text:
    DEPARTMENT OF REVENUE on behalf of Florence L. MONEYHAM, Appellant, v. Virgil K. MONEYHAM, Appellee.
    No. 1D05-2206.
    District Court of Appeal of Florida, First District.
    June 22, 2006.
    Charlie Crist, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

The Department of Revenue, acting on behalf of Florence L. Moneyham, appeals a final administrative order determining the child support obligations of Virgil K. Moneyham, appellee. We agree with the Department that the findings in the order of the Administrative Law Judge (ALJ) determining both current and retroactive child support are not supported by evidence in the record and violate provisions of section 61.30, Florida Statutes (2005). Accordingly, we reverse and remand for further proceedings.

On remand, the ALJ shall prepare a child support guidelines worksheet after determining appellee’s gross income in accordance with section 61.30(2)(a), Florida Statutes (2004), and the allowable deductions pursuant to section 61.30(3), in order to arrive at appellee’s net income for purposes of the guidelines schedule. See § 61.30(6). While the ALJ is allowed to adjust child support based upon the considerations set forth in section 61.30(ll)(a), if such adjustments are made, the ALJ shall set forth findings explaining the use of these considerations. See § 61.30(l)(a) (“The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.”). Further, while the ALJ may adjust the child support arrearage pursuant to section 61.30(17)(b), the ALJ can do so only after finding that the “actual payments made by the noncustodial parent” were “for the benefit of the child.” See, e.g., Ondrejack v. Ondrejack, 839 So.2d 867, 871-72 (Fla. 4th DCA 2003)(holding fact-finder required to make specific findings of fact in applying section 61.30, which provides the statutory formula used to determine child support obligation). On remand, the ALJ is ordered “to determine the parties’ current financial situation and recalculate their child support obligations on a worksheet using current financial information and applying the child support guidelines.” Long v. Long, 916 So.2d 823, 824 (Fla. 2d DCA 2005).

REVERSED and REMANDED for further proceedings consistent with this opinion.

KAHN, C.J.; ERVIN, and VAN NORTWICK, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan BABIJ, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-1034.
    District Court of Appeal of Florida, First District.
    June 22, 2006.
    Jonathan Babij, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

By “Motion for Review” pursuant to Florida Rule of Appellate Procedure 9.430, Jonathan Babij seeks review of the circuit court’s denial of his motion for relief from an order that found him to be indigent but placed a lien on his inmate trust account to recover court costs and fees related to his filing of a petition for writ of mandamus in that forum.

As we noted in LaMadline v. Crosby, 867 So.2d 552 (Fla. 1st DCA 2004), rule 9.430 only authorizes the review of an order of a lower tribunal relating to a request to proceed as an indigent in appellate proceedings. We therefore treated the motion for review as a petition for writ of certiorari, but conclude that certiorari review is inappropriate because Babij will have an adequate remedy on appeal from the final order entered in the circuit court proceedings. See Higueras v. Crosby, 924 So.2d 18 (Fla. 1st DCA 2005). Accordingly, we deny the petition without prejudice to Babij’s right to pursue that course once the circuit court proceedings have concluded.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

BENTON, POLSTON, and THOMAS, JJ., concur.


author: SALCINES, Judge.

text:
    Chad Edward HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4721.
    District Court of Appeal of Florida, Second District.
    June 23, 2006.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Chad Edward Holley appeals the convictions and sentences which were entered on his no contest pleas in two cases. We affirm the convictions; however, the State candidly and correctly concedes that several preserved sentencing errors require reversal and remand for corrections. Thus, we reverse the sentences in both cases and remand for the appropriate corrections. We also direct the trial court to correct the written judgment in trial court case number 04-7887.

Holley was charged in trial court case number 04-7064 with driving while license revoked as a habitual traffic offender for an offense occurring on April 14, 2004. Holley was charged in trial court case number 04-7837 with driving while license revoked as a habitual traffic offender, obstructing or opposing an officer without violence, and reckless driving for offenses occurring on April 23, 2004. The State ultimately dropped the charge of reckless driving.

Holley filed two motions to suppress arguing, among other things, that the evidence supporting the charges in both cases was obtained as a result of an illegal stop, search, and seizure in each case. A single evidentiary hearing was held on both motions to suppress. The trial court denied the motions. We affirm the denial of those motions.

Following the denial of the motions to suppress, Holley entered open no contest pleas to the single charge in trial court case number 04-7064, driving while license revoked as a habitual traffic offender, as well as the two remaining charges in trial court case number 04-7837, driving while license revoked as a habitual traffic offender and obstructing or opposing an officer without violence. The trial court adjudicated Holley guilty as charged and entered written judgments. Notably, the written judgment in trial court case number 04-7837 included the count for reckless driving even though that charge had been dropped by the State prior to the entry of Holley’s pleas.

The trial court orally pronounced sentences of 180 days’ incarceration in the county jail on each count in each case to run concurrently. The court also pronounced certain costs and fees. Pertinent to this appeal, the trial court imposed a discretionary cost for the court facilities fund in each case. Although there is some confusion in the record concerning the amounts of the court facilities fund costs orally pronounced and the amounts ultimately included in the costs orders, suffice it to say the trial court imposed the foregoing discretionary costs without determining whether Holley had the ability to pay the assessment.

Holley preserved for review several sentencing errors by timely presenting his claims to the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Holley asserted that the trial court had improperly imposed the court facilities fund cost in each case. He additionally maintained that the written sentence in trial court case number 04-7837 was inadequate because the sentences were combined as a general sentence and that the written sentences did not reflect the trial court’s oral pronouncement that the sentences in trial court case number 04-7837 were to run concurrently with the sentence in trial court case number 04-7064. Finally, Holley asserted that the written judgment in trial court case number 04-7837 improperly included a conviction for the reckless driving charge which had been dropped by the State.

In this appeal Holley argues that although the trial court granted relief as to the erroneous costs orders, it failed to file the amended sentences and costs orders. He also argues that the trial court failed to address the remainder of the aforementioned preserved claims. The State concedes that the arguments raised by Holley in this appeal pertaining to the sentencing errors have been properly preserved and afford a basis for relief. Thus, we reverse the sentences and costs orders in both cases and remand for the appropriate corrections. We further direct the trial court to enter a corrected written judgment in trial court case number 04-7837 to include only the two offenses for which Holley was convicted.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CANADY, JJ., Concur.

      . Holley entered pleas reserving the right to appeal the denial of his motions to suppress which the State agreed were dispositive. We find no error in the trial court’s denial of the motions to suppress.

      . It is apparent that the inclusion of the reckless driving charge on the written judgment was a scrivener’s error.


text:
    OFFICE DEPOT and Sedgwick Claims Management Services, Inc., Appellants/Cross-Appellees, v. Anna ORTEGA, Appellee/Cross-Appellant.
    No. 1D04-5625.
    District Court of Appeal of Florida, First District.
    June 27, 2006.

      Timothy Dunbrack of Kelley, Kronen-berg, Gilmartin, Fichtel & Wander, Orlando, for Appellants/Cross-Appellees.
    ' Gary L. Fernandes of The Law Offices of Davis & Fernandes, Gainesville; Susan W. Fox and Wendy S. Loquasto of Fox & Loquasto, P.A., Tampa and Tallahassee, for Appellee/Cross-Appellant.
   PER CURIAM.

Office Depot, the employer/carrier (E/ C), appeals a final workers’ compensation order directing it to pay claimant permanent total disability (PTD) benefits, together with supplemental benefits. Claimant, Anna Ortega, cross-appeals the denial of her claim for penalties, contending the judge of compensation claims (JCC) erred in finding the E/C timely filed its notice of denial within the statutory period provided in section 440.192(8), Florida Statutes. We summarily affirm the award of PTD benefits, concluding that the JCC’s findings were based on competent, substantial evidence, and his interpretation of the applicable statutes governing a determination of PTD was correct. As to his denial of the claim for penalties, it clearly appears from the record that the employer did not file its notice of denial within 14 days after its receipt of the petition for benefits, as required by section 440.192(8), and the denial is reversed. See also Kilbourne & Sons v. Kilbourne, 677 So.2d 855, 859 (Fla. 1st DCA 1995).

