text:
    Gary Alan MATHESON, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-1611.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
    Rehearing Denied March 5, 2004.

      James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Gary Alan Matheson maintains the State failed to prove that an alert by Razor, a narcotics detection dog in service to the Hillsborough County Sheriffs Office, furnished probable cause to search his vehicle. He advanced that position during his prosecution for drug offenses in a motion to suppress the contraband discovered and seized during the search. When the circuit court denied the motion, Matheson pleaded no contest to three counts of possessing a controlled substance and one count of possessing drug paraphernalia. He reserved his right to appeal the denial of his dispositive motion to suppress. We reverse.

PROCEEDINGS BELOW

At the suppression hearing it was related that in May 1999 Razor was called upon to sniff Matheson’s car after deputies stopped Matheson for a traffic infraction. During the traffic stop the deputies had made what they described as a routine request for permission to search Mathe-son’s car. Matheson had declined; hence, the deputy called for Razor’s assistance.

The State offered the testimony of Razor’s handler, Deputy Greco, who recounted that he arrived at the scene as another deputy was writing Matheson a traffic citation. Deputy Greco testified that he followed his normal routine by taking Razor to the driver’s side door of Matheson’s car and quickly walking the dog around the car in a clockwise direction. Razor did not alert on this first pass. Deputy Greco then walked Razor slowly around the car, allowing him to linger at the “seams.” This time, Razor scratched and bit at the edge of the car’s hatchback, which Deputy Greco recognized as Razor’s alert behavior.

Deputy Greco advised his colleagues that Razor had alerted. They then entered Matheson’s car and searched it. In the rear of the car they discovered a bag containing drug paraphernalia, including syringes and spoons. In the glove compartment the deputies found hydrocodone tablets, morphine tablets, and methamphetamine.

On the evening that Deputy Greco walked Razor around Matheson’s car, he had been a canine handler for about twenty-one months. He testified that he had taken training both in canine patrol handling and in narcotics detection. He and Razor had been assigned to each other since both began their services in canine patrol in August 1997. Prior to Razor’s sniff of Matheson’s car, he had been certified to detect marijuana, cocaine and heroin. He subsequently was certified to detect methamphetamine.

On cross-examination, Deputy Greco acknowledged that he had not maintained a record of Razor’s false alert rate. In fact, he often left the scene of a sniff after advising deputies that Razor had alerted, and thus never learned whether the alert had led to the discovery of contraband.

At the conclusion of Deputy Greco’s testimony, the State rested. The circuit court agreed that the State had made a prima facie showing that the search of Matheson’s car was supported by probable cause.

The defense then presented the testimony of Razor’s trainer, Sergeant Olive. He testified that Razor completed a thirty-day course of training by the Hillsborough County Sheriffs Office in October 1997 and a one-week program under the auspices of the United States Police Canine Association in June 1998.

During questioning about the specifics of the HCSO and USPCA training regimens, Sergeant Olive testified that Razor had received no training to discourage him from alerting to “dead scents,” those being residual odors of drugs that are no longer present. Sergeant Olive also confirmed that the Sheriffs Office did not maintain records of Razor’s success rate. When explaining this, he maintained that it would be impossible to assess a dog’s reliability “in the street” because the dog might alert on dead scents. Sergeant Olive asserted that he would not consider an alert on a dead scent to be a false alert because the dog had done what he was conditioned and certified to do, i.e., alert to the odor of contraband.

The defense submitted the expert testimony of Dr. Dan Craig, a veterinarian and animal behavior specialist whose background included extensive consultation with the United States military and other agencies regarding their detection dog programs. Dr. Craig testified that the HCSO training procedures used with Razor were too simplistic to make him reliable at detecting narcotics for six reasons. First, Razor received inadequate training for searching vehicles. Second, Razor was not trained with small quantities of drugs. Third, training officers failed to plant novel odors during Razor’s training searches. Fourth, Razor was not subject to controlled negative testing, in which all objects or locations have no drugs present. Dr. Craig said that this type of testing indicates a false response rate and reveals whether the handler or the dog is guessing. He added that preventing the handler from knowing whether drugs will be present during a training exercise reveals whether the handler is consciously or unconsciously prompting the dog to alert. Dr. Craig asserted that this type of testing is essential and should be performed periodically on a random basis. Fifth, Razor was not given extinction training, which would have discouraged him from alerting to common items that are sometimes associated with drugs, such as plastic bags used for packaging. Sixth, there was no evidence that Razor’s training included “stimulus generalization,” which conditions a dog trained on one class of drugs to detect all drugs in that class.

Addressing Razor’s USPCA certification, Dr. Craig testified that there were a number of flaws in the USPCA certification procedures that rendered this certification insufficient evidence of Razor’s reliability. First, the USPCA did not perform controlled negative testing. Second, the USPCA limited the dog’s search time to ten minutes, which is shorter than “real world” searches. Third, the USPCA required only a seventy percent proficiency, which Dr. Craig considered insufficient. Fourth, the USPCA failed to focus on the dog’s ability to detect narcotics, but analyzed the ability of the dog and handler as a team. Therefore, according to Dr. Craig, the USPCA could not truly certify the dog’s individual ability to detect narcotics. Fifth, Razor was not certified to detect methamphetamine, and his training did not prepare him to reliably detect this substance.

DISCUSSION

Under the Fourth Amendment, a law enforcement officer may not search a place within the ambit of a person’s legitimate expectation of privacy unless the officer has probable cause to believe that a search of that place at that time will uncover evidence of a crime. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). Whether applying for a search warrant beforehand or justifying a warrantless search after the fact, it is the State’s burden to show that the search will be or was justified by probable cause. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, — U.S. -, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Doctor v. State, 596 So.2d 442, 445 (Fla.1992).

In this case the State contends that it met its burden based on the testimony of Deputy Greco. It maintains that by proving Razor was trained and certified, it established prima facie that Razor’s alert gave the deputies probable cause to believe Matheson’s car contained contraband. This position finds support in several courts, including the United States Sixth Circuit Court of Appeals and the Georgia Court of Appeals. Those courts have held that a certification that a dog has been trained is prima facie proof of the dog’s reliability which then may be rebutted by the presentation of evidence regarding the dog’s performance or training. See United States v. Hill, 195 F.3d 258, 273 (6th Cir.1999); United States v. Diaz, 25 F.3d 392, 395 (6th Cir.1994); Warren v. State, 254 Ga.App. 52, 561 S.E.2d 190, 194-95 (2002); Dawson v. State, 238 Ga.App. 263, 518 S.E.2d 477, 481 (1999). “Although the dog’s ‘credibility’ may be undermined by evidence of its lack of training or past unreliability, the ultimate determination as to whether the dog is sufficiently reliable to support a determination of probable cause is for the trial court as the trier of fact.” Dawson, 518 S.E.2d at 480.

When the evidence presented, whether testimony from the dog’s trainer or records of the dog’s training, establishes that the dog is generally certified as a drug detection dog, any other evidence, including the testimony of other experts, that may detract from the reliability of the dog’s performance properly goes to the “credibility” of the dog. Lack of additional evidence, such as documentation of the exact course of training, similarly would affect the dog’s reliability. As with the admissibility of evidence generally, the admissibility of evidence regarding a dog’s training and reliability is committed to the trial court’s sound discretion.

Diaz, 25 F.3d at 394.

“Prima facie” means that the proponent has fulfilled his duty to produce evidence and there is sufficient evidence for the court to consider the issue. Charles W. Ehrhardt, Florida Evidence § 301.2 (2002). Thus, the proposition advanced by the State is that the fact that a dog has been trained and certified to detect narcotics, standing alone, justifies an officer’s reliance on the dog’s alert to establish probable cause to search. But our review of the record and of pertinent literature convinces us that this is not enough.

Law enforcement use of narcotics detection dogs has become commonplace. And, generally, a trained dog’s alert on a vehicle may constitute probable cause to search. See State v. Russell, 557 So.2d 666, 667 n. 1 (Fla. 2d DCA 1990); Denton v. State, 524 So.2d 495, 498 (Fla. 2d DCA 1988). The reason, of course, is the dog’s keen sense of smell.

A dog’s nose is uniquely equipped to detect the faintest of odors. Dogs possess potentially billions of chemical receptors called olfactory cells. These receptors are located among large supports inside the dog’s nose named tur-binate bones. Turbinate bones form numerous cylindrical passages that allow air exposure to millions more cells than is possible with simple tubular nasal passages, such as those found in human beings. Laid out, the surface area of these cells would cover a space the area of the skin on the dog’s body.
In comparison, the surface area of human olfactory cells would cover no more than a postage stamp.
The effect of the dog’s olfactory cells is not entirely clear. Some experts claim the result is an enhanced ability to detect minute levels of odorous material. Others assert that a canine’s strength lies in its ability to discriminate among odors. Scientists supporting the discrimination theory believe that each olfactory receptor responds to a different odor; the more receptors, the greater the power to distinguish between scents. The answer most likely lies somewhere between the two opposing theories.
* * :]:
Little doubt exists that dogs have the ability to detect the smallest traces of odors and to perceive these scents much better than human beings.

Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405, 408-09 (1997).

Certainly, the olfactory superiority of dogs recommends their use by law enforcement. But, when determining probable cause to search, it can also be a weakness.

Many times the possibility of a false alert will be overlooked by a handler as will the dog’s inability to differentiate between a “live” scent and a “dead” scent. Each dog will also vary in its ability to ignore detractors and masking agents[.]

