text:
    Jermaine HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3837.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Jermaine Hunter, Edgefield, South Carolina, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a properly sworn motion or petition in the lower court no later than thirty (30) days from the date of this opinion. See Hundley v. State, 929 So.2d 1087 (Fla. 4th DCA 2006). The motion or petition should also comply with the content requirements of rule 3.850(c) and include an explanation as to why it is timely filed pursuant to rule 3.850(b). See also Love v. State, 814 So.2d 475 (Fla. 4th DCA 2002) (noting petitions for writ of error coram nobis are constrained by the same two-year time limit as motions for postconviction relief, through rule 3.850(b)).

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


source: Caselaw Access Project

author: FLETCHER, Judge.

license: Public Domain

text:
    German LARREA, Appellant, v. FISHER ISLAND HOLDINGS, LLC, Appellee.
    No. 3D05-2119.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.

      Burlington, Weil, Sehwiep, Kaplan & Blonsky, Miami, and David A. Freedman, for appellant.
    Akerman Senterfitt and Oscar A. Sanchez and Francisco A. Rodriguez, Miami, for appellee.
    Before FLETCHER, RAMIREZ and C0RTIÑAS, JJ.
   ON MOTION FOR REHEARING

FLETCHER, Judge.

Our opinion filed on October 4, 2006 is withdrawn and the following is substituted therefor.

German Larrea appeals from a final judgment, challenging various interlocutory orders governed by that final judgment. We affirm in part and reverse in part.

As the case stands before us, the undisputed facts demonstrate that Larrea offered to purchase, and condominium developer Fisher Island Holdings (FIH) agreed to sell, two units in an under-construction building. Larrea signed two form purchase agreements with FIH and tendered 10% deposits. Along with the deposits and signed purchase agreements, Larrea submitted a letter providing that several elaborate modifications be incorporated into the construction, including combining the two units as a single unit, primarily at FIH’s expense. The letter provided that upon execution of the purchase agreements such would represent acceptance of Larrea’s terms and conditions and the letter would constitute part of the entire contract. FIH did not sign the letter but took delivery of the purchase agreements, signed them and deposited Larrea’s 10% downpayment checks. Larrea subsequently provided FIH with a revised unit floor plan. FIH requested an additional $150,000 to do the work. Larrea refused and the parties never reached an accord over whether the letter was part of the purchase agreements, and who would pay for the construction modifications. When the second deposits came due under the purchase agreements, Larrea conditioned payment upon FIH’s acceptance of an addendum to the purchase agreements which reflected an amount Larrea was willing to pay for the extensive construction changes. FIH rejected the addendum as well as conditional tender of the second deposits, sent Larrea a default letter, sold the units to another buyer, and kept Larrea’s two initial 10% deposits set out in the form purchase agreements.

Larrea sued FIH for breach of the agreements and for return of his initial deposits, inter alia, amending his complaint several times in an effort to correctly characterize the legal relationship between the parties. His sixth and final amended complaint contained two separate but identical counts for breach of two separate contracts to purchase the two separate condo units as well as an unjust enrichment count (count V). The trial court denied Larrea’s motion for summary judgment and granted FIH’s motion to dismiss with prejudice the unjust enrichment claim. The trial court then entered final judgment concluding the case in FIH’s favor.

The record reflects that no contract was formed because FIH failed to accept Lar-rea’s letter and incorporate it into the purchase agreements. Larrea, as offeror, had the right to condition his offer on FIH entering into the contract — consisting of two form purchase agreements plus the letter. FIH was not authorized to accept part (the purchase agreements) and reject part (the letter). See DiMase v. Aquamar, 835 So.2d 1150 (Fla. 3d DCA 2002)(holding that to result in a contract, an acceptance of an offer must be absolute and unconditional, identical with the terms of the offer and in the mode, at the place and within the time expressly or impliedly required by the offer). Because no valid contract was ever formed, FIH appears to have been unjustly enriched by retaining Larrea’s two initial 10% deposits.

We reverse as to count V of the sixth amended complaint and remand for further proceedings consistent with this opinion. As to the parties’ requests for appellate attorney fees based on contract, there being no contract the requests are denied.

      . Filed May 31, 2005, and denied on June 24, 2005.


author: PER CURIAM. THOMPSON, J.,

text:
    Sanford DOLGIN, M.D., Appellant, v. Angela DOMBKOWSKI and Christopher Dombkowski, Appellees.
    Nos. 5D04-3584, 5D05-448.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rehearing Denied Nov. 13, 2006.
    Mark Hicks and Dinah S. Stein, Hicks Kneale, P.A., Miami, for Appellant.
    Bonita K. Brown, D. Finn Pressly, Joseph K. Lopez and Martin W. Palmerof Fowler, White, Boggs, Banker, P.A., Tampa, for Appellees.
   PER CURIAM.

Sanford Dolgin, M.D. raises four issues in this challenge of a $593,000 medical malpractice verdict in favor of Angela and Christopher Dombkowski. First, he contends that the trial court erred when it allowed without notice the introduction of expert testimony by treating physician Dr. Castellano; second, the trial court erred when it failed to award a setoff of $113,166.80, representing contractual discounts; third, the trial court erred when it reduced the disability setoff by Social Security tax contributions; and fourth, the trial court erred in the award of prejudgment interest from the date of the verdict. We reverse in part and affirm in part.