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, PADOVANO, and HAWKES, JJ., concur.


text:
    David Wesley VICKERS, Petitioner, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Respondent.
    No. 1D06-1267.
    District Court of Appeal of Florida, First District.
    June 27, 2006.
    Mark C. Bryan, Jacksonville, for Petitioner.
    Patrick F. Creehan, Chief Construction Attorney, and Lisa Livezey Comingore, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Without further comment, this petition for review of non-final administrative action is denied on the merits.

DENIED.

ALLEN, DAVIS, and THOMAS, JJ., concur.


author: FARMER, J.

text:
    Gary KENLEY, Appellant, v. INWOOD PROPERTY INVESTMENTS, INC., Appellee.
    No. 4D05-2893.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    John M. Howe of Lavalle, Brown, Roman & Mullins, P.A., Boca Raton, for appellant.
    Ronald P. Ponzoli of Ponzoli, Wassen-berg, Sperkacz & Keller, P.A., Miami, for appellee.
   FARMER, J.

By summary judgment, the trial court determined that defendant could not legally be held liable in money damages for a child who fell from a dock on a seawall into an open body of water covering sharp rocks. Among other things, plaintiff alleged that the property owner was negligent in failing to erect safety barriers and warnings. In affirming, we reject the father’s contention that the “open and obvious” doctrine as applied to bodies of water is not applicable when the victim is a young child.

The outcome in this case is yet another result of the rule applied in the line of cases represented by Saga Bay Property Owners Ass’n v. Askew, 513 So.2d 691 (Fla. 3d DCA 1987). There the parents of a six year old child who drowned in an artificial lake near their home brought an action against the owners of the residential development in which the lake was located, alleging that the owners were negligent in failing to fence the area. The Third District held that the owners could not be held liable because “an owner of a natural or artificial body of water has no duty to fence it.” 513 So.2d at 693. The court reasoned:

“The fundamental proposition that drowning is a risk inherent in any body of water leads to some equally fundamental legal principles. The owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers. To shift the responsibility to the lake owner — by virtue of ownership alone- — -is to unreasonably require the owner to fill the lake or fence it in order to guard against being held liable.” [e.s.]

513 So.2d at 692-93; see also Navarro v. Country Village Homeowners’ Ass’n, 654 So.2d 167 (Fla. 3d DCA 1995) (deep water drop-off did not constitute concealed dangerous condition and thus, under Saga Bay, association could not be held liable for negligence in connection with resident’s death).

Likewise, in Walters v. Greenglade Villas Homeowners Ass’n, Inc., 399 So.2d 538 (Fla. 3d DCA 1981), the same court held that a condominium association could not be held liable for the drowning death of a resident child in a canal bordering the common area. The court explained:

“To hold as the appellant suggests would require every landowner, who owns land adjacent to a canal in Dade County, to construct a fence or wall preventing access to the canal. We do not think that such a duty exists.”

399 So.2d at 539.

Indeed, we followed Saga Bay in Scott v. Future Investments of Miami, Inc., 559 So.2d 726 (Fla. 4th DCA 1990), where the mother of a seven year old boy who drowned in a water control canal bordering the rear of her apartment complex sued the owners of the apartments for wrongful death. The canal was not owned by the owners of the apartment complex. The child’s mother alleged that failure of the owner of the apartment complex “to erect a fence or provide other safety precautions next to the sandy embankment with its sudden drop-off was negligent maintenance of the complex.” Relying on the Saga Bay rule that “an owner of a natural or artificial body of water has no duty to fence it,” we held that “[i]f the law is such for an owner of a body of water surely the law is at least the same for a nonowner.” 559 So.2d at 727. Compare Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029 (Fla. 4th DCA 1993) (fact question existed in action for damages from drowning death of child in lake excavated for drainage purposes in residential development; local water management district regulations created duty which, if breached by developer, would give rise to cause of action for damages; and record demonstrated question of fact as to whether developer had complied with such regulations in constructing lake). Accordingly, we affirmed the trial court’s ruling that the owner of the apartments had no duty to erect a fence to prevent residents’ access to the canal.

More recently in Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 801 So.2d 1015 (Fla. 4th DCA 2001), we applied the rule where the victim fell into a drainage canal and struck her head on a rock and drowned. We rejected the plaintiffs contended exception to the rule for bodies of water with a very steep drop off from the bank. We quoted the following:

“The rule supported by the decided weight of authority is that the owner[s] of artificial lakes, fish ponds, mill ponds, gin ponds and other pools, streams and bodies of water are not guilty of actionable negligence on account of drownings therein unless they are constructed so as to constitute a trap or raft or unless there is some unusual element of danger lurking about them not existent in ponds generally.”

801 So.2d at 1017 (quoting Allen v. William P. McDonald Corp., 42 So.2d 706, 706 (Fla.1949)). We held that plaintiff failed to support the claim that the canal in question presents a unique danger generally not existing with similar bodies of water or that the canal contains a dangerous condition virtually constituting a trap. 801 So.2d at 1017-18.

We see no way around these “body of water” cases. Florida is planted thick with masses of water, large and small, many touching towns, cities and residential developments from the very western tip of the Panhandle to the outermost island in the Keys. What the law might require for one lake or canal or river or pond must inevitably apply to all of them. The body of water rule has been around for more than a half-century. Any change or abandonment of the rule would have far-reaching effects in this state. Even though one might advocate a rule protecting young children who fall or walk into such bodies, it is up to the Legislature to make such a change.

Affirmed.

STONE and MAY, JJ., concur.


author: STONE, J.

text:
    Byron TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3578.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Taylor, convicted of attempted murder in the first degree with a firearm, asserts that he was deprived of his right to jury consideration of lesser-included offenses by the trial court’s instructions and the verdict form. See Franklin v. State, 877 So.2d 19 (Fla. 4th DCA 2004). We affirm.

The jury was instructed:

In this case Byron Taylor is accused of Attempted Murder in the First Degree with a Firearm.
Attempted Murder in the First Degree with a Firearm includes the lesser crimes of Attempted Murder in the First Degree, Attempted Murder in the Second Degree with a Firearm, Attempted Murder in the Second Degree, Attempted Voluntary Manslaughter with a Firearm and Attempted Voluntary Manslaughter, and Aggravated Battery, all of which are unlawful.

The verdict form lists the charged offense and the lesser-included offenses; after each, the jury is instructed that if they find the defendant guilty of the particular offense, “you must answer the questions on the following page.” That page asked the jury if, during the course of the crime committed, Taylor actually possessed a firearm, if so, during the course of the crime committed did Taylor discharge a firearm, and if so, during the course of the crime committed did Taylor inflict great bodily harm upon the victim as a result of the discharge of a firearm in Taylor’s possession.

Defense counsel objected to the verdict form

[bjecause it gives the — well, first of all, I’m also including to the wording of lesser included offense in here. I don’t — I don’t think that should be in here, because it is not making a difference. It is not making a difference at all. It is — every single one of these still carried — has a firearm attached to it. It is the same offense.... I think it is incredibly confusing, and I don’t think it makes a lot of sense

The trial court responded, “I don’t feel the verdict form is suggestive in any way, and I don’t feel it is confusing in any way.... I think the objective here is to ensure that the jury is more precise in knowing what the jury’s intention is.... ”

Prior to the court charging the jury, defense counsel renewed the objection to the verdict form being confusing and as to the lesser-included offenses. The court invited defense counsel to provide a verdict form that she found acceptable and to explain the form in closing arguments. During the jury charge, the court read and explained the verdict form to the jury. The instructions made it clear that only if the jury found Taylor guilty of one of the crimes, as indicated on the verdict form, need it then answer the additional questions as to that crime.

There was no indication in the record of jury confusion. Further, this is not a case where the trial court failed to instruct on a lesser-included offense that is one step removed from that found. See State v. Abreau, 363 So.2d 1063 (Fla.1978). We note that Taylor’s defense was that he shot the victim in self-defense.

“[A] trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.” James v. State, 695 So.2d 1229, 1236 (Fla.1997) (citation omitted).