Max A. Hansen, United States v. Solis: Have the Government’s Supersniffers Come Down With a Case of Constitutional Nasal Congestion?, 13 San Diego L.Rev. 410, 416 (1976). Indeed, in this case Razor’s trainer acknowledged the tendency of narcotics detection dogs to alert on the residual odors of drugs that are no longer present.

This underscores one of three central reasons why the fact that a dog has been trained, standing alone, is not enough to give an officer probable cause to search based on the dog’s alert. Razor’s trainer acknowledged that a trained dog, doing what he has been conditioned to do, imparts to the officer merely that he detects the odor of contraband. To be sure, as the trainer maintained, this may not be a false alert when assessing the success of the dog’s conditioning. But for Fourth Amendment purposes it is neither false nor positive. The presence of a drug’s odor at an intensity detectable by the dog, but not by the officer, does not mean that the drug itself is present. An officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog’s alert will yield contraband. Of course, mere suspicion cannot justify a search. See Coney v. State, 820 So.2d 1012, 1014 (Fla. 2d DCA 2002). It follows that proof of facts that could justify only a suspicion cannot prima facie establish probable cause.

Another problem with predicating a finding of probable cause solely on the fact that a dog has been trained stems from inherent variables in the training endeav- or. Although we commonly refer to the “training” of dogs, manifestly they are not trained in the sense that human beings may be trained. It is not a process of imparting knowledge and skills that dogs want or need. However much we dog lovers may tend to anthropomorphize their behavior, the fact is that dogs are not motivated to acquire skills that will assist them in their chosen profession of detecting contraband. Rather, dogs are “conditioned,” that is, they are induced to respond in particular ways to particular stimuli. For law enforcement purposes, the ideal conditioning would yield a dog who always responds to specified stimuli in a consistent and recognizable way, yet never responds in that manner absent the stimuli. But this does not happen. While dogs are not motivated in ways that humans are, neither can they be calibrated to achieve mechanically consistent results.

As our record demonstrates, conditioning and certification programs vary widely in their methods, elements, and tolerances of failure. Consider, for example, the United States Customs Service regime:

The Customs Service puts its dog and handler teams through a rigorous twelve-week training course, where only half of the canines complete the training. Customs Service dogs are trained to disregard potential distractions such as food, harmless drugs, and residual scents. Agents present distractions during training, and reward the dogs when those diversions are ignored. The teams must complete a certification exam in which the dog and handler must detect marijuana, hashish, heroin, and cocaine in a variety of environments. This exam and the following annual re-certifications must be completed perfectly, with no false alerts and no missed drugs. If a dog and handler team erroneously alerts, the team must undergo remedial training. If the team fails again, the team is disbanded, and the dog is permanently relieved from duty.

Bird, 85 Ky. L.J. at 410-11. In contrast, the testimony below disclosed that Razor and his handler had undergone just one initial thirty-day training course and one week-long annual recertification course. In neither course was Razor conditioned to refrain from alerting to residual odors. Whereas the Customs Service will certify only dogs who achieve and maintain a perfect record, Razor’s certification program accepted a seventy percent proficiency. These disparities demonstrate that simply characterizing a dog as “trained” and “certified” imparts scant information about what the dog has been conditioned to do or not to do, or how successfully.

Finally, dogs themselves vary in their abilities to accept, retain, or abide by their conditioning in widely varying environments and circumstances. “[Ejach dog’s performance is affected differently by working conditions and its respective attention span. There is also the possibility that the handler may unintentionally or otherwise prompt his dog to alert.” Hansen, 18 San Diego L.Rev. at 416. The Customs Service monitors its dogs’ performance in the field. Recognizing that a dog’s ability can change over time, it maintains records for only thirty to sixty days, then discards them because older records are not probative of the dog’s skills. Bird, 85 Ky. L.J. at 415. The Hillsborough County Sheriffs Office maintained no records of Razor’s performance, and his handler had not kept track.

For these reasons, we conclude that the fact that a dog has been trained and certified, standing alone, is insufficient to give officers probable cause to search based on the dog’s alert. One Florida case has recited additional factors that must be known in order to conclude that an alert by a narcotics detection dog is sufficiently “reliable” to furnish probable cause to search. In State v. Foster, 390 So.2d 469 (Fla. 3d DCA 1980), the Third District identified these factors as

the exact training the detector dog has received; the standards or criteria employed in selecting dogs for marijuana detection training; the standards the dog was required to meet to successfully complete his training program; the “track record” of the dog up until the search (emphasis must be placed on the amount of false alerts or mistakes the dog has furnished).

Foster, 390 So.2d at 470 (quoting Hansen, 13 San Diego L.Rev. at 417). We agree with this list of factors, and we especially join in the Foster court’s emphasis on the dog’s performance history. A dog’s alert can give an officer probable cause to search only if the officer reasonably believes that the dog would not exhibit the alert behavior unless contraband was present. Given the “language barrier” between humans and canines — thus, for example, preventing the officer from questioning the dog further for corroborative details, as he might a human informant— the most telling indicator of what the dog’s behavior means is the dog’s past performance in the field. Here, the State did not present any evidence of Razor’s track record. Accordingly, we conclude that the State did not meet its burden to establish that the deputies had probable cause to search Matheson’s car.

We note that, even if we were to accept the State’s position that it made a prima facie showing of probable cause founded solely on the fact that Razor was trained and certified, that showing was rebutted as a matter of law. The deputies’ own undisputed testimony at the suppression hearing established that they knew that Razor’s reliability for detecting the presence of contraband in the field was ungauged and that it could not be predicted based on his particular conditioning. In light of these facts, Razor’s alert could not have given the deputies probable cause to search under any test.

We reverse the denial of Matheson’s motion to suppress and remand with directions to discharge him.

FULMER and STRINGER, JJ„ Concur.


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    George MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2768.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
    Rehearing Denied Nov. 13, 2003.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

George Miller appeals his convictions for burglary with a battery, attempted carjacking, making a false application for an identification card, and resisting arrest without violence. We reverse the attempted carjacking conviction because the trial court erred in denying Miller’s request for a jury instruction on attempted robbery as a necessarily lesser included offense. Otherwise, we affirm.

The charges arose from Miller’s attempt to obtain a false identification card from the Department of Highway Safety and Motor Vehicles. In doing so, he aroused the suspicions of a Department employee who called the police. Deputy Street was questioning Miller when Miller suddenly took off running. The deputies chased Miller through a parking lot and across a street. During the chase, Deputy Buckley yelled, “Stop or I’ll shoot.” As Miller was reaching into a car and grabbing the driver, Deputy Street fired three shots at Miller. Miller ran to another car and tried to pull the driver out but was unsuccessful. Deputy Street shot Miller when he started to flee again.

As to the attempted carjacking conviction, Miller argues that the trial court erred in denying his request for an instruction on attempted robbery as a lesser included offense. Necessarily lesser included offenses are those where “the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence.” Brown v. State, 206 So.2d 377, 382 (Fla.1968), overruled in part on other grounds, In re Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). Robbery is a necessarily included offense of carjacking. Fryer v. State, 732 So.2d 30 (Fla. 5th DCA 1999). The supreme court has recognized that “[t]he language of the carjacking statute mirrors the language of the robbery statute with one exception—carjacking pertains only to motor vehicles whereas robbery pertains to all property.” Cruller v. State, 808 So.2d 201, 204 (Fla.2002). As the Fifth District noted, “every carjacking is also a robbery.” Fryer, 732 So.2d at 32.

Failure to instruct on an offense only one step removed from the conviction is per se reversible error. Cox v. State, 618 So.2d 291 (Fla. 2d DCA 1993). Attempted carjacking is a second-degree felony. §§ 812.133(1); 777.04(4)(c), Fla. Stat. (1999). Attempted robbery is a third-degree felony. §§ 812.13(1); 777.04(4)(d). Because attempted robbery is only one step removed from attempted carjacking, the trial court’s failure to instruct the jury on attempted robbery is per se reversible error. See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978). Accordingly, we reverse the conviction for attempted carjacking and remand for a new trial on this charge.

Because the issue may arise on retrial, we point out that the trial court erred in sustaining the State’s hearsay objection to a defense question. There were two deputies chasing Miller. The State called Deputy Street as a witness; it did not call Deputy Buckley. In cross-examination, the defense asked Deputy Street to repeat what he and Deputy Buckley were saying as they chased Miller. The defense wanted Deputy Street to testify that he heard Deputy Buckley yell “Stop or I’ll shoot” to support the defense theory that Miller only tried to get into other people’s cars to avoid being shot by the police. The trial court sustained the State’s hearsay objection to this question. As a result of this ruling, Miller called Deputy Buckley as a witness, and Deputy Buckley repeated his statement without objection by the State. Because Miller called Deputy Buckley as a witness, he lost the right to first and last closing arguments.

Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (1999). This testimony was not being elicited to prove that Deputy Buckley was going to shoot Miller if Miller did not stop; it was only sought to show the effect of the statement on Miller. Therefore, the trial court erred by sustaining the State’s hearsay objection. See Blackwood v. State, 777 So.2d 399, 407 (Fla.2000) (holding that deceased victim’s statements, as related by victim’s daughter, were not hearsay because they were offered only to show their effect upon defendant’s state of mind and not truth of matter asserted).

