Florida Criminal Law Opinions

RICK A. ROBLES, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-582

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 
 March 30, 2007, Opinion Filed

 

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Orange County, J. Lewis Hall, Senior Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PLEUS, C.J. THOMPSON and SAWAYA, JJ., concur.

OPINION BY:   PLEUS

 OPINION:   PLEUS, C.J.

Robles appeals his eight year sentence for sexual battery. He argues that the trial court erred in adding eighty points for sexual penetration to his sentencing scoresheet, which raised his minimum possible sentence, without a specific jury finding of penetration. He cites Apprendi n1 and Blakely n2 as support for this argument. However, Apprendi and Blakely only require jury findings for any fact that increases the penalty for a crime “beyond the statutory maximum.” Apprendi, 530 U.S. at 490. The imposition of sexual penetration points did not affect the statutory maximum sentence of fifteen years. Thus, Apprendi and Blakely did not require a jury finding of penetration. Instead, the trial judge was allowed to make this finding by  [*2]  a preponderance of evidence. See Gilson v. State, 795 So. 2d 105, 111 (Fla. 4th DCA 2001). The trial court’s finding of penetration was supported by the undisputed testimony of the victim and Robles. Accordingly, we affirm Robles’ sentence.

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n1 Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000).

n2 Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).
 

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AFFIRMED.
 
THOMPSON and SAWAYA, JJ., concur.

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JAMES KIRK ISENHOUR, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-888

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 
 March 30, 2007, Opinion Filed

 

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

DISPOSITION:   REVERSED.

COUNSEL:   Gregory E. Tucci, Ocala, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   SAWAYA, J. PLEUS, C.J. and MONACO, J., concur.

OPINION BY:   SAWAYA

 OPINION:   SAWAYA, J.

A jury convicted James Isenhour of grand theft, and the trial court sentenced him to five years’ imprisonment followed by 30 years’ probation. Isenhour appeals, contending that the State failed to prove the requisite criminal intent to support the grand theft conviction. He also contends that the State failed to prove a person or entity had an interest in the funds superior to his own. We agree with both contentions and reverse.

Factual and Procedural Background

In 1978, Isenhour co-founded Ocala’s Cambridge Academy, which is an accredited long-distance educational institution providing services to students who are no longer successful in public school. In the pertinent time period, Isenhour was chairman of the board of the school. Isenhour was also the chief financial officer of Silver Archer Foundation, Ltd., which Isenhour formed  [*2]  and had qualified as a nonprofit Scholarship Funding Organization [SFO] under the laws of Florida in January 2002. n1 Institutions qualifying as SFO’s receive corporate donations and must, by statute, funnel 100% of the corporate donations to qualifying children in the form of scholarships — none of the donated money can be used for administrative expenses. In return for their participation in the scholarship program, the corporations receive a dollar-for-dollar credit on their Florida corporate income tax liability as long as all qualifying factors of section 220.187, Florida Statutes (2003) (entitled, “Credits for Contributions to Nonprofit Scholarship-Funding Organizations”) are met and the SFO certifies that the money was paid out as scholarships to qualifying students.

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n1 All witnesses agreed that Silver Archer and Cambridge Academy were entirely separate entities and were carefully kept separate, apparently due to Cambridge Academy’s zealous efforts to retain its accreditation.
 

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In early 2003, Isenhour learned that Pulte Homes, Inc., a residential construction corporation, was intending to participate in the program, so he telephoned the company and solicited funds from it. He urged early donations, and Pulte responded with donations totaling $ 268,125. Isenhour then attempted to get both the principal and the student services director of Cambridge Academy to identify qualifying students so that the scholarship money could be disbursed. Both testified that they had refused to do so because they believed that finding scholarship students was the job of Silver Archer, not Cambridge Academy. Isenhour tried a number of times and in a number of ways to get Cambridge Academy to cooperate, but with no success. He asked the principal to have an employee make phone calls to solicit student applications for the SFO scholarship funds, but she refused. In addition, Isenhour gave the principal checks and applications and asked her to secure qualified students, but again she refused. Isenhour, by all accounts, was angered by the lack of cooperation and greatly frustrated.

During this period of time, a harbinger of the difficulty to befall Isenhour appeared when Cambridge  [*4]  Academy started to experience financial difficulty. Isenhour and his ex-wife both testified to selling a private airplane and boat and using the proceeds to support the school. Isenhour also used money from other corporations he held to pay expenses at Cambridge Academy and borrowed money from at least one Cambridge Academy employee. Bankruptcy proceedings were initiated and, apparently due to IRS problems, the IRS periodically cleaned out Cambridge Academy bank accounts. Interestingly, in the same period that Isenhour was unsuccessfully attempting to award the Silver Archer scholarships, Cambridge Academy did give tuition credits to needy students in an amount that was almost the same as that donated by Pulte.

In any event, Isenhour testified that he deposited the Pulte funds into the Silver Archer account at Wachovia Bank. Isenhour admitted to using the funds to pay the bankruptcy attorney for Cambridge Academy, to repay a loan from a Cambridge Academy employee, and to pay salaries and payroll, including over $ 7,500 to himself as salary after not receiving any income from Cambridge Academy for some period.

Isenhour refused to certify that he had used the funds as required by statute,  [*5]  as he had not. He notified the Department of Education that he would not be certifying the funds. This triggered the Department of Education to advise Isenhour that the failure to provide the certification would result in Silver Archer no longer being qualified as an SFO. The Department of Education advised Isenhour that it would be informing the Department of Revenue of this fact.