Taylor argues on appeal that because the charged offense was subject to the 10-20-life statute, section 775.087(2)(a), Florida Statutes, the lesser-included offenses presented on the verdict form were not lesser offenses because they carried the same penalty as the charged offense if the jury found possession, discharge, and great bodily harm under the 10-20-life statute. See Franklin.

Taylor’s objection as addressed to the trial court, however, was focused not on the discrete issue of law posed in Franklin, but appeared to be based on counsel’s concern about jury confusion. Further, to the extent that Taylor claims that the objection at bar raises the same objection addressed in Franklin, it was simply too generalized to alert the trial court to the substance of the objection.

We, therefore, conclude that this issue was not properly preserved for appeal. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985).

Although Franklin may well be distinguishable, we need not address whether it applies on these facts. Because we do not reach the merits, we do not certify any issue to the supreme court.

FARMER and MAY, JJ., concur.

      . In Franklin, we reversed a conviction of a lesser-included offense, where the jury, which could have found the appellant guilty of attempted second-degree murder with a firearm, found him guilty of the lesser-included offense of aggravated battery. The jury found that he discharged a firearm and inflicted serious bodily injury. Under section 775.087, the 10-20-life statute, the penalty for the aggravated battery was increased so that it was no longer less than if he had been convicted of attempted second-degree murder with a firearm. We agreed that under the facts of that case, the aggravated battery was not a lesser-included offense. We further concluded that one of the reasons for allowing juries to convict on lesser-included offenses is to allow a jury to exercise its "pardon” power and that, in doing so, we must consider all applicable statutes. Franklin is currently under review in the supreme court.


text:
    Solomon S. CHATOWITZ, Appellant, v. David Roy HEFFERNAN, Esq., Appellee.
    No. 3D05-2372.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Oscar Syger (Pembroke Pines), for appellant.
    Abadin Jaramillo Cook & Heffernan and David R. Heffernan and Erin E. Dardis, Miami, for appellee.
    Before COPE, C.J., and LEVY and SHEPHERD, JJ.
   PER CURIAM.

In so far as the granting of the motion for final summary judgment was based on grounds not raised in the motion itself, the ruling is in error. Accordingly, we reverse the Order granting final summary judgment; said reversal is without prejudice to appellee to file a motion for summary judgment which may include the grounds upon which summary judgment was granted.

Reversed and remanded.


text:
    Katherine JEWELL and Robert Jewell, Appellants, v. SOUTH FLORIDA STADIUM CORPORATION, Appellee.
    No. 3D05-2856.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Downs, Brill, Whitehead & Sage, Coral Gables, and Kevin W. Whitehead; and Karen J. Haas, Miami, for appellants.
    Waldman, Feluren, Hildebrandt & Trigoboff, and Craig J. Trigoboff, Weston, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990); Gonzalez v. Rose, So.2d 39, 41 (Fla. 3d DCA 2000).


text:
    BOULDER MANAGEMENT, INC., Petitioner, v. The CHARIS HEALING MINISTRIES & The Rev. Paul J. Schweinler, Respondents.
    No. 4D05-4309.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Shula E. Mizrachi of Weinstein & Associates, P.A., Coral Springs, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Boulder Management, Inc. (Boulder), the defendant landlord in a landlord-tenant dispute, seeks certiorari review from an order of the Broward County circuit court, in its appellate capacity, which dismissed Boulder’s appeal from a county court final money judgment against it and the order denying its motion for rehearing. We grant the petition.

In dismissing the appeal, the circuit court granted the motion filed by the respondent tenants, the plaintiffs/appellees below, which was based on Boulder’s failure to file a timely initial brief. Boulder admits that its first motion for extension of time to file the initial brief was not served until some two weeks after the deadline for serving the initial brief, and it does not indicate whether it presented, at the hearing on its several motions for extension, any good cause for failing to serve that motion within the time frame for serving the initial brief.

However, the filing of briefs is not jurisdictional and the appellate rules allow for extensions of time for most steps in the appellate process, including the filing of briefs. Dismissal is a sanction which the appellate court should not have imposed without first giving Boulder ten days to file its initial brief, along with fair warning in advance that a failure to file the brief by the deadline may subject its appeal to dismissal. See Fla. R.App. P. 9.410 (requiring that an appellate court give ten days notice before imposing sanctions, such as dismissal, for the violation of any of the Florida Rules of Appellate Procedure); Mirage Pools, Inc. v. Dewitt, 757 So.2d 1280 (Fla. 4th DCA 2000); United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004) (en banc).

As the circuit court departed from the essential requirements of law, we quash the order of dismissal and remand for further proceedings.

Granted.

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


text:
    Misty WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4316.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The state concedes that Appellant’s conviction must be reversed and remanded for a new trial because the record was devoid of a written waiver of a jury trial, nor did the record reflect the trial court conducted an inquiry as to whether Appellant knowingly, intelligently, and voluntarily waived jury trial. Tucker v. State, 559 So.2d 218 (Fla.1990); Mickens v. State, 773 So.2d 655 (Fla. 4th DCA 2000); Hyler v. State, 732 So.2d 1208 (Fla. 4th DCA 1999). All other issues are moot.

Reversed and remanded for a new trial.

STONE, POLEN and FARMER, JJ., concur.


text:
    SHELOWITZ, SHELOWITZ, TERRELL & COFFEY, P.A., Petitioner, v. Hortense PETERS, Respondent.
    No. 4D06-1449.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Marc Shelowitz of Shelowitz, Shelowitz, Terrell & Coffey, P.A., Fort Lauderdale, for petitioner.
    No response by respondent.
   PER CURIAM.

Former counsel for the wife in an ongoing dissolution of marriage proceeding seeks review of a nonfinal order granting her motion to release discovery papers to her, in spite of her delinquency in paying fees she owes the firm. The firm filed a notice of retaining lien. We grant the petition.

In granting release of the files, the trial court stated that the “firm does not have a contract or a court order granting a retaining lien.” But the firm did have an implied-in-fact contract, even if not written, and did not need a court order to maintain its lien. Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60, 61-62 (Fla. 4th DCA 1996).

The order on review is capable of causing irreparable harm to the firm’s retaining lien. Rutherford, Mulhall & Wargo, P.A. v. Antidormi, 695 So.2d 1300 (Fla. 4th DCA 1997). Accordingly, the petition is granted and the order is hereby quashed.

Petition Granted.

POLEN, FARMER and KLEIN, JJ., concur.


author: MAY, J.

text:
    Brian M. YEARY, Petitioner, v. Ric L. BRADSHAW, Palm Beach County Sheriff, Respondent.
    No. 4D06-1395.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Carey Haughwout, Public Defender, and Daniel Cohen, Carol Bickerstaff and Nan Foley, Assistant Public Defenders, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   MAY, J.

The defendant filed an Emergency Petition For Writ Of Habeas Corpus challenging the trial court’s denial of bond at his first-appearance hearing. We granted the petition on April 12, 2006, with an opinion to follow.

The defendant was arrested for driving with a suspended license, fleeing and eluding, and resisting without violence. At the first-appearance hearing, the court denied bond. The justification for the denial was a pre-existing misdemeanor case for disorderly conduct that had not been resolved.

The court heard testimony from the defendant’s wife and reviewed the allegations. Defense counsel asked for a bond of $1,500 and an order prohibiting the defendant from driving until he obtained a valid driver’s license. The court stated: “I’m going to set no bond in the case because of the open pending charge.” From this order, the defendant filed the instant petition for writ of habeas corpus.

Rule 3.132 of the Florida Rules of Criminal Procedure dictates the procedural requirements for pretrial detention. The State may file a motion for pretrial detention, “setting forth with particularity the grounds and the essential facts on which pretrial detention is sought and certifying that the state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion.” Fla. R.Crim. P. 3.132(a). If no motion is filed or if the motion is insufficient, “the judicial officer shall proceed to determine the conditions of release.... ” Id. The State must show “beyond a reasonable doubt the need for pretrial detention .... ” Fla. R.Crim. P. 3.132(c)(1). In addition, the court is required to make findings of fact and conclusions of law to support a pretrial detention decision. See Fla. R.Crim. P. 3.132(c)(2).

