text:
    Jorge Lorenzo CUETO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1575.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Marcia J. Silvers, Miami, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. In an appeal from a summary denial, this Court must reverse unless the postconviction record conclusively shows that the appellant is not entitled to relief.

Jorge Lorenzo Cueto (“Defendant”) was charged by information with seven separate crimes, which occurred at different locations on October 5, 1999. Defendant was charged with grand theft auto, attempted robbery at a market, burglary with assault or battery while armed, and two counts of robbery at the Comfort Inn and Suites. Defendant also was charged with one count of battery on a law enforcement officer and one count of resisting arrest with violence.

Testimony at trial revealed that on October 5, 1999, Lorena Cipriani was working at the front desk of a Comfort Inn and Suites when a man wearing a mask and holding a gun jumped over the counter of the reception desk and demanded money. After taking the money from the cash register, the masked man took Ms. Cipria-ni into a back room where a safe was located. Ms. Cipriani was unable to open the safe as only the manager had the combination. The masked man and Ms. Cipriani then returned to the reception desk area. At that time, another patron of the hotel entered the lobby. The masked man jumped back onto the lobby side of the counter and demanded money from the patron. After taking the patron’s money and wallet, the masked man fled the premises through the front door. The entire episode was caught on the hotel’s security video. The police were called and Defendant and his codefendant were apprehended later that night.

At trial, Defendant was convicted of pet-it theft as a lesser included offense, armed burglary without an assault or battery, robbery as charged, battery on a law enforcement officer, and resisting an officer with violence. Defendant appealed his convictions and this Court affirmed. Cueto v. State, 840 So.2d 246 (Fla. 3d DCA 2003).

On March 19, 2004, Defendant filed a timely motion for postconviction relief alleging eleven claims of ineffective assistance of counsel. The trial court denied the motion without an evidentiary hearing, and Defendant appealed.

This Court issued an opinion stating that during trial, defense counsel conceded that Defendant was guilty of armed burglary without assault or battery when Defendant entered the hotel and robbed the hotel clerk and guest. This Court found the evidence insufficient to support a conviction for burglary “because it is indisputable on the record that the premises entered during the robbery was in an area of the hotel that was open to the public.” The only claim this Court found to have merit was whether Defendant’s counsel was ineffective for failing to move for a judgment of acquittal on the burglary count. Defendant argued that because Comfort Inn and Suites was “open to the public,” he could not have been found guilty of burglary. Thus, his trial counsel had been ineffective not only in conceding that a burglary had occurred but also in failing to move for a judgment of acquittal based on that same legal argument. This Court rejected the State’s arguments because the trial court had summarily denied the motion without explanation or attachment of record support.

Accordingly, this Court reversed the denial of Defendant’s motion for postconviction relief and remanded, specifically directing the trial court either to conduct an evidentiary hearing on the issue of defense counsel’s failure to request a judgment of acquittal or to attach those portions of the record conclusively refuting Defendant’s claim. Cueto v. State, 937 So.2d 144 (Fla. 3d DCA 2006).

The trial court subsequently issued an order again denying Defendant’s motion for postconviction relief without holding an evidentiary hearing. The trial court’s order stated that after reviewing the trial transcript, specifically the testimony of Ms. Cipriani, and the State’s response to the motion for postconviction relief, there was sufficient evidence to support the burglary conviction. The trial court failed to attach a copy of the transcript or cite to any page on which it relied. Defendant appeals that order.

Defendant contends that the trial court erred because it did not comply with this Court’s directive to either conduct an evi-dentiary hearing or attach record excerpts conclusively establishing that Defendant is not entitled to relief. The State asserts that although the trial court did not exactly follow this Court’s order, the trial court did make reference to the specific testimony it relied on in reaching its decision and that that evidence was sufficient to support the burglary conviction. Therefore, even if defense counsel had asked for a judgment of acquittal, such motion would have been denied. For this Court to analyze these claims, the State had to move for an order retransmitting the record in the case or alternatively for this Court to take judicial notice of the State’s answer brief. The motion to re-transmit the record was granted and all nineteen volumes of the record were received by this Court. Once received, we combed the transcripts to locate Cipriani’s testimony.

A considerable amount of time and trouble would have been saved had the trial court followed this Court’s directive and attached the testimony it relied on in making its determination. The trial court should have provided us with the specific testimony it relied upon to deny the motion. However, after reviewing the record on appeal and taking judicial notice of various documents involved in the case, we find sufficient evidence to support the burglary conviction.

In Miller v. State, 733 So.2d 955 (Fla.1999), the Florida Supreme Court stated that if a defendant can establish that the premises he entered were open to the public, this is a complete defense to the charge of burglary. However, the Florida Supreme Court later held in Johnson v. State, 786 So.2d 1162 (Fla.2001), that a defendant could be found guilty of burglary if “he or she entered into or remained in area of the premises which he or she knew or should have known were not open to the public.” Id. at 1164. Specifically, in Johnson, the defendant was found guilty of burglary even though he was in a store that was open to the public because he went into an area behind the check out counter that was not open to the public. The question of whether an area is open to the public is a question of fact for the jury. Id.

For a defendant to be successful on a motion for post-conviction relief based on ineffective assistance of counsel, the defendant must meet the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must show: (1) deficient performance by proving that counsel’s representation fell below objective standards of reasonableness, and (2) prejudice by proving that there is a reasonably probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Id. at 687, 104 S.Ct. 2052.

The area behind a sales counter is not an area open to the public. Lewis v. State, 841 So.2d 582, 583 (Fla. 3d DCA 2003). To overcome this presumption, a defendant has the burden of proving that he had received permission or consent to be in the area that was not otherwise open to the public. Id. at 583-84.

We agree with the trial court that Ms. Cipriani’s testimony was sufficient to infer not only that there was no consent to enter the area behind the counter at the Comfort Suites, but also that the area was not open to the public. Consequently, if Defendant’s counsel had asked for or preserved a motion for judgment of acquittal on this point, the motion would have been properly denied because the evidence was sufficient to present a question for the jury. Therefore, even with defense counsel’s failure to request a judgment of acquittal, the outcome of the trial would have been exactly the same, thus failing to meet the prejudice standard of deficient performance under Strickland. We agree.

Based on the aforementioned reasons, we find there is sufficient evidence that a burglary had been committed, or at least sufficient evidence to submit to the jury the question of whether the area burglarized was open to the public. A motion for judgment of acquittal, therefore, would have been denied, and defense counsel’s failure to request it did not prejudice Defendant.

Accordingly, we affirm the trial court’s decision below denying Defendant’s motion for postconviction relief based on ineffective assistance of counsel.


source: Caselaw Access Project

author: ROTHENBERG, Judge.

license: Public Domain

text:
    GREENWICH ASSOCIATION, INC., Appellant, v. GREENWICH APARTMENTS, INC. and Alliance TD Limited Partnership, Appellees.
    No. 3D07-1771.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Rehearing Denied May 15, 2008.

      Hyman Spector & Mars and Michael L. Hyman and Marc A. Smiley, Miami, for appellant.
    Brinkley, Morgan, Solomon, Tatum, Stanley, Lunny & Crosby and Thomas R. Tatum and Stacy M. Schwartz, Fort Laud-erdale, for appellees.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiff, Greenwich Association, Inc. (“plaintiff’), appeals a final order dismissing its claims against the defendants, Greenwich Apartments, Inc. and its successor in title, Alliance TD Limited Partnership (collectively, “the Alliance defendants”). We affirm.

In 1999, the plaintiff, a not-for-profit Florida corporation, sued Greenwich Apartments, Inc., a neighboring residential complex, over the disputed use of a two-story parking structure owned by the plaintiff. In April 2001, the parties entered into a settlement agreement that, in part, granted Greenwich Apartments, Inc. the exclusive right to use one story of the parking structure. The plaintiffs president signed the settlement agreement on behalf of the unit owners. However, this action was not submitted to the unit owners for a vote. In May 2001, the settlement agreement was incorporated “as if set forth at length” into a final order of the circuit court dismissing the case. No appeal was filed.

In April 2005, the plaintiff filed the instant lawsuit seeking reformation or cancellation of the settlement agreement (“Count I”). The complaint included a second count seeking injunctive relief for failure to maintain the premises (“Count II”). The Alliance defendants moved for partial summary judgment on Count I. The trial court granted the motion, finding that the settlement agreement was subsumed into a court order, and therefore, the plaintiff was limited to an appeal from that judgment or to the rights provided by Florida Rule of Civil Procedure 1.540(b), which on the present facts, required the plaintiff to seek relief before the original trial court within one year of the judgment. Thereafter, the plaintiff voluntarily dismissed Count II. The trial court issued its final judgment of dismissal, and this appeal followed.

Our review of the trial court’s final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243 (Fla. 3d DCA 2006).

