author: SALTER, J.

text:
    Marvin HOOD, et al., Appellants, v. Mirna M. VALLE, etc., Appellee.
    No. 3D06-2991.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    Rehearing and Rehearing En Banc Denied May 14, 2008.
    Clark Robb Mason Coulombe & Busch-man; Elizabeth K. Russo, Miami, and Craig Lee Montz, for appellants.

      Friedin & Dobrinsky and Manuel Dob-rinsky; Lauri Waldman Ross and Theresa L. Girten, Miami, for appellee.
    Before COPE, SHEPHERD, and SALTER, JJ.
   SALTER, J.

Marvin Hood and State Farm Mutual Automobile Insurance Company appeal a jury verdict, judgment, and order denying a motion for new trial in this wrongful death case. The plaintiff below, Mirna Valle, is the sister and personal representative of the estate of Maria Valle. She also brought the lawsuit on behalf of her mother. Maria Valle died at age thirty-three as a result of an automobile collision caused by Hood while he was intoxicated.

Hood and State Farm raise two issues on appeal: misconduct by plaintiffs counsel in presenting opening statement, and the alleged non-disclosure of material information by a juror during voir dire. Finding no reversible error as to either point, we affirm the verdict and rulings below.

The trial court’s rulings on the motions for mistrial and new trial on these grounds are reviewed for an abuse of discretion. Ricks v. Loyola, 822 So.2d 502, 508 (Fla.2002); State Farm Fire & Cas. Co. v. Levine, 875 So.2d 663, 666 (Fla. 3d DCA 2004).

Opening Statement

The case was originally set for trial on both compensatory and punitive damages. Before trial, Hood pled guilty to D.U.I. manslaughter, and he was in prison when the case came to trial. Noting that the defendants were assenting to Hood’s appearance in court in shackles (and concerned that this was part of a tactic to cause the jurors to think that Hood had no money), the plaintiff moved to bifurcate the compensatory and punitive damages phases, and the trial court ultimately granted that motion.

During a break between voir dire with a first panel of jurors for the compensatory damages phase and voir dire with a second panel for that phase, the parties entered into several stipulations. First, the economic damages were agreed upon. Second, the plaintiff dropped her punitive damages claim in return for a stipulation that: Hood drove the vehicle that collided with the vehicle in which Maria Valle was a passenger; the collision caused her death; Hood’s blood alcohol level was .235% (and the legal limit was .08%); Hood was legally intoxicated at the time of the incident; and he was at fault at the time of the accident. Defendants also stipulated that on the night of the collision in which Valle died, Hood had been in two other accidents before that collision.

Before trial, defendants moved for an order in limine to preclude, among other things, the plaintiffs use of the word “kill” during trial. Plaintiffs counsel agreed, and the motion was granted on that point.

During opening statement, plaintiffs counsel asked rhetorically, “What kind of pain and suffering has Mrs. Valle, the mother, suffered as a result of her first child being killed in this fashion and learning about the facts and circumstances of this case?” The defense did not object to the statement or move for a mistrial based on that violation of the earlier in limine ruling.

The defense did move for a mistrial, however, when plaintiffs counsel stated later in his opening that the jurors were “the conscience of this community.” The trial judge reserved ruling on the motion and agreed to give a curative instruction at a point to be selected by defense counsel. Defense counsel said he would let the court know later, but never did so. After the jury verdict was returned, the trial judge denied the motion for mistrial upon which he had previously reserved ruling.

During closing argument, the plaintiff suggested a range of $1.5 million to $2 million for past pain and suffering, and $2 million to $3 million for future pain and suffering — a range for total non-economic damages of between $3.5 million and $5 million. The jury awarded a total of $3.8 million, considerably closer to the low end of the range than the high end of the suggested award.

In the context of the entire case, we cannot say that the trial court abused its discretion. The “conscience of the community” comment was promptly interrupted, a curative instruction was offered, the comment was not accompanied by a request for the jury to punish Hood, and the outcome does not indicate that the jury was under the influence of passion, prejudice, or gross mistake. See Pierard v. Aerospatiale Helicopter Corp., 689 So.2d 1099 (Fla. 3d DCA 1997).

Voir Dire

Hood’s and State Farm’s second issue is based on the alleged non-disclosure of a material matter by a venire member in the first of two panels during jury selection. That individual was selected as a juror and became the foreperson.

After the jury was discharged, the trial judge authorized the jurors and attorneys to speak with one another if they wished. According to an attorney for Hood and State Farm, the foreperson then volunteered for the first time that his father had been an alcoholic during his youth, and that his “perception of the evidence in the case had been influenced by that fact.” The appellants maintain that the foreperson should have disclosed his father’s alcoholism in response to some of the questions asked during jury selection.

Hood and State Farm assert that prospective jurors were questioned about whether “anything about drinking” might affect their consideration of the D.U.I.related wrongful death case. Certain panel members responded to that general question by stating that they would be outraged if someone was driving drunk and killed a member of the panel member’s family. The person ultimately selected as foreperson of the jury responded in a more neutral way, according to the appellants, comparing the negligence involved in driving while intoxicated to the negligence inherent in driving while talking on a cell phone.

Shortly after that, all of the members of that first venire were addressed by defense counsel as follows: “I want to move now to alcohol in general and people’s feelings about that and their experience. Does anybody have any strong feelings about people who drink? Anyone else have strong feelings about that?” (emphasis added).

Hood and State Farm argue that the venire member should have disclosed then the material fact that his father was an alcoholic for some portion of the venire member’s youth. We disagree. First, neither the first venire as a whole nor the foreperson in particular was asked during jury selection whether a parent was or had been an alcoholic. Second, the general question to the first venire regarding “strong feelings about people who drink” was ultimately addressed to “anyone else,” because the foreperson had already responded to the question of whether he would be “outraged” by losing a family member in an accident caused by an intoxicated driver. The key to the establishment of a prejudicial concealment of information sufficient to invoke De La Rosa is a clear, direct question requiring a response by the venire member. No such question was posed here.

The second panel was asked questions that were more direct and which elicited a discussion on the topic of family members with substance abuse issues. Two members of that venire responded that their fathers had been alcoholics. But as these questions were asked, the previously-questioned first venire members (sitting separately) had no reason to believe that they were to participate in the questioning of the second panel, or that they had some duty to supplement their own previous answers in response to that later questioning. No member of the first panel, including the subject juror, responded to the questions addressed to the second panel. We do not find any indication that the juror in question concealed information during that questioning, and we find no abuse of discretion by the trial court in denying the appellants’ motions for a juror interview or new trial.

Affirmed.

      . The trial judge invited both sides to “come up with any cases” on the question of whether the use of the phrase "conscience of the community” in opening statement required a mistrial. Neither side presented any such cases or other research on the point.

      . Indeed, in closing argument, the defense portrayed Hood as a man who had already been punished and suggested that a large verdict would just be "more punishment.”

      . In fact, before questioning the subject juror during the voir dire of the first panel, defense counsel made it clear that he was not asking about family members. This was done after a sidebar in which counsel and the court discussed the potential "golden rule" problem with such questions.

      . De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. Sandra L. SOTO, Appellee.
    No. 3D07-614.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing and Rehearing En Banc Denied May 15, 2008.

      Cole Scott & Kissane and Scott A. Cole and Luisa M. Linares, Miami, for appellant.
    Ver Ploeg & Lumpkin and Stephen A. Marino, Jr. and Christine A. Gudaitis, Miami, for appellee.
    Before COPE, WELLS, and SALTER, JJ.
   SALTER, J.

Florida Insurance Guaranty Association, Inc. (FIGA) appeals a circuit court order granting a motion by Sandra Soto to: (1) substitute FIGA as defendant in place of an insolvent insurer; and (2) enforce a December 7, 2000 settlement agreement between that insurer and Soto. Finding no error in the trial court’s rulings, we affirm.

Soto, Plaintiff below and Appellee here, sued Fortune Insurance in 1997 after her car was stolen. In the December 7, 2000 settlement agreement, Fortune agreed to pay Soto $25,000, as well as her attorney’s fees and costs in an amount to be determined by the court. In accordance with the settlement, Fortune paid the $25,000. The parties exchanged general mutual releases which preserved Soto’s entitlement to attorney’s fees and costs when computed by the court. In January of 2001, Soto’s attorneys filed and served verified motions for their fees and costs.

Before the motions were heard, however, Fortune became insolvent and entered a rehabilitation and liquidation proceeding administered by the Florida Department of Financial Services. Under Florida’s statutory insurer liquidation system, FIGA became directly liable to Fortune’s insureds “to the extent of the covered claims” existing before the insurer was adjudicated insolvent. § 631.57, Fla. Stat. (2001).

In 2002, the trial court awarded $112,-801.50 to Soto’s attorneys and expert witness pursuant to the settlement agreement.

Ultimately Soto obtained an order from the circuit court in Tallahassee, which was administering the insurer’s liquidation, determining that she could pursue enforcement of her settlement agreement against FIGA in the original lawsuit in Miami. FIGA took the position, however, that the attorney’s fees and costs payable under the pre-insolvency settlement agreement were not a “covered claim” eligible for payment by FIGA.