Here, there was no motion, no findings of fact, and no conclusions of law. We therefore granted the writ and remanded the case to the trial court “to set bond or other reasonable conditions of pretrial release or to determine that no condition of release will protect the community, assure the presence of the petitioner or assure the integrity of the judicial process in accordance with the procedures proscribed in section 907.041(4)(c), Florida Statutes (2006).”

Petition Granted.

KLEIN and TAYLOR, JJ., concur.


text:
    Patricia Ann JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3316.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm an order revoking and terminating Jackson’s probation. Jackson, on probation for aggravated battery, was violated for an incident in which her fiancé, the victim, called 911 for help. He told the dispatcher and, later, the responding officer, that Jackson, apparently intoxicated, had rammed his vehicle with hers, more than once, and had hit him in the mouth. The victim did not testify. The evidence included admission of a tape of the 911 call from the victim and a written victim statement given to the police.

The issues on appeal are whether the trial court should have excluded the 911 tape as hearsay and whether it and the written statement are barred by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Initially, we conclude that the record supports the trial court’s conclusion that the 911 tape was an excited utterance, and not hearsay. Further, the 911 tape described events as they were actually happening and was neither testimonial, nor violative of Crawford in any circumstance. Davis v. Washington, — U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

We agree with both the First and Fifth Districts that Crawford is inapplicable in probation revocation proceedings; however, were this the criminal proceeding on the incident and not a violation of probation, the written statement would not be admissible under Crawford.

In Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006), the reviewing court affirmed revocation of the defendant’s probation based upon the victim’s hearsay and a police officer’s testimony. The Russell court looked to two federal circuits for guidance and recognized that a defendant is not entitled to the “full panoply of rights due a defendant in criminal proceedings.” Id. at 685 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

Similarly, in Peters v. State, 919 So.2d 624 (Fla. 1st DCA 2006), revocation of a defendant’s community control was affirmed and the question certified as to whether the testimonial hearsay rule in Crawford applied in community control and/or probation revocation proceedings. There, the admitted evidence was in a business record of an independent laboratory setting forth the results of drug tests. In Peters, the court recognized that Crawford does not apply in community control revocation proceedings, as “evidence which may not be admissible in an adversary criminal trial would be admissible in probation or parole revocation proceedings.” Id. at 626 (quoting Bernhardt v. State, 288 So.2d 490, 500 (Fla.1974)).

Therefore, the order and sentence are affirmed, and we certify to the supreme court the same Crawford issue certified in Peters: Whether the Crawford hearsay rule applies in community control and probation revocation proceedings.

POLEN, J., concurs.

FARMER, J., concurs in result and certified question only.


text:
    Rene LANDRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1872.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Gregory J. Morse of Morse & Morse, LLC, Special Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

The primary issue on appeal is whether the trial court committed reversible error by failing to conduct a Richardson hearing. We conclude that a hearing was required and reverse.

Landry was charged with child abuse. At trial, the victim, his daughter, testified to the facts of the charge. During direct examination, the state asked:

State: Have I or anyone — -has anyone asked you to tell a lie about this, [victim]?
[Victim]: Yes.
State: Who?
[Victim]: My dad.

At that point, defense counsel objected, claiming a discovery violation because he was never informed about the alleged statement by Landry to the victim, notwithstanding having taken the victim’s deposition. Based on the fact that defense counsel had deposed the victim at length, the trial court concluded that there had been no discovery violation.

Florida Rule of Criminal Procedure 3.220(b)(1)(C) requires the prosecution to disclose “the substance of any oral statements made by the defendant.” “[W]here the State fails to disclose to the defendant, prior to trial, the substance of any oral statement allegedly made by the defendant, then the State has committed a discovery violation and the trial court must conduct a Richardson hearing upon learning of the possible violation.” Irish v. State, 889 So.2d 979, 981 (Fla. 4th DCA 2004) (quoting State v. Evans, 770 So.2d 1174, 1179 (Fla.2000)).

The duty to disclose extends to a defendant’s statements made to a witness who is not an agent of the state. In Sears v. State, 656 So.2d 595 (Fla. 1st DCA 1995), the court reversed the trial court’s failure to conduct a Richardson hearing, where alleged statements made by the defendant to the victim were not disclosed. In Materno v. State, 766 So.2d 358 (Fla. 3d DCA 2000), the court considered whether there had been an adequate Richardson hearing when a witness against the defendant testified to a statement not contained in the witness’ sworn statement.

A Richardson hearing is required when there is a possible discovery violation in order to flesh out whether there has indeed been a discovery violation. In this situation, by merely inquiring if defense counsel had taken the victim’s deposition, the court could not know, by its limited inquiry, whether a violation had occurred. Although the state may not have asked the question to elicit this response, and the prosecutor may not have known of the defendant’s statement to the victim until the victim responded on the stand, these determinations can be made only through the mandated hearing.

We note that, as Landry points out, the state did not ask the victim if he, or another state agent, told her to lie, but, rather, asked her if “anyone” told her to lie.

We cannot say the error was harmless. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

We remand for a new trial. All other issues on appeal are moot.

POLEN and FARMER, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: KLEIN, J.

text:
    Denyse J. LAKE, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and K-Mart Corporation, Appellees.
    No. 4D05-2987.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Denyse J. Lake, Pompano Beach, pro se.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   KLEIN, J.

As a result of being injured on the job, claimant filed a worker’s compensation claim. The employer offered her light duty work when she was able to go back to work; however, claimant did not accept that offer, but instead agreed to a lump sum settlement of her worker’s compensation claim which provided that she would not return to work for the employer.

Claimant then sought unemployment benefits, but the appeals referee found that she had voluntarily left her employment in order to accept the worker’s compensation settlement. The commission affirmed and she now appeals.

In In re Astrom, 362 So.2d 312 (Fla. 3d DCA 1978), employees of a company were advised that the company was moving to New York. The employees were given the choice of early retirement and increased retirement benefits, or continuing to work until an undetermined date in the future. Several claimants who elected early retirement filed for unemployment benefits, and the third district held that by leaving their employment for early retirement, the employees had voluntarily left their employment without good cause attributable to the employer. It follows from Astrom that claimant in the present case also left her employment voluntarily, when she agreed to the settlement which terminated her employment, and we accordingly affirm the denial of benefits.

SHAHOOD and TAYLOR, JJ., concur.


text:
    J.P.N., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3690.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

After being informed by a man in a Wal-Mart parking lot that the occupants of a car were behaving in a suspicious manner, an officer stopped the vehicle and found drugs. Appellant, who was charged with possession, moved to suppress on the ground that this was an anonymous tip because the officer did not know the identity of the person from whom she received the information. We affirm the denial of the motion to suppress.

Because there had been a number of recent burglaries of vehicles in the Wal-Mart parking lot, the officer was patrolling the area more than she normally would have. An older man standing in front of the store flagged him down and advised that he was just about to call the police about the suspicious activity of a gray vehicle. The man, who was waiting outside while his wife was shopping, informed the officer that the vehicle was slowly moving up and down the rows of vehicles in the parking lot, and black males were getting out, looking into vehicles, and getting back in and moving on. About a minute or so into the conversation the man observed the vehicle leaving the parking lot and pointed it out to the officer. The officer then followed the vehicle, stopped it, smelled marijuana and observed marijuana smoke, and found drugs. The car was occupied by a white female driver and the white male passenger, J.P.N.; however, they explained that their friends, two black males, had been riding with them, but they had let them out at their own car in the parking lot.

