author: HARRIS, J.

text:
    NAZIA, INC., Appellant, v. AMSCOT CORPORATION, Appellee.
    Case No. 5D18-2502
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019 Rehearing Denied July 12, 2019
    Alan B. Gest, of Alan B. Gest, P.A., Aventura, for Appellant.
    John M. Brennan and John M. Brennan, Jr., of GrayRobinson, P.A., Orlando, for Appellee.
   HARRIS, J.

Nazia, Inc. ("Nazia") appeals a temporary injunction requiring it to remove construction that allegedly interfered with a license that gave Amscot Corporation ("Amscot") the right to use parking spaces on Nazia's property. For the reasons that follow, we hold that the trial court abused its discretion in granting the temporary injunction and reverse.

Nazia owns property that shares a southern border with property on which Amscot operates its business. In 2008, the parties entered into an agreement entitled "irrevocable license" that permitted Amscot to "use" ten of Nazia's parking spaces for $ 6000 annually. The agreement referenced a sketch purporting to show the location of a designated parking area for the licensed parking spaces. Subsequently, the parties amended the agreement to allow Amscot to use twenty parking spaces for $ 27,000 annually. The amended licensing agreement referenced an exhibit showing an extended version of the original designated parking area along the southern border of Nazia's property and specifically authorized Amscot to "erect and maintain professional signs indicating Amscot Customer and Employee Parking at the Parking Lot."

In 2018, Nazia began construction of a building on the southern edge of its real property that Amscot claimed interfered with the operation of its business. When Nazia failed to comply with Amscot's demand letter asking Nazia to cease construction, Amscot promptly brought an action seeking temporary and permanent injunctive relief.

At the hearing on the motion for temporary injunction, Amscot's senior vice president testified about the amended licensing agreement and stated that the twenty parking spaces were in the designated parking area along the fence line separating the Nazia property and the Amscot property. He also stated that Amscot placed security lights along the northern side of the Amscot building to illuminate the parking spaces to provide security, and that Amscot constructed a sidewalk between the properties for its customers and employees to use. He further explained that because the designated parking area was well lit and Amscot had exterior building cameras observing the area, it provided safe access to the Amscot building. He complained that the construction took up some of the parking spaces and blocked the sidewalk between the properties. However, he admitted that Amscot customers and employees used parking spaces throughout the Nazia property.

The president of Nazia testified and rejected Amscot's contention that there were twenty parking spaces in the designated parking area. Specifically, he appeared to contest the accuracy of the exhibit attached to the amended licensing agreement, explaining "[i]t was just a sketch to give an understanding to [Amscot] that [Amscot] can start parking here if [Amscot would] like." He explained, in relevant part, that Amscot could only park ten to twelve cars in the designated parking area before construction, because there was a light post and a tree blocking a significant portion of the border between the properties, and that the construction blocked only one or two parking spaces. He further testified that construction began in January 2018, that Nazia had to date spent $ 200,000 on the construction, that Amscot never objected to the construction until June 2018, and agreed that Amscot customers parked throughout Nazia's parking lot-not just in the designated parking area.

Following the hearing, the trial court entered a temporary injunction in favor of Amscot, finding that "Nazia's willful and continuing encroachment, trespass, and interference with Amscot's License is properly subject to temporary and permanent injunctive relief." The court temporarily enjoined Nazia from any and all construction on the parking lot and ordered Nazia to return the parking lot to its original condition and restore Amscot to its parking rights under the license within thirty (30) days. Nazia appealed.

We review de novo a trial court's ruling on a temporary injunction pertaining to purely legal matters. Suggs v. Sw. Fla. Water Mgmt. Dist., 953 So.2d 699, 699 (Fla. 5th DCA 2007). On appeal, Nazia argues that the trial court erred in imposing a temporary injunction because Amscot only possessed a license to utilize the property, which could legally be revoked at any time, and that the temporary injunction went beyond simply preserving the status quo and awarded Amscot the same relief it would have received in a final court order of permanent injunction. Amscot responds that it possessed a lease over the designated parking area and spent substantial sums to use the property. We agree with Nazia. From our review of the record, we conclude that Amscot is unlikely to succeed on the merits and that the temporary injunction would not preserve the status quo, warranting reversal.

"[A] temporary injunction is an extraordinary remedy that can only be granted if the movant establishes (1) a likelihood of irreparable harm, (2) unavailability of an adequate legal remedy, (3) substantial likelihood of succeeding on the merits, and (4) support for the injunction within considerations of public interest." Phantom of Clearwater, Inc. v. Pinellas Cty., 894 So.2d 1011, 1014 (Fla. 2d DCA 2005). "The primary purpose of entering a temporary injunction is to preserve the status quo pending the final outcome of a cause." Yardley v. Albu, 826 So.2d 467, 470-71 (Fla. 5th DCA 2002). "The status quo which will be preserved by a preliminary injunction is the last, actual, peaceable, noncontested condition which preceded the pending controversy."

Chi. Title Ins. Agency of Lee Cty. v. Chi. Title Ins. Co., 560 So.2d 296, 297 (Fla. 2d DCA 1990). "A preliminary injunction is improperly entered when it bypasses the procedures for a permanent injunction and preliminarily grants the same relief that would have been given in a final order of permanent injunction." Charlotte Cty. v. Vetter, 863 So.2d 465, 469 (Fla. 2d DCA 2004) (citing Lee County Elec. Co-op., Inc. v. Cook, 604 So.2d 911, 913 (Fla. 2d DCA 1992) ).

We first look at the relationship between the parties. The fact that an agreement is called a " 'license' or contains a conclusory provision that the parties have a relationship of licensor and licensee is not determinative. Rather, the proper characterization of the agreement is discerned by the actual terms, conditions, rights and obligations expressly set forth in the agreement." Midgard Mgmt., Inc. v. Park Ctr. Med-Suites, LLC, 114 So.3d 302, 307 (Fla. 3d DCA 2013). "[A] license is not an interest in real property; it merely gives one the authority to do a particular act on another's land." Keane v. President Condo. Ass'n, 133 So.3d 1154, 1156 (Fla. 3d DCA 2014) (holding that where parties stipulated that agreement permitting condominium unit owner to use parking space was a license, condominium association could revoke license at will). "It conveys no interest in the land and may not be assigned or conveyed by the licensee." Brevard Cty. v. Blasky, 875 So.2d 6, 12 (Fla. 5th DCA 2004).

