Florida Criminal Law Opinions

James Marion Moorman, Public Defender, and Brooke Elvington, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

MORRIS, Judge.

Charles Hicks appeals his convictions for second-degree murder, vehicular homicide, aggravated assault on a law enforcement officer, fleeing or eluding, and felony driving with a suspended license. We affirm the convictions for aggravated assault, fleeing or eluding, and driving with a suspended license, which are not being challenged on appeal. We reverse the convictions for second-degree murder and

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vehicular homicide and remand with directions for the trial court to vacate the conviction for vehicular homicide and to enter a conviction and sentence for manslaughter in lieu of the second-degree murder conviction.

In the middle of the night on September 26, 2007, Hicks was driving a car involved in a high-speed pursuit in St. Petersburg that resulted in a deadly collision on an I-275 overpass. The pursuit began with Hicks driving through St. Petersburg at high rates of speed, running a red light, and then stopping in the middle of the road. The first police vehicle came upon the car stopped in the middle of the road, and the officer activated his take-down lights. A second police vehicle arrived and shined his spotlight on the car. Hicks then drove directly towards the second police vehicle but swerved away from the police vehicle before hitting it. Hicks fled from the scene and eventually drove north onto a southbound exit ramp of I-275. Hicks proceeded northbound in the southbound lanes of I-275 at an estimated speed of 76.5 miles per hour, causing a head-on collision with a car traveling southbound. The driver in the other car was injured, and her brother, the passenger, was killed.

At trial, Hicks moved for a judgment of acquittal on the basis that the State failed to prove that Hicks was the driver of the car. The trial court denied the motion. The jury convicted Hicks as charged, and the trial court adjudicated Hicks guilty of all charges. The trial court sentenced Hicks to life in prison as a prison releasee reoffender on the second-degree murder count, to thirty years in prison as a habitual felony offender on the aggravated assault count, and to ten years in prison as a habitual felony offender on both the fleeing or eluding and the driving with suspended license counts.

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All sentences were ordered to run concurrently. The trial court did not sentence Hicks on the vehicular homicide count.

In his first point on appeal, Hicks argues that the trial court committed fundamental error by adjudicating Hicks guilty of both vehicular homicide and seconddegree murder when the convictions were based on a single death, even where the trial court did not sentence him on the vehicular homicide. He contends that the dual convictions violate his right against double jeopardy. The State concedes that the vehicular homicide conviction should be vacated.

Where there is a single death, dual homicide convictions for one defendant cannot stand, even where sentencing on one conviction has been withheld. See Rodriguez v. State, 875 So. 2d 642, 644-46 (Fla. 2d DCA 2004); Burford v. State, 8 So. 3d 478, 480 (Fla. 4th DCA 2009). Hicks did not raise this issue below, but it amounts to fundamental error that may be raised for the first time on appeal. See Safrany v. State, 895 So. 2d 1145, 1147 (Fla. 2d DCA 2005). Accordingly, one of Hicks’s convictions must be vacated.

In his second point on appeal, Hicks contends that his trial counsel was ineffective on the face of the record for failing to move for a judgment of acquittal on the second-degree murder count on the basis that the State failed to prove that Hicks committed the act with ill will, hatred, spite, or an evil intent.

“The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal.” Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002). “On rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused

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by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” ld

For example, failure to move for a judgment of acquittal when the State has not proved an essential element of its case, when it is clear that the State could not reopen its case to prove that essential element, amounts to ineffective assistance of counsel that may sometimes be adequately assessed from the record on direct appeal id

Second-degree murder is “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (2007).

As explained in the standard jury instructions: “An act is ‘imminently dangerous to another and demonstrating a depraved mind’ if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.”

Light v. State, 841 So. 2d 623, 625 (Fla. 2d DCA 2003) (footnote omitted) (quoting Fla. Std. Jury Instr. (Crim.) 98). Second-degree murder and manslaughter are the result of “criminal actions of an accused who had no premeditated design to kill” and are “committed when an unintended death occurs as a result of an act of the killer.” Ellison v. State, 547 So. 2d 1003, 1005-06 (Fla. 1st DCA 1989), approved in part and quashed in part on other grounds, 561 So. 2d 576 (Fla. 1990). However, there is a difference between the two crimes; second-degree murder is committed when the element of ill will, hatred, spite, or evil intent is present. ld at 1006. The question in this case is

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whether Hicks’ act of driving up the exit ramp and into oncoming interstate traffic at full interstate speed crosses the line from reckless behavior to behavior evincing malice and a depraved mind. See Light, 841 So. 2d at 625 n.2 (noting that the intent required for second-degree murder mirrors the definition of malice).

In Ellison, 547 So. 2d at 1005, the events were as follows:

In May 1988, a gray Grand Am automobile was stolen from a Jacksonville mall. The following day, a police officer observed a gray Grand Am exceeding the speed limit and clocked the vehicle at 67 M.P.H. in a 35 M.P.H. zone. The officer commenced pursuit, and the car began weaving in and out of traffic at high speed, ramming through a blocked toll booth gate at an estimated speed of 65 M.P.H. The car then jumped the median onto a service road, accelerating to approximately 70 M.P.H. and, already fishtailing, entered a major thoroughfare. As it did so, the driver lost control, crossed the center line and struck another vehicle head on, fatally injuring a 16-month old baby who was a passenger in that vehicle. The baby died the next day, and Ellison was charged with depraved-mind second-degree murder….

The court in Ellison found that “there is nothing to indicate that Ellison acted out of ‘ill will, hatred, spite or an evil intent’ toward or directed at his eventual victim; he was instead fleeing arrest and in the process lost control of his car.” ld at 1006. The supreme court agreed with the First District that the evidence was insufficient to support a conviction for second-degree murder because “Ellison’s act of losing control of the car was not committed from ill-will or spite.” Ellison, 561 So. 2d at 577; see also Duckett v. State, 686 So. 2d 662 (Fla. 2d DCA 1996) (relying on Ellison in holding that the evidence was not sufficient to support a conviction for second-degree murder; intoxicated defendant drove erratically for several miles, almost causing two accidents, before he drove off the interstate and into a parked bus and tow truck, killing five people standing near the bus); Sigler v. State, 805 So. 2d 32 (Fla. 4th DCA 2001) (holding that

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there was nothing in the case to establish that the codefendants acted with ill will, hatred, spite, or an evil intent; in attempt to evade police during high-speed chase in the middle of the day, codefendants Sigler and Michelson accelerated to speeds of 80 m.p.h. and drove through one stop sign, across a transverse street, through another stop sign and across a second transverse street, crashing into another car and killing its passenger); Michelson v. State, 805 So. 2d 983 (Fla. 4th DCA 2001) (same); cf. Gordon v. State, 457 So. 2d 1095 (Fla. 5th DCA 1984) (affirming second-degree murder conviction because defendant’s actions showed ill will towards victim; defendant attempted to flee an accident he had caused by pulling out of the blocked traffic lane and accelerating, and when the victim stepped out to flag him down, she was hit by defendant, thrown ahead of defendant’s truck, and run over by defendant).

The State did not present evidence that Hicks acted with hatred, spite, evil intent, or ill will towards the victim. The victim’s sister testified that at the time of the collision, “[t]here really wasn’t anything going on the roads. It was later.” The officers testified that the pursuit occurred around 2 a.m. The victim’s sister was driving up an overpass when she saw the headlights of Hicks’ car at the top of the hill. She tried to veer away but did not have enough time before the collision occurred. In applying Ellison to the instant case, while the act of driving in the opposite direction on the interstate was indeed done with a reckless disregard to human life, there was no evidence that the act was done with hatred, spite, evil intent, or ill will towards the occupants of the other car.

“[E]xtremely reckless behavior itself is insufficient from which to infer any malice.” Light, 841 So. 2d at 626. “Although exceptions exist, the crime of second-

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degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim. Hatred, spite, evil intent, or ill will usually require more than an instant to develop.” ld. (citations omitted). Here, Hicks did not have time to develop a level of enmity toward the victim. The cars approached each other on an overpass, and the drivers did not see each other until it was too late.

It is clear from the face of the record in this case that the State failed to present evidence to prove the necessary intent for second-degree murder. It is also clear that the State could not have reopened its case to prove the necessary intent and that there is no reasonable tactical explanation for counsel’s failure to raise this issue. Therefore, Hicks’ trial counsel was ineffective for failing to move for a judgment of acquittal on this basis.