After the time for appeal has passed, challenges to a final judgment, decree, order, or proceeding are generally brought in accordance with Florida Rule of Civil Procedure 1.540, which provides in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Fla. R. Civ. P. 1.540(b).

The plaintiff first argues that the 2001 judgment must be stricken as void because the settlement agreement that it incorporated was the result of a void, ultra vires act of the plaintiffs president. We disagree, and hold that the 2001 judgment was voidable, not void. See Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 666 (Fla. 2d DCA 2007) (concluding that where a court has subject matter and personal jurisdiction, an error in that court’s judgment renders it reversible or voidable, but not void); Dep’t of Health & Rehab. Servs. v. Morley, 570 So.2d 402, 404 (Fla. 5th DCA 1990) (holding that the incorporation of a void and unenforceable agreement into a final judgment does not render the judgment void). Accordingly, we uphold the trial court’s conclusion that the 2001 judgment was not void.

In the alternative, the plaintiff argues that it was impermissibly denied the opportunity to amend its complaint and allege that fraud was perpetrated upon the court in 2001. We are equally unpersuaded by this argument. While Florida Rule of Civil Procedure 1.540(b) expressly preserves a court’s independent power to set aside a judgment for fraud upon the court, that power must be narrowly applied. See Alexander v. First Nat’l Bank of Titusville, 275 So.2d 272, 274 (Fla. 4th DCA 1973) (concluding that a broad application of fraud upon the court would frustrate the law’s policy favoring the termination of litigation and finality of judgments). Fraud upon the court is an extrinsic fraud which occurs where a party is prevented from “trying an issue before the court and the prevention itself becomes a collateral issue to the cause.” Parker v. Parker, 950 So.2d 388, 391 (Fla.2007). “Thus, where fraud is extrinsic, it is deemed independent of the action and, therefore, must be attacked independent of the action.” Id. at 392.

Conversely, intrinsic fraud is defined as “the presentation of misleading information on an issue before the court that was tried or could have been tried.” Id. at 391 (citing DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984)). A challenge to a final judgment based upon intrinsic fraud must be brought by filing a timely motion in the original trial court. See Parker, 950 So.2d at 391 (“Under rule 1.540(b), relief from a judgment based on intrinsic fraud must be sought by motion within one year of its entry.”).

In support of its request for leave to amend its complaint, the plaintiff argued that its president fraudulently kept secret his ultra vires act, thus ensuring that the unit owners would be unaware of the 2001 settlement agreement’s detrimental consequences. Assuming that such an allegation rises to the level of fraud, we conclude that the fraud alleged was intrinsic in nature, and therefore, to seek relief from the 2001 judgment upon that basis, the plaintiff was required to file a rule 1.540(b) motion within one year of the rendering of the judgment. Therefore, because the 2001 judgment was not void, and the plaintiff did not allege an extrinsic fraud upon the court, the plaintiffs independent action cannot stand.

Affirmed.


text:
    D.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2229.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      Bennett H. Brummer, Public Defender, and Jessica Zagier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

D.B., a juvenile, appeals from an order withholding adjudication of delinquency and placing him on probation. His sole argument on appeal is that the trial court erred in permitting the State to give the first and final closing arguments. Because D.B. did not present any evidence nor offer any testimony in his own behalf at the adjudicatory hearing, he was entitled to present the first and final closing arguments. As D.B. timely objected to the procedure employed by the trial court, we reverse.

In an adult criminal prosecution, the State is entitled to give the first closing argument and to reply to the accused’s closing argument in rebuttal even where the accused has offered no evidence other than his or her own testimony in his or her behalf. § 918.19, Fla. Stat. (2007); Fla. R.Crim. P. 3.381. However, a juvenile delinquency case is not an adult criminal prosecution, and therefore, Florida Rule of Juvenile Procedure 8.110(d) governs juvenile proceedings. See C.H. v. State, 969 So.2d 567, 567-68 (Fla. 1st DCA 2007); E.K. v. State, 963 So.2d 309, 309 (Fla. 1st DCA 2007). The rule states that “[a] child offering no testimony in his or her own behalf except his or her own shall be entitled to the concluding argument.” Fla. R. Juv. P. 8.110(d). And because the right to present the concluding argument is a vested procedural right, “the error cannot be considered harmless.” C.H., 969 So.2d at 568 (quoting E.K., 963 So.2d at 309-10).

Accordingly, as the State properly concedes, the facts mandate a reversal, and the sole issue before this Court is whether D.B. is entitled to a new adjudicatory hearing on remand. D.B. argues that a new adjudicatory hearing is required because a limited remand for entirely new closing arguments cannot sufficiently address the prejudice to D.B. We disagree.

D.B. directs our attention to a series of appellate decisions wherein juvenile defendants were denied the right to present a closing argument. See J.M.S. v. State, 921 So.2d 813 (Fla. 5th DCA 2006); T.W. v. State, 677 So.2d 111 (Fla. 4th DCA 1996); T. McD. v. State, 607 So.2d 513 (Fla. 2d DCA 1992); M.E.F. v. State, 595 So.2d 86 (Fla. 2d DCA 1992); E.C. v. State, 588 So.2d 698 (Fla. 3d DCA 1991); E.V.R. v. State, 342 So.2d 93 (Fla. 3d DCA 1977). Invariably, those courts remanded for new adjudicatory hearings. D.B. maintains that the above-captioned authorities illustrate that the prejudice caused by the erroneous denial of a closing argument can only be cured by a new trial.

However, the instant case is critically distinguishable from those in which the defendant was denied the opportunity to present any closing argument at the adjudicatory hearing. Entirely denying a defendant the right to present a closing argument is “an absolute violation of the Sixth Amendment.” J.M.S., 921 So.2d at 816 (citing M.E.F., 595 So.2d at 87). On the other hand, where, as here, the defendant makes a closing argument at the adjudicatory hearing, but is denied the opportunity to offer a rebuttal to the State’s closing, a procedural right, not a constitutional due process right, is implicated. See C.H., 969 So.2d at 568. Based upon this distinction, we conclude that the prejudice caused by allowing the State to present the first and last closing arguments in violation of Florida Rule of Juvenile Procedure 8.110(d) can be cured by a limited remand.

At oral argument, both D.B. and the State represented that on remand, the case will most likely be assigned to the judge who presided over the original adjudicatory hearing, not a judge whose review is limited to the “cold record” of the case. Therefore, after a procedurally sufficient closing, the judge’s reconsideration of the case will remedy the procedural violation suffered by D.B.

We, therefore, reverse and remand for a limited proceeding before the original presiding judge, where D.B. is to be afforded the opportunity to present the initial closing argument, and a rebuttal argument after the State’s argument, in accordance with Florida Rule of Juvenile Procedure 8.110(d). In the event the judge who presided over D.B.’s adjudicatory hearing is no longer available to hear the closing arguments, D.B. must be afforded a new adjudicatory hearing.

Reversed and remanded with instructions.


author: PER CURIAM.

text:
    Joseph LUCKNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-440.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Joseph Luckner, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion for DNA testing under Florida Rule of Criminal Procedure 3.853. The trial court erred, in part, by denying the motion for lack of an oath because the motion is, in fact, sworn. We agree with the trial court, however, that the motion is facially insufficient regarding Rule 3.853(b)(3) and (4). Appellant may re-plead in the trial court if he has a good-faith basis to do so.

Affirmed.


text:
    Frank JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-421.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Frank Johnson, in proper person..
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 921.231, Fla. Stat. (2005); Huntley v. State, 339 So.2d 194 (Fla.1976); Gibbs v. Wainwright, 303 So.2d 7 (Fla.1974); Shaw v. State, 780 So.2d 188 (Fla. 2d DCA 2001).


author: LAGOA, Judge.

text:
    William DANTE, Appellant, v. Timothy P. RYAN, Director, Miami-Dade County Department of Corrections and Rehabilitation, Appellee.
    No. 3D08-107.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      William Dante, in proper person.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Robert A. Duvall, Assistant County Attorney, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   LAGOA, Judge.

Appellant, William Dante (“Dante”), petitions this Court for a writ of mandamus compelling the Miami-Dade County Corrections and Rehabilitation Department to provide him with an annual teeth cleaning and fillings for tooth decay. Because Dante failed to exhaust his administrative remedies, we deny the petition for writ of mandamus.

“Mandamus is a recognized remedy to require a public official, who is clothed with the authority, to discharge his duty.” Alexander v. City of Coral Gables, 745 So.2d 1004, 1005 (Fla. 3d DCA 1999) (citing City of Miami Beach v. Sunset Islands 3 & 4 Prop. Owners Ass’n, 216 So.2d 509, 511 (Fla. 3d DCA 1968)). Prior to issuing an extraordinary writ, however, all administrative remedies must be exhausted. See Pope v. State, 898 So.2d 253 (Fla. 3d DCA 2005). Based on the record before us, we find that Dante failed to allege, or prove, that he exhausted the administrative remedies available to him under the Inmate ComplainVGrievance process contained in the Inmate Handbook. Accordingly, we deny without prejudice the petition for writ of mandamus.

