author: ALTENBERND, Judge.

text:
    GREENACRE PROPERTIES, INC., Appellant, v. Radhakrishna K. RAO, Appellee.
    No. 2D04-5569.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.

      Steven H. Mezer, Keith D. Skorewicz, and Eric N. Appleton of Bush Ross, P.A., Tampa, for Appellant.
    Jennifer J. Card of Abbey, Adams, Byel-ick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Appellee.
   ALTENBERND, Judge.

Greenaere Properties, Inc., appeals a final judgment in the amount of $9300 in favor of Dr. Radhakrishna K. Rao. We reverse because Dr. Rao was not an intended third-party beneficiary of the contract on which he sued; he was not entitled to damages under section 720.303(5), Florida Statutes (2000), against an entity that was not a homeowners’ association; and he was not entitled to damages for lost income under a negligence theory when he had sustained no bodily injury or property damage.

I. THE FIRST LAWSUIT

Dr. Rao owns a home and resides in a community called Van Dyke Farms. As a result, he is a member of the Van Dyke Farms Homeowners’ Association (“the Association”). In 1992, the Association entered into a contract with Greenaere Properties, a property management company, for the management of the Association and its community facilities. Under the contract, Greenaere Properties was specifically charged with maintaining the financial records and other records of the Association.

Since 1999, Dr. Rao and the Association have been engaged in a bitter dispute that seems to have been engendered by the construction of a small pond in his yard. Viewed in the light most favorable to Dr. Rao, the evidence presented in this case suggests Greenacre Properties may have advised the Association’s board of directors that Dr. Rao was not in compliance with certain restrictive covenants and recommended the Association file suit at a time when Greenacre Properties knew or should have known that there were no existing violations. In May 1999, the Association filed a lawsuit against Dr. Rao and his wife, seeking injunctive relief related to alleged violations of deed restrictions. Dr. Rao responded to the complaint and, as part of his defense, alleged that the Association was selectively enforcing the restrictive covenants against him. Green-acre Properties was not a party to this previous lawsuit.

In October 2000, while this previous lawsuit was pending, Dr. Rao contacted Greenacre Properties and asked to review all files kept by Greenacre Properties for the Association for the period between January 1998 and November 2000. This request was apparently made as an indirect method to obtain discovery in the pending lawsuit between Dr. Rao and the Association. In November, Dr. Rao went to the offices of Greenacre Properties to review these records but was only permitted to review the “official records” of the Association as defined in section 720.303(4). The attorney for the Association had advised Greenacre Properties that it should only permit review of the official records and not all of the records in its possession.

The issues surrounding the production of these documents presumably could have been resolved in the previous lawsuit through motions to compel the Association to produce the documents. Apparently without a resolution of these issues, the lawsuit between the Association and Dr. Rao went to trial in September 2002. At the conclusion of that trial, the trial judge dismissed the Association’s complaint for injunctive relief and rejected Dr. Rao’s claims of selective enforcement. In his oral pronouncement, the trial judge opined that the protracted litigation between the parties was the result of a simple misunderstanding the parties should have resolved between themselves. The trial judge concluded that Dr. Rao was the prevailing party in the litigation and thus entitled to attorneys’ fees pursuant to section 720.305(1). The trial judge limited the award of attorneys’ fee to $5545, however, based upon a finding that both parties had incurred unnecessary or unreasonable attorneys’ fees during the litigation.

II. THIS LAWSUIT

On January 23, 2001, while the lawsuit between Dr. Rao and the Association was still pending, Dr. Rao filed this lawsuit against Greenacre Properties. One count of the complaint against Greenacre Properties alleged that Greenacre Properties breached its contract with the Van Dyke Farms Homeowners’ Association, based upon the theory that Dr. Rao had rights under that contract as a third-party beneficiary. This count claimed that Greenacre Properties breached the contract by failing to produce records to Dr. Rao for inspection, failing to adequately maintain the records of the Association, and failing to provide Dr. Rao with “necessary notices” that the Association was required to send to Dr. Rao.

The second count of the complaint alleged that negligence on the part of Green-acre Properties resulted in damage to Dr. Rao. This count alleged that Greenacre Properties negligently performed its duties under the contract with the Association, specifically related to the requirement to provide certain notices to Dr. Rao or to keep and maintain the Association’s records. This count stated, “As a result of [Greenacre Properties] failing to perform their duty under the Agreement, [Dr. Rao] has suffered damages, as well as emotional stress and physical hardships.”

As Dr. Rao’s case against Greenacre Properties progressed, it became clear that Dr. Rao was seeking as part of his damages the approximately $30,000 he had paid to attorneys to represent him in the lawsuit between him and the Association. Prior to trial, the circuit court ruled that Dr. Rao could not claim these expenses as damages in this action, given that the trial judge in the preceding action had awarded Dr. Rao attorneys’ fees but found that the majority of the fees incurred were not reasonable or necessary.

The case proceeded to a nonjury trial, at which Dr. Rao asserted that the 1999 lawsuit initiated by the Association was unfounded and based upon faulty information provided by Greenacre Properties. Dr. Rao also testified about the incident in 2000 when Greenacre Properties denied him access to certain records of the Association when he requested them. Regarding his damages, Dr. Rao testified that he suffered severe emotional distress as a result of the prior litigation with the Association. He asserted he missed seventeen days of work for hearings, depositions, and inspections related to the litigation, seven additional days due to rescheduling various appointments because of the demands of the lawsuit, and thirty-three hours of work for telephone conferences. Dr. Rao, who is a pediatric neurologist, testified he normally receives revenue of $275 per hour or $3000 per day.