Accordingly, we reverse Hicks’s conviction and sentence for seconddegree murder with directions for the trial court to enter a judgment and sentence for the lesser-included offense of manslaughter. See Duckett, 686 So. 2d at 663; Ellison, 547 So. 2d at 1006. As discussed above, dual convictions for manslaughter and vehicular homicide based on one death cannot stand. We reverse and remand for the trial court to vacate the vehicular homicide conviction, the lesser of the two convictions.¹ See Burford, 8 So. 3d at 479.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, C.J., and CRENSHAW J., Concur.

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^1. Both are second-degree felonies, but manslaughter is a qualifying offense for prison releasee reoffender sentencing, while vehicular homicide is not. See § 775.082(9)(a)(1)(c), Fla. Stat. (2007).
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Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Denise A. Pomponio, Judge.

SILBERMAN, Judge.

The State appeals an order suppressing physical evidence relating to charges against Ronnie Lee Townsend for possession of cocaine and possession of drug paraphernalia. Because the suppression issue was dispositive, the trial court

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dismissed the charges. We conclude that the search was valid as an inventory search and reverse the suppression order and remand for reinstatement of the charges.

A deputy obtained the evidence at issue during a search of Townsend’s vehicle following his arrest for violating his restricted driver’s license. In his motion to suppress, Townsend argued that under Arizona v. Gant, 129 S. Ct. 1710 (2009), Deputy Koehler conducted an illegal search incident to arrest. The State argued that the search was proper whether it was an inventory search or a search incident to arrest.

At the suppression hearing, Deputy Koehler testified that on March 31, 2009, he stopped Townsend because an obstruction on the vehicle’s license tag covered the expiration sticker. Deputy Koehler asked Townsend for his driver’s license and registration. The registration was for a KIA, but Townsend was driving a Chrysler Sebring. Deputy Koehler asked Townsend where he was going, and Townsend said that he was going to a bar to get a drink. When Deputy Koehler ran the license, he discovered that Townsend had a business purpose only license. Deputy Koehler arrested Townsend for violation of his restricted license, handcuffed him, and placed him in the back of the patrol car.

Townsend’s vehicle was on the shoulder of the road on the county easement and was obstructing the bicycle lane. Deputy Koehler determined that Townsend was the primary registered owner of the vehicle and that Townsend’s wife was the registered co-owner. No one was at the scene who could take possession of the vehicle, and Deputy Koehler acknowledged that he did not attempt to contact Townsend’s wife to ask if she could remove the vehicle.

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Because the vehicle was obstructing the right of way, Deputy Koehler began the impound procedure for the vehicle. He followed standard operating procedure 504 of the Hillsborough County Sheriff’s Office. He searched the vehicle to inventory its contents and found a crack cocaine rock on the driver’s seat and a glass crack cocaine pipe under the driver’s seat. He then charged Townsend with possession of cocaine and possession of paraphernalia.

When asked about the impound procedure, Deputy Koehler noted that the purpose is for “the safety of the vehicle’s contents and property for the owner” and “for safety on the obstruction of a right of way.” In his police report, he wrote that he conducted a search incident to arrest. He did not write that the search was an inventory search but testified that the search was both incident to arrest and to impounding the vehicle. The inventory search that he performed was the only search of the vehicle.

At the conclusion of the hearing, the trial court granted the motion to suppress the physical evidence obtained by Deputy Koehler and stated that the search was not proper as a search incident to arrest. The court added that an inventory search as part of impounding the vehicle “would have been fine because it was violating a right of way. It was on public property and that would have been it.” The court noted that it was making its ruling based on the fact that Deputy Koehler wrote in his report that the search was a search incident to arrest without mentioning an inventory search.

In its written order, the court reiterated that its decision was based on the fact that the report only referred to a search incident to arrest. Although the court noted that Deputy Koehler had the vehicle towed without attempting to contact Townsend’s wife, the court specifically found that “[t]he Deputy was following standard [Hillsborough

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County Sheriff's Office] impound procedures (‘SOP 504′) as to the search, inventory, and towing of Defendant’s vehicle which had to be removed from public property.” The court concluded that the search was not valid as one incident to an arrest and quoted the following from the Supreme Court’s decision in Gant: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 129 S. Ct. at 1723.

We apply a mixed standard of review concerning the ruling on Townsend’s suppression motion. We review the findings of fact for support by competent, substantial evidence in the record. See State v. Clark, 986 So. 2d 625, 628 (Fla. 2d DCA 2008). As to the trial court’s conclusions on mixed questions of law and fact and on pure questions of law, we conduct a de novo review. Seeid

The trial court correctly determined that, under Gant, Deputy Koehler’s search of the vehicle was not valid as one performed incident to arrest. It is undisputed that Townsend was not within reaching distance of his vehicle’s passenger compartment when he was handcuffed and in the back of the patrol car. It is also undisputed that there was no reason to believe the vehicle contained evidence regarding the restricted license violation.

Nevertheless, the trial court erred by suppressing the evidence. In Gant, the Supreme Court stated that when a search of a vehicle is not justified as incident to an arrest, the search “will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” 129 S. Ct. at 1723-24. Under the applicable law, an inventory search as part of the impoundment of a vehicle,

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conducted according to standardized procedures, is recognized as an exception to the warrant requirement. See Nunez v. State, 988 So. 2d 695, 697 (Fla. 2d DCA 2008); State v. Clark, 986 So. 2d 625, 628 (Fla. 2d DCA 2008); State v. Williams, 516 So. 2d 1081, 1084 (Fla. 2d DCA 1987). Furthermore, an officer is not required to offer an arrested driver an alternative to impoundment, provided the officer is acting in good faith. See Robinson v. State, 537 So. 2d 95, 96 (Fla. 1989); Williams, 516 So. 2d at 1084. And it is the nature of the search, not the label the officer places upon it, that controls. Williams, 516 So. 2d at 1083. The Williams court determined that the search there was valid both as one incident to arrest (pre-Gant) and as an inventory search. Id. at 1083-84.

Here, the trial court’s factual findings support the State’s argument that Deputy Koehler’s search was a proper inventory search, conducted in accordance with standardized police procedures, regardless of the label that Officer Koehler gave to the search in his written report. Townsend’s vehicle obstructed the right of way, and Deputy Koehler was not required to offer an alternative to impoundment before he had the vehicle towed. The trial court did not make any finding that Deputy Koehler was acting in bad faith. Rather, the court made the specific finding that Deputy Koehler followed standard impound procedures “as to the search, inventory, and towing of Defendant’s vehicle which had to be removed from public property.” Thus, we conclude that the search was valid as an inventory search.

Accordingly, we reverse the suppression of the physical evidence and remand for reinstatement of the charges for possession of cocaine and possession of drug paraphernalia.

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Reversed and remanded.

CASANUEVA, C.J., and LaROSE, J., Concur.

James S. Purdy, Public Defender, and Peter A. Ames, Sr., Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

Alcantara appeals from an order revoking his probation and sentencing him as a “violent felony offender of special concern who poses a danger to the community.” Alcantara contested the State’s reliance on an alleged 1992 conviction in Rhode Island for breaking and entering as the “qualifying offense” under section 948.06(8)(c), Florida

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Statutes (2008). Because the trial court improperly relied on Alcantara’s scoresheet or “rap sheet” as sufficient proof of a prior conviction, we reverse.

Alcantara admitted to violating his probation by changing his residence and leaving the county without his probation officer’s permission. The State sought to have him sentenced as a violent felony offender of special concern who posed a danger to the community pursuant to section 948.06(8). That statute provides, in relevant part, that a violent felony offender of special concern is a person who is on:

2) Felony probation or community control for any offense committed on or after the effective date of this act and has previously been convicted of a qualifying event.

§ 948.06(8)(b)(2), Fla. Stat. (2008). Among the qualifying offenses listed by the statute is a burglary offense or attempted burglary offense that is either a first degree or second degree felony under section 810.02(2) or (3). § 948.06(8)(c)(12). An offense committed in another jurisdiction constitutes a qualifying offense if that offense would be a qualifying offense if committed in Florida. § 948.06(8)(c)(19). If a violent felony offender of special concern is found to have violated his probation or community control other than by failure to pay costs, fines or restitution, a trial court must determine whether that defendant “poses a danger to the community.” § 948.06(8)(e)1.¹ If the

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court finds that a violent felony offender of special concern poses a danger to the community, the court is required to revoke probation and sentence a defendant up to the statutory maximum, or longer if permitted by law. § 948.06(8)(e)(2)(a); see also Fla. R. Crim. P. 3.790(b)(3)(C). If the court finds that the violent felony offender of special concern does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or place the probationer into community control. § 948.06(8)(e)(2)(b); see also Fla. R. Crim. P. 3.790(b)(3)(D).