We affirm as unpreserved the issue concerning the introduction of Dr. Castellano’s undisclosed expert. See Moyer v. Reynolds, 780 So.2d 205, 207-08 (Fla. 5th DCA 2001). We also affirm the trial court’s ruling that denied a setoff for contractual discounts. The court conducted a hearing on Dolgin’s post-trial motion for setoff and correctly concluded that Dolgin had failed to demonstrate that no subrogation lien could give rise to a claim against the Dombkowskis for past medical expenses. Because the burden of proof rested upon Dolgin to prove no subrogation lien, see Galante v. USAA Casualty Insurance Co., 695 So.2d 456, 457 (Fla. 4th DCA 1997), the supreme court’s decision in Goble v. Frohman, 901 So.2d 830 (Fla.2005), is distinguishable.

We reverse, however, the trial court’s reduction of the disability payments collateral sources setoff by $22,716, the amount Mrs. Dombkowski paid into Social Security over her lifetime. There is no authority for such a credit. The Dombkowskis cite no authority directly supporting this novel proposition, and the trial court erred in accepting their argument. The supreme court declared in Purdy v. Gulf Breeze Enterprises, Inc., 403 So.2d 1325, 1329 (Fla.1981), that the collateral sources statute refers to the costs incurred by claimants to secure actual policies from which they received benefits for whatever period of time the policy is in effect. Mrs. Domb-kowski cannot demonstrate that the amounts she paid into Social Security over her lifetime were paid to secure the disability benefits she actually received. These payments were not made to secure any particular insurance benefit, but an entire panoply of federal social programs.

Because the appellees properly concede error in the trial court’s award of prejudgment interest from the date of the verdict to the date of the final judgment, we reverse on this issue. See Amerace Corp. v. Stallings, 823 So.2d 110 (Fla.2002).

Accordingly, we reverse the final judgment and remand for the trial court to amend the final judgment to reflect a set-off for disability payments without regard to amounts paid into Social Security and no award of prejudgment interest from the date of the verdict. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

GRIFFIN and MONACO, JJ., Concur.

THOMPSON, J., concurs in part, dissents in part, with opinion.

THOMPSON, J.,

concurring in part and dissenting in part.

I concur with the opinion except with regard to Dr. Castellano’s surprise expert testimony the trial court allowed. I would reverse because Dombkowski failed to disclose that Dr. Castellano had changed his testimony.

This medical malpractice case involves maxillofacial surgical repairs Dr. Dolgin allegedly performed improperly. At issue was whether Mrs. Dombkowski had a preexisting crossbite not caused by Dr. Dolgin’s surgical repair. Initially, Dr. Castellano was listed as one of Angela Dombkowski’s treating physicians. During the discovery stage of the litigation, Dr. Castellano was deposed regarding his care and treatment and his opinion on causation regarding a palatal fracture. He stated his testimony was limited to her TMJ treatment. He offered no opinion on the standard of care concerning Dr. Dol-gin’s treatment. In pretrial compliance documents, he was listed as a treating physician who would testify regarding Mrs. Dombkowski’s treatment and the necessity of treatment. Further, her attorneys confirmed that he had not been retained as an expert. Shortly before trial, the plaintiffs listed Dr. Castellano as an expert witness. At trial, Dr. Castellano’s testimony changed. He testified, based upon a CT scan and review of previously undisclosed dental records, that Mrs. Dombkowski did not suffer from a preexisting crossbite that affected her treatment. His testimony was a surprise that violated the requirements and spirit of Florida Rule of Civil Rule of Procedure 1.360(b), which requires, upon request, the disclosure of “all tests made, diagnosis, and conclusions” of witnesses before they testify.

Dr. Dolgin argues that the trial court abused its discretion in allowing Dr. Cas-tellano’s undisclosed standard of care opinion that Dr. Dolgin failed to repair Mrs. Dombkowski’s fractured palate. Dr. Dol-gin contended that Dr. Castellano’s testimony should have been stricken or a mistrial granted pursuant to Binger v. King Pest Control, 401 So.2d 1310, 1312 (Fla.1981). Mrs. Dombkowski responded that there were no timely specific objections to the testimony at trial, and, therefore, they were waived. Moyer v. Reynolds, 780 So.2d 205, 207 (Fla. 5th DCA 2001).

Because of the late disclosure, I would reverse for a new trial. See Gouveia v. Phillips, 823 So.2d 215 (Fla. 4th DCA 2002). The surprise introduction of Dr. Castellano’s expert testimony, coupled with the trial court’s order striking three of Dr. Dolgin’s four standard of care experts for untimely disclosure despite one expert’s disclosure nine months before trial, harmfully prejudiced the defense. Dr. Dolgin had no opportunity to prepare for Dr. Castellano’s surprise testimony.


author: THOMPSON, J.

text:
    Jeffrey G. JOACHIM, Appellant/Cross-Appellee, v. Sharon Ann JOACHIM, Appellee/Cross-Appellant.
    No. 5D05-1780.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 2006.
    Rehearing Denied Nov. 13, 2006.
    Jeffrey G. Joachim, Beverly Hills, pro se.
    Rhonda Portwood, Inverness, for Appel-lee/Cross-Appellant.
   THOMPSON, J.