After the trial, the circuit court entered a nineteen-page judgment that has all of the indicia of a judgment prepared by plaintiffs counsel. In the judgment, the trial court concluded that Dr. Rao was a third-party beneficiary to the management contract between the Association and Greenacre Properties and that Greenacre Properties had breached the agreement. The court held that Dr. Rao was entitled to statutory damages under section 720.305 in the amount of $500. Finally, the court determined that Greenacre Properties had been negligent in fulfilling, on behalf of the Association, its duties to Dr. Rao concerning these records. The court awarded Dr. Rao $8800 in damages, representing his lost earnings or earning capacity because the earlier lawsuit between the Association and Dr. Rao had distracted Dr. Rao from his professional duties. Accordingly, the trial court entered judgment for Dr. Rao in the total amount of $9300 against Greenacre Properties. We reverse as to all of these decisions.

III. A HOMEOWNER IS NOT GENERALLY A THIRD-PARTY BENEFICIARY TO AN AGREEMENT BETWEEN A HOMEOWNERS’ ASSOCIATION AND ITS MANAGEMENT COMPANY

Chapter 720, Florida Statutes (2000), regulates homeowners’ associations. Under this chapter, homeowners’ associations have certain powers and duties, and must maintain certain records. See § 720.303. It is common for a homeowners’ association to contract with a property management company to fulfill some of the association’s duties. These contracts may provide incidental benefits to homeowners who are members of the Association, but they are not usually intended to directly benefit the homeowners.

The management agreement between Van Dyke Farms Homeowners’ Association and Greenacre Properties is a typical management agreement. Greenacre Properties is required to perform certain functions for the Association. The contract does contain a paragraph that states: “All records kept by [Greenacre] shall be kept at the office of [Greenacre] and shall be available for inspection during [Green-acre’s] office hours by association members.” The manager, however, is “responsible to the Board of Directors concerning the management and operation of the Association.” Greenacre Properties is required to “assist the Board or committees in administering the Rules and Regulations promulgated by the Association.” The contract contains an indemnification clause in which the Association agrees to indemnify Greenacre Properties as its “agent.”

As a general rule, a person who is not a party to a contract cannot sue for a breach of the contract even if the person receives some incidental benefit from the contract. A third party must establish that the contract either expressly creates rights for them as a third party or that the provisions of the contract primarily and directly benefit the third party or a class of persons of which the third party is a member. See Caretta Trucking v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).

This contract creates no express rights for the homeowners vis-a-vis Green-acre Properties. While the homeowners may incidentally benefit from the record-keeping efforts of Greenacre Properties, it cannot be disputed that Greenacre Properties is performing that function primarily for the Association to assure that the Association fulfills its legal obligations under chapter 720. In a similar context involving a condominium association, this court has held that the condominium owners were not third-party beneficiaries of a management agreement entered into between a condominium association and its management company. See Clearwater Key Ass’n—S. Beach, Inc. v. Thacker, 431 So.2d 641, 645 (Fla. 2d DCA 1983).

In holding that Dr. Rao was an intended third-party beneficiary, the trial court’s judgment relied on Hialeah Hospital, Inc. v. Raventos, 425 So.2d 1205 (Fla. 3d DCA 1983). In that case, however, Hialeah Hospital sought payment of a debt pursuant to a contract between two individuals that specifically asserted that there were debts owed to Hialeah Hospital and designated who would be responsible to pay the debts to the hospital. Further, the case involved an order dismissing a complaint for failure to state a cause of action, and the holding asserted simply, “[W]e are unable at this stage of the pleadings to draw the ... conclusion that ... Hialeah Hospital, Inc., was a mere incidental beneficiary.” Id. at 1205.

To the extent Dr. Rao’s breach of contract claim involves Greenacre Properties’ refusal to provide Dr. Rao access to certain records of the Association, the merits of his claim are particularly tenuous. Under the facts of this case, the Association instructed Greenacre Properties, as its agent, not to produce certain documents to Dr. Rao. We do not need to decide whether Dr. Rao was entitled to see the documents he requested under the broad language of the contracts, even if the documents were not official records for purposes of chapter 720. We merely determine that Greenacre Properties was an agent with but one master. When the Association ordered Greenacre Properties not to disclose these documents, Greenacre Properties was entitled, if not required, to obey that instruction. There is nothing in the contract or in chapter 720 that would create an obligation on the part of Green-acre Properties to obey the varying commands of individual homeowners, especially when they conflict with the instructions of the Association with whom it had a written agency agreement. Whether the documents were subject to production was a matter between the Association and Dr. Rao that could have been sorted out in their lawsuit; it was not a matter that Dr. Rao could directly enforce under third-party rights. Accordingly, the trial court erred as a matter of law when it concluded that Greenacre Properties had breached a contractual duty that it owed to Dr. Rao.