Here, it is undisputed that Alcantara was placed on felony probation for an offense committed after the effective date of the statute. The purported qualifying offense was an alleged conviction in 1992 in Rhode Island for “breaking and entering.” The State, over defendant’s objection, was permitted to rely on Alcantara’s scoresheet and a “rap sheet” as proof of a conviction. This was error.

When a defendant disputes a prior offense, the sentencing court must either require the State to produce corroborating evidence of the offense or not consider the offense. See State v. Barfield, 995 So. 2d 1138 (Fla. 5th DCA 2008); Smith v. State, 714 So. 2d 1152, 1153 (Fla. 2d DCA 1998). In the present case, the State failed to introduce a certified copy of the Rhode Island conviction or other evidence sufficient to meet its burden. See, e.g., Bodie v. State, 983 So. 2d 1196 (Fla. 2d DCA 2008) (State

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must present sufficient evidence, such as fingerprints or photograph, to establish that defendant is, in fact, person referenced in computer records); see also Moore v. State, 944 So. 2d 1063 (Fla. 4th DCA 2006) (trial court can rely upon certified copies of convictions and original court records but State cannot simply refer to evidence introduced in separate sentencing proceeding). Furthermore, the State failed to present evidence that the “breaking and entering” offense allegedly committed by Alcantara in Rhode Island would constitute a burglary or attempted burglary offense that would be either a first or second degree felony under section 810.02(2) or (3) if committed in Florida. See § 948.06(8)(c)(19).

On remand, the court may resentence Alcantara as a violent felony offender of special concern who poses a danger to the community only if the State presents additional evidence that meets its burden of proving he qualifies for such sentencing. See Bodie, 983 So. 2d at 1197; Moore, 944 So. 2d at 1064.

REVERSED and REMANDED.

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^1. In determining whether a violent felony offender of special concern poses a danger to the community, the court is required to consider:

a. The nature and circumstances of the violation and any new offenses charged.

b. The offender’s present conduct, including criminal convictions.

c. The offender’s amenability to nonincarcerative sanctions based on his or her conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.

d. The weight of the evidence against the offender.

e. Any other facts the court considers relevant.

§ 948.06(8)(e)(1)(a-e), Fla. Stat. (2008); see also Fla. R. Crim. P. 3.790(b)(3)(B)(i-v).
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James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Wesley Jay Farrar appeals from his resentencing on charges of burglary of a dwelling with an assault, reclassified to a life felony, ¹ and sexual battery with use of actual physical force likely to cause serious personal injury, a life felony, ² for offenses he committed on September 22, 1990. Farrar pled to the charges on May 21, 2008. He

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was originally given the sentences he negotiated with the State–concurrent sentences of forty years in prison, followed by ten years of sex offender probation. Resentencing was prompted by Farrar’s motion to correct an illegal sentence, in which he argued that the statute covering life felonies at the time of his offenses provided for a sentence of natural life or a term-of-years sentence not to exceed forty years. The State conceded error based on Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990). On resentencing, the trial court accomplished the same sentencing goal by imposing a forty-year prison sentence on the first charge, and a consecutive ten-year prison sentence on the second charge. We affirm the sentences. See, e.g., Everett v. State, 824 So. 2d 211 (Fla. 1st DCA 2002) (recognizing that a trial court may impose consecutive sentences after vacating concurrent sentences in response to a motion to correct illegal sentence, in order to effect the intent of the original sentencing court, as long as the newly-imposed sentences are no longer than the original sentences).

After imposition of the sentences below, Farrar also filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800 (b)(2), in which he attempted to raise double jeopardy and statute of limitations challenges to one of the charges. The motion was denied, and Farrar makes the same arguments on appeal. We do not believe that these challenges to Farrar’s underlying convictions are cognizable in a rule 3.800(b)(2) motion. See Rodriguez v. State, 958 So. 2d 469 (Fla. 2d DCA 2007) (holding trial court properly denied defendant relief under rule 3.800(b)(2) where defendant attempted to attack his conviction, rather than his sentence, with a double jeopardy argument); Echeverria v. State, 949 So. 2d 331 (Fla. 1st DCA 2007) (holding trial court properly denied relief under rule 3.800(b)(2) where defendant

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attempted to attack his convictions, rather than his sentences, with argument that defense counsel was ineffective for failing to advise him of, or raise before the court, meritorious statute of limitations defenses). As such, the rule 3.800(b)(2) motion was properly denied.

Even if we were to reach the substance of these arguments, however, we find no merit in them. Statutes of limitations on crimes are not jurisdictional, and may be waived. E.g., Doyle v. State, 783 So. 2d 295 (Fla. 1st DCA), rev. denied, 796 So. 2d 536 (Fla. 2001). In entering his 2008 pleas, Farrar expressly waived any statute of limitations defense in this case. Farrar also waived any double jeopardy claim by entering into his bargained-for plea agreement, which the record reflects that he knowingly and voluntarily did to avoid a life sentence. See, e.g., Melvin v. State, 645 So. 2d 448 (Fla. 1994); Novaton v. State, 634 So. 2d 607 (Fla. 1994); Laurore v. State, 3 So. 3d 1286 (Fla. 3d DCA 2009); Mandelbaum v. State, 676 So. 2d 510 (Fla. 4th DCA 1996).

AFFIRMED.

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^1. §§ 810.02(2)(a), 775.087(1), Fla. Stat. (1990).

^2. § 794.011(3), Fla. Stat. (1990).
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James Junior Burke, Bushnell, pro se.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

James J. Burke appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of Burke’s first and second claims without further discussion. As to Burke’s third claim, we agree with the trial court’s conclusion that the claim was insufficiently pled. However, as the State properly concedes, it was error to deny this claim with prejudice. Rather,

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Burke should have been provided a reasonable opportunity to amend his facially insufficient claim. See Spera v. State, 971 So. 2d 754 (Fla. 2007).

Burke’s fourth claim is not a model of clarity but seems to allege that trial counsel was ineffective for failing to challenge the State’s motion in limine, which excluded an allegedly exculpatory surveillance video tape. The trial court denied the claim, finding that “[t]he Motion in Limine submitted by the State during the trial involved the limitation of comment by either Party on the fact that another person (a mutually available witness) was in the vehicle at the time of the incident.” Burke’s claim appears to concern a pretrial motion regarding a surveillance video tape, not the failure of a mutually available witness to testify. If so, the record attachments would not conclusively refute this claim. Burke’s fourth claim is imprecise and it is not clear whether such evidence actually exists or if the State sought to exclude it. Thus, Burke should be given leave to amend this claim as well.

For these reasons, on remand, the trial court shall give Burke thirty days to amend claims three and four of his rule 3.850 motion. If he fails to do so, the trial court can then deny those claims with prejudice.

AFFIRMED in part; REVERSED in part; REMANDED.

Bill McCollum, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellant.

Paul M. Villeneuve, of the Law Office of Paul M. Villeneuve, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILEDAn appeal from the Circuit Court for Leon County.

Mark E. Walker, Judge.

KAHN, J.

The State seeks review of an order granting Stephen DeLuca’s motion to suppress evidence obtained as a result of what the trial court called an illegal detention. The issue is whether officers had justification, based on a detailed 911 call, to detain DeLuca and investigate the report of his criminal activity. Because the trial court’s characterization of the informant as an “anonymous tipster” relied

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solely on information discovered after the detention commenced, and the totality of the circumstances indicate the police reasonably believed the incident report was verifiable and reliable when the detention began, we conclude the motion was granted in error. Accordingly, we reverse the order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUNDNo dispute exists as to the material facts leading to DeLuca’s arrest. Around 1:30 a.m. on February 28, 2009, a police radio “be-on-the-lookout” (BOLO) dispatch reported two white men in a vehicle pulled a black 9-mm handgun on a man named Cecil Brown in the area of Carolina and Macomb Streets in Tallahassee. One of the gunmen reportedly wore a hat. This information derived from a 911 call to the police by a caller who identified himself as the victim, Cecil Brown. The caller provided a cell phone number where he could be reached, specifically described his clothing (bluejeans, a black turtleneck, and a green Miami Hurricanes jacket), identified his street corner location, and described the gunmen’s vehicle as a black GMC Yukon bearing license plate number 285WZX and displaying a Florida State University decal on its rear window. The caller reported the vehicle was heading west near the 500 block of Tennessee Street.

