author: VILLANTI, Judge. FULMER, Chief Judge,

text:
    Larry Edward HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2640.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2006.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Larry Hicks challenges his convictions for burglary (count 1) and grand theft (count 2), which were entered after he pleaded no contest to the charges and reserved his right to appeal the trial court’s denial of his dispositive motion to suppress. On appeal, Hicks argues that the search of files on a laptop computer found in his car violated his Fourth Amendment rights. We affirm the trial court’s denial of Hicks’ motion to suppress because Hicks failed to establish that he had a reasonable expectation of privacy in the stolen laptop and thus failed to establish that his Fourth Amendment rights were violated. We write to discuss the state of the law concerning a defendant’s reasonable expectation of privacy in stolen property, an issue previously addressed in Florida only in the context of stolen vehicles.

The charges against Hicks stem from an incident in which an officer in an unmarked police car, Deputy Wfiiitney, was conducting a surveillance investigation for burglaries and vandalism in a residential area. At 2:35 a.m., on September 8, 2002, Deputy Whitney observed a white car occupied by two males. The car had its interior light turned on and was stopping in front of multiple residences. The car did not have a tag displayed. The driver of the car stopped at one residence, shut off the headlights, reversed, pulled into the driveway of another residence, stayed for three to five minutes, reversed, and then drove down the street without headlights. Deputy Whitney initially thought that the car belonged to a newspaper delivery man, but when it passed him, he saw that there were no newspapers in the car. His suspicions aroused, Deputy Whitney called for a marked police car to stop the white car based on his observations. Two officers in marked cars, Deputy McKee and Sergeant Perkins, arrived within two to three minutes, and they also observed the white car driving without headlights or a visible tag. Deputy McKee initiated a traffic stop, approached, and asked the driver, Hicks, for his driver’s license, registration, and proof of insurance. Hicks replied that he did not have any of the requested items with him. Deputy McKee asked Hicks what he was doing in the area. Hicks replied that “he was looking for J.R.” but was unable to provide J.R.’s last name, phone number, address, or age. Deputy McKee then asked to search the car. Hicks responded, “Why not? Go ahead, you are not going to find anything.”

In searching the car and its trunk, Deputy McKee found an “abundance of property that was located throughout the vehicle,” including a CD player, a leaf blower, a weed-eater, a gold heart locket, a dolphin bracelet, and black flashlights, among other things. Sergeant Perkins also found mail with someone else’s address on it. The address to which the mail was directed was located nearby. Upon finding the mail, Sergeant Perkins went to the addressee’s house, spoke to the addressee, and determined that Hicks did not have permission to take the mail. Sergeant Perkins brought the addressee to the scene of the traffic stop, and the addressee said that he did not recognize Hicks or the other man in the car.

Sergeant Perkins also found a briefcase in the backseat containing a laptop computer. At some point, Hicks told the officers that his uncle in Orlando had given him the computer. More deputies responded to the scene, including Deputy Ogg. When Deputy Ogg arrived, he learned that there was some suspected stolen property in the white car. Deputy Ogg noticed the computer sitting on the outside of the trunk. Believing “[t]here was prior consent to search the vehicle and objects therein,” he turned on the computer and started browsing the files “to locate a possible owner.”

Hicks filed a motion to suppress statements made to law enforcement agents and to suppress the property recovered in the search of his car, including the computer. Hicks argued that the search of the computer files exceeded the scope of his consent to search the car. The State argued that Hicks did not have a reasonable expectation of privacy in the computer and, alternatively, that the search was consensual and the officer had probable cause. The trial court determined that it could deny the motion on probable cause grounds, concluding that Deputy McKee had “probable cause to search the vehicle (inclusive of unlocked containers and trunk) without [Hicks’] consent based on the well founded belief that [Hicks] was loitering and prowling.” Hicks entered a no contest plea to the charges against him and reserved his right to appeal the trial court’s denial of his motion to suppress, which the trial court ruled was dispositive. On appeal, Hicks addresses only the seizure of the computer — arguing that the trial court’s reasoning was incorrect.

‘When reviewing a trial court’s ruling on a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, while the trial court’s application of the law to those facts is reviewed de novo.” State v. D.D.D., 908 So.2d 1180, 1181 (Fla. 2d DCA 2005) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and Caso v. State, 524 So.2d 422 (Fla.1988)). Here, Fourth Amendment law supports the trial court’s decision to deny Hicks’ motion to suppress the evidence obtained from the search of the computer. As the State argued below, Hicks did not have a reasonable expectation of privacy in a computer that he did not lawfully possess and to which he asserted no property or possessory interest at the suppression hearing.

The United States Supreme Court has held that Fourth Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also Dean v. State, 478 So.2d 38, 40 (Fla.1985). Whether a defendant has a reasonable expectation of privacy is a threshold inquiry. Rakas, 439 U.S. 128, 99 S.Ct. 421. A search violates a defendant’s Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

There are cases from jurisdictions throughout the United States holding that a person does not have a reasonable expectation of privacy in a stolen vehicle. See, e.g., Hall v. State, 820 So.2d 113, 133 (Ala.Crim.App.1999); United States v. Hensel, 672 F.2d 578 (6th Cir.1982); United States v. Hargrove, 647 F.2d 411 (4th Cir.1981). In Florida, the supreme court held that a defendant does not have a reasonable expectation of privacy in a stolen vehicle and thus cannot contest the search of the vehicle; a defendant can contest only the initial stop because the stop involves the seizure of the person. State v. Singleton, 595 So.2d 44 (Fla.1992). These cases do not limit their holdings to vehicles nor do they distinguish between vehicles and other objects.

There are at least four cases nationwide that explicitly hold that a person does not have a reasonable privacy expectation in stolen property other than a vehicle— United States v. Caymen, 404 F.3d 1196, 1200 (9th Cir.2005); United States v. Wong, 334 F.3d 831 (9th Cir.2003); United States v. Lyons, 992 F.2d 1029, 1031-32 (10th Cir.1993); Pennywell v. State, 84 S.W.3d 841 (Tex.App.2002) — although there is no case in Florida that does so.

In Pennywell, the defendant moved to suppress a stolen brown bag containing stolen property on the grounds that the officer lacked either probable cause to arrest the defendant or reasonable suspicion sufficient to justify detaining the defendant. In discussing the stolen bag, the Texas appellate court held that “a thief s mere possession of stolen property does not give rise to any expectation of privacy that society is prepared to accept as reasonable.” Id. at 844.

In Lyons, 992 F.2d 1029, the Tenth Circuit discussed a defendant’s expectation of privacy in stolen hard disks. In Lyons, the Federal Bureau of Investigation was investigating computer theft at a corporation. During the execution of a warrant to search Lyons’ home, FBI agents found stolen equipment, including hard disks belonging to the corporation. Under FBI supervision, the corporation’s technician searched the contents of the hard disks without obtaining a separate warrant. The technician discovered several programs stored on the disks that were apparently also stolen from the corporation. The Tenth Circuit held that Lyons failed to meet the “threshold requirement of demonstrating an expectation of privacy in the property searched [stolen hard disks].” Id. at 1032. The Tenth Circuit further held that “[i]n the absence of any evidence of’ an “actual, subjective expectation of privacy,” it would not even reach the issue of whether the expectation would have been reasonable. Id. at 1031-32. Lyons could not establish a violation of his Fourth Amendment rights.

In Caymen, 404 F.3d 1196, police officers suspected Caymen of stealing a laptop computer by credit card fraud. The police discovered a computer in Caymen’s room. Caymen claimed that the computer was his. Not believing him, the police called a computer store that had reported a stolen laptop computer and asked the store manager to consent to a search of the computer’s hard drive. Without a warrant, the police officers searched the hard drive and found child pornography. Caymen moved to suppress the evidence. The Ninth Circuit held that because Caymen “did not submit an affidavit or other evidence supporting his claim that he had honestly purchased and owned the laptop,” he failed to establish a reasonable expectation of privacy in the stolen computer. Id. at 1200. The Ninth Circuit reasoned:

The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of the stolen property, such an expectation is not one that “society is prepared to accept as reasonable.” A legitimate expectation of privacy means more than a subjective expectation of not being discovered. We held in United States v. Wong that a person lacks a reasonable expectation of privacy in the contents of a laptop computer he stole. Similarly, several of our sister circuits have held that a person who steals a car does not have a reasonable expectation of privacy that entitles him to suppress what is found in a search of the stolen car.

