author: EVANDER, J.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Michael CAMBRON, etc., et al., Respondents.
    No. 5D06-1306.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.

      Frank Ingrassia of Powers, McNalis, Torres & Teebagy, West Palm Beach, for Petitioner.
    Alan B. Taylor and Richard C. Swank of Litchford & Christopher, P.A., Orlando, for Respondent Michael Cambrón.
    No Appearance for Respondents Foxhall II Condominium Association, Inc., Armando Lincoln Motta, Sonia Motta, William Massey and Foxhall Management.
   EVANDER, J.

Allstate Insurance Company seeks a writ of certiorari to quash a discovery order. We grant the writ, but without prejudice to the trial court entering an order permitting discovery in accordance with this opinion.

Respondent, Michael Cambrón, is the owner of a unit in the Foxhall II Condominium development. Allstate is the insurer for the condominium association. Cambrón has brought an action against the condominium association and three individuals who served as board members during the relevant time period, alleging that the condominium association refused to repair the leaky roof over Cambron’s unit despite the fact that the roof was a common element. Cambrón claims his numerous complaints to the board members were ignored. As a result of the condominium association’s alleged inaction for several years, Cambrón claims his unit was so badly damaged by roof leaks that it was ultimately condemned by the local governing authority. Cambron’s third amended complaint contains six counts, including a count against the three board members for breach of fiduciary duty.

During the course of the litigation, Cam-brón served a subpoena duces tecum to Allstate directing inter alia that Allstate produce its entire claims file. In response, Allstate filed a motion for protective order. At the hearing on the motion, Cambrón greatly narrowed the scope of his requested production from Allstate. Specifically, Cambrón advised the court he was only requesting “the communications to find out what kind of investigation Allstate did and who at the association told them to shut down the investigation.” In support of his request, Cambrón advised the court that, out of frustration, he had previously filed a claim directly with the association’s insurer. Cambrón further advised the court that he was subsequently notified by an insurance adjuster that Allstate had ceased its investigation at the request of the condominium association. It was Cambron’s belief that the board of directors “closed down the investigation by Allstate, not because there wasn’t an insurable claim, but because of animosity between the board and Mr. Cambrón.”

This court has subject matter jurisdiction pursuant to Fla. Const. Art. V, § 4(b)3 and Fla. R.App. P. 9.030(b)(2)(A), (3). Under Florida law, certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); Compton v. West Volusia Hosp. Auth., 727 So.2d 379 (Fla. 5th DCA 1999); Wooten, Honeywell & Kest, P.A. v. Posner, 556 So.2d 1245 (Fla. 5th DCA 1990) (orders granting discovery traditionally reviewed by certiorari because once discovery is wrongfully granted, the complaining party is beyond relief). Further, discovery of privileged documents may cause irreparable harm. See Martin-J ohnson; Compton.

We agree with the trial court that documents indicating the board had instructed Allstate to proceed to investigate Cambron’s claim, or alternatively, to cease investigating Cambron’s claim would be relevant to Cambron’s breach of fiduciary duty count. We further agree that this limited production would not invade Allstate’s asserted work-product privilege. A letter from a condominium association to its insurer requesting the insurer to investigate (or not investigate) a claim of water damage by a unit owner is not a document which would normally be considered privileged work-product. Indeed, this type of document is usually prepared in the ordinary course of business of a condominium association and made available for inspection by unit owners. In this case, the record suggests the association did not possess the requested documents and had voiced no objection to Allstate being required to produce same.

Unfortunately, the written order ultimately issued by the trial court was overly broad. The order required Allstate to produce:

Copies of letters from the Insured, Fox-hall II Condominium Association, Inc. to Allstate Insurance Company, concerning the handling of this file; or notations of communications from the Insured to Allstate Insurance Company, concerning the handling of this claim; ...

The order was overbroad because it would require Allstate to produce correspondence from the condominium association received subsequent to Cambron’s filing of his lawsuit, including possible communications regarding legal defenses, settlement considerations, and other privileged matters. On remand, the trial court should limit the documents required to be produced by Allstate solely to those letters (or notations of communications) from its insured regarding any request or direction to investigate (or not investigate) the claim filed by Cambrón directly with Allstate.

Petition for Writ of Certiorari GRANTED.

SAWAYA and PALMER, JJ., concur.