A "lease," on the other hand, involves "a conveyance by the owner of an estate to another of a portion of his interest therein for a term less than his own [which] passes a present interest in the land for the period specified." Outdoor Media of Pensacola, Inc. v. Santa Rosa Cty., 554 So.2d 613, 615 (Fla. 1st DCA 1989). Generally, whether an agreement is a license or a lease hinges on whether it is exclusive. See, e.g., Id. at 616 (determining that subject agreement was a lease because county granted the company "exclusive right to place signs on county rights of way for a three-year period"); Randall Indus., Inc. v. Lee Cty., 307 So.2d 499 (Fla. 2d DCA 1975) (holding that license agreement giving taxi company exclusive use of airport parking spaces was a lease that required competitive bidding).

Here, Amscot had no more than a license. At best, the amended licensing agreement stated that Amscot has the right to erect signs stating "Amscot Customer and Employee Parking" in the parking lot. However, this cannot overcome the clearly limited language of the amended licensing agreement that only authorized Amscot to "use" the parking spaces. In addition, despite being labelled "irrevocable", the license in this case by its clear terms is not permanent and either party can opt out. The fact that Amscot paid a substantial sum to use the parking spaces does not alter our analysis. To qualify as a true irrevocable license, Amscot needed to make a substantial investment in the property's improvement. See Dance v. Tatum, 629 So.2d 127, 128-29 (Fla. 1993). Here, the only evidence that Amscot invested in improving the property lies in a provision of the amended licensing agreement which states that "Amscot has contributed Two Thousand Two Hundred and No/100 Dollars ($ 2,200) for the repair and installation of fencing along the rear of the Land and Amscot's Land" and testimony that Amscot constructed a walkway between the properties. This was hardly a substantial investment, especially compared to the $ 200,000 Nazia allegedly spent on construction.

We also agree with Nazia's argument that this temporary injunction improperly alters the status quo. In its current form, the temporary injunction instructs Nazia to return the parking lot to its "original condition." Read in context, the phrase "original condition" almost certainly refers to the parking lot's condition under which Amscot's customers and employees used the parking lot prior to construction in light of the temporary injunction's command to "restore AMSCOT to its parking rights under the License within thirty (30) days." However, this instruction would not preserve the status quo. From a review of the record, construction began as early as January 2018. This would mean that Amscot waited up to six months before providing Nazia with its formal notice and demand to cease construction in June 2018. Therefore, forcing Nazia to remove its construction would not preserve the status quo because peace may have existed between the parties for up to six months before any conflict actually arose. See Chi. Title Ins. Agency of Lee Cty., 560 So.2d at 297. Further, forcing Nazia to return the parking lot to its original condition impermissibly grants Amscot the full relief it requested, bypassing the procedures required for a permanent injunction. See Vetter, 863 So.2d at 470.

For the foregoing reasons we reverse this order granting Amscott a temporary injunction.

REVERSED.

EVANDER, C.J. and LAMBERT, J., concur.


source: Caselaw Access Project

author: ROTHSTEIN-YOUAKIM, Judge.

license: Public Domain

text:
    Joseph WEITZ, DOC #139777, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-72
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019
    Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

In this appeal of a criminal judgment and sentence following this court's partial grant of Joseph Weitz's petition alleging ineffective assistance of appellate counsel, see Weitz v. State, 229 So. 3d 872, 873 (Fla. 2d DCA 2017), Weitz argues that his dual convictions for unlawfully using a two-way communications device, see § 934.215, Fla. Stat. (2011), and for transmitting material harmful to minors via electronic mail, see § 847.0138(2), Fla. Stat. (2011), violate double jeopardy because the elements of the former are subsumed in the elements of the latter. Upon de novo review of this issue of first impression, see State v. Shelley, 176 So. 3d 914, 918 n.4 (Fla. 2015), we agree with Weitz and vacate his conviction and sentence for unlawfully using a two-way communications device.

The constitutional prohibition against double jeopardy does not preclude multiple punishments for multiple offenses arising out of the same conduct in a single criminal episode if the legislature intends to authorize separate punishments. See Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). Absent a clear statement of legislative intent, when a defendant is convicted of multiple offenses arising out of the same conduct in a single criminal episode, we must determine whether those offenses violate the "same elements" test under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or whether multiple punishments are otherwise precluded under section 775.021(4), Florida Statutes (2011). See Valdes, 3 So. 3d at 1070.

As an initial matter, we must assume that Weitz's convictions arose out of the same conduct in a single criminal episode. The information alleged, in pertinent part, that Weitz, "on or about March 2, 2012, in the County of Polk and State of Florida, did, on one or more occasions know or believe that he was transmitting an [sic] information, or data that was harmful to minors ... to [the victim], known by the defendant to be a minor." The information alleged further that Weitz, "on or about March 2, 2012, in the County of Polk and State of Florida, did, on one or more occasions use a two-way communications device to facilitate or further the commission of a felony, to-wit, Transmitting Material Harmful to Minors." Although both counts allege conduct occurring "on one or more occasions" during the same time period, that language is too ambiguous to allow us to discern whether they were premised on separate conduct. See Lee v. State, 258 So. 3d 1297, 1303-04 (Fla. 2018) (holding that an information's allegations that the unlawful use of a two-way communications device and the solicitation offense occurred "on one or more occasions between December 22, 2013, and January 1, 2014," did not clearly reflect that the charges relied on separate conduct). Consequently, we must assume that they were premised on the same conduct. See id.; Batchelor v. State, 193 So. 3d 1054, 1058-59 (Fla. 2d DCA 2016).

Nothing in either section 934.215 or in section 847.0138(2) explicitly authorizes multiple punishments when the same conduct violates both statutes. Accordingly, we look to Blockburger, as codified at section 775.021(4), which provides:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

In determining whether each offense requires proof of an element that the other does not, we confine our analysis to the statutory elements of each offense without regard to the specific charges or to the evidentiary record. See Roughton v. State, 185 So. 3d 1207, 1210 (Fla. 2016) ("[T]he plain language of section 775.021(4)(a) ... requires that the elements of the offenses be compared 'without regard to the accusatory pleading or the proof adduced at trial .' "); State v. Carpenter, 417 So. 2d 986, 988 (Fla. 1982) ("In applying the Blockburger test the courts look only to the statutory elements of each offense and not to the actual evidence to be presented at trial or the facts as alleged in a particular information." (citing Whalen v. United States, 445 U.S. 684, 685 n.8, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) )).