Under its standard procedure, the Tallahassee Police Department (TPD), after receiving a report from a victim of a violent street crime, dispatches to the

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crime site to investigate the report and also attempts to pursue armed suspects based on the information in the BOLO. According to police records, at 1:33 a.m. the victim still reported he was at the same location, and TPD Officer Johnson (who did not testify at the suppression hearing) arrived in the vicinity of the reported crime at 1:34 or 1:35 a.m. Almost simultaneously, TPD Officer Harriett, then on patrol, heard another officer’s report indicating the gunmen’s vehicle was proceeding through the 1000-1100 block of West Tennessee Street. Yet a third officer reported seeing the GMC Yukon near Tennessee Street and High Road. No later than 1:39 or 1:40 a.m., Officer Harriett spotted the dark GMC Yukon and believed the two suspects were present. At that point, Officer Harriett knew the investigators had “lost contact” with Mr. Brown, as if the caller’s phone were dead or disconnected. When Officer Harriett saw the vehicle, he knew other investigators were still actively looking for Mr. Brown and were trying to reestablish phone contact with him, although unsuccessful so far.

The unoccupied GMC Yukon, with the license tag number and FSU decal, exactly as reported, was parked in front of a gas station/convenience store at Tennessee and Call Streets, not far from the reported incident site. Although spying a number of people in the parking lot, Officer Harriett saw only two white men (one wearing a hat). These men stood directly beside the FSU decal-bearing GMC Yukon. Harriett believed the two men were the subjects of the 911 call.

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Significantly outnumbered and knowing the men were reportedly armed, Officer Harriett exited his police vehicle and ordered everyone to sit on the ground for safety reasons. Everyone complied with the order except the white man who was not wearing a hat.

At the suppression hearing, Officer Harriett ultimately identified appellee DeLuca as the man who refused to sit down. Harriett further explained that DeLuca maintained a defiant, threatening stance and demeanor despite repeated warnings to calm down, sit on the ground, and be still. DeLuca began cursing, crept toward the Yukon on all fours, and eventually lunged in front of the Yukon out of Harriett’s sight. Officer Harriett ran to where he could see DeLuca and ordered DeLuca to show his hands. DeLuca refused this command and began “belly-crawling” toward the officer. TPD Officer Gates, by then on the scene, handcuffed DeLuca. During the detention, Officer Harriett looked under the Yukon where DeLuca’s arm had been and found several packets of white powder, some of which was cocaine.

Sometime after the arrest, TPD determined it could not verify the call from Cecil Brown. DeLuca’s companion, Prescott, claimed that he and DeLuca had a disagreement with a “panhandler” earlier. TPD never located the supposed Cecil Brown. Neither did officers find a handgun.

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Charged with drug offenses and resisting without violence, DeLuca moved to suppress essential evidence on the grounds that the 911 caller was merely an anonymous tipster; the police had no independent corroboration of suspicious conduct by DeLuca to bolster the inherently unreliable tip and to justify detaining him; and, the resulting detention and investigation of DeLuca was illegal. After an evidentiary hearing, the trial court issued the suppression order, finding that 1) the informant’s communication was tantamount to an anonymous call and his tip was thus unreliable; 2) law enforcement lacked any independent corroboration of criminal activity involving DeLuca that would create a reasonable suspicion justifying an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968); 3) the resulting detention was illegal; and 4) the evidence seized during the detention must be suppressed pursuant to Baptiste v. State, 995 So. 2d 285 (Fla. 2008). The court found the tipster left the area before the police responded and did not answer his cell phone when the dispatcher called him back. The court referred to evidence (acquired after the detention) that the informant “had a less than pure motive for the call”: he was a panhandler who confronted DeLuca shortly before making the call. The State has appealed the order. We have jurisdiction. See Rule 9.140(c)(1)(B), Florida Rules of Appellate Procedure.

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ANALYSISWe review the suppression order to determine whether competent substantial evidence supports the factual findings; we review de novo the trial court’s application of the law to the facts. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (stating the ultimate determination of reasonable suspicion is an issue of law reviewed de novo); Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). The trial court’s ruling on a motion to suppress enjoys a presumption of correctness on appeal, and we review the evidence and all reasonable inferences from it in a light most favorable to sustaining the order. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). Article I, section 12 of the Florida Constitution requires Florida courts to construe search and seizure issues in conformity with the United States Supreme Court’s interpretation of the Fourth Amendment. See Holland v. State, 696 So. 2d 757, 759 (Fla. 1997).

Unquestionably, Officer Harriett’s order to the assembled crowd to sit on the ground was a “seizure” or detention for Fourth Amendment purposes. See Gipson v. State, 667 So. 2d 418, 419-20 (Fla. 5th DCA 1996). For a justified temporary detention, Officer Harriett must have had a reasonable suspicion of criminal activity. See § 901.151(2), Fla. Stat. (2008); Terry, 392 U.S. at 24-26; Baptiste, 995 So. 2d at 290. With regard to a BOLO dispatch, the Florida Supreme Court has directed:

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Several factors are relevant in assessing the legitimacy of a vehicle stop pursuant to a BOLO: (1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.

Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995). Here, the first three factors overwhelmingly support the detention; the only dispute regarding the legitimacy of the detention relates to the fourth Hunter factor.

“[W]hen the police act on the information of an informant, the reliability of that information must be established before a citizen can be stopped and frisked.” J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), affd, Fla. v. J.L., 529 U.S. 266 (2000); see also State v. Manuel, 796 So. 2d 602, 605 (Fla. 4th DCA 2001) (“Whether the police have reasonable suspicion to stop a suspect based on information provided by an informant depends upon the credibility of the informant.”). The resolution of this issue depends in large part on “the classification to be given to the caller[]/informant[],” State v. Maynard, 783 So. 2d 226, 228 (Fla. 2001), for “[i]nformants’ tips… may vary greatly in their value and reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972). The spectrum of reliability ranges from the relatively unknown veracity and reliability of an anonymous, unknown tipster whose assertions of criminal activity typically cannot be verified and thus require independent corroboration, to the presumed high reliability of a citizen-informer crime victim whose motivation in reporting

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illegality is the promotion of justice and public safety rather than financial gain, and who can be held accountable for the accuracy of the information given. See J.L., 529 U.S. at 270; Maynard, 783 So. 2d at 228-30; Manuel, 796 So. 2d at 605; State v. Talbott, 425 So. 2d 600, 602 n.1 (Fla. 4th DCA 1982); Barfield v. State, 396 So. 2d 793, 796 (Fla. 1st DCA 1981).

As noted, the United States Supreme Court flatly refused to compose “[o]ne simple rule” for every situation. Adams, 407 U.S. at 147. As that Court noted:

Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime the subtleties of the hearsay rule should not thwart an appropriate police response.

The trial court characterized the informant here as “anonymous,” thereby relegating his tip to “the low end of the reliability scale.” Given this initial determination, the court necessarily considered whether the police had any independent corroborative evidence to raise the informant’s reliability index. See Alabama v. White, 496 U.S. 325, 330 (1990) (noting that “[r]easonable suspicion… is dependent upon both the content of information possessed by police and its degree of reliability”); Maynard, 783 So. 2d at 229. The trial court here failed to note the appropriate nuance to the informant rule where the informant is the victim of the crime reported.

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The facts reasonably known to the officers when the detention commenced belie the court’s findings as to anonymity and initial unreliability. See State v. Evans, 692 So. 2d 216 (Fla. 4th DCA 1997). The 911 caller, identifying himself as Cecil Brown, described a recent incident involving two white males with a 9-mm handgun, and specifically described the getaway vehicle, including the license plate number and an FSU decal. Mr. Brown provided a cell phone number and a detailed description of his clothing, including the Miami Hurricanes jacket, gave a street location where the alleged armed incident occurred, and told police the travel direction of the Yukon.

Based on this cumulative information, strongly suggesting its source as a reliable citizen-informer whose credibility could be verified, the BOLO was legally sufficient to trigger both an immediate investigation at the site of the alleged violent street crime and an expedited effort to locate the armed men in the moving vehicle. When Officer Harriett spotted the Yukon matching the BOLO, as other investigators simultaneously attempted unsuccessfully to locate the caller or reestablish cell phone contact with him, the officer had a reasonable or founded suspicion the only two white men standing beside the parked vehicle, one wearing the reported hat, were the subjects of the very recent 911 call. Just as the eventual discovery of a crime cannot bootstrap a preliminary illegal investigation, see J.L., 529 U.S. at 271, the ultimate outcome here the investigating officers’ ultimate

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inability to track down the caller either by phone or by location did not divest Officer Harriett of the temporal requisite knowledge that reasonably justified the initial detention.