      . We acknowledge a letter from the condominium association requesting Allstate to investigate (or not investigate) Cambron’s claim might contain work-product material. However, Allstate’s remedy would be to redact the work-product material, not refuse to produce the document in its entirety. If disputes remain between the parties, an in camera inspection by the court is an available option.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald James LINDSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2427.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Ronald J. Lindsey, Chipley, pro se.
    No Appearance for Appellee.
   EVANDER, J.

Appellant challenges the trial court order denying his motion for post-conviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 (2005). We affirm the trial court’s order but not for the reason recited by the trial court.

As a result of entering a nolo contendré plea to an attempted sexual battery charge, appellant was sentenced, on December 2, 2004, to fifteen years in the Department of Corrections followed by ten years probation. He did not appeal. On June 1, 2006, appellant filed his motion for post-conviction DNA testing. On June 6, 2006, the trial court denied the motion. In denying the motion, the trial court understandably relied on the language set forth in section 925.11, Florida Statutes (2005), which limited the right to file motions for post-sentencing DNA testing to individuals whose convictions had resulted from a trial. See also Stewart v. State, 840 So.2d 438 (Fla. 5th DCA 2003).

Although the trial court’s decision was correct when made, it later became incorrect as a result of the amendments made to section 925.11 in this year’s legislative session. Newly enacted section 925.11(l)(a)(2) extends the right to file a motion for post-conviction DNA testing to individuals who have entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006. Therefore, appellant could seek post-conviction DNA testing notwithstanding the fact that his conviction resulted from a plea rather than a trial.

Although appellant was permitted to file a motion for post-conviction DNA testing, his motion was woefully inadequate in complying with the pleading requirements set forth in rule 3.853(b). The trial court’s order of dismissal is affirmed, without prejudice to appellant filing a legally sufficient motion.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.


author: SAWAYA, J.

text:
    L.C.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3370.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

L.C.W. appeals the order denying her motion to suppress and finding her in direct criminal contempt. We affirm the order denying the motion to suppress without further discussion.

We reverse the order of direct criminal contempt because the trial court did not hear the alleged contemptuous statement uttered by L.C.W., the comment did not obstruct or hinder the administration of justice, and the trial court failed to recite the facts upon which the finding of contempt was made. See Fla. R.Crim. P. 3.830 (“A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based.”); Hutcheson v. State, 903 So.2d 1060 (Fla. 5th DCA 2005). We note, parenthetically, that the State concedes this error.

AFFIRMED in part; REVERSED in part.

ORFINGER and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Freddy BARRETO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-717.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Freddy Barreto, South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Pursuant to section 960.292, Florida Statutes (2005), the trial court was authorized to impose a civil restitution lien order for incarceration costs. Ilkanic v. City of Ft. Lauderdale, 705 So.2d 1371 (Fla.1998).

AFFIRMED.

SAWAYA, TORPY and EVANDER, JJ„ concur.


text:
    Frederick C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1768.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Frederick C. Williams, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The trial court’s order of dismissal is affirmed without prejudice to appellant filing a legally sufficient motion within 30 days of the date of issuance of the mandate. Davis v. State, 869 So.2d 612 (Fla. 5th DCA 2004).

AFFIRMED.

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


text:
    E.D.C., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3119.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    James S. Purdy, Public Defender, and Marvin Clegg, Assistant Public Defender, Daytona Beach, for Petitioner.
    Charles J. Crist, Jr. Attorney General, Tallahassee and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

E.D.C., a child, seeks a writ of habeas corpus, claiming that he was unlawfully committed to the Department of Juvenile Justice. E.D.C. alleges that the lower court set aside his lawful term of juvenile probation, and committed him to a level 4 program, even though no new affidavit of violation of probation was filed. The state concedes the double jeopardy violation. Cf. N.H. v. State, 723 So.2d 889 (Fla. 5th DCA 1998); W.E. v. State, 658 So.2d 1177 (Fla. 2d DCA 1995). To revoke juvenile probation, the proper procedure must be followed. See generally Fla. R. Juv. P. 8.120(a). We therefore grant the petition and order that petitioner be released from commitment and reinstated to probation. This is without prejudice to initiate proper revocation proceedings.

PETITION GRANTED.

THOMPSON, PALMER, and ORFINGER, JJ., concur.


author: KLEIN, J.

text:
    GLOBAL HEIR AND ASSET LOCATORS, INC., and Terrence E. Rosenberg, Appellants, v. FIRST NLC FINANCIAL SERVICES, LLC, et al., Appellee.
    Nos. 4D05-392, 4D05-1764.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Rehearing Denied Sept. 13, 2006.
    Stanley Jay Bartel of the Law Offices of Stanley Jay Bartel, The Villages, for appellant Global Heir and Asset Locators.

