A.D.C., and our plain reading of the statute, we conclude that such additional evidence is not required.

Section 39.808(4) provides that when a written surrender and consent is entered, there is no need for an advisory hearing, implying that the “consent” satisfies the requirement to prove a ground for termination. However, the same section requires that “[a]djudicatory hearings for petitions for voluntary termination must be held within [twenty-one] days after the filing of the petition.” Since section 39.802(4) designates that there are two further requirements that must be proven in addition to proving at least one of section 39.806’s enumerated grounds, an adjudicatory hearing is required even after a consent has been entered—either by written surrender or resulting from a parent’s failure to appear. However, at such a hearing, the Department need only present evidence establishing that the parents have received the necessary notice of their right to counsel and that the termination is in the manifest best interests of the child.

Accordingly, we conclude that while a parent’s nonappearance provides a ground for termination, determining the manifest best interests of the child remains the responsibility of the trial court. Therefore, the trial court must hear evidence as to the child’s manifest best interests before it can terminate a parent’s rights—even after the parent has been deemed to have consented based on his or her nonappearance at the final adjudicatory hearing.

We note that here the State argues that the trial court did indeed take testimony from the guardian ad litem regarding the manifest best interests of the child, H.E. However, that testimony was taken at the permanency hearing, more than a month after the trial court already had terminated the Mother’s parental rights at the final adjudicatory hearing. Because that testimony was presented after the fact—after the Mother’s rights already were terminated—it cannot be said to have supported the trial court’s decision to terminate.

For these reasons, we reverse and remand for the trial court to hear evidence from both parties as to the manifest best interests of the child, H.E. In doing so, we certify conflict with the Third District’s opinions in S.S. v. Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), and R.H. v. Department of Children & Family Services, 860 So.2d 986 (Fla. 3d DCA 2003), and the Fifth District’s opinion in Department of Children & Families v. A.S., 927 So.2d 204 (Fla. 5th DCA 2006), to the extent that those cases require the Department to present evidence as to the grounds for termination once a consent for nonappearance is entered.

Reversed and remanded; conflict certified.

FULMER and VILLANTI, JJ., Concur.

      . We note that the State is correct in its assertion that the Mother did not raise this issue below; however, given the fundamental nature of a parent's right to the care, custody, and control of his or her child, see Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Mother alleges fundamental error and therefore may raise it for the first time on appeal.


author: PER CURIAM.

text:
    Stephen WINTER, Appellant, v. Robert HAGER, Jon Miller, Bruce Carr, Emerald Shares, LLC, South Elmwood Realty Co., Inc., Safe Harbour World Health & Healing Foundation, China America Group, Inc., and David Knoll, Appellees.
    No. 2D08-593.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2008.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant.
    Philip J. Crowley and Tracy Martinell Henry of Hinshaw & Culbertson LLP, Tampa, for Appellees Robert Hager, Jon Miller, and Bruce Carr.
    No appearance for remaining appellees.
   PER CURIAM.

Appellees Robert Hager, Jon Miller, and Bruce Carr filed suit against appellant Stephen Winter and his co-defendants, appel-lees Emerald Shares, LLC, South Elm-wood Realty Co., Inc., Safe Harbour World Health & Healing Foundation, China America Group, Inc., and David Knoll, claiming breach of contract, unjust enrichment, and account stated. The suit was based on a loan to Emerald Shares, LLC that was allegedly guaranteed by Mr. Winter and his co-defendants. Attached to the complaint was the primary evidence: the promissory note of Emerald Shares for one million dollars and the guaranties of the defendants. Mr. Winter’s alleged personal payment guaranty consisted of ten pages of which only the last, the signature page, contained a fax notation showing that it was sent from Mr. Winter’s home telephone number. After several pretrial motions and discovery, the plaintiffs moved for summary judgment, despite the fact that some motions had not yet been ruled upon. Mr. Winter opposed the motion for summary judgment, claiming, among other things, that what he signed was not a personal guaranty but an agreement to grant the plaintiffs a shared lien on a parcel of real estate. The trial court granted the summary judgment and entered judgment in favor of the plaintiffs. We reverse.

We are cognizant of the fact that immediately above Mr. Winter’s signature on the last page of the alleged guaranty appears the following: “IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty as a sealed instrument the day and year first above set forth[.]” Mr. Winter testified in deposition that he did not realize, not having the remaining pages before him when he signed this page and faxed it to the plaintiffs, that this was a personal guaranty and not the agreement for the shared lien position he had negotiated. Several other witnesses, whose sworn statements were presented to the trial court, corroborated Mr. Winter’s understanding. This evidence shows that a disputed, material fact existed, including receipt of an email containing the entire ten-page guaranty. It was, thus, error for the trial court to grant summary judgment at this stage. See Brakefield v. CIT Group/Consumer Fin., Inc., 787 So.2d 115, 116 (Fla. 2d DCA 2001) (reversing summary judgment because movant had not “demonstrated conclusively and with certainty that [the non-movant] could not raise any genuine issues of material fact”).