Id. at 1200 (footnotes omitted).

As the Ninth Circuit recognized, it had a similar holding in Wong, 334 F.3d 831. In a small paragraph at the end of its opinion, the Ninth Circuit noted that Wong could not object to the search of a laptop computer that belonged to a former employer because Wong did not have a reasonable expectation of privacy in the computer. Id. at 839 (“[A] person does not have a reasonable expectation of privacy in an item in which he has no possessory or ownership interest[.]”) (citing United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir.2000)).

Our research has disclosed only one case that specifically refused to find that a defendant had no reasonable expectation of privacy in property determined to be stolen: McFerguson v. United States, 770 A.2d 66, 71-72 (D.C.2001). In McFerguson, officers saw two men matching a very general description frantically running in an area where a burglary had just been reported. One man was carrying a red plastic bag. After police officers stopped the men, one officer reached into the bag and opened it so that he “could see what was in there.” Id. at 70. The officer saw what appeared to be a couple of cameras and a CD player, later determined to be stolen. The court rejected the government’s argument that the defendant had no reasonable expectation of privacy in the stolen bag containing stolen objects. Id. at 71-72.

McFerguson’s logic is inapplicable here for two reasons. First, the computer located in the briefcase in the backseat of Hicks’ car was not ‘sufficiently physically connected with [Hicks’] person to fall properly under the umbrella of protection of personal privacy,’” as was the McFerguson defendant’s red plastic bag. See id. at 71 (quoting Godfrey v. United States, 408 A.2d 1244, 1246-4R (D.C.1979)). Second, the McFerguson court was concerned with the government’s emphasis on the defendant’s status as “a burglar” and the bag’s “stolen” contents, reasoning that those assumed labels should not dictate whether the defendant could move to suppress the evidence. However, the Florida Supreme Court has already done exactly that in the context of stolen vehicles. See Singleton, 595 So.2d 44. Further, McFerguson never actually discussed the test articulated by the United States Supreme Court — whether the defendant had an actual, subjective expectation of privacy that society was prepared to accept as reasonable in the recently stolen red plastic bag. 770 A.2d 66.

Hicks cites an unpublished opinion, State v. Washington, 110 Wash.App. 1012, 2002 WL 104492, at *3 (Wash.Ct.App. Jan. 28, 2002), in which a Washington appellate court upheld the suppression of the contents of a laptop computer searched without a warrant after it was taken into police custody. Hicks suggests that the discussion of probable cause in Washington is very insightful. In Washington, the court reached the question of probable cause only because the State conceded that, under Washington’s doctrine of automatic standing, a defendant could challenge the search of property in which he had no lawful possessory interest. Id. at ⅜2 n. 2.

Automatic standing gives a defendant the right to challenge a search of property in which he has no lawful posses-sory interest if the charged offense involves possession as an essential element and the defendant possessed the object at the time of the search. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Washington noted that the United States Supreme Court had abandoned the automatic standing rule in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), but the Washington Supreme Court had repeatedly affirmed the rule’s validity. The same is not true in Florida. In State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981), and State v. Loeffler, 410 So.2d 589, 591 (Fla. 2d DCA 1982), this court found that Salvucci was controlling and rejected the automatic standing rule. Also, the State here never conceded that Hicks met his burden of establishing that his Fourth Amendment rights had been violated. Unlike the court in Washington, we do not reach Hicks’ arguments concerning probable cause because he failed to meet the threshold inquiry that he had a reasonable expectation of privacy in the computer’s contents.

Hicks never carried his burden of proof that his Fourth Amendment rights were violated, as discussed by the Ninth and Tenth Circuits and as held in Florida in stolen vehicle cases. Notably, Hicks did not contest the initial traffic stop, and he failed to establish a reasonable expectation of privacy in the stolen computer. Although Hicks stated at the scene of the traffic stop that his “uncle from Orlando” gave him the computer, Hicks never introduced any evidence at the suppression hearing; for example, how long.he had used the computer or whether he had any programs on it. See Lyons, 992 F.2d at 1031-32 (“In the absence of any evidence of any right or interest in these items, [the defendant fails] to meet the threshold requirement of demonstrating an expectation of privacy in the property searched.”). Only the officers testified at the suppression hearing. Accordingly, Hicks failed to demonstrate an actual, subjective expectation of privacy in the computer. Hicks could not contest the search of the computer’s files. See Singleton, 595 So.2d 44. Even if Hicks had demonstrated an expectation of privacy, he would still have to establish that society would have accepted such an expectation as reasonable — an unlikely scenario. In view of our holding, we need not address Hicks’ arguments regarding consent and probable cause.

We affirm the trial court’s judgments and sentences on counts 1 and 2 entered after it denied Hicks’ motion to suppress evidence found after an officer perused the files on the computer’s hard drive — not because of a bright line rule that thieves never have a reasonable expectation of privacy in stolen property but because Hicks failed to carry his burden of proof that his Fourth Amendment rights were violated. We also affirm Hicks’ convictions for two counts of trespass, three counts of petit/retail theft, and one count of loitering or prowling because he has not raised any argument on appeal concerning those convictions.

Affirmed.

WALLACE, J., Concurs.

FULMER, C.J., Dissents with opinion.

FULMER, Chief Judge,

Dissenting.

I respectfully dissent. Hicks moved to suppress numerous items that were recovered from his vehicle. At the initial suppression hearing held on November 18, 2003, the trial court asked the State if it was ready to proceed with its witnesses, and the State indicated it was ready to present four witnesses. The State then presented the testimony of four officers who took part in the traffic stop and detention of Hicks. The State did not assert at this hearing that Hicks lacked a reasonable expectation of privacy in the laptop computer.

The first witness, Officer Whitney, testified that he directed another officer to stop the vehicle after he observed the suspicious actions of the driver. After the car was stopped, Officer Whitney proceeded to the location of the stop to conduct a loitering and prowling investigation. Officer Whitney questioned Hicks and testified to statements that Hicks made in response to questioning. According to Officer Whitney, “[Hicks] had told me that he was with his friend, the passenger[,] all day watching games at his house. And he also told me that the lap top that was in his vehicle was given to him by his uncle in Orlando.”

The next witness, Officer McKee, testified that he made the traffic stop after he was contacted by Officer Whitney in regard to the driver’s suspicious actions. After making the stop, Officer McKee asked Hicks for consent to search the vehicle. In the search of the vehicle, Officer McKee located the laptop. The following colloquy occurred at the hearing:

Q. [by prosecutor]: Okay. Now, did you locate a computer in the car?
A. [by officer]: Yes, yes Sir.
Q. Uh, through your investigation at any point was the computer turned on?
A. Yes, Sir.
Q. Now was this after the consent to search and charges of grand theft [of mail] had been placed on Mr. Hicks?
A. This was after the consent and the charges of theft, yes Sir.
Q. Okay. Was it determined that the computer was also stolen?
A. It was.
Q. So, the computer did not belong to Mr. Hicks?
A. Correct.

Officer Perkins next testified for the State. He participated in the search of the vehicle. In regard to the laptop, he testified, “In the back of the vehicle I located a computer. But, later identified that as being taken during a burglary.” On cross-examination, Officer Perkins testified that he located the laptop in a briefcase in the backseat but he did not remember being the one who pulled the computer out of the car. On redirect, the State asked, “During your investigation did you determine that the computer was stolen?” The officer answered, ‘Tes, we did.”

The final witness, Officer Ogg, testified that when he arrived at the scene, the computer was sitting on the trunk. He testified:

A. [by officer]: I turned the computer on and started browsing the files to locate a possible owner.
Q. And did you locate a possible owner?
A. Yes, I did.
Q. Was the owner Larry Hicks?
A. No.
Q. Was the owner [the passenger]?
A. No, it was not.
Q. Who did you determine to be the owner of that?
A. Susan McDonald.
Q. And did you confirm that she was the owner of that computer?
A. At that exact time, no I did not.
Q. Later on through the investigation was it determined?
A. Yes.
Q. Was it also determined that Mr. Hicks or [the passenger] did not have permission to have that computer?
A. Yes it was.

The State rested, and the defense did not present any witnesses. The court ended the hearing, indicating that arguments would be heard at a later date.