The elements of section 847.0138(2) are that the defendant (1) knowingly sent an image, information or data that he or she knew or believed to be harmful to minors; (2) sent the image, information, or data to a specific individual who was either actually known by him or her to be a minor or believed by him or her to be a minor; and (3) sent the image, information or data via electronic mail. Fla. Std. Jury Instr. (Crim.) 11.21. The elements of section 934.215 are "(1) the use of a two-way communications device (2) for the purpose of facilitating or furthering the commission of any felony offense." Exantus v. State, 198 So. 3d 1, 2 (Fla. 2d DCA 2014).

Section 934.215 does not require proof that any content was sent to anyone via any mechanism, and so section 847.0138(2) requires proof of multiple elements that section 934.215 does not. But Weitz argues that the third exception-that the elements of the lesser offense are subsumed by the elements of the greater, section 775.021(4)(b)(3) -applies because the elements of section 934.215 are subsumed by the elements of section 847.0138(2). That exception "applies only to necessarily lesser included offenses," i.e., "those [offenses] in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial."

State v. Florida, 894 So. 2d 941, 947 (Fla. 2005), receded from on other grounds by Valdes, 3 So. 3d at 1077 ; see also State v. Paul, 934 So. 2d 1167, 1175 (Fla. 2006) (same), receded from on other grounds by Valdes, 3 So. 3d at 1077 ; Boland v. State, 893 So. 2d 683, 685-86 (Fla. 2d DCA 2005) ("A necessarily lesser included offense is one in which 'the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence.' Stated another way, a crime 'is a necessarily lesser included offense if, based on the statutes themselves, a defendant cannot possibly avoid committing the offense when the other crime in question is perpetrated.' " (citation omitted) (quoting Overway v. State, 718 So. 2d 308, 310 (Fla. 5th DCA 1998) )).

We agree with Weitz that a violation of section 934.215 is a necessarily lesser included offense of a violation of section 847.0138(2). Chapter 934 does not define the term "two-way communications device" for purposes of section 934.215, the term is not used anywhere else within chapter 934, and no case has yet defined it. Nonetheless, we conclude that transmitting an image, information, or data via electronic mail-a mechanism for communication by which images, information, and data can be both sent and received and which includes emails, instant messages, and text messages, see Simmons v. State, 944 So. 2d 317, 325 & n.7, 329 (Fla. 2006) ; Duclos-Lasnier v. State, 192 So. 3d 1234, 1239-41 (Fla. 2d DCA 2016) -necessarily involves the use of a "two-way communications device." We do so based on section 934.215 itself, which provides only a single example of a two-way communications device along with the caveat that such a device is "not limited to" that example, and on the plain meaning of "device":

n. ... 1 a thing devised; plan; scheme, esp., a sly or underhanded scheme; trick 2 a mechanical invention or contrivance for some specific purpose 3 something used to gain an artistic effect [rhetorical devices ] 4 an ornamental figure or design 5 a design, often with a motto, on a coat of arms; heraldic emblem 6 any motto or emblem 7 [Archaic] the act or power of devising --leave to one's own devices to allow to do as one wishes.

Webster's New World College Dictionary 377 (3d ed. 1996) (emphasis added). The second definition most clearly fits here.

Relying on a statute from another state, the State asserts that a two-way communications device transmits in real time and that "electronic mail" does not necessarily contemplate real-time communication. The State, however, identifies nothing in section 934.215 itself or in Florida law in general to support this limitation, and we will not read such a limitation into section 934.215. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) ("We are not at liberty to add words to statutes that were not placed there by the Legislature."). Section 934.215 prescribes only the directions in which the communications must travel, not the time they take to get there.

Finally, the State asserts that section 934.215 does require an element that section 847.0138 does not because it requires that the defendant "knowingly use a two-way communications device." The State cites no authority for attributing a mens rea requirement to the use of such a device, and in fact, there is none. See Exantus, 198 So. 3d at 2.

We therefore hold that Weitz's dual convictions for transmitting material harmful to minors and unlawful use of a two-way communications device violate double jeopardy because the former subsumes the latter. Accordingly, we vacate Weitz's conviction and sentence for unlawfully using a two-way communications device, which is the lesser of the two offenses. See Shelley, 176 So. 3d at 919-20.

Vacated in part.

NORTHCUTT and MORRIS, JJ., Concur.

      Indeed, the statutory language of section 934.28, Florida Statutes (2011), suggests a legislative intent to the contrary, as it provides that "[t]he remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections." Cf. M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996) (holding that the legislature "clearly stated its intent to punish possession of a firearm by a minor in addition to any other firearm-related offenses" by stating that the possession statute is " 'supplemental to all other provisions of law relating to the possession, use, or exhibition of a firearm' " (emphasis omitted) (quoting § 790.22(7), Fla. Stat. (Supp. 1994))).

      For example, under the plain language of section 934.215, one could be convicted of violating that statute by trading new cellular telephones for illegal drugs. Cf. Smith v. United States, 508 U.S. 223, 228-29, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (holding that exchanging a firearm for narcotics constitutes "use" of a firearm "in relation to" a drug trafficking crime because the firearm was actively employed, albeit not as a weapon, and was integral to the transaction).

      Because "[l]esser included offenses are determined based on the elements of the offenses, not on the penalties attached," Carle v. State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008), it does not matter that offenses under both section 847.0138(2) and section 934.215 are third-degree felonies.

      In Valdes, 3 So. 3d at 1077, the supreme court receded from language in Paul, Florida, and Gordon v. State, 780 So. 2d 17 (Fla. 2001), regarding how to analyze the exception in section 775.021(4)(b)(2). Valdes does not address the exception in section 775.021(4)(b)(3), so the analysis of that exception in Paul and Florida remains good law.

      We note that a violation of section 934.215 is not listed as a lesser included offense in the standard jury instruction for section 847.0138(2), see Fla. Std. Jury Instr. (Crim.) 11.21, but "the Schedule of Lesser Included Offenses included in the Florida Standard Jury Instructions is not the final authority on lesser included offenses," Williams v. State, 957 So. 2d 595, 599 (Fla. 2007).


author: PER CURIAM.

text:
    James R. SABOFF, Appellant, v. Kathleen R. SABOFF, Appellee.
    Case No. 5D18-3123
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019 Rehearing Denied July 11, 2019 Rehearing Denied July 15, 2019
    Shannon L. Akins, of Law Offices of Shannon L. Akins, P.A., and David T. Roberts, of The Roberts Family Law Firm, P.A., Orlando, for Appellant.
    Shannon McLin Carlyle, of Florida Appeals, Orlando, for Appellee.
   PER CURIAM.

