author: WARNER, J.

text:
    ST. LUCIE FALLS PROPERTY OWNERS ASSOCIATION, Appellant, v. James MORELLI, Appellee.
    No. 4D06-3689.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    June Galkoski Hoffman of Fowler White Burnett P.A., Miami, for appellant.
    No brief on behalf of appellee.
   WARNER, J.

St. Lucie Falls Property Owners Association appeals a non-final order granting the injured plaintiffs motion for summary judgment on the issue of workers’ compensation immunity, thus precluding the Association from asserting that defense at trial. We have jurisdiction, Fla. R.App. P. 9.130(a)(8)(C)(v), and we reverse because there are genuine issues of material fact remaining.

In April 2000, the plaintiff, James Mor-elli, was injured in the course and scope of his duties while working as a maintenance technician on the property of the Association. The “first report of injury” described the incident and listed Morelli’s employer as “ADP Total Source/Advantage Property Management.” ADP Total Source is an employee leasing service, and Advantage Property Management provides management services for property owners’ associations.

Morelli filed a claim for workers’ compensation benefits against “ADP Total Source/Advantage” and received a lump-sum settlement. Thereafter, he brought a negligence action against the Association to recover damages arising from the accident. In the Association’s answer to the complaint, the Association raised a defense of workers’ compensation immunity.

The affidavits and deposition testimony revealed that Advantage managed the Association’s property at the time of the accident. In early 2000, the Association notified Advantage that a maintenance worker was needed on the premises. Advantage placed an advertisement for the open position. Morelli was initially interviewed by the Association’s “on-site” property manager, who was an Advantage employee. Additionally, the Association’s Board of Directors interviewed Morelli before he was hired for the position.

Morelli was not directly hired by the Association. Instead, he signed an agreement with ADP Total Source. Under the agreement, Morelli agreed to abide by the direction and supervision of “the Client” in regard to the day-to-day management of his duties. When he was hired, Morelli also received a “Verification of Employment” document which stated that Advantage was “the Client.” After he began work, Morelli was on ADP Total Source’s payroll. However, the Association paid Advantage for Morelli’s wages, plus a markup fee of 31% to cover workers’ compensation insurance, unemployment taxes, and the like. Advantage then reimbursed ADP Total Source for its payroll expenses for Morelli. The Association did not directly contract with ADP Total Source.

It is undisputed that Morelli worked forty hours per week at the Association’s premises and did not work at any other locations. In Morelli’s deposition, he explained that the property’s “on-site” manager from Advantage would make a list of tasks for him to do. However, he acknowledged that members of the Association would also give him directions for work.

Initially, the Association moved for summary judgment on the issue of workers’ compensation immunity, which the trial court denied. Later, Morelli moved for summary judgment on the immunity issue, seeking to preclude the Association from raising the defense of workers’ compensation immunity at trial. The trial court granted Morelli’s motion, concluding that, as a matter of law, the Association was not entitled to workers’ compensation immunity. This appeal follows.

The standard of review of an order granting summary judgment is de novo. See, e.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In order to carry its burden on a motion for summary judgment, the movant must show conclusively the absence of any genuine issue of material fact. Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla.1977). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

On appeal, the Association argues that there are genuine issues of material fact remaining as to whether the Association is entitled to workers’ compensation immunity under section 440.11(2), Florida Statutes, or under the common law “borrowed servant” doctrine. We agree.

Section 440.11(2), Florida Statutes (1999), provides that workers’ compensation immunity:

shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.

A “help supply services company” is defined by OSHA Standard Industry Code Industry Number 7363, as:

Establishments primarily engaged in supplying temporary or continuing help on a contract or fee basis. The help supplied is always on the payroll of the supplying establishments, but is under the direct or general supervision of the business to whom the help is furnished.

See Sagarino v. Marriott Corp., 644 So.2d 162, 165 (Fla. 4th DCA 1994). Further, the OSHA Standard Industry Code lists employee leasing services, temporary help services, and labor pools as examples of help supply services companies. See Caramico v. Artcraft Indus., Inc., 727 So.2d 348, 349 (Fla. 5th DCA 1999).

In this case, while ADP Total Source was an employee leasing service, there was no direct contractual relationship between the Association, which asserted worker’s compensation immunity, and ADP Total Source. Instead, Advantage became an intermediary, which in turn contracted with ADP Total Source. The trial court reasoned that section 440.11(2) would not apply to the Association because Advantage was acting as a “middleman.” We acknowledge that in each of the cases holding that an employer was entitled to immunity under section 440.11(2), there appears to have been a direct contractual relationship between the defendant and the help supply services company. See, e.g., Watson v. Job Corp., 840 So.2d 367, 368 (Fla. 3d DCA 2003) (“It is undisputed that Nurse Finders supplied Job Corp. with temporary help and that Watson was an employee under Job Corp.’s direction and control at the time he was injured.”); see also Caramico v. Artcraft Indus., Inc., 727 So.2d 348, 348 (Fla. 5th DCA 1999); Maxson Constr. Co. v. Welch, 720 So.2d 588, 589 (Fla. 2d DCA 1998). However, we disagree with the trial court’s conclusion that section 440.11(2) could not, as a matter of law, apply to these facts.

Unpacking the standard in section 440.11(2), the employer must 1) utilize the services, 2) of an employee of a help services supply company, 3) acting in furtherance of the employer’s business. Contractual privity between the help supply services company and the party claiming to be the employer is not a requirement under the statute. Accordingly, summary judgment was improper in this case, as there are competing inferences from the record. One view of the evidence supports a conclusion that Morelli was acting in furtherance of Advantage’s business, and he was ultimately under the control of the property manager, an Advantage employee, even though some members of the Association instructed him on some work. However, a reasonable alternative view of the evidence is that Advantage was used solely as a conduit for payment purposes and did not exercise control over Morelli. Under this view of the evidence, the Association utilized the services of an employee of a help services company in furtherance of the Association’s business. Consequently, there is a genuine issue of material fact as to whether Morelli was the Association’s borrowed employee under section 440.11(2).

Apart from section 440.11(2), there is also a genuine issue of fact as to whether Morelli was the Association’s “borrowed servant” under the common law. Long before the enactment of the statutory special employment provision for employees of help supply services companies, the common law recognized the “borrowed servant” doctrine. See Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98 (Fla.1971). Under this doctrine, a presumption arises that the employee’s general employment has continued, which may be overcome by a showing that the employer has “lent” its employee to a new special employer. Horn v. Tandem Health Care of Florida, Inc., 862 So.2d 938, 940 (Fla. 2d DCA 2004); Shelby, 246 So.2d at 101. In order to overcome this presumption, the party claiming to be an employee’s “special” employer must establish that: (1) there was a contract for hire, either express or implied, between the special employer and the employee; (2) the work being done at the time of the injury was essentially that of the special employer; and (3) the power to control the details of the work resided with the special employer. Shelby, 246 So.2d at 101 n. 5. Viewing the evidence in the light most favorable to the Association, there remains a genuine issue of fact as to whether the Association was entitled to workers’ compensation under the common law “borrowed servant” doctrine.

Because the trial court erred in granting summary judgment on the issue of workers’ compensation immunity, we reverse and remand for further proceedings.

Reversed.

KLEIN and HAZOURI, JJ, concur.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Angela DeLIBERO, individually, and as Guardian of the Property of Michael DeLibero, Appellant, v. Q CLUBS, INC., d/b/a “Q” The Sports Club, 24 Hour Fitness USA, Inc., f/k/a 24 Hour Fitness, Inc., and Fitness Holdings Worldwide, Inc., f/k/a Fitness Holdings, Inc., Appellees.
    No. 4D06-806.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.

      Nancy Little Hoffman of Nancy Little Hoffman, P.A., Ft. Lauderdale, and Howard L. Pomerantz of Abramowitz & Pom-erantz, P.A., Sunrise, for appellant.
    Rosemary B. Wilder of Marlow, Connell, Valerius, Abrams, Adler, Newman, Lewis & Blevins, Coral Gables, for appellees 24 Hour Fitness, USA, Inc., and Fitness Holdings Worldwide, Inc.
    Michael A. Mullen and Anne C. Sullivan of Gaebe, Mullen, Antonelli, Esco & DiMatteo, Coral Gables, for appellee Q Clubs, Inc.
   KLEIN, J.