Appellant appeals the denial of his motion to suppress, arguing that the information in this case was an anonymous tip which, without corroboration, is insufficient for an investigatory stop. Appellant relies on Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), in which an anonymous telephone caller informed the police that a young black man who was waiting at an identified bus stop, wearing a plaid shirt, and carrying a gun. The police proceeded to the bus stop where they observed three black men, one wearing a plaid shirt. Although the anonymous call was the only basis for a suspicion of illegal activity, the police approached the man, ordered him to put up his hands, and patted him down, finding a gun in his pocket. The Court held that the anonymous tip was not sufficiently reliable to establish reasonable suspicion for a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Most of the cases in which it has been held that the information was insufficient because it came from an anonymous tip involved information received over the telephone. Two exceptions involving face-to-face contact are Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000) and State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998). In Solino an officer was told in person, by a passing motorist, that a bottle had been tossed out of the window of a green Nissan which had been driving in front of the motorist. The motorist had flagged the officer down in order to relay this information, but the officer did not obtain his name or tag number. He did, however, find the Nissan and discovered that the defendant was driving without a license. We concluded, based on Reivis, which was factually on all fours, that even though the informant was face-to-face with the officer, the fact that his identity was unknown made the informant an anonymous tipster, and in the absence of corroborating information, the motion to suppress should have been granted.

Federal cases have upheld searches where officers have received face-to-face information from anonymous persons. In U.S. v. Heard, 367 F.3d 1275 (11th Cir. 2004), an officer was informed that a fight was in progress in a MARTA (the Atlanta transit system) station. After going inside the officer observed a woman yelling at the defendant and was able to resolve the dispute. The defendant then went one direction while the officer and the woman walked in the other, and the woman then informed the officer that the defendant was carrying a weapon. The officer instructed the woman to remain where she was, and then searched the defendant and found the weapon. The woman, however, did not remain at the station and was never seen by the officer again. The defendant was convicted of possession of a firearm by a felon.

The defendant in Heard argued for suppression based on J.L., but the eleventh circuit disagreed, explaining:

A face-to-face anonymous tip is presumed to be inherently more reliable than an anonymous telephone tip because the officers receiving the information have an opportunity to observe the demeanor and perceived credibility of the informant. See, e.g., U.S. v. Valentine, 232 F.3d 350, 354 (3d Cir.2000) (reasoning that face-to-face anonymous tip is more rehable than anonymous telephone tip because officers can judge the informant’s reliability); U.S. v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (citing cases supporting the proposition that face-to-face anonymous informants are more reliable than anonymous telephone tipsters for same reason); United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.1978) (“Unlike a person who makes an anonymous telephone call, this informant confronted the agent directly.”).
In this case, Gore had an opportunity to judge the demeanor and credibility of the unknown woman. Gore stated that the woman seemed frightened when she reported Heard’s weapon, and Gore reasonably presumed that Heard and the unidentified woman had some sort of relationship — they were arguing over money and Heard paid the woman the amount she demanded. See, e.g., Christmas, 222 F.3d at 144 (police reasonably concluded that informant, who lived two doors down from suspect, had knowledge of criminal activities occurring at her neighbor’s home). Thus, reasoning that Heard knew the woman, Gore could reasonably conclude that she would have reliable information about whether Heard possessed a weapon.
Heard, on the other hand, contends that Gore did not have reasonable suspicion to search him because Gore had concluded that the informant was unreliable after she fled the MARTA station. Gore testified, however, that he had decided to frisk Heard before the woman ran. The reliability of a tip is considered in light of all relevant circumstances, which include — but is not limited to — a consideration of whether the officer can track down the tipster again. In this case, although the unknown woman fled the MARTA station, because she and Heard apparently knew each other, she may have subjected herself to reprisal from Heard based on the tip she gave to Gore — which makes her more reliable. See, e.g., Christmas, 222 F.3d at 144 (informant who notified police that her neighbor was involved in illegal activity could have “exposed herself to the risk of reprisal ... [from] someone associated with the illegal activity.”). Considering the totality of the circumstances in this case, Gore reasonably concluded that the unknown woman’s tip was reliable, (footnote omitted.)

Heard, 367 F.3d at 1279.

As the Heard court observed, whether reliance on the tip is reasonable depends on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Applying the reasoning of Heard to this case, we conclude that there was sufficient reliability of the information received by the officer. First, the officer was patrolling the parking lot more than usual because there had been a number of recent burglaries of cars, and the tip involved conduct consistent with car burglaries. Second, the officer conversed with the man for sixty to ninety seconds face-to-face and had an opportunity to assess his credibility-

This case is distinguishable from Solino and Rems. In those cases the tip was not consistent with recent reports of similar crimes being committed in the area. We accordingly affirm the denial of the motion to suppress.

GUNTHER and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Shelby MYERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2919.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Shelby Myers, appeals the trial court’s order revoking his probation and sentencing him to twenty-seven years in prison. We reverse, because the trial court abused its discretion in finding a willful and substantial violation of a condition of probation.

Myers pleaded guilty to sexual offenses that arose out of a 1991 incident. In 1998, he was released from prison and his probation commenced. Upon his release, Myers entered a sex offender treatment program which was not a condition of his probation. In 2004, even though he was already attending a sex offender treatment program, the trial court modified Myers’ probation to sex offender probation as a result of a minor probation violation. The sex offender probation required as a condition of probation that Myers enteb, participate in, and successfully complete a sex offender treatment program.

In January 2005, Myers’ probation officer gave him permission to switch to a sex offender treatment program that was closer to where Myers lived, which was in a church serving as a homeless shelter. Before switching programs, the physical location of the first facility required Myers to ride his bicycle for two hours to reach the program. Myers began attending the new program and paid for his treatment at the new facility. However, upon learning that Myers began attending a different treatment program, the director of Myers’ initial treatment program objected to the probation office that the officer was allowing Myers to attend a program that was “somewhat easier.” The director of the original program felt that Myers’ compliance with the program was declining and that he was on “very shaky ground” before transferring programs. However, the state presented no evidence that Myers was told that his status in the initial program was problematic, nor did the state present evidence that Myers had any unexcused absences before he transferred to the new program.

On January 19, 2005, Myers’ probation officer instructed him to return to the original treatment program. That same day, Myers went to a treatment session provided by his initial program, but he was not given credit for attending because he did not pay the program fee, and it was not on his assigned night. Five days later Myers missed a treatment session and then missed again a week later. The initial program then terminated Myers from the program for missing the two sessions without excuse.

At the final hearing, Myers testified that he did not attend the two treatment sessions because he had already paid to attend the new treatment program and did not have the money for the dues at the initial program. Myers testified that if he were released from prison, he would continue treatment. At the conclusion of the hearing, the trial court found Myers’ violation to be willful and substantial and sentenced him to twenty-seven years in prison.

“For a violation of a condition of probation to trigger a revocation, the violation must be willful and substantial, and the state must prove it by the greater weight of the evidence.” Tobias v. State, 828 So.2d 1066, 1068 (Fla. 4th DCA 2002). This court reviews trial court decisions on violations of probation under an abuse of discretion standard. Matthews v. State, 736 So.2d 72, 75 (Fla. 4th DCA 1999).

Although generally unexcused absences from required therapeutic programs constitute willful violations of probation, see Marcano v. State, 814 So.2d 1174, 1176 (Fla. 4th DCA 2002), in the instant case the state presented insufficient proof of a willful violation. Myers had been attending his initial sex offender treatment program for over six years before he was terminated for the two “unexcused” absences. But Myers’ probation officer initially gave him permission to change programs and thus led a probationer with limited means to spend money on a program which he ultimately was not permitted to attend, leaving no funds for him to attend the required program. Thus, the state failed to prove a willful and substantial violation of probation. See Singleton v. State, 891 So.2d 1226, 1228-29 (Fla. 2d DCA 2005) (finding insufficient evidence of a willful and substantial violation where it was undisputed that the probationer did not have the money to pay for treatment at a required drug treatment program). Finally, Myers testified to a willingness to resume treatment. Under the unique circumstances of this case, we find that the trial court abused its discretion in revoking Myers’ probation. However, nothing in this opinion should be read as limiting the trial court’s authority to order Myers into a specific treatment program.

Reversed.

KLEIN and GROSS, JJ., concur.


text:
    Daniel P. REHM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1867.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Rehm appeals the judgment and sentence entered following a plea preserving the trial court’s denial of his motion to suppress drugs found in a search of his person. The issue is whether a drug dog’s alert on the seat and handlebar of a bicycle provides probable cause to search the rider. We reverse.