Isenhour was aware that the funds were not supposed to have been used for administrative expenses and telephoned both the Department of Revenue and the Department of Education to see what should be done. Neither had helpful advice. In fact, one e-mail from the Department of Revenue to its tax law specialist relates that Isenhour had called and asked what to do with contributions that had not been given to students and the writer had advised Isenhour that “that would be up to the DOE.” Another Department of Revenue e-mail shows that Isenhour had called another time and wanted an opinion as to what to do with unspent money and the Department had referred him to the statutes and suggested that Isenhour’s problem was with the Department of Education as “there were no provisions in the statute to return money  [*6]  to the corporations or how to handle any extra money that was not spent on scholarships by the end of the state fiscal year. . . . [Isenhour] was not happy with my answers and seemed frustrated.” A third e-mail relates another call from Isenhour and memorializes that the Department of Revenue author had advised Isenhour “that the best course of action may be to return unspent funds to the contributors since if he didn’t send the required receipt we may disallow all or a portion of the credit for the contributors and that may get him in trouble with the contributors also. I explained several times that we were only obligated to the taxpayer and that we had been meeting with other agencies to determine who was responsible for the SFO’s.”

It seems that Silver Archer’s situation (the inability to find scholarship-eligible students to give the money to) was a first, as the program was apparently a new one, and there was no statutory provision giving guidance. Isenhour telephoned Pulte seeking to return the money to Pulte; Pulte refused to engage in any discussion with him because it was aware that an investigation into the funds had been launched. An investigator with the Florida Department  [*7]  of Revenue audited Silver Archer’s books and concluded that Silver Archer funds were used for the operational purposes of Cambridge Academy and not a single dollar had gone for scholarships. A criminal Information was filed against Isenhour charging that between March 1 and August 15, 2003, Isenhour

did unlawfully and knowingly obtain, use or endeavor to obtain or use the property of DEPT OF REVENUE, to-wit: U.S. Currency, of the value of one hundred thousand dollars ($ 100,000.00) or more, with the intent to either temporarily or permanently deprive DEPT OF REVENUE of a right to the property or a benefit thereof, or did appropriate the said property to his own use or to the use of any person not entitled thereto, in violation of Florida Statutes 812.014(1) and 812.014(2)(a); . . . .
At trial, even the prosecutor admitted that there was no provision in the statutory scheme for giving the money back to either the corporate donor or to the Department of Revenue if scholarship students were not located and the money was not given out. The prosecutor stated, too, that the reason Isenhour’s inquiries to the State as to how  [*8]  to return the money were not answered is that the State “hadn’t anticipated this far down the line.”

Isenhour’s attorney moved several times for a directed verdict on the basis that the Information charged that the criminal act occurred between March and August 2003 and, during that period, the money was rightfully in Silver Archer’s possession and the Department of Revenue, the alleged victim, had no right to the money. Even assuming the Department of Revenue could have been the victim, it could not have become the victim until it was deprived of the funds, which would have occurred when Pulte’s tax was due, which was after the time frame alleged. There was no evidence that the Department of Revenue was owed, or had any interest in, the funds during the period alleged, nor was there evidence that the State owned the money when Pulte made the donation to Silver Archer, the attorney pointed out.

The prosecutor responded that “of course” the money was the Department of Revenue’s money. He reasoned that the money was sales tax money (it was not) and the State’s interest accrued immediately upon being collected. The court then questioned how the Department of Revenue could be the victim  [*9]  where it had given the tax credit to Pulte anyway. n2 The prosecutor’s answer was that the victims were the needy students who did not receive the scholarships, but the State could not plead unnamed victims. The court reserved ruling.

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n2 Prior to the trial, the State had agreed to allow Pulte to take the tax credits because it had given the money in good faith.
 

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At the conclusion of the evidence, Isenhour’s attorney renewed his motion. Then, after the jury returned its verdict, Isenhour’s attorney moved for a judgment of acquittal notwithstanding the verdict. These motions were denied, judgment was entered against Isenhour, and he was sentenced to five years in prison. Isenhour appeals, contending that the State failed to prove the requisite criminal intent to support the grand theft conviction and that the State failed to prove a person or entity had an interest in the funds superior to his own.

Standard of Review

We must review the record de novo to determine whether there is sufficient evidence  [*10]  to support the verdict. Pagan v. State, 830 So. 2d 792 (Fla. 2002), cert. denied, 539 U.S. 919, 156 L. Ed. 2d 137 (2003); McHolder v. State, 917 So. 2d 1043 (Fla. 5th DCA 2006); Sanchez v. State, 909 So. 2d 981 (Fla. 5th DCA 2005); Sutton v. State, 834 So. 2d 332, 334 (Fla. 5th DCA 2003). In Sutton, we explained:
This court has repeatedly held that a motion for judgment of acquittal should be denied if the state presents competent evidence to establish each element of the offense. L.C. v. State, 799 So. 2d 330 (Fla. 5th DCA 2001); Espiet v. State, 797 So. 2d 598 (Fla. 5th DCA 2001); V.L. v. State, 790 So. 2d 1140 (Fla. 5th DCA 2001). A motion for judgment of acquittal may be granted if the evidence, viewed in a light most favorable to the state, fails to establish a prima facie case of guilt. L.C.; Espiet; V.L. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the state that the trier of fact might fairly infer from the evidence. Lynch v. State, 293 So. 2d 44 (Fla. 1974);  [*11]  Espiet; A.L. v. State, 790 So. 2d 1149 (Fla. 2d DCA 2001). It is the trial judge’s duty to review the evidence to determine the presence or absence of competent evidence from which the trier of fact could infer guilt to the exclusion of all other reasonable inferences. A.L. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So. 2d at 803 (citing Banks v. State, 732 So. 2d 1065 (Fla. 1999)).
Sutton, 834 So. 2d at 334.