      Peter S. Heller of the Law Offices of Peter S. Heller, P.A., Miami, for appellant Terrence E. Rosenberg.
    Cary A. Lubetsky and Joseph J. Huss of Krinzman, Huss & Lubetsky, Miami, for appellee.
   KLEIN, J.

We withdraw our previous opinion filed on May 31, 2006 and replace it with this opinion.

Appellant Global is in the business of contacting former property owners who may be entitled to funds in the registry of the court in mortgage foreclosure cases. Global regularly recommended appellant Rosenberg as a lawyer to clients to pursue these funds. In this case the trial court ruled that Rosenberg’s clients were not entitled to the funds, and assessed fees against Rosenberg and Global under section 57.105, Florida Statutes (2004). The court also fined Rosenberg $5,000 because Rosenberg acted in bad faith and “his professional behavior was egregious.” We reverse.

Appellee First NLC held a second mortgage on the property which was foreclosed in this case, and after defaults were entered against the owner and First NLC in the foreclosure action, the property was sold. The sale produced excess funds which were deposited in the registry of the court. Global then contacted the former property owners and advised them that it was possible that they could recover the excess. On the recommendation of Global, the owners hired Rosenberg to pursue their claim. The owners then filed a motion, which was served on First NLC and all other claimants, to have the funds distributed to them, and First NLC responded that it was entitled to the funds.

The legal position of the former owners was that they were entitled to the funds because First NLC had been defaulted in the original foreclosure proceeding, and that as a result of the default, First NLC no longer had a claim to the proceeds. The trial court ruled in favor of First NLC and then, on its own, issued an order to show cause against the former owners, Global, and Rosenberg, as to why fees under section 57.105, Florida Statutes should not be assessed. After receiving responses to the order to show cause, the court awarded fees to First NLC, explaining:

5. The established law clearly does not permit payment to [the former property owners], or to their enrichment, at the expense of First NLC. Yet, in this proceeding, attorney Rosenberg filed a motion (and sent correspondence directly to the court) in which his actions were directly contrary to existing law and wholly inconsistent with material facts. Even after he knew, or should have known, of the applicable facts, he continued to claim [the former property owners] were entitled to receive all of the surplus proceeds.
6. Florida law, however, is well established. [The former property owners] do not, as a matter of law or fact, have a superior claim to the excess proceeds.

In addition, the court ordered Rosenberg to pay a fine of $5,000 as a sanction for pursuing the claim.

At the time the former owners filed their motion to claim the excess proceeds, in April, 2004, the issue of whether a junior mortgagee who was defaulted in a foreclosure could later claim surplus funds had not yet been decided in this district. The trial court granted First NLC’s motion for distribution of surplus proceeds on May 21, 2004, and issued its order to show cause why section 57.105 fees should not be assessed on July 9, 2004. After that, on September 22, 2004, this court issued an opinion in Household Finance Services, Inc. v. Bank of America, N.A., 883 So.2d 346 (Fla. 4th DCA 2004), holding that the default against the junior mortgagee does not preclude that mortgagee from claiming excess proceeds. In reversing, we relied on Schroth v. Cape Coral Bank, 377 So.2d 50 (Fla. 2d DCA 1979), and Hamilton v. Hughes, 737 So.2d 1248 (Fla. 5th DCA 1999).

Because the issue had not yet been decided in this district when this claim was pursued, we do not agree with the trial court that Florida law was so well established as to warrant fees under section 57.105. It follows from that conclusion, of course, that the additional fine assessed against Rosenberg based on the same behavior must also be vacated. We find no merit in the remaining issues. Reversed.

SHAHOOD and TAYLOR, JJ., concur.


author: CANADY, Judge.

text:
    Christopher M. VANSLYKE, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2380.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Christopher M. Vanslyke, Sr., appeals his judgment and sentence for possession of cannabis with intent to sell or deliver. Vanslyke entered a no contest plea, reserving the right to appeal based on the trial court’s denial of a dispositive motion to suppress cannabis seized by police during a warrantless search of Vanslyke’s dwelling. The search was based on a report of child abuse. Vanslyke contends the denial of the suppression motion was erroneous because (1) a child abuse report did not give police probable cause and did not establish that exigent circumstances existed so as to permit police to conduct a warrantless entry and search of Vanslyke’s residence; and (2) even if the entry was legal, the police exceeded the scope of the purpose of the search. We conclude that the warrantless search was unlawful because the State failed to prove that there was an emergency which necessitated the warrantless entry.

