text:
    James A. JERRELLS and Sharlene R. Jerrells, Appellants, v. FLORIDA 12 INC., A Florida Corporation, Appellee.
    No. 1D01-4146.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Lindsey Lander, Cross City, for Appellants.
    Terry Tataru of Terry Tataru, P.A., Cedar Key, for Appellee.
   PER CURIAM.

The order on appeal is a nonfinal, non-appealable order. Therefore, we dismiss this appeal for lack of jurisdiction. See Fla. R.App. 9.130.

ALLEN, C.J., WOLF and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. BENTON, J.,

license: Public Domain

text:
    N.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-5187.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Sidney M. McCrackin, Pensacola, for Appellant.
    Robert A. Butterworth, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

AFFIRMED. See J.J.T. v. State, 810 So.2d 548, 551 (Fla. 1st DCA 2002) (“Below, J.J.T. did not object to the trial court’s failure to provide reasons for the deviation from the DJJ recommendation. Further, J.J.T. made no legal argument to the trial court which would have presented to the court the statutory requirement for stating reasons for the deviation. Accordingly, we hold that J.J.T. has failed to preserve the error asserted on appeal.” (citations omitted)); cf. E.S.B. v. State, 822 So.2d 579, 580 n. 1 (Fla. 1st DCA 2002) (“A juvenile appealing and claiming that the trial court erred in deviating from the disposition recommended by the DJJ must preserve that issue for appellate review. Florida Rule of Juvenile Procedure 8.135(b)(2) was recently amended to provide the same procedural safeguards as Florida Rule of Criminal Procedure 3.800(b)(2). Appellant’s utilization of rule 8.135(b)(2) preserved this issue for appellate review.” (citations omitted)).

KAHN and LEWIS, JJ., concur. BENTON, J., dissents w/ opinion.

BENTON, J.,

dissenting.

With reference to appellant’s “risk assessment sheet,” the trial court said, “I never look at those anyway” in ordering N.W. incarcerated (by imposing a “high risk commitment”) despite the recommendation for probation the Department of Juvenile Justice had furnished. The trial court explained its rationale with great clarity: “I don’t know that [N.W.] needs anymore than probation to straighten him out. The problem is providing a — providing a deterrent to others.” The trial court erred, and did so despite the gentlemanly argument of trial counsel, advocating for a disposition order in accordance with the Department’s recommendation for probation: “[W]e are asking the Court to ... remember that [N.W.’s] role in this ... would fit with what the Department’s recommendation is.”

I would reverse for a new disposition hearing. On the merits, our recent decision in C.C.B. v. State, 828 So.2d 429 (Fla. 1st DCA 2002) controls. There we said:

[T]he reasons articulated by the trial court for departing from the DJJ’s recommendation of probation constituted only disagreement with the DJJ, and ... did not reference the commitment level with respect to appellant’s needs. The trial court’s desire to send a message to the community’s youth was not a valid reason for disregarding the DJJ’s recommendation.

C.C.B., 828 So.2d at 433. See A.G. v. State, 737 So.2d 1244, 1248 (Fla. 5th DCA 1999); K.M.T. v. State, 695 So.2d 1309, 1310 (Fla. 2d DCA 1997). See also A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999).

This child should not be treated differently than the similarly circumstanced child whose disposition order was reversed in C.C.B. v. State, 828 So.2d 429 (Fla. 1st DCA 2002). Like C.C.B., N.W. was a first-time offender who falsely reported a bomb at school. While C.C.B. did file a motion to correct disposition error under Florida Rule of Juvenile Procedure 8.135(b)(2), N.W.’s failure to file such a motion is immaterial on this record. This is not a case in which the trial judge was never afforded a chance to rule on the issue argued on appeal. I respectfully dissent.


author: PER CURIAM.

text:
    Gary Russell WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-5028.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.

      Nickolas G. Petersen, Shalimar, for Appellant.
    Robert A. Butterworth, Attorney General and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Gary Russell Wright appeals a judgment of conviction for child abuse, a third degree felony under section 827.03(1), Florida Statutes (2000), based upon a spanking he administered to his then one year old daughter. Appellant argues that his conviction for child abuse is contrary to this court’s decision in Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999), since it was undisputed that he was employing corporal punishment to discipline his minor child, since he raised the affirmative defense of parental privilege, see Nixon v. State, 773 So.2d 1213 (Fla. 1st DCA 2000), and since the trial court, sitting as trier of fact, found that the state had failed to prove “malicious intent” on his part.

While this appeal was pending, the supreme court released Raford v. State, 828 So.2d 1012, 1021 (Fla.2002), in which the supreme court held that there is no absolute immunity enjoyed by a parent or one standing in loco parentis, and thus, such a person may be convicted of felony child abuse under section 827.03(1). To the extent that this court’s decision in Wilson held otherwise, that case was disapproved. Id. Because the Raford decision was released while the instant case was pending on direct appeal, Raford applies here. See Bunkley v. State, 833 So.2d 739, 743 (Fla. 2002); Smith v. State, 598 So.2d 1063 (Fla.1992).

Accordingly, since the record shows that the trial court considered, but rejected, the defense raised by appellant that the spanking of the child was permissible corporal punishment by a parent, the conviction must be affirmed. Raford.

AFFIRMED.

BOOTH, BENTON and VAN NORTWICK, JJ„ CONCUR.


text:
    George L. McDANIEL, Appellant, v. Brenda D. McDANIEL, Appellee.
    No. 1D01-4984.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.

      D. Reed Ammon, Gulf Breeze, for Appellant.
    Bruce B. Childers, Pensacola, for Appel-lee.
   PER CURIAM.

George L. McDaniel, appellant, seeks review of an order modifying the Final Judgment of Dissolution of Marriage. Appellant raises four issues: the trial court erred in awarding retroactive and increased child support pursuant to section 61.30(ll)(c), Florida Statutes (2001); the trial court failed to make findings to support its 28% deviation from the statutory child support guidelines; the trial court failed to make findings to support its inclusion of private school tuition • in the increased child support obligation; and the trial court abused its discretion in awarding the federal dependency tax exemption to appellee, Brenda D. McDaniel. We agree and reverse.

The trial court found, according to the testimony of both parties, that appellant had not exercised regular visitations with the minor child since January 1995. The trial court increased the child support “according to the guidelines and then increased beyond that by a factor to reflect the fathers’ [sic] non-involvement with the child.” The increased child support was ordered “from January 1995, the date the court finds the father began not regularly exercising his visitation, to the date of the daughter’s fourteenth birthday.” Although not cited in the order as authority for the retroactive award of increased child support, it is evident that the trial court was relying on section 61.30(ll)(c), Florida Statutes (2001). Section 61.30(11) was amended effective June 5, 2001, as follows:

(c) A non-custodial parent’s failure to regularly exercise court-ordered or agreed visitation not caused by the custodial parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the non-custodial parent first failed to regularly exercise court-ordered or agreed visitation.

§ 61.30(ll)(c), Fla. Stat. (2001) (emphasis supplied). Subparagraphs (a)10. and (b), referred to in the above-quoted provision of the statute, involve shared parental agreements where the child spends a substantial amount of time with each parent resulting in the reduction of financial expenditures typically incurred by the primary residential parent. -The trial court erred, as a matter of law, by applying section 61.30(ll)(c) because there was no evidence that the amount of child support in the instant case was adjusted or otherwise reduced pursuant to either scenario contemplated in sections 61.30(ll)(a)10. or 61.30(ll)(b). Thus, we reverse the trial court’s retroactive award of increased child support and remand for a recalculation of the retroactive period of the award. Town v. Town, 801 So.2d 324 (Fla. 1st DCA 2001) (holding that a retroactive increase in child support could not accrue earlier than the date the former wife first requested an increase in child support); McDowell v. McDowell, 770 So.2d 1289 (Fla. 1st DCÁ 2000) (holding that it is clear error for the trial court to award child support retroactive to a date before the date of the motion seeking such an award); Wertheim v. Wertheim, 667 So.2d 331 (Fla. 1st DCA 1995) (reversing and remanding with directions that the trial court’s modification be made retroactive to the date of the petition and not any time preceding that date).

The trial court found that the child support should be increased and further found that a factor of 1.28% was reasonable as an increase over and above the child support guideline amount dictated by section 61.30(6), Florida Statutes (2001). It is apparent from the amount of child support awarded, i.e., $1,027.31, that 1.28% was not the only figure or factor used to increase the amount of appellant’s share of child support due under the statutory guidelines, which the parties agreed was $668.02. It appears to this court that the trial court deviated from the guideline amount of $668.02 by 28% and added the private school tuition costs, i.e., $172.25, to reach the $1,027.31 monthly support awarded by the court.

