text:
    David HUFFMAN, Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Appellee.
    No. 1D01-3640.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    David Huffman, Pro Se, for Appellant.
    Richard E. Doran, Attorney General; Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This case is on appeal following the remand to the trial court in Huffman v. Moore, 778 So.2d 411 (Fla. 1st DCA 2001). Because the trial court failed to follow this Court’s instructions, on remand, we reverse in part.

Originally, the appellant had appealed the circuit court’s order dismissing his petition for writ of mandamus for failure to make a timely partial payment of court costs and fees as ordered. This Court issued an opinion in Huffman, in which it ordered the trial court to (1) make a determination as to whether the Department of Corrections placed a hold on his account precluding the appellant from making the initial payment in a timely manner, thereby making dismissal for failure to make the initial payment in error, and (2) determine whether the appellant remained indigent, thereby requiring that the appellant be reimbursed for all of the court costs paid voluntarily by the appellant to the clerk. Id. On remand, the circuit court reinstated the appellant’s petition, thus satisfying the first instruction in our previous opinion.

Subsequently, the appellant brought a motion to enforce the mandate, asserting that the circuit court had failed to comply with the second instruction in our previous opinion. On July 16, 2001, by order, we stated

Appellant’s Second Motion for Enforcement of Mandate is granted. Pursuant to the terms of this court’s mandate issued February 27, 2001, the trial court is directed to immediately ascertain whether Appellant was indigent at the time his petition for writ of mandamus was initially dismissed and, if so, to issue an order reimbursing Appellant for all court costs paid by Appellant.

It does not appear that the circuit court ever acted on this order. After the appellant’s petition was disposed of on the merits, the appellant brought the instant appeal.

The appellant does not challenge the denial of his petition on the merits and therefore we deem any challenges to this denial waived. See e.g. State v. Town of Sweetwater, 112 So.2d 852, 854 (Fla.1959); State v. Mitchell, 719 So.2d 1245, 1247 (Fla. 1st DCA 1998); Patterson v. State, 342 So.2d 515, 515 (Fla. 1st DCA 1976); J.A.B. Enterprises v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992).

The appellant does, however, challenge the fact that our previous order enforcing the mandate was not fully complied with by the circuit court. When an appellate court issues a mandate, compliance with the mandate by the circuit court is purely a ministerial act. The circuit court does not have the authority to modify, nullify or evade that mandate. See Brunner Enterprises Inc. v. Department of Revenue, 452 So.2d 550, 552 (Fla.1984); Division of Alcoholic Beverages & Tobacco, Dept. of Business & Professional Regulation v. Tampa Crown Distributors, Inc., 745 So.2d 418, 420 (Fla. 1st DCA 1999); Metropolitan Dade County v. Dusseau, 826 So.2d 442, 444 (Fla. 3d DCA 2002); Hill v. Palm Beach Polo, Inc., 805 So.2d 1014, 1016 (Fla. 4th DCA 2001); Toledo v. Hillsborough County Hospital, 747 So.2d 958, 960 (Fla. 2d DCA 1999). For this reason, the circuit court should have acted upon our previous order to enforce the mandate. Having brought this matter to the circuit court’s attention, we are confident that the circuit court will expeditiously comply with our previous order. We therefore affirm the denial of the appellant’s petition for writ of mandamus, but reverse and remand for the circuit court to comply with the previous order.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

BARFIELD, MINER and POLSTON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tony Marvin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3549.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.
    Appellant, pro se.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Lott v. State, 826 So.2d 457(Fla. 1st DCA 2002).

ERVIN, DAVIS and BENTON, JJ„ concur.


text:
    Derrick ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1456.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.

      Appellant, pro se.
    Richard E. Doran, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his rule 3.850 motion. The appellant brings two claims: (1) he received ineffective assistance of counsel where his counsel failed to call witnesses who would establish that he was less than 18 years of age on the date that he committed the capital sexual battery, and (2) the information was inadequate and contained misleading information which deprived the appellant of the right to prepare a defense which did not set out the different penalties that he could incur depending upon his age. We affirm the summary denial of the appellant’s second claim because it is facially insufficient. We write only to discuss the appellant’s first claim. As to that issue, we reverse and remand with instructions.

For the appellant to show ineffective assistance of counsel, he must show that counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct, in fact, prejudiced the outcome of the proceedings because without the conduct there is a reasonable probability that the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 27 Fla. L. Weekly S323, 2002 WL 534441 (Fla. Apr. 11, 2002); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Spencer, 27 Fla. L. Weekly at S323. A claim of ineffective assistance of counsel made in a post-conviction motion will only merit an evidentiary hearing when the movant alleges specific facts which are not conclusively rebutted by the record and demonstrates that such deficiency in counsel’s performance prejudiced the defendant. Betts, 792 So.2d at 590 (internal citations omitted).

An appellant makes a facially sufficient claim of ineffective assistance of counsel for failure to call a witness where the appellant sets forth the substance of the testimony the witness would provide and how he was prejudiced by counsel’s failure to present this testimony. See Greenway v. State, 823 So.2d 206, 207 (Fla. 1st DCA 2002); Ash v. State, 767 So.2d 1260, 1261 (Fla. 1st DCA 2000). A brief statement of the facts to which a witness would testify is sufficient for the substance of the witness’ testimony. Barnes v. State, 757 So.2d 1217, 1218 (Fla. 4th DCA 2000).

A defendant’s punishment for sexual battery committed pursuant to section 794.011(2), Florida Statutes (1991), depends upon whether such defendant was 18 years old or older at the time of the offense, or under the age of 18. Sexual battery committed by a person 18 years old or older is a capital felony punishable by life imprisonment with a 25-year mandatory minimum before possibility of parole. Id.; § 775.082(1), Fla. Stat. (1991). Sexual battery committed by a person under 18 years of age is a life felony punishable by life or a term of imprisonment not exceeding 40 years. §§ 794.011(2), 775.082(3)(a), Fla. Stat. A defendant’s age at the time of committing a sexual battery is an element of the offense which must be proven to the jury beyond a reasonable doubt. See Baker v. State, 604 So.2d 1239, 1240 (Fla. 3d DCA 1992).

The testimony of the victim and Jeannette Adams, his mother, at trial established that the capital sexual battery offense occurred at the only party the victim and his mother attended at Veatrice Adams’ residence. The testimony as to when this party took place varied greatly and was inconsistent, with the witnesses trying to establish the date of the party by where they were living at the time, whether the party took place before or after the birth of the victim’s little brother, and the age of the victim at the time of the party. An officer testified that the appellant admitted that the assault took place in May of 1992.

The appellant claims that he told his counsel that he was not 18 years of age on the date that the crime occurred because of the date on which the party was held. The appellant claims that the party was held for Veatrice Adams’ daughter, Altien-na, on her first birthday, on February 18, 1991, and his 18th birthday was not until March 12, 1991. The appellant admitted confessing to the crime, but denied ever saying that the crime took place in May of 1992. The appellant also claimed that he had given his counsel addresses and phone numbers for Veatrice Adams and Chaquita Adams, who could verify when the birthday party took place, but his counsel failed to call them and as a result he was found to be over 18 at the time the crime took place, thereby increasing his sentence.

The trial court has not refuted the appellant’s claim that Veatrice Adams and Chaquita Adams could have testified that the party took place before the appellant’s 18th birthday. In light of the confusion as to when the party took place, and in light of the fact that the host of the party, Veatrice Adams, was probably in the best position to establish the date of the party, especially if it was her daughter’s first birthday party, it appears that Veatrice Adams’ and Chaquita Adams’ testimony could have affected the jury’s finding that the appellant was over 18 years of age at the time that the party took place.

We accordingly reverse the summary denial of this claim and remand with instructions for the trial court either to refute the appellant’s claim with record attachments or to conduct an evidentiary hearing.

AFFIRMED IN PART and REVERSED IN PART.

ERVIN, DAVIS and BENTON, JJ„ concur.


text:
    Jerravonnie L. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-1742.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.
    Jerravonnie Jackson, pro se, petitioner.
    Richard E. Doran, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

By sworn petition, Jerravonnie Jackson seeks belated appeal of an order of the circuit court which denied a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Because we determine that Jackson filed a document which timely invoked his right to appeal, we deny the petition for belated appeal as moot.

By order rendered on February 15, 2002, the circuit court denied Jackson’s 3.850 motion. The petition for belated appeal asserts that Jackson made a timely request of his counsel to file a notice of appeal, but counsel failed to do so. On March 11, 2002, Jackson filed a notice of inquiry with the circuit court seeking information about his appeal. This notice was filed within 30 days of the order denying Jackson’s 3.850 motion. The notice identified the order to be reviewed and evinced Jackson’s intention to appeal that order. The state concedes that Jackson’s notice of inquiry was sufficient to timely invoke his right to appeal. Wynn v. State, 557 So.2d 188 (Fla. 1st DCA 1990)(corre-spondence and pleadings filed within the 30 day appeal period are sufficient to confer jurisdiction on the appellate court). The state also concedes that it will not be prejudiced if the notice of inquiry is treated as a timely notice of appeal. White v. State, 267 So.2d 360 (Fla. 2d DCA 1972) (deficiencies in form or substance in the notice of appeal are not jurisdictional and are not a basis for dismissal of the appeal unless it is clearly shown that the complaining party was misled or prejudiced by the deficiencies).