We begin our review with an analysis of the statutory provisions Isenhour was charged with violating — sections 812.014(1) and 812.014(2)(a), Florida Statutes (2003).

Legal Analysis

In determining whether the State’s successful prosecution for the violation of sections 812.014(1) and 812.014(2)(a) is sustainable, we must consider “whether the evidence presented by the State was legally sufficient to establish any of the traditional common  [*12]  law offenses embraced within the statutory definition of theft.” Nooe v. State, 892 So. 2d 1135, 1139 (Fla. 5th DCA 2005) (citing Crawford v. State, 453 So. 2d 1139, 1141 (Fla. 2d DCA), pet. for review denied, 459 So. 2d 1041 (Fla. 1984)).

The omnibus theft statute found in section 812.014 is broad in application and includes the old offenses of misappropriation, embezzlement, and conversion, but requires that the defendant have the intent to deprive, either temporarily or permanently, “the other person of a right to the property or a benefit from the property” n3 or “[a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” n4 In other words, as this court observed in Brewer v. State, 413 So. 2d 1217, 1219 (Fla. 5th DCA 1982), petition for review denied, 426 So. 2d 25 (Fla. 1983), “[U]nder the present theft statute, how the property of another is acquired is no longer important. Thus, regardless of how the property is acquired, if the defendant has the requisite intent, he is guilty of the crime of theft.” (Citation omitted).  [*13]  See Sewall v. State, 783 So. 2d 1171, 1176 (Fla. 5th DCA 2001) (”Felonious intent is an essential element of the crime of grand theft. In order to sustain a conviction for grand theft, the State must show that the defendant had the specific intent to commit the theft at the time of or prior to the commission of the act of taking. Because intent to commit the theft usually cannot be proven by direct evidence, the intent may be inferred from the circumstances surrounding the illegal act. However, the circumstantial evidence must exclude every reasonable hypothesis but that of guilt.”) (citations omitted); Bartlett v. State, 765 So. 2d 799, 800-01 (Fla. 1st DCA 2000) (”In order to prove specific felonious intent, the state can rely on circumstantial evidence. Since intent necessarily involves the state of mind of the perpetrator, very often circumstantial evidence is the only evidence available to prove intent. However, such circumstantial evidence must exclude every reasonable hypothesis but that of guilt.”); see also McGough v. State, 302 So. 2d 751, 755 (Fla. 1974) (”Where an attempt is made by the State to prove [knowledge and intent]  [*14]  through circumstantial evidence, such proof must not only be consistent with guilt but also inconsistent with any other reasonable hypothesis of innocence.”).

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n3 § 812.014(1)(a), Fla. Stat. (2003).

n4 § 812.014(1)(b), Fla. Stat. (2003).
 

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Adverting to the evidence in the record, the shortcomings of the State’s attempt to establish that Isenhour committed the crime of grand theft are readily apparent. The evidence was unrebutted that Silver Archer was birthed to act as an SFO a year prior to the alleged offenses; that Isenhour solicited funds for the specific purpose of funding scholarships through Silver Archer; that upon obtaining the donations from Pulte, he actively and repeatedly attempted to locate qualified students and attempted to force Cambridge Academy employees to find qualified students; that Isenhour was greatly angered and frustrated by Cambridge Academy employees’ refusal to identify potential scholarship students; that Isenhour refused  [*15]  to certify that he had used the money as required because he had not; that Isenhour contacted various state departments to find out how to handle the situation; that the departments themselves did not have solid suggestions as this was apparently a novel situation; and that Isenhour contacted Pulte to arrange paying back the money and Pulte refused to discuss it with him.

These are the facts as established by both the State’s witnesses and Isenhour’s own testimony. Even accepting the facts in evidence and every reasonable inference therefrom in favor of the State as must be done in reviewing a defendant’s motion for judgment of acquittal, Buford v. State, 844 So. 2d 812, 813 (Fla. 5th DCA 2003), there was no evidence or inference that contradicted Isenhour’s theory of the case, which was that he had no intent to steal the funds, but rather unexpectedly found himself in the position of being unable to locate qualified recipients for the scholarship money. See Benitez v. State, 852 So. 2d 386 (Fla. 3d DCA 2003) (reversing grand theft conviction where State’s evidence was not inconsistent with defendant’s reasonable hypothesis of innocence on issue of  [*16]  felonious intent which was that he ran into unforeseen problems with home renovation project and never intended to deprive homeowners of their money); Everett v. State, 831 So. 2d 738, 740 (Fla. 4th DCA 2002) (”[A] motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”). Although Isenhour admittedly used the money to prop up Cambridge Academy while trying to find guidance from the State on how to handle the situation, concomitantly Cambridge Academy was giving out scholarships in an amount nearly equal to the donated Pulte funds. Thus, Isenhour reasoned, although he did not follow the specific funding procedures of the statute, the intent of section 220.187 was fulfilled by Cambridge Academy’s grant of scholarships to students in an amount nearly equal to the donated funds. Although faulty, Isenhour’s reasoning further shows his lack of intent to deprive the rightful recipients of the funds.