The trial court correctly disagreed with FIGA’s interpretation of the statutes and cases. We review the court’s interpretation de novo.

The purpose of the FIGA Act is “to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.” § 631.51(1), Fla. Stat. (2001); see also Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So.2d 435, 442 (Fla.2005). We are to liberally construe the law to effect that purpose. See § 631.51, Fla. Stat. (2001). In short, “[t]he act is designed to protect Florida citizens, not the insurance industry.” Jones, 908 So.2d at 442.

“Covered claim” means an unpaid claim arising out of and covered by a policy issued by the insolvent insurer. § 631.54(3), Fla. Stat. (2001). In this case, there is no doubt that Soto’s original claim against the insolvent insurer arose from a policy and that it was covered. In Florida, automobile insurance policies are subject as a matter of law to the obligation to reimburse an insured for attorney’s fees and costs if the insured prevails in a lawsuit for payment of a claim under the policy. Id. at § 627.428. The Florida Supreme Court has held that section 627.428 is an implicit part of all insurance policies of the kind involved here. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993). It follows that Soto’s stipulated but unpaid attorney’s fee judgment is a “covered claim” within the meaning of subsection 631.54(3).

The original insurer, Fortune, acknowledged its obligations by settling for two payments: (1) a fixed amount immediately; and (2) an unliquidated amount of attorney’s fees and costs when calculated by the court. The contractual obligations of the original insurer merged into the judgments approving that settlement and liquidating the claim amount. While FIGA is not responsible for further attorney’s fees and costs incurred by the insured under section 627.428 after the insolvency — section 631.70 allows an exception as to post-insolvency fees and costs incurred by the insured when FIGA wrongly denies a claim — it is not relieved of the obligation to pay the insured’s attorney’s fees and costs incurred pre-insolvency for prevailing on a “covered claim.” To so hold would be to disregard the remedial purposes of the FIGA statute and to place the insured in a worse position, not the same position, than the insured occupied pre-insolvency with regard to the operative insurance policy.

FIGA also argues that we should be guided by the analysis in Florida Ins. Guar. Ass’n, Inc. v. All The Way With Bill Vernay, Inc., 864 So.2d 1126 (Fla. 2d DCA 2003). In that case, Reliance Insurance was the defunct insurer and Vernay the insured. Before Reliance’s insolvency, Linkous brought a lawsuit against Vernay. Reliance refused Vernay’s demand to provide a defense for, and to indemnify, Ver-nay regarding the lawsuit under the terms of the insurance policy issued by Reliance to Vernay. Vernay then filed a coverage action seeking a declaratory judgment against Reliance to establish Vernay’s rights to a defense and indemnity. Thereafter, Reliance was declared insolvent and FIGA was substituted as the defendant in the coverage action brought by Vernay. After Vernay prevailed in the underlying Linkous lawsuit against Vernay, Vernay obtained a summary judgment against FIGA in the coverage action for Vernay’s attorney’s fees and costs incurred in the Linkous action.

The Second District Court of Appeal reversed, finding that Vernay’s attorney’s fees and costs were not “within the coverage” of the policy. Id. at 1130. The particular policy language in that case specified that Reliance would only pay reasonable expenses incurred by Vernay at Reliance’s request. Because neither Reliance nor FIGA had made such a request, the court held that the attorney’s fees were not a “covered claim” under subsection 631.54(3).

In the instant case, Fortune already had agreed (in the form of the stipulated judgment) that Soto’s claims for the theft of her auto, and for her attorney’s fees and costs were payable under her policy. To accept FIGA’s position now would allow FIGA to accept one part of the settlement agreement between Soto and Fortune (the $25,000 lump sum already paid by Fortune pre-insolvency, involving no further obligation on FIGA’s part) and to reject the balance of the settlement agreement (the stipulated liability for attorney’s fees and costs). Such a result would not be fair and would not further FIGA’s mandate under subsection 631.51(1), “to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.”

Affirmed.

      . Fortune Insurance Company, which consented to rehabilitation and a receivership on grounds of insolvency in May 2001.

      . The Florida Department of Insurance was originally the receiver, but that entity was reorganized to become part of the Florida Department of Financial Services in 2003.

      . The insurer’s delay and refusal to pay Soto's claim following the theft of her car was further complicated when the lien claimant on the vehicle issued adverse credit reports against Soto. Fortune settled directly with the lien claimant, and added a third party claim against the lender when the lender refused to indemnify Fortune. These developments resulted in attorney’s fees and costs significantly in excess of a typical automobile insurance dispute. The trial court found, however, that all such fees and costs were incurred on behalf of Soto and were reasonable. FIGA does not dispute the amount of the award.

      . The original policy claim was extinguished and merged into the stipulated judgment; the rights under the judgment were substituted for the previously-operative contract rights. See Whitehurst v. Camp, 699 So.2d 679, 684 n. 2 (Fla.1997).

      . Bankruptcy trustees are sometimes said to have by law "no conscience and no memory” so that they are free to reject contracts and avoid liens incurred by the insolvent debtor. FIGA, on the other hand, is required to ascertain, evaluate, and pay the insolvent insurer’s specified obligations to policyholders within the limits set by law.


author: ROTHENBERG, Judge.

text:
    Gerald J. TOBIN, Appellant, v. A & F ENGINEERING, a Florida corporation; Dave Forkey, an individual; Vincent Sorena, an individual; Mordechai Shahak, an individual, Appellees.
    No. 3D07-994.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing and Rehearing En Banc Denied April 22, 2008.

      Howard Brodsky, Miami, for appellant.
    Patrick W. Maraist, West Palm Beach, for appellees.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The plaintiff, Gerald J. Tobin (“Tobin”), appeals from a non-final order transferring his complaint from Miami-Dade County to Palm Beach County based on the trial court’s finding that Tobin’s choice of venue was improper, and that pursuant to statute, venue would only be proper in Palm Beach County. As we find no error, we affirm.

In the instant case, Tobin filed a complaint asserting claims for conversion, fraud, and breach of oral contract against A & F Engineering (“A & F”), Dave For-key (“Forkey”), Vincent Sorena (“Sore-na”), and Mordechai Shahak (“Shahak”) (collectively, “the defendants”). Thereafter, the defendants moved to dismiss or to transfer Tobin’s complaint to Palm Beach County, arguing that venue was improper in Miami-Dade County. During the hearing on the motion to dismiss or transfer, although Tobin conceded that the fraud and breach of contract claims accrued in Palm Beach County, Tobin argued that venue was proper in Miami-Dade County as the conversion claim accrued in Miami-Dade County.

As the facts relating to Tobin’s choice of venue are not in dispute, the order transferring venue to Palm Beach County turns on a question of law, and therefore, this Court’s standard of review is de novo. As stated in Pricewaterhouse-Coopers LLP v. Cedar Resources, Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999):

[W]hen a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiffs venue selection, the defendant is arguing that, as a matter of law, the lawsuit has been filed in the wrong forum. In order to rule on such a motion, the trial court needs to resolve any relevant factual disputes and then make a legal decision whether the plaintiffs venue selection is legally supportable.

As a matter of law, we conclude that Tobin’s venue selection was improper as the corporate defendant, A & F, has its sole corporate office in Palm Beach County, not Miami-Dade County, see § 47.051, Fla. Stat. (2006); the individual defendants (Forkey, Sorena, and Shahak) reside in Palm Beach County, not Miami-Dade County, see § 47.011, Fla. Stat. (2006); the causes of action, including the conversion claim, accrued in Palm Beach County, not Miami-Dade County, see §§ 47.011, 47.051, Fla. Stat. (2006); Nicholas v. Ross, 721 So.2d 1241 (Fla. 4th DCA 1998) (reversing denial of motion to transfer action to Hillsborough County where defendant resides in Hillsborough County and “cause of action accrued when [defendant] obtained possession of the funds by deposit to her account, which took place in Hills-borough County”); and the property in litigation is located in Palm Beach County, not Miami-Dade County, see §§ 47.011, 47.051, Fla. Stat. (2006). Therefore, we affirm the trial court’s non-final order transferring Tobin’s complaint from Miami-Dade County to Palm Beach County.

Affirmed.

      . Section 47.051, Florida Statutes (2006), provides, in part, as follows: "Actions against corporations. — Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.”

      . Section 47.011, Florida Statutes (2006), provides, in part: "Where actions may be begun. — Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.”


author: WARNER, J.

text:
    Brian KABLITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4482.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied Feb. 27, 2008.

      Steven H. Malone of Steven H. Malone, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant Brian Kablitz appeals his conviction and sentence for dealing in stolen property and false verification of ownership. In his brief he raises eight claims of error. We affirm on all issues.