The facts are undisputed. An officer observed Rehm weaving on a bicycle with no headlight just before midnight and stopped him. The officer administered sobriety tests because Rehm appeared to be under the influence. Although Rehm passed the field tests, the officer observed indicators of drug use and requested consent to search. Rehm refused and, within minutes, a K-9 officer arrived.

The dog immediately alerted to the left handlebar and the seat of the bicycle, but a search of the bicycle turned up nothing. The K-9 officer did not walk the dog around Rehm. The officer then searched Rehm, checking the left front pocket first, and found a large amount of marijuana in a plastic bag.

Although it is conceded that the stop was proper, with no alert from the dog on Rehm, there was no probable cause for a search of his person. See B.T. v. State, 702 So.2d 248 (Fla. 4th DCA 1997). We note that there is no argument here that the officer was engaged in a search for weapons.

It is well established that a dog alert to a vehicle, or a seat in a vehicle, does not, in and of itself, provide sufficient probable cause to search the driver or a passenger. See Williams v. State, 911 So.2d 861 (Fla. 1st DCA 2005) (reversing conviction based upon search of a person conducted following drug dog alert to vehicle); Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), rev. granted, 880 So.2d 1212 (Fla.2004), rev. dismissed, 896 So.2d 748 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 545, 163 L.Ed.2d 499 (2005) (holding that a dog alert, standing alone, was not sufficient to establish probable cause for search of a vehicle because of possibility of alert to dead scents necessitating indicators of dog’s reliability); Cady v. State, 817 So.2d 948 (Fla. 2d DCA 2002) (ruling that dog alert to vehicle was insufficient to establish probable cause for search of passenger); Bryant v. State, 779 So.2d 464 (Fla. 2d DCA 2000) (holding that a dog’s alert to a- car door and seat, but not the person, gave police probable cause to search only the vehicle, but not the person himself); Woodbury v. State, 730 So.2d 354 (Fla. 5th DCA 1999) (Cobb, J., concurring) (not reaching the issue of probable cause to search a passenger based on a dog alert to a vehicle because it was not preserved, but acknowledging the absence of probable cause in similar circumstances); Rogers v. State, 586 So.2d 1148 (Fla. 2d DCA 1991) (reversing denial of a passenger’s motion to suppress because a dog alert to a van did not give probable cause to search occupants).

We note that there is no scientific support in the record for a proposition that a dog alert on a bicycle seat or handlebar is more indicative that the occupant is in present possession of drugs than a similar alert to a recently occupied automobile seat.

We have considered State v. K.V., 821 So.2d 1127 (Fla. 4th DCA 2002), and Bain v. State, 839 So.2d 739 (Fla. 4th DCA 2003), and deem them inapposite.

We remand for further proceedings.

FARMER, J., concurs.

POLEN, J., concurs in result only.

      . Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).


text:
    INTEGRATED BROADCAST SERVICES, INC., Appellant, v. Steven J. MITCHEL and Schell, Quillin, Mitchel & Cooley Law Firm, LLP, Appellees.
    No. 4D05-1157.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, and John W. Conness of the Law Offices of John W. Conness, P.A., Pompano Beach, for appellant.
    Daniel L. Saxe of Saady & Saxe, P.A., Lutz, for appellees.
   KLEIN, J.

Defendants Mitchel and his law firm represented appellant, who is the plaintiff in this case, in a federal lawsuit in which the other side prevailed. After the adverse judgment in that case, the federal court imposed sanctions on plaintiff in the form of a money judgment. In this case, plaintiff has alleged that former counsel were the cause of the sanctions and seeks damages against them. The trial court granted defendants’ motion for summary judgment on the ground that the statute of limitations for legal malpractice ran from the entry of the final judgment in federal court, rather than from when the subsequent sanction judgment became final. We reverse.

In the original litigation the federal district court entered a final summary judgment against Integrated, which was appealed and affirmed by the eleventh circuit on March 16, 2001. During the pendency of that appeal the defendants in the federal case moved for sanctions against Integrated and Mitchel, their counsel. Mitchel withdrew as counsel and then settled with the federal defendants, but the federal district court awarded sanctions against Integrated in the amount of $48,027.86. The sanction judgment was entered on May 24, 2001, and appealed to the eleventh circuit, but was ultimately settled which resulted in a dismissal of the sanction proceedings on January 7, 2003.

The period of limitations for legal malpractice is two years, section 95.11(4)(a), Florida Statutes (2003). This suit for legal malpractice, alleging that Mitchel was the cause of the sanctions, was filed more than two years after the federal court judgment in the underlying litigation became final, but within two years of the judgment for sanctions becoming final.

In order to be liable for malpractice resulting from litigation, the lawyer “must be the proximate cause of the adverse outcome of the underlying action which results in damage to the client.” Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla.1998). Because the damages caused by the sanctions did not exist at the time the judgment became final in the underlying litigation, the trial court erred -in concluding that the cause of action for legal malpractice for the sanctions accrued before the judgment for sanctions became final.

We have not overlooked defendants’ argument that plaintiffs complaint, when defendants’ motion for summary judgment was heard, alleged negligence causing the adverse judgment in the underlying law suit, and barely mentioned the sanctions. Plaintiff did, however, argue in its memorandum opposing the motion for summary judgment that the defendants had negligently caused the sanctions. Plaintiff also moved to amend to more definitely describe the sanctions and the relevant dates after the court announced it was granting summary judgment, but before a final judgment had been entered. The court should have granted the request to amend. Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So.2d 680 (Fla. 4th DCA 1998) (the trial court abused its discretion in not allowing plaintiff to amend by way of motion for rehearing of order granting summary judgment).

The summary judgment is affirmed as it relates to plaintiffs claims other than the damages resulting from the sanctions, but is reversed in order for plaintiff to file an amended complaint limited to damages caused by the sanctions.'

POLEN and SHAHOOD, JJ., concur.


text:
    In re CONFIDENTIAL PARTY.
    No. 2006-B-1335.
    Supreme Court of Louisiana.
    June 20, 2006.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for the institution of formal charges.

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


text:
    In re John S. KELLER.
    No. 2006-OB-1222.
    Supreme Court of Louisiana.
    June 20, 2006.
   ORDER

On August 4, 2005, respondent pleaded guilty in the United States District Court for the Eastern District of Louisiana to one count of misprision of felony, a violation of 18 U.S.C. § 4, in connection with a federal investigation into corruption at the Regional Transit Authority. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by John S. Keller, Louisiana Bar Roll number 7689, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of John S. Keller for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

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

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Lance D. AIRHART.
    No. 2006-OB-1542.
    Supreme Court of Louisiana.
    June 22, 2006.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Lance D. Air-hart, Louisiana Bar Roll number 18757, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Judge William A. ROE.
    No. 2006-O-1243.
    Supreme Court of Louisiana.
    June 23, 2006.
   PER CURIAM.

LThis matter comes before the court on the recommendation of the Judiciary Commission of Louisiana (“Commission”), pursuant to La. Const, art. V, § 25(C), that Judge William A. Roe of the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana, be publicly censured and ordered to pay the costs of the prosecution of these proceedings. For the reasons that follow, we adopt the recommendation of the Commission and publicly censure Judge Roe, as well as order him to pay costs.

FACTS AND PROCEDURAL HISTORY

In 1994, a class of oyster fishermen holding oyster leases in the Breton Sound area filed suit against the State of Louisiana and the Department of Natural Resources, asserting that their oyster leases were destroyed or damaged as a result of the State’s operation of the Caernarvon Freshwater Diversion Project, which altered salinity levels in the waters covering the oyster fishermen’s leases. Avenal v. State of Louisiana, No. 38-266 on the docket of the 25th Judicial District Court for the Parish of Plaquemines. Judge Roe presided over the trial of the Avenal case, which resulted in an award to the plaintiffs of more than $1 billion.