If after exhausting his administrative remedies, Dante believes that he has not received any, or adequate, dental care, he may file a petition for writ of habeas corpus with the trial court. Bradshaw v. Sandler, 955 So.2d 1219, 1221 (Fla. 4th DCA 2007); see also Harvard v. Singletary, 733 So.2d 1020, 1022 (Fla.1999) (stating that many writ petitions are more appropriately presented to the circuit court because resolution of the case requires fact-finding that appellate courts are ill-equipped to handle). If no relief is accorded at that juncture, Dante may file a petition for writ of mandamus with this Court.

Petition for writ of mandamus denied without prejudice.

      . Pursuant to Department Standard Operating Procedures ("DSOP”) No. 15-001(111), "[t]he Classification Unit shall provide a copy of the Inmate Handbook that contains information regarding the inmate complaint/grievance process to each inmate during orientation [and] Inmate Grievance forms shall be readily available to all inmates.”

      . DSOP No. 14-005 addresses the delivery of dental services to inmates confined within all of the detention facilities of the Metro-Dade Department of Corrections and Rehabilitation. Pursuant to DSOP No. 14 — 005(IV)(A), inmates "requiring dental care may request a dental examination and treatment by completing an ‘Inmate Request for Health Service’ form."


author: VILLANTI, Judge.

text:
    Mary L. WOLF, Appellant, v. Robert G. WOLF, Appellee.
    No. 2D06-5077.
    District Court of Appeal of Florida, Second District.
    April 11, 2008.

      Mark A. Neumaier, Tampa, for Appellant.
    Tarya A. Tribble of Tarya A. Tribble, P.A., Riverview, for Appellee.
   VILLANTI, Judge.

Mary Wolf, the Wife, appeals from the final judgment of dissolution of her marriage to Robert Wolf, the Husband. The only issue before the trial court at the adjudicatory hearing was the equitable distribution of the parties’ assets. We affirm in part and reverse in part.

During the parties’ thirty-six-year marriage, they jointly acquired five properties: the marital residence, three rental properties, and a fractional share of a hunting cabin in Steinhatchee. The main task for the trial court at the adjudicatory hearing was to value and distribute both the properties themselves and the rental income the parties had received during the four years between the filing of the dissolution petition and the hearing. The parties put on evidence concerning the value of four of the properties, the amount of rental income received from all of the rental properties, and the use of that rental income during the previous four years. Ultimately, the final judgment of dissolution distributed four of the five properties and the rental income from one of the three rental properties. It omitted any mention of the fifth property and the rental income from the other two rental properties. The Wife argues that these omissions were error. On the record presented here, we agree in part.

Section 61.075(3), Florida Statutes (2003), requires the trial court to clearly identify and value all of the marital and nonmarital assets and liabilities and to determine entitlement to each marital asset and responsibility for each marital debt. It is reversible error for the trial court to fail to identify and distribute each marital asset and liability. See Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008); Italiano v. Italiano, 873 So.2d 558, 561 (Fla. 2d DCA 2004); Ritter v. Ritter, 690 So.2d 1372, 1375 (Fla. 2d DCA 1997). Therefore, when the trial court wholly fails to account for an asset about which the parties have presented evidence, appellate courts will generally remand for the trial court to value the asset and distribute it accordingly. Ritter, 690 So.2d at 1375; Robinson v. Robinson, 652 So.2d 466, 467 (Fla. 1st DCA 1995); Glover v. Glover, 601 So.2d 231, 234 (Fla. 1st DCA 1992).

However, when the parties fail to present evidence concerning the value of the assets and liabilities at issue, they effectively prevent the trial court from discharging its responsibilities under section 61.075(3). Glover, 601 So.2d at 232. Accordingly, when the parties fail to present any evidence concerning the value of a specific asset, the trial court is entitled to presume that that asset is not of significant value. In that case, the trial court does not err by failing to include that specific asset in its equitable distribution scheme. Nelson v. Nelson, 721 So.2d 388, 389 (Fla. 4th DCA 1998); Bomwell v. Bomwell, 676 So.2d 508, 510 (Fla. 4th DCA 1996).

Here, as the Wife correctly points out, the trial court failed to value and distribute the parties’ fractional interest in the hunting cabin in Steinhatchee. However, this omission was not error because neither party presented any evidence at the hearing concerning its value. Thus, the trial court was legally entitled to presume that fractional interest in the hunting cabin' was not a significant asset, and the trial court did not err by failing to include this asset in the equitable distribution scheme.

However, as the Wife also correctly points out, both parties presented evidence concerning the rental income received from the rental properties at Cedar Avenue and 8505 Nundy Avenue. In light of this evidence, the trial court should have valued that rental income and accounted for it in the equitable distribution scheme; however, the final judgment makes no mention of it. This omission constitutes reversible error.

In defense of the final judgment, the Husband argues that any error in omitting this rental income was harmless because the evidence showed that it was used to support the parties during the dissolution proceedings and thus was not available for distribution. However, if the trial court believed the Husband’s testimony on this issue, it should have accounted for the rental income by making a factual finding concerning its use and unavailability. Because the trial court did not make such a finding, we must assume that this rental income was inadvertently omitted from the final judgment. Accordingly, we reverse the final judgment to the extent that it fails to account for this rental income, and we remand for the trial court to value it and either distribute the rental income or explain its reasons for not doing so.

The Wife raises several other issues concerning the propriety of the trial court’s equitable distribution scheme, all of which we reject. However, we write to address what appears to be an issue of first impression concerning the interplay between a judgment awarding exclusive possession of a marital residence entered by a domestic violence court and a final judgment equitably distributing that same residence in a subsequent dissolution action.

The same day that the Wife filed her petition for dissolution of marriage, she also served the Husband with a petition for protection against domestic violence. After the return hearing on the domestic violence petition, the court entered a final judgment for protection against domestic violence in favor of the Wife. In pertinent part, that final judgment awarded the Wife exclusive possession of the marital residence.

At the subsequent adjudicatory hearing in the dissolution case, the Wife argued that the Husband was not entitled to credit for half of the rental value of the marital residence during the pendency of the dissolution proceedings because she had exclusive possession of that residence pursuant to the final judgment for protection against domestic violence. In making her argument, the Wife relied on Kelly v. Kelly, 583 So.2d 667, 668 (Fla.1991), and Goolsby v. Wiley, 547 So.2d 227, 230 (Fla. 4th DCA 1989), for the general rule that when one cotenant enjoys exclusive possession of the property by virtue of a court judgment, the other cotenant is not entitled to an award of rental value unless such an award is provided for by the judgment. The Wife argued that the silence of the final judgment for protection against domestic violence on the issue of rental value precluded such an award in the dissolution case. However, the Wife’s argument improperly seeks to extend the general rule set forth by Kelly and Goolsby to an entirely different factual scenario.

In Goolsby, a final judgment of dissolution awarded exclusive possession of the marital home to the wife and provided for the eventual sale of the residence. 547 So.2d at 228. The final judgment required the wife to pay all the expenses of the marital home but was silent on the issue of rental value. Id. When the marital home was sold, the husband sought an award of half the rental value as an offset to the wife’s claim for expenses. The trial court denied this claim. In affirming the denial of the husband’s claim, the Fourth District reasoned:

In the present ease the -wife remained in exclusive possession by virtue of a specific provision to that effect in the final judgment of dissolution. An argument could be made that where a property settlement agreement or • final judgment permits one tenant to have exclusive occupancy this operates as an eviction or constructive ouster of the other tenant, who should thereby have a claim for the fair rental value. We think that the scant authority and better reasoning support a contrary position. Where the parties have agreed that one should have exclusive possession and there is no provision in the agreement for rent, it seems inappropriate to subsequently engraft such a requirement on the contract made by the parties. By the same token, a judgment which awards exclusive possession to one party is based upon certain, known facts and if rent had been contemplated and thus placed in the balance, the court presumably would have said so.

Id. at 230 (emphasis added).

Similarly, in Kelly, the final judgment of dissolution awarded the wife exclusive possession of the marital residence while the parties’ child was a minor. 583 So.2d at 667. After the child reached majority, the court entered a supplemental final judgment ordering that the property be sold and the proceeds divided. The wife sought credit for half of the expenses she incurred for the residence, and the husband sought an offset for half of its rental value. The trial court denied the wife’s claim for credits, citing the husband’s claim for rental value. The appellate court reversed, awarding the wife the credits she sought and denying the husband’s claim for rental value. Id. at 668. On appeal, the supreme court affirmed the denial of the husband’s claim for rental value, relying on Goolsby. Id. In doing so, the court stated:

The rights of an out-of-possession coten-ant for credit for fair rental value depends on the circumstances. If such person is ousted by a court order following a marriage dissolution, and no reimbursement for rental value is provided in that judgment, it is assumed that the trial judge intended that there be none.