The state charged Kablitz with a six count information for dealing in stolen property in violation of section 812.019(1), Florida Statutes (2006) (counts 1 and 3); giving false verification of ownership of and receiving money from a pawnbroker in exchange for stolen property in violation of section 539.001(8)(b)8a., Florida Statutes (2006) (counts 2 and 4); and grand theft of property worth more than $300 in violation of sections 812.014(1) and (2)(e), Florida Statutes (2006) (counts 5 and 6). Counts one, two, and five pertain to the theft of a Hitachi compound miter saw owed by Ricardo Martins and counts three, four, and six pertain to the theft of leveling equipment owned by Norman Dahl.

The leveling equipment was stolen from an on-site office of a construction company at a beachfront development. The equipment was owned by the project manager. Three weeks later, the miter saw owned by Richard Martins, a subcontractor, was stolen from inside one of the homes being constructed at the development. Kablitz had been hired as a carpenter at the construction site, but had been terminated two weeks prior to the first theft.

Both pieces of equipment were pawned at the same shop on successive days just after the second theft. The pawn shop employees testified that Kablitz pawned both items and produced pawn tickets with Kablitz’s fingerprints.

At trial the jury found Kablitz guilty of the counts relating to the miter saw but not guilty of the counts involving the leveling equipment. He was sentenced to fifteen years for dealing in stolen property and five years for false verification of ownership, both counts to run concurrently. The trial court did not sentence him for the petit theft. Kablitz appeals his convictions and resulting sentences.

Although Kablitz moved to sever the counts relating to the theft and pawning of the miter saw from the counts regarding the leveling equipment, the trial court denied the motion, and Kablitz raises this denial as an issue on appeal. “The decision to grant or deny a severance is within the sound discretion of the trial court” and will not be disturbed on appeal absent an abuse thereof. Domis v. State, 755 So.2d 683, 685 (Fla. 4th DCA 1999).

Florida Rule of Criminal Procedure 3.150(a) states:

Two or more offenses that are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.

Conversely, where two or more offenses are improperly charged in a single information, a defendant has the right to severance of the charges on timely motion. Fla. R.Crim. P. 3.152(a)(1).

In Wright v. State, 586 So.2d 1024 (Fla.1991), the supreme court explained that offenses are connected within the meaning of the rule if they occur within a single episode, noting:

“... [T]he rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” Courts may consider “the temporal and geographical association, the nature of the crimes, and the manner in which they were committed.” However, interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.

Id. at 1029-30 (citations omitted) (quoting Garcia v. State, 568 So.2d 896, 899 (Fla.1990)). In Wright the court determined that the trial court erred in denying severance where the only connection between battery and murder charges was the fact that they were both committed by the same person, as each offense involved different victims, different times and dates, and different circumstances. See also Ellis v. State, 622 So.2d 991 (Fla.1993) (trial court erred by joining murder and attempted murder counts, even though crimes were similar, where there were three days between the two murders and the attempted murder occurred several months later).

We held in Dupree v. State, 705 So.2d 90 (Fla. 4th DCA 1998), that four drug transactions, occurring in the same manner at the same place but on different dates, were improperly joined for trial. The mere fact that the crimes were committed in a similar manner within the same general area did not sufficiently link them to make join-der proper.

In the same way, joinder of the charges involving the leveling equipment and the miter saw were improper. The crimes occurred on different dates and involved different victims. The thefts occurred in different locations, albeit in the same general vicinity, and the items were pawned at the same shop. However, we deem this insufficient where the two thefts were separated by several weeks, and the pawning of the items themselves was separated by a day. Just as the several similar drug transactions could not be properly joined in Dupree, we conclude that the charges involving the miter saw and the leveling equipment could not be joined in this case.

Although the court erred in refusing to sever the counts, we nevertheless apply the harmless error test to the mis-joinder. See Beltran v. State, 566 So.2d 792 (Fla.1990). Here, the jury acquitted the defendant of the charges with respect to the leveling equipment. The joinder of the miter saw counts did not affect the jury’s ability to differentiate between the various crimes. Kablitz defended as to the miter saw by claiming that he had pawned his own saw. However, this was clearly refuted by the state’s evidence, as the miter saw pawned by Kablitz had the initials R.M. engraved on its body, which corresponds to the victim’s initials. Further, the victim, Richard Martins, identified and retrieved the saw from the pawn shop. Even Kablitz’s witness, his former wife, testified that the saw at the pawn shop was not the miter saw he had owned during their marriage.

Kablitz also claims that he obtained newly discovered evidence after the trial and was entitled to a hearing on his motion for new trial on this issue. The trial court denied the motion, and we find no error as it is not likely that the evidence would have produced a not guilty verdict on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998). The “newly discovered evidence” constituted a receipt for the purchase of a miter saw by Kablitz during his marriage to his former wife. He sought to prove that he owned a miter saw which could have been pawned. However, as noted above, his ex-wife was shown a picture of the saw at the pawn shop with the R.M. initials on it and testified that it was not Kablitz’s saw.

We affirm the remaining issues going to his conviction without further comment.

As to his sentencing, Kablitz contends that the trial court made several errors. He alleges errors in his score-sheet. However, as to these, we conclude that the state has shown that the same sentence would have been imposed had the corrections been made. See State v. Anderson, 905 So.2d 111 (Fla.2005). Ka-blitz was a ten-time convicted felon, and the court sentenced him well above the minimum guidelines sentence. We also reject the contention that the court improperly considered hearsay testimony at the sentencing hearing.

We remand, however, for the court to reconsider the calculation of jail credit. Kablitz argues that he was entitled to several more days credit based upon the sheriffs booking blotter. This court has held that the booking blotter is admissible at a sentencing hearing “if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.” Christie v. State, 951 So.2d 1029, 1030 (Fla. 4th DCA 2007) (quoting Gray v. State, 910 So.2d 867, 869 (Fla. 1st DCA 2005)). Kablitz attempted to raise this issue and resolve the correct application of jail credit on a rule 3.800(b)(2) motion. However, the court failed to rule, resulting in a denial of the motion pursuant to rule 3.800(b)(1)(B). As the proper calculation of jail credit may be raised even after sentencing, see rule 3.800(a), the court should resolve this issue on remand.

Affirmed but remanded to determine the proper jail credit.

FARMER and GROSS, JJ., concur.


author: ROTHENBERG, J.

text:
    MacKENDREE & CO., P.A. and Ronald O. MacKendree, Appellants, v. PEDRO GALLINAR & ASSOCIATES, P.A. and MacKendree & Gallinar, LLP, Appellees.
    No. 3D07-1478.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.

      Ross and Girten and Lauri Waldman Ross and Theresa L. Girten, Miami; San-dler <& Sandler and Martin Sandler, Miami, for appellants.
    James W. Cusack, Miami; Woodbury & Santiago, P.A. and Michael P. Woodbury and Robert P. Santiago, Miami, for appel-lees.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The defendants, MacKendree & Co., P.A. (“MacKendree”) and Ronald 0. MacKendree (“Ronald MacKendree”) (collectively, “the MacKendree defendants”), appeal from a final order granting summary judgment in favor of the plaintiffs, Pedro Gallinar & Associates, P.A. (“Galli-nar”) and MacKendree & Gallinar, LLP (collectively, “the Gallinar plaintiffs”). We reverse.

In 2003, Ronald MacKendree decided to reduce his workload and sell his accounting practice to Gallinar. The Gallinar accounting firm was located in a neighboring office and headed by one of Ronald MacK-endree’s acquaintances. MacKendree and Gallinar executed a partnership agreement and a contemporaneous asset purchase agreement to effectuate the transfer. Both agreements were signed by MacKen-dree and Gallinar through agents acting in their representative capacities. However, two letters of clarification regarding both agreements were subsequently executed and signed by Ronald MacKendree and Gallinar’s president without specifically stating that they were signing these clarifications in their representative capacities.

The partnership agreement took effect on October 1, 2003. It created MacKen-dree & Gallinar, LLP to ease the transfer of MacKendree’s practice into Gallinar’s control. The MacKendree and Gallinar partnership ended on December 1, 2005. The express intention of the parties was that Ronald MacKendree would retire by December 1, 2005, thus completing the turnover to Gallinar. In the two years leading up to the final transfer, MacKen-dree and Gallinar shared office space, operating under the name MacKendree & Gallinar, LLP, but they maintained separate incomes and practices in all other respects.

The asset purchase agreement governed the sale of most of MacKendree’s clients (a limited number of clients were excluded from the deal and reserved for continued service by Ronald MacKendree). The price was set at ninety percent of MacKen-dree’s 2004 billings, with a $50,000 deposit (paid in two annual installments of $25,000), and the remainder payable in monthly installments beginning on the closing date, December 1, 2005.

In November 2005, Ronald MacKendree sent a letter to his clients explaining that he was turning his practice over to Galli-nar. Thereafter, Ronald MacKendree packed up his personal belongings and moved out of the office. Gallinar made the two $25,000 down payments as scheduled. Ronald MacKendree ceased working full-time, but returned periodically at Galli-nar’s request to perform per diem work. The per diem services rendered by Ronald MacKendree for Gallinar were not mentioned within either of the two agreements. Subsequently, Gallinar fell behind on the payment schedule outlined in the asset purchase agreement. In March 2006, Gal-linar paid $28,500, which MacKendree accepted, although at the time, an additional $12,500 in contract payments (under the asset purchase agreement) was allegedly unpaid and outstanding.