The hearing resumed on November 20, 2003, for closing arguments. The defense asserted that Hicks’ consent to search the vehicle did not extend to the search of the laptop computer or the trunk. The State argued that Hicks did “not have standing to object to stolen property.” It argued, “he has no standing to object to the search of the computer bag. Because, it did not belong to him.” The defense responded that Hicks owned the car and had an expectation of privacy within his own car. It argued that the issue was whether the consent to search the car included consent to open the laptop computer and boot it up. The parties proceeded to argue extensively on the consent issue. The State then again argued that Hicks did not have standing to contest the search of the laptop because it did not belong to him. The court asked whether search incident to arrest was a justification. The prosecutor responded that Hicks was not under arrest at the time of the consent and search. However, the prosecutor argued, there was probable cause to search the car.

The court took the matter under advisement and later issued a written ruling denying the motion. The trial court concluded:

The Defendant contends that the search was premised on the Deputy requesting and receiving consent to search the vehicle of the Defendant. Without addressing the arguments raised by the Defendant concerning the search exceeding the consent given, this Motion can be decided on probable cause grounds. Upon receiving information from Deputy Whitney and from the observations by Deputy McKee of the Defendant driving in a residential area without lights at 2:40 a.m.; the Defendant not being able to produce a driver license, registration or insurance documentation; and upon the failure of the Defendant sufficiently explaining his presence, did not remove the fear the officer had for the safety of persons and property in the area. Based on the aforementioned circumstances, Deputy McKee had probable cause to search the vehicle (inclusive of unlocked containers and trunk) without Defendant’s consent based on the well founded belief that the Defendant was loitering and prowling.

The majority concludes that the trial court’s reason for denying the motion was incorrect, yet affirmance is required because the trial court’s denial of the motion to suppress was right for the wrong reason. As noted by the majority, the State did not argue in this court, as it did below, that the trial court should have denied the motion based on Hicks’ failure to demonstrate a reasonable expectation of privacy in the laptop. Nevertheless, the majority reasons that because the State raised the argument below that Hicks lacked a reasonable expectation of privacy in the laptop computer and Hicks did not take the witness stand to assert an ownership interest in the computer, the trial court was required to deny the motion to suppress.

I would remand this case for further proceedings in order for the trial court to make an express ruling on the threshold question of whether Hicks has a reasonable expectation of privacy in the laptop. This issue is generally considered a mixed question of law and fact. See United States v. Gonzalez, Inc., 412 F.3d 1102, 1116 (9th Cir.2005); United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir.2000). It should be addressed in the first instance by the trial judge. See State v. Deferance, 807 So.2d 806 (Fla. 4th DCA 2002).

Here, the State assumed the initial burden of proof at the hearing, ostensibly waiving its right to challenge Hicks on the threshold issue. The evidentiary portion of the hearing had concluded by the time the State raised the issue and argued that Hicks had not shown a reasonable expectation of privacy in the laptop. Therefore, on remand, I would direct that Hicks be given the opportunity to present additional evidence should he so choose in order to satisfy his burden.

      . Hicks also pleaded no contest to and was adjudicated guilty of two counts of trespass, three counts of petit/retail theft, and one count of loitering or prowling. However, Hicks’ argument on appeal pertains to only counts 1 and 2, the convictions arising out of the seizure of a laptop computer from Hicks' car. Hicks has therefore abandoned any arguments pertaining to the other convictions.

      .The State argued to the trial court, "And the issue still is standing! — ]Mr. Hicks does not have standing to contest a search of stolen property. If he wants to contest the search of his car that is fine. But, he cannot sit here and say I am contesting the search of property that did not belong to me.” Thus, the State gave Hicks the opportunity to respond to this issue and the trial court an opportunity to rule on it even though the State did not specifically raise this issue in its answer brief. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) ("Th[e] longstanding principle of appellate law, sometimes referred to as the 'tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as ‘there is any basis which would support the judgment in the record.’ ”) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999)); Aberdeen Golf & Country Club v. Bliss Constr., Inc., 932 So.2d 235, 239, n. 6, 2005 WL 2138798 (Fla. 4th DCA Sept. 7, 2005) ("The fact that the [appellee's] brief does not specifically argue the [issue] is inconsequential. A trial court’s decision will be upheld on appeal if any legal theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Applegate requires us to consider any theory on appeal that would sustain the trial court’s decision, so long as it is consistent with the facts on which the decision was based.”).

      . In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court also discarded reliance on the separate term "standing” in determining whether a defendant is entitled to claim the protections of the exclusionary rule. Although the term "standing” is still used in some cases, after Raleas, the inquiry should focus simply on whether the defendant's rights were violated by the allegedly illegal search or seizure. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

      . The police officer's subjective beliefs are inconsequential to the analysis because the focus of the test is on the defendant’s subjective expectation of privacy. Wayne LaFave, Search & Seizure § 11.3(e), at 204 (4th ed. 2004) ("The officer's belief and the reasonableness of it, of course, are of considerable significance if there is occasion to reach the merits and determine if the search was lawful, but it has no bearing upon the question of standing. A person’s standing depends upon his justified expectation of privacy, and this is not determined upon the basis of what the police believe or even necessarily upon the actual facts.”).

      . In reaching this result, the majority appears to discount Officer Whitney's testimony that Hicks told him at the scene that the laptop was given to him by an uncle. In contrast, the majority assumes as true the officers’ allegations that the laptop was stolen, although no basis for this knowledge is in the record.


source: Caselaw Access Project

author: ROTHENBERG, Judge.

license: Public Domain

text:
    Jonathan ROSE, Appellant, v. Elizabeth R. HANSELL, Appellee.
    No. 3D05-1015.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Jonathan Rose, in proper person.
    Behar, Gutt & Glazer and Lee A. Watson and Ryan D. Gesten, Jacksonville, for appellee.
    Before LEVY, RAMIREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Jonathan Rose appeals a Final Summary Judgment on Plaintiffs Complaint for Partition of Real Property. The plaintiff, Elizabeth R. Hansell, and the defendant, Mr. Rose, are a brother and sister who became joint tenants of a condominium after the death of their mother. Ms. Hansell filed a complaint for partition of the property, and ultimately filed a motion for summary judgment on the partition complaint, requesting that the court order a sale of the property. The trial court granted the summary judgment, and appointed a special master to sell the property. Mr. Rose appeals. We affirm. .

The general rule is that partition is a matter of right, but there are rare exceptions. Condrey v. Condrey, 92 So.2d 423, 426 (Fla.1957). In Condrey, an elderly couple conveyed their property, creating a tenancy in common between themselves and their son and daughter-in-law, because the son and daughter-in-law were living with them, contributing to their living expenses, and had invested money in the property. 92 So.2d at 425. The conveyance was made in order to protect the parents and the son and his wife, and the lower court found that there was an agreement not to partition the land during the life of any of the co-tenants. Id. at 426-27. Later, due to “family differences,” the son and his wife moved out and filed a suit to partition the property. Id. at 424-25. The trial court denied the petition for partition. Id. at 425. The Florida Supreme Court affirmed, finding that equity would not be done by ordering the partition. Id. at 427. The Florida Supreme Court noted that the parents were “elderly citizens, neither completely whole in physical health nor able to support themselves,” and found that it was not conceivable that they intended, by conveying their property into a joint-tenancy, to put themselves in a position to be forced from their home or to surrender the right to live there. Id. Therefore, the Florida Supreme Court concluded that the lower court had the discretion to refuse to grant partition, but noted that courts should exercise such discretion only in extreme cases or where manifest injustice, fraud or oppression will result if partition is granted. Id.

In the instant case, Mr. Rose argues that manifest injustice or oppression would result if the partition is allowed to stand without modification of the time, manner and conditions of partition. In an affidavit filed below in response to the motion for summary judgment, he explained that he has “congestive heart failure and diabetes with some kidney involvement,” and that he “would like to be able to live out [his] days overlooking [his] mother’s ocean.” He also explained that, by working on two lawsuits, he helped his mother acquire money for “support in her old age,” that he initially negotiated the sale of the condo for his mother, that he was with his mother for half of the last year that she lived, and that he helped with her medical problems.

Although this evidence portrays Mr. Rose in a sympathetic light, it does not support a finding that granting partition would result in a manifest injustice such as existed in Condrey. Unlike Condrey, this case does not involve parties opposing partition who were the original owners of the property before conveying it into a tenancy in common with the party seeking partition. Therefore, the Florida Supreme Court’s reasoning, that the defendants in Condrey could not have intended to put themselves in a position to be forced from their home, does not apply here. Also, unlike Condrey, there is no evidence in the record provided of an agreement between Mr. Rose and his sister not to partition the land, and there is no evidence that Mr. Rose is unable to support himself. With no evidence supporting that partition would result in a manifest injustice, the trial court was correct in granting the summary judgment for partition.