We affirm the trial court's order granting a new trial. See § 59.04, Fla. Stat. (2018) ("Upon the entry of an order granting a new trial, the party aggrieved may prosecute an appeal to the proper appellate court without waiting for final judgment ." (emphasis added)); see also Marley v. Saunders , 249 So. 2d 30, 32 (Fla. 1971) (holding that party had right of appeal from trial court's order for new trial on issue of liability only, notwithstanding that order was not final judgment). Here, the trial judge acknowledged on the record that there was no justification for his failure to rule on this case for over a year and a half after the parties' submittal of written closing arguments and proposed final judgments. See Johnson v. Johnson , So.3d 183 (Fla. 2d DCA 2018) (holding thirty-three-month delay in ruling unreasonable and unacceptable); McKenzie v. McKenzie , 672 So. 2d 48 (Fla. 1st DCA 1996) (holding one-year delay in ruling unreasonable).

On remand, we direct the case be promptly assigned to a new judge. McGoldrick v. McGoldrick , 940 So. 2d 1275, 1277 (Fla. 2d DCA 2006) (remanding for new trial before successor judge after delayed ruling). We encourage the successor judge to retry this case as soon as the interests of justice permit.

AFFIRMED; REMANDED FOR A NEW TRIAL BEFORE A SUCCESSOR JUDGE.

EVANDER, C.J., ORFINGER and WALLIS, JJ., concur.

      Subsequent to the appeal of the trial court's order granting a new trial, we relinquished jurisdiction to the trial court to consider Appellant's motion to bifurcate. The trial court then entered a partial final judgment dissolving the parties' marriage. That order is not the subject of this appeal.


author: COHEN, J.

text:
    David Anthony STOKES, Sr., Appellant, v. DEPARTMENT OF REVENUE and Lorie Elayne Loy, Appellees.
    Case No. 5D17-4002
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019 Rehearing Denied July 8, 2019
    Karen C. Ozyjowski, of Law Office of Karen C. Ozyjowski, P.A., Spring Hill, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Assistant Attorney General, Daytona Beach, for Appellee, Florida Department of Revenue.
    No Appearance for Appellee, Lorie Elayne Loy.
   COHEN, J.

David Anthony Stokes, Sr. appeals a final administrative paternity and support order entered by the Florida Department of Revenue ("DOR" or "the department") on behalf of Lorie Elayne Loy. He raises two issues on appeal: DOR's failure to transfer the administrative paternity and child support proceeding to the circuit court, and DOR's miscalculations of his child support and retroactive child support obligations. We reverse the order to the extent that it determines Stokes's child support obligations.

On November 3, 2016, DOR sent Stokes a notice of administrative proceeding to establish paternity and an order to appear for genetic testing. Pursuant to sections 409.256 and 409.2563, Florida Statutes (2017), the notice provided the methods to opt-out of DOR's administrative process to pursue the establishment of paternity and/or support in the circuit court. See § 409.256(4)(a) 12., Fla. Stat. (requiring party to file paternity or support action in circuit court and serve the department within twenty days after receipt of the initial notice); § 409.2563(4)(m) 3., Fla. Stat. (requiring party to request in writing that the department proceed in circuit court to determine support obligations or that party intends to address issues concerning parental rights or timesharing within twenty days after receipt of the initial notice); § 409.2563(4)(m) 4., Fla. Stat. (requiring party who opts-out pursuant to section 409.2563(4)(m) 3. to waive service of process within ten days after receipt of the department's petition). In response to DOR's notice, Stokes did not request that DOR transfer the matter, nor did he file a circuit court action. Instead, he contested the order for genetic testing and requested an informal review pursuant to section 409.256(5).

On December 13, 2016, DOR served Stokes with a second notice of the administrative paternity proceeding and genetic testing order. The notice contained the same opt-out provisions as the prior notice. Stokes did not respond, but he appeared for genetic testing, the results of which indicated that he was the child's biological father.

On March 1, 2017, DOR sent Stokes a notice of proceeding to establish administrative support order. The notice also provided the same opt-out methods to move the proceeding to the circuit court. On March 27, 2017, Stokes requested that the matter be "handled judicially and not administratively" pursuant to section 409.2563(4)(m) 3. Although untimely, DOR filed a petition to establish paternity, support, and other relief in the Hillsborough County Circuit Court. Upon filing the petition, DOR sent Stokes a notice of commencement of action and a request for waiver of service of process pursuant to section 409.2563(4)(m) 4. Stokes did not return the waiver, and DOR voluntarily dismissed the circuit court action.

DOR proceeded with its administrative child support action. It sent Stokes a proposed final administrative order indicating that Stokes's net monthly income was $ 5488.45. Stokes contested the proposed order and requested an administrative hearing on the matter, alleging that he was unemployed and received only $ 1474.20 in monthly unemployment compensation. He also filed a separate paternity action in the circuit court. Stokes served DOR with copies of his petition and a signed, notarized financial affidavit.

Pursuant to his request for a hearing, DOR transferred Stokes's administrative case to the Division of Administrative Hearings ("DOAH"). However, Stokes withdrew his request, and the administrative law judge relinquished jurisdiction to DOR. DOR rendered its final administrative paternity and support order, finding that Stokes was the child's biological father and ordering him to pay $ 1319.43 per month in child support as well as thirty-seven months of retroactive support, totaling $ 48,818.91. Stokes timely appealed.

First, Stokes argues that DOR should have terminated the administrative proceeding and transferred the matter to the circuit court. We find that Stokes failed to comply with the opt-out provisions in sections 409.256 and 409.2563.

After receipt of DOR's initial notice and subsequent notice, Stokes did not request to transfer the paternity action, nor did he timely file his own circuit court case. Instead, he requested an informal review of the genetic testing order pursuant to section 409.256(5). Thus, DOR did not err by continuing with the administrative proceeding to establish Stokes's paternity.

Stokes also failed to opt-out of the administrative child support proceeding. Although Stokes requested to move the action to circuit court pursuant to section 409.2563(4)(m) 3., he failed to waive service of process within ten days after receipt of the department's petition. See § 409.2563(4)(m) 4., Fla. Stat. Likewise, Stokes did not timely opt-out of the child support proceeding pursuant to section 409.256(4)(a) 12. because he failed to file his circuit court action and serve DOR with a copy of his petition within twenty days after receiving DOR's initial notice; instead, he waited approximately seven months. Thus, DOR properly continued with the administrative support proceeding because Stokes failed to timely opt-out and no order of support had been entered in Stokes's circuit court action. See Dep't of Rev. v. Graczyk, 206 So. 3d 157, 161 (Fla. 1st DCA 2016) (" Section 409.2563 confers concurrent jurisdiction on DOR/DOAH to establish child support obligations when there is no court order of support.").