The Former Husband, Jeffrey Joachim, raises eight issues in his pro se appeal of the trial court’s final judgment of dissolution, and the Former Wife cross-appeals the award of primary residential custody of one of the minor children to the Former Husband and the denial of permanent periodic alimony. We conclude that only two issues raised by the Former Husband merit discussion. We agree that the court erred in equitably distributing his contractor’s license. But the trial court did not err in the assessment of attorney’s fees. We otherwise affirm the appeal and the Former Wife’s cross-appeal.

The parties were married in September 1982 and separated in December 2000. The parties had three children during the marriage, two of whom remained minors at the time of dissolution. The court found that the value of the marital home and two boats had decreased during the parties’ separation and, as a consequence, those assets were lost during the course of the proceedings. The court equitably distributed the remaining assets and liabilities, including the Former Husband’s contractor’s license valued at $5000.

The Former Husband argues that the court erred by characterizing his contractor’s license as a marital asset subject to equitable distribution and valuing it at $5000. Further, he contends that the determination is based upon the Former Wife’s speculative opinion as to value. During the hearing, the Former Wife testified, without supporting documentation, the couple easily expended $5000 to obtain the Former Husband’s contractor’s license, including course tuition and books.

The trial court attempted to distribute the educational cost of obtaining the contractor’s license. Based solely upon the Former Wife’s testimony that she thought they spent at least $5000 to acquire the license, the court, valued the license as a $5000 asset. The majority view is that, although an educational degree could be considered by the trial court in distributing marital assets and in determining the propriety and amount of alimony, an educational degree is not property subject to distribution. Hughes v. Hughes, 438 So.2d 146, 149 (Fla. 3d DCA 1983). In Severs v. Severs, 426 So.2d 992, 994 (Fla. 5th DCA 1983), we similarly held that a wife’s claim to a vested interest in the husband’s education and professional productivity, past and future, is unsupported by any statutory or case law. The value of degrees, as measured by future earning capacity, is too speculative to calculate. Hughes, 438 So.2d at 149. The Third District in Hughes discussed, but ultimately rejected, the concept expressed in out-of-state decisions that measured a spouse’s interest in the other party’s educational degree as the amount spent for direct support and school expenses during the period of education. We reverse the trial court’s equitable distribution of the Former Husband’s contractor’s license.

The court considered the Former Wife’s motion for attorney’s fees and concluded that the Former Husband’s numerous motions and opposition to one of the Former Wife’s motions were frivolous or designed to prevent the case from proceeding expeditiously. The court also found that the Former Husband’s pro se representation resulted in additional attorney’s fees incurred by the Former Wife, and, had he acted in good faith, those fees would have been less. It also concluded that the Former Husband had a greater ability to pay attorney’s fees. Accordingly, the court ordered the Former Husband to pay 80 percent of the Former Wife’s fees. The Former Wife incurred a bill of $2750 for attorney Day’s services and $3600 for attorney Portwood’s. The court found that the number of hours was reasonable based on the evidence presented at trial and a review of the court file. The court also found the Former Wife incurred reasonable court costs of $649. Thus, it ordered the Former Husband to pay the Former Wife $5080 in attorney’s fees and $519.20 in costs.

The Former Husband objects to the fee award because both parties’ incomes were substantially equal and they had the same ability to pay. He also contends that one of the Former Wife’s attorneys testified neither as to the reasonableness of the fees nor the hourly rate and that the record does not support the court’s findings.

The standard of review in determining an award of attorney’s fees is an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). However, the litigant who seeks to reverse a trial court’s ruling must provide the appellate court with the trial transcript or a proper substitute to show where the trial court erred. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Here, the Former Husband has not provided any record of an attorney’s fees hearing to support his argument on appeal. It appears the Former Husband designated the record to include the entire trial testimony, but did not include a record of a separate attorney’s fees hearing.

At the conclusion of dissolution proceedings, the trial court has wide discretion to award attorney’s fees. Schmitz v. Schmitz, 891 So.2d 1140, 1141-42 (Fla. 4th DCA 2005). Section 61.16, Florida Statutes, should be liberally, not restrictively construed to allow consideration of any factor to ensure equity between the parties. Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Because the Former Husband failed to provide this court with a transcript of the attorney’s fees hearing in this case, this court cannot determine from the face of the record that the trial court abused its discretion in the fee award. Simpson v. Simpson, 780 So.2d 985, 989 (Fla. 5th DCA 2001). More important, the record on appeal does not show that the arguments were raised below. Consequently, the Former Husband failed to preserve his arguments that attorney Day failed to testify concerning his fee and that his misconduct did not result in additional attorney’s fees to the Former Wife. See Irwin v. Irwin, 402 So.2d 1353, 1354 (Fla. 4th DCA 1981).

The trial court concluded that the Former Husband was in a “substantially better financial position to pay the attorneys’ fees than the Wife” and that her attorneys’ hours and hourly rates and hours were reasonable. The findings comply with the requirements of Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). These findings in the absence of a record to the contrary compel us to affirm the trial court’s ruling on attorney’s fees.

Accordingly, we reverse the equitable distribution of the Former Husband’s contractor’s license and otherwise affirm the appeal and cross-appeal.

REVERSED in part, AFFIRMED in part.

GRIFFIN and MONACO, JJ., concur.


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. Victor FELIX, Appellee.
    No. 5D05-3748.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Rehearing Denied Nov. 16, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    William J. Sheaffer of William J. Sheaf-fer, P.A., Orlando, for Appellee.
   MONACO, J.