Taking all the evidence in a light most favorable to the State, there is no testimony from which it could be concluded that  [*17]  Isenhour had the requisite criminal intent to commit a theft of the funds. There was no evidence that at the time Isenhour obtained the funds from Pulte, he had the intent to either temporarily or permanently deprive Pulte, or any other entity, of its right to the money.

This, in fact, brings to light an additional problem with the State’s case. Pulte had donated the money, thereby relinquishing its right thereto. The alleged victim was the Department of Revenue, which had eventually granted Pulte the tax credit (the decision to do so was obviously outside the dates alleged for the theft) and then asserted that but for Isenhour’s theft of the money, the money would have gone to scholarships. Logically, then, the Department was not out anything as it occupies the same position it would have occupied had the scholarship funds been awarded — it would not have received the money as corporate income tax and it would have given the tax credit to Pulte. Even the prosecutor was wrong at trial when he claimed that the actual victims were the needy children. There was no evidence that any qualifying students were denied scholarships because of Isenhour’s acts. In fact, it was Isenhour’s inability  [*18]  to find any qualifying students that was the root of the entire fiasco. Pulte was not victimized because it received the tax credit to which it would have been entitled had the donated money been used appropriately.

Even assuming that the Department was victimized by not receiving funds to which it would have been entitled had a credit not been given, the problem is that the Department had no interest in the donated funds during the dates alleged in the Information. Its interest in corporate income tax payments was not shown to arise at any time prior to the due date of those taxes. Unlike sales tax collection or employee withholding taxes, which are deemed held in trust by the collector thereof until paid to the government, Cash v. State, 628 So. 2d 1100, 1101 (Fla. 1993) (holding that gas retailer had agent-principal relationship with state regarding its collection of local option tax from gas purchasers; retailer was mere “conduit” of tax proceeds to state and, thus, retailer’s personal use of tax proceeds supported conviction for grand theft), the State failed to show here that the Department of Revenue had any interest in corporate income taxes prior to the date  [*19]  the taxes were due and owing to the Department. Because the corporate taxes were not due until sometime after December 31, 2003, which is outside the time alleged in the Information — as correctly asserted by Isenhour’s attorney below — the State failed to establish that any person or entity had a superior right to the funds during the dates alleged in the Information. n5 In fact, no witness for the State testified that any person or entity had an interest in the money superior to Isenhour’s at any time, let alone during the dates alleged in the Information.

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n5 As Isenhour asserts on appeal, the tax credit was not a public fund and was not a fund of the Department of Revenue. See Bush v. Holmes, 886 So. 2d 340, 356 (Fla. 1st DCA 2004) (”‘Tax exemptions and general subsidies, however, are qualitatively different [from the payment of state funds]. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes.’”) (quoting Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 690, 25 L. Ed. 2d 697 (1970) (Brennan, J., concurring) (footnotes and citations omitted)), approved in part, 919 So. 2d 392 (Fla. 2006).
 

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This was a fatal flaw, just as occurred in Seiler v. State, 522 So. 2d 113 (Fla. 5th DCA 1988), wherein this court reversed the county building inspector’s conviction for grand theft where he had conducted licensing examinations and had kept the fees he received from applicants rather than turn the fees over to the county. Although the state alleged the inspector had criminally obtained the money from the county, there was no evidence the county had a greater interest in the collected fees than the inspector had (there were no statutes governing how to handle the collected fees) and, in the absence of proof of an essential element of the crime of grand theft-that the property the inspector used or obtained belonged to the county-reversal was required.

Conclusion

We conclude that the State failed to prove the requisite criminal intent to support the grand theft conviction. The State also failed to prove a person or entity had an interest in the funds superior to Isenhour. Accordingly, the trial court erred in denying Isenhour’s motion for directed verdict. Isenhour’s conviction is reversed.

REVERSED.
 
PLEUS, C.J. and MONACO, J., concur.

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TONY BAMBERG, a/k/a TONY WILLIAM BAMBERG, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-4769

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

 
 March 30, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
PRIOR HISTORY:   Appeal from the Circuit Court for Polk County; Roger Allan Alcott, Judge.

DISPOSITION:   Affirmed.

COUNSEL:   James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   WALLACE, Judge. FULMER, C.J., and VILLANTI, J., Concur.

OPINION BY:   WALLACE

 OPINION:   WALLACE, Judge.

Tony Bamberg appeals the trial court’s order that revoked his probation and his resulting sentence of five years in prison. On appeal, Mr. Bamberg challenges the trial court’s order denying his motion to suppress incriminating statements that he made and physical evidence that law enforcement officers seized during a warrantless search of his residence. Because the warrantless search of Mr. Bamberg’s residence was based on a reasonable suspicion of criminal activity, the trial court correctly concluded that it did not matter whether law enforcement officers had conducted the search for probationary or investigatory purposes. Accordingly, we affirm.

%Facts and Procedural History  [*2] 

In October 2003, Mr. Bamberg pleaded nolo contendere to the offense of felony petit theft. The trial court adjudged Mr. Bamberg to be guilty and placed him on probation for eighteen months. The terms of Mr. Bamberg’s probation included the following pertinent condition:

39) You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation or community control Officer or any law enforcement Officer.
Such a condition is sometimes referred to as a “warrantless search condition” or a “Fourth waiver.” In January 2005, the trial court extended the term of Mr. Bamberg’s probation for an additional six months.