IV. GREENACRE PROPERTIES IS NOT A HOMEOWNERS’ ASSOCIATION SUBJECT TO THE PENALTIES CONTAINED IN SECTION 720.303

The judgment recites that Dr. Rao is entitled to $500 in statutory damages for the failure of Greenacre Properties to comply with section 720.303(5). Section 720.303(5) addresses a homeowners’ association’s obligation to maintain official records that are open and available for inspection by members of the association. Under section 720.303(5)(b), “a member who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply with this subsection.” “Minimum damages” are defined as $50 per day for a maximum of ten days.

At the outset, we must note that Dr. Rao did not plead a cause of action under the statute, and we can find no reference to section 720.303(5) in the complaint. Even if Dr. Rao had sought such relief in his pleadings, he would not have stated a valid cause of action against Greenacre Properties. An “association” for purposes of this statute is defined in section 720.301(7) as “a Florida corporation responsible for the operation of a community ... in which the voting membership is made up of parcel owners.” This definition does not include a property management company. This definition of “association” does, of course, describe an entity such as Van Dyke Farms Homeowners’ Association. Simply put, Greenacre Properties is not an association and nothing in chapter 720 would permit the trial court to impose these statutory “minimum damages” against an agent that the Association relied upon or contracted with to perform its statutory duties. If Dr. Rao wanted to recover this statutory claim, he was required to sue Van Dyke Farms Homeowners’ Association for the statutory violation. Accordingly, the trial court erred in imposing this award of statutory minimum damages.

V. NO CLAIM FOR DAMAGES IN NEGLIGENCE EXISTS IN THE ABSENCE OF PHYSICAL IMPACT OF BODILY INJURY

It is doubtful that count II of Dr. Rao’s complaint even stated a cause of action for negligence against Greenacre Properties. The alleged theory is essentially that Greenacre Properties’ negligence in maintaining the records of the Association resulted in unspecified “damages” and “emotional stress and physical hardships.” The complaint does not allege that Greenacre Properties breached any traditional standard of care in negligence that resulted in bodily injury or property damage.

The final judgment stated that Green-acre Properties owed a duty to Dr. Rao based on a case in which a hotel owed a duty to a guest who slipped and fell in a bathtub and sustained bodily injuries. See Cooper Hotel Servs., Inc. v. MacFarland, 662 So.2d 710 (Fla. 2d DCA 1995). With all due respect to the author of this judgment, we fail to see the comparison. The final judgment also contains a discussion of a breach of a fiduciary duty owed by Greenacre Properties to the members of the Association when no such theory was ever alleged in the complaint.

The trial court’s judgment contains a paragraph in bold in which the court finds that Dr. Rao did not present “sufficient evidence to show that he suffered either a physical injury or illness which manifested itself as emotional distress,” and thus Dr. Rao was barred from recovering damages for emotional distress. Thereafter, however, the judgment states that Dr. Rao sustained thirty-two hours of lost earnings at the rate of $275 per hour due to the negligence of Greenacre Properties and thus awards Dr. Rao damages of $8800.

The author of the final judgment has misread the supreme court’s decision in Rowell v. Holt, 850 So.2d 474 (Fla.2003). The final judgment recognizes that, as a general rule, a party cannot recover damages for emotional distress in the absence of physical injury or illness. However, this “impact doctrine” or “impact rule,” which is explained in a long line of cases including Rowell and R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995), does not merely prevent an award of monetary damages representing a party’s “emotional distress” while permitting recovery for other types of damages. Rather, this doctrine generally requires proof of a physical injury or illness before a plaintiff is permitted to recover any type of damages awardable under a negligence theory.

Given that the “impact rule” prevents the award of Dr. Rao’s lost wages in this case, we hesitate to further muddy the waters of the dreaded economic loss rule by addressing its application to this case. Suffice it to say that a negligence claim must generally allege a bodily injury or property damage; a negligence claim for purely economic losses is recognized in only very limited circumstances. See Monroe v. Sarasota County Sch. Bd., 746 So.2d 530, 531 (Fla. 2d DCA 1999). When members of a homeowners’ association can allege statutory and contractual claims against the association for purely economic damages, we see no reason to create a special negligence cause of action for the members against an agent of the association that has contractual responsibilities to perform the statutory duties of the association.

We also hesitate to discuss a theory of breach of fiduciary duty that was never pleaded. Dr. Rao failed to establish that he had a contractual relationship with Greenacre Properties, that he was a third-party beneficiary of a contract between Greenacre Properties and the Association, or that he has any claim in negligence against Greenacre Properties to compensate him for his lost earnings. A fiduciary relationship is not easily defined, but an essential aspect of such a relationship is a level of trust and confidence by the plaintiff that has been bestowed upon and accepted by the defendant. See Doe v. Evans, 814 So.2d 370, 374 (Fla.2002). We see nothing in the indirect relationship between an association’s members and the agents performing the association’s duties under a written contract that would create a fiduciary duty affecting the matters described in the complaint. Dr. Rao has not provided any precedent for such a theory in this appeal.

Because Dr. Rao failed to present evidence supporting any valid cause of action against Greenacre Properties, whether for breach of contract, a statutory violation, or negligence, we reverse the final judgment entered in favor of Dr. Rao and instruct the trial court to enter judgment in favor of Greenacre Properties on remand.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ., Concur.