I. Background

At the hearing on the motion to suppress, Jamie Schoolnik, a Department of Children and Families (DCF) investigator, testified that she received a report concerning children residing with Vanslyke that had been phoned in to the department’s central abuse hotline. The report “alleg[ed] substances exposed and conditions hazardous to the children.” The report “was not concerning injury to the children.” After the call was received by the hotline, a follow-up call was made to the person who phoned in the report. According to Sehoolnik’s testimony, the report of abuse was classified as a “24 hour report,” requiring investigation within twenty-four hours of receipt of the report of abuse, rather than an “immediate” report, which would require investigation within three hours of the abuse report.

Schoolnik and Tampa police officer Mark McGowan went to Vanslyke’s residence to investigate the allegations. When Vanslyke opened the door, School-nik and Officer McGowan identified themselves. Vanslyke told Schoolnik and Officer McGowan that no children were inside the residence and that he [Vanslyke] did not live at the residence. Vanslyke then shut the door. Believing that Vanslyke was lying, Schoolnik and McGowan called for backup and waited outside.

Tampa police sergeant William Rousseau testified he responded to the scene after Schoolnik advised him about a report involving “drugs and guns, I believe, in the house with children.” A few minutes after Sergeant Rousseau arrived, Vanslyke and another man walked out of the residence. Officer McGowan and Sergeant Rousseau immediately detained the men to determine whether Vanslyke lived at the residence and if he knew anything about the children. While handcuffing Vanslyke, McGowan smelled marijuana on Van-slyke’s clothing and hair. Officer McGowan and Sergeant Rousseau then accompanied the men back into the residence and proceeded to search for the children.

During the search, Schoolnik, Officer McGowan, and Sergeant Rousseau noticed children’s clothing and toys in two bedrooms, although they never located any children. Officer McGowan looked inside a bedroom closet and noticed a child’s backpack. Officer McGowan testified he then looked inside the backpack to determine if it contained any information that would reveal the whereabouts of the children. Officer McGowan discovered marijuana in the backpack.

The trial court denied the motion to suppress the marijuana found in the backpack. The trial court determined that Schoolnik had reason to believe the children were in danger and had reason to go through the home to investigate the children’s welfare. Regarding the search of the backpack, the trial court stated:

I think its reasonable to look at a child’s — inside a child’s backpack because that corresponds with something that was — that a child uses to take things back and forth to school, whatever, that could have its name in it so that an officer, and more so the DCF investigator, could tell whether or not the child lived there so they can conclude their investigation properly.

II. Argument on Appeal

For his first point on appeal, Vanslyke argues that the warrantless entry and search of his home were illegal because the police lacked probable cause and because there were no exigent circumstances. He contends the police were acting on an anonymous tip that did not include specific allegations of child abuse and for which there was no indicia of reliability. Van-slyke also contends that even if the police had probable cause, the tip failed to establish that exigent circumstances existed so as to permit the police to enter the house without a warrant.

The State responds that based on the totality of the circumstances, the police were justified in entering and searching the home under the basis of the “emergency exception” to the warrant requirement, which permits the police to enter and investigate a person’s home in order to preserve life or render first aid.

For his second point on appeal, Van-slyke contends that even if the police lawfully entered the house based on probable cause and exigent circumstances, they exceeded the scope of the purpose of the search by looking in areas where a child could not be found, such as in a backpack. Vanslyke argues that once the children were not located within the house, the police lacked authority to continue the search.

On this point, the State contends that the exigent circumstances which justified the initial entry also justified the search of the backpack because Officer McGowan believed it might contain information about the children’s whereabouts.

III. Analysis

In Brigham City v. Stuart, — U.S.-, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), the Supreme Court set forth the principles of Fourth Amendment law that are the starting point for our analysis:

It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. Nevertheless, because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to certain exceptions.... [WJarrants are generally required to search a person’s home or his person unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.
One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.

Id. at 1947 (citations and some internal quotation marks omitted) (alteration in original).