Section 61.30(l)(a), Florida Statutes (2001), provides that the “trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.” (emphasis supplied). Because the trial court ordered appellant to pay child support in the amount of $1,027.31, an amount which deviates more than 5% from the guidelines amount, without satisfying the statutory requirement of section 61.30(l)(a), quoted above, we reverse. See Swcmston v. Swanston, 746 So.2d 566 (Fla. 1st DCA 1999); Mead v. Mead, 726 So.2d 865, 865 (Fla. 1st DCA 1999) (directing the trial court to make findings mandated by section 61.30(l)(a) “so that intelligent appellate review will be possible”). On remand, the trial court should either recalculate the child support amount or make adequate findings to support the award.

. [3] After expressly cautioning the parties that appellant should not have to pay twice for the tuition, once through the increase (multiplier) to the child support guidelines amount and a second time by adding the amount of tuition itself to the child support, the trial court increased the child support guidelines amount by the multiplier, citing the child’s private school education as a reason for the increase, and then further added private school tuition to the amount of retroactive child support. The addition of private school tuition expenses was made without any findings as to the parties’ ability to pay such private education expenses, the customary standard of living, or the child’s best interest. Musser v. Watkins, 752 So.2d 141 (Fla. 2d DCA 2000); Crowley v. Crowley, 672 So.2d 597, 600 (Fla. 1st DCA 1996) (citing Stefanowitz v. Stefanowitz, 586 So.2d 460 (Fla. 1st DCA 1991) and Wilson v. Wilson, 559 So.2d 698 (Fla. 1st DCA 1990)). We reverse and remand the award of retroactive child support and its inclusion of private .school tuition in the award for the tidal court to determine whether appellant’s contribution to private school expenses is warranted pursuant to Crowley and to recalculate the child support or make adequate findings to support the award. We further note that the trial court must support any child support award that deviates more than 595 from the child support guidelines with specific written findings pursuant to section 61.30(l)(a).

Appellant’s final issue is that the trial court abused its discretion in transferring the tax dependency exemption for the parties’ minor child to appellee when the evidence established that only appellant benefitted from the annual tax dependency exemption as appellee had no taxable income or income tax liability in the tax year 2000. We agree that the trial court abused its discretion because appel-lee did not present any evidence to justify the transfer of the exemption. We cannot discern from the trial court’s order or from the record on appeal why the trial court transferred the tax dependency exemption or whether the court considered the tax effect of transferring the exemption in arriving at the child support amount. In light of the lack of findings and evidence to support the transfer of the tax dependency exemption, we conclude that the trial court abused its discretion in awarding the federal dependency tax exemption to appellee, Brenda D. McDaniel. Accordingly, on remand, the trial court shall provide that appellant is entitled to the dependency exemption for the minor child.

Reversed and remanded with directions.

WEBSTER, DAVIS and VAN NORTWICK, JJ„ CONCUR.

      . The addition of private school expenses to the child support amount created a 25.78% increase above the initial 28% increase.


text:
    Dwight D. ELLINWOOD, Appellant, v. BOARD OF ARCHITECTURE AND INTERIOR DESIGN, Appellee.
    No. 1D01-5197.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Steven E. Sellers of Sellers Law Firm, P.L., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Ann Cocheu, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dwight Ellinwood appeals the denial of his application for an architect’s license under section 481.213(3), Florida Statutes. He contends that the Board of Architecture and Interior Design’s interpretation of the statute is clearly erroneous. We agree and reverse.

Ellinwood received a bachelor of design in architecture from the University of Florida in 1977. He has been a licensed architect in Georgia since 1986, and also is licensed in Virginia and Pennsylvania. In March 2000, Ellinwood applied for a Florida license, seeking licensure by endorsement pursuant to section 481.213(3), Florida Statutes. Section 481.213(3) states:

The board shall certify as qualified for a license by endorsement as an architect or as an interior designer an applicant who:
(a) Qualifies to take the prescribed li-censure examination, and has passed the prescribed licensure examination or a substantially equivalent examination in another jurisdiction, as set forth in s. 481.209 for architects or interior designers, as applicable, and has satisfied the internship requirements set forth in s. 481.211 for architects;
(b) Holds a valid license to practice architecture or interior design issued by another jurisdiction of the United States, if the criteria for issuance of such license were substantially equivalent to the licensure criteria that existed in this state at the time the license was issued; provided, however, that an applicant who has been licensed for use of the title “interior design” rather than licensed to practice interior design shall not qualify hereunder; or
(c) Has passed the prescribed licensure examination and holds a valid certificate issued by the National Council of Architectural Registration Boards, and holds a valid license to practice architecture issued by another state or jurisdiction of the United States. For the purposes of this paragraph, any applicant licensed in another state or jurisdiction after June 30, 1984, must also hold a degree in architecture and such degree must be equivalent to that required in s. 481.209(l)(b). Also for the purposes of this paragraph, any applicant licensed in another state or jurisdiction after June 30,1985, must have completed an internship equivalent to that required by s. 481.211 and any rules adopted with respect thereto.

(emphasis added).

Section 481.209(l)(b) states that an applicant must have degree from a school or college accredited by the National Architectural Accreditation Board, which effectively requires an applicant to have a five-year degree in architecture. Under the Board’s interpretation of section 481.213(3), the five-year degree requirement applies to paragraphs (b) and (c). Since Ellinwood’s degree is a four-year degree, the Board denied his application.

At an informal hearing before the Board, Ellinwood argued that the five-year degree requirement applied only to paragraph (c) and not to paragraph (b), and that under paragraph (b), he was entitled to licensure. The Board rejected this argument and upheld its denial of Ellin-wood’s application.

Although an agency’s interpretation of a statute it administers is entitled to deference, this court can overturn the agency’s interpretation if it is clearly erroneous. See Ocampo v. Dep’t of Health, 806 So.2d 633, 634 (Fla. 1st DCA 2002). The Board’s application of the five-year degree requirement to both paragraph (b) and (c) is clearly erroneous. Section 481.213(3) is unambiguous and must be given its plain meaning. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The five-year degree requirement is contained in paragraph (c) which specifically states that the requirement applies to “this paragraph.” Moreover, paragraph (b) is separated from paragraph (c) with the disjunctive “or.” The use of a disjunctive in a statute indicates alternatives and requires that those alternatives be treated separately. See Kirksey v. State, 433 So.2d 1236, 1241 n. 2 (Fla. 1st DCA 1983). Based on these circumstances, the five-year degree requirement plainly applies only to paragraph (c). Therefore, we reverse the Board’s denial of Ellinwood’s application and remand for reconsideration of the application under section 481.213(3)(b), Florida Statutes.

ALLEN, C.J., WEBSTER and PADOVANO, JJ., CONCUR.


text:
    Charles DURDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-2810.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Jackson v. State, 833 So.2d 243 (Fla. 4th DCA 2002).

POLEN, C.J., STEVENSON and TAYLOR, JJ., concur.


author: STONE, J.

text:
    Wallace KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2549.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Mark Rosenblatt, Assistant Attorney General, Fort Lauderdale, for appellee.
   STONE, J.

Wallace King appeals an order revoking his probation for failure to pay restitution and court costs. We reverse.

King received a probation sentence after he was convicted of grand theft. As part of his probation, he was required to make restitution in the amount of $16,000. The court set a minimum monthly payment for restitution and court costs. Also, as a special condition of probation, he was required to assign the proceeds he received from a settlement in an unrelated civil case to his probation officer within ten days of receiving the award.

The court found that King had willfully violated all three conditions of probation. We first address King’s failure to comply with the special condition by turning over the proceeds from his settlement. At a violation of probation final hearing on May 31, 2000, the prosecutor announced the three violations for which King was accused, including this special condition. However, when King’s probation officer stipulated that King did not willfully violate the conditions and the state had no objection to reinstating his probation, the trial court announced its finding that there had been no willful violation.

In May 2001, a violation was again charged and a hearing was held to determine whether King violated his probation by failing to timely assign the proceeds from his settlement to his probation officer, among other allegations. When defense counsel reminded the court that the same issue had already been decided at the hearing on May 31, 2000, the court asked whether it was bound by the prior stipulation. Defense counsel assured the court that it was not bound by the probation officer’s stipulation in the earlier hearing but asked that the court consider it as further evidence that King had not willfully violated his probation.

We do not, however, address the issue of whether the court was bound by the probation officer’s stipulation. Rather, our focus is the finding made by the trial court when it reinstated King’s probation. At that hearing, the court clearly found, following the stipulation, that King’s failure to timely assign the proceeds of his settlement was not a willful violation. As the court’s finding disposed of the issue, we conclude that the state was precluded from charging King with the same violation one year later. See Albrecht v. State, 444 So.2d 8, 11-12 (Fla.1984), superseded by statute on other grounds as stated in, 448 So.2d 566 (Fla. 2d DCA 1984)(where second suit arises out of same cause of action and is between same parties as the first, the first judgment is conclusive as to all matters which were or could have been determined under doctrine of res judicata). We also note that, at the time of the second hearing, King had paid restitution in an amount exceeding the amount he received from his settlement, narrowing the issue to one of timeliness only. However, the ten day period had already passed at the time of the first hearing where the judge reinstated King’s probation and nothing that occurred in the following year gave reason to express a different finding. Therefore, the court erred in allowing the state to re-visit this issue. See id.