We find, then, the trial court incorrectly classified the tip by relying solely on other information discovered by law enforcement after the lawful detention. Certainly this later information suggested the informer’s veracity and reliability were less stalwart than originally thought when TPD broadcast the BOLO. Cf. Baptiste, 995 So. 2d at 293 (noting “the fact that an anonymous tip ultimately proves to be accurate does not establish reasonable suspicion”). Nevertheless, belatedly acquired facts did not blemish the reasonable police actions here. The lawfulness of DeLuca’s detention depended on what the officers knew at its inception. See Ik, 529 U.S. at 271.

Likewise, the trial court misplaced its reliance on the materially distinguishable facts in Baptiste, 995 So. 2d at 285 (concluding that an anonymous 911 call stating that a black male wearing a white T-shirt and bluejean shorts waved a firearm in front of a supermarket did not provide a reasonable suspicion to initiate an investigative stop of defendant, who matched the description in the call, where the officer arrived at the scene and did not observe defendant engaged in any unlawful act, unusual conduct, or suspicious behavior). In reaching these

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conclusions, we note the absence of any unreasonable delay or biased actions by TPD.

The citizen-informer initially provided sufficient information the police reasonably believed could be verified, and Officer Harriett observed the Yukon simultaneously with the police investigation of the reliability of the BOLO. A requirement that police be absolutely certain of the veracity and reliability of a victim/citizen-informer before detaining reportedly armed suspects, especially where no clear reason existed to question the caller’s information when the detention commenced, would unduly burden law enforcement and endanger the public.

We REVERSE the suppression order and REMAND for further proceedings.

ROWE AND MARSTILLER, JJ., CONCUR.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.

Andrew G. Spicola, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta, Judge.

CASANUEVA, Chief Judge.

The State of Florida appeals an order dismissing its criminal case against Luis Buitrago for trafficking in cocaine and conspiracy to traffic in cocaine due to a violation of Brady v. Maryland, 373 U.S. 83 (1963). In granting Mr. Buitrago’s motion to dismiss, the trial court found that the State had unintentionally lost or destroyed certain audio recordings which Mr. Buitrago claimed were exculpatory in nature. However,

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because there was no showing of bad faith and the evidence was not material but only potentially useful to the defense, the trial court erred by imposing too severe of a sanction for the State’s Brady violation. Therefore, we reverse the trial court’s order and remand for further proceedings.

The State utilized a confidential informant (CI) to arrange the purchase of one kilo of cocaine from an unnamed supplier through a middleman, Mr. Curry. The CI and Mr. Curry spoke by telephone a number of times. During these calls, Mr. Curry referred to his supplier and “money man” as “my boy” and never by name. At the time and place of the scheduled exchange, Mr. Curry arrived in a car with Mr. Buitrago as his passenger. After the CI, Mr. Curry, and a police sergeant acting as a dealer conducted the transaction, a bust team moved in and found money, cocaine, and other illicit items on Mr. Curry’s person. The police found nothing on Mr. Buitrago’s person. Mr. Curry alleged that Mr. Buitrago had supplied him with the money and cocaine. The State charged Mr. Buitrago with trafficking in and possession of cocaine.

In his motion to dismiss, Mr. Buitrago argued that the CI had recorded several of his telephone conversations with Mr. Curry and that the CI had transferred the tapes to the Tampa Police Department. Sometime after this transfer the recordings disappeared and were no longer available. Mr. Buitrago argued that these tapes were exculpatory because his name was never mentioned in these calls and thus the tapes would prove that Mr. Curry acted alone. Notably, Mr. Buitrago did not argue any bad faith on the part of the government. The trial court ruled as follows:

Well, in this case, it is clear from the testimony of Mr. McCarthy that he did record the co-defendant in this case, Mr. Curry. Again the crux of those phone calls Dwas no mention of the defendant in this case.

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That’s clearly exculpatory evidence. And under Brady and under [State v. ' lPowers, [555 So. 2d 888 (Fla. 2d DCA 1990),] I’m going to grant the motion to dismiss.

The trial court specifically found that there was no showing of bad faith.

To establish a Brady violation, generally, “[t]he defendant must allege specific facts that, if accepted as true, establish a prima facie case that (1) the State possessed evidence favorable to the accused because it was either exculpatory or impeaching; (2) the State willfully or inadvertently suppressed the evidence; and (3) the defendant was prejudiced.” Allen v. State, 854 So. 2d 1255, 1259 (Fla. 2003). The trial court determined that the recordings did exist and were inadvertently lost or destroyed by the police department without any bad faith. We see no reason to disturb these factual findings. See Way v. State, 760 So. 2d 903, 911 (Fla. 2000) (holding that a trial court’s factual findings should be upheld if supported by competent, substantial evidence). And certainly, the loss of the tapes was prejudicial to Mr. Buitrago because the conversations on those tapes, as alleged by Mr. Buitrago, would tend to prove that he had no part in the charged offenses. Therefore, we find no error in the trial court’s ruling that the State had violated Brady.

However, whether this due process violation was sufficiently severe to warrant dismissal of the case requires further consideration. As this court stated in State v. Thomas, 826 So. 2d 1048, 1049 (Fla. 2d DCA 2002):

The dismissal of a charge is the most severe sanction a court can impose for the destruction of evidence; it is to be used with the greatest caution and deliberation. State v. Westerman, 688 So. 2d 979 (Fla. 2d DCA 1997). The suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S.

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83, 87 (1963). But the loss or destruction of evidence that is only potentially useful to the defense violates due process only if the defendant can show bad faith on the part of the police or prosecution. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); King v. State, 808 So. 2d 1237, 1242 (Fla.), cert. denied, 536 U.S. 962 (2002).

(Parallel citations omitted); see also State v. Gomez, 915 So. 2d 698 (Fla. 3d DCA 2005) (holding that trial court erred in dismissing a case based upon a Brady violation when the destroyed evidence was only potentially useful and there was no evidence of bad faith).

We conclude the tapes were potentially useful to the defense, but they were not exculpatory. The defense planned to introduce the tapes to prove that Mr. Buitrago’s name was not mentioned in the conversations between the CI and the codefendant. The fact that his name was not mentioned in certain conversations could be helpful, but it is not a material fact that disproves the State’s theory of guilt. The State may possess other evidence that connects Mr. Buitrago to the sale of the drugs and to Mr. Curry, but that can only be determined if the State has the opportunity to present its case.

Because the trial court erred in dismissing the case, we reverse the order of dismissal and remand with instructions that the trial court reinstate the charges against Mr. Buitrago. See Thomas, 826 So. 2d at 1050. On remand, the trial court may consider other remedies to cure any prejudice caused by the Brady violation.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Taylor, J.

Dustin J. Williams appeals his criminal convictions and sentences for manslaughter and grand theft of a firearm. Williams, who was seventeen years old at the time of these offenses, accidentally shot and killed his best friend, robert scott Thomas. The firearm he used had been stolen from a deputy’s vehicle the day before. We find no error in the trial court’s denial of the defendant’s motion for judgment of acquittal on the manslaughter charge because there was competent substantial evidence to support manslaughter. See Sapp v. State, 913 So. 2d 1220, 1223 (Fla. 4th DCA 2005). We also find no error in the trial court’s determination that no discovery violation resulted from the state’s late production of a witness’s statement that merely provided more detailed information than the witness’s earlier statement. However, we reverse and remand this cause for a new trial because the trial court erred in failing to sever the grand theft of a firearm and manslaughter charges.

The evidence in this case established that the defendant unintentionally shot and killed the victim while handling a loaded firearm in the victim’s presence. The gun was facing in the general direction of the victim when it discharged a bullet from the firing chamber as the defendant released the ammunition clip to the ground. The victim fell to the floor on his face with his knees bent. shocked, the defendant cried, “Oh, my God, oh, my God, what have I done?” The defendant and victim were best friends, and at the time of this tragic incident, there was no animosity or disagreement between them and the defendant was not threatening or joking with the victim or playing russian roulette. The defendant was extremely remorseful.

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Although this case is somewhat similar to other cases where the evidence was found insufficient to sustain a conviction for manslaughter by culpable negligence, a critical factor that distinguishes this case from those cases is the defendant’s consumption of alcohol at the time of this incident. See Sapp, 913 So. 2d at 1226; In the Interest of J.C.D., 598 So. 2d 304, 304 (Fla. 4th DCA 1992). A friend of the defendant, who was spending the evening with the defendant and the victim at the defendant’s house before the shooting occurred, testified that the three friends were hanging out in the defendant’s bedroom, watching television, and drinking beer. He testified that the defendant drank six beers and was “buzzing.”