Id. (emphasis added).

As can be seen, the courts in Goolsby and Kelly both addressed situations in which a final judgment of dissolution awarded one party exclusive possession of the marital residence but was silent on the issue of rental value. In each instance, the court held that if the trial court had intended for the out-of-possession party to receive credit for rental value based on the facts known to the court when it entered the dissolution judgment, it would have provided for rental value in that judgment. Therefore, when a final judgment of dissolution is silent on the issue of rental value, the court will not read a provision for rental value into that judgment.

In this case, however, the Wife is not relying on silence in a final judgment of dissolution to deny the Husband credit for half the rental value of the marital residence. Instead, she is relying on silence on the issue of rental value in a final judgment for protection against domestic violence. This factual distinction renders the Wife’s reliance on Goolsby and Kelly improper because of the differences underlying these two types of final judgments.

In a final judgment of dissolution, the trial court is specifically addressing the disposition of the parties’ assets and the financial consequences of that disposition. Thus, the rental value of property awarded exclusively to one party is an issue either explicitly or implicitly considered by the trial court, and silence on that issue supports the assumption that the trial court found an award of rental value improper. In a domestic violence proceeding, however, the issue of rental value is not necessarily before the court. Parties seeking a final judgment for protection against domestic violence may or may not be married, may or may not currently live together, and may or may not jointly own property. The trial court’s focus at the hearing on the petition for protection against domestic violence is the safety and well-being of the parties involved, not the disposition of any property they may jointly own or the financial consequences of that disposition. Thus, the fact that a final judgment for protection against domestic violence is silent on the issue .of rental value does not support an assumption that the domestic violence court considered the issue and implicitly found that no such award was proper. Because the Kelly and Goolsby decisions do not address exclusive possession pursuant to a final judgment for protection against domestic violence, these cases do not support the Wife’s position in this appeal.

In addition, the statutes governing domestic violence injunctions and dissolution actions contradict the Wife’s assertion that the final judgment for protection against domestic violence was dispositive of the issue of rental value in the subsequent dissolution proceeding. Section 741.30(l)(c), Florida Statutes (2003), which governs petitions for protection against domestic violence, specifically provides: “In the event a subsequent cause of action is filed under chapter 61, any orders entered therein shall take precedence over any inconsistent provisions of an injunction issued under this section which addresses matters governed by chapter 61.” Thus, the legislature clearly contemplated that the dissolution court would be reconsidering certain issues, such as possession of real property, that had been preliminarily addressed by the domestic violence court, and it provided that the dissolution court’s ruling would take precedence. Further, section 61.077, Florida Statutes (2003), states that a party to a dissolution action is precluded from receiving any credits or setoffs upon the sale of the marital home unless “the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts” provides for such setoffs or credits. Notably absent from this list is a final judgment for protection against domestic violence. These two statutes make it clear that a final judgment for protection against domestic violence does not determine the issue of rental value sub silentio or foreclose its later consideration by the dissolution court.

For these reasons, we decline the Wife’s invitation to extend the rationale of Kelly and Goolsby to these facts. Instead, we hold that silence on the issue of rental value in a final judgment for protection against domestic violence that awards exclusive possession of a marital residence does not preclude an award of rental value in a future final judgment of dissolution of marriage. Only if the final judgment of dissolution is silent on the issue will a later award of rental value be prohibited.

Finally, as the supreme court pointed out in Kelly, the rights of an out-of-possession cotenant depend on all of the circumstances. 583 So.2d at 668. Here, the trial court in the dissolution action was well aware of the fact that the Wife had exclusive possession of the marital residence due to the final judgment for protection of domestic violence. Armed with this knowledge, the trial court found it equitable to award the Husband credit for half of the rental value of the marital residence during the Wife’s period of exclusive possession. Accordingly, in the absence of some evidence that such a result was inequitable, this court cannot say that the trial court abused its discretion by awarding the Husband this credit.

In sum, we reverse the final judgment of dissolution insofar as it fails to value and distribute the rental income from the parties’ properties at Cedar Avenue and 8505 Nundy Avenue, and we remand for further proceedings on that issue alone. In all other respects, we affirm the final judgment of dissolution.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT, C.J., and SALCINES, J., Concur.

      . We note that to avoid the need to resort to case law in an effort to intuit a trial court’s intent, it may be wise for a trial court to affirmatively state in the final judgment of dissolution that rental value was considered and no award was found to be warranted.


text:
    Dale Lee LENOIR, Appellant, v. John M. JONES, Employee of State of Florida, Appellee.
    No. 1D06-6716.
    District Court of Appeal of Florida, First District.
    April 14, 2008.
    Dale Lee Lenoir, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, Dale Lee Lenoir, the plaintiff below, appeals the trial court’s order of dismissal entered without notice. The trial court, sua sponte, dismissed the case because Appellant had not served Appel-lee, John M. Jones, within 120 days of filing the complaint. Appellant argues that the trial court erred in dismissing his claim without providing notice or the opportunity to show good cause for the failure to effectuate service of process. We agree, and, accordingly, we reverse and remand for further proceedings consistent with this opinion.

Florida Rule of Civil Procedure 1.070(j) provides, in pertinent part, as follows:

If service of the initial process ... is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice ... provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.

(emphasis added). A plaintiff is entitled to both notice and the opportunity to show good cause why process has not been served prior to a trial court’s sua sponte dismissal of his or her case. Connelly v. Crown Cruise Line, Inc. S.A., 636 So.2d 886, 887 (Fla. 4th DCA 1994); Alvarez v. U.S. Sec. Ins. Co., 650 So.2d 707, 707-708 (Fla. 3d DCA 1995). Because the trial court dismissed Appellant’s complaint without providing him notice or an opportunity to show good cause, we REVERSE and REMAND with directions for the trial court to allow Appellant an opportunity to show good cause why service was not timely effectuated.

BROWNING, C.J., LEWIS, and HAWKES, JJ., concur.


text:
    Demetria Q. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1330.
    District Court of Appeal of Florida, First District.
    April 14, 2008.
    Nancy A. Daniels, Public Defender, Carl S. McGinnes, Assistant Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Philip W. Edwards, Assistant Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

On direct appeal, we affirm Demetria Moore’s judgments and sentences in circuit court case numbers 2004-CF-3268 and 2005-CF-5311 without reaching any issue she raises under Florida Rule of Criminal Procedure 3.800(c).

Affirmed.

DAVIS, BENTON, and THOMAS, JJ., concur.


author: BENTON, J.

text:
    Renardo KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2704.
    District Court of Appeal of Florida, First District.
    April 14, 2008.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, Jennifer J. Moore, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

We reverse Renardo Knight’s conviction for tampering with physical evidence in violation of section 918.13, Florida Statutes (2006). See Obas v. State, 935 So.2d 38, 39 (Fla. 4th DCA 2006) (“If defendant had dropped or thrown the items so that they could not have been retrieved, it would be another matter, like swallowing.”).

DAVIS and THOMAS, JJ., concur.


text:
    LAB INVESTMENTS, INC., third party purchaser, Appellant, v. RESIDENTIAL FUNDING CORP., Sonya Marsh, Eric Marsh, et al., Appellees.
    No. 1D07-3070.
    District Court of Appeal of Florida, First District.
    April 14, 2008.
    Sidney E. Lewis of Lewis & Bernard, P.A., Jacksonville, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

We reverse the trial court’s order setting aside the foreclosure sale because the winning bid at the foreclosure sale was not grossly inadequate and did not result from any mistake, fraud, or other irregularity in the sale. See Action Realty & Invs., Inc. v. Grandison, 930 So.2d 674, 677 (Fla. 4th DCA 2006).

REVERSED.

WEBSTER, DAVIS, and HAWKES, JJ., concur.


text:
    D.D.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3863.
    District Court of Appeal of Florida, First District.
    April 14, 2008.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of a motion to correct disposition error filed pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2). The state concedes that the trial court erred by deviating from the recommendation of the Department of Juvenile Justice without providing adequate reasons. Therefore, we reverse and remand for a new disposition hearing. See K.R. v. State, 973 So.2d 1170 (Fla. 1st DCA 2007) (reversing and remanding for new disposition hearing where trial court failed to provide adequate reasons for deviation from Department’s recommendation). Because we are remanding for a new disposition hearing, we do not address the second issue raised on appeal.

REVERSED and REMANDED for a new disposition hearing.

ALLEN, WOLF, and POLSTON, JJ., concur.