The clerk of the circuit court is directed to treat the March 11, 2002, notice of inquiry as a timely notice of appeal. A certified copy of the notice of appeal shall be transmitted to this court pursuant to Florida Rule of Appellate Procedure 9.040(g) and the clerk of the circuit court shall file and serve the record on appeal pursuant to rule 9.141(b)(3).

PETITION DENIED.

ERVIN, KAHN and BROWNING, JJ., concur.


text:
    Roger Paul HEBNER, Petitioner, v. Michelle Ann BARRY, Respondent.
    No. 4D02-1334.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.

      Michael R. Vines and Alan S. Fishman of Alan Fishman & Associates, P.A., Pompano Beach, for petitioner.
    Michelle Ann Barry, Ft. Lauderdale, pro se.
   PER CURIAM.

Roger Paul Hebner, the putative father in this paternity action, petitions this court for writ of certiorari asserting that the trial court departed from the essential requirements of law in ordering him to submit to scientific paternity testing.

The child’s mother, Michelle Ann Barry, filed a pro se petition to establish paternity alleging that Hebner was her son’s biological father.

During the proceedings, the trial court determined that, because the woman was married to Martin Barry (the legal father) when the child was conceived, the case was “governed by the holding of Dep’t of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993).”

In accordance with the dictates of Pri-vette, the trial court appointed a guardian ad litem to represent the minor’s interests.

After the guardian filed her report and recommendations, a hearing was held. There the court, noting the absence of the legal father, heard testimony from the mother that the legal father loves the child, but cannot afford to pay child support. Along the same lines, the guardian’s report indicated that the legal father had a loving relationship with the child, which he intended to maintain, irrespective of the outcome of the case. In her report, the guardian concluded that the blood test was not in the minor’s best interests.

Without addressing the evidence presented or offering any findings of fact concerning the minor’s best interest, the trial court ordered Hebner to submit to the blood test.

Under Privette, and Daniel v. Daniel, 695 So.2d 1253 (Fla.1997), a determination of whether there is a clear and compelling reason why the child’s best interests would be served by overcoming the presumption that the legal father is the father is required. See also Fernandez v. McKenney, 776 So.2d 1118, 1119 (Fla. 5th DCA 2001)(citing Daniel). In failing to make these required findings of fact as to whether the paternity test is in the best interest of the child, the court departed from the essential requirements of the law. See R.S.R. v. A.K., 801 So.2d 325 (Fla. 1st DCA 2001)(citing Barker v. Barker, 785 So.2d 1273 (Fla. 5th DCA 2001)).

Accordingly, we grant the petition for certiorari and quash the order entered below.

STONE, SHAHOOD and TAYLOR, JJ., concur.

      . The limited record before this court is silent as to whether the legal father had notice of the hearing.


author: PALMER, J. COBB, W., Senior Judge,

text:
    Richard R. DOYLE and Linda L. Doyle, Appellants, v. Michael L. MARUSZCZAK and Lois J. Maruszczak, Appellees.
    No. 5D01-3414.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.

      Jamie Billotte Moses of Fisher, Werren-rath, Dickson, Talley & Dunlap, P.A., Orlando and Michael C. Berry, Sr. of Michael C. Berry & Associates, P.A., Clearwater, for Appellants.
    Joseph Mason of McGee & Mason, P.A. Brooksville, for Appellees.
   PALMER, J.

Richard and Linda Doyle appeal from an adverse final summary judgment arguing that the trial court erred in entering summary judgment against them and in denying their motion to disqualify the judge. Concluding that the motion to disqualify was legally insufficient, we affirm the denial of the motion to disqualify. However, concluding that disputed issues of material fact exist in the record, we reverse the entry of summary judgment.

Richard Doyle was a licensed real estate sales agent, employed by Hernando Beach Realty. Michael and Lois Maruszczak hired Doyle to find them property in the Hernando Beach area. In connection with that representation, the parties signed a transaction broker agreement which stated that Hernando Beach Realty was providing representation which included the duty to deal honestly and fairly with the Ma-ruszczaks.

The Maruszczaks were shown a number of lots for possible purchase. One lot, lot 11, was claimed in their affidavit to have been of interest to them. The Maruszc-zaks stated that they instructed Doyle to negotiate for the purchase of lot 11 at the best price and terms he could obtain.

After the listing on lot 11 expired, Mary Anne Marchant, the owner of the lot, offered it to Doyle at a reduced price, and he and his wife purchased it for themselves.

The Maruszczaks thereafter sued the Doyles seeking injunctive relief and the imposition of a constructive trust over lot 11. The Maruszczaks moved for summary judgment and filed a supporting affidavit reciting the above facts. The Doyles countered with affidavits from Richard Doyle and Mary Anne Marchant. Marchant stated that she contacted Doyle after the listing on her property expired, that she wanted Doyle and his family to live in her neighborhood because they were highly recommended, and that she would not have sold the lot to the Maruszczaks. Doyle stated that the Maruszczaks never told him they wanted to purchase lot 11, they never made an offer on any property which had been shown to them, and they did not want to make a commitment on any property.

After hearing argument, the trial court entered summary judgment against the Doyles stating:

..., the uncontroverted facts are that your clients were approached by [the Maruszczaks] and their affidavit, I’ve read it and reviewed it very carefully, doesn’t deny those specific details regarding that relationship. Nor does it specifically deny that this lot was of specific interest to the Maruszczaks and they were instructed by the Maruszc-zaks to look into that.
I think that is a sufficient basis to create the fiduciary relationship. We are professional. Realtors are professionals. They’re licensed, they’re trained, and they have a higher standard than the average car salesmen.
Quite frankly, the undisputed acts of [the Doyles] are more akin, in the opinion of this Court, to a used car salesman than to a professional realtor. It appears to me that their affidavit falls woefully short of establishing a defense. It certainly shows this Court that they simply went out, saw a good deal and bought it out from under [the Maruszczaks].
That’s not to say ultimately that [the Maruszczaks] clients would have bought the lot; but they had the right under the law to have that lot looked into and then have the option to either buy it or not buy it. They were denied that by the professionals you represent, and I will grant the Motion for Summary Judgment.

(Emphasis added).

Upon entry of this ruling, the Doyles moved to disqualify the trial court, claiming that the above quoted comments reflected bias. The trial court denied the motion to disqualify, finding that the allegations made were legally insufficient. By separate order, the trial court entered final summary judgment on the Maruszczaks’ claim for constructive trust and issued a mandatory injunction. The constructive trust was declared with regard to lot 11 and the Doyles were ordered to convey title to the Maruszczaks for the price the Doyles had paid for the property.

The Doyles contend that numerous disputed issues of fact exist on the instant record which precluded entry of summary judgment. The Maruszczaks counter that the undisputed record evidence established that Doyle, in the course of the parties’ fiduciary relationship, usurped their opportunity and thus breached his fiduciary duties.

A pivotal issue in this case is whether Doyle possessed a fiduciary relationship with the Maruszczaks. The un-controverted evidence establishes that the Maruszczaks hired Doyle as their agent, and Hernando Beach Reality agreed to deal with them honestly and fairly. When the relationship of principal and agent exists, the ultimate good faith is required in all of the transactions of the agent towards his principal and the agent cannot put himself in a position adverse to that of his principal. Boswell v. Cunningham, 32 Fla. 277, 13 So. 354 (1893). Where the agent, employed to purchase for the principal, purchases for himself, all the profits and advantages gained in the transaction belong to the principal and the agent will be held to have taken the property as trustee for his principal. Id. Application of this case law to the instant facts demonstrates that the trial court correctly concluded that Doyle undertook a fiduciary duty to the Maruszczaks.

However, disputed issues of material fact exist as to whether Doyle breached that fiduciary duty and whether any damages were incurred as the result of any breach. The Maruszczaks claimed Doyle breached his fiduciary duty when he purchased lot 11 without notice to them, since they had informed him that they were interested in acquiring same and instructed Doyle to negotiate its purchase on their behalf. Certainly, if these facts were conclusively established, entry of summary judgment would be proper because Doyle could not, consistent with his status as a fiduciary, take action antagonistic to the interest of his principal. However, Doyle’s affidavit states that the Maruszczaks never told him they wanted to purchase lot 11 and did not want to make a commitment on any property. In addition, Marchant stated that she would not sell the property to’the Maruszczaks. If true, the Maruszc-zaks can establish no damage proximately caused by Doyle’s alleged failure to discuss the possible purchase of lot 11 with them. Although Marchant’s averment that she would not sell the. property to the Ma-ruszczaks under any circumstances or at any price may appear to strain credibility, for purposes of summary judgment, her averments must, be taken as true. See Firestone v. Time, Inc., 231 So.2d 862 (Fla. 4th DCA 1970)(holding that it is not to be concluded that no genuine issue as to any material fact exists solely because the evidence opposing the claimed fact strikes the trial court as being incredible). Due to the existence of these material issues of fact, entry of summary judgment was improper.

With regard to the motion to disqualify, the Doyles argue that the trial court erred in denying the motion, citing to Roy v. Roy, 687 So.2d 956 (Fla. 5th DCA 1997), wherein this court reversed the denial of a disqualification motion which was predicated on the trial court’s reference to the appellant as “Mr. Dead Beat Man of the Year”, before any evidence was presented at the contempt hearing for failure to pay child support. The instant case is easily distinguishable because here the court heard the evidence before making its remarks. In any event, the allegations in this case do not reach the threshold level required for recusal. The instant case is more similar to Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4th DCA 2001), wherein the Fourth District found that the trial court’s remarks at the conclusion of a hearing on alleged discovery violations did not require recusal. After noting that a judge’s remarks that he was not impressed with a litigant’s behavior were not, without more, grounds for recusal, the Fourth District concluded that the judge’s comments did not rise to the level of a personal attack on the litigants and were made only after the judge heard the evidence.

