          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2345
                  _____________________________

CHARLES STAMITOLES,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari.


                            April 5, 2019


PER CURIAM.

     Charles Stamitoles petitions for second-tier certiorari review
from an order of the circuit court summarily affirming his county
court judgment and sentence. We deny the petition because it fails
to meet the high standard for granting second-tier certiorari
review.

     The petitioner’s case began in the county court and was
appealed to the circuit court, which entered a summary
affirmance. We have discretionary jurisdiction to review a decision
of the circuit court acting in its appellate capacity. Fla. R. App. P.
9.030(b)(2)(B). However, our review on second-tier certiorari is
very limited. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523,
530 (Fla. 1995) (“As a case travels up the judicial ladder, review
should consistently become narrower, not broader.”). Where, as
here, it is undisputed that the circuit court afforded procedural due
process, our review is confined to whether the court’s decision
“departed from the essential requirements of law.” Balzer v. Ryan,
44 Fla. L. Weekly D149 (Fla. 1st DCA December 31, 2018) (citing
Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla.
2010)). A departure from the essential requirements of law
requires that we find the circuit court “violated a clearly
established principle of law resulting in a miscarriage of justice.”
Custer, 62 So. 3d at 1092.

     The petitioner has failed to show the circuit court’s summary
affirmance departed from the essential requirements of law. See
State Farm Auto. Ins. Co. v. CC Chiropractic, LLC, 245 So. 3d 755,
758-59 (Fla. 4th DCA 2018) (recognizing that even if the county
court’s decision contained legal errors, “the circuit court’s per
curiam affirmance was not a violation of a clearly established
principle of law resulting in a miscarriage of justice so as to permit
our review by second-tier certiorari”). Second-tier certiorari is not
a second appeal. See Custer, 62 So. 3d at 1093 (emphasizing that
“certiorari cannot be used to grant a second appeal to correct the
existence of mere legal error”); State Farm, 245 So. 3d at 757 n.2
(noting “[a] denial of discretionary second-tier certiorari review
should not be construed to mean that we approve of the underlying
decisions”). Because the petition failed to meet the high burden
for second-tier certiorari review, the petition is DENIED.

WETHERELL, J., and BRASINGTON, MONICA J., ASSOCIATE JUDGE,
concur; MAKAR, J., concurs with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


MAKAR, J., concurring with opinion.



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     I fully concur and write to explain why the issue presented in
this certiorari proceeding presents a close question.

     While perusing new vehicles and awaiting delivery of a key
for a test drive with his wife and son, Dr. Charles Stamitoles was
approached by a sheriff’s deputy who had been summoned to the
Sandy Sansing BMW car dealership after a sales advisor and
credit manager told the deputy that Stamitoles had been put on
their “do not sell” list previously and wanted him removed.
Stamitoles disobeyed the deputy’s request to stay put and fled; the
deputy tackled and restrained him in short order. Stamitoles was
found guilty by a jury in county court of one count of resisting an
officer without violence (no trespass charge was lodged). The trial
judge, who thought the dealership’s actions were “ridiculous” (“I
feel that they set Mr. Stamitoles up to be arrested when they could
have simply said, leave.”), withheld adjudication and imposed
costs. Stamitoles appealed to the circuit court, arguing that the
arresting deputy was not engaged in the exercise of a legal duty
because no basis for a trespass violation was established. That
court affirmed without an opinion.

     Stamitoles’s petition in this Court asserts that his conviction
meets the standard for second-tier certiorari review, which is
“whether there has been a departure from the essential
requirements of law resulting in a miscarriage of justice.” Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); Combs v.
State, 436 So. 2d 93 (Fla. 1983). This standard applies to district
court review of circuit court appellate rulings. For instance,
although reevaluating the probative value of evidence is
impermissible on second-tier review, “when there is no evidence on
a material element of a crime, it is appropriate that certiorari be
granted notwithstanding an affirmance of a conviction by the
circuit court sitting in its appellate capacity.” Gonzalez v. State,
443 So. 2d 425, 426–27 (Fla. 2d DCA 1984). In Gonzalez, the
Second District held that the evidence of a farm labor registration
violation “was legally insufficient to sustain Gonzalez' convictions,
and, on appeal, he was entitled to have those convictions vacated.”
Id. at 427. Thus, where the “state presents no evidence of a
material element of a crime and the defendant is convicted, this
would constitute a miscarriage of justice.” Von Goff v. State, 687
So. 2d 926, 927–28 (Fla. 2d DCA 1997) (discussing Gonzalez).

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     Likewise, in Von Goff, the defendant sought review of a circuit
court decision affirming his county court conviction for “loitering
and prowling” by sitting outside a bathroom at 9pm next to an open
convenience store. Id. at 927. The arresting officer did not see the
defendant doing anything illegal but arrested him after he refused
to give his name. Id. In vacating the county court conviction, the
Second District noted that the “offense of loitering and prowling
contains two elements: first the accused must be loitering and
prowling in a manner not usual for law-abiding citizens; and
second, the loitering and prowling must be under circumstances
that threaten the public safety.” Id. at 928. As to the second
element, the Second District held that “assuming that sitting near
an open convenience store constitutes loitering and prowling in a
manner unusual for law-abiding citizens, there was no evidence
introduced at trial indicating that appellant's actions were
creating an imminent threat to the safety of persons or property in
the area.” Id. For this reason, the standard for certiorari relief was
established and the circuit court’s order quashed. Id.