Michael DeLibero, while exercising at the defendant’s health club, suffered sudden cardiac arrest. Club employees called 911 and performed CPR, but the club did not have an automatic external defibrillator, which will deliver an electric shock to the heart. DeLibero survived, but suffered brain damage, and filed this suit against the club for negligently failing to have a defibrillator available. The plaintiffs appeal a defense verdict.

An automatic external defibrillator (AED), is a battery operated device which contains a minicomputer programmed to detect a victim’s heart rhythm and electro-pads to place on the person’s chest. If the heart is in ventricular defibrillation, it tells the rescuer to press a button to deliver an electric shock to the heart.

The first issue is whether the trial court erred in not instructing the jury that evidence of custom in the industry does not by itself establish a standard of care. As the court explained in Nesbitt v. Community Health of South Dade, Inc., 467 So.2d 711, 715 (Fla. 3d DCA 1985):

Because what is usually done is merely some evidence of the standard of care, it is admissible for that limited purpose. Its admission, however, must be qualified by a cautionary instruction to the jury that the evidence does not by itself establish a standard of care.

Plaintiff requested the following instruction:

Evidence of what was usually done in the health club industry is not conclusive or controlling on the question of negligence and does not by itself establish a standard of care. It is only some evidence to be considered with all the evidence in determining what is reasonable.

Although we agree with Nesbitt, the evidence in this case did not require a cautionary instruction, because it did not amount to evidence of a custom or standard in the industry. The evidence in this case was that, at the time of this accident in 2000, AEDs were being considered, but there was no custom or standard of care as to whether a health club should or should not have an AED.

If defendants had put on evidence that the standard or custom in the industry was not to have AEDs, we would agree with plaintiffs that the cautionary instruction should have been given. Under the circumstances in this case, however, where defendants did not assert that there was a custom or standard, the court did not err in refusing the requested instruction.

Plaintiffs also argue that the trial court erred in enforcing the pretrial ruling, obtained by plaintiffs, that each side would be limited to one expert in each specialty. Plaintiffs’ expert who did testify, Dr. Ker-ber, a cardiologist and an expert as to the AED, testified as to the appropriateness of health clubs having AEDs. The court did not abuse its discretion in not permitting Dr. Van Camp, who was also a cardiologist, from testifying as an expert in sports medicine in health clubs. First, Dr. Van Camp was in the same specialty, cardiology, as Dr. Kerber; and second, the subject of his testimony was not unrelated to Dr. Kerber’s testimony. Nor do we find merit in any of the other issues raised by plaintiffs.

Affirmed.

SHAHOOD, J., and REYES, ISRAEL U., Associate Judge, concur.


author: STEVENSON, C.J.

text:
    Terrell SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1136.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.

      Tara A. Finnigan of Tara A. Finnigan, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Terrell Smith was tried by jury and convicted of possession of cocaine with intent to sell. In this appeal, Smith raises a myriad of issues. We find merit in only one of Smith’s claims, the inadequacy of the Faretta hearing conducted by the trial court, and reverse on this ground.

Prior to trial, Smith made an unequivocal demand to represent himself, thus triggering an obligation on the part of the trial court to conduct a Faretta inquiry. See Wilson v. State, 724 So.2d 144, 145 (Fla. 1st DCA 1998). Before a defendant will be permitted to represent himself, “he must ‘knowingly and intelligently’ forgo his constitutional right to counsel.” Reddick v. State, 937 So.2d 1279, 1283 (Fla. 4th DCA 2006). Under Faretta, “[t]he test is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to represent himself.” Wilson, 724 So.2d at 145; see also Butter v. State, 767 So.2d 534, 539 (Fla. 4th DCA 2000). Ideally, a trial court should conduct a formal Faretta inquiry and, consistent with Florida Rule of Criminal Procedure 3.111(d)(2), make “a thorough inquiry ... into both the accused’s comprehension of th[e] offer [of assistance of counsel] and the accused’s capacity to make a knowing and intelligent waiver” and “advise the defendant of the disadvantages and dangers of self-representation.” See also Butler, 767 So.2d at 539. To that end, our supreme court has published a model colloquy wherein the judge is to (1) inquire concerning the defendant’s age, education, his ability to read and write, any mental or physical conditions, and whether anyone has threatened him concerning the decision to proceed without counsel; (2) advise the defendant that a lawyer can assist him in calling witnesses and presenting evidence, advise him regarding whether he should testify, is familiar with the rules of evidence, can ensure accurate jury instructions are given, and preserve errors for appeal; and (3) warn the defendant he will not receive special treatment and will be limited by the resources available to him while in custody. See In re Amendment to Fla. KCrim. P. 3.111(d)(2)-(3), 719 So.2d 873, 876-77 (Fla.1998).

We recognize that a trial judge is not required to follow the letter of the model colloquy; rather, “ ‘[t]he ultimate test is not the trial court’s express advice, but ... the defendant’s understanding ” of his rights and the consequences of his choice. Butler, 767 So.2d at 539 (quoting Rogers v. Singletary, 698 So.2d 1178, 1181 (Fla.1996)); see also Wheeler v. State, 839 So.2d 770, 772 (Fla. 4th DCA 2003). The limited inquiry engaged in by the trial judge in this case is insufficient to demonstrate that Smith understood his rights and the consequences of his decision to proceed pro se. All in all, the judge’s inquiry was limited to asking Smith about his experience with the criminal justice system, whether Smith believed he was capable of representing himself, whether he would be ready for trial on the scheduled date, and whether he would “behave like a gentleman.” Smith’s responses demonstrate that, while he has been involved with the criminal justice system since he was a juvenile, he had had only one jury trial, wherein he was represented by counsel and found not guilty. Nothing in the exchange between Smith and the court indicated Smith had any real understanding of what he was up against in making the decision to proceed pro se. This fact makes the instant case distinguishable from cases like Waterhouse v. State, 596 So.2d 1008 (Fla.1992), Baggett v. State, 687 So.2d 934 (Fla. 4th DCA 1997), and Turner v. State, 901 So.2d 233 (Fla. 5th DCA 2005). We therefore reverse Smith’s conviction and remand for a new trial. See Wilson, 724 So.2d at 146 (holding harmless error analysis does not apply where Faretta inquiry fails to ensure waiver of counsel was knowing and intelligent).

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: PER CURIAM.

text:
    Jose CRUZADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1591.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006); Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).

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


text:
    Kenneth C. JENNE, II, as Sheriff of Broward County, Florida, Petitioner, v. William AMMONS, as defendant in State v. Ammons, and State of Florida, Respondents.
    No. 4D07-1160.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Terrence O. Lynch, Fort Lauderdale, for petitioner.
    Samuel R. Halpern, Fort Lauderdale, for respondent William Ammons.
   PER CURIAM.

Kenneth C. Jenne, II, as Sheriff of Bro-ward County, Florida, petitions this court for a writ of certiorari to quash the lower tribunal order compelling the Broward County Sheriffs Office (“BSO”) to provide certain medical care to respondent William Ammons, a criminal defendant being held in the Broward County Jail. The circuit court order requires BSO to provide Am-mons with eyeglasses although Armor Correctional Health Services, Inc., BSO’s health care provider, determined that Am-mons did not require corrective lenses at this time.

We conclude that the trial court order irreparably injures the petitioner and leaves BSO with no remedy on appeal as the sheriffs office is not a party to the [underlying] criminal case.” Armor Corr. Health Servs., Inc. v. Ault, 942 So.2d 976, 977 (Fla. 4th DCA 2006) (citing Fla. Dep’t of Health & Rehab. Servs. v. Myers, 675 So .2d 700 (Fla. 4th DCA 1996)). Furthermore, the circuit court’s order departs from the essential requirements of law as the judicial branch has no authority to dictate how BSO carries out its duty to provide medical care to inmates housed in the Broward County Jail. See id. Accordingly, we grant the petition for writ of certiorari and quash the circuit court’s order.