      . Although the state asserts that sufficient reasons were given in the order denying the rule 8.135 motion, the slate concedes that the order was entered more than 30 days after the motion was filed, and thus, the order is deemed denied. See Fla. R. Juv. P. 8.135(b)(1)(B); O.H. v. State, 948 So.2d 79 (Fla. 2d DCA 2007) (order on rule 8.135 motion entered after 30 days is a nullity).


text:
    Alain ADAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5483.
    District Court of Appeal of Florida, First District.
    April 14, 2008.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial judge correctly denied relief on the 3.800(b)(2) motion to correct sentencing error filed in lower court case number 04-485CF. In lower court case number 04-682CF, appellant correctly asserts that the maximum sentence the trial judge could have imposed was 364 days. Porter v. State, 940 So.2d 579 (Fla. 1st DCA 2006). Appellant’s 365-day sentence was therefore illegal. The sentence, however, was imposed on September 12, 2006, and was imposed to run concurrent with the sentence in lower court case number 04-485CF. Accordingly, the error is moot.

AFFIRMED.

BARFIELD, POLSTON, and ROBERTS, JJ., concur.


text:
    Renee L. McLEMORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1723.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2008.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Korie WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-69.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Korie Washington, in proper person.
    Bill McCollum, Attorney General, and Jill Kramer Traina, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE, J„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Korie Washington appeals from the denial of his motion for return of property (currency). We treat the notice of appeal as a petition for a belated appeal pursuant to Rule 9.141(c), Florida Rules of Appellate Procedure, and grant the petition. Upon the State’s commendable confession of error, we remand this case to the trial court for an evidentiary hearing. If the trial court again denies the motion, it shall attach the records that conclusively refute the defendant’s claim. See Almeda v. State, 959 So.2d 806 (Fla. 2d DCA 2007).

Reversed and remanded.


text:
    Robens ALOUIDOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2815.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellee.
    Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for appellant.
    Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. State, 744 So.2d 1103, 1106-07 (Fla. 3d DCA 1999).


text:
    Jamar Antwan HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-468.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Rehearing Denied June 5, 2008.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Jamar Antwan Hill appeals his convictions on two counts of first-degree murder. The main claim is that the trial court erred by refusing to grant the defense’s request for a jury instruction on imperfect self-defense. We find no error and affirm.

Defendant-appellant Hill contended that he had shot and killed both of the victims because he feared they were about to kill him. He shot both in the back of the head. Both men turned out to be unarmed. The jury was given the standard jury instruction on self-defense. By statute, a “person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” § 776.012, Fla. Stat. (2000) (emphasis added).

The defendant also requested an instruction on imperfect self-defense. Imperfect self-defense is “[t]he use of force by one who makes an honest but unreasonable mistake that force is necessary to repel an attack.” Black’s Law Dictionary 1390 (8th ed. 2004).

The defendant relied on a California jury instruction regarding imperfect self-defense. Under California law, “Where that fear [of imminent peril] is unreasonable (but nevertheless genuine), it reduces the crime from murder to voluntary manslaughter — a doctrine known as ‘imperfect self-defense.’ ” Middleton v. McNeil, 541 U.S. 433, 434, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004). The defendant asked the trial court to give the California instruction quoted in Middleton.

We conclude that the requested instruction is contrary to the Florida statute, which requires a reasonable belief in the necessity to use deadly force. The Florida statute does not contain a provision on imperfect self-defense. The trial court correctly rejected the defense request. See Hernandez v. State, 842 So.2d 1049, 1051 (Fla. 4th DCA 2003); Johnson v. State, 718 So.2d 848, 849-50 (Fla. 5th DCA 1998); Reimel v. State, 532 So.2d 16, 18 (Fla. 5th DCA 1988). See generally Wayne R. LaFave, Substantive Criminal Law § 10.4(i) (2d ed. 2003).

We reject the remaining point on appeal on authority of Smiley v. State, 966 So.2d 330 (Fla.2007).

Affirmed.

      . The crime date was December 11, 2000.

      . The requested jury instruction stated:
      The specific intent for manslaughter, as opposed to murder, may arise from the following circumstance:
      An honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. That would be imperfect self-defense.
      To establish that a killing is murder and not manslaughter, the burden is on the State to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done ... in the honest, even though unreasonable, belief in the necessity to defend against imminent peril to life or to great bodily injury.
      A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but is not guilty of murder. This would be so even though a reasonable person in the same situation, seeing and knowing the same facts, would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter.
      An "imminent” peril is one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.


author: SALTER, J.

text:
    James GOLDSMITH and Monica Goldsmith, Appellants, v. Elaine C. BROCKHOUSE, et al., Appellees.
    Nos. 3D07-1817, 3D07-1398.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.

      Jeffrey A. Sarrow, for appellants.
    Richard J. Caldwell; Weiss Serota Helf-man Pastoriza Cole & Boniske and Joseph H. Serota and Brooke A. Bloom, Miami, for appellees.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

These consolidated appeals are brought by the prospective purchasers, Mr. and Mrs. Goldsmith, of a residential property in Miami Beach, Florida. Their contract, commonly referred to as a “backup” contract, was made expressly subject to the rights of the parties to another, preexisting contract which ultimately closed. After the closing, Mr. and Mrs. Goldsmith filed a complaint seeking to enforce their contract, alleging that the preexisting contract had been terminated or breached. The circuit court granted final summary judgments in favor of the seller and the buyer under the first contract, and we affirm those rulings.

The first contract contained a “time is of the essence provision” and specific dates for the end of the inspection period and for closing. The backup contract executed a week later by the Goldsmiths and the seller contained this language under the printed caption “Back-up Contract”:

This back-up Contract is subject to the termination of a prior executed contract between Seller and a third party for the sale of the Property. If the prior executed contract is terminated and Seller delivers written notice of the termination to Buyer before 5:00 p.m. on 9/27/04, this contingency will be removed and this back-up Contract will move into first position. If Buyer does not receive notice of the prior contract’s termination by the above deadline, Buyer may cancel this back-up Contract at any time and Buyer’s deposit will be refunded.

It is undisputed that the seller never delivered a written notice of termination of the preexisting contract to the Goldsmiths (or their real estate agent) by the date specified, or by any other date. Instead, the preexisting contract was extended and modified in writing several times, and ultimately that contract closed. The Goldsmiths did not obtain a covenant in their backup contract with the seller that prohibited the seller from granting any such extensions or modifications to the first buyer.

The Goldsmiths may not enforce the “time is of the essence” provision in the preexisting contract, because they were not third party beneficiaries of that contract. See Biscayne Inv. Group, Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So.2d 251 (Fla. 3d DCA 2005). Nor may the Goldsmiths impose an implied covenant of good faith on the part of the seller and the first buyer in the absence of an enforceable contract with the seller prohibiting extensions or modifications to the seller’s prior contract. Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 876 (Fla. 4th DCA 2002). The seller and first buyer remained free to amend their contract and to extend the date of closing as between themselves, without regard to the backup rights of the Goldsmiths, and despite the seller’s and first buyer’s initial agreement in their separate contract that time would be of the essence. Miami Child’s World, Inc. v. City of Miami Beach, 688 So.2d 942 (Fla. 3d DCA 1997).

Mr. and Mrs. Goldsmith also argue that summary judgment was erroneously granted because material factual issues were presented by the affidavits in opposition to and deposition excerpts filed before the hearing. One affidavit was executed by the Goldsmiths’ real estate agent and recounted a telephone conversation with the seller ten days before the deadline specified in the Goldsmiths’ backup contract. During the telephone call, the agent said she was told that the buyer under the first contract had not timely posted the required deposits, that the Goldsmiths “had the deal,” and that one of the two sellers had “terminated the first contract.” Other evidence established that the buyer under the first contract had indeed raised problems with the seller before the end of the inspection period and therefore had not made a timely further deposit.

The trial court correctly concluded that these submissions did not raise a genuine issue regarding a material fact because the Goldsmiths’ contract required the timely delivery to them of a written notice of termination of the preexisting contract, and there was no dispute that such a notice was not delivered. The Goldsmiths could not justifiably rely on the purported conversations and other occurrences, because the written notice of termination of the prior contract was required to elevate their backup contract into the primary and operative contract for sale. When (as here) the terms of the pertinent agreement are clear, lawful, and unambiguous, a court should simply enforce them as written. Edlund v. Seagull Townhomes Condo. Ass’n, 928 So.2d 405, 407 (Fla. 3d DCA 2006).

Because the Goldsmiths’ backup contract never became an enforceable primary contract, we need not separately address their claim for specific performance.

Affirmed.


author: WARNER, J.

text:
    Lukens MARTELUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4395.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In this appeal of the trial court’s denial of appellant’s motion for postconviction relief after an evidentiary hearing, the appellant claims that trial counsel was ineffective for failing to move to suppress his confession given after a deficient Miranda warning. We affirm, as the evidentiary hearing revealed that the arresting officers had read sufficient Miranda warnings shortly before appellant signed a Miranda card containing the deficient warning.