However, the issue was not adequately preserved for appeal because defense counsel never proffered the answer. See § 90.104(l)(b), Fla. Stat. (1999). When asked what Deputy Street would say, defense counsel stated that he was “not at all certain.” Although the statement later came in when the defense called Deputy Buckley, the record does not show whether Deputy Street heard this statement during the chase. Therefore, we affirm on this issue. See Ketrow v. State, 414 So.2d 298, 299 (Fla. 2d DCA 1982) (stating that proffer is necessary to preserve point for appeal; otherwise appellate court would have to speculate “as to what someone might have said”); Fernandez v. State, 555 So.2d 437, 438 (Fla. 3d DCA 1990). We find no merit to the other points raised on appeal.

Affirmed in part, reversed in part, and remanded.

WHATLEY and SILBERMAN, JJ., concur.

      . In the most recent edition of the standard jury instructions in criminal cases, lesser included offenses are listed in charts spread throughout the substantive jury instructions and in the Schedule of Lesser Included Offenses at the end. Strangely, robbery is listed as a category one lesser included offense to carjacking in section 15.2 but not in the schedule at the end. West’s Fla. Criminal Laws & Rules, 173, 345 (Supp.2003).


author: COVINGTON, Judge. ALTENBERND, Chief Judge,

text:
    STATE of Florida, Petitioner, v. Oscar MARTINEZ, Respondent.
    No. 2D02-5532.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2003.
    Rehearing Denied Nov. 6, 2003.
    Bernie McCabe, State Attorney, and William H. Burgess, III, Assistant State Attorney, Clearwater; and Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, for Petitioner.
    John H. Trevena, Largo, for Respondent.
   COVINGTON, Judge.

The State petitions this court to issue a writ of certiorari and quash the trial court’s order granting Oscar Martinez’s motion in limine. Relying on Dixon v. State, 812 So.2d 595 (Fla. 1st DCA 2002), the trial court held that the traffic citation Martinez is accused of forging cannot be introduced into evidence pursuant to section 316.650(9), Florida Statutes (2002). The trial court also excluded any reference to the citation, absent any other asserted basis for independent relevance. Because the trial court departed from the essential requirements of the law when it excluded any reference to the traffic citation, we grant the State’s petition and quash the trial court’s order to the extent that it exceeds both the statutory requirements and Dixon.

Where there is no adequate remedy by appeal, an interlocutory pretrial order in a criminal case excluding evidence is subject to certiorari review when the order departs from the essential requirements of the law. Trepal v. State, 754 So.2d 702 (Fla.2000); State v. Pettis, 520 So.2d 250 (Fla.1988); State v. Busciglio, 426 So.2d 1233 (Fla. 2d DCA 1983). “A petition for writ of certiorari can only be properly granted when the trial court’s ruling departed from the essential requirements of the law.” Coulombe v. State, 837 So.2d 506, 507 (Fla. 5th DCA 2003) (citing Pettis, 520 So.2d at 250). The State must also demonstrate that the trial court’s departure resulted in a miscarriage of justice. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 683 (Fla.2000) (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997)); see also Pettis, 520 So.2d at 254. Here, this standard has been met.

On January 8, 2002, Oscar Martinez was stopped by an officer with the Clearwater Police Department for speeding. Martinez told the officer that his name was “Henry Martinez.” The officer issued two traffic citations to “Henry Martinez”; one ticket was for speeding and the other was for failing to carry a driver’s license. Martinez signed both citations as “Henry Martinez.” He then gave the officer consent to search the vehicle. The officer saw an organizer on the front seat. Inside the organizer, the officer found a Universal Studios card with Martinez’s name and picture. Martinez then admitted that he had given the officer a false name. He was charged with forgery under section 831.01, Florida Statutes (2002). Martinez filed a motion in limine to exclude the forged traffic citation based on Dixon v. State, 812 So.2d 595 (Fla. 1st DCA 2002).

The facts in Dixon are nearly identical to those in the case at bar. The defendant was stopped by the police and gave a false name. Id. at 595-96. He then signed a traffic citation using the false name. Id. at 596. When his true identity was discovered, the defendant was charged with forgery and driving without a valid driver’s license. Id. at 595-96. The trial court denied his motion in limine “finding that the legislature could not have intended the exclusion of a traffic citation when the execution of the citation is the basis of the offense at trial.” Id. at 596.

Section 316.650, Florida Statutes (2002), is entitled “Traffic citations.” Section 316.650(9) specifically provides that “[s]uch citations shall not be admissible evidence in any trial.” In Dixon, the First District correctly noted that “[t]he statute contains no exceptions to this clear and unambiguous prohibition.” Dixon, 812 So.2d at 596. Thus, “in view of the absolute mandatory-terms of section 316.650(9),” the court concluded that the trial court erred when it denied the defendant’s motion in limine. Id.

Considering the posture of this case on appeal, our review is limited to determining whether the trial court departed from the essential requirements of the law when it granted Martinez’s motion in limine. The record is clear that the trial court followed the holding in Dixon when it excluded the admission of the traffic citation. There are no other cases directly on point, and this case is factually indistinguishable from Dixon. Thus, it cannot be said that the trial court’s exclusion of the traffic citation was a departure from the essential requirements of the law. State v. Veilleux, 2003 WL 21749024 (Fla. 2d DCA 2003); Trepal, 754 So.2d 702.

However, the trial court exceeded the requirements of section 316.650(9) and the First District’s opinion in Dixon when it excluded any reference to the traffic citation. Neither section 316.650(9) nor the opinion in Dixon dictates such a result. We therefore conclude that the trial court’s order departs from the essential requirements of the law to the extent that it excludes any reference to the traffic citation. See Trepal, 754 So.2d 702; Pettis, 520 So.2d 250; Busciglio, 426 So.2d 1233. This departure results in a miscarriage of justice because it would be all but impossible for the State to prosecute Martinez for forgery of a traffic citation without reference to the citation. See Ivey, 774 So.2d at 682-83 (quoting Stilson, 692 So.2d at 982-83).

Therefore, we conclude that the trial court’s order properly excluded the admission of the traffic citation. We also conclude that the trial court erred when it excluded any reference to the traffic citation absent an independent basis of relevance. We therefore grant the State’s petition for writ of certiorari and quash that portion of the trial court’s order that excludes any reference to the traffic citation.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Concurs in part and dissents in part with opinion.

ALTENBERND, Chief Judge,

Concurring in part and dissenting in part.

I concur in this court’s decision to grant the petition for writ of certiorari. I would, however, grant the petition for the reasons discussed in my dissent in State v. Veilleux, 2003 WL 21749024 (Fla. 2d DCA 2003). I am not certain that the relief granted by the majority in this case will have any meaningful effect. When a document is neither lost nor destroyed but is determined to be legally inadmissible, I do not see how the State can ever establish a prima facie case of a forged signature on the inadmissible document.


author: STONE, J.

text:
    Mark R. SHEA, as Personal Representative of the Estate of Mark Garrity Shea, deceased minor, Appellant, v. GLOBAL TRAVEL MARKETING, INC., d/b/a The Africa Adventure Company and d/b/a International Adventures, Ltd., Appellee.
    No. 4D02-910.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.

      Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., and Edward M. Ricci and Scott C. Murray of Ricci, Hubbard, Leopold, Frankel & Farmer, P.A., West Palm Beach, for appellant.
    Edward S. Polk of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellee.
    Paul D. Jess, General Counsel, Tallahassee, and Steven M. Goldsmith, Boca Raton, for Amicus Curiae — The Academy of Florida Trial Lawyers.
    Michelle Hankey, William Booth, Maxine Williams, and Barbara C. Burch of Legal Aid Society of Palm Beach County, Inc. as amicus curiae.
   ON MOTION FOR CERTIFICATION

STONE, J.

We grant Appellee’s motion for certification. We withdraw the opinion issued April 23, 2003, and substitute the following opinion:

Mark R. Shea (“father”), as personal representative for the estate of his deceased son, Mark Shea, appeals an order determining that Global Travel Marketing, Inc., a Florida corporation d/b/a The Africa Adventure Company (“Africa Adventure”), was entitled to arbitration. We reverse.

The material facts are not in dispute. The child, age eleven, was killed while on safari with his mother in Botswana. He was sleeping alone in a tent at a campsite when he was dragged from his tent and mauled by hyenas.

Africa Adventure operated the safari. Prior to the trip, the mother signed a contract releasing Africa Adventure from all liability arising from the safari. The contract included a provision mandating that all disputes between the parties be settled by binding arbitration in Fort Lauderdale, Florida. The contract also stated:

I have been informed and am aware that ADVENTURE TRAVEL CAN BE DANGEROUS and includes certain risks and dangers, including but not limited to ... dangers of wild animals....
I HEREBY RELEASE, WAIVE, INDEMNIFY, and AGREE NOT TO SUE THE AFRICA ADVENTURE COMPANY ... for any and all losses, damages, or injuries or any claim or demand on account of injury or emotional trauma ... or on account of death resulting from any cause ... while the undersigned is participating in a tour or any travel or other arrangements by THE AFRICA ADVENTURE COMPANY....
* * *
Any controversy or claim arising out of or relating to this Agreement, or the making, performance or interpretation thereof, shall be settled by binding arbitration in Fort Lauderdale, FL, in accordance with the rules of the American Arbitration association ...

The mother not only agreed to arbitrate her own future claims, but also signed the agreement on behalf of her son. She signed her name beneath the following statement:

I, as parent or legal guardian of the below named minor, hereby give my permission for this child or legal ward to participate in the trip and further agree, individually and on behalf of my child or ward, to the terms of the above.