IgAndy Wilson, the State’s lead counsel in Avenal, filed an appeal of the trial court’s judgment. On May 18, 2003, while the appeal was pending, two newspaper articles were published in The Times-Pi-cayime about the Avenal case. The first article, entitled “Sinking Chances,” correctly quoted Judge Roe or paraphrased comments attributed to him, as follows:

Roe blamed the Plaquemines verdict on the state and the tactics of its lead attorney, Andy Wilson. In fact, Roe, who said he would have awarded much less money to the plaintiffs, said the state’s biggest mistake was insisting on a jury trial.
Roe said he repeatedly pressed the issue with Wilson, who represented the state ■ in both cases [Avenal and Alonzo]. He said he was concerned about the state’s ability to get a fair trial in a parish known for its “negative attitude toward the state.”
Roe said: “I must have asked Mr. Wilson five times, ‘Are you sure you want a jury? You want a group of Plaquemines Parish residents to decide a claim against the state?’ ... I thought it was a major disadvantage to the state’s case to have a jury trial.”
Roe said he didn’t play favorites in court. “I think I was equally harsh to all sides,” he said.
* * *
And though he said he believes the jury awarded far too much money to the plaintiffs, he said that wasn’t enough for him to overturn the award. “That’s not the standard for reducing a jury’s finding,” Roe said. “It’s whether or not there’s been sufficient evidence to support it.”

Featured on the second page of the article was a photograph of Judge Roe posing on the banks of the Mississippi River with his judicial robe billowing in the wind.

The second article, entitled “State’s attorney is blasted from all sides,” also quoted comments made by Judge Roe about Mr. Wilson:

1 s“Did I tease Andy Wilson? Absolutely,” acknowledged Judge William Roe, who oversaw a 2000 jury trial in which the plaintiffs were awarded an estimated $1.3 billion. “Did he deserve it? Absolutely.”

On June 25, 2003, the Office of Special Counsel (OSC) asked Judge Roe to respond to the allegations in the newspaper articles. By letter dated August 4, 2003, Judge Roe explained that he was contacted by a newspaper reporter who was writing a series of articles on coastal erosion and the effect the Avenal litigation had on the State’s efforts in that regard. Furthermore, because the lead attorney for the plaintiffs, Wendell Gauthier, had just died, the reporter indicated that he wished to talk about Mr. Gauthier’s last trial before his death and how Mr. Gauthier interacted with Andy Wilson. Judge Roe agreed to meet with the reporter but said that he would not go into detail about any of his rulings or the judgment.

During the meeting, which lasted for more than two hours, Judge Roe and the reporter discussed the political history of Plaquemines Parish, the judge’s legal career, and his election to the bench. They also discussed the contrasting personalities of Mr. Gauthier and Mr. Wilson. The reporter then asked Judge Roe about the allegations made by Mr. Wilson in his appellate brief concerning the judge’s treatment of him. Judge Roe responded by suggesting that he was equally harsh to all sides, a quote which later appeared in the newspaper article.

Judge Roe further explained that the quotes attributed to him concerning the size of the jury’s verdict were taken verbatim from the transcript of the post-trial motion hearings. The transcript of the hearings reflects that Judge Roe stated, on the record and in response to the State’s motion for new trial, that he believed the judgment against the State was too high and that he would have awarded a much ^smaller amount. Judge Roe also indicated that he could not modify the jury’s judgment on that basis because there was sufficient evidence to support the award.

Finally, the reporter asked Judge Roe about the selection of the jury. Judge Roe again referred the reporter to the transcript, but he commented that the jury selection was particularly difficult in the Avenal case because many citizens in the parish are involved in the oyster industry. Judge Roe also mentioned to the reporter that there had been extensive pre-trial discussion about whether the case should be tried by the judge and not by a jury, and that in Judge Roe’s view, the case would have been “better managed” as a bench trial.

PROCEEDINGS BEFORE THE COMMISSION

Formal Charge

On December 12, 2005, the Commission filed Formal Charge 0263 against Judge Roe, alleging that he engaged in judicial ethical misconduct by making improper public comments about the Avenal case. The Commission alleged that Judge Roe’s conduct violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2 A (a judge shall respect and comply with the law), 2 B (a judge shall not lend the prestige of judicial office to advance the private interest of the judge or others), 3 A(3) (a judge shall be patient, dignified, and courteous to ^lawyers and others with whom the judge deals in an official capacity), and 3 A(8) (a judge shall not, while a proceeding is pending in any Louisiana state court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness) of the Code of Judicial Conduct. The Commission further alleged that Judge Roe engaged in willful misconduct relating to his official duty and engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of La. Const, art. V, § 25(C).

Judge Roe answered the Formal Charge and admitted his misconduct, but denied such was willful; rather, Judge Roe claimed that he acted “based on extremely poor judgment and stupidity.” Elaborating upon his response to the OSC’s letter of inquiry, Judge Roe explained that he discussed a number of general issues with the newspaper reporter, as well as the Avenal case and “the contrasting personalities” of the lawyers involved. For instance, they talked about Mr. Wilson’s seersucker suits and Mr. Gauthier’s more casual style of dress, Mr. Gauthier’s malapropisms, and about the more formal approach to the proceedings by Mr. Wilson as compared to Mr. Gauthier. Judge Roe and the reporter also discussed how this played to the jury — a jury comprised of blue-collar, rural, non-professional people, most related in some way to the oyster industry. In that context, Judge Roe indicated that the major pre-trial issue was whether the State would fare better if the case were tried without a jury. This issue was also raised post-trial, when Judge Roe ruled on the State’s motion for new trial, stating that he would not have made the same award as the jury, but that was not the legal basis for modifying the jury’s award. Judge Roe also reiterated to Mr. Wilson the pre-trial discussions as to whether the State was better ^served by having a jury decide the case. Judge Roe did not discuss these rulings with the reporter but referred him to the transcripts.

Judge Roe also mentioned to the reporter that he teased and joked with all of the attorneys during the course of the trial, including Mr. Wilson and Mr. Gauthier, in an attempt to inject some humor and levity into the proceedings. This discussion was the source of the “teasing” and “harsh to all sides” comments in the newspaper articles.

Concerning his photograph in the first newspaper article, Judge Roe explained that he was told by the reporter that The Times-Picayune did not have a “stock” photograph of him without hair. The reporter asked if he could come by Judge Roe’s office and take a photograph for “file” purposes. When he did, he first asked if he could photograph Judge Roe on his Harley-Davidson motorcycle, which Judge Roe refused. He then asked whether he could take a head and shoulders shot of Judge Roe in his judicial robe with the river in the background, to which Judge Roe agreed. He stated that none of the photographs were supposed to be full-length, and more importantly, that the Caernarvon Freshwater Diversion Project “cannot be seen in the photograph and there was no intention that the photograph would have that purpose.”

With these explanations, Judge Roe stated:

... I ADMIT that my actions in meeting with and discussing this matter with a reporter for any purpose was wrong, in violation of the Canons of Judicial Conduct, and a matter of extremely poor judgment on my part. I regret having any discussion with the reporter about a pending matter, the embarrassment it has caused the judiciary and me personally, and the fact that the Times Picayune seized upon the interview to promote their agenda of merit selection of judges. I have no excuse for this extreme lack of judgment.

| r,Joint Stipulation

On April 10, 2006, Judge Roe and the OSC jointly filed a “Statement of Stipulated Uncontested Material Facts, Stipulated Conclusions of Law, and Stipulated Recommendation of Discipline.” The stipulation incorporated the underlying facts set forth above as well as Judge Roe’s responses to the OSC’s letter of inquiry and the Formal Charge. Based on these stipulated facts, the parties agreed that Judge Roe violated the Code of Judicial Conduct, for which misconduct the Commission should recommend a public censure and payment of costs. Specifically, the parties stipulated that Judge Roe violated Canon 3 A(8) because he made public comments about the Avenal case while it was pending on appeal that might reasonably be expected to affect its outcome or impair its fairness; violated Canon 2 A by failing to act at all times in a manner so as to promote public confidence in the integrity and impartiality of the judiciary; violated Canon 2 B’s prohibition against lending the prestige of his judicial office to advance the private interest of the judge or others by posing for the photograph that accompanied the newspaper article; and violated Canon l’s dictates that a judge personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved when he publicly criticized an attorney appearing before him in a hotly contested case, made comments about the general anti-State bias of the citizens of Plaque-mines Parish, and posed for a photograph.