In April 2005, two Polk County detectives were conducting a narcotics investigation in Bartow. The detectives received a tip from a confidential informant that Mr. Bamberg was selling methamphetamine at his residence. One of the detectives contacted a probation officer and learned that the terms of Mr. Bamberg’s probation included a warrantless search condition. Armed with this information, the detectives went to Mr. Bamberg’s residence to conduct a search. The detectives did not obtain a warrant,  [*3]  and they were not accompanied by a probation officer.

At the residence, Mr. Bamberg greeted the detectives at the door. The detectives informed him that they were there to conduct a warrantless search for drugs in accordance with the applicable condition of his probation. The detectives also read Mr. Bamberg a Miranda n1 warning from a card. At the conclusion of these preliminaries, Mr. Bamberg led the detectives to his bedroom where they discovered a quantity of methamphetamine and drug paraphernalia. Upon the discovery of these items, Mr. Bamberg made several incriminating statements to the detectives and he was placed under arrest.

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n1 Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).
 

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As a result of this incident, the State filed several new charges against Mr. Bamberg and also sought to revoke his probation. Mr. Bamberg filed motions to suppress the evidence seized during the search of his residence and his incriminating statements in both the new law violation case and in the  [*4]  proceedings for the revocation of his probation. We are concerned here only with the revocation of probation proceeding.

After a hearing on the motion, the trial court entered a detailed written order with findings of fact and conclusions of law. n2 In the order, the trial court found that the search of Mr. Bamberg’s residence by the detectives was based on a reasonable suspicion:
The detectives in the present case had trustworthy information that the defendant was engaged in the sale of controlled substances at the residence. They had [an] individualized, reasonable suspicion that the probationer was in possession of drugs at the premises.
The trial court framed the legal issue before it as follows: “[C]an the warrantless search condition be utilized by any law enforcement officer within her or his jurisdiction without the presence of a corrections probation officer?” The trial court answered this question in the affirmative, concluding that “[f]rom a constitutional point of view, it matters not that the search was conducted by a deputy rather than a corrections officer.” Based on this conclusion and its finding that the detectives had reasonable suspicion to  [*5]  conduct the search, the trial court denied Mr. Bamberg’s motion to suppress.

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n2 We commend the trial court for the thorough and thoughtful order that it entered in this matter. The trial court’s order has facilitated this court’s review of this case.
 

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Mr. Bamberg’s Arguments

On appeal, Mr. Bamberg makes two points. First, he argues that the type of search authorized by the warrantless search condition in his probation order was limited to a search made in the course of supervising the probationer, i.e., a search conducted for a probationary purpose. According to Mr. Bamberg, the challenged search was not authorized by the probation condition and was unreasonable under the Fourth Amendment because it was performed by law enforcement officers who came to his residence to conduct an independent investigation. In support of this argument, Mr. Bamberg relies primarily on the decisions in Grubbs v. State, 373 So. 2d 905 (Fla. 1979), and Soca v. State, 673 So. 2d 24 (Fla. 1996).  [*6]  Second, Mr. Bamberg claims that the State failed to establish that the detectives had a reasonable suspicion to conduct the search of his residence. We accept the trial court’s finding that the detectives had a reasonable suspicion to conduct the search because Mr. Bamberg did not argue to the contrary in the trial court. We write only to address his first point.

The Standard of Review

We employ a mixed standard of review in considering the trial court’s ruling on Mr. Bamberg’s motion to suppress. The trial court’s determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence. However, the trial court’s determination on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911 (1996); Connor v. State, 803 So. 2d 598, 608 (Fla. 2001); E.B. v. State, 866 So. 2d 200, 202 (Fla. 2d DCA 2004).

Discussion

Our supreme court’s decision in Grubbs does support Mr. Bamberg’s argument that an investigatory search of a probationer by a law  [*7]  enforcement officer violates the Fourth Amendment even if the probationer is subject to a warrantless search condition. In Grubbs, the court was called upon to answer the following certified question: “Is a condition of probation requiring a probationer to consent to a search at any time, by any law enforcement officer, violative of the probationer’s rights under the Fourth Amendment of the United States Constitution or Article I, Section 12, of the Florida Constitution?” 373 So. 2d at 906. The court answered this question in the affirmative. Id. at 910. In its opinion in Grubbs, the court drew a distinction between a warrantless search of a probationer made by a probation officer for the purpose of supervising the probationer and a search made by law enforcement officers unrelated to any supervisory purpose:
The search of a probationer’s person or residence by a probation supervisor without a warrant is, in our view, a reasonable search and absolutely necessary for the proper supervision of probationers. However, granting such general authority to law enforcement officials is not permissible under the search and seizure provisions of the  [*8]  Florida or United States Constitutions.
Id. at 909. Thus, under Grubbs, a warrantless search of a probationer for supervisory purposes satisfies the Fourth Amendment’s test of reasonableness, but a warrantless search conducted by law enforcement officers for investigatory purposes does not.