When a court grants a partition, it may order a sale only when it finds that the property sought to be partitioned is indivisible and is not subject to partition without prejudice to its owners. § 64.061(4), Fla. Stat (2005); Thompson v. Mitchell, 429 So.2d 388 (Fla. 1st DCA 1983); Carlsen v. Carlsen, 346 So.2d 132, 133 (Fla. 2d DCA 1977). In the instant case, the trial court made such a finding. On appeal, Mr. Rose argues that the trial court could have partitioned the property. The record that he provided, however, contains no evidence that the condominium was partitionable, or that the condominium board would have authorized the partitioning of the condo. As the appellant, Mr. Rose was required to provide an adequate record to support his appeal, and it is his burden to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980); Chisholm v. Chisholm, 538 So.2d 961 (Fla. 3d DCA 1989). As he has not met his burden of demonstrating, by facts in the record, that the trial court erred in finding that the condominium was not partitionable and in appointing a special master to sell the property, we affirm the trial courts order.

Affirmed.


author: FLETCHER, Judge.

text:
    UNITED GRAND CONDOMINIUM OWNERS, INC., et al., Appellants, v. The GRAND CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D05-1627.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Eric M. Glazer (Hallandale), for appellants.
    Phillips, Eisinger & Brown and Jed L. Frankel (Hollywood), for appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   FLETCHER, Judge.

This case involves a dispute between condominium unit owners and a condominium association at the Grand, a mixed use condominium complex which contains 810 residential units, 141 retail units, 259 commercial units and a parking unit. Several residential unit owners organized a nonprofit corporation, United Grand Condominium Owners, Inc. [U.G.C. Owners], in order to challenge the developer’s continued control of the association. U.G.C. Owners contend that the association is controlled by the developer as a result of an illegal class voting system.

Considering the best defense to be an offense, the association filed an action in circuit court against U.G.C. Owners seeking injunctive relief and damages for U.G.C. Owners’ passing out and posting flyers around the complex and holding meetings in the residential units. U.G.C. Owners moved to dismiss the complaint predicated upon the association’s failure to satisfy a condition precedent to filing suit in circuit court, i.e., the filing of a petition with the Division of Florida Land Sales, Condominiums and Mobile Homes [the Agency] for non-binding arbitration pursuant to section 718.1255, Florida Statutes (2004). In this appeal, the U.G.C. Owners seek review of the denial of their motion seeking dismissal.

Section 718.1255(4)(a), Florida Statutes (2004), requires that “[p]rior to the institution of court litigation, a party to a dispute shall petition the division for nonbinding arbitration.” “Dispute” is defined as:

“[A]ny disagreement between two or more parties that involves:
(a) The authority of the board of directors, under this chapter or association document to:
1. Require any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto.”

§ 718.1255(1), Fla. Stat. (2004). In accordance with authority granted in the statute, the Agency had enacted a rule that no petition for arbitration would be accepted by the Agency unless the dispute arises regarding a residential cooperative or condominium, and involves a residential unit or units. Fla. Admin. Code. R. 61B-45.013(8). In fact, in a related case involving the Grand condominium, the Agency dismissed a petition for arbitration citing this rule because the Grand is a mixed use rather than a residential condominium. Cantwell v. Grand Condo. Ass’n, No. 2004-03-1188, 2004 WL 3395091 (July 1, 2004)(Mnookin, Arb.)

An administrative agency’s interpretation of a statute which it is legislatively charged with administering is entitled to great weight and should not be overturned unless clearly erroneous. See, e.g., Brenner v. Department of Banking and Finance, 892 So.2d 1129 (Fla. 3d DCA 2004); Cone v. State, Dept. of Health, 886 So.2d 1007 (Fla. 1st DCA 2004). We find nothing in the Agency’s rule which conflicts with its legislative mandate. We, therefore, affirm the trial court’s denial of the motion to dismiss finding that Section 718.1255 is not applicable to this case.

Affirmed.


author: PER CURIAM.

text:
    Bruce Michael FREEDMAN and Delores Freedman, Appellant, v. Carlos DE LA CUESTA and Geico General Insurance Company, Appellee.
    Nos. 3D04-1151, 3D04-1637.
    District Court of Appeal of Florida, Third District.
    March 22, 2006.
    Rehearing Denied June 7, 2006.

      Lauri Waldman Ross, Miami; Julie A. Hager, Ft. Lauderdale, for appellant.
    Clark, Robb, Mason, Coulombe, Busch-man & Cecere and James K. Clark; Adams & Adams, LLP, and Joel V. Lu-mer, and Richard B. Adams, Jr., Miami, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

We affirm the final judgment entered against the plaintiffs in this personal injury, negligent driving case, finding no merit to either point raised on appeal. The record does not demonstrate any abuse of discretion in the trial court’s admission of the expert’s opinion and testimony. Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981). The plaintiffs knew about the expert, and were aware that she would testify. Moreover, the testimony was based on information listed in the expert’s report. There can be no claim that this testimony came as a surprise to plaintiffs. Binger; Melrose Nursery, Inc. v. Hunt, 443 So.2d 441 (Fla. 3d DCA 1984). In view of the entire trial, we cannot conclude the court abused its discretion.

Additionally, the court did not abuse its discretion in denying the new trial motion based on juror non-disclosure. Roberts v. Tejada, 814 So.2d 334, 340 (Fla.2002); State Farm, Fire & Cas. Ins. Co. v. Levine, 875 So.2d 663, 666 (Fla. 3d DCA 2004). Here, there was no showing that the nondisclosure was “substantial and important” so that had the facts been known, plaintiffs would have exercised a peremptory challenge on the jurors. Roberts, 814 So.2d at 341.

Affirmed.


text:
    Gary COHEN, as Trustee of the Trust Agreement known as Trust No. 75-LT-21 and Two Islands Development Corp., Appellants, v. Steven LEEDS, Appellee.
    No. 3D05-143.
    District Court of Appeal of Florida, Third District.
    March 29, 2006.
    Rehearing Denied June 8, 2006.

      Wasson & Associates and Roy D. Was-son and Annabel C. Majewski, Miami; William C. Hearon, for appellants.
    Adorno & Yoss and Jack R. Reiter and Jeffrey A. Backman, Fort Lauderdale; Robert Cooper, Aventura, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Miller v. Greene, 104 So.2d 457 (Fla.1958)(holding that quantum meruit recovery is proper where one furnishes services to another, which are of benefit to the recipient, under an invalid or unenforceable contract).


author: SUAREZ, Judge. SCHWARTZ, Senior Judge

text:
    The STATE of Florida, Appellant, v. Audria Diane GENSLER, Appellee.
    No. 3D04-3277.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Rehearing and Rehearing En Banc Denied June 8, 2006.

      Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellant.

      Dunlap & Silvers and Marcia J. Silvers, Miami, for appellee.
    Before SUAREZ and C0RTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, Judge.

This is an appeal from an order granting the defendant’s Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss the State’s prosecution of a vehicular homicide charge brought pursuant to section 782.071, Florida Statutes (1999). The defendant contends on appeal that the trial court was correct in granting the motion because the undisputed facts did not establish that the victim of the homicide died as a result of the conduct on the part of the defendant which constitutes vehicular homicide. The State contends that the undisputed facts are sufficient to establish a prima facie case of the offense of vehicular homicide. We reverse the order granting the motion to dismiss.

The accident occurred on May 4, 2000. The relevant facts, as alleged in the motion to dismiss, show that at approximately 3:15 a.m., on a dry, clear night, Police Officer Gensler, the defendant, was traveling northbound on South Dixie Highway in an area with no street lights near Southwest 220th Street, where the posted speed limit was forty-five miles per hour. Pedestrians crossed South Dixie Highway without using the designated crosswalk to go to and from the food market, which was located one block off the Highway. Although many businesses were closed that evening, the food market was open. Officer Gen-sler, dispatched as a back-up officer to a call, proceeded through the intersection where the traffic light was flashing a yellow signal. According to an accident reconstruction expert, her speed was approximately ninety miles per hour. She struck and killed the victim, Robin Ivy, who was approximately four to five feet into the right traffic lane and just north of the crosswalk. At the time of the collision, the victim had alcohol and cocaine in her body.