The State of Florida seeks review of an order of the trial court granting the motion of the appellee, Victor Felix, to suppress the evidence of child pornography seized from his residence, and in particular, from his computer located within the residence, during a search by law enforcement officers pursuant to a search warrant. The trial court suppressed the evidence because it concluded that the affidavit supporting the search warrant failed to provide a sufficient basis upon which to find probable cause for issuance of the warrant. We conclude, however, that the warrant was properly issued and reverse.

The investigation of the alleged activities of Mr. Felix began when an officer of the Maryland State Police established a website to attract persons interested in child pornography as part of a child exploitation task force. In order to access the website, its message boards and its chat rooms, internet users would first have to send three images of child pornography. According to the Maryland officer, a person with the Yahoo! screen name, truebrother 999@Yahoo.com, contacted the website on April 16, 2004, and sent an email containing three digital images depicting very graphic child pornography. The Maryland officer investigated the Internet Protocol address associated with the Yahoo! user, and discovered a profile listing Orlando, Florida, as the user’s address, and discovered, as well, a photograph of the user. Maryland eventually issued a subpoena to Bright House Networks, and subsequently discovered that truebrother999 was the ap-pellee, Victor Felix III, who according to his Florida driver’s license, resided in Orange County.

The Maryland authorities contacted the Orange County Sheriffs Office on September 10, 2004, which forwarded the information that it had received concerning Mr. Felix to a detective within the Orlando Police Department. The detective discovered that Mr. Felix had moved to a different address than the one listed on his driver’s license. He also examined the internet profile associated with Mr. Felix, and found that the photograph included in the profile matched the picture on Mr. Felix’s driver’s license.

The detective eventually completed an affidavit in support of a search warrant based, in part, on this information. In addition to reciting these facts, the affidavit included the detective’s background and experience, as well as a list of characteristics and tendencies that he identified as those common to “preferential child molesters.” The detective indicated that he had been with the Orlando Police Department since 1989, and had worked in the Crimes Against Children Unit since 1993. The affidavit further related that the detective had personally investigated 1,200 cases involving physical and sexual abuse of children, and had taken courses involving physical and sexual abuse and exploitation of children, including classes entitled “Child Exploitation Via the Computer” and “Advanced Training on Preparing Search and Seizure Warrant for Crimes Against Children.” Through the Florida Department of Law Enforcement, the detective was certified to conduct basic and advanced training on the physical and sexual abuse and exploitation of children, and had conducted such training at the Orlando Police Department, the Citizen’s Police Academy, and at Orange County Public Schools. He had, according to the affidavit, also appeared on local and national television to discuss physical and sexual abuse and exploitation of children, and held membership in such organizations as the Florida Sex Crimes Investigators Association and the Central Florida Child Exploitation Task Force.

On September 29, 2004, about five and one-half months after the three images of purported child pornography were transmitted to the Maryland officer, law enforcement authorities in Orange County successfully sought a warrant from a circuit judge to seize Mr. Felix’s computer and any other equipment or accessories that contained child pornography, or anything that would identify juvenile victims or witnesses to any illegal acts of abuse by Mr. Felix. The search warrant was executed a week later, and resulted in the police officers finding in excess of one hundred images of alleged child pornography on Mr. Felix’s computer. Mr. Felix was subsequently charged by information with 103 counts of Unlawful Possession of Materials Depicting Sexual Performance by a Child, in violation of section 827.071(5), Florida Statutes (2005).

Mr. Felix filed a motion to suppress. Without conducting an evidentiary hearing, the trial judge concluded that the search was violative of the Fourth Amendment, and granted the motion. The basis for the suppression was two-fold. First, the court determined that the information within the affidavit was stale. Second, the court concluded that the affidavit did not set forth crime specific facts to support the likelihood that the computer used to send the images would be in Mr. Felix’s home. The court did note, however, that the inclusion of the detective’s experiential and expert data within the affidavit was appropriate, and that “the affiant had the experience and expertise to believe the facts in his affidavit.” The State seeks review of the suppression order.

Since the trial court based its decision to grant the motion to suppress solely on an examination of the affidavit, and without an evidentiary hearing, the issue of whether the State established probable cause sufficient to obtain a search warrant presents a question of law that is reviewable using a de novo standard. See Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); State v. Paige, 934 So.2d 595 (Fla. 5th DCA 2006); Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005). Using that standard, and giving, as we must, “great deference” to the issuing judge’s determination that probable cause existed (provided there is a substantial basis for the determination), we conclude that the trial court erred in granting the motion to suppress. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Article I, Section 12 of the Florida Constitution requires that a search warrant be supported by a sworn affidavit, and that the search be in conformity with the Fourth Amendment to the United States Constitution. In issuing a search warrant a magistrate looks only within the four corners of the affidavit and must find based on that affidavit that a reasonable probability exists, given the totality of the circumstances and a common sense assessment, that evidence of a crime will be found at the place to be searched. Salyers v. State, 920 So.2d 747, 749 (Fla. 5th DCA 2006). In order to establish probable cause to issue a search warrant, the affidavit must show: (1) that a particular person has committed a crime (the “commission element”), and (2) that evidence of the probable criminal activity is likely to be found at a particular location to be searched (the “nexus element”). Id. at 749; see also State v. Jenkins, 910 So.2d 934, 936 (Fla. 2d DCA 2005) (an affidavit in support of a search warrant must contain a commission element and a nexus element).