Judge Roe did not stipulate that he engaged in willful misconduct relating to his official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of La. Const, art. IsV, § 25(C). While admitting that his conduct “was based on extremely poor judgment and stupidity” and that his conduct was public and prejudicial to the administration of justice, Judge Roe specifically denied that he engaged in “willful” misconduct and denied that he engaged in “persistent” conduct.

The Commission voted to accept the stipulated facts and legal conclusions presented by the parties, and to dispense with convening a hearing. Accordingly, the case was submitted to the court based solely upon the stipulations.

Prior Closed File

The Formal Charge and the stipulation between the parties also address a prior complaint involving Judge Roe in File No. 99-1686. The file was opened by the Commission upon receipt of a complaint from Marie Giordano, a litigant in a case pending in Judge Roe’s court. In her complaint, Ms. Giordano alleged that Judge Roe told a newspaper reporter that she is a convicted felon (a charge she denied), and that he later made the same remark to seven lawyers, including her own, during a telephone conference call. In January 2000, the Commission voted to close the file but cautioned Judge Roe to review Canon 3 A(8) of the Code of Judicial Conduct, “which prohibits public comments about pending cases that could affect the outcome or affect the fairness of the proceeding.”

Judge Roe admitted that he was cautioned by the Commission but denied that the closed file has any relevance to the instant case. Judge Roe stated that he made comments on the record and to the attorneys involved in the case that Ms. Giordano, who had been found to have illegally misappropriated over a million dollars from 19class action members, would not have any further involvement as a class representative. Judge Roe denied that was a “public” comment which could or would affect the fairness of the proceeding; rather, it was made as an indication of how that particular matter would proceed.

FINDINGS OF THE COMMISSION

Applying the factors set forth in In re: Chaisson, 549 So.2d 259 (La.1989), the Commission concluded as follows:

(a) and (b) While the Commission found that Judge Roe violated Canon 3 A(8) on the occasion giving rise to the Formal Charge, and he had engaged in earlier conduct that implicated violation of the same Codal provision, the members did not determine a pattern of misconduct. See (h) below;

(c) and (d) Judge Roe’s misconduct occurred with respect to his official judicial duties;

(e) Judge Roe has acknowledged the facts, as alleged, and he has admitted that his actions were wrong and indicated “extremely poor judgment on his part.” Judge Roe has admitted that he violated the Code of Judicial Conduct, but denies that he acted willfully;

| m(f) Judge Roe’s reaction to the Formal Charge and his cooperation during the Commission proceedings suggest that he will modify his conduct in the future;

(g) Judge Roe was elected to the bench in 1990, and so he was not a new judge when the conduct which led to the stipulation occurred;

(h) There has been one prior complaint lodged against Judge Roe that resulted in a cautionary letter of counseling. With regard to the prior complaint, the Commission found that Judge Roe’s conduct suggested a problem under Canon 3 A(8), by his having made public comments about a pending case. Judge Roe maintained that the prior factual scenario was different because there he made Comments in open court about a litigant’s involvement in other litigation. While the Commission does not necessarily agree with the distinction made by Judge Roe, the members did not find that the fact of this prior complaint enhances the recommended penalty that may be imposed;

(j) Of paramount concern to the Commission was that Judge Roe (1) granted an interview to the press, which led to a widely published article that potentially cast the judiciary as a whole into disrepute, and (2) publicly criticized an attorney who appeared before him in a hotly contested case. Judge Roe stipulated that he “teased” counsel, and certain members of the Commission commented upon the value of humor in an intense trial setting. However, the Commissioners are strongly of the opinion that judges should treat lawyers who appear before them with dignity and respect, all to maintain the public’s confidence in the “integrity and impartiality of the judiciary.” See Canon 2 A. For a judge to selectively criticize and malign one lawyer in a lawsuit may suggest partiality to the other side, particularly in the course of proceedings of political interest to many residents of the judge’s district, as was the Avenal case. Further, the Commission found Judge Roe’s being photographed in his Injudicial robes, as depicted in the New Orleans newspaper, indicative of his use of his judicial office for potential political purposes, in violation of Canon 2 B of the Code of Judicial Conduct.

The Commission did not find Judge Roe in bad faith, but agreed with him that his judgment was poor when he met with the press about the Avenal case. Considering the stipulations, including Judge Roe’s agreement that he should be publicly censured, the Commission voted to make a recommendation of public discipline to the court.

Based on these considerations, the Commission recommended that Judge Roe be publicly censured and that he be ordered to reimburse and pay to the Commission $25.08 in hard costs.

DISCUSSION

Because Judge Roe and the Special Counsel have stipulated to the facts, including those in mitigation, the sole issue presented is the appropriate measure of discipline in this case. In re: Shea, 02-0643 (La.4/26/02), 815 So.2d 813; In re: Decuir, 95-0056 (La.5/22/95), 654 So.2d 687. In determining an appropriate sanction, we are mindful that the primary purpose of the Code of Judicial Conduct is to protect the public rather than discipline judges. In re: Harris, 98-0570 (La.7/8/98), 713 So.2d 1138; In re: Martillo, 96-2222 (La.4/8/97), 692 So.2d 1019.

As the Commission concluded, Judge Roe’s decision to participate in a newspaper interview regarding a pending case led to a widely published article that potentially cast the judiciary as a whole into disrepute. Likewise, his public criticism of a lawyer in the Avenal lawsuit calls the judiciary’s impartiality into question, especially considering the politically charged nature of the Avenal litigation. An 112experienced jurist such as Judge Roe should be well aware of the need to maintain public respect and confidence in an impartial judiciary.

Nonetheless, we find the record supports the Commission’s determination that Judge Roe did not act in bad faith in this matter and that he displayed sincere remorse for his actions. Good faith is not an affirmative defense to a judicial disciplinary charge; however, it may be considered as a mitigating factor which militates in favor of a lesser sanction. Marullo, 96-2222 at p. 7, 692 So.2d at 1028; Chaisson, 549 So.2d at 267.

Considering all these facts, we conclude the sanction of public censure is appropriate. Accordingly, we will accept the recommendation of the Commission and publicly censure Judge Roe, as well as order him to pay the costs of the proceedings.

DECREE

For the reasons assigned, it is ordered that Judge William A. Roe be publicly censured for violating Canons 1, 2 A, 2 B, and most particularly, 8 A(8) of the Code of Judicial Conduct (1996). It is further ordered that Judge William A. Roe reimburse the Judiciary Commission of Louisiana the sum of $25.08.

      . A companion case, Alonzo v. State of Louisiana, was filed by oyster fisherman in St. Bernard Parish.

      . Specifically, the transcript reflects the following comments by Judge Roe in denying the State's motion for new trial:
      And ... of course, the Court’s first reaction to the size of the judgment was some amazement. Certainly, the judgment was much, much larger than I would have granted had I been hearing the case in lieu of a Jury. But, that is not the basis for the granting of a new trial. There was an extensive amount of evidence presented to the Jury on the issue of the value of the oyster leases taken by this inverse condemnation. ... In short, there was evidence presented at this trial, competent reasonable evidence upon which the Jury's findings was based.... [Biased on this record having presided over the trial, the Court is convinced that there was a basis upon which the Jury could make a determination on all of the issues presented.

      . For example, Judge Roe mentioned that Mr. Gauthier repeatedly referred to oysters as "orgasms” instead of "organisms,” which became a source of constant amusement to the jurors and attorneys involved in the case.

      . In light of these admissions, the parties pre-termitted any stipulation as to whether Judge Roe's public criticism of an attorney appearing before him in a hotly contested case also violated Canon 3 A(3)’s dictate that he be patient, dignified, and courteous to lawyers and others with whom he deals in an official capacity.

      . See Supreme Court Rule XXIII, § 3(d), which provides that "Closed files of prior proceedings against a judge may be referred to by the Commission at any stage of the current proceedings.”

      . In Chaisson, this court set forth a nonexclusive list of factors which may be considered in imposing discipline against a judge.
      These factors are as follows:
      (a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge's official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.

      . We find it of particular concern that Judge Roe previously was cautioned in the Giordano matter against making public comments about a pending case.