Second, Stokes contends that the child support and retroactive support obligations in the final administrative order are unsupported because DOR failed to consider his financial affidavit, which indicated that he was unemployed and receiving only unemployment compensation.

This Court reviews a final administrative order establishing a child support obligation in accordance with section 120.68, Florida Statutes (2017). See § 409.2563(10)(a), Fla. Stat. "The standard of review of an administrative agency's adjudicative findings is whether those findings are supported by substantial competent record evidence." Cain v. Unemplmt. App. Comm'n, 876 So. 2d 592, 593 (Fla. 5th DCA 2004) (citations omitted).

In an administrative proceeding, child support is calculated according to the procedures in section 409.2563(5). Under that section, if a parent fails to provide DOR with a financial affidavit, DOR may proceed to calculate child support using sufficiently reliable information available from any source. § 409.2563(5)(a), Fla. Stat. A support order cannot stand if it is based on an inaccurate determination of a party's current income. Id. § 120.68(10) ; see Finch v. Dep't of Rev. ex rel. John-Jules, 65 So. 3d 1150, 1151 (Fla. 3d DCA 2011).

Here, DOR disregarded Stokes's financial affidavit and relied on other sources to determine his income. The record does not support DOR's assertion that Stokes never filed or served DOR a financial affidavit. Stokes served DOR a copy of his signed, notarized financial affidavit, and the record includes a certificate of service reflecting such. Additionally, DOR's case notes reflect that it received the affidavit prior to the DOAH hearing.

Regardless of whether Stokes withdrew his request for an administrative hearing, DOR was required to consider Stokes's reported income provided in his financial affidavit in its determination, if that information was credible. See Nerney v. Nerney, 752 So. 2d 706, 707 (Fla. 2d DCA 2000) (remanding for recalculation of child support award because guidelines worksheet failed to employ income figures consistent with those provided by the parties in their financial affidavits). Further, DOR was required to use Stokes's current monthly income to compute his retroactive support obligation. See § 61.30(17)(a), Fla. Stat. (2017) ; see also Finch, 65 So. 3d at 1151-52 (reversing retroactive award where administrative law judge failed to use obligor's income reported before service of the notice of proceeding, as well as income reported months after service).

Accordingly, we affirm the paternity determination and DOR's jurisdiction to adjudicate the questions of paternity and child support but reverse the order with respect to the child support obligations. Because it is unclear when Stokes began receiving unemployment compensation, we remand for a determination of Stokes's current ability to pay child support as well as reconsideration of arrearages in light of the information provided in Stokes's financial affidavit. Based on this reversal, we also reverse the income deduction order entered pursuant to the support order.

AFFIRMED in part, REVERSED in part, and REMANDED.

EVANDER, C.J., and EDWARDS, J., concur.

      Stokes does not contest the paternity determination on appeal.

      While most of the administrative and judicial activity occurred in Hillsborough County, Stokes resides in Hernando County, which is within the jurisdictional boundaries of this Court pursuant to section 120.68(2)(a), Florida Statutes (2017).

      Although Stokes untimely filed his financial affidavit with DOR, DOR accepted Loy's financial affidavit, which was also untimely filed, and used those income figures to determine Loy's income.


author: KELLY, Judge.

text:
    David EBELING and Robert A. Ebeling, Appellants, v. SUNTRUST BANK, a Georgia Banking Corporation, AS TRUSTEE OF the RICHARD W. KOHLER TRUST; John Chambers, as personal representative of the Estate of Jean M. Kohler Mueller; Richard D. Jensen ; Daniel R. Jensen; E. Wesley Barker; Rebecca G. Ebeling; Peter M. Ebeling; Billy W. Rodgers; Cherie Lynn Christensen; Steven D. Rodgers; Sheila E. Rodgers; Ashley G. Rodgers; Brady Joe Davis; Joshuah Paul Davis; Sara Nienader; Frederick Carrington, as guardian ad litem for unknown and unborn who may have an interest in this litigation, Appellees.
    John Chambers, as personal representative of the Estate of Jean M. Kohler Mueller, deceased, Appellant, v. SunTrust Bank, a Georgia Banking Corporation, as trustee of the Richard W. Kohler Trust; Richard D. Jensen ; Daniel R. Jensen; E. Wesley Barker; Rebecca G. Ebeling; Peter M. Ebeling; Billy W. Christensen; Steven D. Rodgers; Cherie Lynn Rodgers; Sheila E. Rodgers; Ashley G. Rodgers; Brady Joe Davis; Joshuah Paul Davis; Sara Nienader; Frederick Carrington, as guardian ad litem for unknown and unborn who may have an interest in this litigation, Appellees.
    Case No. 2D17-3434 Case No. 2D17-4510
    District Court of Appeal of Florida, Second District.
    Opinion filed June 7, 2019
    Brandon D. Bellew and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for David Ebeling and Robert A. Ebeling.
    Edward W. Dougherty, Jr. of Edward W. Dougherty, Jr., PA, Tallahassee, for John Chambers.
    Joseph W. Fleece, III, and Stephen M. Dennis of Legacy Protection Lawyers, St. Petersburg, for Richard Jensen and E. Wesley Barker.
    Robert M. Ervin, Jr. of Ervin Kitchen & Ervin, Tallahassee, for SunTrust Bank.
    Frederick Carrington of Law Office of Fred Carrington PA, Newberry, for Appellee Unknown Beneficiaries.
    No appearance for remaining Appellees.
   KELLY, Judge.

John Chambers, as the personal representative of the Estate of Jean M. Kohler Mueller, appeals from the summary final judgment determining that the corpus of the Richard W. Kohler Trust should be distributed to contingent beneficiaries named in the Trust rather than to Ms. Mueller's estate. The facts before the trial court were undisputed, the only issue being the proper construction of the Trust. We review the trial court's decision construing the terms of the Trust de novo, and we do so under the law of Illinois as required by the Trust. See Schroeder v. Sullivan, 422 Ill.Dec. 893, 104 N.E. 3d 460 (Ill. App. Ct. 2018).