Officer David Butterworth recovered the firearm used in the shooting. It was lying on a desk in the defendant’s bedroom. The firearm, a Colt Mustang 380 Automatic, belonged to Deputy George Primm. Deputy primm kept the firearm in his patrol vehicle over the sun visor on the driver’s side. The last time he saw the gun in his vehicle was on the Tuesday before Thanksgiving-three or four days before the shooting. During a secretly recorded conversation between the defendant and his father in an interview room at the Port St. Lucie Police Department, the defendant said that he was present when the deputy’s gun was stolen, but he denied stealing it. He admitted, however, that he received the stolen gun from his companion and brought it home.

The defendant was charged by information with manslaughter and grand theft of a firearm. Before trial, defense counsel moved to sever the charges. The trial court denied the motion, explaining that the charges were connected in an episodic sense and thus properly joined. The jury found the defendant guilty, as charged, on both counts. He was sentenced to 18 years on the manslaughter count and 5 years on the stolen firearm count, the two terms to run concurrently.

The defendant argues that the trial court erroneously denied his motion to sever the charge of manslaughter from the charge of grand theft of a firearm. Because the decision to grant or deny a motion for severance rests within the sound discretion of the trial court, we review the denial of the motion for an abuse of discretion. Smithers v. State, 826 So. 2d 916, 923 (Fla. 2002);State v. Vazquez, 419 So. 2d 1088, 1090 (Fla. 1982).

Two or more related offenses may be joined if they are based on the same act or transaction or on two or more connected acts or transactions. Fotopoulos v. State, 608 So. 2d 784, 789 (Fla. 1992).

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Florida Rule of Criminal Procedure 3.150(a) (2008), which governs joinder of offenses, states:

Two or more offenses that are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on 2 or more connected acts or transactions.

In this case, the trial court determined that the fatal shooting of the victim and the theft of the gun used in the shooting were acts connected in an episodic sense; thus, they were properly joined. However, the fact that the offenses may have been properly joined in the first instance is not controlling on the issue of whether the defendant is entitled to have separate trials to prevent prejudice. See Fotopoulos, 608 So. 2d at 790; Ellis v. State, 622 So. 2d 991, 999 (Fla. 1993). Florida Rule of Criminal Procedure Rule 3.152 authorizes the court to grant a severance, even where offenses are properly joined, upon a showing that severance is appropriate for a fair determination of the defendant’s guilt or innocence of each offense.

The defendant moved for severance under rule 3.152(a)(2), which states:

In case 2 or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the state or of a defendant: (A) before trial on a showing that the severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.

For joinder to be appropriate, the separate crimes must be linked in some significant way. Ellis, 622 So. 2d at 1000. “This can include the fact that they occurred during a ‘spree’… or the fact that one crime is causally related to the other.” Id. A trial court must find that a meaningful relationship exists between the charges of separate crimes before allowing them to be tried together. Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992).

The state argues that the trial court properly denied the defendant’s motion to sever charges because the two crimes were linked in a causal sense: the gun used in commission of the manslaughter was the same

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gun taken from the deputy’s vehicle a few days before. To support its position the state cites Rodriguez v. State, 919 So. 2d 1252 (Fla. 2005).

In Rodriguez, the defendant, convicted of first-degree murder, sought post-conviction relief, claiming that his attorney was ineffective for failing to request a severance of homicide charges from charges related to a home invasion robbery and shooting. 919 So. 2d at 1271. Rodriguez robbed and killed the owner of an auto parts store to obtain money to repay a debt owed to a bondsman. Id. at 1259. He took the victim’s watch and a briefcase containing cash and a revolver. The next day Rodriguez, along with several other men, went to a residence intending to commit a home invasion robbery. The home invasion was thwarted when the resident fired a gun at them and caused them to flee. As the men fled, Rodriguez dropped the revolver that he had stolen from the murder/robbery victim the previous day. Id. at 1259-60.

The Florida Supreme Court upheld the denial of the defendant’s postconviction motion, determining that the charges were interconnected because the defendant “used the gun taken from the murder victim during the home invasion the next day.” Id. at 1271. The Court pointed out that the two crimes were part of a common scheme to obtain money to discharge a debt and that they were connected by temporal and geographic proximity. Id. For those reasons, the Court surmised that if the defendant’s attorney had moved for a severance, the motion would probably not have been granted. Id. at 1272 (citing Livingston v. State, 565 So. 2d 1288, 1290 (Fla. 1990)).

In Livingston, the defendant broke into a house around noon and stole two cameras, a pistol, and some jewelry. 565 So. 2d at 1289. Later that evening, the defendant used the stolen pistol to commit a robbery and shoot two people inside a convenience store. Over defense counsel’s objection, the trial court consolidated the burglary/theft and murder/armed robbery charges for trial. The Florida Supreme Court found no abuse of discretion in the trial court’s decision to consolidate these charges that were “connected in an episodic sense because they occurred only hours apart in the same small town and because the pistol stolen in the burglary became the instrument for effecting the armed robbery and murder.” Id. at 1290.

We observe that in Rodriguez and Livingston, unlike here, the severance analysis centered on whether the charges were properly consolidated under rule 3.150, rather than on whether their consolidation would cause undue prejudice and unfairly influence the jury’s verdict under rule 3.152. In both cases, our Supreme Court ruled

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that they were properly consolidated because they were connected in an episodic sense.

Similarly, in Fotopoulos, the Court determined that the crimes were properly consolidated because they were causally linked. 608 So. 2d at 790. in that case the defendant threatened to kill his girlfriend unless she murdered a man, Kevin Ramsey, who was blackmailing the defendant. The defendant videotaped his girlfriend shooting Ramsey and then later blackmailed her with the videotape of the murder to induce her to hire a hit man to murder the defendant’s wife, Lisa. The defendant wanted his wife killed so he could recover $700,000 in insurance proceeds. Id. at 786. The hit man, Bryan Chase, shot Lisa once in the head but did not kill her. The defendant then shot and killed Chase to make it appear that he was killed during a burglary. The defendant was charged with first-degree murder of Ramsey and Chase, attempted firstdegree murder, solicitation to commit first-degree murder, conspiracy to commit first-degree murder, and armed burglary of a dwelling. The Court affirmed the trial court’s refusal to sever the count charging firstdegree murder of Ramsey from the remaining counts. it held that the offenses were properly charged in a single indictment because they were “clearly connected in an episodic sense” and that severance was not necessary to promote a fair determination of Fotopoulos’ guilt or innocence. The Court stated that “[e]ven if there had been separate trials, evidence of each offense would have been admissible at the trial of the other to show common scheme and motive, as well as the entire context out of which the criminal action occurred.” Id. at 790.

In contrast, the criminal acts in this case were not clearly connected in an episodic sense, nor were they causally linked. They were not part of a single criminal episode and did not involve similar criminal conduct such as to be considered part of a crime spree. See Farrington v. State, 884 So. 2d 1094, 1096-97 (Fla. 4th DCA 2004) (noting that a crime spree requires similarity of criminal conduct as well as temporal and geographical proximity). Moreover, the defendant’s offenses lacked a causal link because one was not used to induce the other, and evidence of one crime was not necessary to explain the other. See Rodriguez v. State, 909 So. 2d 547, 550 (Fla. 4th DCA 2002), (explaining that “[c]rimes are causally linked when one crime is used to induce the other or when evidence of one crime is necessary to explain the other.”); Jones v. State, 497 So. 2d 1268, 1272 (Fla. 3d DCA 1986) (holding that severance was required where the only connection between offenses arising from two criminal episodes was the use of a stolen car and the accused’s alleged participation); Stephens v. State, 863 So. 2d 434, 437

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(Fla. 4th DCA 2003) (finding no causal link between the stolen character of the car and the assault and theft from a woman at a gas station).

Here, the only connection between these two offenses was the stolen gun. The state did not seek to prove that the defendant stole the firearm with the intent to facilitate another crime or that the gun theft and shooting were part of a crime spree. Prosecution of the defendant was not premised on the implausible theory that the defendant obtained the firearm with the intent to negligently shoot and kill his best friend. in its proffer in opposition to severance, the state did not demonstrate how the stolen character of the firearm was relevant to the issue of culpable negligence or the defendant’s excusable accident defense. The state argued that the gun theft was relevant to show defendant’s knowledge that the police weapon was operable and loaded. However, evidence that the gun was loaded when it was stolen from the police car was not disputed; soon after the defendant acquired the gun, he examined it, removed bullets from the ammunition clip, and then put them back into the clip. in sum, evidence of each offense was not necessary to explain the other. These offenses were not inextricably intertwined and could have been proven independently of each other.