The complaint alleged that Africa Adventure had a duty to use reasonable care in the operation of the safari and that its failure to do so resulted in the child’s death. Requesting a jury trial, the father alleged that he was entitled to recover under Florida’s Wrongful Death Statute, as representative of his son’s estate. The parents are divorced.

Africa Adventure moved to stay the father’s cause of action and compel arbitration. The trial court found that both the child and father were bound by the arbitration provision. The court declined to make any determination as to whether the release itself was valid and enforceable, finding the arbitration clause severable from the release.

The issue of whether a parent can bind a child to an agreement to arbitrate is one of first impression in Florida. We conclude that a parent, under these circumstances, does not have the authority to bind a minor child to arbitrate potential personal injury claims.

In determining whether the parties have entered into a binding agreement to arbitrate, we apply Florida law. Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 45 (2d Cir.N.Y.1993)(question of whether parties have entered into an agreement to arbitrate is governed by state contract law principles). Florida courts apply ordinary principles of contract law to determine who is bound by an arbitration clause. Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, 778 So.2d 1089, 1090 (Fla. 4th DCA 2001); Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir.2001). We do not address Africa Adventure’s assertion in its brief that the law of either Maryland or Botswana controls, as this claim was not argued before the trial court.

We recognize that “doubts as to the scope of an agreement to arbitrate are to be resolved in favor of arbitration.” Info. Tech. & Eng’g Corp. v. Reno, 813 So.2d 1053 (Fla. 4th DCA 2002). However, the issue, here, is not one of scope, but of formation—who may be bound by an agreement to arbitrate.

Other courts, in considering whether an arbitration clause signed by a parent is binding on the child, have looked to the state law on other parental waivers for guidance. In Cross v. Carnes, 132 Ohio App.3d 157, 724 N.E.2d 828 (1998), a case on which Africa Adventure and the trial court relied, an Ohio appellate court found that a minor was bound to arbitrate because of a consent form her mother signed for her to appear on the Sally Jessy Raphael television show. The court looked to an Ohio Supreme Court decision holding that a parent has the authority to bind his or her minor child to an agreement releasing volunteers and sponsors of non-profit sport activities from liability for the child’s future injuries. Id. at 836 (citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201 (1998)); see also Troshak v. Terminix Int’l Co., 1998 WL 401693 (E.D.Pa.1998)(holding that parent could not bind minor child to arbitration provision by looking to Pennsylvania law which already precluded parent from binding his or her child to a release or waiver of potential tort claims).

Ultimately, the question of whether parents can contract on behalf of their children is determined on public policy grounds. See, e.g., Harris v. Gonzalez, 789 So.2d 405, 409 (Fla. 4th DCA 2001).

In Colorado, public policy protects minors from being bound to exculpatory agreements signed by their parents. See Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1231 (Colo.2002). In Cooper, a minor child was injured when he lost control and crashed into a tree while training at a skiing club. When the minor attempted to sue the club, the lower courts found that the release signed by his mother before the injury barred his claims. The Supreme Court of Colorado reversed and held that the public policy of Colorado afforded minors significant protections that precluded a parent from releasing a minor’s own prospective claim for negligence. It also held that an indemnity provision that shifted the source of compensation for negligence from the tortfea-sor to the minor’s parent created an unacceptable conflict of interest between a parent and a minor in violation of public policy favoring the protection of minors. Id.; see also Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 11-12 (1992); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001). In Cooper, the court discussed, and rejected, the argument that the court should distinguish policy designed to protect a child from parental mismanagement because of the financial pressure from parents who release future claims who do not have the same financial motivation to sign a release. The Colorado court did not find these distinctions meaningful or persuasive:

It may be true that parents in the pre-injury setting have less financial motivation to sign a release than a parent in the post-injury setting who needs money to care for an injured child. Nonetheless, the protections accorded minors in the post-injury setting illustrate Colorado’s overarching policy to protect minors, regardless of parental motivations, against actions by parents that effectively foreclose a minor’s rights of recovery.

Id. at 1234.

Florida’s public policy favoring protection of minors in analogous circumstances is evidenced by both case law and statutory provisions. In this state, statutory law prohibits a minor child’s natural guardian from binding her to a settlement in excess of $15,000 without the court’s prior approval. §§ 744.387(2) and 744.301(1), Fla. Stat. (2001). Additionally, parents may not waive their child’s right to file a compulsory counterclaim without court approval, Romish v. Albo, 291 So.2d 24 (Fla. 3d DCA 1974)(receded from on other grounds), and cannot assert or waive their child’s privilege in the confidentiality of her communications with her psychotherapist, especially where the parents are involved in litigation themselves over the best interests of the child. Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301 (Fla. 4th DCA 2001). In cases involving child support or custody, it is clear that a parent has no authority to make private agreements without court approval. See Gammon v. Cobb, 335 So.2d 261 (Fla.1976). Further, this court recognized, in Dilallo v. Riding Safely, Inc., 687 So.2d 353 (Fla. 4th DCA 1997), that a minor is not bound by his or her own pre-injury contractual waiver.

Florida does, however, recognize that parents have authority to contract for their children when it comes to medical care. Variety Children’s Hosp., Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980). Patently, there is a common sense basis for such medical service or medical insurance exception.

The California Supreme Court recognized the need for this exception in Doyle v. Giuliucci, 62 Cal.2d 606, 43 Cal.Rptr. 697, 401 P.2d 1 (1965). There, the court held that a parent had the power to bind his child to arbitration by entering into a medical insurance contract of which the child is a third party beneficiary:

The crucial question ... is whether the power to enter into a contract for medical care that binds the child to arbitrate any dispute arising thereunder is implicit in a parent’s right and duty to provide for the care of his child. There are compelling reasons for recognizing that power. Since minors can usually disaf-firm their own contracts to pay for medical services, it is unlikely that medical groups would contract directly with them. They can be assured the benefits of group medical service only if parents can contract on their behalf. Unless such contracts unreasonably restrict minors’ rights, they should be sustained. The arbitration provision in such contracts is a reasonable restriction, for it does no more than specify a forum for the settlement of disputes.

Id., 43 Cal.Rptr. 697, 401 P.2d at 3 (citations omitted).

As the crucial question in Doyle involved a parent’s right to contract on behalf of a child for medical care evoking different considerations than those at issue, here, we conclude that the trial court erroneously relied on Doyle.

We also distinguish the instant case from Zivich, where the Ohio Supreme Court held that parents could sign an exculpatory agreement to allow their child to play soccer. 696 N.E.2d at 205. The court discussed the public policy interests that led to its conclusion:

It cannot be disputed that volunteers in community recreational activities serve an important function. Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these activities at minimal cost.... Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet the threat of liability strongly deters many individuals from volunteering for nonprofit organizations.

Id.

We concur in the wisdom of this reasoning and, as a matter of public policy, recognize that non-profit entities, their employees and volunteers, do not fall within the ambit of this opinion. Clearly, such public policy concerns are not present in the instant case.

Here, we can discern no common sense reason to depart from the public policy favoring the protection of children from waiver of their basic rights by a parent. Cf.; Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 199 Ill.Dec. 572, 634 N.E.2d 411 (2d Dist.1994)(rendering ineffective a release signed by parent before minor child’s cause of action accrued because waiver was not authorized by any statute or judicial approval); McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C., 428 Mich. 167, 405 N.W.2d 88 (1987)(com-mon-law rule that a parent has no authority to waive, release, or compromise claims by or against a child can be abrogated by statute).

Although we recognize that it is impractical for a parent to obtain a court order before entering into pre-injury contracts, we cannot accept the notion that parents may, carte blanche, waive the litigation rights of their children in the absence of circumstances supported by public policy. Circumstances in which a waiver would be supported by a recognized public policy include waivers in cases of obtaining medical care or insurance or for participation in commonplace child oriented community or school supported activities. We need not decide, here, what additional circumstances might support such a waiver; it is sufficient to state that commercial travel opportunities are not in that category.

As the child was not bound by the arbitration agreement, the father’s survivor claim is also not subject to arbitration because he was not a signatory to the contract.

We, therefore, reverse the arbitration order and remand for further proceedings in the trial court.

We certify the following question to the supreme court as one of great public importance:

WHETHER A PARENT’S AGREEMENT IN A COMMERCIAL TRAVEL CONTRACT TO BINDING ARBITRATION ON BEHALF OF A MINOR CHILD WITH RESPECT TO PROSPECTIVE TORT CLAIMS ARISING IN THE COURSE OF SUCH TRAVEL IS ENFORCEABLE AS TO THE MINOR.

      . The mother sued on her own behalf. See Jacobs v. Global Travel Mktg., Inc., 796 So.2d 1183 (Fla. 4th DCA 2001). This court affirmed the trial court's finding that the mother was bound by her agreement to arbitrate.


author: PER CURIAM.

text:
    Harold HALIBURTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2859.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Harold Haliburton, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant makes the same argument in this motion to correct illegal sentence as was previously made by him, denied by the trial court, and affirmed on appeal in Haliburton v. State, 783 So.2d 1073 (Fla. 4th DCA 2001).