As to the court’s order revoking King’s probation for failure to pay the specified amount of monthly restitution and court costs, we also reverse. There is no evidence in the record to support the finding that King’s failure to make restitution payments was willful. King’s testimony that he only earned $200 a week and could not find employment to supplement his income was uncontested. See Costello v. State, 567 So.2d 1032, 1033 (Fla. 4th DCA 1990)(probationer’s uncontested testimony regarding his inability to pay cannot arbitrarily and totally be rejected). This testimony was confirmed by the probation officer’s testimony that she did not believe King had the ability to pay costs and that she had been authorized by the court, in a prior proceeding, to allow King to use his income to meet his child support responsibilities before using it for restitution purposes. Cf. Clark v. State, 510 So.2d 1202, 1203-04 (Fla. 2d DCA 1987)(af-firming an order revoking probation where probation officer confirmed that probationer who failed to pay restitution had been lax in her search for employment).

As the record does not support the trial court’s findings, we reverse the order revoking King’s probation.

POLEN, C.J., and TAYLOR, J., concur.


author: KLEIN, J.

text:
    David MERCER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-106.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Michael D. Gelety, Fort Lauderdale, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of robbery with a deadly weapon while wearing a mask. We reverse for a new trial because the court erred in limiting appellant’s cross-examination of the state’s key witness.

The robbery occurred in a barbershop and was carried out by two men with shirts pulled over their heads, both of whom had guns. Neither of the victims could identify the robbers, whom they both described as non-white but light skinned. One of the victims testified at trial that appellant had darker skin than the other robber.

The primary testimony implicating appellant was from a woman who was friendly with the other defendant but knew appellant only from seeing him around. She testified that she was with appellant, the eo-defendant, and two other young men later on the day of the robbery and there was joking to the effect that there had been an incident in which appellant had trouble in getting his gun out of his pocket.

This same witness had previously testified that she knew nothing about the robbery until she had been questioned and given details of the robbery by the police. The court, however, would not allow her to be cross-examined as to how much information the police had provided her. In appellant’s proffer, the witness testified that the police had told her that one of the men had confessed, that the robbers had shirts over their heads rather than masks, that there were guns involved, and who had the guns. Her testimony on the proffer about what she knew and when she knew it was full of inconsistencies.

This witness was the only witness linking appellant to the robbery and his primary theory of defense was to attack her credibility. The court would not allow her to testify as to the details of what the police had told her on the ground that it was irrelevant and hearsay.

The information the police gave this witness was clearly relevant. Where evidence tends in any way to establish a reasonable doubt of defendant’s guilt, it should be admitted. Rivera v. State, 561 So.2d 536 (Fla.1990). And, as our supreme court recently explained in Butler v. State, 27 Fla. L. Weekly S461 (Fla. May 9, 2002):

[C]ross-examination is not limited to the exact details testified to on direct examination but extends to the whole subject and all matters that modify, supplement, contradict, rebut or make clearer the direct testimony.

Nor was the testimony as to what the police had told this witness inadmissible as hearsay, because it was not offered to prove the truth of the statements by the police. § 90.801(l)(c), Fla. Stat. (2000).

Because the state’s case hinged entirely on the credibility of this witness, we cannot agree with the state that this error was harmless. We therefore reverse for a new trial.

STEVENSON, J., and BAILEY, JENNIFER D., Associate Judge, concur.


text:
    PALM BEACH COMMUNITY CHURCH, a Florida not-for-profit corporation, Appellant, v. Gary R. NIKOLITS, Palm Beach County Property Appraiser, and John K. Clark, Palm Beach County Tax Collector, Appellees.
    No. 4D02-930.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.

      Basil E. Dalack, Tequesta, for appellant.
    Eddie E. Stephens, III and Jay R. Jack-nin of Christiansen & Jacknin, West Palm Beach, for appellee Gary R. Nikolits.
   KLEIN, J.

Appellant church appeals a finding that recently purchased raw land was not being used predominantly for religious purposes and therefore the church was not entitled to a tax exemption. We affirm.

The church, which usually has 800 to 1,000 people attending Sunday services at its present rented location, purchased forty-seven acres on PGA Boulevard in Palm Beach Gardens for $4 million on which it plans to build a church. The property is not adjacent to the present location of the church.

The zoning does not allow all 47 acres to be used for a church, and the church accordingly agreed to sell eleven acres to a developer to be used for non-church uses. As of January 1, 2000, the date on which the taxable status of the property was determined, § 192.042, Fla. Stat. (2000), the eleven acres was under contract to be sold for $3.5 million; however, the sale later fell through. The church subsequently entered into a contract to sell a portion to a different developer for $7.5 million; however, that sale did not come to fruition either.

There were no church services conducted on the property before January 1, 2000; however, on two occasions in 1999, after the October closing, a few members of the church and staff walked around the property, discussed plans as to where things would be located, and uttered some prayers (such as thanking God for the land).

The exemption in section 196.196(2), Florida Statutes provides that only “portions of property used predominantly for charitable, religious, scientific, or literary purposes shall be exempt.” In this case the trial court found as a matter of fact that the property was not being so used as of January 1, 2000.

In Robbins v. Florida Conference Ass’n of Seventh Day Adventists, 641 So.2d 893 (Fla. 3d DCA 1994), the trial court held that a two and a half acre vacant lot owned by a church was exempt where church services had been occasionally conducted on the property. Robbins is distinguishable from the present case, however, in that in Robbins the Value Adjustment Board had granted the exemption which was confirmed by summary judgment in the trial court. In the present case the board refused to grant the exemption, and the trial court found as a matter of fact that the property was not being used predominantly for religious purposes.

The church argues that merely because part of the property was going to be developed in the future for other purposes would not preclude a present exemption. We do not disagree with that assertion; however, it does not necessarily follow that the church was entitled to an exemption as a matter of law. The trial court was not bound to find the property exempt merely because small groups walked on it twice between the time the church closed on the property, and the assessment date. We therefore affirm.

STEVENSON, J., and BAILEY, JENNIFER D., Associate Judge, concur.


text:
    C.S., The Father, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 4D02-4729.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    C.S., Deerfield Beach, pro se.
    No appearance for respondent.
   PER CURIAM.

Petitioner seeks review of a trial court order denying his right to a state paid transcript based upon his indigency. We deny the petition. The transcript he sought was in connection with a prior appeal which this court has already determined. He did not raise this issue in that appeal and obtaining a transcript at this late- date cannot change the outcome as the mandate has already issued. The issue, therefore, is moot.

WARNER, STEVENSON and MAY, JJ., concur.


text:
    Clarence McDUFFY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4014.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898, 902 (Fla.1979); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001).

POLEN, C.J., STONE and FARMER, JJ., concur.


text:
    John SERRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1079.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Craycraft, 817 So.2d 864 (Fla. 1st DCA 2002).

SHAHOOD, TAYLOR, JJ., and FLEET, J. LEONARD, Associate Judge, concur.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. T.P., A Child, Appellee.
    No. 4D01-4298.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Sandra Braverman, Assistant Attorney General, Fort Lauderdale, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

The State of Florida appeals an order granting T.P.’s motion to suppress contraband found in his car and on his person. We reverse, finding that there was a sufficient basis under the Fourth Amendment to justify the detention and search.

On March 10, 2001, Deputy Robert B. Fawcett was patrolling an area in Pompano Beach known for heavy narcotics activity. Deputy Fawcett observed two males seated in an older-model Dodge sports utility vehicle (“SUV”) backed into a small parking lot at a location known for narcotics activity. The SUV was not illegally parked, and the two males did not appear to be doing anything unusual in the car.

Deputy Fawcett became suspicious, however, because he did not recognize the two as residents of that location and they were not attempting to get out of the car to go anywhere. As Deputy Fawcett drove by, both males immediately exited the SUV and started walking rapidly towards the courtyard of a house. Sensing that their quick exit was due to his appearance on the scene, the deputy pulled up in front of the SUV and got out of his car. Upon approaching the SUV, he smelled an odor of what he believed to be burnt marijuana coming from the interior of the car. According to the deputy, his opinion that the odor came from marijuana was based upon twenty years of experience as a Pompano Beach police officer and having smelled the scent of marijuana hundreds of times.

Deputy Fawcett then attempted to detain both men. T.P. stopped upon request, but the other male continued walking very rapidly through the courtyard and exited through the bushes. During the patdown of T.P., Deputy Fawcett, based upon his experience, felt what he believed to be two packages of fiber-like material. He removed the packages from T.P.’s pocket and administered a field test, which yielded a positive result for marijuana. T.P. was arrested and a subsequent search of the SUV produced additional bags of marijuana on the driver’s front floor board, where T.P. was seated. T.P. moved to suppress the evidence and statements made, alleging that the officer had no well-founded reason to detain and search him or his car. The court, relying on Romanello v. State, 365 So.2d 220 (Fla. 4th DCA 1978), granted the motion to suppress.