Whether a warrantless search is justified by such an emergency does not turn on the “subjective motivation” of the police. Id. at 1948. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action.” Id. (some internal quotation marks omitted) (alteration in original). Accordingly, “[the] police may enter a residence without a warrant if an objectively reasonable basis exists for the [police] to believe that there is an immediate need for police assistance for the protection of life.” Seibert v. State, 923 So.2d 460, 468 (Fla.2006). “In other words, where safety is threatened and time is of the essence, ... ‘the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry.’” Riggs v. State, 918 So.2d 274, 279 (Fla.2005) (quoting Arango v. State, 411 So.2d 172, 174 (Fla.1982)). “[A] key ingredient of the exigency requirement is that the police lack time to secure a search warrant.” Rolling v. State, 695 So.2d 278, 293 (Fla.1997). In addition, “an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists.” Id. “[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).

A phone call reporting child abuse may, of course, provide the basis for conducting a warrantless entry to render emergency assistance to an injured child or to protect a child from imminent injury. But for a report to justify a warrantless entry, the report — considered in the context of the totality of relevant circumstances — must provide “an objectively reasonable basis” for the police “to believe that there is an immediate need for police assistance,” Seibert, 923 So.2d at 468, to “render emergency assistance” to an injured child or to protect a child from a threat of “imminent injury,” Brigham City, 126 S.Ct. at 1947.

In State v. Boggess, 115 Wis.2d 443, 340 N.W.2d 516 (1983), the Supreme Court of Wisconsin considered the sufficiency of an anonymous report of abuse to justify a warrantless entry of the house where the allegedly abused children resided. The anonymous caller reported that two named children who were living with the defendant “may have been battered and were in need of medical attention.” Id. at 519. “The caller also indicated that one of the children ... was limping, and that because of bruises the caller witnessed on [that child], [the child] may have further damage done to his body and should be checked by a doctor.” Id. Finally, the caller “stated that he knew the [defendant’s family] fairly well and that [the defendant] had a bad temper.” Id. On the basis of this information, the police went to the defendant’s residence. When the police explained their purpose, the defendant asked if they had a warrant. The police responded that no warrant was necessary and entered the defendant’s house. Upon examining the children, evidence of child abuse was readily observed.

The Boggess court analyzed the sufficiency of the anonymous phone call to establish the existence of an exigent circumstance as a basis for the warrantless search under the principles employed in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Gates held there was probable cause for issuance of a search warrant based on an anonymous letter indicating that the defendants were involved in committing drug offenses and predicting activities of the defendants, where the letter’s predictions were substantially corroborated by the police.

Utilizing the Gates analysis, the Boggess court concluded that the detailed information provided by the anonymous informant provided a reasonable basis for the war-rantless search.

The caller did not simply make a generalized statement that the children had been abused but specifically indicated that [one of the children] had bruises and was limping. The caller also indicated that he knew the [defendant’s family] fairly well, and that [the defendant] had a bad temper. The detail provided indicates that the caller was speaking from personal knowledge and not merely repeating an idle rumor. The caller’s statements ... also reflect[ ] his basis of knowledge, and indicate[ ] that he in all likelihood obtained his information from personal observation, not from gossip or rumor.

340 N.W.2d at 524. Based on these circumstances, the court in Boggess held that “a reasonable person would have believed that the children within the [defendant’s] residence were in immediate need of aid or assistance due to actual or threatened physical injury, and that there was an immediate need for entry into the home to provide that aid.” Id. at 522.

In the instant case — unlike Boggess — the record is devoid of any details that would provide support for the conclusion that the report of abuse was reliable. Even though the identity of the person making the report was known to DCF, there is no showing concerning the basis for the informant’s knowledge of the supposedly threatening circumstances. There is nothing in the record to show that the information provided by the citizen informant was based on the informant’s personal knowledge. Although information provided by a “ ‘citizen-informant’ ” is ordinarily considered to be “at the high end of the tip-reliability scale,” State v. Maynard, 783 So.2d 226, 230 (Fla.2001), a particular “informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge’ ” must always be “understood as relevant considerations in the totality-of-the-eircum-stances analysis” that guides the determination of the reasonableness of reliance by the police on the information provided by the informant, Gates, 462 U.S. at 233, 103 5.Ct. 2317. Here, the record shows no basis in the abuse report itself or in the surrounding circumstances for crediting the report of abuse.