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


text:
    Octavia LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2000.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Robert Ingham of Murphy & O’Brien, LLC, Miami, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Octavia Lee petitions this court for a writ of habeas corpus. She alleges that she is illegally detained without bond. Lee, released on surety bond, failed to appear at a hearing where the state was to file charges and at arraignment because the notices of hearing were sent to an incorrect address. The circuit court ordered a warrant for Lee’s arrest and bond forfeiture. Lee then moved to set bond or to reinstate bond. The trial court denied the motion without making any legal or factual findings required pursuant to Florida Rule of Criminal Procedure 3.132(c)(2).

The state concedes, and we agree, that the trial court improperly denied petitioner’s motion to set or reinstate bond without making findings that Lee’s failures to appear were willful and that no reasonable bond conditions could secure Lee’s presence at trial. Resendes v. Bradshaw, 935 So.2d 19, 20 (Fla. 4th DCA 2006); Johnson v. Jenne, 913 So.2d 740 (Fla. 4th DCA 2005); see also § 907.041(4)(c)1, Fla. Stat. (2006). We therefore grant the petition for writ of habeas corpus, quash the trial court order denying bond, and remand for the court to hold a hearing at which it shall determine whether the failures to appear were willful and if thére are any reasonable bond conditions that can assure Lee’s presence at trial.

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Jean M. PAVESE, Appellant, v. Michael P. PAVESE, Appellee.
    No. 2D05-3886.
    District Court of Appeal of Florida, Second District.
    June 8, 2007.
    Cynthia L. Greene of Law Offices of Greene, Smith, McMillan, P.A., Miami, for Appellant.
    Robert L. Donald of Law Office of Robert L. Donald, William T. Haverfield of Pavese Law Firm, L.L.P., Fort Myers, for Appellee.
   GALLEN, THOMAS M„ Associate Senior Judge.

The former wife appealed the trial court’s denial of her amended motion for $52,437 in attorney’s fees. After the filing of this appeal, the appeal of the trial court’s final judgment of dissolution of marriage in the same case was decided in Pavese v. Pavese, 932 So.2d 1269 (Fla. 2d DCA 2006). This court affirmed the dissolution and custody provisions of the trial court’s final judgment but reversed and remanded in all other respects. In the present appeal, which was briefed before this court’s decision in the other appeal, the parties acknowledge that if the main case is reversed and remanded then this appeal should also be remanded to the trial court for reconsideration. Accordingly, we reverse the decision of the trial court denying the former wife’s amended motion for attorney’s fees and remand with directions to the trial court to revisit the issue of attorney’s fees following its reconsideration of the issues in the main case.

Reversed and remanded with directions.

FULMER, C.J., and SALCINES, J., Concur.


text:
    TOKIO MARINE MANAGEMENT (*) and Somec Corporation, Appellants, v. Richard PIZON, Appellee.
    No. 1D06-0071.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2006.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.
    Gregory W. Stoner, Orlando and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

The Employer/Carrier (E/C) appeal an award of workers’ compensation benefits to Appellee/Claimant, who hurt his wrist at work on February 3, 1999. E/C argue that the JCC erred in three respects: accepting the testimony of an attorney; ruling that res judicata precluded E/C from presenting evidence as to major contributing cause of the need for benefits; and declining to permit a defense of apportionment. We affirm the JCC’s ruling as to the first issue, without comment. However, we reverse as to the second and third issues, and remand for further proceedings, for the reasons below.

A claimant is entitled to benefits only so long as the industrial injury remains the major contributing cause of the disability or need for treatment. See Checkers Rest. v. Wiethoff, 925 So.2d 348, 350 (Fla. 1st DCA 2006) (en banc); § 440.09(1)(b), Fla. Stat. (1999). Although Checkers was not yet decided when the JCC issued the order on appeal, its holding is applicable in this case, and its application might affect the JCC’s ruling. Accordingly, we reverse the JCC’s rulings and remand for reconsideration in light of Checkers.

REVERSED and REMANDED.

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


author: SILBERMAN, Judge. ALTENBERND, Judge,

text:
    STATE of Florida, Appellant, v. Donald MONINGER, Appellee.
    No. 2D05-4568.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 2007.
    Rehearing Denied Feb. 26, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellant.
    Mark A. Goettel of Mark A. Goettel, P.A., New Port Richey, for Appellee.
   SILBERMAN, Judge.

The State appeals an order suppressing evidence in the prosecution of Donald Moninger for lewd or lascivious molestation, capital sexual battery, and two counts of lewd or lascivious battery. Because the trial court properly suppressed the challenged evidence, two used condoms, we affirm the suppression order.

In his motion to suppress, Moninger alleged that on July 8, 2004, Deputy White, Detective Ewald, and Child Protective Investigator (CPI) Morgan responded to a sexual battery complaint at Moninger’s residence. The alleged victim is Moninger’s fifteen-year-old daughter. The motion stated that the daughter spoke with Detective Ewald and told him that “condoms were used in the bedroom” of the residence. Further, the daughter, upon Detective Ewald’s prompting, went into the residence and returned with two condoms. The motion contended that Moninger “did not consent to the unlawful entrance and removal of the condoms” and that the daughter “was acting as an instrument of the police and, as such, Detective Ewald searched the Defendant’s residence without permission of the Defendant.” Based on his contention that the law enforcement officers improperly obtained the condoms, Moninger sought an order suppressing the condoms as evidence.

The trial court conducted a hearing on the motion to suppress. Although witnesses were available to testify at the hearing, the parties stipulated to the facts and did not present any testimony or other evidence. The stipulated facts expanded on the allegations of Moninger’s motion. Deputy White and Detective Ewald responded to Moninger’s residence, where his daughter also lived, to investigate an allegation of child molestation. CPI Morgan was present and was going to remove the daughter from the residence to shelter care. While outside the residence, Detective Ewald conducted a brief interview with the daughter and asked her if there was any evidence to substantiate her claim. She responded that she believed there were “a couple of condoms in the house.”

Detective Ewald and CPI Morgan “told the victim to go inside and start packing” her belongings because she was going to be removed from the home. They also told her that if she wanted to, she could “grab the condom. And, she did grab the condoms on her way out after she had packed her belongings.” The daughter retrieved two condoms from the trash can in Moninger’s room inside the residence and gave them to the detectives. The daughter had “access” to Moninger’s room, and the room had never been locked. Finally, although “[t]he detectives had never been told not to enter the premises prior to the obtaining of the condoms” and consent was never “denied to Detective Ewald prior to the detective telling the victim to go inside and start packing,” the stipulation confirmed that “consent was never requested from the Defendant!.]”

At the conclusion of the hearing, the parties agreed to provide memoranda to the trial court. The legal issue presented to the court was whether the daughter was acting as an instrument or agent of the State when she retrieved the used condoms from the trash can in Moninger’s bedroom and gave them to the detectives. In its memorandum in opposition to the motion to suppress, the State acknowledged as undisputed facts that Detective Ewald spoke with the daughter while Deputy White stood by with Moninger and that Detective Ewald gave the daughter “a bag in which to place the condoms if she chose to obtain them.”

In its order granting the motion to suppress the condoms, the trial court stated, in pertinent part, as follows:

Stipulated facts include the investigating officers not only telling the alleged victim to go into Defendant’s residence to get her belongings but also telling her that she could remove two condoms that the defendant had allegedly used. In addition, the State now acknowledges in its memorandum that the officers also gave the child a bag in which to place the condoms. One can hardly imagine a stronger hint, whether made to an adult or a child. If the officers had simply obtained a search warrant or told the victim to go into the residence and get her belongings and she had, with no encouragement by the officers, removed the condoms on her own, the Court would have seen no violation of the defendant’s constitutional protections against State action. Unfortunately, the actions of a private individual, such as the alleged victim in this case, become actions of the government when, as in this case, the government becomes involved “... indirectly as an encourager of the private citizen’s actions ... ”. Treadway v. State, 534 So.2d 825 (Fla. 4th DCA 1988). Clearly, the officers “encouraged” the child/victim to obtain the evidence that they could not have validly obtained without permission or a proper search warrant. The record reflects no private interests that were furthered by the alleged victim’s actions in removing the condoms and delivering them to the investigating officers. Although the State urges the court to find that there was a private interest of the alleged victim which was furthered by the alleged victim’s actions, it does not seem logical to find that the private interests of the victim in obtaining corroboration of the alleged offense is any different than the State’s interest in obtaining evidence of the crimes the State has charged. It is clear that the decision to remove the alleged victim from the defendant’s home had been made prior to her entering the home and obtaining the condoms. She was told by Child Protective Investigator Morgan to enter the home for purposes of obtaining her belongings because she was being removed from the defendant’s home. This decision having already been made, the alleged victim needed no corroboration to further the goal the State assigns to her. Furthermore, there is no evidence in the record that the alleged victim was motivated by anything other than the obvious “hints” provided by Det. Ewald.