First, Deputy Fawcett’s decision to stop, exit his vehicle, and walk toward T.P.’s parked SUV does not give rise to any constitutional safeguards. Further, upon approaching T.P.’s car and smelling previously burnt marijuana, the officer had probable cause, based upon the smell alone, to detain and search T.P. and his vehicle for contraband. See State v. Betz, 815 So.2d 627, 683 (Fla.2002)(stating that the odor of previously burnt marijuana certainly warranted a belief that an offense had been committed and unquestionably provided the police officers on the scene probable cause to search the person and the vehicle); see also State v. K.V., 821 So.2d 1127 (Fla. 4th DCA 2002); State v. Williams, 739 So.2d 717 (Fla. 5th DCA 1999); Harvey v. State, 653 So.2d 1146 (Fla. 5th DCA 1995); Rogers v. State, 586 So.2d 1148 (Fla. 2d DCA 1991).

We, therefore, find the trial court’s reliance on Romanello to be in error. Roma-nello stands for the proposition that a person’s right against unreasonable search and seizure is violated where the officer smells the odor of marijuana, which created the probable cause to search, only after illegally detaining the defendant. In Ro-manello, officers approached and detained the defendants out of “curiosity” because they were having difficulty hoisting a boat on a trailer and asked for their motor vehicle and boater’s registration information. See 365 So.2d at 221. It was only after following one of the defendants onto the boat to get the boater’s registration that the officer smelled and saw marijuana. A subsequent warrantless search revealed additional quantities of marijuana. This court found that the officers were operating merely upon a “hunch” and that they lacked reasonable suspicion to justify the initial stop and discovered the marijuana only after the initial illegal detention. See id.; accord Mullins v. State, 366 So.2d 1162 (Fla.1979); D.G. v. State, 714 So.2d 644 (Fla. 4th DCA 1998); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977).

Unlike Romanello, here, Deputy Faw-cett testified that he detained T.P. only after he first smelled the previously burnt marijuana coming from his car, giving him probable cause to search and detain. And, contrary to T.P.’s argument, there is no evidence in the record, and he points to none, that would support the position that the officer detained T.P. prior to smelling the odor of marijuana.

Our conclusion is consistent with previous decisions of this court, and our sister courts, finding that an officer has probable cause to search a defendant, or his vehicle, after smelling the odor of burnt marijuana emanating from that vehicle. In K.V., we found that an officer who was informed by a security guard that the defendant’s car smelled like marijuana and who then observed a small cloud of smoke billow from the car as the passenger opened his door, and smelled the odor of marijuana as he approached the car, had probable cause to detain the occupants and seize the items found in the search. See 821 So.2d at 1128-29. In State v. Reed, 712 So.2d 458 (Fla. 5th DCA 1998), the court found that an officer had probable cause to search and arrest the defendant who threw a cigar to the ground upon seeing deputies exit their car, where the officer picked up the discarded cigar, detected the smell of cannabis coming from the cigar and, after calling the defendant over, smelled cannabis on his clothing. See also State v. Hernandez, 706 So.2d 66, 67 (Fla. 2d DCA 1998)(finding that officers had probable cause to stop and search each person present where officers, while driving with their car windows down, passed a large group and smelled a strong odor of marijuana emanating from the cluster of people).

Based upon the foregoing, we find that smelling the odor of burnt marijuana upon exiting his vehicle gave Deputy Fawcett probable cause to detain and search both T.P. and his car, and that the trial court erred in suppressing the fruits of that search.

REVERSED and REMANDED.

SHAHOOD and HAZOURI, JJ., concur.

      . Deputy Fawcett stated that he conducted the “pat down” because the area was known for violent crimes such as shootings, stabbings, and homicides. Despite Deputy Faw-cett’s dubious subjective reasons for the pat-down, a search of T.P.'s person was justified under the circumstances.


text:
    Vincent SWEETING, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4694.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Vincent Sweeting seeks review of the trial court’s order, denying his motion to withdraw plea. The judge determined that it lacked jurisdiction in light of Sweet-ing’s pending direct appeal of the plea and sentence. See, e.g., Lowe v. State, 644 So.2d 510 (Fla. 2d. DCA 1994). We reverse and remand for further proceedings as this court had relinquished jurisdiction to the trial court for the purpose of ruling on the pending motion, though our review of the record reflects that the trial court had not yet received this court’s order when it denied relief.

WARNER, STEVENSON and HAZOURI, JJ., concur.


author: DAVIS, Judge.

text:
    E.C.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1220.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.

      James Marion Moorman, Public Defender, Bartow, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

E.C.M. challenges the circuit court’s order requiring him to pay $1829 in restitution. We reverse because the trial court imposed restitution without offering E.C.M. counsel or determining that he voluntarily waived his right to counsel.

Section 985.203(1), Florida Statutes (2000), provides:

A child is entitled to representation by legal counsel at all stages of any proceedings under this part.... A child shall be represented by legal counsel at all stages of all court proceedings unless the right to counsel is freely, knowingly, and intelligently waived by the child. If the child appears without counsel, the court shall advise the child of his or her rights with respect to representation of court-appointed counsel.

Additionally, Florida Rule of Juvenile Procedure 8.165(b)(4) states:

If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the party appears without counsel.

“To establish that a person has knowingly and voluntarily waived his right to counsel, the state must prove ‘an intentional relinquishment or abandonment of a known right or privilege.’” J.G.S. v. State, 435 So.2d 942, 943 (Fla. 2d DCA 1983) (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)).

At E.C.M.’s November 22, 2000, arraignment, he executed a written waiver of counsel, which read “I don’t want a lawyer for this hearing.” (Emphasis added.) At the February 20, 2001, restitution hearing the trial court did not advise E.C.M. of his right to counsel. This was error. See Hodas v. State, 603 So.2d 21 (Fla. 4th DCA 1992).

Additionally, E.C.M. did not intentionally relinquish or abandon his known right to counsel at the restitution hearing. The record reflects that when the trial court asked E.C.M. if he was represented by counsel, the clerk answered, “Not in this case,” but E.C.M. said nothing.

Accordingly, we reverse the restitution order and remand for a new restitution hearing at which E.C.M. will be advised of his right to counsel.

Reversed and remanded.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: COVINGTON, Judge.

text:
    Katoya L. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3133.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Katoya L. Wallace is appealing his sentence as a habitual felony offender. Wallace raises two issues in this appeal. First, Wallace argues that the trial court erred when it did not sentence him according to the negotiated plea agreement. However, Wallace did not raise this issue in a timely filed motion to withdraw his plea. Thus, we decline to address the merits of this claim. Williams v. State, 821 So.2d 1267, 1268-69 (Fla. 2d DCA 2002). Wallace next submits that his sentence as a habitual felony offender was improper because the State did not provide a certified copy of one of his prior convictions. Because we agree that the State did not provide the necessary documents to support habitualization, we reverse and remand.

“It is the State’s responsibility to prove that the defendant qualifies for sentencing as a habitual felony offender.” Rivera v. State, 825 So.2d 500 (Fla. 2d DCA 2002). Application of the habitual felony offender statute requires the State to provide the court with: “(1) the date of the current felony offense, (2) the date of the conviction for the last prior felony, and (3) the date that the defendant was released from prison imposed for the last felony conviction.” Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997) (citing Reynolds v. State, 674 So.2d 180, 180 (Fla. 2d DCA 1996)).

Here, defense counsel objected during the sentencing proceeding and advised the trial court that the State was required to produce certified copies of all judgments and sentences. Although the record before the trial court contained proof of the initial qualifying conviction, it did not contain a certified copy of the conviction for the second felony offense. The State concedes that it did not produce the necessary documents to support a habitual felony offender sentence.

Accordingly, we reverse and remand for the trial court to sentence Wallace within the sentencing guidelines. See Reynolds; Rivera.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.


author: STRINGER, Judge.

text:
    Christine Carol ORTH, Appellant, v. Terry Lee ORNDORFF, Appellee.
    No. 2D02-3315.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
    Nikki Lewis-Simon, Miami, for Appellant.
    Terry Lee Orndorff, pro se.
   STRINGER, Judge.

Christine Carol Orth seeks review of the trial court’s order entering a permanent injunction against her precluding contact with her former boyfriend, Terry Lee Orn-dorff. Orth argues that the trial court erred in entering such an order because Orndorff had not filed a petition or cross-petition for an injunction. We agree and reverse.

This case originated in March 2002, when Orth filed a petition for an injunction for protection against domestic violence perpetrated by Orndorff pursuant to section 741.30, Florida Statutes (2001). The trial court held a hearing and granted Orth’s petition on May 14, 2002. On May 31, 2002, the court sua sponte entered a permanent injunction against Orth precluding contact with Orndorff. However, Orndorff did not file a petition or cross-petition for an injunction. Thus, the permanent injunction is in direct contravention of sections 741.30(1)(I), (4), and (6)(a), which require the filing of a petition and a hearing on such prior to the issuance of an injunction. See Johnson v. State, 657 So.2d 971, 971-72 (Fla. 3d DCA 1995) (reversing injunction where no petition was filed and no hearing was held). Accordingly, we reverse.