The defendant was initially charged by information with manslaughter. She was convicted of the lesser included offense of vehicular homicide. This court reversed the conviction, based on a number of evidentiary errors, and remanded the case for a new trial. See Gensler v. State, 868 So.2d 557 (Fla. 3d DCA 2004). The State now appeals the trial court’s granting of the defendant’s Motion to Dismiss.

The State argues that the undisputed material facts are sufficient to establish a prima facie case of vehicular homicide. We agree. As long as the State shows the barest prima facie case, it should not be prevented from prosecuting. Jalbert v. State, 906 So.2d 337 (Fla. 5th DCA 2005); State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002)(citing State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984)). A motion to dismiss should rarely be granted, State v. Carroll, 404 So.2d 844 (Fla. 5th DCA 1981), and granted only when the facts and inferences arising there from, taken in the light most favorable to the State, see State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985); State v. Patel, 453 So.2d 218 (Fla. 5th DCA 1984), do not establish a prima facie case. See also Boler v. State, 678 So.2d 319 (Fla.1996); State v. Horton, 442 So.2d 408 (Fla. 2d DCA 1983). We find that the facts, taken in the light most favorable to the State, establish a prima facie case of vehicular homicide which is reserved for the jury on the issue of proximate cause and therefore reverse the order granting the motion to dismiss.

The elements of vehicular homicide under section 782.071, Florida Statutes (1999), are (1) that the defendant must operate a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another, and (2) that the reckless operation of the motor vehicle must be the proximate cause of the death of the human being. Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA 1990).

1. In determining whether a defendant is driving recklessly, the issue is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as are likely to cause death or great bodily harm. D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005); Michel v. State, 752 So.2d 6 (Fla. 5th DCA 2000). The focus is on the actions of the defendant and, considering the circumstances, whether it was reasonably foreseeable that death or great bodily harm could result. See D.E., 904 So.2d at 562. Viewed in the light most favorable to the State and based on the fact that the defendant was traveling at a speed of ninety miles per hour— way over the posted speed limit of forty-five miles per hour — on a federal highway, at 3:00 a.m. where the street lights were out, coupled with the fact that she willfully disregarded a flashing, yellow traffic signal at the intersection one block from an open convenience store, we find that the State established a prima facie case of recklessness on the part of the defendant — likely to cause the death of, or great bodily harm to another. McCreary v. State, 371 So.2d 1024 (Fla.1979); D.E., 904 So.2d at 563; Moye v. State, 571 So.2d 113 (Fla. 4th DCA 1990); see Michel v. State, 752 So.2d at 6. As such, the recklessness issue is within the province of the jury and not subject to a motion to dismiss. State v. Sheppard, 401 So.2d 944 (Fla. 5th DCA 1981)(recklessness and proximate cause under vehicular homicide statute to be resolved by jury and not on motion to dismiss).

2. In determining whether the State presented a prima facie case that the defendant’s reckless operation of the motor vehicle was the proximate cause of the death of the victim, it becomes necessary to determine whether the harm that occurred was within the scope of the danger created by the defendant’s negligent conduct. Hodges v. State, 661 So.2d 107 (Fla. 3d DCA 1995); M.C.J. v. State, 444 So.2d 1001 (Fla. 1st DCA 1984). “Although a person does not have to foresee the specific circumstances causing the death of the victim, the person must have reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm.” D.E., 904 So.2d at 562. We conclude that, taking into account all of the record facts, including excessive speed, prima facie evidence exists that the harm caused was within the scope of the danger created.

The defendant urges that the material facts do not demonstrate that the defendant’s conduct was the sole proximate cause of the accident. As part of this contention, she argues that the wrongful conduct of the defendant cannot be deemed the proximate cause of the homicide because her wrongful conduct was superseded by the victim’s own independent intervening act — that the impairment caused by the alcohol and drugs may have been responsible for her entering the highway at an unmarked location resulting in the accident and her death. Unless it can be said that the victim’s conduct was the sole proximate cause of the homicide, or unless there is some reason why it would be unjust or unfair to impose criminal liability, the decedent’s conduct does not supersede the defendant’s conduct as the proximate cause of the homicide. D.E., 904 So.2d at 563; Union v. State, 642 So.2d 91 (Fla. 1st DCA 1994); Moye v. State, 571 So.2d at 113; Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980); McCreary v. State, 371 So.2d at 1024; see Michel v. State, 752 So.2d at 6. See also Nunez v. State, 721 So.2d 346 (Fla. 2d DCA 1998)(victim’s riding in back of pickup truck not sole proximate cause of accident in prosecution for vehicular homicide); Brimmer v. State, 541 So.2d 1307 (Fla. 4th DCA 1989)(victim’s inattention to traffic not sole proximate cause of accident in vehicular homicide prosecution); Palmer v. State, 451 So.2d 500 (Fla. 5th DCA 1984)(decedent’s blood alcohol level not sole proximate cause of vehicular homicide prosecution); Everett v. State, 435 So.2d 955 (Fla. 1st DCA 1983)(not reasonable to conclude that conduct of decedent who was jay-walking in an unlighted area the sole proximate cause of manslaughter by culpable negligence).

Where a party by his wrongful conduct creates a condition of peril, his action can properly be found to be the proximate cause of a resulting injury, even though later events which combined to cause the injury may also be classified as negligent, so long as the later act is something which can reasonably be expected to follow in the natural sequence of events. Moreover, where reasonable minds might differ as to whether it was the creation of the dangerous condition (defendant’s conduct) which was the proximate cause, or whether it was some subsequent act [impaired conduct of the decedent], the question is for the trier of fact to determine.

State v. Hallett, 619 P.2d 335, 339 (Utah 1980); State v. Augustin M., 133 N.M. 636, 68 P.3d 182 (2003)(on motion to dismiss grand jury indictment for vehicular homicide, question of proximate cause of the death of intoxicated victim reserved for trial by jury), cert. granted, 133 N.M. 727, 69 P.3d 237 (2003), cert. quashed, 135 N.M. 170, 86 P.3d 48 (2004).

Therefore, we find that the State presented a prima facie case demonstrating that the defendant’s conduct, speeding excessively and ignoring a yellow flashing signal in a business district on a darkened highway at 3:00 a.m., was the proximate cause of the accident. We further conclude that the State has presented a prima facie case of vehicular homicide showing that the victim’s death was within the scope of danger created by the defendant’s reckless driving. Moreover, the issue of whether the harm that occurred was within the scope of the danger created by the defendant’s negligent conduct is a jury question which involves factual determinations, such as whether the excessive speed prevented the defendant from seeing the victim in time to avoid the collision — proper for a jury to analyze and resolve. The trial court should not decide disputed issues of fact inherent in the defendant’s motion to dismiss. State v. Fordham, 465 So.2d 580 (Fla. 5th DCA 1985), and cases cited. Whether Gensler’s conduct was reckless and the proximate cause of the death of the victim are jury issues not properly resolved on motion to dismiss. State v. Sheppard, 401 So.2d at 944.

In consideration of the record facts stated in the motion to dismiss and based upon the foregoing authorities, we reverse the trial court’s order granting the defendant’s motion to dismiss.

Reversed and remanded.

CORTIÑAS, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I might agree with the court’s merciless destruction of the straw notions that the victim’s conduct was the “sole proximate cause” of her own death and that the striking of a pedestrian is not in the “scope of the risk” generally created by a driver’s excessive speed. I dissent from reversal, however, because the record contains no evidence of the most basic, core requirement of criminal liability: that the defendant’s recklessness was a legal cause of the death — or, putting it in the alternative, familiar way — that the death would not have occurred “but for” that recklessness. See Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA 1990), cause dismissed, 569 So.2d 1280 (Fla.1990), and review denied, 570 So.2d 1306 (Fla.1990). On this ground, which I believe involves the real issue in the case, I would affirm the judgment below.