AFFIRMED' in part, REVERSED in part, and REMANDED in part.

PETERSON, J., concurs.

COBB, W., Senior Judge, dissents with opinion.

COBB, W., Senior Judge,

dissenting:

The majority opinion seemingly has ignored two concessions made by counsel for the appellants (hereinafter Doyle) at oral argument:

1. The transaction brokerage agreement between the parties, which was dated July 28, 1999, was still in effect and binding on Doyle and the Maruszc-zaks as of October 29, 1999, the date Doyle bought Lot 11 from the Mar-chants.
2. Had the Maruszczaks bypassed Doyle and purchased the property directly from the Marehants in October, 1999, Doyle would have been due a commission from the Maruszczaks pursuant to the July 28, 1999, brokerage agreement.

Moreover, as observed by the appellees in their brief, it is undisputed that the Maruszczaks had identified Lot 11 (among other lots) to Doyle as a lot in which they had at least a preliminary purchase interest.

Given the forgoing facts, it would appear that the majority opinion also has overlooked a fundamental concept of law in regard to bilateral contracts: mutuality of obligation. Doyle’s position, which I find legally untenable, is that the Maruszezaks owed a fiduciary obligation of good faith to him but he owed none to them. Hence, despite the express terms of the brokerage contract, he was not obligated to notify the Maruszezaks of the reduction in asking price for Lot 11 by the Marehants after expiration of the listing on September 15— even though the contract between Doyle and the Maruszezaks was still extant. Clearly, he was so obligated, and whether or not the Maruszezaks had been able to effectuate a deal with the Marehants for their purchase of Lot 11 has no bearing on the existence and breach of the fiduciary obligation owed to them by Doyle.

The majority opinion relies on the proximate cause concept, given the affidavit of Mary Anne Marchant, that the Marusze-zaks were not deprived of the purchase of Lot 11 by Doyle’s fiduciary breach since the Marehants still would have refused to sell to them-or to anyone other than Doyle. Thus, says the majority, a factual issue as to the veracity of the Marchant affidavit is created and summary judgment is precluded. The problem with this argument is that it has never been raised by Doyle (probably because he recognized the credibility problem it presented). The law is clear that such argument has been waived, even in a summary judgment context. See Sokoloff v. Corinto S.S. Co., 225 So.2d 554 (Fla. 3rd DCA 1969)

I find the affidavit of Mary Anne Mar-chant stating that she simply would not sell Lot 11 to the Maruszezaks, even though she did not know them and even though the lot had been listed on the open market for months, inherently incredible— as, apparently, did the trial judge. It should be noted that Marchant does not assert that she told Doyle she would not sell to anyone else. Doyle does not maintain that he failed to transmit the information from Marchant because she would not sell to the Maruszezaks. Doyle simply believed that despite the transaction agreement and his status as agent for the Maruszezaks, he was not precluded from grabbing what he perceived to be a good deal for himself.

I would affirm.

      . The transaction brokerage agreement provided in pertinent part:
      As a transaction broker, Hernando Beach Realty, Inc., provides to you a limited form of representation that includes the following duties:
      1. Dealing honestly and fairly;
      4. Disclosing all known facts that materially affect the value of real property and are not readily observable to the buyer;
      5. Presenting all offers and counter offers in a timely manner, unless a party has previously directed the licensee otherwise in writing;

      . Surely, the legendary Professor Kingsfield would have disdainfully rejected this curious concept of unilateral obligation. See Osborn, The Paper Chase, Houghton Mifflin (197.1).


author: SAWAYA, J.

text:
    Peter KING, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3585.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Peter King appeals the judgment and sentence imposed after the jury found him guilty of two counts of lewd or lascivious molestation and one count of attempted sexual battery. He argues that the dual convictions and sentences on the two counts of lewd or lascivious molestation violate double jeopardy principles because the counts arose from the same episode or event. We agree.

King lived with his ex-wife, Mary, her brother, and her eleven-year-old granddaughter, M.W., in a two-bedroom home. M.W. slept on a sofa in the living room. On the night of January 12, 2000, M.W. awoke and heard King in the kitchen. King went back to his own bedroom, but returned to the sofa, wearing only his robe. He sat on the back of M.W.’s legs as she lay on her stomach. M.W. testified that King attempted several times, unsuccessfully, to insert his penis into her anus. King also grabbed her breasts on the outside of her nightgown and kissed her. M.W. agreed the entire episode happened in a “very short time period.” King ended his assault when Mary entered the room and attacked him. Mary testified that when she came upon the scene, King was on top of M.W. and moving up and down. He did not have his hands on M.W.’s breasts at that time. Mary took M.W. to the hospital. The parties stipulated that the DNA recovered from the fluid on M.W.’s bottom and vagina matched King’s.

As a result of King’s acts, King was charged with, inter alia, two counts of lewd or lascivious molestation. Specifically, count two of the information charged that King “did with his penis have union with the buttocks of [M.W.]” and count three charged that King “did handle or fondle the breast(s) of [M.W.].” King was convicted of both counts and was sentenced accordingly.

On appeal, King argues that it was error to “subdivide” his acts and charge him separately for touching M.W.’s breasts and for placing his penis in contact with M.W.’s buttocks where the only evidence was that these acts occurred in a single episode in the same location. He relies on Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001), wherein the appellate court rejected the state’s argument that the defendant’s act of fondling the victim’s breasts and vagina constituted two separate acts even though they occurred during a single episode. The court wrote:

In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences. See Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000); Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991). Here, the record fails to reflect that, during the first trip to the sugar cane fields, the Defendant had time to pause, reflect and form a new criminal intent. Although the victim testified the Defendant touched her breasts and vagina during the first trip, she did not testify as to how much time, if any, elapsed between the inappropriate touchings. Accordingly, to deem the acts separate and distinct in this case, as the State argues, would violate the Defendant’s right to be free from double jeopardy. See Pryor v. State, 755 So.2d 155 (Fla. 4th DCA 2000).

Id. at 1094-95.

The Second District Court has addressed this same issue and reached the same conclusion. In Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002), the defendant claimed a double jeopardy violation for convictions stemming from two separate episodes from which the state charged a total of four offenses. The victim testified that the first occurrence was when she was lying on a couch and the defendant touched her on her bottom and on her breasts. The second occurrence took place the following day when the defendant sat her on a counter and rubbed his clothed penis against her vagina while he squeezed her chest. From these two occurrences, the state charged the defendant with a total of four different counts based on its conclusion that the touching of each separate body part constituted a separate offense. The appellate court agreed with the defendant that there “were only two episodes of unappropriate sexual activity for which [the defendant] may be punished ....” Id. at 717. It wrote:

Within each day’s episode there was practically simultaneous touching of two proscribed areas (breast and buttocks areas on Friday, and breast and genital areas on Saturday). Thus, the various lewd and lascivious acts were not sufficiently discrete for them to be deemed separate offenses within each episode. Upon remand, the court must strike two convictions as violating double jeopardy.

Id.

The State attempts to distinguish Mor-man on the basis that in Morman, the fondling of the different body parts occurred “practically simultaneous[ly]” while in the instant case, the evidence was that King was not touching M.W.’s breasts while he was attempting anal intercourse. Because King did not touch two different body parts at the same time, there was a break in time between the lewd touchings. The State concludes this temporal break was sufficient to make the two touchings separate and distinct acts. We disagree.

It is clear that the two lewd or lascivious charges in the instant case, like Eaddy and Morman, arose from a single episode. The same victim was involved; the attack occurred solely on the sofa; and there was no meaningful temporal break in the episode. King’s touching of various parts of M.W.’s body was, as in Morman, “practically simultaneous.” Accordingly, we affirm King’s convictions on one count of lewd or lascivious molestation and on the attempted sexual battery count, but reverse the conviction on the second lewd or lascivious molestation count and remand for re-sentencing.

AFFIRMED in part; REVERSED in part; REMANDED FOR RE-SENTENCING.

THOMPSON, C.J., and PETERSON, J., concur.


text:
    Quentin Eugene HATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-345.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Quentin Eugene Hatcher appeals his convictions and sentence rendered after he entered pleas of nolo contendré to possession of a firearm by a convicted felon, carrying a concealed weapon, and possession of cocaine. Hatcher contends that the trial court erred in denying his motion to suppress because the police did not have the requisite suspicion to conduct a search of his person. We affirm.

The Facts

Upon observing the vehicle in which Hatcher was a passenger make an illegal turn, the officer put on his blue lights to pull the vehicle over. As he followed the vehicle into a parking lot, the officer noticed that Hatcher was not wearing a seat belt. The officer also noticed, as he approached the stopped vehicle on the passenger side, that Hatcher kept reaching across his body with his right hand. After Hatcher was unable to comply with the officer’s request to produce identification, and because Hatcher continued to reach across his body with his right hand, the officer became concerned for his own safety and requested that Hatcher exit the vehicle.