In Grubbs, the court also held that “a warrantless search of a probationer’s person or residence by a probation supervisor is valid to the extent that the evidence discovered is used only in probation violation proceedings” and that “the use of seized evidence in a new criminal proceeding requires compliance with customary fourth amendment requirements although the opportunity to meet those requirements may be easier because the defendant is a probationer.” Id. at 907. The court relied on this holding in Grubbs in the case of Soca, 673 So. 2d 24. In Soca, an investigator from the state attorney’s office contacted a probation supervisor and requested a search of the probationer’s residence. Id. at 25. The probationer’s supervising officer and the investigator went to the probationer’s residence where the  [*9]  probation officer conducted a warrantless search. Id. The search resulted in the discovery of cocaine. Id. The investigator testified at a subsequent hearing that he had “consciously decided not to seek a warrant from a neutral magistrate but rather to have the probation authorities conduct the search.” Id.

The State filed new charges against the probationer in Soca for possession of cocaine. Id. The probationer filed a motion to suppress. Id. Although the probationer conceded that the evidence could be used against him in probation revocation proceedings, he argued that the warrantless search barred the use of the evidence against him in the new criminal proceeding. Id. Our supreme court agreed, holding that “under Grubbs the evidence obtained in the probationary search of [the probationer’s] trailer is not admissible against him in a new criminal proceeding.” Id. at 28. In its opinion in Soca, the court reaffirmed its analysis in Grubbs and rejected the State’s argument that Grubbs had been effectively overruled by several decisions of the United States Supreme Court. Id. at 27. Thus, if Grubbs–as  [*10]  reaffirmed by Soca–remains binding on us, we would be required to conclude that the trial court erred in denying Mr. Bamberg’s motion to suppress because the search of Mr. Bamberg’s residence was not conducted by his probation officer or for probationary reasons.

In response to Mr. Bamberg’s argument for reversal based on Grubbs and Soca, the State urges affirmance based on United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497 (2001). In Knights, a probationer’s conditions of probation included a provision authorizing a warrantless search by a probation officer or law enforcement officer. Id. at 114. A sheriff’s deputy conducted a warrantless search of the probationer’s residence and discovered incriminating evidence. Id. at 114-15. After the probationer was indicted, he moved to suppress the evidence obtained during the search of his residence. Id. at 116. The district court found that the sheriff’s deputy had “reasonable suspicion” to conduct the search. Id. Nevertheless, the district court “granted the motion to suppress on the ground that the search was for ‘investigatory’ rather than  [*11]  ‘probationary’ purposes.” Id. The Ninth Circuit affirmed the district court’s ruling. United States v. Knights, 219 F.3d 1138 (9th Cir. 2000).

The United States Supreme Court reversed the Ninth Circuit’s judgment. The Court explained its reasoning:
Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term “probable cause,” a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.
Knights, 534 U.S. at 121 (citations omitted). Thus the Court held that “the warrantless search of [the probationer], supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.” n3 Id. at 122.

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n3 According to the Knights court, a probationer has a reduced expectation of privacy because “the probationer ‘is more likely than the ordinary citizen to violate the law.’ ” 534 U.S. at 120 (quoting Griffin v. Wisconsin, 483 U.S. 868, 880, 97 L. Ed. 2d 709 (1987)). Specifically, the probationer’s propensity to recidivism justifies a greater intrusion into the probationer’s privacy than into the privacy of an ordinary citizen. Id. at 118-21.
 

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Although Mr. Bamberg argues on appeal that the detectives did not have the reasonable suspicion required by Knights to search his residence, he did not make this argument in the trial court. Therefore, this issue was not preserved for our review. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985); State v. Hunton, 699 So. 2d 320, 321 (Fla. 2d DCA 1997). Accordingly, we consider only Mr. Bamberg’s first argument: that the search of his residence was unreasonable because it was made for an investigatory purpose.

However, the holding in Knights is fatal to Mr. Bamberg’s position. The Knights court specifically rejected the distinction between searches of probationers made for a “probationary” purpose and searches made for an “investigatory” purpose. Id. at 116-18. The Court explained:
Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, [citation omitted] “we have been unwilling to entertain Fourth Amendment challenges based on the actual  [*13]  motivations of individual officers.” Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
Id. at 122. Thus, if we follow Knights, we must conclude that the trial court correctly denied Mr. Bamberg’s motion to suppress.

On the issue before us, where law enforcement officers have reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, Knights appears to be in irreconcilable conflict with Grubbs. n4 We look to the conformity clause contained in article I, section 12 of the Florida Constitution to resolve this conflict. Under the conformity clause, “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures” is to “be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Evidence seized in violation of the right guaranteed by article I, section 12 of the Florida Constitution “shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing  [*14]  the 4th Amendment to the United States Constitution.” Thus this court is “bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions.” State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995).

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n4 If law enforcement officers lack a reasonable suspicion to search, then Knights is inapplicable. In that instance, Knights would not conflict with Grubbs.
 

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In accordance with the command of the conformity clause, we conclude that Knights controls the disposition of this case. Accordingly, we affirm the order revoking Mr. Bamberg’s probation and his sentence. To the extent that Grubbs and Soca suggest a contrary result, those cases have been superseded by Knights. See State v. Yule, 905 So. 2d 251, 263-64 (Fla. 2d DCA 2005) (Canady, J., specially concurring).

Affirmed.
 
FULMER, C.J.  [*15]  , and VILLANTI, J., Concur.

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CHARLES LINDSAY SUMMERSILL, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D05-4374

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

 
 March 30, 2007, Opinion Filed

 

PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Seminole County, Kenneth R. Lester, Jr., Judge.
COUNSEL:   James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
 
Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, J. ORFINGER and LAWSON, JJ., concur.

OPINION BY:   GRIFFIN

 OPINION:   GRIFFIN, J.