Police officers took appellant Martelus into custody pursuant to an outstanding warrant for robbery. Prior to commencing interrogation, the lead officer, Fran-quiz, testified that he read Martelus the Miranda rights from a card. The rights he read included Martelus’s right to have an attorney present during questioning. Franquiz asked Martelus whether he understood those rights and Martelus responded that he did.

Before questioning could commence, Franquiz waited for the arrival of a second officer, Jenkins. Jenkins presented Mar-telus with a Miranda waiver form which Martelus read and signed. Several minutes or less than an hour elapsed from when Franquiz read the Miranda warnings card until Jenkins presented him with the written waiver form. The written waiver form did not advise Martelus of his right to have counsel present during questioning. Jenkins then took a statement from Martelus. After this statement, Franquiz asked Martelus about whether Martelus had read and understood the Miranda rights form. Martelus answered in the affirmative, and Franquiz then took another statement from Martelus regarding the robbery.

Although Martelus testified at the evi-dentiary hearing that Franquiz never verbally advised him of his rights, the trial court found otherwise, concluding that Martelus was given two Miranda warnings, the second of which failed to inform him of his right to an attorney during questioning. Notwithstanding the fact that Franquiz referenced the written rights before obtaining the second statement, that did not take away from the fact that less than an hour earlier Martelus was orally advised of the rights and acknowledged that he understood them. The court determined, as a factual matter based upon the testimony and the evidence, that Martelus was properly informed of his Miranda rights. Based upon that, the court found that there was no deficiency on the part of counsel and no prejudice to Martelus. There was no testimony from Martelus that had he known he had a right to have a lawyer during questioning, he would have stopped his statement and asked for a lawyer. Accordingly, the court denied the rule 3.850 motion.

On appeal, Martelus continues to argue that counsel was ineffective in failing to move to suppress his confession on the ground that it was immediately preceded by a legally inadequate Miranda warning. While Martelus acknowledges that the trial court found that Franquiz provided legally adequate Miranda warnings, he argues that his statements were not made in response to the legally sufficient warnings but rather were made in response to the deficient Miranda warnings. Because Martelus received a legally adequate warning shortly before the statement, counsel was not deficient for failing to move to suppress the statement.

Our supreme court has recognized that “[t]here is no requirement that an accused be continually reminded of his rights once he has intelligently waived them.” Nixon v. State, 572 So.2d 1336, 1344 (Fla.1990). In Nixon, appellant claimed that his statement made to a detective was inadmissible because it was given without the full benefit of Miranda warnings. The supreme court disagreed, finding that appellant was given full Miranda warnings on at least four separate occasions and acknowledged that he understood his rights. He then gave a taped confession. Approximately eight hours after giving the taped confession, a detective told appellant that he had a question to ask him and gave him abbreviated Miranda warnings. Appellant made a statement that he later moved to suppress. Although the detective did not give appellant a full Miranda warning, the supreme court determined that the trial court correctly ruled that appellant understood his rights and knowingly and intelligently waived them prior to the challenged statement.

Bramwell v. State, 929 So.2d 1096 (Fla. 4th DCA 2006), is also instructive. There, the defendant was read defective Miranda rights from a preprinted card that failed to advise him of his right to counsel during questioning. However, he also signed a waiver of rights form prior to being questioned which contained language sufficient to advise him of his right to counsel. For this reason, this court found that counsel did not render ineffective assistance in failing to move to suppress defendant’s confession based upon deficient Miranda warnings.

Martelus was first given correct warnings followed by defective warnings, which is different from the facts of Bram-well but similar to the facts of Nixon. As he was provided legally adequate Miranda warnings which he acknowledged that he understood, we conclude that his receipt of deficient warnings shortly thereafter does not require suppression of his statement. See also Maguire v. United States, 396 F.2d 327, 331 (9th Cir.1968); People v. Sandoval, 736 P.2d 1201, 1204 n. 3 (Colo.1987).

Martelus relies on State v. Hart, 412 N.W.2d 797, 802 (Minn.Ct.App.1987), to argue that counsel was deficient in failing to raise a meritorious ground for seeking suppression of the statements. In that case, the defendant was given an adequate Miranda warning but made no statement. Several hours later, he signed a legally deficient Miranda rights waiver form. The trial court suppressed the statement, because the statement resulted from the defective warnings. The appellate court affirmed, concluding that the trial court was not clearly erroneous in suppressing the statement under the circumstances.

Hart does not establish a bright-line rule but determined that under the totality of the circumstances of that case, the statement should be suppressed. Here, the defective warnings were given shortly after the correct warnings, unlike the more significant time difference in Hart. Furthermore, the defective warning in Hart told the defendant that counsel would be appointed by a judge if he appeared in court. Thus, his right to counsel under those warnings made counsel unavailable to the defendant at any time before, during, or after questioning by the police. This is clearly a more substantial defect than the defect present in the written waiver form in this case.

The mere fact that one case decided in another state twenty years ago, which does not comport with more recent Florida law, might support a motion to suppress does not amount to a conclusion that counsel in this case was defective for failing to move to suppress the confession. The trial court’s ruling must be affirmed.

STONE, and FARMER, JJ., concur.


author: KLEIN, J.

text:
    Laureen MONIZ, Appellant, v. Michael J. MONIZ, Appellee.
    No. 4D07-3335.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Rehearing Denied May 15, 2008.

      Herbert B. Dell of Herbert B. Dell, P.A., Fort Lauderdale, for appellant.
    Christopher E. Ells, Fort Lauderdale, for appellee.
   KLEIN, J.

After thirty years as a law enforcement officer, the last twenty-seven as a road patrol officer with the Fort Lauderdale Police Department, the former husband retired at age fifty-two. After considering his health problems, and finding that his retirement after thirty years was normal for a person with his position in law enforcement, the court granted modification of alimony and child support. The wife appeals, and we reverse some aspects of the order relating primarily to child support.

The oldest child reached the age of eighteen in December, 2007, but her graduation from high school will not occur until May, 2008. The trial court erred in terminating child support when the child became eighteen. As the court explained in Hill v. Hooten, 776 So.2d 1004, 1008 (Fla. 5th DCA 2001):

If it is established that the child will be in her senior year at the time she turns 18, the trial court should either award child support until the date she graduates or set forth findings of fact explaining why such relief is denied. Although section 743.07 of the Florida Statutes (1999) gives the trial court discretion whether to award extended child support beyond the age of 18, if the child is dependant in fact and reasonably expected to graduate before the age of 19, the denial of such support should be the exception rather than the rule. As the Fourth District has explained, since children who are still attending high school at age 18 are in need of financial support, section 743.07(2) of the Florida Statutes should be interpreted liberally in order to provide such support, thereby mitigating any potential harm to the child resulting from the lack of support. See Boot v. Sapp, 714 So.2d 579 (Fla. 4th DCA 1998)(authorizing the trial court to award child support through the date of graduation notwithstanding the fact that the twin children turned 19 a few weeks before graduation because to deny such support could harm the children).

The court also made a downward adjustment of child support based on the husband’s reduced income resulting from his retirement, citing Pimm v. Pimm, 601 So.2d 534 (Fla.1992). Pimm, however, involved alimony, and the husband has cited no cases which would support a reduction of child support based on these facts. Although the trial court found that the husband’s retirement at age fifty-two was normal for law enforcement officers, that in and of itself does not justify a reduction of child support. Overbey v. Overbey, 698 So.2d 811 (Fla.1997) (voluntary reduction in income insufficient to support reduction of child support); Vriesenga v. Vriesenga, 931 So.2d 213 (Fla. 1st DCA 2006) (even where retirement is involuntary it does not necessarily follow that child support is to be reduced).

The trial court granted the husband a credit for an overpayment of health insurance premiums retroactive to the date the marriage was dissolved in 2000. It was the husband’s position that the amount of child support included the cost of the health insurance premium; however, he had not deducted that cost. The problem with the husband’s position is that he voluntarily paid full child support and the children’s health insurance premiums from 2000 until the hearing on modification. Under these circumstances it is improper for the wife to be required to pay back the overpayments. Servies v. Servies, 524 So.2d 678 (Fla. 1st DCA 1988) (husband not entitled to set-off for over-payments of child support); Martinez v. Martinez, 383 So.2d 1153 (Fla. 3d DCA 1980) (same).

The wife also argues that the court erred in reducing her alimony based on the husband’s retirement. In Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992), however, our supreme court held that a downward modification of alimony could be granted following a voluntary retirement, explaining:

In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire

In this case the court found that the husband had two heart procedures including the placement of a stent, a shattered knee, an ankle injury, and that his health would hinder him in continuing in his law enforcement job. And, as we said earlier, the court also found that his age at retirement was normal for people in his position in law enforcement. There was accordingly competent substantial evidence to support the downward modification of alimony.