When Hatcher, who was wearing a bulky jacket on a July morning, stepped out of the vehicle, the officer conducted a pat-down search for weapons and found what the officer immediately recognized to be a cigar tube and the sound of crack cocaine rattling around in it. The officer opened the tube and discovered a substance he identified as crack cocaine, whereupon he placed Hatcher under arrest and seated him in the back of the patrol car. The officer obtained Hatcher’s name and began a warrants check. After another officer noticed Hatcher moving about in the patrol car, Hatcher was removed from the car and a further search uncovered a pistol in the pocket of Hatcher’s jacket. The warrants check revealed that Hatcher had three or four outstanding warrants for his arrest. The record contains a copy of the citation the officer issued to Hatcher for the seat belt violation dated the date of the incident.

Hatcher filed a motion to suppress the drugs and weapon, claiming that the traffic stop was illegal, the crack cocaine was illegally seized without a warrant, and the firearm was the fruit of the poisonous tree. After the suppression hearing, the trial court denied the motion to suppress, finding that the items were seized after a valid stop of the car and search of Hatcher. Hatcher entered his pleas, reserved his right to appeal, and was sentenced to three years in prison.

We will address the issues relating to the stop and search of Hatcher and whether the inevitable discovery doctrine applies to the instant case to allow admission of the drugs and weapon.

The Stop And Frisk

The commission of a traffic infraction gives the police the right to stop a vehicle and issue the offending driver a citation. See State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); E.H. v. State, 593 So.2d 243, 244 (Fla. 5th DCA 1991) (“A non-criminal traffic violation justified the temporary detention solely for the purpose of issuing a citation.”) (citing Cresswell v. State, 564 So.2d 480 (Fla.1990)); see also Welch v. State, 741 So.2d 1268 (Fla. 5th DCA 1999). The vehicle in which Hatcher was riding was stopped for violations of sections 316.151(1) and 316.614(5), Florida Statutes (2000). Hence, the stop was valid. Moreover, Hatcher concedes that the officer was justified in asking him to exit the vehicle for officer safety. The parties do, however, strenuously contest whether the officer properly searched Hatcher for weapons after he was stopped and removed from the car.

The courts have consistently held that “a routine stop for a traffic citation does not, in and of itself, give rise to a valid reason or authorization for a frisk.” Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992) (citing Johnson v. State, 537 So.2d 117 (Fla. 1st DCA 1988)); C.Q. v. State, 801 So.2d 304 (Fla. 5th DCA 2001). In order to confer upon the officer the authority to frisk the occupants of the vehicle, the officer must have a reasonable suspicion that the person is armed with a dangerous weapon. Smith v. State, 735 So.2d 570, 572 (Fla. 2d DCA 1999) (citing Richardson; Thompson v. State, 551 So.2d 1248 (Fla. 1st DCA 1989)); see also C.Q. “Examples of types of conduct which may constitute articulable facts to support a reasonable suspicion that a suspect is armed and dangerous include: (1) the suspect’s failure to cooperate, (2) the suspect’s furtive movements, and (3) a bulge in the suspect’s clothing.” Richardson, 599 So.2d at 705 (citing Johnson, 537 So.2d at 119); see also Smith.

Hatcher contends, based on this court’s decision in E.H., that his actions in reaching across his body did not give the officer reasonable suspicion. Hatcher further asserts, based on Lemon v. State, 580 So.2d 292 (Fla. 2d DCA 1991), that wearing a heavy coat on a warm summer day does not give an officer reasonable suspicion to search a person. The State responds that while each factor standing alone may not give reasonable suspicion, the combination of these factors does. We have found no case deciding whether the combination of these factors is sufficient to give an officer reasonable suspicion to believe that an individual possesses a dangerous weapon. However, it is not necessary for us to decide this specific issue here because even if Hatcher is correct, affir-mance is required pursuant to the inevitable discovery doctrine.

The Inevitable Discovery Doctrine

The trial judge in the instant case proclaimed that “I have never seen a case where inevitable discovery might so clearly appear as in this one.” The inevitable discovery doctrine was adopted by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), as an exception to the fruit of the poisonous tree doctrine. Maulden v. State, 617 So.2d 298 (Fla.1993). The inevitable discovery doctrine allows evidence obtained as the result of unconstitutional police procedure to be admitted if the evidence would ultimately have been discovered by legal means. The Court reasoned that “[exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix, 467 U.S. at 446, 104 S.Ct. 2501. The Florida Supreme Court and this court have embraced the doctrine. Jeffries v. State, 797 So.2d 573 (Fla.2001); Maulden; Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990); State v. McLaughlin, 454 So.2d 617 (Fla. 5th DCA 1984).

The inevitable discovery doctrine requires the state to establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct by “means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.” Craig, 510 So.2d at 863 (citations omitted). “In order to apply this doctrine, there does not have to be an absolute certainty of discovery, but rather, just a reasonable probability.” State v. Ruiz, 502 So.2d 87, 87 (Fla. 4th DCA 1987) (citing United States v. Brookins, 614 F.2d 1037 (5th Cir.1980)); see also Jeffries, 797 So.2d at 578 (quoting Ruiz).

The State argues that Hatcher was observed riding in the passenger seat without a seat belt as the vehicle pulled into the parking lot. Because it is unlawful, according to section 316.614(5), Florida Statutes (2000), for any person eighteen years old or over to be a passenger in the front seat without utilizing the seat belt and because the driver or passenger may be issued a citation for violation of the seat belt requirement when an officer has detained the driver for a suspected violation of any other state traffic law, the State contends that the officer had the authority to issue Hatcher a citation. After discovering Hatcher’s name, a warrants check would have revealed the existence of outstanding warrants for Hatcher’s arrest. At that point, the officer would have conducted a search incident to arrest and would have discovered the pistol and the cigar tube containing the crack cocaine. Therefore, the State concludes that the inevitable discovery doctrine would have allowed the admission of the drugs and the weapon.

We agree that, after the officer issued the citation to Hatcher for the seat belt violation, more than a reasonable probability existed that the drugs and weapon inevitably would have been discovered independently of the pat-down search of Hatcher. In accordance with normal police investigative procedures, after issuance of the citation, the officer would have conducted a warrants check that would have uncovered the outstanding warrants for Hatcher’s arrest. Upon discovering the outstanding warrants, routine police procedures would have required a search of Hatcher and the discovery of the drugs and the weapon. Where, as in the instant case, the inevitable discovery doctrine applies and “[t]he unchallenged facts establish sufficient ‘inevitability,’ ” this court may simply affirm the order denying the motion to suppress without further proceedings in the trial court. See Walton, 565 So.2d at 384.

Conclusion

We conclude that commission of the traffic offense gave the officer the legal right to stop the vehicle in which Hatcher was riding to issue a citation to the driver. Hatcher’s failure to wear his seat belt provided the officer with the authority to issue Hatcher a citation. Moreover, removal of Hatcher from the vehicle was appropriate. We further conclude that regardless of whether the initial frisk of Hatcher was proper, the inevitable discovery doctrine clearly applies to the instant case because there was a reasonable probability that, independently of the search, the drugs and the weapon would have been discovered after the officer issued Hatcher the citation for the seat belt violation. Hence, the trial court correctly denied Hatcher’s motion to suppress.

AFFIRMED.

GRIFFIN, J., and HARRIS, C„ Senior Judge, concur.

      . The instant case does not involve a Terry stop, see Terry v.Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the vehicle in which Hatcher was a passenger was detained based on traffic infractions and there is no evidence that the police had a reasonable suspicion that the occupants were involved in criminal activity. See C.Q. v. State, 801 So.2d 304 (Fla. 5th DCA 2001); E.H. v. State, 593 So.2d 243 (Fla. 5th DCA 1991).

      . See Smith v. State, 735 So.2d 570, 571-72 (Fla. 2d DCA 1999), in which the court held:
      Because the windshield was cracked, the vehicle’s stop was justified. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). A police officer, as here, is permitted to then order the vehicle's passengers to exit pending the stop's completion. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Nevertheless, the authority to remove Mr. Smith from the car did not automatically confer upon the officer the authority to frisk him. Rather, an officer must be able to articulate a reasonable suspicion that a person is armed with a dangerous weapon before a frisk is presumed lawful. See Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992) (citing Thompson v. State, 551 So.2d 1248 (Fla. 1st DCA 1989)).

      .In E.H., a vehicle was stopped because the driver committed various traffic infractions. After being ordered out of the vehicle, the officer conducted a pat-down search of E.H., one of the passengers, because E.H. continued to reach into his pocket. The officer discovered cocaine in one of E.H.’s pockets and arrested him for possession of cocaine. This court reversed the trial court’s denial of E.H.’s motion to suppress because
      [t]here was no indication or even suspicion that the youths had committed, were committing, or were about to commit a violation of the criminal laws of the state.... Although the officer expressed concern that E.H. kept reaching into his pocket, the state never established that the officer had probable cause to believe that E.H. was armed with a dangerous weapon. There was no testimony, for example, that the officer observed a bulge in E.H.’s pocket or made any other observation which caused him to believe that a dangerous weapon might be present.

        E.H., 593 So.2d at 244.

      .The fruit of the poisonous tree doctrine is a court-made exclusionary rule "which forbids the use of evidence in court if it is the product or fruit of a search or seizure or interrogation carried out in violation of constitutional rights.” Craig v. State, 510 So.2d 857, 862 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Cruz, 581 F.2d 535 (5th Cir.1978) (en banc)).

      . "The inevitable discovery doctrine is properly applied regardless of whether the ground of suppression of the statement is violation of the fourth amendment, fifth amendment, or sixth amendment.” Craig, 510 So.2d at 863 (citing Nix).


author: PALMER, J.

text:
    Rebecca E. NIEMANN, f/k/a Rebecca Wert Anderson, Appellant, v. Harry Kemp ANDERSON, III, Appellee.
    No. 5D02-576.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.
    J. Michael Malone, Orlando, for Appellant.