In essence, there is no indication, in fact no way of knowing, that the victim would not have been killed if the defendant’s vehicle had been traveling at a non-reckless speed above or even within the speed limit. See Gensler v. State, 868 So.2d 557, 560 n. 2 (Fla. 3d DCA 2004)(Schwartz, C.J., specially concurring in part, dissenting in part). As we know from the cases and from common knowledge and experience, many persons in the victim’s desperate situation, trapped without her faculties in the middle of a busy highway in the dead of night, are struck and killed by vehicles which are not even carelessly, let alone recklessly, operated. See House v. State, 831 So.2d 1230, 1233 (Fla. 2d DCA 2002)(“Speed alone will not support a charge of vehicular homicide. The only evidence of the manner in which House was driving at the time he collided with [the victim] is that he was speeding.”) (citation omitted); see also State v. Del Rio, 854 So.2d 692 (Fla. 2d DCA 2003); State v. Esposito, 642 So.2d 25 (Fla. 4th DCA 1994). There is nothing but pure speculation to support the conclusion that this accident was not one of them in the absence of any showing as to (a) how long Ms. Ivey had been in the roadway; (b) where she had come from; (c) how she had gotten there; or (d) whether, by way of expert testimony or otherwise, either she or the defendant would have been able to avoid'the death if the latter’s speed had been reduced by 10, 20 or 30 miles per hour. No citation of authority is required to establish that a criminal conviction cannot be justified on this basis. See Thompson v. State, 108 Fla. 370, 372, 146 So. 201, 202 (1933); Lemming v. State, 159 So.2d 486, 487 (Fla. 2d DCA 1964); Walling v. Lingelbach, 33 Ill.App.3d 949, 338 N.E.2d 917, 920 (1975), affirmed, 65 Ill.2d 244, 2 Ill.Dec. 363, 357 N.E.2d 530 (1976); Iowa v. Wieskamp, 490 N.W.2d 566, 567 (Iowa Ct.App.1992); Walker v. Edwards, 2004 WL 2601713 (Mich.Ct.App. Nov. 16, 2004)(unpublished); New York v. Holt, 109 A.D.2d 174, 491 N.Y.S.2d 526, 528 (N.Y.App.Div.1985), appeal denied, 66 N.Y.2d 615, 494 N.Y.S.2d 1038, 485 N.E.2d 242 (1985); Ohio v. Vaught, 56 Ohio St.2d 93, 382 N.E.2d 213, 214-15 (1978); Metcalf v. Texas, 171 Tex.Crim. 269, 347 S.W.2d 618, 619 (1961); see also W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989); Connecticut v. Benson, 5 Conn.Cir. Ct. 316, 251 A.2d 185 (1968); Michigan v. Banes, 182 Mich. 179, 148 N.W. 400 (1914); Pennsylvania v. Sisca, 245 Pa.Super. 125, 369 A.2d 325 (1976); cf. Daigle v. State, 848 So.2d 1233, 1234 (Fla. 2d DCA 2003), review denied, 898 So.2d 937 (Fla.2005).

      . 782.071 Vehicular homicide. — "Vehicular homicide” is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.
      § 782.071, Fla. Stat. (1999).

      . The defendant’s reliance on the fact that the medical examiner stated that, if the officer's patrol car had been traveling at the speed limit, there was a possibility that the victim would have died anyhow, is a proximate cause question and does not negate the conclusion that excessive speed and other circumstances surrounding the accident created issues on the proximate cause of the vehicular homicide to be decided by the jury.

      . It is significant that at the trial which resulted in the conviction we reversed in Gensler v. State, 868 So.2d 557 (Fla. 3d DCA 2004), there was expert testimony that a "normal” person in the victim’s. position could have reacted and avoided the accident if Ms. Gen-sler had not been traveling at a high speed. However, there was no evidence as to any such ability by one in the victim's actual, abnormal condition. See Gensler, 868 So.2d at 560 & n. 2(Schwartz, C.J., specially concurring in part, dissenting in part).

      . "[W]here violation of a statute or ordinance is relied on to prove that there was negligence in the infliction of injuries or death, the causal connection between the violation of the statute or ordinance and the injury or death inflicted, must be established. And in criminal cases it must be established beyond a reasonable doubt. In this case it is not clear beyond a reasonable doubt that the mere violation of the state statute prohibiting the parking of motor vehicles on the highway caused the death of the driver of one of the colliding vehicles.” Thompson, 108 Fla. at 372, 146 So. at 202 (citation omitted).

      . "In point two the appellant questions the sufficiency of the evidence to show that at the time of the accident he was guilty of culpable negligence. We must rule for the appellant on this issue, as we find insufficient evidence to sustain the charge. Notwithstanding that the jury found that appellant was drunk at the time of the homicide, and that the car he was driving did strike the deceased, we are nevertheless shown no facts from which he could be deemed guilty of culpable negligence. The record bears out the fact that the death was caused by defendant's car, but by what means or in what manner, it is impossible to state— possibly the deceased was struck in the roadway, or conceivably he could have stepped out in front of the car, or it could have been a multitude of things, none of which could possibly have constituted culpable negligence.” Lemming, 159 So.2d at 487.

      . "But even if Mrs. Strahorn’s speed, and suggested momentary lapse in attention, and her failure to sound her horn could constitute negligence, there is absolutely no evidence from which the jury could have concluded that the accident would not have occurred but for the negligence of Mrs. Strahorn.” Walling, 338 N.E.2d at 920.

      . "There is no evidence in the record that places the victim at the time she was struck other than at a point forty feet west of the intersection. There is no evidence in the record that an approaching motorist would have been able to see a person lying on the roadway until their headlights illuminated the person. There is no evidence in the record to dispute Sgt. Sellars’ opinion testimony that a sober person would not have seen the victim until they were right on top of them.’ There is no evidence in the record to indicate that the victim attempted to sit up until just prior to the impact. We find as a matter of law that a sober person driving with reasonable care would have struck and killed the victim in this case.” Wieskamp, 490 N.W.2d at 567.

      . "[E]ven if defendant was not exceeding the speed limit by five miles an hour, the collision and plaintiff’s injuries would have occurred and no reasonable jury could infer otherwise. ... Plaintiff has failed to proffer any evidence to establish that “but for” defendant's speeding,- plaintiff’s injuries would not have occurred.” Walker, 2004 WL 2601713, at *1 (citation omitted).

      . The "proof was insufficient to permit the jury to draw the inference that defendant’s criminal negligence caused the death of a person.” Holt, 491 N.Y.S.2d at 528.

      . "[I]f the record shows an absence of suffi■cient evidence of such causal link between appellant's driving speed and the victim's death i.e., that appellant reached the point where the accident occurred before the Mound Street light turned red the conviction must be overturned.... [T]he evidence with respect to the issue of whether any negligence on the part of defendant was the proximate cause of the victim’s death is insufficient as a matter of law to sustain the conviction.” Vaught, 382 N.E.2d at 214-15.

      . " 'There is nothing in the record to suggest that the collision would not have occurred with the same results had the truck been traveling at [fifty-five] miles per hour instead ' of [sixty]. No other negligent act or omission on the part of appellant is shown save excessive speed.' ” Metcalf, 347 S.W.2d at 619 (quoting Hubbard v. Texas, 167 Tex.Crim. 379, 320 S.W.2d 835, 836 (1959)(same; thirty-five instead of thirty miles per hour)).


author: WARNER, J.

text:
    George Greg REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1853.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.
    Rehearing Denied June 8, 2006.
    Patsy Zimmerman and Bruce L. Udolf of Ruden, MeClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The trial court denied the appellant’s motion for postconviction DNA testing of evidence without a hearing, concluding that there was no reasonable probability that the movant would be acquitted or that he would have received a lesser sentence had the DNA testing occurred. We reverse, concluding that the appellant has alleged a facially sufficient claim.

The appellant, George Reddick, was convicted in 1985 of first degree murder and sexual battery of a seven-year-old girl who was staying in the same home as Reddick and several other people. No physical evidence was found linking Reddick to the crime. According to Reddick’s motion, the sole testimony against him was the questionable identification of the victim’s sister who testified that she saw Reddick take the victim out of a window. However, this testimony was equivocal, as the witness apparently at first denied seeing anything, and at another time named another individual. Reddick maintained his innocence of the crime and asserted that another occupant of the home was the likely perpetrator.

In 2003, Reddick filed his motion for DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. He recited the detailed facts and investigation of the case and listed the evidence for which he sought DNA testing. He also maintained his innocence and that the identity of the perpetrator was contested. He noted that in 1985 DNA testing was not available and none of the items had been tested other than for fingerprint analysis and semen analysis. Those tests failed to produce any results.