Summary judgment reversed and cause remanded for further proceedings.

FULMER, CASANUEVA, and KELLY, JJ., Concur.


text:
    In the Interest of D.Y. and J.R., children. T.R., Appellant, v. Department of Children and Family Services and Guardian ad Litem Program, Appellees.
    No. 2D08-2696.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2008.
    David A. Dee, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and, Kelly R. Schaeffer Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Ama N. Appiah, Appellate Counsel, Guardian ad Litem Program, Orlando, for Appellee Guardian ad Litem Program.
   PER CURIAM.

T.R., the Mother of D.Y. and J.R., appeals an order terminating her parental rights. We affirm on all grounds, including the Mother’s argument that we should reverse due to the alleged ineffectiveness of her trial counsel. Even if the ineffectiveness argument is cognizable in this direct appeal, the record does not contain sufficient information to enable us to determine the merits of the claim. See L.H. v. Dep’t of Children & Families (In re R.H.), 995 Solid 583 (Fla. 5th DCA 2008).

Affirmed.

DAVIS, SILBERMAN, and VILLANTI, JJ., Concur.

      . Our decision should not be interpreted as resolving the question of whether an ineffectiveness of counsel claim may, in fact, be brought in a direct appeal in a termination case.


author: VILLANTI, Judge.

text:
    J.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1929.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2008.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

J.C. appeals the order of restitution entered after he pleaded no contest to one count of grand theft based on his theft of four pocket bikes from store owner Emmett Bradbury. J.C. argues that because Mr. Bradbury purchased the bikes wholesale and could not sell them at their marked retail prices, restitution should have been limited to the wholesale price of the bikes. We hold that the trial court did not abuse its discretion in valuing the bikes at a discounted retail price, and we therefore affirm.

The testimony at the restitution hearing established that Mr. Bradbury owned a retail store called the Roustabout Shop from which he sold both new and used items. Among the items in his inventory were four pocket bikes, which are small off-road motorbikes. Mr. Bradbury testified that he had purchased three of the bikes for $150 each and had them marked for sale at $450 each. He paid $300 for the fourth bike and had it marked for sale at $850. On November 11, 2007, J.C. and several other juveniles broke into the Roustabout Shop, damaging the doors and stealing the four pocket bikes. All four of the bikes were new when they were stolen.

During his testimony, Mr. Bradbury admitted that he had purchased the bikes two years earlier and could no longer get parts for them. He also testified that he had had several offers to purchase the bikes for $100 less than the marked retail price. However, Mr. Bradbury testified that he had refused to accept this discounted price because he did not need to sell the bikes and he was confident that the bikes would sell at their marked retail prices during the upcoming holiday season. J.C. offered no countervailing evidence as to the value of the bikes.

After the conclusion of the testimony at the restitution hearing, the State argued that restitution for the bikes should be awarded based on the marked retail price. J.C. argued that, as a matter of law, Mr. Bradbury should be awarded no more than the wholesale price he had actually paid to purchase the bikes. The trial court rejected both of these arguments and awarded restitution based on the discounted price offered to Mr. Bradbury by the recent interested buyers. J.C. now appeals, challenging the amount of restitution awarded for the bikes.

The wholesale versus retail issue raised in this appeal was directly addressed by this court in Garrison v. State, 553 So.2d 1377 (Fla. 2d DCA 1989). In that case, Garrison pleaded no contest to a charge of grand theft based on allegations that he stole fifteen portable trenching machines from the victim. Id. at 1378. At the restitution hearing, the State presented evidence that the victim manufactured and sold two different trenching machine models. One model cost $900 to manufacture, sold wholesale for $1695, and sold retail for $1995. Id. The other model cost $700 to manufacture, sold wholesale for $1395, and sold retail for $1695. Id. The State also presented evidence that the victim sold eighty percent of his machines retail and twenty percent wholesale. Id. The trial court awarded restitution based on the retail sales price of the stolen machines. Id. Garrison appealed, arguing that this was impermissible because it awarded the victim restitution for lost profits. Id.

On appeal, this court stated that the trial court had before it “evidence concerning three markets: 1) the market in which the victim purchased the materials for his machines; 2) the market in which the machines sold at wholesale; and 3) the market in which the machines sold at retail.” Id. In finding that the trial court had not abused its discretion in using the retail market to set restitution, this court noted that while the cost to manufacture the machines may have been their original cost, the machines were “used” by the victim as inventory for sale. Id. Therefore, the victim was properly permitted to present evidence that the stolen inventory had a value greater than simply its replacement cost. Id. Moreover, this court stated that

[ujnder the evidence presented to the trial court, that court could reasonably conclude that Mr. Garrison effectively stole thirteen retail sales from the victim, and that the victim was entitled to be reimbursed for those thirteen retail sales at their fair market value established by the retail price.