(Second and third emphasis added.)

The trial court also noted there was no evidence that Moninger, who was present at the scene, had consented to any search, and there was no evidence that the daughter gave consent or was asked to give consent. Based on the facts that were presented and the issue that was squarely before the trial court — whether the daughter was acting as an instrument or agent of the State — the court granted the motion to suppress.

In this appeal, the State argues that the daughter did not act as a government agent but acted out of her own free will. The State suggests that she gave the condoms to the officers to further her own purpose, that is, to substantiate her claim of illegal sexual contact with Moninger. The stipulated facts do not support the State’s argument that the daughter was not an instrument or agent of the State or that she retrieved the condoms for her own purpose. In Treadway v. State, 534 So.2d 825, 827 (Fla. 4th DCA 1988), the court recognized that “while a wrongful search and seizure by a private party does not violate the fourth amendment, when a private party acts as an ‘instrument or agent’ of the state in effecting a search and seizure, fourth amendment interests are implicated.” The court explained that “[t]he government must be involved either directly as a participant or indirectly as an encourager of the private citizen’s actions before we deem the citizen to be an instrument of the state.” Id. (quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981)). In State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000), this court stated as follows:

The test for determining whether private individuals are agents of the government is whether, in consideration of the circumstances, the individuals acted as instruments of the state. To determine whether a private individual acts as an instrument of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends.

(Citations omitted.)

Here, the facts of record establish that the daughter’s action in retrieving the condoms was precipitated by Detective Ewald’s suggestions and encouragement and that the interest being fulfilled was the law enforcement interest in obtaining evidence to support a criminal prosecution. The daughter was being removed from the home based on what the officers already knew, and nothing suggests that the daughter, of her own motivation, considered taking the condoms to substantiate that she had been molested or for any private purpose. As recognized in Tread-way, the Fourth Amendment is implicated if the sole purpose of a private search is to further a government interest. 534 So.2d at 827. The stipulated facts do not suggest that the daughter retrieved the condoms for any purpose other than the officers’ desire to acquire evidence without the necessity of a search warrant or requesting and obtaining consent. Indeed, nothing in the record suggests that the daughter would even have thought to retrieve the condoms without the detective’s suggestion that she take that specific course of action. Because the record supports the trial court’s conclusion that the daughter was acting as an instrument or agent of the State, we conclude that the trial court properly granted Moninger’s motion to suppress the condoms.

The State also asserts that the daughter “had joint-ownership rights over the used condoms if the condoms were used during sexual contact in which she was a party,” that “she still had joint control over the house and could have legally provided the condoms” to the officers, and that Moninger “had no legitimate expectation of privacy.” However, the State makes these assertions in bare-bones fashion, without record support or citation of authority. The stipulation indicated that the condoms were in Moninger’s bedroom and that the daughter had “access” to the bedroom, but no evidence was presented as to the daughter’s “right” to enter Moninger’s room and to remove the condoms from the trash can. There was also no evidence that the daughter shared that room with Moninger, that she had “joint control” over the house, or that she had “joint-ownership” of the used condoms. In its memorandum in opposition to the motion to suppress, the State suggested that the daughter “had authority to consent to law enforcement entry, as well as law enforcement search, if either had been requested.” (Emphasis added.) In its order, the trial court correctly noted that there was “no evidence that the alleged victim gave any consent to search to the officers or was requested to do so[.]”

It is well established that the officers would need a search warrant or an exception to the warrant requirement, such as consent, to validly enter Moninger’s residence to search for evidence. See V.H. v. State, 903 So.2d 321, 322 (Fla. 2d DCA 2005). Here, the officers could have sought a search warrant or could have asked for Moninger’s consent to search, but they chose neither option. Further, there is no evidence that the daughter consented or had authority to consent to a search of the home, the bedroom, or the trash can in the bedroom. The evidence is undisputed that the daughter was told by law enforcement to go into the home to pack her belongings. At the same time, Detective Ewald told her she could “grab” the condoms if she wanted to, and he gave her a bag in which to put the condoms.

Although the dissenting opinion suggests that the victim could not have been a State agent, it gives short shrift to the stipulated facts: the daughter reentered the home at the direction of law enforcement; law enforcement encouraged her to enter Moninger’s room to get the condoms; and law enforcement gave her a bag in which to place the evidence that law enforcement believed would assist them in proving criminal conduct.

As to the burden of proof, the dissent suggests that Moninger did not meet his burden to show that the seizure of evidence was as a result of unreasonable government action. The test in a case such as this is whether the person who obtained the evidence was acting as an agent or instrumentality of law enforcement. See Treadway, 534 So.2d at 827. The Treadway court recognized' that when “a dual purpose for the search exists such that the private person is also furthering his own ends, the search generally retains its private character.” Id. In Treadway, the court determined that a dual purpose existed when an insurance agent provided records to the Florida Comptroller’s Office. Id. The agent worked for Treadway, and the agent accessed his own investment file, although the office rules prohibited the agent from reviewing those files. The documents assisted in a prosecution for organized fraud and grand theft, but the facts established that the agent had his own reasons to look into the files, including concern over his investment and to determine whether the investment program was being handled properly. Id. at 826.

Nothing in the record here suggests that the daughter retrieved the condoms to further her own purposes. Although the dissent speculates as to possible private purposes — perhaps the daughter might have wanted the condoms as evidence for a possible civil suit against her father or for use in a dependency action — the record does not reflect that the daughter considered retrieving the condoms for any private purpose. Instead, the State stipulated to facts that reflect the daughter acted solely at the direction and encouragement of law enforcement. Specifically, the daughter retrieved the condoms at the suggestion of Detective Ewald and delivered the condoms to him. Further, the daughter was already being removed from the home to shelter care when Detective Ewald suggested that she gather the evidence. Notably, this court in Iaccarino stated that the determination involves “whether the individual intended to assist the police or further his own ends.” 767 So.2d at 475 (emphasis added). Thus, the intent of the individual is a necessary consideration. Here, the stipulated facts reflect that the daughter’s intent was to obtain evidence for Detective Ewald.

Finally, the dissent suggests that suppression of the condoms does not serve to suppress DNA evidence on the condoms. The State has not made this argument, and the record does not reflect that any DNA evidence is, in fact, contained in or on the condoms. Further, it seems self-evident that the entire purpose of Moninger’s motion is to challenge the legality of law enforcement’s seizure of the condoms and whatever evidence is in or on them. In any event, our review is to determine whether the trial court properly resolved the issue presented to it, based on the record evidence and the parties’ arguments, and not to speculate regarding other theories or strategies that might have been pursued.

Therefore, because the trial court properly granted Moninger’s motion to suppress, we affirm the suppression order.

Affirmed.

SALCINES, J., Concurs.

ALTENBERND, J., Dissents with opinion.

ALTENBERND, Judge,

Dissenting.

I dissent. The issue in this case is whether a fifteen-year-old girl, who is the alleged victim of a sexual battery by her father, is an agent of the State who violates her father’s Fourth Amendment rights and commits an unconstitutional seizure if she re-enters her home to retrieve two condoms that have been discarded in a trash can, when those condoms were allegedly used inside her body during illegal sexual intercourse. The only reason that she could be considered an agent of the State is that the police suggested that while she was retrieving her other personal belongings in order to move to shelter she could retrieve the condoms and place them in a bag that the police provided.