WHATLEY and COVINGTON, JJ., Concur.


author: MAY, J.

text:
    Bonnie L. PHILLIPS, Appellant, v. Christopher Q. WINTTER, Appellee.
    No. 4D02-4843.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Barry S. Franklin and Donald G. Cris-cuolo of Franklin & Criscuolo, North Miami Beach, for appellant.
    Michael L. Addicott of Addicott & Addi-cott, P.A., Hollywood, for appellee.
   MAY, J.

The mother appeals a trial court order entered on the father’s verified ex parte motion for temporary injunction granting exclusive temporary custody of the minor child. She argues that the trial court abused its discretion in entering the order. We agree and reverse.

The father filed a motion for temporary custodial modification, and alleged that the mother had subjected the minor child to physical violence, making reference to a school report recounting the child’s statement to a teaching assistant. He also alleged that the mother had previously admitted that she had been engaged in physical fights with her daughter, in the house, the car, and in public. He alleged that the mother was seen “rolling on the asphalt, wrestling and struggling with” the child at a soccer match. He also alleged that the child had been left alone with an infant and a four-year old child while in the custody of the mother’s adult daughter, and that she had been exposed to domestic arguments between the adult daughter and her boyfriend. And lastly, he alleged that there was marijuana in the trailer home where the mother’s adult daughter lived.

Initially, the trial court told the father that the motion to change custody required an evidentiary hearing and eonld not be considered during motion calendar. The court then advised him that the motion could be considered, and additional time would be allowed, if it was submitted as an emergency. Following that advice, the father resubmitted the pleading as a verified ex parte motion for temporary injunction granting exclusive custody of the minor child. He attached partial deposition transcripts of the mother and the adult daughter’s boyfriend. The mother’s transcript contained her explanation of the allegations forming the basis of the motion. The other deposition contained an admission about the marijuana by the adult daughter’s boyfriend.

The trial court granted the motion on November 18, 2002, and awarded the father exclusive temporary custody of the child, pending an evidentiary hearing on December 9, 2002. The mother filed an emergency motion to stay the order, which the court denied. The mother filed this appeal and requested this court to stay the trial court’s order. This court denied the stay. On December 9, 2002, only the father and the guardian ad litem appeared. The trial court decided not to conduct the evidentiary hearing because the November 18, 2002, order was on appeal to this court.

This court has reviewed the order under an abuse of discretion standard. Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995). To obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties; and (2) that the change in custody serves the best interests of the child. Kendall v. Kendall, 832 So.2d 878 (Fla. 4th DCA 2002). Only under extraordinary circumstances may a trial court grant a party temporary custody of a child without affording prior notice to the opposing party or an opportunity to be heard. Shaw v. Shaw, 696 So.2d 391 (Fla. 4th DCA 1997).

We agree with the mother that no true emergency existed in this case. The father concedes that the reason he filed for an emergency ex parte injunction was that the trial court had no other available time for an evidentiary hearing until after January, 2003, when a new judge would take over the presiding judge’s caseload. The father’s frustration with the court docket, however, does not transform his standard motion for modification of custody into an emergency.

There were no sworn affidavits or other forms of evidence to substantiate the father’s allegations. The father relied instead on unsubstantiated hearsay. In fact, the mother’s deposition testimony explained or refuted much of what the father alleged. This evidence was insufficient to establish a substantial change in the condition of either party or that the change in custody would serve the best interests of the child.

For these reasons, the order is reversed, and the ease remanded for further proceedings. We will entertain no motions for rehearing and the clerk is directed to issue the mandate forthwith.

POLEN, C.J., and FARMER J., concur.

      . The trial court had previously entered an order prohibiting the mother from leaving the minor child in the custody of her adult daughter.


text:
    STATE of Louisiana v. State V. ROBERT “Bob” Odom.
    No. 2002-KK-2932.
    Supreme Court of Louisiana.
    Dec. 5, 2002.
   PER CURIAM.

Granted. The ruling of the district court denying the state’s motion for a continuance of the trial is reversed. The interests of judicial economy require that all of the counts remaining of the original indictment returned against respondent be tried together in a single proceeding unless properly severed. The district court should not reset this case for trial until the merits of all of its rulings with respect to the remaining counts, including its partial quashing of five of the counts presently at issue in the court of appeal, have been finally resolved upon timely application for review by either the state or the defense.


text:
    Kim WRIGHT v. Katherine TONNAS.
    No. 2002-CC-2948.
    Supreme Court of Louisiana.
    Dec. 6, 2002.
   On Writ of Certiorari to the Court of Appeal Fourth Circuit, Parish of Orleans.

CALOGERO, Chief Justice, would grant the writ and assigns reasons.

Denying the writ application in this ease, where the district court judge allowed the eviction and the court of appeal refused to upset that ruling, may well be the just and appropriate legal result. However, the law requires the plaintiff in an eviction proceeding to offer evidence to show that she is entitled to demand possession of the property because she is either a qualified succession representative or an heir with a judgment of possession. There are reasons to believe that the plaintiffs right to demand possession has not been established in this case. Therefore, I would prefer to grant the writ, examine the record, and writ an opinion; send the case back to the appellate court for that purpose; or remand to the district court to allow the plaintiff to prove her right to bring this eviction proceeding.


text:
    In re Peter C. BERTUCCI.
    No. 2002-OB-2711.
    Supreme Court of Louisiana.
    Dec. 10, 2002.
   ORDER

Considering the Petition for Permanent Resignation from the Practice of Law in Lieu of Discipline filed by Peter C. Bertuc-ci, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Peter C. Bertucci for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

IT IS FURTHER ORDERED that Peter C. Bertueci shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BOARD NO. 02-PDB-062.
    No. 2002-OB-2650.
    Supreme Court of Louisiana.
    Dec. 16, 2002.
   ORDER

On the showing made, we are unable to determine whether the disciplinary board acted arbitrarily, capriciously or unreasonably in dismissing the complaint. Supreme Court Rule XIX, § 30(B). However, given the allegations made by the complainant, we believe the disciplinary board erred in not directing that the matter be investigated further pursuant to Supreme Court Rule XIX, § 30(A). Accordingly, the matter is remanded to the Office of Disciplinary Counsel pursuant to Supreme Court Rule XIX, § 11(B) to conduct further investigation. In its investigation, the Office of Disciplinary Counsel should take statements or additional statements from the witnesses in this matter, including but not limited to, respondent, her sister and complainant’s present and former attorneys, and obtain additional evidence, such as the record of the underlying domestic proceeding.


text:
    STATE of Louisiana v. Lionel MORRIS.
    No. 2002-KK-1778.
    Supreme Court of Louisiana.
    Dec. 19, 2002.
   PER CURIAM.

Granted. The order of the court of appeal is vacated and the ruling of the trial court on the state’s notice of intent to introduce evidence of defendant’s acts of violence and threats against the victim, both during and after their relationship ended, is reinstated. We find no abuse of discretion by the trial court in determining that the evidence, which revealed a pattern of physical violence, harassment, and threats to the life of the victim, is relevant to the question of whether felonious intent accompanied defendant’s alleged unauthorized entry of the victim’s residence, and that the probative value of the evidence outweighs any risk that it will unduly prejudice the defendant at trial by “lur[ing] the fact-finder into declaring guilt on a ground different from proof specific to the offense charged.... ” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).


author: VICTORY, J.,

text:
    STATE of Louisiana v. Bradford Paul STE. MARIE.
    No. 2002-K-1117.
    Supreme Court of Louisiana.
    Dec. 19, 2002.
   In re State of Louisiana; —Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. C, Nos. 95-862; to the Court of Appeal, Third Circuit, No. 01-1253.

WRIT DENIED.

The prior judgment challenged by the State in this writ application is final. Accordingly, this court is precluded from considering the issues raised.

VICTORY, J., concurs with reasons.

TRAYLOR and WEIMER, JJ., would grant the writ.

VICTORY, J.,

concurring with reasons.

Some of the arguments presented by the state appear to be meritorious. However, we are precluded from addressing them due to the state’s failure to seek review of the court of appeal’s decision of April 18, 2001. (State v. Ste. Marie, 97-0168 (La.App. 3 Cir. 4/18/01), 801 So.2d 424).


text:
    In the Interest of A.A. and Other Consolidated Cases, v. STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF YOUTH DEVELOPMENT.
    No. 2003-CJ-0046.
    Supreme Court of Louisiana.
    Jan. 8, 2003.
   PER CURIAM.