GUNTHER, STONE, and HAZOURI, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Luis Orlando VASQUEZ, a/k/a Carlos Medina, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3506.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Luis Orlando Vasquez, a/k/a Carlos Medina (Mr. Vasquez), appeals a judgment for robbery with a firearm. Mr. Vasquez entered a plea of nolo contendere to the charge, reserving the right to appeal an order denying his dispositive motion to suppress the physical evidence linking him to the crime. The evidence was discovered during a protective sweep of a suite of motel rooms occupied jointly by Mr. Vasquez and Jose Castell. Because we conclude the protective sweep of the motel residence was illegal, we reverse. We remand this case, however, to allow the circuit court to consider whether there was clear and convincing evidence of an unequivocal break in the chain of illegality after the protective sweep was performed, thus rendering a subsequent confession and subsequent consents to enter the motel residence voluntary.

On October 17, 2001, at almost midnight, an armed robbery occurred at a Subway restaurant in Sarasota. Officers from the Sarasota Police Department responded to the scene within minutes of the robbery and began investigating the crime. The officers viewed a surveillance video of the armed robbery. The video portrayed two Hispanic males committing the robbery, one slightly taller than the other, wearing specific clothing, bandannas that covered a portion of their faces, and baseball hats. Both suspects were armed with guns, one of which was very distinctive. Within one-half hour of the crime, the officers began combing the area for suspects. Across the street from the Subway restaurant was a motel. The record suggests that this motel served as a residence for many of its guests, including Mr. Vasquez. The officers encountered Mr. Vasquez near the motel shortly after he exited a room.

One officer began a consensual encounter with Mr. Vasquez and asked him questions about where he lived. A second officer soon joined the discussion. Although Mr. Vasquez was Hispanic, he was alone and was not wearing any clothing connected to the robbery. There was nothing about Mr. Vasquez that caused the officers to believe that he might be armed. Mr. Vasquez explained to the officers that he lived at the motel with another man, whom he identified as “Carlos.” Mr. Vasquez stated that Carlos was asleep in the motel room alone. Mr. Vasquez agreed to show the officers the room.

As the officers approached the room where Mr. Vasquez claimed he resided, the door suddenly opened. Jose Castell stepped outside, leaving the door open behind him. He began speaking with one of the officers. This officer happened to know Mr. Castell and knew Mr. Castell was addicted to heroin and had previously been convicted of a felony. As the two talked, the officer' was able to look past Mr. Castell into the room behind him. There he observed in plain view a full syringe, a pipe that appeared to be intended for illegal drug use, and a single bullet.

At this point, the officers secured both Mr. Vasquez and Mr. Castell outside the motel room door. The officer who had been speaking with Mr. Castell then decided to perform a “protective sweep” of the rooms in which the men resided. This consisted of a main room, a separate bedroom, and a bathroom. The officer drew his weapon, waited fifteen to thirty seconds, crossed the threshold, and entered each room, quickly looking through them. During this entry, the officer observed the bandannas, hats, and cash related to the robbery. As he stepped back outside, the officer announced to his fellow officer that he had discovered this evidence of the robbery.

Soon after the officer came out of the rooms, Mr. Castell, who was handcuffed and dressed only in shorts, asked the officer to retrieve his shirt and shoes from the room. The officer retrieved the shoes and placed them on Mr. Castell’s feet. When the officer went back into the room to pick up the shirt, he discovered one of the guns used in the robbery under the shirt. At this point, the officer indicated to Mr. Cas-tell that he had “screwed up real bad” and instructed Mr. Castell not to say anything more. Mr. Castell and Mr. Vasquez were then placed in the back seats of separate police cars and asked to sign forms consenting to a search of their rooms. After some discussion, the two men each signed a form providing consent. Mr. Vasquez also made a statement implicating himself in the crime. The officers did not seek to obtain a search warrant but relied upon the consents thus obtained to reenter the rooms. A complete search revéaled additional physical evidence of the crime.

Both men were charged with the armed robbery. Both filed motions to suppress the physical evidence seized from the residence. The cases were combined for purposes of the evidentiary hearing on these motions. After hearing the evidence, the circuit court concluded that the officer’s protective sweep of the residence was lawful. Therefore, it ruled that the evidence seen during the sweep and obtained pursuant to the consents provided by Mr. Vasquez and Mr. Castell thereafter was properly admissible in evidence. We conclude that the trial court erred in finding the protective sweep was lawful. We reverse Mr. Vasquez’s conviction and remand for further proceedings.

A private home is an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment. See Gonzalez v. State, 578 So.2d 729, 734 (Fla. 3d DCA 1991); see also Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (prohibiting warrantless entry into home to effect arrest; reiterating that physical entry of home is chief evil against which wording of Fourth Amendment is directed). A search of a private home without a duly issued search warrant is per se “unreasonable” under the Fourth Amendment, subject only to a few specifically established and narrowly drawn exceptions. Gonzalez, 578 So.2d at 732. The burden is on the state to demonstrate that the procurement of a warrant was not feasible because the exigencies of the situation made the chosen course imperative. State v. Parker, 399 So.2d 24, 28 (Fla. 3d DCA 1981). The constitutional rights and privileges afforded to occupants of private permanent dwellings also apply to motel guests legally occupying the premises. Turner v. State, 645 So.2d 444, 447 (Fla.1994).

“In the absence of exigent circumstances or permission, the police clearly may not enter a home without a search warrant simply because they think that they have probable cause to believe evidence of a crime may be found therein.” Butler v. State, 697 So.2d 907, 908 (Fla. 2d DCA 1997); see also Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Thus, the officer’s view of drugs, drug paraphernalia, or a bullet in Mr. Castell and Mr. Vasquez’s motel rooms did not permit the officer to enter the rooms without a warrant.

Similarly, although these items may have provided probable cause to arrest either occupant for possessing drugs or drug paraphernalia as they stood outside the residence, the officers could not constitutionally enter the residence unless the exigencies of the situation made it imperative that they do so prior to seeking a warrant. “If a search of a house is to be upheld as incident to an arrest, that arrest must take place inside the house.... ” Vale, 399 U.S. at 33-34, 90 S.Ct. 1969. In Vale, officers appeared at Vale’s residence to execute two warrants for his arrest and observed what appeared to be a drug transaction involving Vale outside the home. Before Vale could reenter the home, he was arrested. Officers made a “cursory inspection of the house to ascertain if anyone else was present.” Id. at 33, 90 S.Ct. 1969. The Supreme Court specifically rejected the proposition “that an arrest on the street can provide its own ‘exigent circumstance’ so as to justify a warrantless search of the arrestee’s house.” Id. at 35, 90 S.Ct. 1969. See also Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (holding that search incident to arrest may encompass arrestee’s person and area from within which he might gain possession of weapon or destructible evidence, but there is no justification for routinely searching any room other than that in which arrest occurs); State v. Futch, 715 So.2d 992 (Fla. 2d DCA 1998) (holding warrantless search of motel room after occupant was arrested outside room for drug possession could not be justified as search incident to arrest absent other exigent circumstances).

Vale recognized that there may be other exigent circumstances that would permit a reasonable entry into a home when an arrest has taken place outside. 399 U.S. at 34-35, 90 S.Ct. 1969 (listing exceptional situations that would allow entry as consent, emergency, hot pursuit, or evidence in process of being destroyed or removed from jurisdiction). However, none of those circumstances were present in Vale, nor were they present in this case at the time the protective sweep was performed.

The State seeks to justify the immediate but cursory search of the rooms as a “protective sweep” as recognized in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, however, the initial entry into the home was justified by an arrest warrant. Officers were executing a warrant for the arrest of Buie, who was suspected of committing armed robbery. 494 U.S. at 328, 110 S.Ct. 1093. After Buie voluntarily came out of his basement and was secured, the arresting officer went down into the basement where he discovered and seized evidence in plain view. Id.

The Supreme Court identified the officer’s search of the basement as a “protective sweep,” which the Court defined as “a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others.” Buie, 494 U.S. at 327, 110 S.Ct. 1093. To determine if protective sweeps are constitutional, the Court adopted a standard similar to that adopted in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Buie, 494 U.S. at 331-33, 110 S.Ct. 1093. Finding that a protective sweep incident to arrest raised constitutional issues similar to those raised in a limited patdown for weapons, the Court held that “as a precautionary matter and without probable cause or reasonable suspicion,” an officer can “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334, 110 S.Ct. 1093. However, there must be “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. In adopting this standard, the Court specifically emphasized in a footnote that “the arrest warrant gave the police every right to enter the home to search for Buie,” and that “once inside, the potential for danger justified a standard of less than probable cause for conducting a limited protective sweep.” Id. at 334 n. 1, 110 S.Ct. 1093.

Mr. Vasquez’s case is distinguishable from Buie in critical respects. First, the officers in this case had no lawful basis for entering Mr. Vasquez and Mr. Cas-tell’s residence in the first place. Mr. Vasquez and Mr. Castell were detained outside the residence, not within its confines. There was no warrant permitting entry. See Beauchamp v. State, 742 So.2d 431, 432 (Fla. 2d DCA 1999) (reversing denial of motion to suppress based upon warrantless entry into dormitory room after officer smelled marijuana and obtained occupant’s admission that he possessed marijuana; noting, “The officers might have been authorized to conduct a safety sweep of the suite if they had been lawfully permitted to enter it, see Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), but they were not allowed to enter the suite without a warrant for this purpose.”).