Charles Lindsay Summersill [”Summersill”] appeals the trial court’s order denying his motion to suppress two separate inculpatory statements he made to law enforcement. After the motion was denied, Summersill pled nolo contendere to the charges against him, reserving the right to appeal the denial.

We dismiss the appeal because the appealed order is plainly not dispositive. There were witnesses and physical evidence that the State could have relied upon to secure a conviction without using the defendant’s admissions. n1 See Brown v. State, 376 So. 2d 382 (Fla. 1979).

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n1 Even if the order were dispositive, we have examined the circumstances of both statements, and we conclude that the trial court ruled correctly.
 

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DISMISSED.
 
ORFINGER and LAWSON, JJ., concur.

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VINCENT ROEBUCK, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-2882

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

 
 March 30, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PRIOR HISTORY:   An appeal from the Circuit Court for Leon County. Tim Harley, Judge, and Charles A. Francis, Judge.

DISPOSITION:   AFFIRMED.

COUNSEL:   Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
 
Bill McCollum, Attorney General, and Giselle Lylen Rivera and Betty J. Cheramie, Assistant Attorneys General, Tallahassee, for Appellee.

JUDGES:   WOLF, J. VAN NORTWICK and LEWIS, JJ., CONCUR.

OPINION BY:   WOLF

 OPINION:   WOLF, J.

Following a jury trial, appellant, Vincent Roebuck, was convicted of lewd and lascivious battery with a person 12 years of age or older but less than 16 years of age. Appellant raises five issues on appeal. We affirm as to all issues. However, in affirming as to appellant’s first issue, we certify conflict with Cliburn v. State, 710 So. 2d 669 (Fla. 2d DCA 1998), and Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988), to the extent these cases create a false reporting exception to section 90.610, Florida Statutes (2005).

At appellant’s trial, the victim, A.B., testified that appellant, a friend of the family, stopped by  [*2]  her home one afternoon while she was alone and forced her to engage in sexual intercourse. Appellant attempted unsuccessfully to impeach A.B. regarding a prior incident of false reporting.

In proffer, A.B. acknowledged that she had previously falsely accused her brother of physical abuse several years prior to the instant case. A.B. explained that she had fallen asleep on a couch while ironing and hit the cord, causing the iron to fall on her face. She stated that she was questioned regarding the incident by school officials, and that, when she responded to these questions with the truth, no one believed her story. A.B. further testified that, after three hours of continued questioning, she lied to school officials and told them that her brother had burned her face with the iron. She explained that her brother spent six months in a juvenile detention facility as a result of this report. Following the proffer, the trial court ruled to exclude the evidence as irrelevant and improper impeachment evidence.

In his first issue, appellant asserts the trial court erred in preventing him from introducing evidence that A.B. had previously falsely accused her brother of physical abuse. Section 90.610, Florida Statutes  [*3]  , provides that a party may attack the credibility of any witness through the presentation of evidence establishing that a witness has been (1) convicted of a crime punishable in excess of one year’s imprisonment, or (2) convicted of a crime of dishonesty or false statement. Thus, as a general rule, credibility may not be attacked by proof that a witness committed specific acts of misconduct which did not end in a criminal conviction. See Jackson v. State, 545 So. 2d 260, 264 (Fla. 1989).

However, the Second District has recognized an exception to section 90.610 where a witness has previously falsely reported an incident to authorities even though the witness has never been convicted of the false report. The exception was first noted in Jaggers, 536 So. 2d at 321. But see Williams v. State, 386 So. 2d 25 (Fla. 2d DCA 1980) (reversing based on trial court’s failure to allow evidence of a prior false report where credibility of the witness was crucial to the defense, without expressly acknowledging that such a ruling was based on an exception to section 90.610).

In Jaggers, the defendant sought to elicit testimony regarding  [*4]  an alleged victim’s previous incident of false reporting in which the child accused her father of sexual abuse and later recanted that statement. In Jaggers, the Second District wrote:

From the state’s argument at trial in support of its objection to that cross-examination testimony, it appears that the state concedes that the witness did make such a charge against her father and then admit to its falsity. The trial court sustained the state’s objection and refused to allow the attempted impeachment of that critical witness by the proffered testimony. That restriction on cross-examination was both erroneous and highly prejudicial. The state succeeded in persuading the trial court to restrict appellant’s cross-examination on the basis of the very broad general principle of law that the credibility of a witness may not be impeached by proof that the witness has committed specific acts of misconduct . . . . However, for every broad general principle of law, there seems to be an exception applicable to particular circumstances. Section 90.405(2), Florida Statutes (1985) allows proof of specific incidents of conduct where that evidence is offered to  [*5]  prove a particular trait of character. In this case, that trait of character was that the witness may be inclined to lie about sexual incidents and charge people with those acts without justification.