The conflict between the parties came to a head when Gallinar terminated the employment of one of MacKendree’s longtime employees, Diane Annesser. After Annes-ser was terminated, Ronald MacKendree became concerned with Gallinar’s handling of his former business and confronted Gal-linar’s president. As a result, Gallinar terminated Ronald MacKendree’s per diem services, and according to Ronald MacKendree, Gallinar failed to compensate him for some of his per diem fees and owed MacKendree for other amounts receivable and contract payments. Shortly thereafter, Ronald MacKendree resumed business with some of the clients previously sold to Gallinar.

On April 25, 2006, MacKendree sent a formal demand for overdue contract payments to Gallinar. Three days later, the Gallinar plaintiffs filed the instant lawsuit against the MacKendree defendants. The Gallinar plaintiffs sued the MacKendree defendants for breach of the asset purchase agreement, breach of the implied covenant of good faith, rescission of the asset purchase agreement, civil conspiracy, and breach of the partnership agreement. The MacKendree defendants counterclaimed for unpaid per diem fees, contract payments, and other amounts payable to MacKendree.

The MacKendree defendants moved for summary judgment on their counterclaims and all of the Gallinar plaintiffs’ allegations, arguing in part that Ronald MacK-endree could not be held personally liable for breach of either of the two agreements. The trial court, however, denied the motion brought by the MacKendree defendants. The Gallinar plaintiffs then moved for partial summary judgment on Count IX of the complaint, which alleged breach of the partnership agreement. The trial court granted the Gallinar plaintiffs’ motion, finding as a matter of law that MacK-endree breached the partnership agreement and that Ronald MacKendree did not retire. The trial court later granted the Gallmar plaintiffs’ motion for dismissal of all remaining claims and counterclaims, finding them moot, and issued a final judgment ordering the MacKendree defendants to return the $50,000 deposit paid by Gallinar plus $27,868.84 in interest.

Our review of the trial court’s order granting summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243 (Fla. 3d DCA 2006). Summary judgment may only be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County, 760 So.2d at 130. The MacKen-dree defendants argue that the order on appeal must be reversed because: (1) Ronald MacKendree cannot be held personally liable; (2) unresolved issues of fact preclude summary judgment against MacKen-dree for breach of the partnership agreement; and (3) the trial court erred in dismissing the MacKendree defendants’ independent counterclaims as moot. We agree.

Ronald MacKendree Cannot Be Held Personally Liable

We review the two agreements as a whole to determine whether the parties intended to bind their principal businesses alone, or also the signing agents in their individual capacities. Falsten Realty Co. v. Kirksey, 103 Fla. 225, 137 So. 267, 269 (1931); Porlick, Poliquin, Samara, Inc. v. Compton, 683 So.2d 545, 547 (Fla. 3d DCA 1996). A review of the instant agreements reveals that the parties intended to bind the businesses alone, not the individual agents. Both agreements define the parties as MacKendree & Co., P.A. and Pedro Gallinar & Associates, P.A., not Ronald MacKendree, or any other agent of these firms. The individuals who negotiated and signed the agreements did so on behalf of their separate firms, acting in their representative capacities.

The Gallinar plaintiffs argue that the letters of clarification executed after the original agreements support the trial court’s summary judgment against Ronald MacKendree individually. We disagree because this interpretation does violence to Florida’s requirement that the agreements must be considered together, as a whole. The Gallinar plaintiffs rely on Central National Bank of Miami v. Muskat Corp. of America, Inc., 430 So.2d 957 (Fla. 3d DCA 1983), as authority supporting Ronald MacKendree’s personal liability. The Gal-linar plaintiffs’ reliance on Central National Bank is misplaced, however, because the instant case is factually distinct.

In Central National Bank, this Court held that a corporate president was personally liable on a guaranty agreement where the obvious purpose of that document (reviewing it as a whole) was to add the signor’s personal guarantee to a corporate promissory note. Id. at 958. This Court reached its conclusion despite the fact that the signor affixed the word, “President” to the end of his signature. Id. This Court determined that the purpose of the document was to provide for the signor’s personal liability; that the document, by its terms, provided for individual liability; and that interpreting the personal guaranty agreement as a corporate guarantee would render it a nullity. Id. Therefore, this Court held that the addition of a single word indicating the signor’s representative capacity to the signature was insufficient to override the document’s clear, express terms. Id.

The instant case is easily distinguishable. The letters of clarification added to the two agreements, although signed without reference to either agent’s representative capacity, do not evidence any intent to expand the scope of MacKendree’s or Gal-linar’s liability. Ronald MacKendree did not add his personal guarantee to any portion of the deal between the businesses, and none of the terms mention personal liability. Instead, the clarification letters must be read in conjunction with the agreements they expressly seek to clarify, and therefore, the parties to the agreements remain unchanged: the two separate accounting firms. Accordingly, we reverse the trial court’s summary judgment to the extent that it holds Ronald MacKendree personally hable on agreements to which he was not a party, executed between two separate businesses.

Issues of Fact Preclude Summary Judgment for Breach of the Partnership Agreement

When the trial court granted the Galli-nar plaintiffs’ partial motion for summary judgment on Count IX (breach of the partnership agreement) it found that MacKen-dree did not retire and, as a matter of law, that MacKendree was in material breach. The MacKendree defendants argue that those findings amount to reversible error because the evidence establishes that Ronald MacKendree did retire, and there were a number of issues of material fact regarding the breach of contract claim that precluded summary judgment. We agree.

The gravamen of the Gallinar plaintiffs’ breach of contract claim is that Ronald MacKendree, upset with Gallinar’s handling of his former clients, resumed business with some of the clients who were a part of the sale, thereby effecting MacKen-dree’s breach of the express and implied non-compete covenant evidenced by the written agreements. Were that version of the facts undisputed, we would be bound to uphold the trial court’s ruling. However, the evidence is clouded with issues of fact that preclude summary judgment.

The trial court’s ruling, granting summary judgment on the breach of contract claim, was based, in part on its finding as a matter of law that Ronald MacK-endree did not retire. The undisputed facts, however, demonstrate that Ronald MacKendree did indeed retire from the MacKendree and Gallinar partnership by December 1, 2005, as required by the two agreements. Ronald MacKendree mailed a notice to his clients in November 2005, explaining that he was retiring and turning his accounting practice over to Gallinar. Ronald MacKendree packed up his personal belongings and vacated his office. The work performed by Ronald MacKendree between December 1, 2005, and the time he resumed business with his former clients was done at Gallinar’s request, and on a per diem basis. Additionally, Gallinar made numerous payments under the asset purchase agreement, which suggests that MacKendree complied with its end of the deal.

The agreements specifically reflect that although Ronald MacKendree was to “retire,” he was not required to cease working in the accounting profession. Instead, the parties understood that Ronald MacKendree’s “retirement” was simply a retirement from the partnership. The express terms of the agreements reveal that a number of clients were excluded from the sale to Gallinar and were to remain Ronald MacKendree’s clients with the understanding that Ronald MacKendree would continue to service their accounts. In addition, Ronald MacKendree was hired by Gallinar to work as an accountant at what was now Gallinar’s firm, in the months following the sale. The only “retirement” obligation imposed by the agreements was that Ronald MacKendree refrain from competing with Gallinar in the future by servicing the clients listed in the asset purchase agreement, and by all accounts, he complied with that requirement for some time. Thus, we find that the trial court erred in finding that Ronald MacK-endree did not retire, and on that basis finding as a matter of law that MacKen-dree breached the agreements. Whether MacKendree breached the agreements when Ronald MacKendree serviced some of the clients sold to Gallinar is, however, a material issue of fact which precludes summary judgment because Ronald MacKen-dree claims that at the time he began servicing the clients, Gallinar had already breached the agreements. As there is evidence to support such a finding, the issue is one which must be decided by the trier of fact.

Ronald MacKendree stated in a sworn deposition that as early as December 2005, Gallinar had fallen behind on the payments called-for by the asset purchase agreement. In a later affidavit, Ronald MacK-endree averred that in the year following the wrapping-up of the MacKendree and Gallinar partnership, over $90,000 was due, but unpaid under the contract. The MacKendree defendants allege that these facts indicate that Gallinar was in material breach of the agreements before Ronald MacKendree resumed business with some of his former clients, thus excusing his conduct. While we do not pass on the merits of the parties’ opposing viewpoints, we conclude that material facts are in direct conflict, thereby precluding summary judgment. Volusia County, 760 So.2d at 130.

To the extent that the trial court denied the motion for summary judgment brought by the MacKendree defendants on their claim for breach of the agreements because there exist material issues of fact, we affirm. We, however, reverse the trial court’s order granting summary judgment as to Gallinar’s breach of contract claim and the trial court’s award of the $50,000 deposit plus accrued interest to Gallinar.