Even if a Buie standard applied to provide “exigent circumstances” to enter a residence that the officers have no other lawful basis to enter, that standard would require the officers to have articulable facts, not a mere hunch, that would warrant a reasonable belief that the rooms they intended to search harbored a dangerous individual posing a threat to those on the arrest scene. See, e.g., Newton v. State, 378 So.2d 297, 299 (Fla. 4th DCA 1979) (conceding that protective sweep of premises when arrest is taking place would seem a “circumspect thing to do,” but reiterating that it is only allowable when officers have reasonable grounds to suspect additional persons may be present that jeopardize officers’ security). Here, there were no articulable facts suggesting that anyone other than Mr. Castell and Mr. Vasquez were in these rooms or that anyone who might be in the rooms would be a danger to the officers if they merely shut the door and waited to enter until they obtained a warrant. See Klosieski v. State, 482 So.2d 448 (Fla. 5th DCA 1986) (reversing denial of motion to suppress because officers executing fugitive warrants for persons charged with trafficking in controlled substances arrested suspects outside home and had no reason to believe other persons dangerous to their safety were inside home). The officer may have actually increased the danger to himself by entering the rooms. Id. at 450. The fact that Mr. Vasquez and Mr. Castell were two Hispanic men who lived across the street from a robbed Subway restaurant and had a single bullet did not provide articulable facts supporting a reasonable belief that unknown armed robbers were lurking in their rooms. To the contrary, all of the information provided to the officers suggested that only two men robbed the Subway and only two men resided in the rooms they searched. Under these circumstances, the protective sweep was an unlawful search. We therefore reverse the judgment convicting Mr. Vasquez of armed robbery. However, we remand this case for the circuit court to further consider the motion to suppress.

Because the protective sweep was illegal, the consents to search and confession obtained thereafter are presumed invalid. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (involving confession after illegal arrest); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978) (involving consent to search after officer illegally began search); see also McCauley v. State, 842 So.2d 897 (Fla. 2d DCA 2003). In order to overcome this presumption, the State must show by clear and convincing evidence that there was an unequivocal break in the chain of any illegality resulting from the protective sweep. See Faulkner v. State, 834 So.2d 400, 403 (Fla. 2d DCA 2003); Findley v. State, 771 So.2d 1235, 1237 (Fla. 2d DCA 2000).

The circuit court’s order denying the motion to suppress relied primarily upon its finding that the protective sweep was lawful. As a result, the circuit court did not consider the subsequent events and whether there was an unequivocal break in the chain of illegality. Specifically, the court did not examine whether, based upon the totality of the circumstances, Mr. Cas-tell’s request that the officer retrieve clothing from within the room, Mr. Vasquez’s confession, or the consent forms signed by both men constituted acquiescence to authority rather than free and voluntary acts performed without regard to the illegal police activity. See Brown, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; Taylor, 355 So.2d 180. We therefore remand this case for the circuit court to address this issue and any further issue that may develop from that analysis.

Reversed and remanded.

SILBERMAN and COVINGTON, JJ., Concur.

      . At the hearing on the motion to suppress, the officer who performed the protective sweep indicated that Mr. Vasquez did not specifically consent to a search of the motel rooms during this discussion.

      . Mr. Castell has also appealed his convictions. By separate opinion, we reverse and remand his convictions. Castell v. State, 870 So.2d 38, 2003 WL 22103532 (Fla. 2d DCA Sept. 12, 2003).


text:
    TARA MANATEE, INC., a Florida corporation, Appellant, v. FAIRWAY GARDENS AT TARA CONDOMINIUM ASSOCIATION, INC., a not-for-profit corporation, Appellee.
    No. 2D02-3717.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.

      Thomas E. Maloney and Edmond E. Koester of Quarles & Brady LLP, Naples, for Appellant.
    Andrew H. Cohen of Hankin, Persson, Davis, McClenathen & Darnell, Sarasota, for Appellee.
   FULMER, Judge.

In this appeal, we are asked to determine whether the developer of a non-phased condominium project is required to fund reserves for the maintenance of condominium units that had not yet been constructed at the time that control of the condominium association was turned over from the developer to the association. We conclude that the developer is not required to fund maintenance reserves for unbuilt units and, therefore, reverse the summary judgment entered in favor of Fairway Gardens at Tara Condominium Association, Inc.

Tara Manatee, Inc. (Developer) was the developer of a twenty-building, eighty-unit condominium project in Manatee County that is now operated by Fairway Gardens at Tara Condominium Association, Inc. (Association). Prior to turnover of control of the association, the Developer was operating under the developer guarantee provision of section 718.116(9)(a)(2), Florida Statutes (1995), which states in relevant part:

A developer ... who owns condominium units ... may be excused from the payment of his share of the common expense which would have been assessed against those units during the period of time that he has guaranteed to each purchaser in the purchase contract, declaration, or prospectus ... that the assessment for common expenses of the condominium imposed upon the unit owners would not increase over a stated dollar amount and has obligated himself to pay any amount of common expenses incurred during that period and not produced by the assessments at the guaranteed level receivable from other unit owners.

The premise of the developer guarantee provision is that a developer should be excused from paying assessments on its units during the initial sales phase when its units are typically unsold and, thus, not consuming services of the association. Joseph E. Adams, Community Associations: 1998 Survey of Florida Law, 23 Nova L.Rev. 65, 75 (1998). Otherwise, the developer would bear a disproportionate burden in the maintenance of the condominium. Id. However, the developer must guarantee that assessments against nonde-veloper unit owners will not exceed a stated dollar amount and the developer must also agree to fund any deficit incurred in the operation of the condominium (including funding of reserves, unless properly waived) during the guarantee period. Id.

In this case, the Developer contended that there was no deficit at turnover. However, the Association contended that there was a deficit of $44,009 because the Developer failed to fund maintenance reserves for the units that had not yet been built. The Developer refused to pay the $44,009 and sought a declaratory judgment interpreting its obligations under the Declaration of Condominium and applicable statutes. The Association answered and filed a counterclaim seeking a money judgment for $44,009. Both parties filed motions for summary judgment. The trial court granted the Association’s motion and entered a final judgment in the amount of $52,794.77, which represented the Association’s claim for $44,009 plus prejudgment interest.

At the summary judgment hearing the Association argued that when the Declaration of Condominium was recorded the Developer became obligated to fund reserves for the maintenance of all eighty proposed units. In support, the Association first cited section 718.104(2), Florida Statutes (1995), which provides that “[u]pon the recording of the declaration ... all units described in the declaration ... as being located in or on the land then being submitted to condominium ownership shall come into existence, regardless of the state of completion of planned improvements in which the units may be located.”

Next, the Association cited section 718.112(2)(f)(2), which contains a requirement that the annual budget of common expenses include reserve accounts for capital expenditures and deferred maintenance. The same subsection provides that “prior to turnover of control of an association ... the developer may vote to waive the reserves or reduce the funding of reserves for the first 2 years.” § 718.112(2)(f)(2). The Association argued that the Developer was obligated to fund maintenance reserves for all eighty units described in the declaration because the units came into existence when the declaration was recorded and the Developer did not vote to waive or reduce the reserves. Finally, the Association acknowledged that the condominium was being operated under a developer guarantee authorized by section 718.116(9)(a)(2) and asserted that the Developer’s obligation under this provision included funding reserves for un-built units because maintenance reserves are a common expense incurred upon the recording of the declaration. And, if the Developer did not wish to fund these reserves, it should have built a phased condominium or should have voted to waive or reduce the reserves.

The Developer agreed that its unbuilt units came into existence when the declaration was recorded, and therefore, all proposed units were subject to assessments as they became due for the maintenance of common elements and built units. The Developer also agreed that as part of the developer guarantee it was obligated to ensure that reserves for constructed units and common elements such as the pool and roads were fully funded. However, with respect to reserves for deferred maintenance, the Developer argued that it was only .obligated to fund reserves for the maintenance of constructed buildings and common elements.

On appeal, the Developer frames the issue as whether maintenance reserves for unbuilt units are an “incurred” common expense for which the Developer is liable under the developer guarantee provision. The determination of whether these reserves are an incurred common expense turns on a determination of what event triggers the requirement that they be funded. The trial court cited Hyde Park Condominium Ass’n v. Estero Island Real Estate, Inc., 486 So.2d 1 (Fla. 2d DCA 1986), and concluded that the Developer became obligated to fund full reserves for all eighty units at the time the declaration was recorded because at that time “the eighty units came into existence.” While we agree that the units came into legal existence upon the recording of the declaration, we do not agree that the obligation to fund deferred maintenance reserves for the unbuilt units also arose at that time.

In Hyde Park, the Hyde Park Condominium Association filed suit against the owners of Units Dl-7 for failure to pay assessments for common expenses. 486 So.2d at 2. The owners denied responsibility for paying assessments because the property owned consisted of lots rather than constructed units. Id. The trial court found that lots 1-7 of Unit D were unimproved property and were not “units” subject to assessments. Id. This court reversed. Id. We noted that the Hyde Park Condominium declaration provided that all units were liable for a proportionate share of the common expenses in the same proportion as such units share in the common elements. Id. We concluded that the unimproved lots were units:

Under the 1969 Act, condominium property includes land, all improvements, all improvements on the land, and all easements and rights with the condominium. § 711.03(9) [Fla. Stat. (1969)]. A “unit” is that part of the condominium property “which is to be subject to private ownership.”
§ 711.03(13)(emphasis added). “Common elements” are defined as “portions of the condominium property not included in the units.” § 711.03(4)(emphasis added). Therefore, under the 1969 Act, the only type of private ownership available within a condominium is a “unit.”