Stay granted. Enforcement of the orders dated November 22, 2002 are stayed pending further orders of this court. Within seven days of the date of this Order, relator is ordered to file a supplemental brief in this court setting forth the status of its appeal. Further, the presiding juvenile court judge is ordered to file, within ten days of the date of this Order, a Per Curiam setting forth his reasons for entering the orders dated November 22, 2002.


text:
    ESTATE OF Andrew PATRICK, M.D., et al. v. The BOARD OF SUPERVISORS of LOUISIANA STATE UNIVERSITY.
    No. 2002-CC-2570.
    Supreme Court of Louisiana.
    Nov. 22, 2002.
   liGRANTED.

Relator failed to raise, in a timely and proper manner, the issue of a link between the SV40 virus and mesothelioma being discovered after its previous testing of the tissues taken from Dr. Patrick prior to his death. Consequently, this court cannot consider that issue.

However, the lower courts erred in utilizing the test for allowing an independent medical examination (IME) to determine whether to allow further testing of the tissue. One cannot analogize testing of the tissue in this case with an IME of a living person or with the performance of an autopsy, {see In re Certain Asbestos Cases, 112 F.R.D. 427, 433 (N.D.Tex.1986)}, both of which are intrusive procedures performed on the human body. Examination of tissue preserved more than eight years ago does not differ from examination of any inanimate substance for the purpose of discovery. Therefore, the heightened test, “for good cause shown,” of LSA-C.C.P. art. 1464 does not apply.

The rulings of the lower courts denying Relator’s motion are vacated. We remand this matter to the trial court to determine whether the SV40 virus and mesothelioma link was, in fact, not discovered until after Relator’s previous testing of the tissue and, if the link had been discovered at the time of the previous testing, whether Relator’s delay was excusable. If this fact is established, the trial court shall allow Relator to perform another examination.

KIMBALL and KNOLL., JJ., would deny the application.


author: JjPER CURIAM. | TRAYLOR, J.,

text:
    STATE of Louisiana v. Kenneth WILSON.
    No. 2001-K-2815.
    Supreme Court of Louisiana.
    Nov. 22, 2002.
   JjPER CURIAM.

In April of 2000, defendant robbed a teller at the Minden Bank and Trust. The district court convicted defendant of first degree robbery, his fourth felony offense. The version of the Habitual Offender Law in effect at that time mandated the imposition of a life sentence without the benefit of parole, probation, or suspension of sentence if “the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime of violence under R.S. 14:2(13).” La.Rev.Stat. 15:529.1(A)(1)(c)(ii). Although defendant’s three prior offenses were all non-violent (two convictions for issuing worthless checks and one for illegal possession of stolen things), the first degree robbery of which he was convicted is defined as a crime of violence under La.Rev.Stat. 14:2(13). Accordingly, the district court imposed the mandatory life sentence.

The court of appeal found the evidence insufficient to support a first degree robbery conviction, and accordingly reduced defendant’s conviction to simple robbery, which is also indicated as a crime of violence under La.Rev.Stat. 14:2(13); as a result, the original life sentence without the benefit of parole, probation, or suspension of sentence would apply to the new conviction. The court of appeal 1 ^therefore affirmed the prison term without remanding the case to the trial judge for sentencing.

Defendant alleges on appeal to this court that the life sentence imposed by the former version of the Habitual Offender Law is unconstitutionally excessive, because his three prior felonies were nonviolent, and because the legislature has recently amended the Habitual Offender Law to mandate a life sentence only where the fourth felony, as well as two of the prior offenses are defined as crimes of violence. Defendant contends that the court of appeal should have reduced the sentence, or remanded his case for re-sentencing after reversing the first degree robbery conviction and affirming a simple robbery conviction. We agree only that the court of appeal should have remanded the case for sentencing because the trial judge has the authority and the duty to impose the sentence fully cognizant of the nature of the crime for which defendant is being sentenced.

Furthermore, “[t]he imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment. ...” State v. Sepulvado, 367 So.2d 762, 767 (La.1979); see also State v. Dorthey, 623 So.2d 1276 (La.1993) (case remanded to district court to determine whether minimum sentence mandated by Habitual Offender Law was unconstitutionally excessive). In State v. Johnson, 709 So.2d 672 (La.1998), this court held that the mandatory minimum sentence of twenty years imprisonment was not unconstitutionally excessive for possession of co caine by defendant as fourth-felony offender, even though defendant had no history of prior violent crimes. However, in Is,Johnson this court was presented with the question of “under what rare circumstances a sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Law.” We noted that a court should begin its analysis with the presumption that mandatory sentencing guidelines adopted by the legislature are constitutional. Id. at 676. To rebut the presumption of constitutionality, a defendant must show something more than a record of non-violent offenses. Instead, he must clearly and convincingly show that “[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Id.

Because the court of appeal reduced defendant’s conviction from first degree robbery to simple robbery, the district court judge did not have the opportunity to impose the life sentence in light of the lesser conviction. Defendant is entitled to have the district court impose the sentence anew, and, in connection therewith, to present evidence and/or argument to the district court judge that a sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence is unconstitutionally excessive because of the reduced conviction, the non-violent nature of the prior offenses, and the fact that the legislature has amended the Habitual Offender Law to provide a more lenient punishment for crimes committed after June 15, 2001.

The trial judge is vested with broad sentencing discretion because he or she remains in the best position to assess the aggravating and mitigating circumstances presented by each case. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957. The trial judge in this case has the duty to examine the reduced conviction and determine, in accordance with the principles this court enunciated in Sepulvado, Dorthey, and Johnson, whether the mandatory sentence is constitutional as applied to this defendant. Accordingly, defendant’s writ application is granted, the sentence is vacated, and the case is remanded to the district court for the imposition anew, of a legal, constitutional, and ’ appropriate sentence.

SENTENCE VACATED; REMANDED TO DISTRICT COURT FOR RE-SENTENCING.

KIMBALL and VICTORY, JJ., dissents and would deny the writ.

TRAYLOR, J., would deny the writ and assigns reasons.

| TRAYLOR, J.,

dissents.

I respectfully dissent. Although the court of appeal reduced the crime to simple robbery, a life sentence is still the mandatory penalty. Therefore, the trial court was correct and there is no need to remand the matter for further proceedings.

      . The evidence suggested that defendant was holding his hand in his pocket while he committed the robbery.

      . Act. 403 of 2001 amended La.Rev.Stat. 15:529.1(A)(1)(c)(ii) to provide that, if the fourth felony and two of the prior felonies are defined as crimes of violence under La.Rev. Stat. 14:2(13), the offender shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. Under the present Habitual Offender Law, defendant's crime would be punishable by a term ranging from 20 years at hard labor to life imprisonment at hard labor. La.Rev.Stat. 15:529.1(A)(1)(c)(ii).


author: hPER CURIAM.

text:
    Nadine LANTHIER v. FAMILY DOLLAR STORE.
    No. 2002-CA-2663.
    Supreme Court of Louisiana.
    Nov. 27, 2002.
   hPER CURIAM.

The Attorney General of the State of Louisiana invokes the appellate jurisdiction of this court pursuant to La. Const. art. V, § 5(D), on the ground that the court of appeal declared La. R.S. 23:1208 unconstitutional. For the reasons that follow, we find the judgment of the court of appeal declaring La. R.S. 23:1208 unconstitutional is procedurally improper. Accordingly, we vacate that judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

Nadine Lanthier suffered a work-related injury in January 1999 while an employee of Family Dollar Store (“Family Dollar”). Family Dollar paid Ms. Lanthier workers’ compensation indemnity and medical benefits until her treating physician released her to return to work. In August 1999, Ms. Lanthier filed a disputed claim for compensation against Family Dollar, seeking additional benefits, penalties, and attorney’s fees. One of several issues contested at the January 2001 trial of the matter was whether Ms. Lanthier was a full-time employee of Family Dollar, as she asserted, or a part-time employee, as Family Dollar contended.-. After hearing testimony from Ms. Lanthier and her supervisor, the workers’ compensation hearing officer concluded that Ms, Lanthier was a part-time employee. The court of appeal affirmed this finding, and this court denied writs. Lanthier v. Family Dollar Store, 01-0437 (La.App. 3rd Cir.4/3/02), 813 So.2d 1212, writ denied, 02-1253 (La.8/30/02), 823 So.2d 951 (“Lanthier I”).

On September 12, 2001, while Lanthier I was still pending in the court of appeal, Ms. Lanthier filed a second workers’ compensation claim against Family Dollar (“Lanthier II”). In Lanthier II, Ms. Lanthier alleged that her supervisor’s representation that she was a part-time employee was willfully false and therefore violated La. R.S. 23:1208. In response, Family Dollar filed an exception of res judicata, arguing that the issue of Ms. Lanthier’s employment status had previously been addressed by the hearing officer.

| sFollowing a hearing, the workers’ compensation hearing officer denied Family Dollar’s exception of res judicata. However, on his own motion, the hearing officer granted an exception of lack of subject matter jurisdiction and dismissed Ms. Lan-thier’s fraudulent misrepresentation claim.