The first basis for the trial court’s suppression of the fruits of the search in the present case was that the information contained in the affidavit supporting the warrant was stale. The period that had elapsed between the transmission of the three images to the officer in Maryland and the execution of the search warrant in Orlando was about five and one-half months. Although the issuing magistrate obviously felt that this elapsed time was not excessive, the trial judge concluded that information that old was legally stale. While we certainly understand the position adopted by the trial judge, we think the magistrate got it right.

It is well-accepted, of course, that an affidavit must establish the particular time when the illegal activity that is the subject of the warrant was observed. See Jenkins, 910 So.2d at 937. A magistrate is required to know this specific time because the length of time between the activity and the date of issuance bears on whether there is probable cause to believe that the items to be seized will still be found at the place to be searched. Id. The longer the time period, the less likely it is that the items sought to be seized will be found at the place listed in the affidavit. Id. As the time period increases, it is said that the evidence becomes stale. A rule of thumb that seems to be recognized by courts as the standard for staleness is thirty days. Fletcher v. State, 787 So.2d 232, 234 (Fla. 2d DCA), review denied, 796 So.2d 537 (Fla.2001). There is nothing particularly magical about thirty days, however. As our sister court in the Fourth District has indicated, “whether information is too stale to establish probable cause to support a search warrant is not to be determined solely by the rigid application of a pre-determined time period.” Cruz v. State, 788 So.2d 375 (Fla. 4th DCA 2001). Depending on the particularized circumstances as evaluated by an impartial magistrate, an acceptable elapsed time may certainly be more or less than thirty days. A specific lapse of time is not controlling on the issue of staleness and does not invariably render a search warrant stale. Brachlow v. State, 907 So.2d 626, 629 (Fla. 4th DCA 2005). We have judges making this determination because it requires an exercise of judgment.

Staleness should be evaluated in light of the particular facts of a given casé, the nature of the criminal activity, and the evidence hoped to be found. United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997), cert. denied, 523 U.S. 1101, 118 S.Ct. 1571, 140 L.Ed.2d 804 (1998). Information contained in an affidavit in support of a search warrant is not stale if “there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises.” Id. at 746. Similarly, items that are consumable, such as proscribed drugs, for example, may become stale sooner than non-consumable items such as video tapes. See Brachlow, 907 So.2d at 629.

Of particular interest for purposes of the analysis of the present case is the opinion of the United States Court of Appeals for the Ninth Circuit in Lacy. There, the Court of Appeals upheld a defendant’s conviction for possessing child pornography despite a search warrant that issued on information that was ten months old. U.S. customs officials were notified that child pornography from a Danish computer bulletin board system had been brought into the United States via computer. A Danish computer service had records of sixteen phone calls and several downloads by a Seattle man who identified himself as “Jim Bakker.” Customs agents traced the calls to the apartment of the defendant, and upon executing a search warrant, agents seized the defendant’s computer and found child pornography on its hard drive. In the search warrant affidavit, a trained and experienced customs agent explained that persons who collect and distribute child pornography consider their materials to be of high value, and rarely, if ever, dispose of them. Such materials are often stored for long periods of time in secure places, such as the collector’s home. The federal court rejected the assumption that such material is kept indefinitely, but found that it was reasonable to assume that the downloaded images would still be in the defendant’s apartment ten months later. Id.

A number of courts have agreed that expert information concerning the retention habits of child pornography collectors is one of the factors that may influence a decision on staleness. In United States v. Wagers, 339 F.Supp.2d 934, 941 (E.D.Ky.2004), affirmed, 452 F.3d 534 (6th Cir.2006), for example, the court noted that “In child pornography cases, courts have repeatedly recognized that collectors of child pornography tend to retain their materials.” See also United States v. Cox, 190 F.Supp.2d 330 (N.D.N.Y.2002); State v. Evers, 175 N.J. 355, 815 A.2d 432 (2003); State v. Lindgren, 275 Wis.2d 851, 687 N.W.2d 60, review denied, 276 Wis.2d 28, 689 N.W.2d 56 (Wis.2004). See generally Clancy, “The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and A Primer,” 75 Miss. L.J. 193, 248 (2005). In United States v. Lamb, 945 F.Supp. 441, 460 (N.D.N.Y.1996), the federal court further explained:

Since the [child pornography] materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.

In the present case the affidavit supporting the warrant discusses in detail the expertise and background of the affiant, as well as the affiant’s opinion regarding the propensity of collectors of child pornography to retain images for extended periods. Among many other things the affidavit indicates that persons such as Mr. Felix “rarely, if ever, dispose of their sexually explicit materials,” and “rarely destroy correspondence received from other people with similar interests unless they are specifically requested to do so.”

We conclude that no bright line time period should apply to a staleness analysis in cases such as this. We conclude, as well, that after the passage of some period of time, staleness of the information contained in the affidavit will most certainly invalidate a warrant issued upon it. But not here. In the present case the information contained in the affidavit was about five and one-half months old when the warrant was issued. Given the information in the affidavit, and in considering the totality of the circumstances, we find ourselves in agreement with the magistrate who issued the warrant, and we disagree with the trial judge who concluded that the information was stale.