The Trial Court Erred in Dismissing the Counterclaims as Moot

Among the counterclaims brought by the MacKendree defendants were claims for unpaid per diem fees (incurred after the sale of the practice) and accounts receivable payable to MacKendree, but retained by Gallinar. These claims were dismissed as moot by the trial court in its final judgment. The MacKendree defendants argue that the trial court erred in dismissing these independent claims as moot. We agree, and reinstate the MacK-endree defendants’ counterclaims as well as the Gallinar plaintiffs’ claims that were erroneously dismissed as moot.

“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.” Godwin v. State, 593 So.2d 211, 212 (Fla.1992). Additionally, “[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Id. (citing Black’s Law Dictionary 1008 (6th ed. 1990)). The dismissal of Ronald MacKendree’s counterclaim alleging non-payment of the per diem fees he claims are owed to him by Gallinar as moot was error as this counterclaim was based on facts independent of the partnership agreement upon which the trial court entered summary judgment. The other counterclaims brought by the MacKendree defendants regarding the non-payment of the accounts receivable are not moot because we reverse the trial court’s grant of summary judgment in Gallinar’s favor. We, therefore, reverse the trial court’s dismissal of the MacKendree defendants’ counterclaims as moot, and instruct the trial court to reinstate them for consideration consistent with this opinion. We also instruct the trial court to reinstate the Gallinar plaintiffs’ claims because the same issues of fact precluding summary judgment on count IX demonstrate that those other claims continue to present viable, live controversies.

Conclusion

The record evidence clearly limits liability for breach of the agreements to the corporate entities, MacKendree & Co., P.A. and Pedro Gallinar & Associates, P.A., not any of their agents. Undisputed facts demonstrate as a matter of law that Ronald MacKendree retired in accordance with the two agreements by December 1, 2005. On the other hand, issues of fact preclude summary judgment on the question of breach of the non-compete covenant within the agreements. The counterclaims brought by the MacKendree defendants as well as the Gallinar plaintiffs’ claims outside of count IX, were erroneously dismissed as moot.

Accordingly, the final judgment awarding $50,000 plus accrued interest to the Gallinar plaintiffs is reversed, and we remand with instructions to the trial court to: (1) determine whether MacKendree’s breach of the non-compete covenant was excusable; (2) reinstate the counterclaims pursued by the MacKendree defendants; and (3) reinstate the Gallinar plaintiffs’ claims that were erroneously dismissed as moot.

Reversed and remanded with instructions.

      . Throughout this opinion, the meaning of the term ‘retire’ is limited pursuant to the instant agreements. Ronald MacKendree was not required to retire from the accounting profession, but only to refrain from competing with Gallinar by servicing the clients described in the asset purchase agreement.

      . Although the 2004 billings formed the basis of the purchase price, the parties agreed to adjust that price upward or downward based upon the value of the clientele remaining with Gallinar as of December 1, 2006.


author: GERSTEN, C.J.

text:
    Peter RIZOV, Appellant, v. STATE of Florida, BOARD OF PROFESSIONAL ENGINEERS, et al., Appellees.
    No. 3D07-1929.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Rehearing Denied April 21, 2008.

      Peter Rizov, in proper person.
    Bill McCollum, Attorney General, and Garnett W. Chisenhall, Assistant Attorney General, for appellees.
    Before GERSTEN, C.J., and COPE, and LAGOA, JJ.
   GERSTEN, C.J.

Peter Rizov (“Rizov”) appeals a final order from the State of Florida, Board of Professional Engineers (“Board”), which denied his application to take the principles and practices examination. Finding no statutory ground for setting aside the Boards decision, we affirm.

In April 2006, Rizov applied to the Board to take the principles and practices examination, with an anticipated completion of his electrical engineering degree in May 2006. Rizov also submitted employment/experience verification forms reflecting his employment with two engineering firms from April 1996 through the date of his application.

In order to practice engineering in Florida, a person is required to pass two examinations: (1) the fundamentals examination and (2) the principles and practice examination. § 471.015(1), Fla. Stat. (2005). Passing the fundamentals examination qualifies a person to practice in the state as an engineer intern, if he or she is in the final year, or a graduate, of an approved college or university engineering degree program. § 471.013(l)(b), Fla. Stat. (2005).

In order to sit for the principles and practice examination, a person must have an engineering degree, and four years of “active engineering experience of a character indicating competence to be in responsible charge of engineering.” § 471.013(l)(a)l., Fla. Stat. (2005). The Board has adopted certain guidelines for evaluating acceptable experience, including rule 61G15-20.002(l)(b)l, which states: “The acquisition of acceptable engineering experience should logically follow and constitute an application of the engineering education previously obtained.”

Because Rizov did not have four years of post-graduate experience, the Board denied his application to take the principles and practices examination. Although he does not dispute his lack of four years of post-graduate experience, Rizov contends that the Board should accept the experience he obtained while working and attending school. The Board rejected Ri-zov’s argument and entered a final order denying his application to take the examination.

A reviewing court defers to an agency’s interpretation of a statute which it is charged with enforcing “as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985); see also Atl. Shores Resort, LLC v. 507 S. St. Corp., 937 So.2d 1239, 1245 (Fla. 3d DCA 2006). Here, Rizov has not shown that the Board’s rule is inconsistent with the statute.

Agencies generally have more expertise in a specific area they are charged with overseeing. Thus, in deferring to an agency’s interpretation, courts benefit from the agency’s technical and/or practical experience in its field. See McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1215 (Fla.2006) (Cantero, J., concurring in part and dissenting in part). Here, rule 61G15-20.002(l)(b)(2) explains the reasoning behind requiring post-graduate experience: “Engineering experience obtained prior to the completion of the engineering degree is usually of a subprofessional nature.”

Because the Board is in a better position to determine acceptable experience, we affirm the Boards order denying Rizovs application to take the principles and practice examination.

Affirmed.


text:
    Eve Huson SCHNEBERGER, Appellant, v. Christopher SCHNEBERGER, Robert Schneberger, Scott Schneberger, Jennifer Martin, and Christoper Schneberger, as Trustee of the Robert M. Schneberger Trust, Appellees.
    No. 4D07-1697.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.

      J. Garry Rooney and Elizabeth Stewart Brooker of Brooker & Rooney, P.A., Vero Beach, for appellant.
    Michael O’Haire of O’Haire, Quinn, Candler & Casalino, Chartered, Vero Beach, for appellees.
   WARNER, J.

This appeal emanates from a dispute between a widow and her stepson over the terms of a prenuptial agreement, trust agreement, and will of the deceased husband/father. The parties disputed the wife’s responsibility for costs associated with her occupancy of the husband’s home, in which she was given a life estate in the prenuptial agreement. She contended that she did not have a true life estate and was not responsible for much of the upkeep, taxes, and insurance. The trial court declared that she received a life estate and was responsible for those costs. We affirm the declaratory judgment.

Prior to their marriage, the husband and his future wife, the appellant, entered into a prenuptial agreement which provided for the wife to have a life estate in the husband’s home should he predecease her. She was permitted to reside in the home until her death or remarriage. She could not rent it out.

During the marriage, the husband amended his trust, to which he transferred most of his other assets, to provide that his trustee should honor the provisions of the prenuptial agreement. The husband died while still married to his wife.

When the home was damaged by hurricanes, the expense of repair and insurance became an issue between the wife and the remainderman, the husband’s son by a pri- or marriage, who was also the trustee of the husband’s trust. The wife filed a complaint against the trustee and remainder-man to determine who was responsible for the cost of repairs as well as the continuing cost of insurance. The remainderman filed a counterclaim for declaratory judgment as to the same issues.

After a trial, the court declared that the prenuptial agreement, trust, and will were not in conflict. The wife was entitled to a life estate in the property and as such was responsible for those duties of a life tenant, including the responsibility to pay all ordinary and necessary expenses that inure to a homeowner, including taxes, insurance, homeowner’s association fees, and general repairs for the upkeep and maintenance of the property. The remainderman was responsible to pay for the hurricane repair costs from the proceeds of the insurance as an extraordinary expense to the property. He was also required to pay the special hurricane assessment by the homeowner’s association. The wife appeals.

Although the wife raises several eviden-tiary issues, we deem these to be insubstantial, as the main issue involves the legal construction of the prenuptial and the trust agreements, along with the legal obligations ensuing from them. The wife argues that she does not have a true life estate in that she cannot deal with the property as her own by, for instance, renting it, and thus should not have the legal obligation of the expenses of a normal life tenant.

The trial court’s ruling interpreted the various agreements and contracts. Thus, our standard of review of this declaratory judgment is de novo, as contract interpretation is an issue of law. Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). The trial court determined the husband granted the wife a life estate in the residence through the prenuptial agreement until her death or remarriage, subject to a restriction that she could not rent the home or dispose of its contents. Because the agreement was executed with the formalities of a deed, we agree that the wife’s interest in the property was established in the prenuptial agreement, and that agreement, not the trust, controlled. The wife agreed to a limitation on the general rights of a life tenant, in that she was not entitled to income rights from the property, such as rent. The trial court found that the agreement was valid and enforceable. Therefore, we conclude that the court did not err in determining that the wife held a life estate in the property, responsible for all those obligations of a life tenant.