Ms. Lanthier appealed the judgment dismissing her fraudulent misrepresentation claim. In a divided decision, the court of appeal affirmed the hearing officer’s ruling, on the ground that La. R.S. 23:1208 is unconstitutional.

The State of Louisiana appealed that judgment to this court.

DISCUSSION

Pretermitting the merits of the court of appeal’s judgment, we find the court of appeal erred in reaching the issue of constitutionality. Our review of the record reveals that the issue of constitutionality was not raised by parties at any time in these proceedings.

In Istre v. Meche, 00-1316 (La.10/17/00), 770 So.2d 776, we held that a court should not reach the question of a statute’s constitutionality when that issue has not been raised by the parties to the proceeding:

Generally, a court should not reach the question of a statute’s constitutionality when its unconstitutionality has not been placed at issue by one of the parties to a proceeding. Board of Comm’rs of Orleans Levee Dist. v. Connick, 94 3161, p. 6 (La.3/9/95), 654 So.2d 1073, 1076. See also Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65; Lemire v. New Orleans Pub. Serv., Inc., 458 So.2d 1308, 1311 (La.1984). A judge should not declare a statute unconstitutional until the issue of its constitutionality has been presented because a judge’s sua sponte declaration of unconstitutionality is a derogation of the strong presumption of constitutionality accorded legislative enactments. Board of Comm’rs of Orleans Levee Dist. v. Connick, 94-3161, p. 6 (La.3/9/95), 654 So.2d 1073, 1076. While there is no single procedure for assailing the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be 14specially pleaded and the grounds for the claim particularized. Reeder v. North, 97-0239, p. 14 (La.10/21/97), 701 So.2d 1291, 1299; Williams v. State, Dept. of Health & Hospitals, 95-0713, p. 4 (La.1/26/96), 671 So.2d 899, 901; Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65. This court has articulated this burden as composed of three tiers: “First of all, the plea of unconstitutionality must first be made in the trial court. Next, the plea of unconstitutionality must be specially pleaded. Finally, the grounds outlining the basis of unconstitutionality must be particularized.” Williams, 95-0713 at pp. 4-5, 671 So.2d at 902 (internal citations omitted). These procedural rules exist to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. Vallo, 94-1238 at p. 9, 646 So.2d at 865. This opportunity to fully brief and argue the issue provides the trial court with thoughtful and complete arguments relative to the issue of constitutionality and furnishes reviewing courts with an adequate record upon which to adjudge the constitutionality of the statute.

While Istre involved a declaration of unconstitutionality made by the district court, the reasoning of that case applies with equal force to a declaration of unconstitutionality made for the first time by an appellate court. The court of appeal in this case did not have a record on the issue of constitutionality, nor did it have the benefit of briefing and argument on this issue by the parties. Because the constitutionality of La. R.S. 23:1208 has never been raised by the parties, the case was not postured for resolution of this issue. Accordingly, the judgment of the court of appeal declaring La. R.S. 23:1208 unconstitutional must be vacated.

DECREE

For the reasons assigned, the judgment of the court of appeal declaring La. R.S. 23:1208 unconstitutional is vacated and set aside. The case is remanded to the court of appeal for consideration of the.merits of claimant’s appeal.

      . La. R.S. 23:1208 provides in pertinent part as follows:
      A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully malte a false statement or representation.

      C. (1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both. (2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.
      (3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.

      D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers' compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

      . As noted by the dissenting judge, there is no indication that the attorney general was provided notice as required by La. R.S. 13:4448.


text:
    Beverly Albin MAURER v. Tommy Joe MAURER.
    No. 2002-CC-2743.
    Supreme Court of Louisiana.
    Nov. 27, 2002.
   PER CURIAM.

Granted and Remanded to the district court for an evidentiary hearing.

The trial court signed an ex parte order requiring the child to be evaluated by Dr. Zimmerman in a joint session with her father. The mother opposes this order on grounds that it would be detrimental to the child. Because the mother was neither allowed to oppose nor prove her allegations that a joint evaluation session of the child with her father by Dr. Zimmerman would be detrimental to the child, the trial court abused its discretion. Accordingly, the trial court is ordered to conduct an evidentiary hearing to determine whether a joint evaluation of the child with her father by Dr. Zimmerman would be detrimental to the child under the circumstances of this case.

REMANDED.


author: JOHNSON, J.,

text:
    C.R. PITTMAN CONSTRUCTION CO., INC., v. SEWERAGE AND WATER BOARD OF the CITY OF NEW ORLEANS.
    No. 2002-CC-2436.
    Supreme Court of Louisiana.
    Nov. 27, 2002.
   In re Sewerage and Water Board of New Orleans;-Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court, Div. C, No. 99-7784; to the Court of Appeal, Fourth Circuit, No. 2002-C-1233.

Writ denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., concurs with reasons.

JOHNSON, J.,

concurring in the denial of writ application.

The Sewerage and Water Board may move to have this partial summary judgment designated as immediately appeal-able under La. C.C.P. art. 1915(B). Because the Sewerage and Water Board has an adequate remedy by seeking an immediate appeal, it appears supervisory relief is not appropriate. See Douglass v. Alton Ochsner Medical Found., 96-2825 (La.6/13/97), 695 So.2d 953 (“Because a supervisory writ is no more efficient and does not better serve the goals of judicial efficiency and fundamental fairness, an immediate appeal is necessarily an adequate remedy for seeking review of a final judgment”).


author: WEIMER, J.,

text:
    Danny SANCHEZ v. GEORGIA GULF CORPORATION, et al.
    No. 2002-CC-2198.
    Supreme Court of Louisiana.
    Nov. 27, 2002.
   In re Georgia Gulf Corporation et al.;-Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court, Div. A, No. 54,227; to the Court of Appeal, First Circuit, No. 2002 CW 0904.

Writ granted. This matter is remanded to the court of appeal for briefing, argument and opinion to address the relationship between the drug testing requirements set forth in La. R.S. 49:1001 et seq. and the employment at-will doctrine.

WEIMER, J., concurs with reasons.

WEIMER, J.,

concurring.

I concur in the writ grant.

In denying the writ, the court of appeal alluded to this court’s opinion in Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, which dealt with expert affidavits. Apparently, the court felt summary judgment was inappropriate because Georgia Gulf did not present an expert affidavit to counter plaintiffs expert affidavit regarding the accuracy of the drug testing. However, it is clear that there is no factual dispute concerning the validity , of the drug testing because Georgia Gulf conceded it did not follow the statutory provisions. Quite simply, Georgia Gulf takes the position that even if the test was inaccurate, it had the power to terminate plaintiff at will. Thus, the question of whether the test was accurate or not is not an issue of fact that would preclude the consideration of a motion for summary judgement.


text:
    STATE of Louisiana v. Alishia ADAMS.
    No. 2001-KK-3231.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, David Sullivan, Gregory P. Welsch, Counsel for Applicant.

      Frank J. Larre, Metairie, Counsel for Respondent.
   hPER CURIAM.

We gi’anted the state’s application to reverse the ruling of the trial court that a second frisk of respondent by a female police officer minutes after a male police officer had conducted a cursory pat-down following an investigatory stop required suppression of a plastic bag filled with rocks of cocaine found in the waistband of respondent’s underwear. For the reasons that follow, the second frisk of respondent did not exceed the permissible scope of an investigatory detention and self-protective search for weapons authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and La.C.Cr.P. art. 215.1.

On the night of March 7, 2001, New Orleans Police Officer Robert Hickman and his partner, on routine patrol in a marked unit, spotted four individuals standing on the sidewalk in the middle of the 1200 block of Columbus in front of the parking lot of an apartment complex. Although the officers were aware that there had been several recent robberies and murders in that area, they had no intention of investigating any of the individuals, all of whom they took for African-American males. However, as the patrol unit neared the group, respondent made |?eye contact with Officer Hickman, then turned and ran into the parking lot, reaching behind her back to her waistband. Respondent then knelt down behind one of the cars parked in the lot. The other three individuals remained standing on the sidewalk. Officer Hickman “kind of sped up,” then stopped as his partner got out of the patrol unit, and ordered respondent out from behind the vehicle. Respondent removed her hands from behind her back and came up, announcing, “I’m a girl.” Officer Hickman testified at the hearing conducted on respondent’s motion to suppress that he radioed for a female police officer while his partner gave respondent a cursory pat-down that avoided “feeling the crotch area where weapons can be concealed.” The officers then placed her in handcuffs “just to give us some kind of security until the female officer arrived to do a thorough pat-down.” While they waited, Hickman and his partner ran the identifications of the three other individuals through the police computer and discovered no outstanding warrants or attachments. Hickman estimated that it took no more than 10 or 15 minutes for the female officer to arrive. When she frisked respondent, the officer found a piece of plastic wrapped around 31 rocks of cocaine stuck in the waistband of respondent’s underwear which protruded over the top of her baggy pants. The officers immediately placed respondent under arrest for possession of cocaine.