      . Just as it is doubtful that the Defenestration of Prague was the actual cause of the Thirty Years’ War in 1618, it is unlikely that Dr. Rao's pond, all by itself, precipitated the subsequent litigation. It is the only explanation in the record, though, and an adequate one for our purposes.

      .It is important to note that Dr. Rao did not identify any specific document that he was not shown that would have affected the lawsuit between him and the Association. Thus, there was no evidence that Greenacre Properties' failure to disclose a particular document caused any specific damage to Dr. Rao.

      . Dr. Rao’s counsel in this appeal is not the attorney who represented him before the circuit court.

      . We note that the Association has a contractual obligation to indemnify Greenacre Properties in this case. As such, it appears that this lawsuit might have been pursued to obtain damages from the Association that Dr. Rao had not successfully recovered in the first trial.

      . Dr. Rao has asserted that this recitation makes Dr. Rao the prevailing party in this litigation under chapter 720, entitling him to attorneys’ fees. See § 720.305(1).

      . We note that Dr. Rao made no attempt to assert a claim for malicious prosecution against the Association or Greenacre Properties and failed to present any evidence that Greenacre Properties committed any intentional tort in this regard.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Michael AGOSTO-MOLINA, Petitioner, v. STATE of Florida, Respondent.
    No. 2D05-5373.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.

      Michael Agosto-Molina, pro se.
    Charles J. Crist, Jr., Attorney, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Michael Agosto-Molina, in his petition filed pursuant to Florida Rule of Criminal Procedure 9.141(c), raises a single ground alleging ineffective assistance of appellate counsel. He claims that appellate counsel was ineffective in failing to argue on direct appeal that the sentence imposed on his conviction for attempted second-degree murder was illegal because it violated the statutory maximum or, in the alternative, for failing to file a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct the sentencing error. We agree that appellate counsel rendered ineffective assistance when he failed to file a rule 3.800(b)(2) motion to correct the sentence on the attempted second-degree murder conviction.

Agosto-Molina pleaded guilty to attempted second-degree murder and discharging a firearm from a vehicle in exchange for a cap of ten years’ prison with the prison sentence to be followed by a period of probation. On the attempted second-degree murder conviction, Agosto-Molina was sentenced to eight years’ prison followed by ten years’ probation. Attempted second-degree murder is a second-degree felony punishable by up to fifteen years’ imprisonment. §§ 782.04(2), 777.04(4)(c), 775.082(3)(c), Fla. Stat. (2001). A combined sentence of prison and probation which exceeds the statutory maximum for an offense is an illegal sentence. See Schmidt v. State, 884 So.2d 471, 472 (Fla. 4th DCA 2004). However, to preserve this issue for review on direct appeal, a defendant must either object or file a motion to correct sentencing error pursuant to rule 3.800(b). See Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002); Drayton v. State, 791 So.2d 522, 524 (Fla. 4th DCA 2001). In the present case, there was no objection and no rule 3.800(b) motion was filed.

In Hakkenberg v. State, 889 So.2d 935, 937 (Fla. 2d DCA 2004), this court held: “Appellate counsel’s failure to preserve the sentencing error in this case for review by neglecting to file a rule 3.800(b)(2) motion in the trial court constitutes ineffective assistance of appellate counsel.” The same principle applies here. We therefore hold that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct sentencing error on the basis that Agosto-Molina’s sentence on the attempted second-degree murder conviction exceeded the statutory maximum for that offense. Had appellate counsel preserved this issue for review, we would have been compelled to reverse the sentence. Because a new appeal would be redundant in this case, we reverse Agosto-Molina’s sentence on the second-degree murder conviction and remand for resen-tencing. See id. On remand, the trial court shall impose a sentence that does not exceed the statutory maximum for the offense.

Petition granted.

STRINGER and SILBERMAN, JJ., Concur.

      . Under the Criminal Punishment Code, where the statutory maximum for an offense is exceeded by the lowest permissible sentence as calculated on the Criminal Punishment Code scoresheet, "the lowest permissible sentence under the Code becomes the maximum sentence which the trial judge can impose.” Butler v. State, 838 So.2d 554, 556 (Fla.2003). However, in the present case, the lowest permissible sentence under the code was 6.5 years' prison.


author: PER CURIAM.

text:
    Richard HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4608.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.
   PER CURIAM.

Richard Henry appeals the summary dismissal of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Henry’s motion raised numerous claims for relief involving prose-cutorial misconduct, trial court error, deprivations of his constitutional rights, and ineffective assistance of counsel. We affirm.

Henry’s claims of prosecutorial misconduct and trial court error should have been raised on direct appeal. See Brown v. State, 894 So.2d 137, 145 (Fla. 2004) (holding that claims of prosecutorial misconduct should be raised on direct appeal); Sampson v. State, 845 So.2d 271, 272 (Fla. 2d DCA 2003) (holding that claims of trial court error should be raised on direct appeal). Based on the limited record, it does not appear that Henry reserved the right to appeal any claims and, therefore, Henry’s guilty plea waived any claims relating to alleged deprivations of his constitutional rights that occurred pri- or to the entry of his guilty plea. See Robinson v. State, 373 So.2d 898 (Fla. 1979).