I conclude that this case is controlled by Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and that Mr. Moninger failed to establish an unreasonable search and seizure by the government that would support suppression of this evidence. I also conclude that the stipulated evidence does not support that Mr. Moninger’s daughter acted as an agent or instrument of the state, given that she had objectively independent reasons to retrieve this evidence from her home and to preserve that evidence against her father. I have found no case treating such a victim of a crime as a state agent under similar circumstances and truly doubt the United States Supreme Court would apply its reasoning in Coolidge to distinguish this case and exclude this evidence. Finally, the critical evidence in this case is DNA evidence that may or may not exist. On remand, if that evidence is determined to exist, I would require Mr. Moninger to file a separate motion to suppress that evidence.

I.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. It is, of course, a basic principle of Fourth Amendment law that searches and seizures by law enforcement inside a home without a warrant are presumptively unreasonable. Brigham City, Utah v. Stuart, — U.S. —, —, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006). However, the Fourth Amendment is wholly inapplicable to a search or seizure, even an unreasonable one, that is effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

Two things are thus clear from the undisputed facts in this case. If Mr. Moninger’s daughter had retrieved the condoms from the home “wholly on her own initiative,” without any suggestion from law enforcement that she do so, the condoms would have been admissible in evidence. See, e.g., Coolidge, 403 U.S. at 487, 91 S.Ct. 2022. Conversely, if the law enforcement officers had entered the home without a warrant and without the consent of one or perhaps both of the occupants and seized the condoms, the seizure would have violated the Fourth Amendment. See, e.g., Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). The question presented here, though, is whether the combination of the officer’s suggestion and the daughter’s voluntary actions combined in such a manner to require a court to conclude that the government performed an unlawful seizure of the condoms. I conclude this case is controlled by Coolidge, 403 U.S. 443, 91 S.Ct. 2022, and that Mr. Moninger has not established that the government effected an unreasonable search or seizure under the facts to which Mr. Moninger stipulated.

Initially, I note that the burden of proof or persuasion in this case rested on Mr. Moninger, not on the State. Mr. Moninger bore the burden of establishing that the seizure of evidence in this case was a result of unreasonable government action. See Treadway v. State, 534 So.2d 825, 827 (Fla. 4th DCA 1988); see also United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994); United States v. Koenig, 856 F.2d 843, 847 (7th Cir.1988) (citing Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)). Because Mr. Moninger has not met his burden, I would reverse the order suppressing the condoms seized by his daughter.

The United States Supreme Court has recognized that in some circumstances, the actions of a private citizen may be deemed to be the actions of the government. Coolidge, 403 U.S. at 487, 91 S.Ct. 2022. Ironically, the Supreme Court first recognized this principle in a case in which it held the principle did not apply. Id.

In Coolidge, police officers appeared at Mr. Coolidge’s home to investigate his potential role in a crime. Mr. Coolidge was not home. The officers spoke with his wife and asked her whether Mr. Coolidge had any guns. The wife responded that he did and offered to get the guns from the bedroom. The officers indicated they would accompany the wife, and they proceeded with the wife into the bedroom and ultimately accepted possession of the guns she offered to them. Id. at 486, 91 S.Ct. 2022.

The Supreme Court noted, “Had Mrs. Coolidge, wholly on her own initiative, sought out her husband’s guns and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence.” Id. at 487, 91 S.Ct. 2022. However, Mr. Coolidge contended that the conduct of the police officers was such as to make Mrs. Coolidge’s actions the actions of the police for the purposes of the Fourth Amendment.

“The test,” the Supreme Court held, “is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state when she produced her husband’s belongings.” Id. The Court noted that if the exclusionary rule applied to this evidence, “it must be upon the basis that some type of unconstitutional police conduct occurred.” Id. at 488, 91 S.Ct. 2022. In holding that no “unconstitutional police conduct” occurred, the Supreme Court reviewed the actions of the officers and concluded that the officers behaved appropriately in their investigation: When they first appeared at the home they had no intention of conducting a search or seizure; they properly questioned Mrs. Coolidge; and once they became aware of the evidence they did not compel or coerce Mrs. Coolidge to obtain possession of the guns. Id. at 488-89, 91 S.Ct. 2022. The Supreme Court added that there was nothing “constitutionally suspect” in the incentives a private citizen might feel to cooperate with the police. Id. at 488, 91 S.Ct. 2022. As such, the Supreme Court held the items relinquished by Mrs. Coolidge were not subject to suppression.

The only perceivable differences between the facts presented in Coolidge and the facts presented here are the age and relationship of the daughter to Mr. Mon-inger and the fact that the daughter did not herself originate the idea of retrieving the condoms, but simply agreed to do so when the officer explained that it might assist the investigation or prosecution. I conclude that these distinct facts do not permit a finding of unconstitutional police conduct requiring the application of the exclusionary rule. The facts to which Mr. Moninger agreed suggest that, like Mrs. Coolidge, the fifteen-year-old daughter had open access to the home, the father’s bedroom, and to the discarded condoms her father had allegedly used in a sexual battery against her. Given these facts and the facts known to the police officers after they interviewed the daughter, I find nothing suspect or sinister in their informing the daughter that if she had access to this important evidence and could retrieve it, it would assist in a prosecution.

Before the trial court and in his arguments on appeal, Mr. Moninger relied _upon the Fourth District’s opinion in Treadway, 534 So.2d 825, to support his argument that Mr. Moninger’s daughter acted as an agent of law enforcement. In Treadway, an insurance agent sifted through private investment files of his employer and provided government officials with some of the records he discovered, even though office rules prohibited the insurance agent from reviewing those files. The Treadway court focused on the level of government participation in the insurance agent’s search and seizure, which was minimal, and the motive of the insurance agent in performing the search and seizure, which was to further his own ends as well as those of the government. The court concluded that based upon these two factors the insurance agent was not an “agent of law enforcement” when he performed the search and seizure.

Treadway in turn relied upon the Ninth Circuit’s opinion in United States v. Walther, 652 F.2d 788 (9th Cir.1981). In Walther, an airline employee, who occasionally acted as an informant to law enforcement regarding drug activity, opened a customer’s package based upon his suspicion that the package might contain contraband. Id. at 790. In assessing whether the airline employee acted as an agent of the police, the Ninth Circuit held that there were two “critical factors” in the “instrument or agent” analysis: (1) the government’s knowledge and acquiescence in the search and (2) the intent of the party performing the search. Id. at 792. Based upon a review of these two factors, the Ninth Circuit held the airline employee acted as an agent of law enforcement, and the drugs he found were properly suppressed. Id. at 792-93. See also State v. Iaccarino, 767 So.2d 470 (Fla. 2d DCA 2000) (applying Walther to hold that off-duty police officers’ searches of musical festival patrons violated the Fourth Amendment).

Each of these cases, however, arose in the context of inappropriate behavior on the part of the private individual. In each case, the private individual was improperly invading the privacy of the suspect. In other words, the private search or seizure was itself “unreasonable,” and thus the government’s knowing participation in or encouragement of such an unreasonable search or seizure would be in violation of the Fourth Amendment.

In Coolidge and in this case, however, the private individual’s conduct is not itself “unreasonable.” According to the stipulated facts, there was nothing wrong with Mr. Moninger’s daughter returning into her home and retrieving not only her personal belongings but also the condoms she and her father had allegedly recently used and discarded. The analysis in Walther assumes some unwarranted intrusion by the private actor vis-a-vis the suspect; here, as in Coolidge, there was none. See also United States v. Novick, 450 F.2d 1111 (9th Cir.1971) (applying Coolidge to hold that officers who responded to a suicide and asked the homeowner if there were any guns in the home did not violate the Fourth Amendment when they accompanied the homeowner into a guest room to seize guns, revealing other contraband belonging to the guest).