The relevant portion of Article IV of the Trust states:

(1) The Trustee shall, at least as frequently as quarterly, pay the entire net income to Grantor's wife, LYDIA K. KOHLER, so long as she survives.
(2) Upon the death of Grantor's wife, LYDIA K. KOHLER, or if she predeceases the Grantor, the Trustee shall pay the entire net income to Grantor's daughter, JEAN M. KOHLER MUELLER[,] in installments not less frequently than quarterly.
(3) If the trust has not been totally previously distributed, upon the death of the survivor of Grantor's wife, LYDIA K. KOHLER, and Grantor's daughter, JEAN M. KOHLER MUELLER, the Trustee shall pay the entire net income to JEAN M. KOHLER MUELLER'S children, per stirpes. Upon the youngest of JEAN M. KOHLER MUELLER'S children living at Grantor's death attaining the age of thirty-five (35) years old, the Trustee shall distribute one-half (1/2) of the then aggregate market value of the trust to JEAN'S children equally, per stripes. Upon JEAN'S youngest child living at Grantor's death attaining age thirty (30), the Trustee shall distribute the balance of said trust to JEAN'S children equally, per stripes. In the event any one of JEAN'S children are not surviving at the time for distribution hereunder, leaving no descendants, his or her share shall be distributed to the other child or children of JEAN, in equal shares per stripes.
(4) In the event Grantor's wife, LYDIA K. KOHLER, Grantor's daughter, JEAN M. KOHLER MUELLER and all of JEAN M. KOHLER MUELLER'S descendants predecease the Grantor, or none survive until the time of the distribution hereunder, the Trustee shall distribute the trust to the following persons, in the percentages set forth, per stirpes: Gordon Carl Mueller, twenty-five (25) per cent; Barbara Ann Ebeling, thirty (30) per cent; Rose Raenette Barker, forty-five (45) per cent.

The Estate contends the entire corpus of the Trust should be distributed to it. The descendants of Barbara Ebeling and Rose Barker, who are deceased but who are named as contingent remainder beneficiaries in Article IV of the Trust, have challenged the Estate's entitlement to the Trust corpus. Barbara Ebeling's descendants argue the corpus should be distributed to them and to Rose Barker's descendants, while Rose Barker's descendants claim it should be distributed to them alone. The trial court found in favor of the Barker descendants. We conclude the trial court erred in construing the Trust; accordingly we reverse.

Under Illinois law, as in Florida, courts are required to look to the plain meaning of trust language to determine how to enforce its terms. Mucci v. Stobbs, 281 Ill.App.3d 22, 216 Ill.Dec. 882, 666 N.E. 2d 50, 55 (Ill. App. Ct. 1996). A court will look only at the four corners of the trust unless there is an ambiguity within the trust's language, and if there is an ambiguity within the terms, then the court will look to extraneous information to determine the settlor's intent. First Illini Bank v. Pritchard, 230 Ill.App.3d 861, 172 Ill.Dec. 367, 595 N.E. 2d 728, 732 (Ill. App. Ct. 1992). All parties to this appeal argue that the terms of the Trust are unambiguous, yet they offer three different constructions of that unambiguous language. Despite that, we agree the Trust is unambiguous in that we can determine the meaning of the disputed provisions by construing them in the context of the four corners of the Trust.

The resolution of this dispute turns on the nature of Jean Mueller's interest in the Trust as well as that of her children, Sarah and Carl. The contingent beneficiaries contend that the language italicized below gave Jean a life estate in the income from the Trust:

(2) Upon the death of Grantor's wife, LYDIA K. KOHLER, or if she predeceases the Grantor, the Trustee shall pay the entire net income to Grantor's daughter, JEAN M. KOHLER MUELLER[,] in installments not less frequently than quarterly.
(3) If the trust has not been totally previously distributed, upon the death of the survivor of Grantor's wife, LYDIA K. KOHLER, and Grantor's daughter, JEAN M. KOHLER MUELLER , the Trustee shall pay the entire net income to JEAN M. KOHLER MUELLER'S children, per stirpes . Upon the youngest of JEAN M. KOHLER MUELLER'S children living at Grantor's death attaining the age of thirty-five (35) years old, the Trustee shall distribute one-half (1/2) of the then aggregate market value of the trust to JEAN'S children equally, per stripes. Upon JEAN'S youngest child living at Grantor's death attaining age thirty (30), the Trustee shall distribute the balance of said trust to JEAN'S children equally, per stripes. In the event any one of JEAN'S children are not surviving at the time for distribution hereunder, leaving no descendants, his or her share shall be distributed to the other child or children of JEAN, in equal shares per stripes.

From this, the contingent beneficiaries reason that the provision calling for distribution of the Trust corpus when the youngest of Jean's children reaches the age of thirty-five, with the balance to be distributed when that child reaches age thirty, must be read to mean that the distribution to the children cannot occur before Jean dies. Otherwise, there would be no income to distribute to Jean for the remainder of her life. Consequently, they argue that the "date of distribution" referenced in section (4) of Article IV is the date of Jean's death, and because Carl predeceased Jean, the Trust passes to them under section (4).

The Estate argues that the Trust did not give Jean a life estate in the Trust income. It contrasts the absence of specific words creating a life estate for Jean to the use of the specific language, "so long as she survives," to create a life estate for Lydia Kohler. It also argues that section (4) of Article IV would make no sense if the "date of distribution" in that provision meant the date of Jean's death. Finally, it argues that its construction gives effect to all the language of the Trust unlike the construction urged by the contingent beneficiaries. We agree.

Under Illinois law, it is not absolutely necessary to use specific words to create a life estate, and an estate given to one person in general terms followed by a clause giving the property to a second person at the death of the first person, has been held to indicate that the first person has a life estate. See Griffin v. Griffin, 29 Ill.2d 354, 194 N.E. 2d 641, 643 (1963). However, the intent of the settlor "as manifested, either expressly or by necessary implication" from the language of the Trust as a whole is controlling. Id. Thus, while the language here could have given Jean a life estate in the income from the Trust as the contingent beneficiaries contend, we conclude that given the language of the Trust as a whole, it did not.

In reaching this conclusion, we first note that while the absence of specific life estate language is not determinative, the fact that the drafter used specific language to create a life estate for Jean's mother, Lydia, while omitting that language in connection with the income gift to Jean, is noteworthy. More importantly, section (3) of Article IV, regarding paying income to Jean's children at her death, is prefaced by language explaining that those payments will occur only "[i]f the trust has not been totally previously distributed." This plainly refers to the distributions to the children once the youngest child reached the specified ages. In other words, if the children have not reached the age of distribution, meaning the principle is intact and producing income, and Jean dies, the children will receive the income until the principal can be distributed to them. Stated yet another way, this provision of the Trust is intended to direct how the income is to be paid until the time the principle is distributed; it is not to prevent distribution of the principle until Jean's death. No language in the Trust qualifies the distribution to Jean's children beyond the requirement that they be alive at the grantor's death and that they reach the specified ages, at which point the Trust provides that the Trustee "shall distribute" the Trust's value to the children.