Reddick listed four categories of items to be tested for DNA: (1) his clothing; (2) items found near the victim’s body, including beer cans, a plastic bottle, and a cup; (3) sweepings of the victim’s body, consisting of swabs of the vagina, rectum, and mouth; scalp hair, and fingernail clippings; and (4) the victim’s clothing, including her pajama bottoms, panties, etc. As to his clothing, he stated that if DNA testing revealed no skin cells from the victim, it would exonerate him, as such cells would have to be on his clothing if he lifted her out of the house as the victim’s sister testified. As to the items surrounding the victim’s body, they might reveal that the victim was penetrated by a foreign object. DNA testing which did not reveal any of Reddick’s DNA on such objects would create a reasonable probability that he was not in the area and did not use any of the objects to rape or murder the child. With respect to the victim’s clothing, he alleged that if they revealed no DNA from Red-dick, this too would exonerate him of any rape, because skin cells would be present on the victim’s pajamas if the perpetrator forcibly removed them, as was the testimony by experts. Finally, as to the victim’s swabbings, these may reveal the DNA of the perpetrator, given the number of wounds and abrasions on the victim, particularly with respect to the fingernail clippings. Further, the rape of the victim would create DNA evidence, even if no semen was present.

The state responded, admitting the existence of the evidence sought to be tested. However, it claimed that Reddick’s motion simply amounted to speculation that the clothing would have any DNA evidence on it or that the swabs would reveal any DNA. It suggested that the testing of Reddick’s own clothing would not offer probative evidence in that the absence of the victim’s DNA would be irrelevant. Finally, it also questioned the probative value of finding the victim’s DNA on the bottles and cups around the victim’s body.

Without conducting an evidentiary hearing, the court denied the motion. The court found that the items were available for testing and that the results would likely be admissible at trial. However, it concluded that there was no reasonable probability that Reddick would be acquitted or would receive a lesser sentence, adopting the state’s response. It did not refer to the trial transcript or other portions of the record to support its conclusion.

In denying the motion without a hearing, the court must have assumed that it was legally insufficient for failing to show how the evidence would exonerate Reddick or lessen his sentence. However, as in Schofield v. State, 861 So.2d 1244 (Fla. 2d DCA 2003), we conclude that the motion was facially sufficient and alleged how he would be exonerated, at least as to some of the categories of evidence. Identity was a disputed issue at trial, given the questionable eyewitness identification and the state’s failure in its responses to refute that claim. See Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002). With respect to the swabs of the victim’s body and her clothes, the presence of the perpetrator’s DNA is likely, as she was brutally beaten and sexually assaulted. If DNA testing confirms the presence of DNA of someone other than Reddick from the vagina, rectum, mouth or fingernail swabs, those results surely would create a reasonable probability that Reddick would be acquitted of the charges. Id. at 1062-63. Although the state contends that there is no reason to suspect that testable skin cells or DNA would be found, that is not the criteria. What rule 3.853 requires the court to find is “[wjhether it has been shown that physical evidence that may contain DNA still exists.” Fla. R.Crim. P. 3.853(c)(5)(A) (emphasis added). The court made that finding in its order.

As to DNA testing of Reddick’s clothing, we agree that Reddick has failed to show how there would be a reasonable probability that he would be acquitted if the victim’s DNA were not found on his clothing. Reddick has presented nothing to show that testable skin cells or other material would necessarily transfer to the clothing. Further, Reddick admits that his clothing was not delivered to the police until sometime significantly after the commencement of the investigation. Even if there was no evidence of the victim’s DNA on Reddick’s clothing, given the passage of time and the possibility that the clothes were not in the same condition as they were on the night of the incident, it is apparent that this evidence would not reasonably result in an acquittal.

We also agree that Reddick did not adequately explain why the testing of the beer bottle, cup, and other material found around the body would exonerate him. The victim was found under a bush. No fingerprints were found on any of -the surrounding items, nor were any of them tied to either the rape or the murder. In fact, there is nothing in the motion or the record before us which would indicate that these items were in any way connected to the crime, and instead were merely present under the bush when the body was found. We thus conclude that the motion was legally insufficient as to these items.

We therefore reverse and remand for further proceedings as the trial court erred in concluding that the motion was facially insufficient as to the testing of the victim’s body sweepings and clothing. Should the trial court conclude on remand that the trial transcript conclusively demonstrates that identity was not an issue or that Reddick will not be exonerated by DNA testing based upon the trial evidence, then the court should include that evidence in the record for appellate review. See Riley v. State, 851 So.2d 811 (Fla. 2d DCA 2003). If it cannot so conclude, then it must either conduct an evidentiary hearing on the issue or enter an order granting the motion as to the victim’s clothing and body sweepings, as the state concedes the existence and testability of the victim’s body sweepings and clothing.

STONE and MAY, JJ., concur.


text:
    Sandra P. ERICKSON and Ray E. Erickson, Appellant, v. J & J INDUSTRIES, INC., Appellee.
    No. 5D05-2723.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.
    Rehearing Denied May 18, 2006.
    David La Croix, Brooksville, for Appellant.
    Angela C. Flowers of Kubieki Draper, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Simpson v. Simpson, 232 So.2d 249, 250 (Fla. 1st DCA 1970) (noting when the evidence shows that there was an invisible substance (within a pool of water) which caused a party to slip and fall, negligence (including comparative negligence) becomes a question for the jury); Stock v. Gross, 186 So.2d 827, 829 (Fla. 4th DCA 1966) (noting where the condition created by the defendant constituted a hidden trap (within an obviously dangerous condition such as a wet walkway), the facts presented a classic case for a jury decision as to plaintiffs contributory negligence); see also St. Pierre v. Public Gas Co., 423 So.2d 949, 951 (Fla. 3d DCA 1982) (“The question of apportioning the negligence between the plaintiff and the defendant is ... peculiarly within the province of the jury.... ”).

THOMPSON, SAWAYA, and LAWSON, JJ., concur.


text:
    Terrence ENNIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-707.
    District Court of Appeal of Florida, Third District.
    April 17, 2006.
    Terrence Ennis, pro se.
    Charles J. Crist, Attorney General, for appellee.
    Before GERSTEN, FLETCHER and CORTIÑAS, JJ.
   PER CURIAM.

Terrence Ennis (“Ennis”), seeks a belated appeal, pursuant to Florida Rule of Appellate Procedure 9.141(c). Ennis claims that he requested counsel to file a notice of appeal in his criminal case 03-160, and that counsel failed to do so. We deny the petition because Ennis did not swear to it as required by law. See Fla. R.App. P. 9.141(c)(3)(f); Cosby v. State, 911 So.2d 275 (Fla. 5th DCA 2005). Accordingly, we deny the petition without prejudice to Ennis filing a properly sworn petition.

Petition for belated appeal denied.


text:
    Roges EXAUS, Appellant, v. Valerie DANIELS, Appellee.
    No. 4D05-1889.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Rehearing Denied June 12, 2006.
    Roges Exaus, Riviera Beach, pro se.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Dep’t of Revenue v. Harris, 684 So.2d 231 (Fla. 2d DCA 1996).

WARNER, GROSS and HAZOURI, JJ., concur.


author: FARMER, J.

text:
    Scot R. PETERSON, Appellant, v. Rosemarie PETERSON, Appellee.
    No. 4D05-1359.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.
    Rehearing Denied June 6, 2006.

      Scot R. Peterson, Margate, pro se.
    No appearance for appellee.
   FARMER, J.

This is the third appeal in this dissolution of marriage case concerning the award of permanent alimony. Peterson v. Peterson, 818 So.2d 683 (Fla. 4th DCA 2002); Peterson v. Peterson, 882 So.2d 528 (Fla. 4th DCA 2004). This appeal is from a successor judge’s attempt to comply with our directive for more specific findings relating to the alimony issue.

From the husband’s net monthly income of $3,663, the court has awarded monthly child support of $1,572 and permanent alimony of $1,000. This amounts to more than 70% of his disposable income. Both are in their late thirties. She testified as to a goal of receiving a bachelor’s degree in education within 5 years.

In this case, the broad discretion rule of Canakaris is somewhat mitigated by the circumstance that we as appellate judges are in nearly as good of a position to assess the issue as the successor judge found himself. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). We find the award an abuse of discretion, at least in the sense that all of the alimony is deemed permanent and none of it rehabilitative. Given the relative youth of the parties and the fact that this is a “gray area” case for alimony purposes.(14 year marriage), we do not think the record supports the decision to make all of the alimony permanent. While we pay our required deference by leaving the total amount undisturbed, we reverse the designation of monthly alimony as all permanent and remand with instructions to make $500 of it rehabilitative.