In any event, any relevancy of evidence that the gun was stolen from a deputy’s vehicle was outweighed by the potential for prejudice in the jury’s consideration of the manslaughter charge. Severance of offenses should be granted liberally when prejudice is likely to flow from a denial of severance. State v. Vazquez, 419 So. 2d 1088, 1090 (Fla. 1982); Sosa v. State, 639 So. 2d 173, 174 (Fla. 3d DCA 1994). See also Livingston, 565 So. 2d at 1290 (citing United States v. Lane, 474 U.S. 438 (1986), noting that reversal is required where misjoinder causes prejudice by having a damaging effect or influence on the jury’s verdict.).

The grand theft firearm charge was collateral crime evidence, which was presumptively harmful. See McCall v. State, 941 So. 2d 1280, 1283 (Fla. 4th DCA 2006). Moreover, evidence of a crime of this magnitude theft of a law enforcement officer’s gun had a high probability of contaminating the jury and affecting its ability to fairly determine the defendant’s guilt or innocence on each charge. Thus, even if the offenses were properly joined under Rule 3.150(a), the trial court abused its discretion in failing to sever the charges under Rule 3.152(a)(2) to “promote a fair determination of the defendant’s guilt or innocence of each offense.” Because we are unable to conclude that there is no reasonable possibility that the error contributed to the conviction, we cannot say that the error was harmless. See Ventura v. State, 29 So. 3d

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1086, 1089-92 (Fla. 2010); State v. DiGuilio, 491 So. 2d 1129, 1138-39 (Fla. 1986).

Accordingly, we reverse the defendant’s convictions and sentences and remand for separate trials on each count.¹

Reversed and Remanded.

Gerber and Levine, JJ., concur.

* * *Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge

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^1. Because we are reversing and remanding for separate trials, we need not address the defendant’s fourth point that the trial court committed fundamental error in instructing the jury on excusable homicide. The court instructed the jury that the killing would be excusable if “committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent.” The defendant argues that the instruction negated his accident defense by requiring “a lawful act” committed by “lawful means.” He contends that, because the trial court did not instruct the jury that grand theft is not a continuing offense, the jury may have believed that his unlawful possession of a stolen gun precluded them from finding that the shooting was accidental. On remand, because these offenses will be tried separately, this issue may not recur.

However, we take this opportunity to alert the trial judge and counsel that the excusable homicide instruction contained in Instruction 7.7, Standard Jury Instructions in Criminal Cases, is an important issue that has been recently addressed in comments on amendments to Instruction 7.7 submitted to the Florida Supreme Court and the Supreme Court Committee on Standard Jury Instructions in Criminal Cases. See Comment on Amendments to Instruction 7.7, Standard Jury Instructions In Criminal Cases, filed by Richard M. Summa, Assistant Public Defender, Second Judicial Circuit in In Re: Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, No. SC10-113 (Fla. April 8, 2010).
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Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

May, J.

The defendant appeals a restitution order entered following her plea to grand theft. She argues the court erred in awarding restitution without legally sufficient evidence to support the value of the items taken. We disagree and affirm.

The State charged the defendant with one count of grand theft between $20,000 and $100,000. The defendant entered a no contest plea. The trial court withheld adjudication, sentenced her to five years probation, and subsequently entered a restitution order.

At the restitution hearing, the victim testified concerning the several pieces of jewelry stolen from her: a gold wedding band, a diamond wedding band, a diamond and gold circle ring, a 2.5 carat diamond set in a diamond band, a diamond tier necklace, a gold anklet, a tennis bracelet, a pair of diamond hoop earrings, diamond studs, a diamond heart with a gold mesh chain, 104 Susan B. Anthony coins, and a large circle of diamonds on a chain.

The victim testified that the gold wedding band was purchased for about $400 in 1972. She found a comparable one costing approximately $1800. She testified that gold was $100 an ounce in 1972 and was now $900 an ounce.

The diamond wedding band was purchased in 1972 for about $2,500, and the ring is currently being sold for $4,800. However, the original wedding band could not be replaced exactly because only two were made.

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The diamond and gold circle ring was purchased around 1982 for about $1,800. She found a comparable replacement for approximately $2,800. The 2.5 carat diamond set was purchased around 1974 for about $4,000. She found a comparable replacement for approximately $7,200.

The diamond tier necklace was purchased in 2002 for $2,200; it now sells for about $2,800. The gold anklet was purchased in 2006 for $250, and the comparable replacement was about the same price. The tennis bracelet was purchased around 1998 for about $1,200; a comparable replacement was $1,500.

The diamond hoop earrings were purchased for $1,000 in 2000 and would cost about $1,400 to replace. The 1.5 carat diamond studs were purchased in 1977 for $2,000 with a comparable replacement costing $2,900. The diamond heart with the gold mesh chain was purchased in 1997 for approximately $2,200 with a comparable replacement priced around $2,800.

The 104 Susan B. Anthony coins were worth $104. The diamond circle necklace was purchased around 2004 for about $2,500, and is currently worth about $2,900.

The victim based the original purchase prices on personal knowledge and information from her husband, who also testified at the hearing. She obtained comparable values from research she conducted online and at Kay Jewelers.

The trial court awarded restitution as follows:

At this point, the Statute 775.089 requires the Court to order restitution for any victim in the case. I find that Mrs. Baer is the victim in the case. Pursuant to the statute, I have considered this evidence, this testimony, and the arguments that [defense counsel] makes. He makes good arguments. I think there is more here than just simple hearsay. I think also that a bit of common sense needs to be used in evaluating these issues.

The Court will grant the State’s motion for restitution. I have added it up. I will base it on replacement value as testified to by Mr. and Mrs. Baer. You can add it up if you think it’s different; either side. I did add it up twice to make sure the

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number was correct.

It’s $1,800 for the gold wedding band; $4,800 for the diamond wedding band; $2,800 for the diamond gold circle ring; $7,200 for the 2.5 diamond set in a diamond band; $2,800 for the diamond tier necklace; $250 for the gold anklet; $1,600 for the tennis bracelet; $1,400 for the diamond hoop earrings; $2,900 for the diamond studs; $2,800 for the diamond heart with gold mesh necklace; $2,900 for the large circle necklace diamond, and $104 for (104) $1 Susan B. Anthony coins.

The Court finds that this is the loss to the victim, based upon the crime for which Ms. Gonzalez has plead [sic] and been sentenced for. I total that up and find that total to be $31,354. I will order restitution payable to Mrs. Baer in that amount.

I note the defendant’s objection. That objection is overruled. The defendant is on probation for 60 months. I will order that payable in equal monthly installments.

The defendant now appeals the restitution order, arguing the trial court erred in entering the order because the evidence was legally insufficient. We disagree.

We review trial court restitution orders for an abuse of discretion. Bennett v. State, 944 So. 2d 524, 525 (Fla. 4th DCA 2006).

The State bears the burden of proving the amount of restitution, which “must be proved by a preponderance of the evidence” and supported “by substantial competent evidence.” Id. (quoting Koile v. State, 902 So. 2d 822, 824 (Fla. 5th DCA 2005)).

A victim is generally qualified to testify as to the value of his or her property. Atl. Coast Line R. Co. v. Sandlin, 78 So. 667, 668-69 (Fla. 1918). Sometimes, however, the property’s market value does “not adequately reflect the victim’s loss,” particularly a family heirloom. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).

The defendant, however, argues error in the trial court’s reliance on replacement value instead of fair market value, citing Molter v. State, 892 So. 2d 1115 (Fla. 2d DCA 2004). We disagree. Molter actually affirmed the trial court’s rejection of fair market value as the only measure of

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value for restitution purposes. Id. at 1118-19.

The defendant further argues error in reliance on speculative hearsay testimony. See Bennett, 944 So. 2d at 524. In Bennett, we held the testimony was insufficient to support the award of $115,000 in restitution. Id. at 526. However, unlike Bennett, here the victim’s testimony was neither speculative nor based on hearsay.

We have reviewed this court’s opinions on restitution. They reveal consistent rules on the competency and legal sufficiency of victim testimony to support restitution.

First, a victim’s mere opinion testimony on the value of stolen property is insufficient. Soriano v. State, 968 So. 2d 112, 114 (Fla. 4th DCA 2007) (citing Rodriguez v. State, 956 So. 2d 1226, 1231 (Fla. 4th DCA 2007)). A victim must have a sufficient predicate upon which to base his or her opinion on the value of items stolen. Peters v. State, 555 So. 2d 450, 451 (Fla. 4th DCA 1990). Catalog prices alone are insufficient to establish a sufficient predicate. Fitzgerald v. State, 952 So. 2d 1250, 1251 (Fla. 4th DCA 2007).