Id. at 1379. Accordingly, because the State established that the victim sold some of the machines in the retail market and because the defendant presented no evidence to show that the retail market was not a relevant market for establishing fair market value, the retail price of the machines was a proper measure of restitution. Id.; compare Nix v. State, 604 So.2d 920, 922 (Fla. 1st DCA 1992) (holding that the retail value of stolen diesel fuel, rather than its wholesale replacement cost, was the proper measure of restitution when the defendant stole the fuel from his employer, a fuel retailer), with Rodriguez v. State, 956 So.2d 1226, 1231-32 (Fla. 4th DCA 2007) (holding that wholesale price, rather than retail price, was the proper measure of restitution when the only evidence presented at the restitution hearing showed that the victim would have sold the stolen product to distributors and so would have received only the wholesale price).

Here, Mr. Bradbury testified that he originally purchased fifteen pocket bikes, paying $150 for one model bike and $300 for the other model. He testified that the bikes were marked for sale at $450 for the cheaper model and $850 for the other and that he had sold all but these four bikes at their marked retail prices. Mr. Bradbury further testified that his most recent potential buyers had offered him $100 less than the marked retail price but that he was not willing to sell the bikes for this discounted price because he would rather wait for the holiday season and try to get the full marked price.

From this testimony, the trial court had three values from which to choose: the wholesale cost Mr. Bradbury paid to purchase the bikes, the retail price Mr. Bradbury was asking for the bikes, and the discounted price recently offered to Mr. Bradbury by several potential buyers. The trial court chose to award restitution based on the discounted price offered to but rejected by Mr. Bradbury, primarily on the basis that this appeared to be the price that a “willing buyer” would pay for the bikes at the time closest to the theft.

In using this value to award restitution, the trial court did not abuse its discretion. See State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991) (holding that the standard of review of an order on restitution is abuse of discretion); Johnson v. State, 942 So.2d 415, 416 (Fla. 2d DCA 2006) (same). Here, as in Garrison, the State proved that the bikes were being “used” by Mr. Bradbury as inventory and that, as inventory, they had a greater value than simply their wholesale replacement cost. The trial court in this case could have reasonably concluded that, like the defendant in Garrison, J.C. stole four retail sales from Mr. Bradbury. While J.C. is correct that the evidence could have supported an award of restitution based on the wholesale cost of the bikes, given the totality of the evidence presented, we cannot say that the trial court abused its discretion by awarding Mr. Bradbury restitution based on the fair market value as established by the most recently offered discounted retail prices. See § 775.089(7), Fla. Stat. (2007) (providing that “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence”). Accordingly, we affirm the restitution order.

Affirmed.

FULMER and STRINGER, JJ., Concur.

      . The total amount of restitution awarded was $2448.34. This figure included amounts for the repairs to the damaged doors plus Mr. Bradbury’s lost wages less the amount he received when he sold the recovered bikes for salvage. However, the only portion of the restitution award J.C. challenges in this appeal is the value attributed to the pocket bikes.


author: CORTINAS, J. RAMIREZ, J.,

text:
    The STATE of Florida, Appellant, v. Ravann WEAVER, Appellee.
    No. 3D08-754.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2008.

    Rehearing and Rehearing En Banc Denied March 17, 2009.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellee.
    Before RAMIREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

We find that the trial court erred by sentencing defendant below the three-year minimum mandatory sentence required by statute. § 775.087(2)(a)(1)r, Fla. Stat. (2005).

The State charged defendant, a convicted felon, with violating sections 790.23(1), Fla. Stat. (2004) and 775.087, Fla. Stat. (2005), for carrying a concealed weapon during the commission of a crime. In exchange for his guilty plea, the State had offered defendant eighteen months in prison with no credit for time served and had agreed to waive the applicable three-year minimum mandatory sentence. Defendant did not accept the State’s offer. Without explanation and without the State’s acquiescence, the judge then offered defendant eighteen months in prison with credit for time served. In response, the State objected to the court’s plea offer and withdrew from plea negotiations.

During the plea colloquy between the court and the defendant, during which the State remained silent, the trial court inquired as follows:

Court: Do you understand if this case had proceeded to trial the maximum sentence you were facing was fifteen years in state prison with a three-year minimum mandatory?
Defendant: Right.

At the conclusion of the plea colloquy, the trial court sentenced defendant to eighteen months in prison with credit for time served.