From a review of the cases it appears that five and one-half months is not an exceptional time lapse between the date of the information contained in the affidavit and the issuance of the warrant. In Lacy, for example, the information was ten months old. In United States v. Hay, 231 F.3d 630 (9th Cir.2000), cert. denied, 534 U.S. 858, 122 S.Ct. 135, 151 L.Ed.2d 88 (2001), the information was six months old. In Hause v. Commonwealth, 83 S.W.3d 1 (Ky.App.2001), it was 178 days old, and in Lamb it was five months old; see also United States v. McCall, 740 F.2d 1331 (4th Cir.1984). Thus, in considering the factors surrounding the affidavit and warrant in this case, we conclude that the information was not stale.

The second significant basis upon which the trial court granted the motion to suppress was that the “affidavit here fails to establish whether the place to be search [sic] was where the criminal act took place and whether the computer used was located at Defendant’s new residence.” That is to say, the trial court concluded that the information provided in the affidavit did not provide a sufficient nexus between an individual’s possession of child pornography on a computer, and the place to be searched, the residence of the owner of the computer. Thus, in the view of the trial court, probable cause did not exist because of a failure of the “nexus” element discussed earlier. See Salyers, 920 So.2d at 749.

Here, according to the affidavit, law enforcement personnel researched the Internet Protocol address of the internet user who sent the three pornographic images to the Maryland undercover site, and found the internet profile associated with the sender, including a photograph of the person associated with the profile. The profile of the sender using the screen name, truebrother999, was eventually further researched by virtue of a subpoena to Bright House Networks, the internet service provider. The appellee, Victor Felix, was identified as the person in question. Law enforcement then located Mr. Felix’s photograph and address from his driver’s license information, but learned that he had moved to a new address. The detective then visited the apartment complex to which Mr. Felix had purportedly moved, and verified that Mr. Felix lived there. The warrant authorized a search of the then current residence of Mr. Felix.

It seems quite clear that the place that housed Mr. Felix’s computer at the time that truebrother999 sent the three images is not the house that was searched. Instead, the search took place in a new location where the appellee then resided. While the trial judge found that this consideration invalidated the warrant as a matter of law, we do not come to the same conclusion. Computers are used in homes, businesses, and almost anywhere else they can be carried. It is reasonable to believe, however, that a fixed computer will most likely remain in the residence of its owner. See Lamb; Evers. In Wagers the court noted that while the Internet Protocol account holder:

had access to the internet from many locations ... his residence and business locations are certainly the most likely and suspect locations through which he would have accessed the internet. The question, then, is not whether he did or did not access child pornography through the suspect sites from those physical addresses, but rather ... whether there is a “fair probability” that evidence or fruits of criminal wrongdoing would be found.

Similarly, in State v. Brennan, 674 N.W.2d 200 (Minn.Ct.App.2004), the court reasoned that looking at and possessing child pornography is by its nature “a solitary and secretive crime.” It concluded that a reasonable inference could be drawn when issuing a warrant that a suspect would keep computer based images of child pornography in a secret and safe place, like a home. See also United States v. Chrobak, 289 F.3d 1043 (8th Cir.2002); Hay, 231 F.3d at 636 (holding that where affidavit showed that suspect received pornographic images at an internet address assigned to him at his apartment, affiant’s statement that persons who possess and transport pornography do not dispose of the sexually explicit material and generally have additional images was sufficient to support probable cause for warrant to search suspect’s apartment).

In the present case it was reasonable to assume that even after five and one-half months, Mr. Felix would still be in possession of the images that he uploaded from his computer onto the Maryland police website, and that his computer would be in his residence. The issuing magistrate in determining whether or not to issue a search warrant is charged with making a “practical, common sense decision” concerning whether there is a “fair probability” that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A valid search warrant does not require that there exist direct proof that the objects of the search are located in the place to be searched. See State v. Weil, 877 So.2d 803, 804 (Fla. 5th DCA), review denied, 889 So.2d 72 (Fla.2004). Given the information contained in the affidavit, the crime being investigated, the nature of the items being sought, and the normal and common sense inferences regarding where one might keep such items, we agree with the issuing magistrate that there was a fair probability that the alleged pornographic images would be found on the computer in the residence of Mr. Felix. We, accordingly, find no fault in the issuance of the search warrant, and reverse the order of the trial court granting the motion of Mr. Felix to suppress.

REVERSED.

SAWAYA and EVANDER, JJ„ concur.


author: DAVIS, J. BROWNING, C.J.,

text:
    Alandrey Peral BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4718.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Rehearing Denied Nov. 20, 2006.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

This is an appeal from Appellant’s convictions for battery on a law enforcement officer, resisting an officer with violence, and possession of cocaine. Appellant raised several issues on appeal including whether the trial court erred by denying Appellant’s motions for a continuance. Because we find that the trial court did not abuse its discretion by denying the motions and because we find no error as to the other issues raised by Appellant, we affirm.

Appellant was arrested on March 15, 2005, and a public defender was appointed to represent him the following .day. On June 2, 2005, the trial court conferred with the prosecutor and the public defender and scheduled the trial for July 11, 2005. On June 28, 2005, the court allowed Appellant to substitute private counsel, Mr. Sessions, for the public defender and private counsel requested a continuance at that time. The trial court indicated that the court’s policy was “that when people retain private counsel after the case has been set for trial, I usually don’t continue the trial. So when you come aboard at the last minute, Mr. Sessions, you come aboard at the peril of having to go to trial rather quicMy.” The trial court denied the motion for continuance.