My conclusion is supported by the Illinois Supreme Court’s opinion in People v. Heflin, 71 Ill.2d 525, 17 Ill.Dec. 786, 376 N.E.2d 1367 (1978), the one case I have discovered with facts somewhat akin to the unique facts of this case. In Heflin, law enforcement arrested the defendant upon suspicion of murder and informed the defendant’s brother of the arrest and charges. One of the police officers specifically inquired about some potentially incriminating letters the defendant might possess and asked the brother if he would get the letters for the police. The defendant thereafter personally asked his brother to retrieve the defendant’s car and other personal belongings and to store them. The brother gathered the belongings as the defendant requested, and after a follow-up call from law enforcement, the brother provided the incriminating letters to the police. Id. at 1373.

The Illinois Supreme Court stated:

The defendant argues that the present situation is different from that in Coolidge, because here there were specific requests for his possessions. We do not think this factor is dispositive. Here, as in Coolidge, we can find no evidence of unreasonable police conduct or coercive influence over the private individual who turned the defendant’s possessions over to the police. Considering the entirety of the evidence, we think it sound to conclude that Jon Heflin decided to voluntarily turn the letters over to the police without their persuasion. The letters were obtained by Jon Heflin at the insistence of the defendant, not the police, and Jon Heflin discussed the letters with the defendant’s attorney, who gave him no specific orders not to turn them over. Moreover, the nature of the initial request and the follow-up requests by the police indicate that no pressure, subtle or otherwise, was exerted on Jon Heflin at any time. Consequently, we conclude that Jon Heflin acted independently and that the search and seizure of defendant’s possessions was without the requisite degree of police involvement necessary to invoke the constitutional guarantees.

Id. at 1374.

Under the analysis of Coolidge, Heflin, and similar cases, I conclude that no unconstitutional police conduct occurred in this case. I would therefore reverse the trial court’s order granting the motion to suppress.

II.

I have concluded above that Coolidge controls this case and that the analysis applied in Treadway and Walther, arising as it did in the face of unreasonable private searches and seizures (i.e., ones in which the private party was invading an expectation of privacy of the suspect), is perhaps not appropriately suited to this context. However, even if this court were to apply the reasoning of Treadway and Walther, I am convinced that the daughter cannot be deemed to have acted as a government agent in this context because the daughter had objective independent reasons to retrieve evidence from her own home and to preserve that evidence against her father. This is especially true because her father had no expectation of privacy that would require a warrant for such an intrusion by his daughter.

As discussed earlier, the Ninth Circuit has held that the two “critical factors” to be considered in the “instrument or agent” analysis are: (1) the government’s knowledge and acquiescence in the search and (2) the intent of the party performing the search. Walther, 652 F.2d at 792. The second prong of this analysis is admittedly a little confusing to me. It does not test the conduct of the police but rather the motivation of their borrowed servant. It seems to me that this test suggests that, even though one may act, in part, as an agent of the state, the Fourth Amendment does not render a seizure unconstitutional if the person has an objective, independent private reason to seize the property.

If the facts in this case involved a single, adult female police officer who lived with her father and was raped by him in the family’s home, no one would suggest that she needed to obtain a warrant to collect the condoms from the trash. The fact that she was a sworn, trained state agent and, as a result, understood the value of evidence would not override her right as a person and victim to save and preserve the evidence of a crime committed inside both her own home and her own body.

Mr. Moninger’s daughter, of course, is not trained in the law and may have subjectively lacked the knowledge to understand these valid personal reasons to gather up evidence against her father. Interestingly, if she had had a lawyer, the lawyer’s advice to collect the evidence would not have been state action and would not have transformed her into a state agent. Just as a police officer’s actions under the Fourth Amendment are usually tested with an objective standard, Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the same should be true for this teenager. Objectively, she had an independent private reason to remove these condoms from her home as evidence in a civil action against her father and in a dependency proceeding to place her in a safe environment.

Again, this analysis is all the more compelling in light of Mr. Moninger’s reduced expectation of privacy in the condoms. Thus, I am not suggesting that the daughter’s independent private reasons would necessarily allow her to invade the privacy of the accused if she were also acting in part as a state agent. If this case involved an accused who lived in another residence, she could not burglarize that dwelling or the accused’s business office at the suggestion of the police to obtain evidence useful to both the police and herself. Perhaps if Mr. Moninger had established that he took the used condoms and locked them in a closet in his bedroom, the result would be different. Here, Mr. Moninger has not presented any evidence to establish that he had an expectation of privacy vis-á-vis his daughter in the items he discarded in the trash can in the unlocked bedroom of this mobile home.

Thus, although I conclude that Coolidge applies and that the analysis presented in Treadway and Walther is not adequate to deal with a case in which the victim seizing a personal item in her own home is the purported state agent, I also conclude that the daughter’s seizure of this evidence, which has independent utility for her, is not the action of a state agent even under the analysis in Treadway and Walther.

III.

Finally, I am not convinced that the majority’s decision conclusively decides the issues presented by the seizure of these condoms. The fact that an adult male has two used condoms in his bedroom trash can, without more, merely suggests that he is sexually active. That fact is not overly relevant to establish that he is molesting his daughter. If anything, the slight probative value of the condoms might be outweighed by their prejudicial effect. See § 90.403, Fla. Stat. (2004). Thus, the evidence that has been suppressed at this point is evidence that may not even have been admissible at trial.

The critical, probative evidence that may actually have been gathered by the deputies on July 8, 2004, is a sample of the daughter’s DNA on the exterior surface of the condom. It is not clear that such evidence exists. If that evidence exists, it could be very helpful in proving her claim. Ironically, if the condoms were tested and did not contain evidence of the daughter’s DNA, Mr. Moninger would probably want to put that fact into evidence to try to establish that his daughter’s story was a fabrication.

No one has expressly moved to suppress the results of DNA testing of genetic material located on the exterior of the condoms. The trial court has not explicitly suppressed that evidence. I assume that the daughter in this case would be permitted at trial to testify that her father used a condom during these sexual batteries even if the actual condom were suppressed because that testimony would not be fruit of any poisonous tree. Admittedly, it is a much closer question, but I am not convinced that the suppression of the condoms would necessarily require suppression of evidence of her DNA on the exterior of the condoms. I find it hard to conclude that she would be a state agent when she was entering her own home to retrieve a sample of her own DNA on a discarded item. On remand, if that evidence is determined to exist, I would require Mr. Moninger to file a separate motion to suppress that evidence.

      . The State amended the information after the suppression hearing to add the count of capital sexual battery and the two counts of lewd or lascivious battery.

      . The State cites no authority for the proposition that the victim of a crime becomes a joint owner of an instrument or property used by the perpetrator during the commission of a crime. For example, does a stabbing victim become a joint owner of the knife because the victim’s blood is on it?

      . There is no explanation why the officers did not procure a search warrant. Deputy White was standing outside the residence with Mon-inger. Detective Ewald could have applied for a search warrant while Deputy White stayed with Moninger.


text:
    LEON COUNTY, Florida, a Political Subdivision of the State of Florida, Appellant, v. STEPHEN S. DOBSON, III, P.A., Appellee.
    No. 1D05-4326.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      D. Andrew Byrne of Cooper & Byrne, PLLC, Tallahassee, for Appellant.
    Cynthia S. Tunnicliff and Ben H. Wilkinson of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Leon County appeals the circuit court’s order finding it liable for attorney’s fees incurred by Leon County Commissioner Rudy Maloy, who successfully defended himself against criminal charges. Although the circuit court erred in determining that Leon County policy 03-02 constitutes a contract of indemnity for county commissioners, we nevertheless affirm the order. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (“This 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))). On cross-appeal, we affirm the trial court’s denial of attorney’s fees incurred in this action. We find no merit to the remaining issues raised by the parties.

Leon County policy 03-02, section 3 reads:

[T]he Board of County Commissioners of Leon County shall, pursuant to the procedures set forth herein, reimburse present and former County Commissioners and County public officers, and their present and former employees and agents, including appointees of the Board or such officers, for the reasonable attorney’s fees and costs that such persons have incurred when they successfully defend or prevail in civil, criminal, and/or ethical investigations and/or actions that arise out of and in connection with their scope of County employment or County function, while acting in their official capacity, and while serving a public purpose. The Board of County Commissioners shall determine if the attorney’s fees and costs shall be reimbursed, and if so, in what amount.