In ruling on the motion to suppress, the trial court was fully aware of the Supreme Court’s decision in Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), that unprovoked flight of an individual through a high-crime area in response to the approach of the police gives rise to reasonable suspicion for an investigatory stop. The court therefore did not question the legality of the initial stop and frisk of respondent, and the record fully supports its determination in that regard. Respondent’s flight, furtive gesture in reaching 1,-ibehind to her waistband, and her attempt to conceal herself behind the vehicle parked in the apartment complex lot located in an area that had become known for its violent crime, clearly provided the particularized objective basis for an investigatory stop. United States v. Arvizu, 534 U.S. 266, 272, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002); United States v. Cor tez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); State v. Kali, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881. Those same circumstances, particularly respondent’s furtive gesture to her waistband, also provided an objectively reasonable basis for the officers to conduct a self-protective search for weapons on grounds that “ ‘a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” State v. Dumas, 00-0862, p. 3 (La.5/4/01), 786 So.2d 80, 82 (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883).

Nevertheless, the court noted that the officers had already frisked respondent before they made the decision to hold her on the scene in handcuffs for the female officer. In the court’s view, the officers had thereby gone beyond Wardlow and expanded the encounter into an arrest for which they did not have probable cause. The court therefore granted the motion and suppressed the cocaine taken from respondent. The court of appeal found no abuse of discretion in that ruling. State v. Adams, 01-1694 (La.App. 4th Cir.11/15/01).

The lower courts erred. We have previously recognized that the use of handcuffs is ordinarily associated with an arrest, an extended restraint on liberty, and not with an investigatory stop, a comparatively lesser intrusion on an individual’s freedom and privacy interests. State v. Broussard, 00-3230 pp. 3-4 (La.5/24/02), 816 So.2d 1284, 1287 (“[B]revity alone does not always distinguish | ¿investigatory stops from arrests, as the former may be accompanied by arrest-like features, e.g., use of drawn weapons and handcuffs, which may, but do not invariably, render the seizure a de facto arrest.”) (citing United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir.1998)). Nevertheless, particular circumstances may reasonably warrant such measures. United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994)(government must show that “the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate.”)(internal quotation marks and citation omitted). In the present case, we find that the handcuffing of respondent to maintain the status quo during a detention which lasted no more then 15 minutes until the female officer arrived constituted a reasonable response to the situation that did not turn an otherwise valid investigatory stop into a de facto arrest.

The officers’ decision to defer the frisk to a female officer was not unusual in New Orleans. See State v. Temple, 01-1460 p. 2 (La.App. 4th Cir.6/19/02), 821 So.2d 738, 740 (“Officer Davis radioed Officer Lizell Brooks, a female officer, to conduct a pat down search of [the female suspect].”). While Hickman did not discuss in his testimony at the suppression hearing the official policy of the New Orleans Police Department in that regard, we note that police departments around the country have specific regulations and provide specific training governing the pat-down or searches of female suspects by male officers. See, e.g., Casas v. City of Overland Park et al., 00-2112-CM, 2001 WL 584426, at *2, 2001 U.S. Dist. LEXIS 6952, at *5 (D.Kan.May 14, 2001) (“Part of the Academy instruction [for the state police in Kansas] ... in the proper methods for cursory, pat-down or Terry searches ... includes instruction that offi-. cers should seek assistance from a female officer to search a female detainee. If a female officer is not available the officer may do the |Rsearch himself with a second officer present and in view of the video in his police cruiser. Officers are instructed to use the blade of the hand or the back of the hand to avoid the appearance that the officer is groping the female detainee.”); Swales v. Township of Ravenna, 989 F.Supp. 925, 932 (N.D.Ohio 1997)(practice of the Ravenna Township Police Department is to have “female officers do ‘Terry1 searches of female suspects”); State v. Guy, 172 Wis.2d 86, 492 N.W.2d 311, 312 (1992)(“Milwaukee police procedure calls for female officers to frisk female suspects when possible.”).

In fact, deference of male police officers to female officers in conducting the frisk of female suspects appears a common, if certainly not exclusive, practice throughout the country, one which reflects the “[s]o-cial sensitivity about stereognosis of ... the breasts and genital area of a female suspect.... ” United States v. Kelly, 913 F.2d 261, 267 (6th Cir.1990)(Merritt, C.J., concurring). See United States v. Banshee, 91 F.3d 99, 101 (11th Cir.1996)(officer conducted pat-down of female suspect only after radioing for a female officer and learning that none was available); United States v. Dale, 44 F.Supp.2d 818, 820 (E.D.Tex.1999)(officers waited approximately 10 minutes for a female officer to arrive to pat-down bulges observed at the waist in front of female suspects); State v. Stallworth, 645 So.2d 323, 324 (Ala.Cr.App.1994)(“Because no other female officer was at the scene ... another officer was called to take Stallworth to the police department to be searched.”); State v. Williams, 249 Neb. 582, 544 N.W.2d 350, 351 (1996)(“Williams was instructed to place her hands against a kitchen cabinet so a female officer could conduct a pat-down search for weapons.”).

This deference is not required by the Fourth Amendment, see Collier v. Locicero, 820 F.Supp. 673, 678 (D.Conn.1993)(“Given the nature of a frisk, and | figiven the relatively low proportion of police officers who are female, it would be substantial burden on police work to require that every frisk of a lightly clad female subject be conducted by a female officer.”), but it is surely reasonable in view of the social sense of propriety that remains, and the litigation that often results, when a male officer places his hands on a female suspect’s body. See, e.g., Casa v. Overland Park, 00-2112-CM, 2001 U.S. Dist. LEXIS 6952 at * 8, 2001 WL 584426, *3 (police officer convicted of sexual battery and removed from the force, then sued under 42 U.S.C. § 1983, for conduct in which he “touched plaintiffs vaginal area all the way across her crotch, stuck his hand between her legs in a banana shaped movement from her buttocks to the front of her crotch .... then began to feel plaintiffs breasts from outside her tee-shirt and her sweater ... rubbed around and over plaintiffs breasts and squeezed her breasts ... for about forty-seven seconds.”); Garcia v. New York State Police Investigator, 138 F.Supp.2d 298, 310 (N.D.N.Y.2001)(summary judgment granted defendant police officer in a civil action brought under 42 U.S.C. § 1983 by a plaintiff for a frisk in which the officer began with her legs “by patting them down with both hands on one leg and then coming up and ... putting his hands on the inner thigh up towards the groin area, cupping it, and then coming down the other side .... then came up and ... ran the side of his hand, with the little finger touching [her], perpendicularly down the middle of [her] breasts .... [then] lifted one breast up and the other one up [by cupping the bottom half of the breast] and then ... continued around the back .... ”)(internal quotation marks and some internal brackets omitted). A jurisprudential rule requiring a male officer to conduct an immediate, thorough pat-down of a female suspect or not at all may lead to alternatives that place the officer and his partner at risk. See State v. Pittman, 111 N.C.App. 808, 433 S.E.2d 822, 823 (1993)(“Because no female officer was |7present to conduct the search [the officer] conducted a visual inspection by ordering [the defendant] to open her pockets and looking inside of them.”).

Given these considerations, we conclude that the Fourth Amendment neither compels nor precludes a male police officer’s decision to defer the frisk of a female suspect he is otherwise lawfully entitled to perform to a female officer and that he may do so under circumstances in which the detention of the individual is not unduly prolonged and the safety rationale for conducting such searches is not outstripped. In the present case, the initial frisk conducted by Officer Hickman’s partner by design did not include respondent’s groin area, “a common area for weapons to be hidden.” Kelly, 913 F.2d at 264. The officers solution to this situation, handcuffing respondent for safety’s sake and for the few minutes it took a female officer to arrive while they conducted identification and warrant checks on the three other individuals who had been standing on the sidewalk with respondent, appears entirely reasonable. See In re Kelsey C.R., 243 Wis.2d 422, 626 N.W.2d 777, 790-91 (2001) (“Because the nearest female officer was downtown, the officers and Kelsey had to wait 20 minutes for the female officer to arrive.... [T]he detention of Kelsey lasted only long enough to fulfill the purpose of the stop.”); see also United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)(20-minute investigatory stop reasonable). As to the recovery of the cocaine packet in the ensuing frisk conducted by the female officer, Hickman could not recall what kind of top respondent had been wearing and the female officer who retrieved the packet did not testify at the suppression hearing. It is therefore unclear from the record whether the cocaine packet tucked in the band of respondent’s underwear protruding over the top of her baggy pants came within the plain view of the officer as she conducted the frisk or whether the officer felt the packet as she was patting down respondent’s waist and groin area. In either cáse, | sthe plain view or plain feel of a plastic wrapping containing rock-like objects gave the officers probable cause to arrest respondent for possession of cocaine. Broussard, 00-3230 at 7-8, 816 So.2d at 1289; State v. Wilson, 00-0178, p. 4 (La.12/8/00), 775 So.2d 1051, 1053.

We therefore reverse the ruling of the trial court and remand this case to the court for further proceedings consistent with the views expressed herein.