We accordingly reverse the termination of child support before graduation from high school, reverse the downward adjustment of child support, and reverse the credit for overpayment of child support in the form of the health insurance premiums. In all other respects we affirm.

HAZOURI and DAMOORGIAN, JJ„ concur.


author: FARMER, J.

text:
    PINES LEARNING CENTRE, INC., Appellant, v. Mark SHIPMAN and Sandra Shipman, Appellees.
    No. 4D06-4904.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Donald W. St. Denis and Matthew S. Schmehl, of St. Denis & Davey, P.A., Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for appellant.
    Pamela A. Chamberlin of Mitrani, Rynor & Adamsky, P.A., Miami, for appellees.
   FARMER, J.

While at School, a young student suffered a seizure leading to her death. Her parents’ claim in this lawsuit is centered on the School’s response to the seizure. They tried the case on a theory that she died because the School failed to perform CPR. The School’s position was that CPR was unnecessary because she was breathing and showing other signs of life and that, in any event, her parents were comparatively negligent in failing to follow recommended treatments by her health care providers. The experts from each side testified to different theories and findings. A jury returned a verdict in favor of the School.

The parents’ motion for new trial in early 2006 led to multiple hearings in February, May, June and October, the last of which produced an order granting the motion but without stating reasons. Finally in December a final hearing was held on parents’ motion for the trial judge to state specific reasons for granting the order. She did not think such was necessary, stating that the hearing transcripts would reflect her specific reasoning. The trial judge thereupon left the bench in retirement.

After this appeal was filed, we relinquished jurisdiction to the trial court for an amended order complying with rule 1.530(f). Because the trial judge was then retired, her successor in the division to which the case had been assigned responded that she was unable to supply the reasons because she had not presided at the trial.

During the December hearing, the presiding trial judge had indicated a willingness to supply specific reasons if required. She said: “If the Fourth determines that I need to put reasons and submit back the order, then we’ll talk about it. And I’ll come back from the great beyond on an appointment by [the Chief Judge].... ”

Since oral argument, we have studied the hearing transcripts to ascertain whether we can review the new trial order by careful examination for specific reasons. Having done so, we now conclude that we are simply unable to review the subject order without having the specific reasons stated in writing by the judge presiding at trial. We therefore once again relinquish jurisdiction to the circuit court, this time explicitly requesting an order specially appointing the retired judge who presided at trial to specify reasons for granting a new trial.

Case relinquished.

WARNER, J., and CONNER, BURTON C., Associate Judge, concur.

      . An autopsy found she had died of cortical microdysgenesis and neuronal heterotopia— an underlying condition in her brain.

      . After the May hearing, an apparently inadvertent order had been entered denying the motion, but at the June hearing the trial judge vacated it as unintended.

      . Circuit Judge Miette K. Burnstein.

      . See Prime Motor Inns Inc. v. Wattman, 480 So.2d 88 (Fla.1985); Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978), requiring the trial judge to specify reasons why a new trial is necessary.

      . Circuit Judge Cheryl J. Alemán

        .See Groover v. Walker, 88 So.2d 312 (Fla.1956) (successor judge may not correct errors of law committed by predecessor), and State Farm Mut. Auto. Ins. v. Brooks, 657 So.2d 17 (Fla. 3d DCA 1995) (where judge who presided at trial had died, successor judge not authorized to specify reasons for granting new trial ordered by presiding judge).


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Modesto GUZMAN, Appellee.
    No. 3D07-837.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Bill McCollum, Attorney General, and Angel Fleming and Maria T. Armas, Assistant Attorneys General, for appellant.
    Eric M. Cohen, Miami, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

We agree with the trial court’s order suppressing both (a) the defendant’s incriminating statements during a polygraph examination conducted as a condition of ongoing plea negotiations, see § 90.410, Fla. Stat. (2007); Fla. R.Crim. P. 3.172(h); Richardson v. State, 706 So.2d 1349 (Fla.1998); Anderson v. State, 420 So.2d 574 (Fla.1982); Davis v. State, 842 So.2d 989 (Fla. 1st DCA 2003); People v. Garcia, 169 P.3d 223 (Colo.Ct.App.2007), cert. denied, No. 07SC521, 2007 WL 2822534 (Colo. Oct.01, 2007); see also United States v. Robertson, 582 F.2d 1356 (5th Cir.1978) (en banc), and (b) his admission to a homicide detective made in contravention of his right to counsel under article I, section 16, Florida Constitution, which had previously attached under that aspect of Traylor v. State, 596 So.2d 957 (Fla.1992), which provides that

a defendant is entitled to counsel at the earliest of the following points: ... as soon as feasible after custodial restraint.

Id. at 970 (footnote omitted); see also United States v. Harrison, 213 F.3d 1206 (9th Cir.2000); United States v. Medrano, 208 F.Supp.2d 681 (W.D.Tex.2002); State v. Stanley, 754 So.2d 869 (Fla. 1st DCA 2000).

Affirmed.


text:
    GOLDMAX REALTY, INC., Appellant, v. Marlen MONTIEL and Yesfris Rodriguez, Appellees.
    No. 3D07-992.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Elliot L. Miller, for appellant.
    Michael A. Pizzi, Jr., Miami, for appel-lees.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Batista v. Batista, 553 So.2d 1281 (Fla. 3d DCA 1989).


author: SUAREZ, J.

text:
    Saul CIMBLER, Appellant, v. West BRENT, etc., et al., Appellees.
    No. 3D08-185.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Saul Cimbler, in proper person.
    Heller and Chames and Jonathan A. Heller, Miami, for appellees.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Appellant, Saul Cimbler, once again seeks review of a non-final order granting a motion to discharge an amended and supplemental lis pendens. We affirm the trial court’s order as we find that the appellant has not demonstrated any preliminary basis for an award in his brief or in the record. Fla. R.App. P. 9.315(a). This appeal is nothing more than yet another attempt to place a lis pendens on property where, in the same litigation, a lis pendens was placed by the appellant, discharged by the trial court, and affirmed upon appeal. For the same reasons given in the prior appeal, we affirm the trial court’s order. See Cimbler v. Brent, 963 So.2d 812 (Fla. 3d DCA 2007).

Affirmed.


text:
    Roy TIJERINA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2377.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm the defendant’s conviction and sentence. However, we remand the case to the trial court to correct a scrivener’s error. St. Georges v. State, 948 So.2d 1008 (Fla. 4th DCA 2007). The first prior offense listed on the scoresheet is aggravated assault, which is listed as a violation of section 784.03, Florida Statutes. Section 784.03 is the battery statute. The actual section number for aggravated assault is 784.021. We therefore remand the case to the trial court for correction of the error.

Affirmed, but remanded for correction of a scrivener’s error.

POLEN, GROSS and MAY, JJ., concur.


text:
    Alberto V. MATEO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-532.
    District Court of Appeal of Florida, Third District.
    April 16, 2008.
    Alberto V. Mateo, in proper person.
    Bill McCollum, Attorney General, and Richard Polin, Assistant Attorney General, for respondent.

      Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

We grant Alberto V. Mateo’s petition for ■writ of mandamus to compel the trial court to rule on his Motion for Post Conviction Relief, filed on November 29, 2006.

As we are hopeful that the lower court will comply forthwith, we withhold issuance of the formal writ for thirty (30) days.


text:
    Lawrence SIMPKINS, Appellant, v. Ruth JENKINS, Appellee.
    No. 1D07-2031.
    District Court of Appeal of Florida, First District.
    April 17, 2008.
    Lawrence Simpkins, pro se, Appellant.
    Bill McCollum, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon further consideration, this Court has determined that it lacks jurisdiction to consider this appeal. The Corrected Order Denying Motion to Vacate is a nonfi-nal, nonappealable order. See Banks v. State, 916 So.2d 35, 35 (Fla. 1st DCA 2005) (holding that an interlocutory order granting indigency status and imposing a lien is not an immediately appealable order). Even if we were to treat Appellant’s motion to vacate the lien placed upon his inmate trust account as a motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540, the Corrected Order Denying Motion to Vacate would still not be appealable because Appellant’s motion was directed to the nonfinal order imposing the lien. See Bennett’s Leasing, Inc. v. First St. Mortgage Corp., 870 So.2d 93, 97-98 (Fla. 1st DCA 2003) (explaining that an order on a rule 1.540 motion that is directed to a nonfinal order is not an ap-pealable order).

Accordingly, the appeal is DISMISSED.

DAVIS, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    Akeem MUHAMMAD, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D08-0035.
    District Court of Appeal of Florida, First District.
    April 17, 2008.
    Akeem Muhammad, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner’s motion for rehearing is granted and this court’s opinion of January 29, 2008, is withdrawn. The petition for writ of certiorari is dismissed for lack of jurisdiction. See McGee v. McGee, 487 So.2d 412 (Fla. 4th DCA 1986).