(emphasis added). As the underscored language indicates, the Board retains discretion when it comes to reimbursing commissioners for attorney’s fees. When a party reserves the option to not perform under a contract, the contract is a nullity. See Pan-Am Tobacco Corp. v. Dep’t of Corrections, 471 So.2d 4, 5 (Fla.1984) (“It is basic hornbook law that a contract which is not mutually enforceable is an illusory contract. Where one party retains to itself the option of fulfilling or declining to fulfill its obligations under the contract, there is no valid contract and neither side may be bound.” (citations omitted)); see also Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999) (requiring parties to a contract to express an intent to be bound by the terms of a collateral document in order for that document to be incorporated into the contract). Accordingly, the trial court erred in finding that policy 03-02 serves as a contractual indemnity clause.

Although the trial court incorrectly allowed reimbursement of fees under a contractual indemnity theory, the order should be affirmed under Florida’s common law principle of reimbursement of fees to public officials under certain circumstances. The circuit judge found “as a matter of undisputed fact and as a matter of law in this particular case that [the county commissioner’s] participation in FAC [Florida Association of Counties] arose out of or was in connection with the performance of his duties as a Leon County Commissioner.” See Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (Fla.1990); see also Ellison v. Reid, 397 So.2d 352, 354 (Fla. 1st DCA 1981) (“If a public officer is charged with misconduct while performing his official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct.”). This common law doctrine applies to criminal proceedings. See Lomelo v. City of Sun rise, 423 So.2d 974, 976 (Fla. 4th DCA 1982).

Although the circuit judge found Maloy’s common law claim barred by the doctrine of sovereign immunity, we have now explained that sovereign immunity does not bar such claims. See Maloy v. Bd. of County Comm’rs of Leon County, 946 So.2d 1260 (Fla. 1st DCA 2007) (analyzing interplay of doctrine of sovereign immunity and common law right of public officials to receive legal representation at taxpayer expense in defending themselves against litigation arising out of their official duties and while serving a public purpose). Because the trial court found the county commissioner’s actions arose out of his official duties while he served a public purpose, and we do not disagree, the common law entitles the county commissioner to have his legal fees reimbursed by the public. See Thornber, 568 So.2d at 917. Accordingly, we affirm the award of attorney’s fees.

On cross-appeal, appellee argues the trial court erred in not awarding him attorney’s fees for successfully litigating entitlement to indemnification. We affirm the trial court’s denial of fees. See Am. & Foreign Ins. Co. v. Avis Rent-A-Car Sys., Inc., 401 So.2d 855, 858 (Fla. 1st DCA 1981) (“The general rule appears to be that attorney’s fees incurred in defense of a claim indemnified against are part of the damages and allowable, but attorney’s fees incurred in establishing the right to indemnification are not allowed.”).

AFFIRMED.

BARFIELD, ALLEN, and KAHN, JJ., concur.


text:
    Dale KUBASAK, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 5D06-3195.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2007.
    Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Petitioner.
    Judson M. Chapman, General Counsel, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (“A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.”).

We write only to state that Kubasak’s reliance on State v. Muldowny, 871 So.2d 911 (Fla. 5th DCA 2004), is misplaced. Muldovmy should not be construed to relieve a respondent in an administrative driver’s license suspension proceeding from the necessity of complying with section 322.2615(6)(c), Florida Statutes (2005), when a subpoenaed witness has failed to appear.

Petition for Writ of Certiorari DENIED.

PLEUS, C.J., LAWSON and EVANDER, JJ., concur.


author: KELLY, Judge.

text:
    Alexander B. BALKO, Appellant, v. Suzanne Marie BALKO, Appellee.
    Nos. 2D05-5834, 2D06-1781.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
    Rehearing Denied June 6, 2007.

      Virginia R. Vetter, Tampa, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   KELLY, Judge.

In these consolidated appeals, Alexander B. Balko (the husband) challenges the amended supplemental final judgment modifying alimony and the order granting attorney’s fees and costs to Suzanne Marie Balko (the wife). We affirm the amended supplemental final judgment without discussion. We reverse, however, the order granting the wife attorney’s fees and costs because the trial court awarded the wife 100% of her fees and costs based solely on an assessment of the husband’s ability to pay.

The determination regarding an appropriate award of attorney’s fees in a dissolution case is governed by section 61.16, Florida Statutes (2005). Section 61.16(1) requires the court to consider “the relative financial resources of the parties.” The purpose of the section is to ensure that both parties will have a similar ability to obtain competent legal counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). In evaluating whether an award of fees is appropriate, courts are to “look to each spouse’s need for suit money versus each spouse’s respective ability to pay.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). Here, the trial court erred in making its determination regarding whether to award fees because it based the award solely on the relative income of the parties, without considering any other financial resources available to them. See Stoler v. Stoler, 679 So.2d 837 (Fla. 2d DCA 1996) (holding that in awarding attorney’s fees in a dissolution case, the trial court must consider the parties’ overall financial resources not simply income and earning capacity). Accordingly, we reverse the award of attorney’s fees and costs and remand for the trial court to reconsider its award of fees taking into consideration the overall relative financial positions and resources of the parties and to make findings of fact that will permit review of its decision. See Cullen v. Cullen, 884 So.2d 304 (Fla. 2d DCA 2004). If necessary, the court may take additional evidence on this issue.

Affirmed in part; reversed in part; remanded for further proceedings.

DAVIS and SILBERMAN, JJ„ Concur.


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    Alfred WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6405.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Rehearing Denied June 1, 2007.

      Alfred Woods, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 1, 2007, the Court has determined that the notice of appeal failed to timely invoke the Court’s appellate jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely.

BARFIELD, WOLF, and VAN NORTWICK, JJ„ concur.


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    Ferdinand ACKERMANN, Appellant, v. Monika MARKMANN, Appellee.
    No. 1D06-6215.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Rehearing Denied June 1, 2007.
    Ferdinand Ackermann, pro se, Appellant.
    Mitch Dever, Panama City, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 5, 2006, the Court has determined that the notice of appeal failed to timely invoke the Court’s appellate jurisdiction. Fla. R.App. P. 9.110(b); Fla. R. Jud. Admin. 2.525. Accordingly, the appeal is hereby dismissed as untimely.

BARFIELD, WOLF, and VAN NORTWICK, JJ., concur.


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    Damian DALEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2806.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.
    Rehearing Denied June 21, 2007.

      Damian Daley, Sneads, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion for postconviction relief, finding that the trial court did not err in summarily denying the claims. Appellant’s claims were either conclusively refuted by the record, or appellant did not demonstrate a reasonable probability that counsel’s deficient performance affected the outcome of the proceeding, ie., undermined the confidence in the outcome. See Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bowman v. State, 748 So.2d 1082, 1085 (Fla. 4th DCA 2000).

We address only one issue, which was not adequately addressed by the state or the trial court. Appellant argues that his counsel was ineffective for failing to request a “heat of passion” defense instruction. “Heat of passion” has best been defined in Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916):

A killing in the ‘heat of passion’ occurs when the state of mind of the slayer is necessarily different from that when the killing is done in self-defense. In the heat of passion the slayer is oblivious to his real or apparent situation. Whether he believes or does not believe that he is in danger is immaterial; it has no bearing upon the question. He is intoxicated by his passion, is impelled by a blind and unreasoning fury to redress his real or imagined injury, and while in that condition of frenzy and distraction fires the fatal shot.

See also Douglas v. State, 652 So.2d 887 (Fla. 4th DCA 1995). Here, the eyewitness testified that she heard some arguing and then heard and saw shots being fired. The defendant did not testify. Without more, there was no evidence to support the theory, and counsel was not ineffective for failing to request the instruction, particularly when the main defense was that of self-defense, as appellant himself was shot and seriously wounded in the incident.

Affirmed.

KLEIN and TAYLOR, JJ., concur.


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    ORTHOPAEDIC MEDICAL GROUP OF TAMPA BAY/STUART A. GOLDSMITH, P.A., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D06-1658.
    District Court of Appeal of Florida, First District.
    April 9, 2007.
    Rehearing Denied May 10, 2007.