In Florida, “a tenant for life or a person vested with an ordinary life estate is entitled to the use and enjoyment of his estate during its existence.” Sauls v. Crosby, 258 So.2d 326, 327 (Fla. 1st DCA 1972). “The only restriction on the life tenant’s use and enjoyment is that he not permanently diminish or change the value of the future estate of the remainderman. This limitation places on the ‘ordinary life tenant’ the responsibility for all waste of whatever character.” Id. (footnote omitted). “It is well settled that life tenants are bound in law to pay property taxes during their continuance of their estate. Failure to pay taxes constitutes waste.” Chapman v. Chapman, 526 So.2d 131, 135 (Fla. 3d DCA 1988) (citations omitted). Therefore, it follows that the wife would have the responsibility to pay all ordinary and necessary expenses that inure to a homeowner, including taxes, insurance, homeowner’s association fees, and general repairs for the upkeep and maintenance of the property, and not to dissipate or cause waste to the property.

The trial court specifically found that the wife, as life tenant, was responsible for the payment of homeowner’s insurance. Florida has followed the rule that “[t]he duty owed by life tenants to remaindermen is comparable to that of a trustee or quasi-trustee, because the life tenant cannot injure the property to the detriment of the rights of the remaindermen.” Id. In other jurisdictions which hold that a life estate is a quasi-trust, with the life tenant having a duty to preserve the estate for the benefit of the remainderman, a life tenant has a duty to not only make repairs and improvements, but pay taxes and insurance on the property. See Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754, 767 r. 14 (1997); In re John’s Will, 75 N.Y.S.2d 693, 696 (N.Y.Sur.1947) (“The law is well settled that in the absence of a contrary direction in the will, the life tenant of real property must pay taxes, insurance, and ordinary repairs thereon.”). The trial court adopted this position, and we conclude that its ruling was a correct application of law.

We therefore affirm the final declaratory judgment.

FARMER and KLEIN, JJ., concur.

      . The wife had waived her homestead rights in the prenuptial agreement.


author: CORTIÑAS, J.

text:
    In re: ESTATE OF William R. CUMMINS, Deceased. Sharon L. Cummins, Appellant, v. Christine C. Bowman, Appellee.
    No. 3D07-2260.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Rehearing and Rehearing En Banc Denied April 24, 2008.
    Cunningham, Miller & Williams and Steven T. Williams, Marathon, for appellant.
    Richard E. Warner, Marathon, for ap-pellee.

      Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

On April 4 and 5, 2007, Sharon L. Cum-mins (“Cummins”) filed objections (“Objections”) to the personal representative’s petition for discharge, final accounting, and plan of distribution of her deceased husband’s estate. This triggered the ninety-day period for serving a notice of hearing on the Objections, which is set forth in Florida Probate Rule 5.401(d). On July 17, 2007, twelve days after the ninety-day period expired, Cummins served a notice of hearing. The personal representative of the estate filed a notice of abandonment of the Objections on the grounds they were untimely noticed for hearing. After conducting a hearing on the issue of abandonment of the Objections, the trial court found that, because Cummins failed to show good cause to expand the ninety-day time period, the Objections were abandoned and, therefore, rendered null and void. A second order stated that the final accounting and plan of distribution superseded Cummins’ petition for determination of exempt property and, as such, the petition was dismissed with prejudice. This appeal followed.

At the hearing on the abandonment of Objections, Cummins’ counsel detailed the reasons for failing to comply with the ninety-day time period for filing the notice of hearing under Florida Probate Rule 5.401(d). Counsel explained that the legal assistant responsible for procuring the hearing date was informed by the court that the presiding judge would not have a sufficient amount of time available for the hearing until September, 2007. In order to obtain an earlier hearing date, Cum-mins’ counsel decided to utilize the services of a special master. The legal assistant attempted to schedule a hearing with the special master but was informed that the attorney for the personal representative was out of the office and that only the attorney himself could place a hearing on his calendar. Subsequently, the legal assistant instructed Cummins’ counsel that she would follow-up on scheduling a hearing. However, without notice, the legal assistant ceased reporting for work in late June, 2007. On July 7, 2007, the individuals who were reassigned the legal assistant’s tasks realized that the ninety-day period for sending notice had expired. Cummins’ counsel attempted to obtain a hearing date, but because a full day was requested, the scheduling clerk could not immediately provide one. On July 17, 2007, a hearing date was set for August 29, 2007, at which time a notice of hearing was sent to the attorney for the personal representative. Additionally, throughout the course of the ninety days, Cummins’ counsel stated that the attorney for the personal representative suggested that a “global settlement” would be forthcoming, thus rendering a hearing on the Objections unnecessary.

Based on these developments, Cummins sought an enlargement of time of twelve days to file the notice of hearing as a result of excusable neglect. Florida Probate Rule 5.042(b), which is almost identical to Florida Rule of Civil Procedure 1.090(b), states, in pertinent part:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder, for cause shown the court at any time in its discretion ...
(2) on motion made and notice after the expiration of the specified period may permit the act to be done when failure to act was the result of excusable neglect. The court under this rule may not extend the time for serving a motion for rehearing or to enlarge any period of time governed by the Florida Rules of Appellate Procedure.

The ninety-day time limit for filing a notice of hearing on the Objections is not jurisdictional. The standard of review applied to a trial court’s analysis of excusable neglect is abuse of discretion. Boudot v. Boudot, 925 So.2d 409, 415 n. 2 (Fla. 5th DCA 2006) (citing Smith v. Smith, 902 So.2d 859, 861 (Fla. 1st DCA 2005)); State Dep’t of Transp. v. Southtrust Bank, 886 So.2d 393, 396 (Fla. 1st DCA 2004) (citing Lyn v. Lyn, 884 So.2d 181, 185 (Fla. 2d DCA 2004)). A trial court is afforded discretion to consider objections for which a notice of hearing was not served within ninety days of the filing of said objections.

In Southtrust Bank, the trial court’s finding of excusable neglect pursuant to Florida Rule of Civil Procedure 1.090(b) was affirmed because “the secretary’s oversight is precisely the type of error found to constitute excusable neglect.” Southtrust Bank, 886 So.2d at 396. In Vera v. Adeland, 881 So.2d 707, 709-10 (Fla. 3d DCA 2004), an extension .of time was sought to permit substitution of parties pursuant to Florida Rule of Civil Procedure 1.260(a)(1). Vera, 881 So.2d at 709-10. Rule 1.260(a)(1) states that an “action shall be dismissed as to the deceased party” if substitution of the parties is not made within ninety days of the filing of a suggestion of death. In Vera, this Court found that, pursuant to Florida Rule of Civil Procedure 1.090, excusable neglect was shown and the trial court erred in denying an extension of time to permit substitution. Vera, 881 So.2d at 709-10.

Based upon the reasons presented by Cummins’ counsel during the hearing on abandonment of the Objections, we find that the trial court abused its discretion when it found that “no good cause was shown” to permit an enlargement of time of twelve days for filing a notice of hearing on the Objections.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Antonio PEREZ, Appellee.
    No. 3D07-1548.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Rehearing Denied April 22, 2008.

      Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Pursuant to section 924.07(1)®, Florida Statutes (2007), which provides that it may appeal from “[a] sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921,” otherwise known as the sentencing guidelines, the state seeks review of what it says is a downward departure sentence. Its only complaint, however, is that the sentence calls for confinement in the county jail, rather than the state prison. We dismiss the appeal.

On December 19, 2003, Perez was charged with burglary of an unoccupied structure, petit theft and criminal mischief in case number 03-35427. At that time, the state filed similar charges against Perez in several other cases. On January 29, 2004, he pled guilty in case number 03-35427 and was sentenced to a guidelines sentence of 22.2 months in state prison, followed by three years on drug offender probation. He was awarded 42 days credit for time served in jail from the date of his arrest until sentencing. On that date, he also pled guilty in the other cases and the court imposed the same sentence to run concurrent with case number 03-35427. Perez served 633 days in prison, was released on October 22, 2005, and began his probation.

On February 21, 2007, affidavits of violation of probation were filed against Perez in all of the cases, alleging that he had been arrested for driving with a suspended license, that he left a residential drug treatment program, and that he failed to successfully complete treatment. He was taken into custody on May 5, 2007. At a May 22, 2007, probation violation hearing on the affidavits, the prosecutor informed the court that the lowest permissible sentence was (again) 22.2 months in state prison. Under an agreement with the court to which the state objected, Perez admitted to the violations, his probation was revoked and the court imposed the sentence now under review. It provided for an additional 364 days in the county jail with credit for the 17 days served after his last arrest on May 5, but not for the 675 days he had previously served on the charges. The present sentence, thus, was the functional (and permissible) equivalent of a “standard” sentence of, 1039 (675 plus 364) days, 34.2 months, with credit for all the time (675 days) he had previously served. See Summers v. State, 817 So.2d 950 (Fla. 2d DCA 2002) (upholding sentencing order adding period creditable for time served). Because such a sentence and the period Perez has already served or is going to serve is obviously more than the minimum guidelines sentence represented by the state, its only cognizable claim of error is that the last 364 days of the period is in the Miami-Dade County jail rather than the state prison as the guidelines contemplate. § 921.0024(2), Fla. Stat. (2003).