      Norman D. Levin and Matthew B. Cap-straw of Norman D. Levin, P.A., Long-wood, for Appellee.
   PALMER, J.

Rebecca Niemann (mother) appeals the final order entered by the trial court modifying Harry Kemp Anderson’s (father) child support obligation downward from $1,413.00 to $163.51 per month. Concluding that the trial court failed to set forth a proper basis for the reduced child support obligation, we reverse.

The marriage of the parties was dissolved in 1997. In entering the dissolution judgment, the trial court incorporated the terms of the parties’ marital settlement agreement which, among other things, provided the father with approximately 140 overnight contacts with his children each year and required him to pay child support in the amount of $1,413.00 per month.

In January of 2001, the father filed a petition to modify his child support obligation. To support his request, the father cited to changes in the parties’ employment and income, changes in the parties’ child care needs, and substantive changes in the Florida statutory law, that being the enactment of section GS.KXllXb).

The trial court conducted an evidentiary hearing in this matter. During the hearing, the father contended that modification was warranted because he had overnight visitations which exceeded the 40 per cent referenced in the statute (greater than 146 days), but at the conclusion of the eviden-tiary hearing the trial court found that the father’s overnight visits totaled 140 nights per year. The mother meanwhile stipulated that there had been a substantial change of circumstances in that her income had increased, the children’s day care expenses had decreased, and the children’s healthcare expenses were now absorbed by the mother’s employer. The trial court agreed that modification was warranted and directed that counsel calculate the child support guidelines amount based upon the parties’ current income. However, the court further directed that the father’s contact of 140 days per year be taken into account in recalculating the amount of his child support obligation. The trial court thereafter entered a modification order reducing the father’s monthly support obligation from $1,413.00 per month to $163.51 per month. The court did not specifically set forth whether, in reaching this amount, the court was applying section 61.30(ll)(b) (even though the total number of overnight contacts was less than 146 days per year), or whether the court was exercising its discretion under section 61.30(l)(a) to provide a downward departure from the guidelines based on the extent of overnight contacts less than 146 days. The mother appeals this ruling.

The decision to modify a parent’s child support obligation is largely within the sound discretion of the trial court upon consideration of the evidence. Freeman v. Freeman, 615 So.2d 225 (Fla. 5th DCA 1993). As a result, the party who challenges the correctness of a modification order has the burden of demonstrating, on the record, an abuse of discretion. Chereskin v. Chereskin, 790 So.2d 496 (Fla. 5th DCA 2001).

The mother first contends that since the only substantial change of circumstances which occurred in this case involved the parties’ financial circumstances, not the custody arrangements between the parties, the trial court could not properly adjust the support based upon the father’s contact schedule. We disagree. The mother has cited no law to support the proposition that modification by the trial court must be limited to the specific factors proven to have substantially changed and such is not the law. Rather, if the moving party meets its burden of establishing that a substantial change of circumstance has occurred, the trial court has the right to modify the child support obligation and, in doing so, can properly consider all of the statutory factors regarding child support.

The mother also argues that the trial court erred in calculating the amount of the father’s modified child support obligation in that the court improperly applied section 61.30(ll)(b) of the Florida Statutes to the facts of this case.- The father concedes that section 61.30(ll)(b) is not applicable, since the court failed to find that overnight visits exceed 146 nights per year, but he contends that the trial court properly reduced his child support obligation pursuant to section 61.30(l)(a). Since all parties are in agreement that section 61.30(ll)(b) is not applicable in this case, the issue before this court is simply whether the trial court’s order can be sustained as a valid downward departure under section 61.30(l)(a). We conclude that it cannot.

Unfortunately, the order entered by the trial court does not indicate the method which was used by the court to calculate the new amount of the father’s child support obligation. The trial court’s order does not set forth what the guidelines amount of support would be based upon the parties’ current financial conditions, the amount of the downward departure, and the reasons for the downward departure. Accordingly, the trial court’s order must be vacated and this cause remanded for entry of a proper support order which comports with the terms of section 61.30 of the Florida Statutes. On remand, the trial court should set forth in its order the guideline support amount, the amount of downward deviation from the guideline amount, and the reasons for that deviation, so that proper review by this court can be made. See Gomez v. Gomez, 727 So.2d 1092 (Fla. 1st DCA 1999)(holding that the absence of written findings explaining why ordering payment of child support guidelines would be unjust or inappropriate requires reversal of order dramatically deviating from guidelines).

REVERSED and REMANDED.

THOMPSON, C.J., and PETERSON, J., concur.

      .61.30 Child support guidelines; network child support

      [1 l](b) Whenever a particular shared parental arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, as follows:
      1. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to the noncustodial parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
      2. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to the custodial parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
      3. Calculate the percentage of overnight stays the child spends with each parent.
      4. Multiply the noncustodial parent's support obligation as calculated in subpara-graph 1. by the percentage of the custodial parent’s overnight stays with the child as calculated in subparagraph 3.
      5. Multiply the custodial parent’s support obligation as calculated in subparagraph 2. by the percentage of the noncustodial parent’s overnight stays with the child as calculated in subparagraph 3.
      6. The difference between the amounts calculated in subparagraphs 4. and 5. shall be the monetary transfer necessary between the custodial and noncustodial parents for the care of the child, subject to an adjustment for day care and health insurance expenses.
      7. Pursuant to subsections (7) and (8), calculate the net amounts owed by the custodial and noncustodial parents for the expenses incurred for day care and health insurance coverage for the child. Day care shall be calculated without regard to the 25-percent reduction applied by subsection (7).
      8. Adjust the support obligation owed by the custodial or noncustodial parent pursuant to subparagraph 6. by crediting or debiting the amount calculated in subpara-graph 7. This amount represents the child support which must be exchanged between the custodial and noncustodial parents.
      9. The court may deviate from the child support amount calculated pursuant to sub-paragraph 8. based upon the considerations set forth in paragraph (a), as well as the custodial parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that the noncustodial parent will actually exercise the visitation granted by the court, and whether all of the children are exercising the same shared parental arrangement.
      10. For purposes of adjusting any award of child support under this paragraph, "substantial amount of time” means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.

        . A parent, for example, could very well decide not to seek a reduction in support obligation based upon a significant contact schedule when income is at a level where he or she can adequately provide a guideline payment. However, if a substantial change of circumstance occurs as a result of a significant reduction in income, nothing in the law prevents that parent from then asking the trial court to apply all relevant statutory factors, including contact schedule, in setting a new child support obligation.


text:
    Jeffrey DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-986.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.

      Michael H. Hatfield of Michael H. Hatfield, P.A., Umatilla, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Jeffrey Davis appeals the judgment and sentences imposed following his plea of nolo contendere to one count of robbery with a firearm, three counts of aggravated assault with a firearm, and one count of possession of a firearm by a convicted felon. Davis entered his plea after the trial court denied his four motions to suppress. The trial court found that the motions to suppress were dispositive, and Davis reserved his right to appeal the adverse rulings. We reverse.

The Facts

Charges were filed against Tampa resident Jeffrey Davis after a series of fortuitous events led the police to discover the evidence that linked Davis to the armed robbery of a Leesburg Value Pawn pawn shop. The story unfolded when a concerned Tampa citizen, who observed the front door to his neighbor’s residence open and the neighbor’s dog wandering in the street, telephoned the police to report a possible burglary. The Tampa police responded, discovered the front door had been forced open, announced their presence, and, when they got no response, entered to check on the welfare of the residents. Once inside, the police observed that the home had been ransacked and saw in plain view what they later testified to as “possible narcotics, firearms, and items from a Value Pawn store.” The police secured the residence and summoned a Tampa property crimes investigator.

When the investigator arrived, he was not concerned that the burglar was still present, and he knew that, except for the police, the house was empty. The investigator looked around the house to find items that would identify the residents. He saw a number of clear plastic baggies containing a white powdery substance and drug paraphernalia on the kitchen counter. He testified that it was “pretty obvious to me that it was illicit contraband.” In fact, the powders tested positive for cocaine and methamphetamine.

In the ransacked bedroom, the investigator discovered a safe that had been pried open and saw in plain view 70-100 small manila envelopes with bar code stickers attached that had the words “Value Pawn” on them, business cards from Value Pawn stapled onto some of the envelopes, and nine nylon zippered bank bags that had been cut open. The investigator testified that it “seemed suspicious to me that these items would be found in the bedroom of a residence, or unusual at the very least.” He also found, in plain view, numerous small tags with strings attached that obviously had been cut, which tags he described as the same type that would be attached to small pieces of jewelry. It was suspicious to the investigator that the firearms, narcotics, jewelry, and other collectible items were left behind by the burglars.

The investigator testified that as a result of his two-hour investigation, he decided to take the items “for safekeeping since it was an unsecured residence and I didn’t want to leave the firearms, narcotics, and other high valuable [sic] items behind.” He did not, however, take all such items. He admitted that when he was at the house, he did not know to whom the items belonged or why they were there. “It was out of place, and I determined it to be of substantive or important to this case, and it was collected, yes.” He had no idea that any pawn shop had been robbed prior to speaking with the manager of a Tampa-area local Value Pawn pawn shop later that day. This manager told him about the armed robbery of the Leesburg store, which is the robbery charged in the instant case. The investigator checked with the Leesburg police, who had spoken to the witnesses present when the Leesburg Value Pawn pawn shop was robbed, and obtained more information about the robbery. Finally, after a match was made of the numbers on the pawn tags recovered at Davis’s house with the pawn tag numbers of the stolen items, Davis emerged as the prime suspect. Several days later, the police obtained a search warrant and went back to the residence and secured more items.