Reading the Trust as a whole, it seems clear the grantor's intent was to distribute the corpus to Jean's children at the specified times and pending that distribution, direct how the Trust income was to be paid. The contingent beneficiaries' construction prioritizes the payment of the Trust income over the distribution of the corpus to Jean's children, ignores the mandatory language directing the distribution of the corpus, fails to account for the introductory phrase regarding possible distribution before Jean's death, and requires "date of distribution" to mean one thing in section (3) of Article IV and another in section (4).

The Trust corpus should have been distributed to Jean's children in part in 1999, with the remainder distributed in 2004. Jean's daughter, Sarah, died with no descendants before either date of distribution. Accordingly, under section (3) of Article IV, her share would have been distributed to her brother, Carl. Although Carl reached the age of thirty-five, for reasons that are not a part of the record, the Trustee did not make any distribution to him. Nevertheless, his interest had vested because he was alive at the grantor's death and he survived until the date of distribution. See Dyslin v. Wolf, 407 Ill. 532, 96 N.E. 2d 485 (1950) (explaining the general rule for vesting of future interests). When Carl passed away in 2006 at the age of thirty-seven, he had no descendants so his interest became part of his estate of which Jean was the personal representative and sole beneficiary. The contingent beneficiaries were only entitled to distribution if neither Lydia, Jean, Sarah, Carl nor their descendants were alive at the date of distribution, a contingency that never occurred.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

MORRIS and ATKINSON, JJ., Concur.

      David and Robert A. Ebeling, who are appellees in Chambers' appeal, also appealed the judgment in case number 2D17-3434. We have consolidated that appeal with Chambers' appeal for purposes of this opinion.

      The parties all appear to agree that ages were transposed.

      Arguably, the interests of both grandchildren vested at the time of the grantor's death, with only their right to possession and enjoyment postponed until they reached the specified ages. However, the Estate has not asserted this was the case so we need not decide the issue.


author: SLEET, Judge.

text:
    Demetrius NUGENT, DOC #Y62721, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3169
    District Court of Appeal of Florida, Second District.
    Opinion filed June 7, 2019
    Thomas Regnier of Thomas Regnier Appeals, P.A., Sunrise, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Demetrius Nugent appeals his convictions and sentences for trafficking in oxycodone, possession of a controlled substance (Alprazolam), and possession of drug paraphernalia following a jury trial. Because the State failed to prove Nugent's constructive possession of any of the contraband, we reverse.

At trial, the State's evidence reflected that on May 31, 2016, the Lee County Sheriff's Office conducted a drug investigation focused on a red Mustang that officers had observed driving back and forth in a residential neighborhood. Detectives followed the Mustang to a convenience store where they observed a passenger exit the Mustang and stand on the store sidewalk. Moments later, Nugent, driving a dark Nissan, arrived and parked in front of the store. The Mustang's passenger entered the Nissan for a few minutes before going into the convenience store. When the passenger exited the store, police observed an unidentified object in his hand as he reentered the passenger side of the Nissan.

A detective followed the Nissan away from the store and conducted a traffic stop after observing the car fail to completely stop at a stop sign. Nugent handed the officer a rental agreement, which reflected that the car had been rented by Nugent's girlfriend. A few minutes later, a K-9 officer arrived and conducted an exterior sniff of the vehicle. The dog alerted to the driver's door.

Both Nugent and the passenger complied with the detective's request to exit the vehicle while two additional detectives conducted a search. During the search, the detectives discovered a white pill bottle labeled oxycodone lying sideways in the bottom of the driver's door pocket beside a half-filled bottle of water. A search of the center console revealed some cash and a man's watch on top of a baggie of white pills. Underneath the watch, cash, and pills was paperwork belonging to Nugent. The detectives also found an envelope addressed to Nugent in the glove compartment. Prior to his arrest, Nugent's girlfriend arrived at the scene and confirmed that she had rented the vehicle.

The detectives testified that they never saw Nugent make any furtive movements or reach toward the center console or driver's door pocket. While they believed that the water bottle belonged to Nugent, they admitted that the only evidence connecting it to Nugent was the fact that it was cold and had condensation on it. Although there was no evidence that the passenger purchased the bottle of water at the store, the detectives suspected that he had given the bottle to Nugent. They admitted that they did not request any video surveillance from the store cameras to confirm what the passenger had purchased because the store employees "were not friendly with law enforcement." Nugent did not make any incriminating statements, and the State did not call the passenger to testify. The State did not produce any fingerprints or any DNA evidence to connect Nugent to either the pill bottle or the baggie of pills. Nor did the State introduce the car rental agreement or call Nugent's girlfriend to testify as to how long and how often Nugent had used the rental car.

After the State rested, Nugent moved for a judgment of acquittal, arguing that the State failed to establish that Nugent was in constructive possession of the pill bottle and baggie of pills and that mere proximity to the drugs was insufficient to establish constructive possession in a jointly occupied vehicle. The State responded that it had proven actual possession of the drugs in the driver's door pocket because they were in plain view beside Nugent's water bottle and within Nugent's ready reach. As to the drugs in the center console, the State argued it had proven constructive possession because the watch, cash, and baggie of pills were in the same compartment with the paperwork belonging to Nugent. The trial court denied the motion for judgment of acquittal. This was error.

This court reviews the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the State. Gizaw v. State, 71 So. 3d 214, 217 (Fla. 2d DCA 2011). The State may prove possession as either actual or constructive. Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017). "Possession is actual when the contraband is (1) in the defendant's hand or on his person, (2) in a container in the defendant's hand or on his person, or (3) within the defendant's 'ready reach' and the contraband is under his control." Id. (quoting Sundin v. State, 27 So. 3d 675, 676 (Fla. 2d DCA 2009) ). To support a conviction based on a theory of constructive possession, the State must "prove beyond a reasonable doubt (1) that [the defendant] had knowledge of the contraband and (2) that [the defendant] had the ability to exercise dominion and control over the contraband." Tucker v. State, 198 So. 3d 1011, 1014 (Fla. 2d DCA 2016). "Under either theory of possession ... the State must prove that the accused had control of the contraband. And ... under either theory the requisite control is not established by an accused's mere proximity to the contraband." Sanders, 210 So. 3d at 248 (quoting G.G. v. State, 84 So. 3d 1162, 1164 (Fla. 2d DCA 2012) ). Here, the State proceeded on a theory of constructive possession; however, it failed to prove Nugent had dominion and control of the drugs found in the vehicle or to refute his reasonable hypothesis of innocence.