For two related reasons, we conclude that we lack authority to consider the merits of this contention and therefore dismiss the appeal.

(1) First, because the fact that the sentence was to be served “in the county jail, rather than the state penitentiary, is immaterial, as ‘all jails look the same from the inside,’” Voulo v. Wainwright, 290 So.2d 58, 59 (Fla.1974), the difference in the location of imprisonment, while it may be a sideways departure, does not qualify as a sentence “below the lowest permissible sentence” [emphasis added] under the guidelines, as provided by the only arguable authority for this appeal, section 924.07(l)(i), Florida Statutes (2007).

(2) Looking at the matter from a broader perspective, the state can establish no harm in the fact that Perez is “immaterially” now in jail rather than prison. If anything, it is in an affirmatively better position. This is because Miami-Dade County has been required to shoulder a burden of supporting Perez for 364 days which might rightfully belong to the state. It is axiomatic that no party has standing to object to a ruling which does not adversely affect its substantial rights, see 3 Fla. Jur.2d Appellate Review § 88 (2004), let alone one which is favorable to its interests. See 3 Fla. Jur.2d Appellate Review § 86 (2004).

Appeal dismissed.

      . Although the state’s brief suggests that the guideline sentence is something more than that, the claim finds no support whatever in the record, by which we are bound and which contains no completed sentencing scoresheet. The appellant thus cannot be heard to say that the minimum sentence was anything more than the 22.2 months it said it was to the trial court, much less that it was more than the 34.2 months we find was the effective term of Perez’s actual sentence.

      . Ibid.


text:
    Brian RUBIN, Appellant, v. Dr. Richard GABAY, Appellee.
    No. 4D06-5060.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.

      Robert C. Stone of Law Office of Robert C. Stone, P.A., Boca Raton, for appellant.
    Mark C. Perry of Law Offices of Mark C. Perry, P.A., Fort Lauderdale, for appel-lee.
   WARNER, J.

Brian Rubin appeals a final judgment finding him liable for securities fraud as an agent under section 517.211, Florida Statutes, and awarding both compensatory and treble damages. Because there was no evidence to support liability under section 517.211, we reverse.

Appellee/plaintiff, Dr. Richard Gabay, expressed an interest to his stockbroker, appellant/defendant Rubin, in purchasing initial public offering securities (“IPOs”). Because Rubin’s brokerage firm did not have any IPOs, he referred Gabay to Terry Feibus, a stockbroker at another firm who did this type of investing. Subsequently, Gabay purchased pre-IPO stock from Feibus and his brokerage firm based on Feibus’s recommendations and representations that the companies were operational and on the verge of going public. Rubin was not involved in those transactions as a broker.

Unfortunately, the pre-IPO corporations turned out to be shams, and Gabay lost his investments. Gabay then sued both Feibus and Rubin for his losses, alleging numerous causes of action including securities fraud under chapter 517, Florida Statutes.

After a non-jury trial during which only Gabay testified and Feibus’s deposition was introduced, the trial court found that Rubin aided and abetted a fraud by referring Gabay to Feibus, giving reassurances, and receiving a referral fee. The court held Rubin jointly and severally liable with Feibus for $3,225,000, representing the purchase price of the stock and treble damages. Rubin appeals.

Section 517.301, Florida Statutes, makes it unlawful to employ certain false representations, schemes, or fraudulent artifices in rendering investment advice or in offering, selling, or purchasing investment securities or products. Section 517.211(2) imposes individual liability on:

[a]ny person purchasing or selling a security in violation of s. 517.301, and every director, officer, partner, or agent of or for the purchaser or seller, if the director, officer, partner, or agent has personally participated or aided in making the sale or purchase....

As Rubin fit no other category, Gabay had to prove that Rubin was an agent within the meaning of section 517.211(2) to hold him liable for the false representations regarding the pre-IPO purchases.

In discussing the meaning of the term agent in the context of section 517.301, this court explained that the term is to be given its common definition, meaning representation of a principal. Arthur Young & Co. v. Marnier Corp., 630 So.2d 1199, 1204-05 (Fla. 4th DCA 1994). “[T]he context of the use of the word agent is to make liable all those representatives and direct participants in the sale of the security who commit fraud as a means of inducing the purchaser to buy.” Id. at 1203.

The existence of an agency relationship is usually a question of fact that must be resolved by the fact-finder. Fernandez v. Fla. Nat’l College, Inc., 925 So.2d 1096, 1100 (Fla. 3d DCA 2006). However, when a party bearing the burden of proof fails to produce any supportive evidence, or when the evidence presented by both parties is so unequivocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of law to be determined by the court. Id.

To establish an actual agency relationship, the following elements must be established: “(1) acknowledgement by the principal that the agent will act for it, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. 4th DCA 1998).

To establish that an apparent agency exists, the following elements must be present: “(1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance upon such representation.” Blunt v. Tripp Scott, P.A., 962 So.2d 987, 989 (Fla. 4th DCA 2007) (quoting Lensa Corp. v. Poinciana Gardens Ass’n, 765 So.2d 296, 298 (Fla. 4th DCA 2000)).

Here, neither actual nor apparent agency was established. There was no evidence that Rubin participated in the sale of the stock. By Gabay’s own admission, Feibus recommended and made representations concerning the corporations, and Gabay purchased the stock from Fei-bus and his brokerage firm. Gabay admitted that Rubin was not involved in these transactions as a broker. No representation was made by Feibus or any seller that Rubin acted for them, nor did Rubin indicate that he was involved or acting for the sellers. Gabay never testified that Rubin was acting for him in these transactions, as all of the purchases were made through Feibus. Although Rubin gave Gabay assurances with respect to the public offering process, they were made after the purchase of the stock. Thus, the reassurances cannot serve as a basis for a finding that he participated or aided in the sale of the stock. While Feibus paid Rubin a referral fee with respect to the transaction of one stock, that evidence is insufficient to establish that Rubin was acting as an agent for the seller of the stocks.

The trial court found that Rubin aided and abetted the fraud. Not only was the liability of Rubin not proven under the statute, a common law count of aiding and abetting was never pled.

Because Gabay failed to prove liability of Rubin under section 517.211(2), we reverse the final judgment and remand to enter final judgment in favor of Rubin.

FARMER, J., and CONNER, BURTON C., Associate Judge, concur.


author: PER CURIAM. BELANGER, ROBERT E.,

text:
    STATE of Florida, Appellant, v. Howard BARNES, Appellee.
    No. 4D06-3784.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, the State of Florida, timely appeals the trial court’s order granting the defendant’s motion to suppress all evidence obtained as a result of a pat-down frisk of the defendant.

As background, an officer stopped the appellee, Howard Barnes, for riding a bicycle at night without a light as required by law. When the officer approached Barnes, Barnes was “acting real nervous, jittery and everything.” The officer asked Barnes why he did not have a light, and Barnes responded that he did not know that he needed a light. At that point, Barnes began to make movements towards his front pockets. The officer testified, “He was making overt movements toward his pockets like he was trying to retrieve a weapon or I don’t know, I was concerned for my safety at that time, Judge.” The officer did not see a bulge in Barnes’s pocket, nor was Barnes acting violent in any way.

Because of Barnes’s movement toward his pockets, the officer patted Barnes down and asked him if he had any weapons. As the officer was patting Barnes down, Barnes told the officer that he did not have any weapons, but that he did have “weed” in his pocket. The officer then reached into Barnes’s pocket and retrieved the marijuana.

After the marijuana was discovered, the officer learned that there was an active arrest warrant for Barnes. The officer then arrested Barnes. Subsequent to the arrest, the officer located crack cocaine in Barnes’s right front pocket.

The trial court granted the motion to suppress, finding that the officer conducted the pat-down search without sufficient legal cause to believe Barnes was armed or dangerous. The court found that Barnes’s act of making movements towards his pockets was insufficient to justify a reasonable belief that he was armed with a dangerous weapon.

“[P]olice officers are authorized to execute a pat-down for weapons only where they have a reasonable suspicion to believe that a suspect is armed with a dangerous weapon.” Campuzano v. State, 771 So.2d 1238, 1243 (Fla. 4th DCA 2000). “One of the recognized circumstances justifying a weapons pat-down is the combination of the defendant’s nervousness and the officer’s observation of a bulge in the defendant’s clothing.” Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003). However, an officer does not have reasonable suspicion that a defendant is armed merely because, following a non-criminal traffic stop, the defendant appears nervous and keeps his hands in or near his pockets. Id.; see also Coleman v. State, 723 So.2d 387 (Fla. 2d DCA 1999); E.H. v. State, 593 So.2d 243 (Fla. 5th DCA 1991). “The mere thrusting of one’s hand in one’s pocket in front of a police officer does not constitute conduct which supports & founded suspicion that an individual is armed and dangerous.” Delorenzo v. State, 921 So.2d 873, 879 (Fla. 4th DCA 2006) (Warner, J., concurring specially).