The postconviction court erroneously concluded that Henry’s ineffective assistance of counsel claims should have been raised on direct appeal and, therefore, were not cognizable in a rule 3.850 motion. See Meeks v. State, 382 So.2d 673, 675 (Fla.1980) (noting a claim of ineffective assistance of counsel is an appropriate ground for a rule 3.850 motion). However, we affirm the postconviction court’s ruling on Henry’s ineffective assistance of counsel claims because they are facially insufficient. See Warner v. State, 916 So.2d 879 (Fla. 2d DCA 2005). Our affirmance is without prejudice to Henry’s right to file a facially sufficient rule 3.850 motion. Because the two-year limit for filing rule 3.850 motions expired while this appeal was pending and the postconviction court’s order did not indicate Henry could refile a facially sufficient rule 3.850 motion, we direct that Henry may file another rule 3.850 motion within thirty days of the date of this court’s mandate. See Lewis v. State, 777 So.2d 1083 (Fla. 2d DCA 2001). The postconviction court shall not deem it untimely or successive based upon the motion Henry filed in this proceeding.

Affirmed.

CASANUEVA, KELLY, and WALLACE, JJ., Concur.


text:
    STATE of Florida, Appellant, v. James W. MATHIS, Jr., Appellee.
    No. 2D04-2477.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.
    Rehearing Denied June 7, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court order granting James W. Mathis, Jr.’s motion for new trial. In its order, the trial court determined that the prosecutor had misstated the law during closing argument in Mathis’ attempted second-degree murder trial. Although we agree with this conclusion, we disagree with the trial court’s determination that the unpreserved error was fundamental. As such, we reverse.

The charge against Mathis stemmed from a gunfight in which Mathis was involved. According to the evidence introduced at trial, when Mathis arrived at Pop’s Grocery on the day of the incident, some people who had gathered at the store began joking with him that Corey Smith, the victim, wanted to kill Mathis because he believed Mathis was involved in a burglary of his home. Smith arrived sometime later, approached Mathis, asked him about the burglary, and told him, “Well, there’s going to be whatever, whatever when I see you.” In his statement to police, Mathis said that he understood this to be a threat against him. Smith walked away from Mathis and approached a woman in a car. After Smith spoke with the woman, she drove out of the store’s parking lot. She returned a few minutes later and walked over to Smith. Smith then walked away from the woman and pulled a gun out of his pants; he fired a shot at Mathis from ten feet away. The evidence at trial was undisputed that Smith fired the first shot. When Mathis ran to his car and opened the back door, Smith shot the car’s front window out. Mathis retrieved a gun from the back seat of the car, and a gunfight ensued. During the exchange, a third individual, Michaud Mitchell, rode his bicycle behind Smith and shot him in the head. After Smith had fallen to the ground in a slumped position, Mathis came out from behind his car, approached Smith, and fired several shots into Smith’s twitching body.

At trial, Mathis’ theory of defense was self-defense. During closing argument, the prosecutor stated to the jury that the law on self-defense required Mathis to leave the scene at several points during the incident. At issue here are the prosecutor’s statements to the jury that Mathis had a duty to retreat (1) once the people at the store jokingly informed him that Smith was going to kill him and (2) after Smith confronted him about the robbery, made the “whatever, whatever” threat, and walked away from Mathis. Defense counsel did not object to either of these comments by the prosecutor. The jury returned a verdict of guilty as charged, and Mathis moved for new trial pursuant to Florida Rule of Criminal Procedure 3.600.

In granting Mathis’ motion for new trial, the trial court concluded that “the initial conversation and confrontation between the victim and [Mathis] did not give rise to the ‘duty to retreat’ under the law. No weapons were brandish[ed]. The words did not indicate immediate danger.” The trial court further concluded that because the jury could have based its guilty verdict on the prosecutor’s repeated misstatements of the law, the error was fundamental and a new trial was required. We disagree and reverse.

In reviewing the record, we conclude that the trial court erred in finding the error to be fundamental. Florida Standard Jury Instruction (Criminal) 3.6(f) provides:

The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.

Although the prosecutor here correctly stated that once guns were drawn Mathis had a duty to retreat before resorting to deadly force, he expanded that legal requirement to situations in which a defendant is jokingly informed that he is in danger and situations in which vague threats are made by individuals who then walk away. This was improper. See Cave v. State, 476 So.2d 180, 186 (Fla.1985) (“Counsel may not contravene the law and the jury instructions in arguing to the jury.”).

However, on appeal, the State argues that this error, which was not preserved by contemporaneous objection, is not fundamental. We agree. “Fundamental error is the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Dufour v. State, 905 So.2d 42, 74 (Fla.2005).

Here, it cannot be said that absent the error, the jury would have returned a verdict of not guilty. See Miller v. State, 782 So.2d 426, 432 (Fla. 2d DCA 2001) (“[Pjrosecutorial misconduct constitutes fundamental error when, but for the misconduct, the jury could not have reached the verdict it did.”). The trial court instructed the jury on justifiable use of deadly force and Mathis’ duty to retreat. The testimony established that once Mitchell shot Smith in the head, Smith was slumped on the ground and his body was twitching. Mathis was not in imminent danger when he approached Smith and shot him several times. Mathis clearly had the opportunity to leave without further involvement while Smith was lying helpless on the ground. Accordingly, Mathis was not justified in using deadly force once Smith had been shot by Mitchell, and even though the prosecutor may have misspoken by suggesting that the law required Mathis to retreat earlier in the incident, if the jury followed the instructions given by the trial court, it would necessarily return a guilty verdict under these facts. As such, we cannot say that the prosecutor’s statements, which were not objected to, were “so egregious as to warrant reversal.” Cochran v. Slate, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998).