Moreover, the report provided no basis for concluding either that the children had suffered any injury or that they were at risk of imminent injury. The vague statements concerning “substances exposed,” “conditions hazardous,” and “drugs and guns” are insufficient to establish that it was necessary for the police to enter Van-slyke’s house “to protect an occupant from imminent injury.” Brigham City, 126 S.Ct. at 1947. Even a reliable report that children were living in a house where drugs and guns were present would not show the existence of an exigency justifying a war-rantless search without an additional showing of a specific threat of imminent harm to the children in the house. Similarly, the fact that the officer detaining and handcuffing Vanslyke outside Yanslyke’s house smelled marijuana on him does not demonstrate a specific threat of harm to children in the house.

Finally, although the test we apply is one of objective reasonableness, the fact that DCF itself classified the report of abuse as one which did not require “immediate” investigation is consistent with the conclusion that there was not an “immediate need for police assistance,” Seibert, 923 So.2d at 468, and that the police did not “lack time to secure a search warrant,” Rolling, 695 So.2d at 293.

IV. Conclusion

The search of Vanslyke’s dwelling without a warrant was conducted in violation of the Fourth Amendment. The trial court therefore erred in denying the dispositive motion to suppress the marijuana. Van-slyke’s conviction is reversed, and the case is remanded with instructions that Van-slyke be discharged on the cannabis charge.

Reversed and remanded.

NORTHCUTT and STRINGER, JJ., Concur.

      .Vanslyke was also charged with possession of methamphetamme and obstructing an officer without violence. The methamphetamme charge was dismissed. The obstructing an officer charge — to which Vanslyke also entered a no contest plea — is not at issue in this appeal.

      . See § 39.201(2)(a), Fla. Stat. (2003).

      . See § 39.201(5).

      . The officer also found methamphetamine and marijuana in a cigar box. The trial court granted the motion to suppress with respect to the contents of the cigar box.

      . For other circumstances in which a report of child abuse was held to justify a warrant-less search, see State v. Jones, 188 Ariz. 388, 937 P.2d 310, 317-18 (1997); State v. Plant, 236 Neb. 317, 461 N.W.2d 253, 260-63 (1990).

      . The name of a person reporting child abuse is, of course, subject to certain confidentiality requirements. See § 39.202(5).

      . For various circumstances in which a report of child abuse was considered insufficient to justify a warrantless search, see Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1095 (3d Cir.1989); Walsh v. Erie County Dep’t of Job & Family Servs., 240 F.Supp.2d 731, 749 (N.D.Ohio 2003); Lopkoff v. Slater, 898 F.Supp. 767, 775 (D. Colo. 1995), aff'd, 103 F.3d 144 (10th Cir. 1996); Chavez v. Bd. of County Comm'rs, 130 N.M. 753, 31 P.3d 1027, 1031, 1037 (2001).


author: VILLANTI, Judge.

text:
    Gary J. GOOD, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D06-1342, 2D06-1777.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.
   VILLANTI, Judge.

Gary J. Good appeals the denial of his pro se motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the postcon-viction court misinterpreted Good’s motion, it denied a claim he did not raise and did not address the claim he actually raised. Consequently, we reverse and remand for the postconviction court to consider the motion on the merits.

As his sole claim, Good challenged his habitual felony offender (HFO) sentences as violative of the Florida Supreme Court opinion in Hale v. State, 630 So.2d 521, 524-25 (Fla.1993) (holding that HFO sentences for crimes committed in a single criminal episode may not be imposed consecutively). Good alleged that his consecutive HFO sentences were imposed for crimes committed in a single criminal episode and that this claim was resolvable from the face of the record without resort to any extra-record facts. Good’s motion is facially sufficient. See Downs v. State, 870 So.2d 46 (Fla. 2d DCA 2003).

However, the postconviction court interpreted Good’s claim to be that “he was improperly sentenced as a Habitual Felony Offender because the offenses [prior convictions] used to habitualize him resulted from a single criminal episode contrary to the requirements of Fla. Stat. 775.084.” After receiving the State’s response, the postconviction court denied that claim. Unfortunately, the claim as framed by the postconviction court was not the claim Good asserted. Good attempted to correct this misinterpretation by filing a timely motion for rehearing but to no avail. The postconviction court denied the motion for rehearing.

Good has filed a facially sufficient motion, and the postconviction court must consider it. See Bailey v. State, 911 So.2d 1293 (Fla. 2d DCA 2005); Bernal v. State, 892 So.2d 1086 (Fla. 2d DCA 2004). Accordingly, we reverse the denial of Good’s motion and remand for the postconviction court to consider the motion on the merits.

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.