On July 7, 2005, Appellant filed a second motion for continuance in order to review the public defender’s file, attempt to locate a prospective witness, and pursue any additional information. The prosecutor opposed the motion because the depositions were completed. The court found that defense counsel’s problems were attributable to Appellant’s retention of private counsel on the eve of trial and denied the motion.

On July 11, 2005, Appellant filed a third motion for continuance in order to review the public defender’s file, attempt to locate a new prospective witness, and investigate possible bias of state witnesses. Counsel also informed the court that he recently learned about a prospective witness that morning and he had not yet had a chance to contact that person. The prosecutor opposed the motion and argued that Appellant’s motion showed that counsel had already investigated the case. The trial court again denied the motion because Appellant waited until ten days prior to the trial to hire private counsel. Prior to opening statements, Appellant’s counsel asked for a continuance because he was unable to reach two witnesses. The trial court denied the motion because Appellant had been represented by counsel since the day after his arrest.

The denial of a motion for a continuance is reviewed under an abuse of discretion standard. Overton v. State, 801 So.2d 877, 896 (Fla.2001). The trial court’s denial of counsel’s motion “should be sustained unless no reasonable person would take the view adopted by the trial court.” Id. When reviewing a trial court’s denial of a motion for continuance based on lack preparation time, this court must consider the following factors:

1) the time available for preparation, 2) the likelihood of prejudice from the denial, 3) the defendant’s role in shortening preparation time, 4) the complexity of the case, 5) the availability of discovery, 6) the adequacy of counsel actually provided and 7) the skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986).

Neither party specifically argued McKay nor any other cases during the motion hearings; however, the factors listed in McKay were essentially argued before the court. As shown by the trial court’s statement concerning its policy, the court considered the role Appellant played in shortening counsel’s time for preparation. Appellant waited until a few weeks prior to his trial date to obtain substitute counsel. At one point, Appellant explained that he retained private counsel because he had never been in communication with his public defender; however, Appellant’s own statement indicated that he was aware of this alleged lack of communication prior to the case being set for trial. Appellant also waited until one day prior to the trial to inform counsel about additional prospective witnesses.

Another factor discussed in McKay is the availability of discovery. From the record, it appears that the majority of the discovery was completed prior to the substitution of counsel and that counsel was able to review this information prior to the trial. While counsel may not have had his desired amount of time to prepare for the case, counsel managed to conduct extensive investigation on his own by visiting the scene of the crime and interviewing potential witnesses. In his second motion for a continuance, counsel actually demonstrates his own readiness for trial by stating that he had “investigated the site of the arrest in this case on two occasions, located and produced for deposition an eyewitness to the arrest in this case, interviewed an additional prospective witness for the defense, deposed one of the police officers involved in the arrest in this case, analyzed the testimony of said officer and other information received from the State, commenced drafting both a Motion to Suppress and Motion to Dismiss, and met with the Assistant State attorney in this case on two occasions to discuss possible settlement of this matter.” Counsel also managed to prepare and argue a motion for suppression. Considering the amount of counsel’s preparation, it does not appear that Appellant was prejudiced by the denial of the motions for continuance.

This case was also very straightforward. Two police officers witnessed Appellant conducting what appeared to be a drug transaction in the middle of the street. The officers approached Appellant to ask why he was standing in the middle of the street. After determining that Appellant had no outstanding warrants, Appellant was instructed that he was free to go. One of the officers asked Appellant for, and Appellant gave, his consent to search his person. "When the officer found a bag of cocaine, Appellant started trying to pull away from the officer and struck both officers during a struggle that was witnessed by three citizens, whose testimony corroborated the police officers’ testimony.

WTiile it is true that the trial court made reference to a policy to deny motions for a continuance when they were made after a late substitution of counsel, this does not mean that the trial court did not properly exercise its discretion. The trial court allowed Appellant to argue not one but four motions for continuances. The trial court also heard arguments on the issues listed in McKay. Based on the record before this court, it appears that the trial court did exercise its discretion and properly denied the motions. We therefore affirm Appellant’s convictions and sentences.

AFFIRMED.

KAHN, J., concurs.

BROWNING, C.J., dissents with written opinion.

BROWNING, C.J.,

dissents.

I respectfully dissent from the majority opinion because the trial court reversibly erred by applying a personal policy instead of binding precedent to Appellant’s four motions for continuance.

On March 15, 2005, Appellant was arrested and was charged with a battery on a law enforcement officer, resisting an officer with violence, and possession of cocaine. A public defender was appointed to represent Appellant on March 16, 2005. When he was represented by the public defender, a July 11, 2005, trial date was set at a scheduling conference.

On June 28, 2005, the trial court authorized a substitution of private counsel for the public defender. That same day, private counsel moved for a continuance to enable him to conduct discovery and prepare for trial. The state did not oppose the motion. However, the trial court denied the motion and stated “that when people retain private counsel after the case has been set for trial, I usually don’t continue the trial. So when you came on board at the last minute, Mr. Sessions, you come aboard at the peril of having to go to trial rather quickly.” Aso, the trial court opined that counsel’s rescheduling conflict should have been considered before he agreed to represent Appellant. The trial court did not mention the seven factors this court has enunciated as controlling decisions granting or denying continuances by trial courts. See McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986).