Id. Hyde Park stands for the proposition that all units, whether built or unbuilt, must share in assessments for common expenses of the condominium. For example, if only five units are constructed and sold in a fifty-unit condominium, assessments for the expense of maintaining the roads, landscaping, and common elements, such as a pool, would be levied against all fifty units and not just the five that were already constructed. Hyde Park does not stand for the proposition that deferred maintenance reserves for unbuilt units become an incurred common expense at the time a declaration is recorded and, therefore, does not support the trial court’s order in this case.

We conclude that the requirement to fund reserves for deferred maintenance is not triggered by the recording of a declaration of condominium. We reach this conclusion by construing section 718.112(2)(f), which addresses what must be included in an annual budget, and more specifically subsection 718.112(2)(f)(2), which addresses reserve accounts. This subsection provides in part:

In addition to annual operating expenses, the budget shall include reserve accounts for capital expenditures and deferred maintenance. These accounts shall include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and for any other item for which the deferred maintenance expense or replacement cost exceeds $10,000. The amount to be reserved shall be computed by means of a formula which is based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item. The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance. This subsection does not apply to budgets in which the members of an association have, by a majority vote at a duly called meeting of the association, determined for a fiscal year to provide no reserves or reserves less adequate than required by this subsection. However, prior to turnover of control of an association by a developer to unit owners other than a developer pursuant to s. 718.301, the developer may vote to waive the reserves or reduce the funding of reserves for the first 2 years of the operation of the association, after which time reserves may only be waived or reduced upon the vote of a majority of all nonde-veloper voting interests voting in person or by limited proxy at a duly called meeting of the association.

§ 718.112(2)(f)(2).

We conclude that, based on the wording of this statute, a developer is not required to fund deferred maintenance reserves for unbuilt units. The formula prescribed to determine amounts to be reserved is based in part on the “remaining useful life” of each reserve item. The phrase “remaining useful life” suggests that the “useful life” of an improvement has already begun. The useful life of a unit in terms of maintenance does not commence until it is built because unbuilt units do not deteriorate and accrue maintenance needs. Furthermore, the provisions of section 718.112(2)(f)(2) whereby a developer may vote to waive or reduce the funding of reserves must be read to apply only to reserves that are required to be funded. We find no requirement to fund maintenance reserves for unbuilt units and, therefore, no waiver was necessary.

Accordingly, we reverse the summary judgment entered in favor of the Association and direct the trial court to enter summary judgment in favor of the Developer.

Reversed and remanded.

SALCINES and CANADY, JJ„ Concur.

      . Developers are permitted to close on completed units within each substantially completed building in a condominium development, provided the common facilities serving the completed units have been substantially completed. § 718.104(4)(e), Fla. Stat. (1995).


author: CANADY, Judge.

text:
    Dwight MATHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1177.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
   CANADY, Judge.

Dwight Mathews appeals the summary dismissal of his motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court issued this summary dismissal in spite of determining that Mathews was entitled to an evidentiary hearing, we reverse.

On April 3, 2001, Mathews filed a rule 3.850 motion alleging that he was entitled to a new trial based on newly discovered evidence. On March 4, 2002, Mathews filed a writ of mandamus with this court because the trial court had not ruled on his postconviction motion. On March 13, 2002, this court issued an order to the trial court inquiring about the status of this motion. On March 28, 2002, the trial court issued an order to the State to show cause why Mathews was not entitled to an evidentiary hearing on his rule 3.850 motion. The State filed its response with the trial court on April 10, 2002. On May 28, 2002, the trial court issued an order granting an evidentiary hearing.

On July 31, 2002, Mathews filed a motion to appoint a process server because his witness was released from prison and could no longer be located. On August 19, 2002, this motion was granted. On August 30, 2002, the trial court attempted to hold the evidentiary hearing. Mathews moved for a continuance because his witness had not yet been located. This motion was granted. On October 4, 2002, the trial court again attempted to hold the eviden-tiary hearing and again Mathews moved for a continuance because his witness had not yet been located. This motion was granted. On December 12, 2002, this court granted Mathews’ writ of mandamus and ordered the trial court to hold an evidentiary hearing no later than December 20, 2002. On December 17, 2002, the trial court again attempted to hold the evidentiary hearing and again Mathews moved for a continuance because his witness had not yet been located. This motion was granted on December 17, 2002. In the order granting the motion, the trial court stated, “Defendant should be aware that there will be no more continuances granted in this case.”

On January 31, 2003, the trial court again attempted to hold the evidentiary hearing and Mathews again moved for a continuance. The trial court denied the continuance. Mathews indicated that he could not go forward with the evidentiary hearing without his witness. The trial court then issued an order dismissing Mathews’ rule 3.850 motion, stating: “In light of the fact that Defendant is unable to locate this key witness and indicates that he cannot go forward with his motion without this witness, the Court finds that an evidentiary hearing is not warranted.”

It was error for the trial court summarily to dismiss a motion under rule 3.850 after determining that it warranted an evi-dentiary hearing. The claim in Mathews’ rule 3.850 motion remains facially sufficient to require an evidentiary hearing. We therefore reverse and remand for the trial court to hold an evidentiary hearing. If Mathews is unable to present testimony at the hearing to establish his claim, the trial court should issue a nonsummary denial of his rule 3.850 motion.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.


text:
    Jose CASTELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3808.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
    See also Vasquez v. State, 870 So.2d 26, 2003 WL 22103523.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Jose Castell appeals judgments for robbery with a firearm and possession of a firearm by a convicted felon. Mr. Castell entered a plea of nolo contendere to the charges, reserving the right to appeal an order denying his dispositive motion to suppress the physical evidence linking him to these crimes. The evidence was discovered during a protective sweep of a suite of motel rooms occupied jointly by Mr. Castell and Luis Orlando Vasquez. Both men were charged with armed robbery, and both filed motions to suppress the evidence discovered as a result of the protective sweep. The cases were consolidated before the circuit court for the purpose of holding an evidentiary hearing on the motions, and the circuit court denied both motions. As we did in Mr. Vasquez’s case, Vasquez v. State, 870 So.2d 26, 2003 WL 22103523 (Fla. 2d DCA Sept.12, 2003), we conclude that the protective sweep of the residence was illegal and we therefore reverse Mr. Castell’s convictions. We remand this case to allow the circuit court to consider whether there was clear and convincing evidence of an unequivocal break in the chain of illegality after the protective sweep was performed, thus rendering a subsequent confession and subsequent consents to enter the motel residence voluntary.

Reversed and remanded with directions.

FULMER and WALLACE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Patricia BONARD, Appellant/Cross-Appellee, v. Terence BONARD, Appellee/Cross-Appellant.
    No. 2D02-2832.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
    Kenneth Gordon King, Naples, for Appellant/Cross-Appellee.
    Ann T. Frank of Ann T. Frank, P.A., Naples, for Appellee/Cross-Appellant.
   NORTHCUTT, Judge.

Patricia Bonard appeals and Terence Bonard cross-appeals the amended final judgment that dissolved their marriage. We affirm because the record is inadequate to show reversible error.

After a two-day final hearing, the circuit court resolved all issues in a detailed final judgment, which was then amended to correct a scrivener’s error. Because no court reporter attended the first day of the final hearing, our record does not contain a complete transcript of the proceedings. We relinquished jurisdiction to permit the parties to reconstruct the record of the proceedings that day pursuant to Florida Rule of Appellate Procedure 9.200(a)(4) or 9.200(b)(4), but they were unable to do so. Therefore, we affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980); Gordon v. Burke, 429 So.2d 36 (Fla. 2d DCA 1983).

Affirmed.

COVINGTON and CANADY, JJ., Concur.


text:
    Christopher DOWDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1201.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
   CANADY, Judge.

Christopher Dowdy appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court dismissed Dowdy’s motion for postconviction relief because it was not filed within two years of the date Dowdy’s sentence became final. In its order, the trial court rejected Dowdy’s claim that the late-filed motion was a duplicate of a motion he had timely filed. Because the record is devoid of any evidence to support this conclusion, we reverse for the trial court to consider the motion on the merits.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.


author: DAVIS, Judge.

text:
    Stephen PAPINCHAK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1800.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
   DAVIS, Judge.

Stephen Papinchak appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for correction of sentence.

Papinchak pleaded nolo contendere to one count of lewd and lascivious act in the presence of a child under the age of sixteen, and the court sentenced him as a youthful offender to four years’ probation. Papinchak filed a motion for reconsideration of sentence, and the court modified his sentence to two years’ community control. Papinchak subsequently violated his community control, and the court modified his sentence to four years in prison as a condition of probation.

In his motion, Papinchak alleged that his four-year prison term is an illegal sentence because the court did not designate him as a youthful offender. He argued that he technically violated his community control and that therefore the court could not sentence him as an adult. See State v. Arnette, 604 So.2d 482 (Fla.1992); Schneider v. State, 788 So.2d 1073 (Fla. 2d DCA 2001); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995). The trial court denied Papinchak’s motion because his sentence does not exceed the six-year statutory maximum for youthful offenders and because Papinchak’s supervision was modified, rather than revoked, to include a prison sentence as a condition of probation.

Papinchak’s prison sentence is within the six-year statutory maximum sentence for a youthful offender who technically violated the conditions of his supervision. See § 958.14, Fla. Stat. (1999). However, his judgment and sentence do not reflect that he was sentenced as a youthful offender. If Papinchak’s allegations are true and his community control violations were technical, the trial court could not have sentenced him as an adult. See Dunbar, 664 So.2d at 1094. Therefore, if the trial court records do not refute Papinc-hak’s claim, he is entitled to have his judgment and sentence corrected to reflect that his sentence is a youthful offender sentence.