Having concluded that the trial court erred in finding the error to be fundamental, we further conclude that it abused its discretion in granting the motion for new trial. See State v. Delafuente, 487 So.2d 1083 (Fla. 4th DCA 1986) (reversing trial court’s order granting new trial because error was not fundamental). Accordingly, we reverse the trial court’s order granting Mathis’ motion for new trial.

Reversed.

SALCINES and LaROSE, Concur.


text:
    Andre L. GRANT, Appellant, v. Cheryl JONES, Appellee.
    No. 1D05-5644.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Rehearing Denied July 10, 2006.

      Andre L. Grant, pro se, Appellant.
    Charlie Crist, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 28, 2006, the Court has determined that it lacks jurisdiction in this appeal.

The notice of appeal identifies the “Order Denying Defendant’s Motion to Strike Order Vacating Order of July 12, 2004,” entered by the lower tribunal on November 4, 2005, as the order of which review was sought. In denying the motion to strike, the lower tribunal interpreted the motion as seeking rehearing of its earlier final order vacating a July 12, 2004, order and thereby reinstating a child support order, an income deduction order, and a driver’s license suspension resulting from nonpayment of child support. Although a timely and authorized motion for rehearing will delay rendition of a final order, see Florida Rule of Appellate Procedure 9.020(h), an order denying a motion for rehearing is not independently reviewable. Fla. R.App. P. 9.130(a)(5). Thus, to the extent that the appellant seeks review of the order denying his motion for rehearing, the Court lacks jurisdiction to review the order.

Moreover, the appeal is untimely with respect to the underlying “Order Vacating Order of July 14, 2004.” Because the appellant’s motion to strike was served more than ten days after the Order Vacating Order of July 14, 2004, was filed in the lower tribunal, the motion was untimely and failed to delay rendition of the order. Fla. R. Civ. P. 1.530(b); Fla. R.App. P. 9.020(h). Thus, the appellant’s notice of appeal, which was filed more than 30 days following rendition of the final order, failed to timely invoke the Court’s jurisdiction to review the underlying order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

ALLEN, WOLF, and WEBSTER, JJ„ concur.


author: CASANUEVA, Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORP., a Delaware corporation authorized to do business in Florida, Appellant, v. HONEST AIR CONDITIONING & HEATING, INC., Cory Babcock and William Stevenson, Appellees.
    No. 2D05-3583.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    Rehearing Denied June 27, 2006.

      Frank A. Montefusco, Marie P. Monte-fusco, and Marcus C. Aguirre of Moody, Jones & Montefusco, PA, Plantation, for Appellant.
    George R. McLain and Daniel Joy of George R. McLain, Chartered, Sarasota, for Appellees.
   CASANUEVA, Judge.

In this appeal following a nonjury trial, General Motors Acceptance Corp. (GMAC) appeals from an adverse final judgment determining that its automobile retail installment sale contract was a negotiable instrument as defined by chapter 673, Florida Statutes (2001). The judgment also found that because GMAC’s conduct impaired the value of the debtor’s collateral, no damages were due to GMAC from defendants Cory Babcock and Honest Air Conditioning & Heating, Inc. (“Honest Air”). On appeal, GMAC asserts that the trial court erred in determining that the retail installment sale contract (RISC) was a negotiable instrument and that this error allowed defendants Babcock and Honest Air to avail themselves of protections afforded by section 673.6051(5). We conclude that the court erred in finding that the RISC is a negotiable instrument. However, we affirm because GMAC, by its business practices and conduct, bore the risk of loss in its transactions involving Mr. Babcock and Honest Air.

The evidence demonstrated that in September 2001, Cory Babcock and Honest Air contracted with Cox Chevrolet for the purchase of a new 2001 Chevrolet Corvette. The RISC, which was immediately assigned to GMAC, obligated Mr. Babcock and Honest Air to make monthly payments beginning in November 2001 to satisfy the total indebtedness of $52,516.20 at a zero percent interest rate.

On August 22, 2002, Honest Air and Mr. Babcock traded the Corvette to Florida Auto Brokers as part of the purchase of another vehicle. At that time, GMAC had perfected its security interest in the Corvette so that the vehicle title reflected GMAC’s lien. In September 2002, GMAC telephoned Mr. Babcock regarding the monthly payment due on the Corvette. Mr. Babcock advised that he had traded the vehicle, but he promised to and did later contact Florida Auto Brokers regarding the Corvette trade transaction and the payoff amount due to GMAC. However, not until December 2002 was Mr. Babcock able to inform GMAC that the local dealership would be mailing GMAC the payoff on the Corvette along with instructions as to the vehicle’s title.

In December 2002, Florida Auto Brokers sent its check in the amount necessary to satisfy the lien to GMAC. Almost immediately upon receipt, GMAC placed the check for payment, released the lien, and forwarded the title to the Corvette. Unfortunately, Florida Auto Brokers’ check was dishonored for insufficient funds after the title had been forwarded.