The issue we must resolve is whether the police legally entered Davis’s home without a warrant and properly seized the items that were in plain view. Resolution of this issue necessarily requires us to apply the law relating to warrantless searches, the exigent circumstances exception to the warrant requirement, and the plain view doctrine.

The Law Relating to Warrantless Searches, Exigent Circumstances And The Plain View Doctrine

Article I, section 12 of the Florida Constitution and the Fourth Amendment to the United States Constitution give the citizens of Florida the right to be secure in their homes against unreasonable searches and seizures. The seizure of items from a person’s home without a warrant based on probable cause violates this right, rendering the items inadmissible in evidence. Art. I, § 12, Fla. Const. The principles embodied in these constitutional provisions “evince[ ] the axiom that privacy is not a gratuity which we hold at the whim of our government.” Hornblower v. State, 351 So.2d 716, 717 (Fla.1977). Rather, privacy in the home is a constitutional right included within the “catalog of indispensable freedoms” guaranteed to each individual and in accordance with our chosen form of democratic government, the judiciary, not the police, has been designated its guardian. See, e.g., United States v. Ivy, 165 F.3d 397, 404 (6th Cir. 1998) (“[Tjhis Court must remain vigilant in its role as a guardian of the Constitution and its protections.”).

The courts have consistently held that a warrantless search of a home is presumed illegal. M.J.R. v. State, 715 So.2d 1103 (Fla. 5th DCA 1998); Anderson v. State, 665 So.2d 281 (Fla. 5th DCA 1995); see also Espiet v. State, 797 So.2d 598, 603 (Fla. 5th DCA 2001). This presumption may be overcome if the state demonstrates that exigent circumstances existed that allowed the police to invade the sanctity of the home without a warrant or that valid consent, which is not an issue in the instant case, was given for the search. Espiet; M.J.R.

The exigent circumstances exception to the warrant requirement is premised on the generally accepted notion that “[t]he right of police to enter and investigate an emergency, without ah accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law.” Zeigler v. State, 402 So.2d 365, 371 (Fla.1981) (citations omitted), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982). The sine qua non of the exigent circumstances exception is “a compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); see also Rolling v. State, 695 So.2d 278, 293 (Fla.1997) (“Of course, a key ingredient of the exigency requirement is that the police lack time to secure a search warrant.”).

There is no catalog of all of the exigencies that may allow a warrantless search of a residence primarily because “[t]he reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances.” Zeigler, 402 So.2d at 371. Nevertheless, precedent provides us the necessary guidance and we derive therefrom that exigencies or emergencies related to the safety of persons or property may .support a war-rantless entry into a home. See Rolling; Arango v. State, 411 So.2d 172 (Fla.), cert. denied, 457 U.S. 1140, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982); Richardson v. State, 247 So.2d 296 (Fla.1971); Walker v. State, 617 So.2d 404 (Fla. 3rd DCA 1993); State v. Mann, 440 So.2d 406 (Fla. 4th DCA 1983). Hence, the police may enter a home to investigate a suspected burglary or to check on the safety of its residents, as those situations are generally considered exigent circumstances. See State v. Craycraft, 704 So.2d 593 (Fla. 4th DCA 1997); State v. Haines, 543 So.2d 1278 (Fla. 5th DCA 1989); see also Anderson.

An entry based on exigent circumstances must be limited in scope to its purpose. Rolling, 695 So.2d at 293 (citing Anderson). Therefore, the police may hot continue the search once it is determined that no exigency exists. Id. Accordingly, if the police enter a home under exigent circumstances and, prior to making a determination that the exigency no longer exists, find contraband in plain view, they may lawfully seize the illegal items. See Haines. Summoning other officers to the scene a reasonable time after entry is made to further investigate is permissible as long as the investigation is considered one continuous episode. See Craycraft, 704 So.2d at 593 (citing Allen v. State, 638 So.2d 577 (Fla. 1st DCA 1994), review denied, 649 So.2d 232 (1994); Wooten v. State, 398 So.2d 963 (Fla. 1st DCA 1981)). However, if the police determine the exigency that initially allowed their entry into the residence no longer exists, any subsequent search is illegal and any contraband discovered pursuant to the illegal search is inadmissible. See Anderson.

The plain view doctrine gener-ally provides the police authority to seize illegal contraband after entry is made under exigent circumstances. Under the plain view doctrine, an item may be seized without a warrant if 1) the police are legitimately in á place where the item may be viewed; 2) the incriminating character of the item is immediately apparent; and 3) the police have a lawful right of access to the item. Rimmer v. State, 825 So.2d 304, 313 (Fla.), cert. denied, — U.S. ——, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002). In order to satisfy the second requirement, the police must have probable cause to associate the item with criminal activity. Rimmer; Jones v. State, 648 So.2d 669, 678 (Fla.1994) (“This ‘immediately apparent’ requirement is another way of saying that at the time police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.”) (citations omitted).

Having distilled the applicable legal principles from the case law, we will next analyze how the facts apply to the law to resolve the issue before us.

Analysis

The police were properly in the house based on the exigency of the apparent burglary. The circumstances presented a compelling need for immediate action and there was no time to secure a warrant. Once inside, they observed the white powder in plain view, and the incriminating nature of that powder was immediately apparent. They called for an investigator to conduct the investigation and that investigator arrived a reasonable time after the initial entry of the home. Hence, the investigator’s entry into the house was a continuation of the police presence and was proper.

Other than the cocaine, which is not an issue in this case, the bigger question concerns whether the “incriminating nature” of the other items seized on the day of the initial investigation, which were in plain view, was immediately apparent. Those items included numerous jewelry tags, manila envelopes with Value Pawn labels or stickers, zippered bank bags, firearms, and pieces of jewelry. Certainly the quantities of these items was an eyebrow-raiser and justified the investigator’s suspicions. However, he did not testify that he suspected that the items were the fruits of a robbery; he stated only that the presence of the items in the bedroom was suspicious or unusual at the very least. At the time the items were seized, the investigator was not aware of any pawn shop robberies and did not link the items to the robberies until subsequently being directed to the Leesburg police. Furthermore, the fact that there was a safe in the bedroom that had been pried open would tend to suggest that the items belonged to the residents and were not the bounty of unlawful activity. Moreover, the investigator’s testimony was that he took items for “safekeeping,” not that he took them as evidence of a crime.

Thus, all the investigator had was a suspicion that the items were connected with criminal activity. That is not sufficient for their warrantless seizure. Jones. Once the exigency ended, i.e., once the house was searched and no burglar or person in need of aid was located, and the cocaine was seized, there was no further excuse for the police to be in the residence and seize items they did not have probable cause to believe were involved with criminal activity. The investigator’s explanation that he spent two hours searching for information on how to contact the residents is not, as we explained in Anderson, an exigent circumstance that supports a warrantless search of a home.

As to the warrant that was subsequently obtained, it was the product of the investigator’s illegal seizure of the items on the date of the initial search. Because the warrant was based solely on the impermissible conduct of the investigator, all the evidence seized pursuant to the initial search is the fruit of the poisonous tree and is inadmissible. Wong Sun v. United States, 371 U.S. 471, 88 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Conclusion

We conclude that the trial court erred in denying the first motion to suppress. Our resolution of the issues relating to the first motion renders moot the issues relating to the other suppression motions filed by Davis. Because the motion was declared dispositive, we reverse Davis’s convictions and sentences.

REVERSED.

THOMPSON, C.J. and PALMER, J„ concur.

      . Brinegar v. United States, 338 U.S. 160, 180-81, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).


text:
    John William WRIGHT, Appellant, v. RING POWER CORPORATION, d/b/a, Diesel Construction Company and Frank Datson, Appellee.
    No. 5D02-58.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.
    Paul Bruce Brockway and William P. Galione of Steven A. Bagen & Associates, P.A., Gainesville, for Appellant.

      Thomas R. Ray of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville, for Ap-pellee.
   PALMER, J.

John William Wright appeals the final judgment entered by the trial court in accordance with a jury verdict finding no negligence on the part of appellee, Ring Power Corporation, in this automobile collision case. Concluding that the trial court erred in failing to grant Wright’s motion for directed verdict on the issue of negligence, we reverse.

This case involved a rear-end automobile collision between Wright and Frank Dat-son, who was driving a truck owned by Ring Power Corporation. The trial evidence demonstrated that the incident began after Wright stopped at an intersection regulated by a stop sign. Once stopped, Wright had to wait until traffic cleared on both sides of the highway before he could make a left hand turn. He initially pulled into the road but stopped suddenly. At that time, Datson’s vehicle struck the rear of Wright’s vehicle. Dat-son testified that while Wright was stopped at the stop sign his brake lights were on but that the brake lights went off when the car moved forward. He testified that before he moved past the stop sign he looked to the south and then took a glance to the north. Datson further testified that at the time of the accident he was not looking at Wright’s car but was looking towards the north.

At the conclusion of his case, Wright moved for a directed verdict on the issues of liability, causation, and permanent injury. The trial court deferred ruling until the conclusion of Datson’s case. Wright renewed his motion for directed verdict at the close of Datson’s case, at which time the motion was denied. Thereafter, the jury returned a special verdict finding that there was no negligence on the part of the Datson. This appeal timely followed.