On July 7, 2005, Appellant again moved for a continuance. The trial court denied the motion and opined that defense counsel’s problems were attributable to Appellant’s retaining private counsel on the eve of trial. Once again, the trial court failed to mention the seven McKay factors and opined:

And again, as I said before, it’s my policy that people that wait until the last minute to retain private counsel don’t get any continuances.

Again, on July 11, 2005, Appellant filed a third motion for continuance because private counsel had learned of two witnesses, whom he had been unable to contact; the state opposed that continuance. The trial court denied the motion on the same basis: its policy relating to continuances when private counsel is hired after a trial date has been previously scheduled. The trial court again failed to mention and apply the McKay factors.

Finally, at trial, prior to opening statements, Appellant moved for a fourth continuance because he was unable to reach two witnesses. The trial judge followed his personal policy rather than the McKay factors and denied the motion because Appellant had been represented by counsel since March 15, 2005, and refused to consider that private counsel was not retained until June 28, 2005.

In my judgment, the trial court reversibly erred by entering the orders denying Appellant’s four motions for continuance based upon a personal policy rather than upon controlling precedent.

In McKay this court established seven factors that a trial court should consider when ruling on a motion for continuance. These factors do not include the personal policy of a trial court, but all of them relate to ensuring that a defendant be afforded a fair trial. Because these factors were not applied here, this court is without a discretionary act to review.

The state in its answer brief does not attempt to justify the basis for the trial court’s decision on Appellant’s four motions for a continuance; it argues in avoidance that the Appellant cannot show prejudice. However, the paramount consideration is the significance of the trial court’s failure to apply the McKay factors, leaving this court with no act to review and thereby placed in a position making it difficult, if not impossible, to make an informed decision based on prejudice. There is a dearth of authority on this specific issue in Florida. However, Appellant cites Buschardt v. Jones, 998 S.W.2d 791 (Mo.App.1999), which is instructive. That court, when dealing with the same issue couched in a domestic case, stated:

A judge’s decision on visitation is to be an exercise of the judge’s discretion after properly weighing all the relevant facts, not a decision based on a predetermined policy. By having a policy that a certain provision is to be entered in every case, the judge abused his discretion by failing to exercise it.

Id. at 800. It seems to me that this principle is axiomatic and should be adopted and applied to this case.

Also, I am unpersuaded by the state’s argument that the error is not harmful beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The reason for a continuance is to give a defendant ample time to prepare his or her case. If such time is not afforded, a defendant’s preparation is curtailed and witnesses are unavailable, making it difficult to show prejudice. This could have been avoided by the trial court’s consideration of the seven factors specified in McKay. Since this was not done, I cannot say beyond a reasonable doubt under DiGuilio that Appellant was not prejudiced by the trial court’s personal policy. Moreover, under DiGuilio this is a defense that the state, not Appellant, must prove beyond a reasonable doubt, after error is established.

While not directly argued by the Appellant, there is a salient factor that supports this dissent’s rationale. Recently, the U.S. Supreme Court reaffirmed the revered right to private counsel and reversed, on the basis of structural error, a trial court that disallowed a choice of private counsel. United States v. Gonzalez-Lopez, — U.S. -, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). While that case is not factually controlling here, it vividly points out the inappropriateness of allowing a personal policy to adversely affect a defendant’s right to private counsel, as here.

Finally, the majority opinion deems the trial court’s verbal basis for its rulings to be less persuasive than non-verbal facts and circumstances gleaned from the record that the trial court deemed insignificant by failing to address or consider them. Apparently, the majority opinion fails to grasp that we are not dealing with an exercise of judicial discretion here, but with a total abdication of that approach for one of a trial court’s personal policy. I know that fact, without doubt, because that is what the trial court said on, not one, not two, not three, but four separate occasions four separate days. On the face of these emphatic, clear, and unequivocal pronouncements, for the majority opinion to conclude that the trial court “did exercise its discretion and properly denied the motions” perplexes me. I believe that proper appellate review dictates that we give words their ordinary meaning and recognize that words do mean something. What the trial court’s words mean to me is that it prejudged Appellant’s four motions without regard to how those factors deemed significant in the majority opinion weighed. To follow the majority opinion’s recasting of the trial court’s ruling, I believe, condones future usage of personal policies by trial courts if such policies can be supported by the presence in the record of unconsidered circumstances that might support a lawful ruling had judicial discretion been exercised. Because this leads to speculation and inconsistent results by a downplaying of unequivocal verbal expressions, I am unconvinced by the majority opinion.

I am not unaware of the time constraints of the hard-working trial courts of this state. Their dockets are full to the extent of being almost unmanageable, and there is great pressure to disallow requests that hinder quick resolution of cases. Continuances often complicate the problem. However, this dilemma cannot eclipse the goal of a fair trial. When considering this same issue, our sister court, the Fifth District Court of Appeal, properly prioritized the factors involved in the case of Trocola v. State, 867 So.2d 1229 (Fla. 5th DCA 2004), and stated:

Trial courts are under constant pressure to move cases through the criminal justice system. All judges are fully aware that unless cases are efficiently processed, the burden of backlog begins to choke, and unwanted delays multiply exponentially[.] One of our primary functions, however, is to make sure that trials are fair. We cannot lose sight of that laudable goal in the name of expediency.

Id. at 1232.

Here the trial court violated that delicate balance by following a personal policy rather than the law, and I would reverse and remand for a new trial.