The State's evidence showed that Nugent was traveling in a jointly occupied rental vehicle and that the drugs were recovered from areas of the vehicle within his "ready reach." Because the rental car was in joint possession rather than Nugent's exclusive possession, knowledge and ability to maintain dominion and control could not be inferred from Nugent's mere proximity to the contraband. See Byers v. State, 17 So. 3d 825, 827 (Fla. 2d DCA 2009) ("[W]hen the premises have not been in the exclusive possession of the defendant, ... knowledge and control cannot be inferred unless there are incriminating statements or other circumstances that would support such an inference."). When knowledge or dominion and control cannot be inferred, the State must prove each element by independent evidence; "[g]enerally, such independent proof can be established by the admission into evidence of a pretrial statement made by the accused, by witness testimony, or by scientific evidence." Bennett v. State, 46 So. 3d 1181, 1184 (Fla. 2d DCA 2010) ; see also Culver v. State, 990 So. 2d 1206, 1209 (Fla. 2d DCA 2008) ("Such independent proof might have consisted of evidence that [the defendant] had actual knowledge of the presence of the contraband and the ability to control it or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer [the defendant]'s knowledge and control."); Jackson v. State, 995 So. 2d 535, 539 (Fla. 2d DCA 2008) ("The surrounding circumstances must support the inference of 'a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.' " (quoting Reynolds v. State, 92 Fla. 1038, 111 So. 285, 286 (1926) )).

In this case, there was no independent proof connecting Nugent to the drugs found in either compartment of the vehicle. The State did not submit scientific evidence, such as Nugent's fingerprints or DNA on the contraband; eyewitness testimony from the passenger; or inculpatory statements from Nugent. Even if we accept the State's argument that the pill bottle containing oxycodone-which was found inside the driver's side door pocket-was in plain view, this evidence is only sufficient to prove Nugent's knowledge of the pill bottle, not his dominion and control over it. See Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013) ("[T]he location of contraband in plain view of the defendant is sufficient to establish the knowledge element of constructive possession." (alteration in original) (quoting Jiles v. State, 984 So. 2d 622, 623 (Fla. 2d DCA 2008) )); Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007) ("In the case law, the concepts of 'dominion' and 'control' involve more than the mere ability of the defendant to reach out and touch the item of contraband.").

At trial the State relied on the presence of Nugent's personal papers in the center console and the chilled water bottle in the driver's side door pocket to establish his constructive possession of the contraband found in each location. Even if we were to agree with the State's position that it provided sufficient evidence to show that the water bottle actually belonged to Nugent, the presence of some of a defendant's personal items in the same area as contraband merely supports an inference that the defendant had knowledge of and dominion and control over the substance. See Bennett, 46 So. 3d at 1184-85. Because the evidence in this case was entirely circumstantial, the State was required to produce evidence inconsistent with Nugent's reasonable hypothesis of innocence. See Knight v. State, 186 So. 3d 1005, 1009 (Fla. 2016) ("[W]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt[,] a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." (second alteration in original) (quoting Jaramillo v. State, 417 So. 2d 257, 257 (Fla. 1982) )). It failed to do so in this case.

Nugent's defense theory at trial was that he or someone else had placed his papers in the console before the contraband was thrown in on top and that he was not aware of the pill bottle in the door when he borrowed the vehicle. This hypothesis was consistent with evidence that the contraband in the console had been placed on top of the papers along with the watch and the money and evidence that the pill bottle was at least partially concealed by the design of the vehicle door. None of the State's evidence was inconsistent with the theory that the passenger or another prior occupant placed the items on top of Nugent's personal papers in the console or that the pill bottle was already in the vehicle when Nugent sat down. See K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004) (holding that the State failed to disprove the defendant's reasonable hypothesis of innocence that any of the other occupants of the vehicle could have placed the contraband in the glove compartment when "[n]o evidence or permissible inference presented at the adjudicatory hearing pointed to [the defendant] as the one who put the items there"); see also Williams v. State, 110 So. 3d 59, 61 (Fla. 2d DCA 2013) (reversing conviction for possession when "[a]lthough the car was rented in [the defendant's] name, she was driving it, and her personal belongings were in the car, there was nothing on or in the black bag that tied it or the items inside it to her or anyone else"); Bennett, 46 So. 3d at 1185 (concluding that the State failed to prove dominion and control when drugs were found in a box that also contained the defendant's clothes and a personal letter when the box was in a shared residence); Evans v. State, 32 So. 3d 188, 191 (Fla. 1st DCA 2010) (reversing conviction for possession when the evidence showed that the contraband was recovered from a jointly occupied home in a duffel bag that also contained defendant's passport and explaining that "[t]he presence of [the defendant's] passport in the duffel bag suggests he could have placed the passport there. Such an inference, however, provides no time frame with regard to when the contraband came to reside in the bag, nor any help as to [the defendant's] present dominion over the contraband").

Because the State failed to provide independent proof that Nugent constructively possessed the contraband discovered in the vehicle or any evidence inconsistent with his reasonable hypothesis of innocence, the trial court erred in denying the motion for judgment of acquittal. Accordingly, we reverse his convictions and sentences and direct the trial court to discharge him on these three offenses.

Reversed and remanded with directions.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Jean R. LOLLI a/k/a Jean Lolli, Appellant, v. SUNTRUST BANK, Appellee.
    Case No. 2D17-2997
    District Court of Appeal of Florida, Second District.
    Opinion filed June 12, 2019
    H. Daniel McKillop of McKillop Law Firm, Sarasota, for Appellant.
    Philip D. Storey, Daniel R. Blundy, and Amanda Renee Murphy of Alvarez, Winthrop, Thompson & Storey, P.A., Orlando, for Appellee.
   PER CURIAM.

Jean Lolli appeals from a final judgment of foreclosure in favor of SunTrust Bank. We affirm without comment in all but one respect. In its computation of the amount due under the promissory note and mortgage, the final judgment includes items for title search expenses, attorney's fees, court costs, service of summons, and property registration. SunTrust offered no evidence with respect to any of these items at trial, and it properly concedes that the evidence was insufficient to support their inclusion in the judgment. Accordingly, we reverse the final judgment to that limited extent and remand with instructions to the trial court to enter an amended final judgment that excludes those items. See Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152, 1162-66 (Fla. 2d DCA 2019) (reconciling this court's remand instructions in foreclosure cases and holding that absent exceptional circumstances, a party that fails to prove its case at trial does not get a second bite at the apple on remand).

Affirmed in part; reversed in part; remanded with instructions.

SALARIO, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

ATKINSON, J., Concurs in result only.