Wright first argues that the trial court erred in denying his motion for a directed verdict on the issue of negligence because Datson failed to overcome the re-buttable presumption of negligence which attaches to the driver of the rear vehicle in a rear-end collision. We agree.

A motion for directed verdict should be granted where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party. Ameriseal of N.E. Fla. Inc. v. Leiffer, 738 So.2d 993 (Fla. 5th DCA 1999). The standard of review on appeal of the trial court’s ruling on defendant’s motion for directed verdict is the same as the test used by the trial court in ruling on that motion. Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446 (Fla. 5th DCA 1999).

In Florida, a presumption of negligence attaches to the driver of the rear vehicle in a rear-end collision. Sistrunk v. Douglas, 468 So.2d 1059 (Fla. 1st DCA 1985). The rear driver can rebut this presumption by presenting evidence that “fairly and reasonably tends to show” that the presumption of negligence is misplaced. Gulle v. Boggs, 174 So.2d 26 (Fla.1965). Our supreme court has clarified the presumption of negligence in rear-end collisions in two recent cases: Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla.2001), and Eppler v. Tarmac America, Inc., 752 So.2d 592 (Fla.2000).

In Clampitt, the owner of the first vehicle signaled a left turn prior to entering a driveway. His vehicle had turned almost completely off the highway when it was struck from behind by Clampitt. Clam-pitt’s vehicle came to a dead stop and the driver of a third vehicle struck Clampitt’s vehicle. Clampitt sued the driver of the third vehicle in negligence, and the trial court granted summary judgment on the issue of fault in favor of Clampitt. The district court reversed that order, stating that evidence in favor of the driver of the third vehicle was sufficient to rebut the presumption. However, the supreme court reversed, holding that evidence of a sudden stop, without more, is insufficient to overcome the presumption of negligence. Clampitt, 786 So.2d at 575. The court noted that a sudden stop could have reasonably been expected as the roadway was bordered by a school and multiple business and residential establishment. Id. at 576.

In Eppler, Eppler was stopped in a line of traffic at a red light. The light turned green and all of the'vehicles began moving forward in bumper-to-bumper traffic. Ep-pler “suddenly — without warning and for no reason — slammed on her brakes.” The defendant struck Eppler from behind. Our supreme court held that the presumption of negligence was overcome under those circumstances because Eppler abruptly and arbitrarily stopped in a place not reasonably expected. Eppler, 752 So.2d at 595.

As explained in Hunter v. Ward, 812 So.2d 601 (Fla. 1st DCA 2002), the controhing rule appears to be that when the vehicle suddenly stops in a roadway, but the stop happens at a place and time where it could reasonably be expected, as in Clampitt, then the presumption of negligence is not rebutted, and the plaintiff is entitled to receive a ■ directed verdict. However, if the stop is not expected, i.e., “abrupt and arbitrary,” and in a place not reasonably, expected, as in Eppler, then the presumption is rebutted and the plaintiff is not entitled to receive a directed verdict.

This case involved a “sudden stop” without more, as in the Clampitt case, since it was reasonable for Datson to expect Wright’s car to stop suddenly when attempting to turn left onto the highway where there was no traffic signal requiring the highway traffic to 'stop. As such, a directed verdict for Wright should have been entered, on, the issue of negligence. See Burton v. Powell, 547 So.2d 330 (Fla. 5th DCA 1989)(holding that evidence demonstrates that the driver of a truck which struck automobile from behind when both vehicles were attempting to enter lanes of heavy traffic failed to rebut presumption that driver’s negligence was sole proximate cause of collision; the automobile’s alleged start and stop occurred at a time and place where it was reasonably expected). Accordingly, the trial court’s ruling denying Wright’s motion for a directed verdict on negligence is reversed, and this matter is remanded for entry of judgment in favor of Wright and for a new trial on the issue of damages.

Wright also contends that the trial court erred in denying his motion for directed verdict on the issue of permanent injury. We disagree.

Wright presented expert testimony that he had suffered a permanent injury. However, in rebuttal, Datson presented evidence of Wright’s pre-existing neck condition, evidence that Wright may not have-completely'disclosed prior neck problems to his treating physician, and a surveillance tape revealing Wright moving his neck. This evidence was sufficient to survive Wright’s motion for directed verdict on permanency. Regardless of the absence of testimony by an opposing expert witness, the issue of whether a plaintiff has sustained a permanent injury is generally one for the jury. Tolivert v. Scherer, 715 So.2d 358 (Fla. 5th DCA 1998); Laberge v. Vancleave, 534 So.2d 1176 (Fla. 5th DCA 1988), rev. denied 545 So.2d 1369 (Fla.1989). The jury is free to accept or reject the testimony of an expert witness on the issue of permanent injury to a plaintiff. Rice v. Everett, 630 So.2d 1184 (Fla. 5th DCA 1994); Burton v. Powell, 547 So.2d 380 (Fla. 5th DCA 1989).

Since the jury did not reach the issue of permanency, in light of its finding of no liability, that issue must be decided in the new trial.

REVERSED and REMANDED for a new trial on damages.

THOMPSON, C.J., and PETERSON, J., concur.


text:
    Leroy SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-968.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Leroy Sutton appeals the judgment and sentences imposed following the return of the jury’s verdict finding him guilty of one count of kidnapping and one count of aggravated battery. Of the several issues raised by Sutton, the only issue that warrants discussion is whether the trial court erred in denying his motion for judgment of acquittal wherein Sutton argued that the movement or confinement of the victim by Sutton was inconsequential and, therefore, insufficient to support the kidnapping charge. We affirm.

The Facts

The charges against Sutton stem from a drug deal gone awry. Although the testimony from the victims, Derek Alford and Derek O’Haver, was self-serving and conflicting, we discern from the record that Alford and O’Haver were attempting to negotiate the selling price of cocaine with Sutton and his two associates. When Sutton became dissatisfied with the negotiations, he pulled a knife, positioned it on O’Haver’s neck, and proclaimed that “we’re going to do it this way.” O’Haver was bound and gagged, placed on a couch, and relieved of his money. Alford retreated to the kitchen where he attempted to summon help from the neighbors by kicking the wall and yelling, “Help, they’re trying to kill us.” A fight subsequently ensued between Alford and Sutton’s two associates. Alford was kicked, punched, and cut with a knife. Undaunted, Alford persisted with his ill-fated defense until he was hit over the head with a lamp which, according to the testimony, quieted him down. At this point, Alford was bound, gagged, and dispossessed of his money.

In the meantime, a concerned neighbor, who apparently had heard Alford’s plea for help, summoned the police. When the police arrived, one of the .officers peered through the window and observed Sutton standing over the subdued O’Haver. The police knocked on the door and announced their presence. Several minutes passed without a response. During that interval, Sutton and his associates hatched a scheme whereby they planned to tell the police that they were all friends and were just playing around. To set their plan into motion, Sutton dragged the vanquished Alford into the bathroom. Meanwhile, the two associates freed O’Haver from his bonds and instructed him to answer the door and explain to the police that he and his friends were just wrestling or he would be killed. When O’Haver opened the door, the police ordered O’Haver, Sutton, and his two associates out of the apartment. Any hope Sutton may have had that the police would consider his story as even remotely plausible completely vanished when the officers, upon hearing a plaintive cry emanate from inside, re-entered the apartment to the specter of Alford crawling on his hands and knees from the bathroom with duct tape hanging around his neck, bleeding from his various wounds, and exclaiming, “They’re trying to kill us.”

Needless to say, all the participants were arrested and a subsequent search of the apartment revealed packaged cocaine and drug paraphernalia. The drug charges against Alford and O’Haver were dropped in exchange for their testimony against Sutton and his two associates. Sutton was tried and found guilty of kidnapping and aggravated assault. He received a life sentence as a prison releasee reoffender for the kidnapping conviction and fifteen years in prison for the aggravated assault conviction. Sutton appeals the trial court’s denial of his motion for judgment of acquittal.

Standard of Review

The de novo standard of review is applied when reviewing a trial court’s denial of a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792 (Fla.2002). This court has repeatedly held that a motion for judgment of acquittal should be denied if the state presents competent evidence to establish each element of the offense. L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001); Espiet v. State, 797 So.2d 598 (Fla. 5th DCA 2001); V.L. v. State, 790 So.2d 1140 (Fla. 5th DCA 2001). A motion for judgment of acquittal may be granted if the evidence, viewed in a light most favorable to the state, fails to establish a prima facie case of guilt. L.C.; Espiet; V.L. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the state that the trier of fact might fairly infer from the evidence. Lynch v. State, 293 So.2d 44 (Fla.1974); Espiet; A.L. v. State, 790 So.2d 1149 (Fla. 2d DCA 2001). It is the trial judge’s duty to review the evidence to determine the presence or absence of competent evidence from which the trier of fact could infer guilt to the exclusion of all other reasonable inferences. A.L. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So.2d at 803 (citing Banks v. State, 732 So.2d 1065 (Fla.1999)).

Analysis

Sutton argues, based on Faison v. State, 426 So.2d 963 (Fla.1983), that his involvement in confining or moving Alford was inconsequential and, therefore, insufficient to support a conviction for kidnapping. In Faison, the defendant was charged under section 787.01(l)(a)2., Florida Statutes, which provides that “ ‘Mid-napping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to ... [c]ommit or facilitate commission of any felony.” In interpreting this statute, the court held that it does not encompass “movement or confinement that is inconsequential or inherent in the nature of the felony.” Faison, 426 So.2d at 966 (quoting Harkins v. State, 380 So.2d 524, 528 (Fla. 5th DCA 1980)).