In July 2003, GMAC sued Honest Air and Mr. Babcock for $35,815.26 as damages resulting from the breach of the terms of the RISC. Honest Air and Mr. Babcock asserted a number of affirmative defenses, including an allegation that GMAC had impaired the value of the collateral to its prejudice by releasing the lien before payment was successfully credited to its account. Furthermore, they contended, because the value of the collateral exceeded the indebtedness after appropriate credit to the amount claimed by GMAC, no damages were due from them.

At the nonjury trial, Honest Air and Mr. Babcock asserted that the RISC was a negotiable instrument and that they were entitled to the application of and operation of sections 673.6051(6) and (7), which provide that either failure to maintain perfection of the interest in collateral or to preserve the value of the collateral discharges the debtors to the extent that the impairment would cause the debtors to pay more than they would have been obligated to pay had the impairment not occurred. In its written judgment, the trial court concurred that section 673.6051 applied, found that the value of the collateral exceeded the amount claimed by GMAC, and rendered judgment in favor of Honest Air and Mr. Babcock.

Our analysis of this case begins with chapter 673, which is titled Uniform Commercial Code: Negotiable Instruments. Section 673.1041(1) generally defines a negotiable instrument as “an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise on order.” Additionally, it must be “payable to bearer or to order at the time it is issued or first comes into possession of a holder” and “payable on demand or at a definite time.” § 673.1041(l)(a), (b). A negotiable instrument, by definition, “[d]oes not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money.” § 673.1041(l)(c).

In contrast, the RISC in this case creates a series of obligations upon the vehicle purchaser, requiring the buyer “to buy the vehicle on credit under the agreement”; “to pay the creditor the amount financed and finance charge according to the payment schedule”; and to give “the creditor a security interest” in the vehicle. The RISC sets forth additional instructions or undertakings by both the “person promising” payment and by the creditor “ordering payment.” Among other things, the debtor agrees not to remove the vehicle from the United States and to reimburse advances made by the creditor in payment of repair or storage bills, and the creditor agrees to dispose of the collateral in certain ways following repossession. The RISC also obligates the buyer to pay fees for late payment or dishonored checks. All of these undertakings bring the RISC within the exclusionary language of section 673.1041(1)(c), which provides that a negotiable instrument “does not state any other undertakings” in addition to the payment of money. A negotiable instrument should be “simple, certain, unconditional, and subject to no contingencies. As some writers have said, it must be a[’]courier without luggage.’ ” Mason v. Flowers, 91 Fla. 224, 107 So. 334, 335 (1926).

The Uniform Commercial Code comment to section 673.1041 provides, in part:

Words making a promise or order payable to bearer or to order are the most distinguishing feature of a negotiable instrument and such words are frequently referred to as “words of negotiability.” Article 3 is not meant to apply to contracts for the sale of goods or services or the sale or lease of real property or similar writings that may contain a promise to pay money. The use of words of negotiability in such contracts would be an aberration.

The comment further provides:

Although such a writing cannot be made a negotiable instrument within Article 3 by contract or conduct of its parties, nothing in Section 3-104 or in Section 3-102 is intended to mean that in a particular case involving such a writing a court could not arrive at a result similar to the result that would follow if the writing were a negotiable instrument.

§ 673.1041, Fla. Stat. Ann. (1993). Thus, the comment clarifies that Article 3 was not intended to apply to a contract for the sale of an automobile; nevertheless, nothing in Article 3 would prevent a court from arriving at a decision “similar to the result that would follow” if the RISC were a negotiable instrument.

Although Honest Air and Mr. Bab-cock are not entitled to relief based upon section 673.6051, we must determine whether relief due to the alleged impairment of collateral is otherwise available. At the conclusion of the trial, the court found that GMAC improvidently released its lien on the Corvette as a result of its business strategy. There is ample competent, substantial evidence to support the trial court’s finding that GMAC’s business practices resulted in the loss of its security. GMAC’s representative testified that it was not the company’s policy to verify that a dealership check cleared with sufficient funds before releasing its lien. Because GMAC has such a large number of accounts, there is no practical way for the company to be notified when a particular check has cleared the bank. Each bank has a different clearance time. Furthermore, GMAC receives thousands of payoff checks every day for vehicles on which it holds liens, and fewer than one-half percent of those checks are returned for insufficient funds. It is apparent that in the commercial setting in which it operates, GMAC of necessity bears some risk of loss.

This court’s function is not to evaluate the economic prudence of GMAC’s policies. However, since GMAC’s policy regarding checks tendered in satisfaction of a RISC does not include insuring that the check is backed by sufficient funds, GMAC cannot by following that policy transfer the risk of loss from nonpayment to an innocent purchaser. When GMAC released the lien prior to receipt of the funds, it permitted the Corvette to be transferred to a third party for value, thus depriving Honest Air and Mr. Babcock of their right to dispose of the Corvette in a manner that would satisfy their obligation under the RISC to pay GMAC in full. The Florida statutes and UCC sections applicable to retail installment contracts place minimal burdens on creditors such as GMAC, but the result of their noncompliance can be extremely onerous to the debtor. See Wilmington Trust Co. v. Conner, 415 A.2d 773, 777 (Del.1980) (commenting on an Article 9 case), cited in State Nat’l Bank v. N.W. Dodge, Inc., 108 IIl.App.3d 376, 64 Ill.Dec. 26, 438 N.E.2d 1345, 1349 (1982) (also arising under Article 9). Therefore, when exercising its right to payment in full before releasing its lien, GMAC is obligated to perform that function properly.