     Turning to this case, the charge against Stamitoles is that he
violated section 843.02, Florida Statutes, which provides, in
pertinent part, that “[w]hoever shall resist, obstruct, or oppose any
officer . . . in the lawful execution of any legal duty, without
offering or doing violence to the person of the officer, shall be guilty
of a misdemeanor of the first degree.” § 843.02, Fla. Stat. (2018);
see also C.E.L. v. State, 24 So. 3d 1181, 1185–86 (Fla. 2009)
(obstruction without violence requires that “the State must prove:
(1) the officer was engaged in the lawful execution of a legal duty;
and (2) the defendant's action, by his words, conduct, or a
combination thereof, constituted obstruction or resistance of that
lawful duty.”). Stamitoles’s argument is that the arresting officer
was not “engaged in the lawful execution of a legal duty” because
no evidence established that Stamitoles was defying “an order to
leave, personally communicated to the offender by the owner of the
premises or by an authorized person” as to the dealership property.
§ 810.09(2)(b), Fla. Stat. (2018). An element of trespass is that
“notice not to enter had been given by actual communication to the
defendant[.]” R.C.W. v. State, 507 So. 2d 700, 701 (Fla. 1st DCA
1987).


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      What evidence exists that an “order to leave” was
communicated to Stamitoles? No trespass warning was on file with
the sheriff’s office, no trespass charge was lodged against
Stamitoles arising from his arrest, and no documentary evidence
established the existence of a prior “order to leave” as to the
dealership property. Instead, the evidence at trial was entirely
testimonial: the sales advisor and risk manager testified that
they’d had a poor “relationship” with Stamitoles in the past and
that he was on their “do not sell” list. The sales advisor testified he
spoke to Stamitoles that day and was getting a key for the car the
family wanted to inspect when he recalled that Stamitoles was
someone the dealership did not want to deal with; he nonetheless
did not ask Stamitoles to leave and had an employee tell
Stamitoles to “wait” for the key despite knowing that a deputy was
en route to eject him. The credit manager said that she’d had three
instances when Stamitoles was put on the “do not sell” list. She
wanted the officer to ask Stamitoles to leave, and that the officer
upon arrival “was going to talk to [Stamitoles] and ask him to
leave.” On direct, she opaquely said that Stamitoles had “been
trespassed from our properties” but provided no details. On cross-
examination, Stamitoles’s attorney probed further, however,
suggesting that the credit manager had met at Stamitoles’s office
in the past. The credit manager, her memory refreshed, responded
by saying that a “deputy trespassed [Stamitoles] from all Sandy
Sansing's properties” during that meeting, which has held due to
a “dispute” about a vehicle; Stamitoles was put on the “do not sell
list” and “trespassed at that time.”

     Separating the wheat from the chaff, the testimony of the
credit manager about the meeting at Stamitoles’s office provided
the only evidentiary basis to conclude that Stamitoles had notice
that he was not legally permitted to be on the premises. If believed,
this testimony established that an authorized person, the credit
manager, had attended a meeting at Stamitoles’s office regarding
a vehicle dispute, and that Stamitoles was present and had been
“trespassed” from the property at that time with a deputy present.
The jury could have disbelieved the credit manager’s testimony
and believed Stamitoles’s denials, but the jury apparently chose to
believe the credit manager thereby putting Stamitoles on verbal
notice to not return to the dealership.


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     Two final points, both related to how this case ultimately
turns on the testimony of one witness, who the jury could have
believed or disbelieved. First, it is far better to have documentation
of a written trespass order, R.C.W., 507 So. 2d at 701 (upholding
trespass conviction where juvenile was given written trespass
notice and told not to come onto mall property), because of the
potential legal consequences arising from falsely reporting a crime
or causing a false arrest, see, e.g., Valladares v. Bank of Am. Corp.,
197 So. 3d 1, 14 (Fla. 2016) (discussing civil cause of action for
reckless, culpable conduct in making mistaken reports to law
enforcement); see also Rivers v. Dillards Dep’t Store, Inc., 698 So.
2d 1328, 1331 (Fla. 1st DCA 1997) (discussing liability for false
arrest in context of detained customers believed to have shoplifted
and told to leave or be subject to arrest for trespass), even though
a verbal order is legally sufficient. See Melton v. State, 546 So. 2d
444, 445 (Fla. 1st DCA 1989) (arresting officer had “substantial
reason to believe” that defendant was committing a trespass where
manager of Island Bar said “he was having a problem with the
[defendant] and that he wanted him barred from the property,”
and officer had twice warned the defendant to stay away from the
property); see also State v. M.A.D., 721 So. 2d 412, 413 (Fla. 3d
DCA 1998) (juvenile “was identified by the police as someone
which both the police and the store's management had warned on
previous occasions not to congregate in front of the store.”). Second,
the potential pitfalls of litigation could have been avoided if the
matter had been handled differently. The dealership could have
asked Stamitoles to leave rather than dupe him into waiting for a
key and the deputy’s arrival; if Stamitoles did not leave, police
intervention and perhaps arrest would have been appropriate.
Conversely, had Stamitoles not fled from the officer and resisted
his overtures, he would have simply been asked to leave without
arrest; after all, that’s all the credit manager and deputy had
asked to be accomplished. These bridges were burned, but lessons
can still be learned.

                  _____________________________

Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Petitioner.

Ashley B. Moody, Attorney General, and Quentin Humphrey,

                                  6
Assistant Attorney General, Tallahassee, for Respondent.




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