The problem with Sutton’s argument is that he was not charged under section 787.01(l)(a)2. Rather, he was charged under section 787.01(l)(a)3., which requires that the victim be confined against her or his will with the intent to “[ijnflict bodily harm upon or to terrorize the victim or another person.” The standard adopted in Faison does not apply to offenses charged under section 787.01(1)(a)3. Waddell v. State, 696 So.2d 1229, 1229-30 (Fla. 3d DCA 1997) (noting that “Faison adopted a test only for a determination of whether a kidnapping had taken place with the intent to commit a felony pursuant to section 787.01(1)(a)2.,” and thus is inapplicable to convictions under section 787.01(1)(a)3.) (footnote omitted) (citing Bedford v. State, 589 So.2d 245, 251 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); Chaeld v. State, 599 So.2d 1362, 1364 (Fla. 1st DCA 1992)), review denied, 707 So.2d 1128 (Fla.1998).

Viewing the evidence in the light most favorable to the State, a rational trier of fact could find, beyond a reasonable doubt, that all of the elements of the crime of kidnapping were proven by the State. Thus, sufficient evidence exists to sustain Sutton’s conviction for kidnapping.

Conclusion

We conclude that Sutton’s conviction for kidnapping must be affirmed. We also conclude that the other issues raised by Sutton are without merit. Accordingly, we affirm Sutton’s convictions and the sentences imposed thereon.

AFFIRMED.

THOMPSON, C.J. and HARRIS, C., Senior Judge, concur.


text:
    Christina WINFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2833.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.
    Christina Winfield, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The trial court’s denial of grounds one, three, and five is affirmed. The court’s denial of grounds two and four which allege ineffective assistance of counsel is affirmed without prejudice to defendant’s right to file a timely, legally sufficient Rule 3.850 motion on or before February 2, 2003, directed to those two grounds. See Burns v. State, 651 So.2d 813 (Fla. 5th DCA 1995); Harris v. State, 813 So.2d 254 (Fla. 4th DCA 2002).

AFFIRMED.

GRIFFIN, PLEUS, JJ., and COBB, W., Senior Judge, concur.


author: HARRIS, C., Senior Judge.

text:
    Angelia NAVES, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3319.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
    Richard E. Doran, Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, C., Senior Judge.

Because of the inability of the court reporter to transcribe the trial proceedings, the testimony of some witnesses is either missing or incomplete and because the trial judge has determined that the record cannot be reconstructed, we reverse for a new trial.

REVERSED.

GRIFFIN and PLEUS, JJ., concur.


author: SHARP, W, J.

text:
    Phillip CUNNINGHAM, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-1672.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.
    Phillip Cunningham, Dunnellon, pro sé.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee Unemployment Appeals Commission.
   SHARP, W, J.

Cunningham appeals an order of the Unemployment Appeals Commission which required him to repay unemployment benefits. We affirm.

The appeals referee determined after a hearing that Cunningham was disqualified from receiving unemployment compensation benefits and that he had been overpaid. A finding was made that Cunningham fraudulently represented his claim and fraudulently obtained payment of benefits for which he was disqualified. The referee rejected Cunningham’s testimony that he did not receive wages for the services rendered during the applicable time period.

The existence of fraud vel non in a particular case is a question of fact. Haendel v. Paterno, 388 So.2d 235 (Fla. 5th DCA 1980). Without a transcript, Cunningham cannot establish that a finding on this issue is erroneous. See Smith v. Unemployment Appeals Commission, 823 So.2d 873 (Fla. 5th DCA 2002) (appeals referee’s determinations of fact are presumed correct and it is impossible for a claimant to establish error without a transcript); Fryburg v. Unemployment Appeals Commission 799 So.2d 281 (Fla. 5th DCA 2001) (where focus of claimant’s argument is the fact findings made by the appeals referee, failure to include a copy of the transcript of the hearing as part of the record on appeal is fatal).

AFFIRMED.

ORFINGER, J., and COBB, W., Senior Judge, concur.

      . Neither party in this case-complied with the rules governing transcription of the record and none has been furnished to this court.


author: WHATLEY, Judge.

text:
    Anthony WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-846.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Anthony Watson appeals several sentences imposed upon resentencing after he successfully moved the trial court to correct an illegal sentence. The State concedes error. We reverse and remand for resentencing. In June 1992, Watson entered into a plea agreement concerning two multi-count cases. After he was sentenced pursuant to the agreement, he moved to correct his sentence on the ground that it was illegal because he had been improperly sentenced as a habitual offender for four life felonies, to wit: an armed kidnapping in case number 92-4772 and an armed kidnapping and two counts of sexual battery with a deadly weapon in case number 92-4937. See Lamont v. State, 610 So.2d 435 (Fla.1992) (holding that defendant convicted of life felony is not subject to sentencing as a habitual offender). Accord Collins v. State, 800 So.2d 660 (Fla. 2d DCA 2001). The trial court granted Watson’s motion and ordered that he be resentenced on the four offenses. At resentencing, Watson’s scoresheet was recalculated to show a permitted sentence range of twelve to twenty-seven years in both cases. The trial court sentenced Watson to consecutive terms of twenty-seven years for each offense.

These sentences violated Florida Rule of Criminal Procedure 3.701(d)(12), which states that although a sentence must be imposed for each offense before the court for sentencing, “the total sentence cannot exceed the total guidelines sentence unless a written reason is given.” The trial court did not provide a written reason for departure. Accordingly, Watson must be resen-tenced pursuant to the guidelines for the four offenses at issue in this case to a term not exceeding twenty-seven years.

We reject Watson’s argument that the trial court may not impose the guidelines sentence for the four offenses consecutively to the concurrent habitual offender sentences for the armed robbery counts of the two cases. See Ricardo v. State, 608 So.2d 93, 95 (Fla. 2d DCA 1992) (holding that “a proper guidelines sentence can be ordered consecutive to a proper habitual offender sentence even if that means that the total time served exceeds the guidelines maximum.”).

Accordingly, we remand for resentenc-ing consistent with this opinion.

COVINGTON and KELLY, JJ., Concur.


author: COBB, W., Senior Judge.

text:
    FANTASY & FAUX INCORPORATED, Appellant, v. Kali WEBB, C.E. Brooks Investments, Inc., et Al, Appellees.
    No. 5D02-1291.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.

      Kimberly M. Shepard of The Shepard Firm, P.A., Orlando, for appellant.
    John M. Brennan and Richard E. Mitchell of Gray, Harris & Robinson, P.A., Orlando, for appellees, C.E. Brooks Investments, Inc., et al.
    Fred M. Peed of Allen, Lang, Curotto & Peed, P.A., Orlando, for appellee, Kali Webb.
   COBB, W., Senior Judge.

The appellant, Fantasy & Faux, Inc. (Fantasy), asserts error by the trial court in dismissing with prejudice its action against the defendants below, Kali Webb, C.E. Brooks Investments, Inc., Cindy Brooks, and Jennifer Brooks, for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). Such dismissals, argues Fantasy, do not constitute adjudications on the merits and must be entered without prejudice. See, e.g., Henson v. Whorf, 466 So.2d 23 (Fla. 5th DCA 1985).

While we agree with the proposition of law advanced by Fantasy, it is premature in regard to the defendant Webb because the order entered below merely states that her motion for involuntary dismissal is granted; no final adjudication was entered. See Arcangeli v. Albertson’s Inc., 550 So.2d 557 (Fla. 5th DCA 1989). Therefore, we dismiss the instant appeal in respect to Webb and remand her case to the trial court for further proceedings.

As to the various Brooks defendants, the trial judge did enter a final judgment of dismissal with prejudice, which was error pursuant to Henson. Moreover, these defendants had not moved for a judgment of dismissal with prejudice, nor did they notice a hearing with any reference to a dismissal with prejudice. Accordingly, we reverse the order entered under date of March 28, 2002, for the Brooks defendants, and remand for entry of a judgment of dismissal for failure to prosecute without prejudice.

DISMISSED in part, REVERSED in part, and REMANDED.

GRIFFIN and PLEUS, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. L.P. and E.C., Parents of R.C. and M.P., Children, Appellee.
    No. 5D02-955.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2003.

      John C. Hubbard, Palm Bay, for Appellant.
    Philip D. Mitchell, Melbourne, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See K.E. v. Dep't of Children & Families, 816 So.2d 838 (Fla. 5th DCA 2002).

SHARP, W., and ORFINGER, JJ., and COBB, W., Senior Judge, concur.


text:
    Arthur CRESPIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3965.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2003.
    Arthur Crespin, Chattahoochee, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hersey v. State, 831 So.2d 679, 680 (Fla. 5th DCA 2002); question certified, 27 Fla. L. Weekly D2702 (Fla. 5th DCA Dec. 6, 2002); Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002).

THOMPSON, C.J., PETERSON and ORFINGER, JJ., concur.


text:
    Leroy SUTTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3943.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2003.
    Leroy Sutton, Jr., Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hersey v. State, 831 So.2d 679, 680 (Fla. 5th DCA 2002); question certified, 27 Fla. L. Weekly D2702 (Fla. 5th DCA Dec. 6, 2002); Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002).

SHARP, W., and ORFINGER, JJ., and COBB, W., Senior Judge, concur.