POLEN and TAYLOR, JJ., concur.


text:
    Thomas Perry WELLS, Jr., Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 4D05-2294.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Rehearing Denied June 6, 2006.
    Thomas Perry Wells, Jr., Indiantown, pro se.
    Louis A. Vargas, General Counsel, and Maximillian J. Changus, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Caldwell v. State, 821 So.2d 374 (Fla. 1st DCA 2002); Quigley v. Fla. Dep’t of Corr., 745 So.2d 1029 (Fla. 1st DCA 1999).

WARNER, GROSS and HAZOURI, JJ., concur.


author: SUAREZ, J.

text:
    Drew ROSENHAUS, an individual, Jason Rosenhaus, an individual, and Rosenhaus Sports Representation, Inc., a Florida corporation, Appellants, v. STAR SPORTS, INC., an Illinois corporation, Appellee.
    No. 3D06-189.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Rehearing Denied June 7, 2006.

      Swickle & Swickle and Adam Swickle, Fort Lauderdale, for appellants.
    Grossman, Roth, Olin, Meadow, Cohen, Yaffa, Pennekamp & Cohen and Seth Eric Miles, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   SUAREZ, J.

Drew and Jason Rosenhaus and Rosen-haus Sports Representation, Inc., appeal from the denial of a motion to dismiss and to compel arbitration. We reverse.

Star Sports, Inc. (“Star”), filed a multi-count complaint in the Circuit Court of Miami-Dade County against Drew Rosen-haus, Jason Rosenhaus, and Rosenhaus Sports Representation, Inc., a Florida corporation, alleging intentional interference with an advantageous business relationship and tortious interference with a contractual right. The complaint alleges that Star is in the business of providing marketing and related services to professional football players in the National Football League (“NFL”), and that Drew and Jason Rosenhaus are both certified Contract Ad-visors with the National Football League Players Association (“NFLPA”). The complaint alleges that Star entered into a written contract referred to as a “Marketing Agreement” with Anquan Boldin, a professional football player in the NFL, wherein Star was to be Boldin’s exclusive agent for marketing and related services. The complaint also alleges that Drew and Jason Rosenhaus intentionally and unjustifiably interfered with this Marketing Agreement by directly soliciting Boldin to have Jason and Drew Rosenhaus and/or Rosenhaus Sports Representation, Inc., represent him in his marketing endeavors and to exclude Star from representing him. Drew and Jason Rosenhaus and Ro-senhaus Sports Representation, Inc., filed a motion to dismiss the complaint and to compel arbitration, claiming the exclusive remedy for a dispute between two Contract Advisors relating to a Marketing Agreement is through arbitration pursuant to Section 5, the Arbitration Procedures provision, contained in the Agent Regulations of the NFLPA. The trial court denied the motion and this appeal from the non-final order was timely filed.

There are three elements to consider in ruling on a motion to compel arbitration: (1) whether the parties have entered into a valid arbitration agreement; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived. Travelers Ins. Co. v. Irby Constr. Co., 816 So.2d 829 (Fla. 3d DCA 2002). Two of the three elements are not presented on appeal. The issue of whether the parties entered into a valid arbitration agreement is not in dispute. All parties are members of the NFLPA and are “Contract Advisors,” as defined by that organization. All parties agree that, as Contract Advisors, they are bound by the Agent Regulations promulgated by the NFLPA which detail the obligations, rights, and liabilities of Contract Advisors. All parties agree that the Agent Regulations contain a provision requiring certain disputes between Contract Advisors to be resolved through arbitration. The issue of whether the right to arbitration has been waived has not been raised on appeal. The only issue before us is whether the claims of intentional interference with an advantageous business relationship and intentional interference with the Marketing Agreement, are arbitrable claims pursuant to Section 5, Arbitration Procedures, of the Agent Regulations.

Whether a particular issue is subject to arbitration is a matter of contract interpretation and is subject to de novo review. Ocwen Fed. Bank v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). Arbitration is required only as to those disputes to which the parties have expressly agreed. Atencio v. U.S. Sec. Ins. Co., 676 So.2d 489, 490 (Fla. 3d DCA 1996). The arbitration clause must refer to the subject matter which is in dispute. All Am. Semiconductor, Inc. v. Unisys Corp., 637 So.2d 59, 60 (Fla. 3d DCA 1994). To determine whether the parties in this case agreed to arbitrate an issue relating to the Marketing Agreement, we must look at the scope of the language of the Agent Regulations.

The Arbitration Procedures provision of the NFLPA Agent Regulations states as follows:

SECTION 5 — ARBITRATION PROCEDURES
A. Disputes
This arbitration procedure shall be the exclusive method for resolving any and all disputes that may arise from the following:
5. A dispute between two or more Contract Advisors with respect to whether or riot a Contract Advisor interfered with a contractual relationship of a Contract Advisor and player in violation of Section 3(B)(21)....

A dispute between two Contract Advis-ors is required to be resolved through arbitration if the violation alleged is the interference by one Contract Advisor with the contract of another Contract Advisor and an NFL player in violation of Section 3(B)(21) of the Agent Regulations.

Section 3(B)(21), entitled Prohibitive Conduct, states in pertinent part:

B. Prohibited Conduct
Contract Advisors are Prohibited from:
21.(a) Initiating any communication, directly or indirectly, with a player who has entered into a Standard Representation Agreement with another Contract Advisor and such Standard Representation Agreement is on file with the NFLPA if the communication concerns a matter relating to the:
(iv) Services to be provided by prospective Contract Advisor either through a Standard Representation Agreement or otherwise, (emphasis added)

Therefore, prohibited conduct occurs when one Contract Advisor communicates with a player who has entered into a Standard Representation Agreement with another Contract Advisor and the communication concerns a matter relating to the services provided by the Contract Advisor to the player either through a Standard Representation Agreement or otherwise. The document in question is the Marketing Agreement entered into by Star and Bol-din. The issue is whether the Marketing Agreement is a service “otherwise” provided by Star to Boldin, within the meaning of Section 3(B)(21)(iv). If the Marketing Agreement is such a service, the question of whether the Rosenhauses intentionally interfered with Star’s business relationship and contractual rights with Boldin is an issue which the Agent Regulations require to be resolved through arbitration. If it is not, the issue is one which may be resolved in the circuit court.

The word “otherwise” is not defined in the Agent Regulations. As such, we may look to the dictionary to determine the plain and ordinary meaning of the word. See Sieniarecki v. State, 756 So.2d 68, 75 (Fla.2000). Black’s Law Dictionary and Webster’s New Collegiate Dictionary define the word “otherwise” as “in a different manner; in another way; or in other ways.” Black’s Law Dictionary 992 (5th ed.1979); Webster’s New Collegiate Dictionary 806 (1980). Therefore, the Agent Regulations prohibit communication by one Contract Advisor with an NFL player if the communication relates to services to be provided to that player by another Contract Advisor either through the Standard Representation Agreement or “in a different manner; in another way; or in other ways.”

We conclude that, since the Marketing Agreement is an agreement whereby Star was to provide services to Boldin by marketing his name and obtaining endorsements and promotions for him, the Marketing Agreement is a service provided in a different manner; in another way, or in other ways (a service provided “otherwise”). The issue of whether the Rosen-hauses initiated communication with Bol-din and intentionally interfered with Star’s Marketing Agreement with Boldin is an issue which the Arbitration Procedures of the NFLPA Agent Regulations require to be resolved through arbitration. As Contract Advisors with and members of the NFLPA, Star and the Rosenhauses are bound by the Agent Regulations and are required to resolve the claims of intentional interference with an advantageous business relationship and tortious interference with a contractual right through arbitration.

We therefore reverse the trial court’s denial of the appellants’ motion to dismiss and to compel arbitration and remand for further proceedings consistent herewith.


text:
    Buenaventura DURAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-224.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Rehearing Denied June 7, 2006.
    Buenaventura Duran, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 825 So.2d 994, 996 (Fla. 4th DCA 2002)(when a defendant enters a negotiated plea for a term of years, relying upon an incorrectly calculated scoresheet, such sentence is not illegal so long as it does not exceed the statutory maximum).