Although he appeared nervous and attempted to place his hands in his pockets as the officer approached, Barnes’s actions were insufficient to give rise to a reasonable suspicion that he was armed. The officer did not observe a bulge in Barnes’s pocket, nor did Barnes engage in any violent behavior that could give rise to a reasonable belief that a weapon might be present. Accordingly, the trial court properly concluded that the frisk was illegal.

However, not all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. State v. Frierson, 926 So.2d 1139, 1143 (Fla.2006) (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). Thus, the question here is whether the arrest warrant was an intervening circumstance sufficient to break the chain of illegality relative to the discovery of the contraband narcotics.

In Frierson, the defendant failed to use a turn signal in making a turn and was driving with a cracked, but functional, taillight. As a result, an officer initiated a stop of the defendant’s vehicle. However, the stop was unlawful because the defendant’s failure to use the turn signal did not affect other traffic, and an operational taillight that is cracked does not violate any traffic law. Upon being stopped by the officer, the defendant provided the officer with identification. The officer ran a check on the defendant, and learned that there was an outstanding warrant for the defendant’s arrest. As a result of the outstanding warrant, the defendant was arrested. A search incident to the defendant’s arrest revealed a firearm, which the defendant moved to suppress.

The question before the Florida Supreme Court was “[w]hether evidence seized in a search incident to an arrest based upon an outstanding arrest warrant should be suppressed because of the illegality of the stop which led to the discovery of the outstanding arrest warrant.” Id. at 1143. In holding that the evidence should not be suppressed, the Frierson court first noted the United States Supreme Court’s holding in Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), that not all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the court must consider three factors in deciding whether unlawfully obtained evidence should be excluded: (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Frierson, 926 So.2d at 1143 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and United States v. Green, 111 F.3d 515, 521 (7th Cir.1997)).

As to the first factor, our supreme court acknowledged that the brief time between the illegal stop and the arrest weighed against finding the search attenuated, but emphasized that the first factor “is not dispositive.” Id. at 1144.

As to the second factor, the court found that the outstanding warrant was an intervening circumstance:

In turning to the next factor, the outstanding arrest warrant was an intervening circumstance that weighs in favor of the firearm found in a search incident to the outstanding arrest warrant being sufficiently distinguishable from the illegal stop to be purged of the “primary taint” of the illegal stop. Crucially, the search was incident to the outstanding warrant and not incident to the illegal stop. The outstanding arrest warrant was a judicial order directing the arrest of respondent whenever the respondent was located.... The illegality .of the stop does not affect the continuing required enforcement of the court’s order that respondent be arrested.

Id.

Finally, as to the flagrancy of the misconduct, the court noted that mistake in respect to the enforcement of the traffic law, but there was no evidence that the stop was pretextual or in bad faith. Id. at 1144-45.

Although the Frierson case applied the three-factor test from Brown in the context of evidence that was discovered following an illegal stop, logically the Frier-son framework applies equally to an illegal frisk.

In the present case, the first factor weighs against finding that the discovery of the evidence against Barnes was “sufficiently attenuated to dissipate the taint” of the illegal pat-down. This was a brief traffic stop. In any event, as the supreme court noted, the first factor is not disposi-tive.

The second factor — intervening circumstances — appears to be the most important. It is implicit from Brown and its progeny that there must be some intervening circumstance in order for the taint of a primary illegality to be dissipated. See Frierson, 926 So.2d at 1144 (intervening circumstances should be weighed against “the purpose and flagrancy of the official misconduct”).

In the present case, the discovery of the marijuana and Barnes’s statement occurred during the weapons pat-down, so the outstanding warrant cannot be an intervening circumstance. However, the outstanding warrant was an intervening circumstance relative to the discovery of the crack cocaine. Here, the taint of the initial illegality dissipated with respect to the evidence found after the officer discovered the outstanding warrant — in this case, the crack cocaine found subsequent to Barnes’s formal arrest. The outstanding warrant broke the chain of illegality even if the officer may have had an independent reason to arrest the defendant based upon illegally obtained evidence. The illegality of the frisk did not affect the validity of the court order for Barnes’s arrest.

The third factor in Frierson concerns the purpose and flagrancy of the official misconduct. There was nothing in the record suggesting that the illegal pat-down was flagrant misconduct. Nothing suggested that the pat-down was pretextual or done in bad faith. Instead, the pat-down was a result of the officer’s mistake regarding his legal authority to frisk someone who moves his hands in or near his pockets during a stop under Florida Law. See Delorenzo v. State, 921 So.2d 873, 879 (Fla. 4th DCA 2006) (The mere thrusting of one’s hand in one’s pocket in front of a police officer does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous.). However, in determining whether there is flagrant misconduct under this third factor, cases from other jurisdictions suggest that a suspect who appears nervous and jittery and who suddenly thrusts his hands toward his pockets, may cause a reasonably prudent officer to pat-down the person for officer safety. See, e.g., State v. Mann, 271 Conn. 300, 857 A.2d 329, 346 (2004) (a suspect’s attempt to reach into his pocket or some other place where a weapon may be concealed is a fact that supports a reasonable suspicion that the suspect is armed and dangerous); United States v. Robinson, 119 F.3d 663, 667 (8th Cir.1997) (suspect took his hands off steering wheel and moved them toward his waist); United States v. Lane, 909 F.2d 895, 900 (6th Cir.1990) (defendant attempted to reach into his coat pocket); United States v. Landry, 903 F.2d 334, 337 (5th Cir.1990) (suspect observed reaching for bag); State v. Taylor, 966 So.2d 631, 640 (La.Ct.App.2007) (officer’s safety concerns escalated when defendant attempted to reach for his pants pocket.) The foregoing cases are not cited to change or alter Florida law, but only because they are instructive and analogous on the issue of flagrant misconduct, and in determining whether the exclusionary sanction is appropriate.

We thus conclude that the trial court erred in suppressing the cocaine, insofar as the warrant was an intervening circumstance. Accordingly, we reverse with respect to the suppression of the cocaine, but affirm with respect to the suppression of the other evidence, and remand for further proceedings.

SHAHOOD, C.J., and STEVENSON, J., concur.

BELANGER, ROBERT E., Associate Judge, concurs specially.

BELANGER, ROBERT E.,

Associate Judge, concurring specially.

I concur in majority opinion but write to add the following. The United States Supreme Court has repeatedly held that the State’s use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution. In United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court said, “Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’ ” Illinois v. Gates, [462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ]. See also United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Shadler v. State, 761 So.2d 279, 284 (Fla.2000).

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. “Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.” United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). “Indiscriminate application of the exclusionary rule, therefore, may well ‘generate] disrespect for the law and administration of justice.’ Accordingly, ‘[a]s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’ ” State v. Campbell, 948 So.2d 725, 730 (Fla.2007) (citations omitted).

This view of the limits of the exclusionary rule was reiterated in the recent past term of the Supreme Court in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2163, 165 L.Ed.2d 56 (2006):

Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it, Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (citation omitted). We have rejected “[i]ndis-criminate application” of the rule, Leon, supra, at 908 [104 S.Ct. 3405], and have held it to be applicable only “where its remedial objectives are thought most efficaciously served” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)—that is, “where its deterrence benefits outweigh its substantial social costs,”’ Scott, supra, at 363 [118 S.Ct. 2014] (quoting Leon, supra, at 907, 104 S.Ct. 3405.)

See also Campbell, 948 So.2d at 730-31 (Wells, J., dissenting, Cantero and Bell, JJ., concurring) (If the trial judge determines that there was a Fourth Amendment violation, he should then make a determination as to whether the exclusionary rule should exclude the evidence based on the Supreme Court’s decision on the exclusionary rule.).

The foregoing decisions suggest that a ruling on a motion to suppress can be considered a two-stage proceeding. First, the court must determine whether a search or seizure is unlawful. If the search or seizure is found lawful, that is the end of the inquiry. However, if the search and seizure is determined to be unlawful, the court is permitted to make findings to determine the appropriate remedy. The exclusionary rule is not to be applied automatically and inexorably in every case. To be sure, in Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a stop and frisk case, the Supreme Court cautioned against, “a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, [which] may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us.”

I agree with the results, reversing the suppression of the cocaine, while affirming the suppression of the other evidence. I write separately to note that Hudson v. Michigan seems to represent a significant evolution in the way the United States Supreme Court approaches the application of the exclusionary rule. While current law may not require the court to make findings on the remedy, trial courts should be permitted, if not encouraged, to avoid a rigid and unthinking application of the exclusionary rule, and to make findings on the application of the exclusionary rule as an appropriate remedy.

      . The Florida Constitution, Article I, Section 12, provides that search and seizure law in Florida “shall be construed in conformity with the 4th Amendment of the United States Constitution, as interpreted by the United States Supreme Court.” (emphasis added).