. . . Evidence that is relevant to the possible bias, prejudice, motive, intent or corruptness of a witness is nearly always not only admissible, but necessary, where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility.
Jaggers, 536 So. 2d at 327 (emphasis added) (citations omitted). The Second District next addressed the exception in Cliburn, 710 So. 2d at 670. In Cliburn, the court wrote:
[I]n Jaggers v. State, 536 So. 2d 321, 327 (Fla. 2d DCA 1988), where the witness previously had made a false allegation of sexual abuse, we noted that evidence relevant to a prosecuting witness’s possible bias or corruptness is admissible. When assessing a key witness’s credibility, the jury must know about any improper motives. Id.
This court has never expressly adopted the Second District’s precedent in this regard. See Baker v. State, 804 So. 2d 564 (Fla. 1st DCA 2002)  [*6]  (acknowledging the Second District’s exception while declining to expressly adopt the exception where any error would have been harmless in light of defendant’s confession); Reeves v. State, 862 So. 2d 60 (Fla. 1st DCA 2003) (declining to rule on applicability of the Second District’s false reporting exception because the witness in question had not admitted that her previous accusation was false); State v. Taylor, 928 So. 2d 473 (Fla. 1st DCA 2006) (again declining to rule on the Second District’s false reporting exception where certiorari review did not require the same standard of review as the direct appeal of a conviction). However, for the following reasons, we respectfully decline to adopt the exception and certify conflict with the line of cases adopting a false reporting exception to section 90.610, Florida Statutes.

First, the Legislature adopted the express wording of section 90.610, Florida Statutes, in an effort to bar all character impeachment based on prior misconduct that did not involve a criminal conviction. The plain language of section 90.610, Florida Statutes  [*7]  , authorizes impeachment with only prior convictions; there is no exception written into or considered by the statute. When a statute is clear on its face, the plain meaning must control. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So. 2d 823 (Fla. 1st DCA 2006) (stating that when a statute is not ambiguous on its face, the plain meaning should control). Although Federal Rule of Evidence 608(b) specifically allows character impeachment through prior misconduct without a criminal conviction requirement, the Florida Legislature chose to adopt our evidence code without this language. See In Re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (quoting State v. Mozo, 655 So. 2d 1115, 1117 (Fla. 1995), for the proposition that courts should endeavor to implement the legislative intent of statutes). Professor Charles Ehrhardt, an acknowledged expert on Florida evidence, states:
Occasionally decisions ignore the limitation and permit impeachment with prior acts of misconduct of a witness when they involve prior false accusations of a crime by the witness.
 
. . . .

The drafters of the Code specifically  [*8]  intended not to adopt provision similar to Federal Rule 608(b) because it did not reflect the existing Florida law and because they felt the possibility for abuse of this type of evidence was great.
C. Ehrhardt, Florida Evidence § 610.8 (2006 Edition). The statute as written properly implements legislative intent, and it is not for this court to add unwritten provisions to the statute where the statute is clear on its face.

Second, in Jaggers and Cliburn, the Second District provided for an exception from the statute without articulating a specific legal reason for its creation. These cases highlight the existence of other statutory provisions that would allow the evidence notwithstanding section 90.610’s prior conviction requirements as support for the exception’s creation. Specifically, the cases justify the use of the false reporting evidence (1) to establish bias or motive pursuant to section 90.608(2) Florida Statutes; or (2) when character or a trait of character of a person is an essential element of a charge, claim, or defense pursuant to section 90.405(2), Florida Statutes. However, neither of these provisions  [*9]  would apply in the instant case. In this case, the previous false accusation involved A.B.’s brother, not appellant; the false report concerned a dissimilar crime and the proffered evidence did not establish a motive on A.B.’s part to lie about the charged offense.

The evidence also could not be admitted based on the witness’s character because A.B.’s character was not an essential element of the defense or charge. Cases in which character is actually at issue are “relatively rare” and do not impede on the traditional rule that specific incidents of misconduct are generally not admissible to prove character. See Dragovich v. State, 492 So. 2d 350 (Fla. 1986). n1 Were this court to expand the narrow application of section 90.405(2)’s character at issue provision to all cases in which the veracity of a witness is pertinent to the proceedings, section 90.610’s confinement of impeachment evidence to only prior convictions would be rendered meaningless.

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n1 Some examples of when character might be at issue include: (1) when a civil litigant is sued for negligence in driving a vehicle and opposing counsel seeks to admit evidence of a prior incident of negligent driving; or (2) when a defamation suit hinges on the truthfulness of the accusing parties statements. C. Ehrhardt, Florida Evidence § 405.3 (2006 Edition).
 

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We are not unmindful that, based on the facts of a particular case, due process may require germane cross-examination of a witness regarding a prior incident of false reporting. See Coco v. State, 62 So. 2d 892 (Fla. 1953) (holding that the right of cross-examination derives from both due process concerns as well as the Sixth Amendment, and a defendant’s right to a full and fair cross-examination is absolute). However, in the instant case, the facts as presented at trial do not support the finding of a due process violation. In Florida, section 90.403, Florida Statutes (2004), authorizes the exclusion of otherwise relevant evidence where the evidence’s prejudice outweighs its probative value. Such a balancing test is authorized and does not violate due process. Id. In the instant case, the prior incident of false reporting did not involve appellant and was not made concerning allegations of sexual abuse. As such, the evidence lacked the necessary relevance needed to amount to a due process violation. See § 90.403, Fla. Stat.; Lewis v. State, 591 So. 2d 922, 925 (Fla. 1991) (quoting Olden v. Kentucky, 488 U.S. 227, 231, 102 L. Ed. 2d 513 (1988),  [*11]  for the proposition that the trial court may limit examination of a witness “to take account of such factors as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant.”).

For these reasons, this court affirms appellant’s conviction. In doing so, we certify conflict with Cliburn and Jaggers to the extent they create a false reporting exception to section 90.610, Florida Statutes.

AFFIRMED.
 
VAN NORTWICK and LEWIS, JJ., CONCUR.

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