We also recognize that Papinchak’s four-year prison sentence was imposed as a condition of probation in violation of section 958.04(2)(b), which allows the trial court to impose a sentence of incarceration as a condition of probation but limits such sentence to 364 days to be served in a county facility, a department probation and restitution center, or a community residential facility. Therefore, Papinchak’s sentence of four years in prison as a condition of probation is illegal. See Carter v. State, 786 So.2d 1173 (Fla.2001). Accordingly, we reverse and remand for the trial court to correct Papinchak’s sentence or attach portions of the record which refute his claim.

Reversed and remanded.

FULMER and WALLACE, JJ., Concur.


text:
    Jerome HALLORAN, Appellant, v. Rachid AOUCHICHE, M.D., F.A.C.S., and Rachid Aouchiche, M.D., F.A.C.S., d/b/a West Coast Eye Care Center, Appellees.
    No. 2D02-2119.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
    Jerome Halloran, pro se.
    Lewis A. Berns of Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, Fort Lauderdale, for Appellee.
   NORTHCUTT, Judge.

Jerome Halloran, pro se, appeals the trial court’s order dismissing with prejudice his complaint against Rachid Aouc-hiche, M.D., and Rachid Aouchiche, M.D., d/b/a West Coast Eye Care Center (collectively “Dr. Aouchiche”). We affirm the order under review.

In February 2001, Mr. Halloran filed a complaint against Dr. Aouchiche, alleging medical malpractice, fraud, and intentional infliction of emotional distress relating to surgical laser treatment he received in 1994 to relieve pressure in his eye. Dr. Aouchiche moved to dismiss the complaint on grounds that no presuit investigation was done and the statute of limitations had expired.

Pursuant to Florida Rule of Appellate Procedure 9.315(a), we have reviewed the record and the initial brief filed by Mr. Halloran and find that no preliminary basis for reversal has been demonstrated. Therefore, we summarily affirm the trial court’s order dismissing the complaint with prejudice.

Affirmed.

COVINGTON and CANADY, JJ., Concur.


text:
    Charles BOWLING and Roberta Bowling, Appellants, v. Emery F. GILMAN and Gilman Crane Service, Inc., Appellees.
    No. 2D01-2704.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    Rehearing Denied Nov. 19, 2003.
    H. Roger Lutz and Charles W. Telfair of Lutz, Webb & Bobo, P.A., Sarasota; Betsy E. Gallagher of Gallagher & Howard, P.A., Tampa; and Michael L. Rosen of Brickle-myer, Smolker & Bolves, P.A., Tallahassee, for Appellants.
    Robert L. Blank of Rumberger, Kirk & Caldwell, Tampa, for Appellees.
   NORTHCUTT, Judge.

Charles Bowling suffered serious injuries in a construction site accident. He and his wife sued Emery F. Gilman and his solely owned corporation (whom we refer to collectively), alleging negligence in the operation of Gilman’s crane. The Bowlings appeal a final judgment based on a jury verdict in Gilman’s favor. They raise three points, two of which we reject without further discussion. We find merit in the Bowlings’ assertion that the trial court should have instructed the jury on Gilman’s nondelegable duty of care.

Bowling was employed as a carpenter by Jim Weeks Specialists, a subcontractor to W.G. Mills, which was the general contractor for the construction of an adult congregate living facility. Jim Weeks Specialists engaged Gilman and his company to use Gilman’s crane to lift, or “fly,” fifty-foot roof trusses to the top of the structure. At the time of the accident, Gilman was operating the crane to fly the trusses one at a time. Roger Criner, Jim Weeks Specialists’ foreman, stood on the ground and gave Gilman signals to let him know when to fly each truss. Bowling and Jimmy Weeks, the son of the subcontractor’s owner, stood atop the structure, where they would catch each truss, guide it into place, and nail it in.

Periodically, the flying would be stopped to permit the carpenters to brace the trusses that had been set. At the conclusion of one of these breaks, Jimmy Weeks descended to use the restroom and to obtain more nails. He testified that when he reached the ground he reported his intention to the foreman, Criner. Apparently, a short time later Criner signaled Gilman to fly the next truss even though Weeks had not returned to the roof. For reasons that were in dispute, Bowling did not see the truss coming. A gust of wind caught the truss and slammed it into Bowling’s head. He fell thirty feet to a concrete floor.

Although the testimony conflicted on a number of points, one version would have permitted the jurors to conclude that Cri-ner was negligent when signaling Gilman to fly the truss. Also, there was evidence that Gilman had told Criner that conditions were too windy to proceed, but that Criner had convinced him to finish flying the last few trusses before the end of the day.

Under Florida law, a crane in operation is deemed to be inherently dangerous. Geffrey v. Langston Constr. Co., 58 So.2d 698 (Fla.1952). Consequently, the owner and operator of the crane have a nondelegable duty to use due care in its operation, which includes the duty to look out for the safety of workers around the crane. Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980). The nondelegable nature of this duty does not preclude the crane operator from assigning its performance to another, but liability for the negligent breach of that duty may not be delegated. Id. In other words, if in this case Criner negligently breached a duty of care arising from the operation of the crane, Gilman was vicariously liable.

At trial, the court refused Bowling’s request for the following instruction:

The owner and operator of a crane must use reasonable care in the operation of the crane and they must use reasonable care to look out for the safety of workers around the crane.
If a crane is operated and reasonable care is not used and if the safety of workers around the crane is not looked out for the owner and operator of the crane are negligent as a matter of law. If someone assumes or if a crane’s owner or operator assigns to someone part of the task of using reasonable care in the operation of a crane and looking out for the safety of workers around the crane and they are not looked out for, the owner and operator of the crane are negligent as a matter of law.

This was a correct statement of the law, as described above. It was supported by evidence that Gilman, the owner and operator of the crane, entrusted to Criner responsibility to look out for the safety of Bowling and others working around the crane, and that Criner did so negligently. For these reasons, Bowling was entitled to the instruction. See Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999) (holding that plaintiff is entitled to have the jury instructed on the law applicable to the issues raised by the evidence).

Gilman argues that the instruction would have confused the jury into holding him liable for the alleged negligence of Jim Weeks Specialists and W.G. Mills in failing to provide fall protection for the workers. But the requested instruction was clearly directed to the operation of the crane, and so posed little danger of jury confusion. On the other hand, under the evidence the jurors might well have concluded that Cri-ner negligently performed a duty associated with the crane’s operation, but incorrectly failed to attribute that negligence to Gilman because they were never told that Gilman was vicariously liable for it.

We reverse and remand for a new trial.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, concur.


text:
    Stefan M. LINDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1466.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2003.
    Rehearing Denied Dec. 3, 2003.
    Stefan M. Linden, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to Stefan Linden’s right, if any, to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a).

FULMER and WALLACE, JJ., and DANAHY, PAUL W., Senior Judge, Concur.


author: WALLACE, Judge.

text:
    Raymond LYNN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4972.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2003.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Raymond Lynn entered a plea of no contest to trafficking in cocaine and possession of marijuana after the trial court indicated it would impose the minimum mandatory sentence of three years for the trafficking offense. Lynn negotiated with the trial judge for his plea without any participation by the State; therefore, the sentence imposed is not part of a negotiated plea from which the State would have a right to withdraw if the sentence were determined to be illegal. When the trial court sentenced Lynn to the three-year minimum mandatory term, Lynn reserved his right to challenge the minimum mandatory sentence pursuant to Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Citing Taylor, Lynn subsequently filed a motion to correct a sentencing error, which was denied. Thus this issue was preserved for appeal. Lynn has challenged only the sentence imposed and has not moved to withdraw his plea. Because the sentence is illegal, under Taylor and Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), the sentence should be reversed and the case remanded for resentencing under the laws in effect on the date of Lynn’s offenses. See Reeves v. State, 845 So.2d 962 (Fla. 2d DCA 2003).

As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), Lecom v. State, 832 So.2d 818 (Fla. 5th DCA 2002), and Jones v. State, 27 Fla. L. Weekly D2377, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002), and we note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We also certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, No. SC03-413, 854 So.2d 659 (Fla.2003), which held that chapter 99-188 does not violate the single-subject rule.

Judgment affirmed; reversed and remanded for resentencing.

ALTENBERND, C.J., and CANADY, J., Concur.


text:
    Ellis D. DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-1076.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before the court on remand from the Supreme Court of Florida, which vacated this court’s opinion and remanded for reconsideration in light of Burgess v. State, 831 So.2d 137 (Fla.2002). See Downs v. State, 853 So.2d 396 (Fla.2003). We accordingly remand this cause to the trial court to reconsider Downs’ motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) on its merits in light of Burgess, 831 So.2d 137. See generally Adams v. State, 755 So.2d 678, 680 (Fla. 2d DCA 1999) (holding that movant may assert a Hale claim in a rule 3.800(a) motion if the facts supporting the claim are apparent from the face of the record); Valdes v. State, 765 So.2d 774, 777 (Fla. 1st DCA 2000) (concluding that the appellant was entitled to relief because his Hale claim was apparent from the face of the record).

Reversed and remanded.

WHATLEY, DAVIS and SILBERMAN, JJ., concur.

      . Downs was adjudicated guilty after a jury trial, and the transcript of the trial is part of the record.

      . Hale v. State, 630 So.2d 521 (Fla.1993).