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Antonio JOHNSON, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-0367.
    District Court of Appeal of Florida, First District.
    April 17, 2008.
    Antonio Johnson, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

We treat the petition for writ of mandamus as a notice of appeal directed to the lower tribunal’s March 10, 2006, order denying petition for writ of mandamus. Inasmuch as the notice of appeal was not filed within 30 days of rendition of the lower tribunal’s order, the appeal is dismissed for lack of jurisdiction.

DAVIS, BENTON, and THOMAS, JJ., concur.


author: BROWNING, C.J.

text:
    Dwayne Kenyotis WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1346.
    District Court of Appeal of Florida, First District.
    April 17, 2008.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Anne C. Conley and Natalie D. Kirk, Assistant Attorneys General, Tallahassee, for Appel-lee.
   BROWNING, C.J.

Dwayne Kenyotis Watson (Appellant) entered a guilty plea to the charge of actual or constructive possession of a controlled substance, MDMA, popularly known as “Ecstasy,” after reserving the right to appeal the denial of his dispositive motion to suppress evidence. We affirm the judgment and sentence.

By law, we follow the applicable United States Supreme Court precedents governing the evaluation of “search and seizure” questions in Florida. See Art. I, § 12, Fla. Const.; Holland v. State, 696 So.2d 757, 759 (Fla.1997). In reviewing the denial of the motion to suppress, we note that mixed questions of law and fact that ultimately determine constitutional rights are examined using a two-part approach. We defer to the trial court on questions of historical fact, reviewing the evidence and all reasonable inferences in a light most favorable to affirming the trial court’s ruling. We review de novo the constitutional issue(s). See United States v. Bajakajian, 524 U.S. 321, 337 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 605 (Fla.2001); Ingram v. State, 928 So.2d 423, 428 (Fla. 1st DCA 2006).

On January 8, 2006, Gainesville police officers were dispatched' to the Gardenia Gardens Apartment complex after an early-morning report of a gunshot and disturbance at Unit 1-2. A number of uniformed officers gathered at the front and rear doors of Unit 1-2 and maintained communications with one another. From her post outside, Officer Knighton radioed that she heard a lot of noise and commotion inside. Officer Knighton entered the front door, walked through the apartment, and opened the back door, allowing Sergeant Nechodom and other officers to enter the apartment, inside which the sergeant observed a spent casing on the floor and what appeared to be bullet holes in the wall. After walking through the kitchen/dining areas, the sergeant observed two men 15-20 feet away, seated quietly and calmly on a couch in the adjoining living room. Officer Knighton and, perhaps, a second officer were already inside. None of the officers had their guns out. No one was yelling or saying anything. At the suppression hearing, Sergeant Nechodom identified Appellant as one of the two seated men. Appellant was not handcuffed as he sat on the couch.

Within thirty seconds of arriving and entering the rear door of the apartment, after which he observed evidence of a gunshot and the absence of handcuffs on the suspects, Sergeant Nechodom asked Officer Knighton if the suspects and the couch area had been checked. Officer Knighton indicated that she had patted down the two men for weapons, but the sergeant did not get a clear response regarding the couch area. Given his experience that female officers might be more shy or less thorough than male officers when checking a male suspect’s crotch area, and his knowledge that a gunshot reportedly had been fired and a weapon might be present, Sergeant Nechodom wanted to double-check to ensure that neither man was hiding a weapon there. In a polite, non-authoritative tone of voice, the sergeant said: “Hey, I just want to check the area you’re sitting in. That way, we can talk, figure out what’s going on here. I’ll feel more comfortable.” He asked if Appellant would mind standing up so that the couch area could be checked. The subsequent search of the couch area revealed nothing.

Next, Sergeant Nechodom said to Appellant: “Listen, I know another officer’s patted you down. I just want to double-check, make sure that you don’t have any weapons or anything. It’s just for my piece [sic] of mind.” At that point, Appellant was standing with his back toward the sergeant. Figuring that it would not hurt to ask for consent to search Appellant’s pockets for “any ammo or anything,” Sergeant Nechodom asked: “Hey, do you mind if I take a look inside your pockets?” Appellant then raised his arms in the air, turned his right shoulder so that he could see the sergeant, and said something like “Go ahead, Man, you can check me.” or “No. You can go ahead and take a look, Man. I don’t have anything.” Sergeant Nechodom testified that it was clear to him that Appellant was freely consenting to a search of his whole person. The sergeant searched Appellant’s crotch area and right pocket and found a small plastic Ziplock bag with pills in it. From his training and experience in narcotics investigations, he believed the pills were consistent with MDMA. No weapon or bullet was found in Unit 1-2.

Appellant contends that the officers’ warrantless entry into the apartment is illegal, and that the State failed to prove by clear and convincing evidence that the chain was broken between the initial police misconduct and Appellant’s subsequent purported free and voluntary consent to search his pockets. See Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992). Appellant asserts that his “consent” was no more than acquiescence to the apparent authority of the police to search him. See United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Gonzalez v. State, 578 So.2d 729, 733 (Fla. 3d DCA 1991).

The State responds that even if Appellant, who did not reside in Unit 1-2, had standing to challenge the warrantless entry in the apartment, the officers’ entry was lawful and justified by the exigent or emergency circumstances known then by the officers. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Ingram, 928 So.2d at 427. To invoke the Fourth Amendment to suppress the personal search, Appellant had to demonstrate that he had a subjective expectation of privacy in the location searched and that his expectation was legitimate, ie., “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421; see Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). It is well-established that “[t]emporary visitors or short-term invitees ... are generally unable to advance a position of privacy with success.” Hicks v. State, 852 So.2d 954, 959 (Fla. 5th DCA 2003). Because Appellant never proved his standing and the trial court never ruled on this claim, the argument that the officers’ warrantless entry is illegal was waived or abandoned and is procedurally barred from consideration on appeal. See Booker v. State, 969 So.2d 186, 194-95 (Fla.2007); Mungin v. State, 932 So.2d 986, 995 (Fla.2006). To the extent that Appellant suggests for the first time on appeal that defense counsel might have been ineffective, the State responds, first, that such an argument generally is not appropriately raised for the first time on direct appeal; and, second, that the face of the record demonstrates that Appellant did not receive ineffective assistance of counsel on this issue. See Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987); Abbott v. State, 958 So.2d 1140, 1143 (Fla. 4th DCA 2007).

The State correctly adds that even if Appellant had standing to challenge the officers’ warrantless entry, their understanding that one or more gunshots had been fired recently inside Unit 1-2 and the presence of noise or a commotion inside justified their immediate actions under Hayden and Steagald. See United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.1987); Riggs v. State, 918 So.2d 274, 281 (Fla.2005); State v. Barmeier, 878 So.2d 411, 413 (Fla. 3d DCA 2004); State v. Boyd, 615 So.2d 786, 788-89 (Fla. 2d DCA 1993). That is, the exigencies of the circumstances were sufficiently compelling to render the warrantless entry “objectively reasonable under the Fourth Amendment.” See Mincey v. Arizona, 437 U.S. 385, 392-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Boyd, 615 So.2d at 788-89.

“Warrantless searches are per se unreasonable under the Fourth Amendment ... and Article I, section 12, of the Florida Constitution, subject to a few specifically established and well-delineated exceptions.” Id. at 788 (citing Katz, 389 U.S. at 357, 88 S.Ct. 507). One of these is the “emergency or exigency doctrine.” See Steagald, 451 U.S. at 211-12, 101 S.Ct. 1642; Wike v. State, 596 So.2d 1020, 1024 (Fla.1992); Grant v. State, 374 So.2d 630, 631-32 (Fla. 3d DCA 1979); Webster v. State, 201 So.2d 789, 792 (Fla. 4th DCA 1967).

Competent substantial evidence demonstrated that the officers briefly detained Appellant on the living room couch. The initial weapons pat-down by Officer Knighton was not challenged. A short time later, Sergeant Nechodom elicited Appellant’s free and voluntary consent to a personal search, the scope of which clearly was within the limits approved by Appellant in both his oral replies and his body language. See United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976) (noting that “consent may be in the form of words, gesture, or conduct”); Robbins v. MacKenzie, 364 F.2d 45, 48 (1st Cir.1966); Ingram, 928 So.2d at 430. The record being devoid of any testimony that the officers acted in a coercive, oppressive, or dominating manner, Appellant’s consent was not mere acquiescence to apparent police authority. See Mendenhall, 446 U.S. at 554-55, 100 S.Ct. 1870; State v. Parrish, 731 So.2d 101, 103 (Fla. 2d DCA 1999).

The trial court correctly denied the motion to suppress evidence. We AFFIRM the judgment and sentence.

VAN NORTWICK and ROBERTS, JJ., concur.