Second, a trial court is not limited to, but may rely on, fair market value in ordering restitution. Wolff v. State, 981 So. 2d 651, 653 (Fla. 4th DCA 2008). “While the court is not restricted to fair market value in determining restitution, it should consider the fair market value through direct testimony or evidence of the original cost, the use of the item, and its condition at the time of the theft.” Jackson v. State, 711 So. 2d 602, 603 (Fla. 4th DCA 1998) (citing Bakos v. State, 698 So. 2d 943, 944 (Fla. 4th DCA 1997)). But see, Wolff, 981 So. 2d at 653 (finding the trial court erred in basing restitution on replacement value rather than fair market value).

Third, a victim’s testimony on the value of items stolen or damages can be sufficient. A.G. v. State, 718 So. 2d 854, 856 (Fla. 4th DCA 1998). But, it must be supported by documentation. Bennett, 944 So. 2d at 526.

Fourth, restitution is designed to make the victim whole. Yaun v. State, 898 So. 2d 1016, 1017 (Fla. 4th DCA 2005). “Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.” Id. (quoting Hercule v. State, 655 So. 2d 1256, 1257 (Fla. 3d DCA 1995)).

Here, the restitution order was supported by competent, substantial

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evidence. The victim and her husband both testified to the original purchase price of and the dates the jewelry was purchased. Their testimony was based on more than mere conjecture; it was supported by documented evidence. It constituted legally sufficient evidence to support the trial court’s award of restitution.

Affirmed.

Gross, C.J., and Ciklin, J., concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin Bidwill, Judge; L.T.

Lance Armstrong, Miami, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Gerber, J.

The defendant appeals his conviction for aggravated fleeing and eluding under section 316.1935(2), Florida Statutes (2007). He argues that the trial court erred in denying his motion for judgment of acquittal. Specifically, he contends there was no evidence that the patrol vehicles from which he was fleeing had “agency insignia and other jurisdictional markings prominently displayed.” § 316.1935(2), Fla. Stat. (2007). We affirm.

At approximately midnight, two police officers, driving separate marked vehicles with overhead lights, were stopped one behind the other in eastbound traffic at a red light on a major city street. Suddenly, they observed the defendant’s vehicle pass to the right of the stopped traffic. The defendant’s passenger-side wheels went up on the sidewalk. The defendant then ran the red light, continuing eastbound. The first officer activated his overhead lights and siren and pursued the defendant. The second officer activated his overhead lights, but not his siren, and also pursued the defendant. After two blocks, the officers turned off their lights, and the first officer turned off his siren, per department policy not to engage in a chase for a mere traffic infraction. The defendant then made a wild U-turn in front of oncoming traffic to go westbound. As the defendant made the U-turn, the westbound traffic had to stop or steer out of the way to avoid hitting the defendant. The defendant then turned down a side street into a residential neighborhood.

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The officers followed the defendant into the neighborhood. After the first officer saw the defendant’s vehicle again, the officer re-activated his lights, but not his siren. The defendant continued driving. The defendant then parked in front of a house and ran from his vehicle towards the house. The officer parked and ran after the defendant. The defendant tried to open a door to the house with a key. As the officer rushed towards him, the defendant broke a window, reached in through the broken glass, opened the door, went inside, and shut the door in the officer’s face. After backup officers arrived, the officer knocked on the door and announced, “Fort Lauderdale police!” The defendant opened the door. The officer told the defendant that he was under arrest. The defendant said, “No, I’m not. I’m not going to get under arrest.” The officers attempted to cuff the defendant, who resisted. The officers eventually took the defendant into custody. The officer testified that the defendant, while in custody, spontaneously said “he was sorry for what he did, that he knew he should have stopped when he saw my lights.”

The state charged the defendant with aggravated fleeing and eluding under section 316.1935(2), Florida Statutes (2007), which provides:

Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated[,] commits a felony of the third degree….

§ 316.1935(2), Fla. Stat. (2007).

At trial, the state asked the first officer:

Q…. Now, what kind of vehicle were you in? A. I was in a marked unit.

Q. Okay. And [were] there any police officers around you, in front of you or behind you? A. There was another officer behind me in his own car.

Q. And what was his-what did his vehicle look like?

A. A marked unit.

(emphasis added).

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Similarly, the state asked the second officer:

Q. And what were you driving?

A. A marked police unit-I’m sorry, a marked police vehicle.

Q. Okay. And what happened?

A. I was parked or stopped at a red light direct[ly] behind [the first officer].

Q. And what type of vehicle was he driving?

A. The same type I was, a marked police vehicle.

(emphasis added).

The defendant argues that, “[w]hile it may have appeared clear to… the jurors” what the phrases “marked unit” and “marked police vehicle” meant, those phrases were insufficient to satisfy section 316.1935(2)’s third element:

The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.

Fla. Std. Jury Instr. (Crim.) 28.7 (2007) (emphasis added).

The state responds that the officers’ references to “marked unit” and “marked police vehicle,” viewed in the light most favorable to the state, constitute competent, substantial evidence that the officers were in authorized law enforcement patrol vehicles “with agency insignia and other jurisdictional markings prominently displayed on the vehicle.” According to the state, “[c]ommon sense dictates that a ‘marked’ unit is a patrol car with the police agency’s insignia prominently displayed and provides an indication of where the agency’s jurisdiction lies. It is clear that the spirit of the law was satisfied.” The state adds that the defendant’s post-arrest statement-”he was sorry for what he did, that he knew he should have stopped when he saw my lights”-proves that the defendant knew he was fleeing from the police.

The supreme court articulated our standard of review in Pagan v. State, 830 So. 2d 792 (Fla. 2002):

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial

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evidence. 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.

Id. at 803 (internal citations omitted).

Applying that standard, we find sufficient evidence exists to sustain the defendant’s conviction. Viewing the officers’ references to “marked unit” and “marked police vehicle” in the light most favorable to the state, in conjunction with the defendant’s admission that he knew he was fleeing from the police, we conclude that competent, substantial evidence supports the defendant’s conviction for aggravated fleeing and eluding.

The defendant relies upon three cases in which our sister courts reversed convictions for aggravated fleeing and eluding because the state did not prove the “agency insignia and other jurisdictional markings” element: Gorsuch v. State, 797 So. 2d 649, 651 (Fla. 3d DCA 2001); Jackson v. State, 818 So. 2d 539, 542 (Fla. 2d DCA 2002); and Slack v. State, 30 So. 3d 684, 687 (Fla. 1st DCA 2010). However, none of those cases involved a defendant admitting that he knew he was fleeing from the police, as occurred here. We find that fact significant. The purpose of requiring the state to prove that “the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated” is to guarantee that the defendant “[knew] he had been directed to stop by a duly authorized law enforcement officer [and] willfully refused or failed to stop.” Fla. Std. Jury Instr. (Crim.) 28.7 (2007). The defendant’s admission here provides that guarantee. We leave for another day our consideration of whether reference to a “marked” vehicle, standing alone, is sufficient to prove the “agency insignia and other jurisdictional markings” element.

We find that the other arguments which the defendant has raised in this appeal are without merit. We choose not to address those arguments in this opinion.

Affirmed.

Hazouri, J., concurs.

Stevenson, J., concurs specially with opinion.

Stevenson, J., concurring specially.

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I concur in the majority’s result. I concur specially to note that I would find the state’s evidence sufficient to satisfy Florida Statutes section 316.1935(2)’s requirements, even without the defendant’s statement that “he knew he should have stopped because he saw my lights.” In my view, the defendant’s statement adds little to address the alleged deficiency in the state’s case, i.e., section 316.1935(2)’s requirement that the state show that “agency insignia” and other “jurisdictional markings” were prominently displayed on the vehicle. I would find that the testimony of Officer Orlando Almanzar that (1) the attempted stop occurred in Fort Lauderdale, (2) while he was on duty as a police officer with the City of Fort Lauderdale Police Department, (3) in uniform, (4) on road patrol assignment, and (5) driving a “marked unit,” was more than enough to satisfy the statute’s requirement that the vehicle was “an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed.” Applying the applicable de novo standard of review, and viewing Officer Almanzar’s testimony in the light most favorable to the state, see Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002), I would conclude that, irrespective of the defendant’s testimony, competent and substantial evidence supports the defendant’s conviction for aggravated fleeing and eluding. To the extent that Gorsuch v. State, 797 So. 2d 649, 651 (Fla. 3d DCA 2001), Jackson v. State, 818 So. 2d 539, 542 (Fla. 2d DCA 2002), and Slack v. State, 30 So. 3d 684, 687 (Fla. 1st DCA 2010), suggest a different result, I would not follow their lead.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez-Powell, Judge; L.T.