We find that the court was without discretion to deviate downward from the statutory minimum. § 775.087(2)(a)(1)r, Fla. Stat. (2005); see State v. Davis, 834 So.2d 898, 899 (Fla. 3d DCA 2002). By doing so, the court erred as a matter of law. See State v. Garcia, 923 So.2d 1186, 1187 (Fla. 3d DCA 2006).

Accordingly, we vacate the sentence and remand for re-sentencing. On remand, the defendant shall be afforded the opportunity to withdraw his plea.

Sentence vacated and case remanded with directions.

SCHWARTZ, Senior Judge, concurs.

RAMIREZ, J.,

(dissenting).

I dissent because I do not believe the state preserved for review the issue of three-year minimum mandatory sentence.

At the plea hearing, the following discussion occurred:
Mr. Davis (Defense Attorney): Judge, Mr. Weaver is prepared to take the State’s offer. The only issue in this case is whether or not he’s going to be allowed credit for time served.
The Court: This was one where the State agreed to waive the minimum mandatory, but they made an offer of 18 months without credit time served, right?
Mr. Davis: At this point we’d ask Your Honor to give him credit for time served.
The Court: And the reason we waived the minimum mandatory was because
Ms. Kulick (Assistant State Attorney): Your Honor, it was really just a matter of judicial efficiency for the State- — for the sake of ...
The Court: So there wasn’t a valid legal reason for waiving ...
Ms. Kulick: No, Your Honor. I discussed this case at length with Howard Pole before there was an agreement of the waiver of the 3-year min/man, and the State still feels they can go forward and prove the case that the defendant was in possession of a firearm and he is a convicted felon. However, it was just as — you know, Mr. Davis in terms of us trying to work out a plea. I went to Mr. Pole with the counteroffer from Defense counsel, [sic].
The Court: A form, James.
Ms. Kulick: Mr. Pole did agree to waive that min/man — that 3-year minimum mandatory, but was — since the defendant scores 17.85 months, his offer was 18 months with no credit for time served.
The Court: Ail right. Hand that to Mr. Davis. If Mr. Davis will have Mr. Weaver go over and sign that plea agreement/rights form, I will give him the 18 months with credit for time served ...

Weaver then had a brief discussion with the trial court. Then, after an off the record discussion, the following occurred:

Ms. Kulick: Your Honor, just for the record the State has to object to a court plea at this time, and we are withdrawing from any negotiations.

There was no further mention of the minimum mandatory sentence for possession of a firearm. The sentencing form reads “STATE WAIVES ANY MINIMUM MANDATORY FOR FIREARM,” and does not include a checked box for possession of a firearm, under section 775.087(2)(a)1, Florida Statutes (2007).

I agree that a “general objection” is sufficient when the basis for that objection clearly appears from the context. State v. Roberts, 963 So.2d 747, 748 (Fla. 3d DCA 2007); State v. Johnson, 990 So.2d 1115, 1116 (Fla. 3d DCA 2008). From the transcript quoted above, the only objection that clearly appears from the context is that the State was complaining about the court giving Weaver credit for time served. I believe that the State’s general objection was insufficient to call the trial court’s attention to the waiver of the three-year minimum mandatory. The sentence imposed by the court was essentially the same sentence the State offered, except that the judge included credit for time served. The State never rescinded its waiver of the three-year minimum mandatory.

This case is indistinguishable from State v. Aguilar, 775 So.2d 994 (Fla. 3d DCA 2000). In that case, at a plea conference, the State offered Aguilar a plea bargain to ten years in prison to be followed by a lengthy probation, which was a downward departure from the guidelines. Id. at 995. Aguilar pled guilty to the court without a guaranteed sentence. Id. After the sentencing hearing, the State requested fifteen years to be followed by ten years of probation. Id. Aguilar was given a sentence of six years in prison followed by twenty years of probation. Id. The State appealed, arguing that the reasons for departure were insufficient. Id. We affirmed the downward departure sentence, noting that the State, at the plea conference, was offering a downward departure sentence, that all parties agreed a downward departure sentence was appropriate, and that the State never asked the trial court to impose a guidelines sentence. Id. at 996. We noted that the disagreement was not on the propriety of the departure, but on the extent of departure. Id. Once the State and Weaver agreed that a departure from the sentencing guidelines was appropriate, the extent of the departure was within the sound discretion of the trial judge. Id.

Likewise, a reading of the transcript reveals that the State and Weaver had agreed to a waiver of the minimum mandatory, and to a sentence of eighteen months in prison. The only disagreement was to the credit for time served. To be consistent with Ag-uilar, we should hold that once the State and Weaver had agreed to a waiver of the minimum mandatory and the eighteen years in prison, there was no legal impediment for the trial court to exercise its discretion as to the issue of credit for time served.