      Katherine E. Giddings, William M. Fur-low, and Todd D. Engelhardt of Akerman Senterfitt, Tallahassee, for Appellant.
    Garnett W. Chisenhall, Chief Appellate Counsel, and Christa Calamas, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from a final order of the Agency for Health Care Administration (AHCA). In that order, AHCA re-characterized numerous findings of fact by the administrative law judge (ALJ) as conclusions of law and rejected them. AHCA’s purported rationale for doing so was its determination that the appellant’s expert witness on Medicaid coding was not competent to give such testimony. The determination of a witness’s qualifications to express an expert opinion is within the discretion of the ALJ and will not be reversed absent a showing of clear error. Cf. Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1150 (Fla. 3d DCA 2001) (quoting Ramirez v. State, 542 So.2d 352, 355 (Fla.1989)). AHCA failed to establish that the ALJ’s determination constituted clear error. Therefore, we REVERSE and REMAND with instructions to AHCA to enter a final order in accordance with the ALJ’s recommended order.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


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    Alon D. SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-656.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Alón D. Sims, Punta Gorda, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion to correct an illegal sentence, in which he claimed that his 1996 habitual violent felony offender sentence for kidnapping and aggravated battery with a firearm was illegal. First, he alleged that the sentencing judge impermissibly used a juvenile or youthful offender conviction as a predicate offense for habitualization. The record does not support his contention that a juvenile conviction was used. Instead, the record reflects that the predicate offense for habitualization was a robbery conviction on which the state had direct-filed against appellant in the adult division. Second, appellant alleges that he is entitled to relief under Heggs v. State, 759 So.2d 620 (Fla.2000) (declaring the Crime Control Act of 1995 unconstitutional, invalidating the guidelines under that act, and permitting defendants sentenced thereunder to seek resentencing under prior guidelines). Because appellant was sentenced as a habitual offender, Heggs does not apply. See Arce v. State, 762 So.2d 1003 (Fla. 4th DCA 2000). Finally, appellant claims that he did not receive notice of the habitualization, but that claim too is refuted by the record and sentencing transcript.

Affirmed.

TAYLOR and MAY, JJ., concur.


author: PLEUS, C.J.

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    Ernest O. JENKINS, a/k/a Mack L. Jenkins, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2580.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.

      Ernest O. Jenkins, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, C.J.

Jenkins appeals an order dismissing his complaint for writ of mandamus. He argues that the lower court erred in dismissing his complaint because it demonstrated a prima facie case for relief. He also argues that the lower court erred in imposing a lien on his inmate trust account because this action was a collateral criminal proceeding exempt from such liens. We reverse the dismissal order and remand with instructions to issue an order to the Volusia County Sheriffs Office to show cause why mandamus should not be granted. We affirm the lien, however, as Jenkins has failed to establish that this was a collateral criminal proceeding.

Facts

Jenkins filed a complaint for a writ of mandamus alleging that a detainer lodged against him by the Volusia County Sheriffs Office in 1983 was still pending against him. He asked the lower court to remove the detainer because it was impeding his eligibility for a lesser form of custody and for early release. Jenkins attached several responses from prison officials indicating the existence of this detainer.

The lower court entered an Order on Application for Indigent Status, which declared Jenkins indigent, but ordered him to pay the initial court costs from his prison trust account at a rate of $10 per month. Jenkins filed a Motion for Review of this order, claiming that this action was exempt from the imposition of a statutory lien on his prison trust account because it was a collateral criminal proceeding.

The trial court did not address Jenkins’ motion. Instead, it entered an Order Dismissing Writ of Mandamus. The order stated in pertinent part, “In the instant petition, Mr. Jenkins requests that the Court remove detainer number 83-53278. The Seventh Judicial Circuit has no record of the detainer....” The court attached a copy of a computer printout from the Volu-sia County Justice Information System stating that Ernest Osbie Jenkins had “no warrants on file.” Jenkins timely appealed.

Mandamus

To be entitled to a writ of mandamus, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy. Chapman v. State, 910 So.2d 940, 941 (Fla. 5th DCA 2005). The State argues first that “if there is no warrant, there is no relief that can be granted.” That argument was the basis for the lower court’s dismissal. The court attached a copy of a computer printout from the Volu-sia County Justice Information System stating that Ernest Osbie Jenkins had “no warrants on file.”

A warrant is not a detainer. “A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Chapman, 910 So.2d at 941 n. 1 (quoting Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)). Thus, it is not clear how the lower court’s check for warrants on the court system’s computer would reveal a detainer lodged by the Vo-lusia County Sheriffs Office. Second, even if such a check would have revealed a detainer, the court only checked under the name Ernest Osbie Jenkins, not his alias, Mack L. Jenkins, which appears on all of Jenkins’ prison documentation.

Jenkins’ complaint named the State of Florida as the respondent and requested the lower court to order the Department of Corrections to remove the detain-er. Jenkins failed to name the appropriate respondent, which would be the Volusia County Sheriffs Office because it lodged the detainer. See Perkins v. State, 766 So.2d 1173 (Fla. 5th DCA 2000) (holding that mandamus is proper remedy to require whoever lodged detainer to remove it). Nevertheless, Jenkins’ complaint alleged that the Volusia County Sheriffs Office lodged the detainer. Thus, the lower court had a sufficient basis to deem the sheriffs office as the proper respondent.

In short, it appears that Jenkins’ complaint sufficiently alleged his right to have the detainer removed. It also sufficiently alleged that Jenkins had no other remedy available. We therefore reverse the dismissal order and remand with directions to the lower court to issue an order to the sheriffs office to show cause why mandamus should not be granted.

The Lien

Jenkins argues that the trial court erred by imposing a lien on his prison trust account to pay for the filing fees in this action because it was a collateral criminal proceeding, which is exempt from liens under section 57.085(10), Florida Statutes. The State argues that Jenkins never obtained a ruling on his motion for review and should therefore be required to obtain a ruling on that motion. However, Jenkins notes that he filed a letter of inquiry about his motion for review and the lower court responded by asserting that his case had been dismissed. Accordingly, this issue was not waived.

On the merits, a collateral criminal proceeding is one which may directly affect a prisoner’s time in prison. Scott v. McDonough, 946 So.2d 1161, 1162 (Fla. 1st DCA 2006) (citing Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003)). Jenkins asserted below that the detainer adversely affected his eligibility for early release pursuant to sections 775.084 and 941.1405, Florida Statutes (1989). These citations do not support Jenkins’ contention. Accordingly, Jenkins has failed to establish that this was a collateral criminal proceeding.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

ORFINGER and EVANDER, JJ., concur.

      . There is no section 941.1405, Florida Statutes (1989).


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    William ABBOTT and Bernice Abbott, Appellant, v. FORWARD DESIGN DEVELOPMENT, INC., Appellee.
    No. 5D06-1818.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.

      Adam K. McGinnis, of Adam K. McGin-nis, P.L., Orlando, for Appellant.
    Richard E. Stadler, of Stadler & Harris, P.A., Titusville, for Appellee.
   PER CURIAM.

The test to be utilized with respect to restraints on alienation is the test of reasonableness. Iglehart v. Phillips, 383 So.2d 610, 614 (Fla.1980). The validity or invalidity of a restraint depends on its long-term effect on the improvement and marketability of the property. Id. Here, the contract was not an unreasonable restraint on the alienation of the property since it did not have a long-term effect on the improvement and marketability of the property.

AFFIRMED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


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    José A. MAJORS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6049.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    José A. Majors, pro se, Petitioner.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, DAVIS, and THOMAS, JJ., concur.


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    Delorise HARRAWAY, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES and Florida Division of Risk Management, Appellees.
    No. 1D06-4155.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Rehearing Denied June 5, 2007.

      David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellant.
    H. George Kagan and Amy B. Siegel of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

AFFIRMED. See Mack v. Westminster Suncoast Manor, 929 So.2d 610 (Fla. 1st DCA 2006); City of Bartow v. Brewer, 896 So.2d 931 (Fla. 1st DCA 2005).

BARFIELD, KAHN and PADOVANO, JJ., concur.