Finally, there is competent, substantial evidence to support the trial court’s finding that the value of the Corvette at the time of the disposition exceeded the debt remaining on the zero interest RISC. Therefore, we affirm the trial court’s judgment in favor of Honest Air and Babcock and against GMAC.

Affirmed.

ALTENBERND and LaROSE, JJ., Concur.

      . The final judgment did find in favor of GMAG against defendant William Stevenson, who is not a party to this appeal.

      . Section 673.6051(5) provides, in pertinent part:
      If the obligation of a party to pay an instrument is secured by an interest in collateral and a person entitled to enforce the instrument impairs the value of the interest in collateral, the obligation of an indorser or accommodation party having a right of recourse against the obligor is discharged to the extent of the impairment.

      .We note that the trial court made no oral findings as to the nature of the contract at issue. The final judgment was prepared by the attorney for defendants Babcock and Honest Air, who had argued at the hearing that the contract was a negotiable instrument and that a defense under section 673.605 was available in this case. The court's oral decision, however, was that GMAC's business practices were the cause of the loss it suffered.

      . At the time of the trial, Florida Auto Brokers was no longer in business. Defendant William Stevenson is the Florida Auto Brokers salesman who handled the Corvette transaction and who entered a stipulation for settlement with GMAC. Because the evidence demonstrated that Mr. Stevenson defaulted under the terms of the settlement, the trial court entered final judgment against him.

      . The Florida Legislature has enacted provisions applicable to the sale of motor vehicles in part 1 of chapter 520, Florida Statutes (2001), the Motor Vehicle Sales Finance Act, which defines a retail installment contract as
      an agreement, entered into in this state, pursuant to which the title to, or a lien upon the motor vehicle, which is the subject matter of a retail installment transaction, is retained or taken by a seller from a retail buyer as security, in whole or in part, for the buyer’s obligation.


author: SALCINES, Judge.

text:
    Sondra FLECK-RUBIN f/k/a Sondra Fleck, individually and as cotrustee of the Sidney Fleck Trust Agreement u/w/a December 10, 1973; and Gary Fleck, as guardian ad litem for Sondra Fleck-Rubin, Appellants, v. Aaron FLECK, as a contingent beneficiary and cotrustee of the Sidney Fleck Trust Agreement u/w/a December 10, 1973; Barry Fleck; Gary Fleck; Stephanie Fleck-Morin; and Melanie Spiegelman f/k/a Melanie Singer, Appellees.
    No. 2D04-5637.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    Rehearing Denied July 11, 2006.

      Jane Kreusler-Walsh and Barbara J. Compiani of Jane Kreusler-Walsh, P.A., West Palm Beach, and A. Lamar Matthews, Jr., of Matthews, Eastmoore, Hardy, Crauwels & Garcia, P.A., Sarasota, for Appellants.
    Michael J. Pugh of Levin, Tannenbaum, Wolff, Band, Gates & Pugh, P.L., Sarasota, for Appellee Aaron Fleck, as a contingent beneficiary and cotrustee of the Sidney Fleck Trust Agreement u/w/a December 10,1973.
    No appearance for Appellees Barry Fleck, Gary Fleck in his individual capacity, Stephanie Fleck-Morin, and Melanie Spiegelman f/k/a Melanie Singer.
   SALCINES, Judge.

Sondra Fleck-Rubin appeals from a partial summary judgment in which she was ordered to return funds and assets she had removed from a trust. We reverse.

On December 10, 1973, Sidney Fleck, Sondra’s husband until his death in 1981, executed a trust agreement which called for a division of trust assets into two trust estates upon his death — Trust A and Trust B. In the trust agreement, Sidney appointed as cotrustees his wife, Sondra, and his brother, Aaron Fleck. Sidney named his wife primary beneficiary after his death and the sole beneficiary of Trust A during her lifetime. After Sidney’s death, the trust became irrevocable. Pursuant to the trust agreement, the trust property was divided and placed into Trust A and Trust B.

Trust A was a marital trust to be “administered in accordance with paragraph 3 hereof’ and consisted of “such portion of the trust property as shall afford to Sidney Fleck’s estate the maximum marital deduction allowable in the determination of the federal estate tax.” Trust B was a credit shelter trust to be “administered in accordance with paragraph 4 hereof’ and consisted of “all property not allocated to Trust A.” Trust B terminated when Sondra remarried in November 1987.

Over twenty years after Sidney’s death, Sondra asked the trust administrator to deliver the funds and assets of Trust A to her and the administrator complied. The cotrustee of Trust A, Aaron, filed suit against Sondra and was successful in obtaining a partial summary judgment which ordered Sondra to transfer to Aaron, as cotrustee, “all of the funds and assets” she had withdrawn from the trust and further directed Aaron to manage the funds and assets for Sondra’s benefit during her lifetime. This appeal ensued.

The present appeal involves the trial court’s interpretation of a trust agreement and the entry of a partial summary judgment. Because there is no genuine issue as to a material fact in this matter, the only question for this court is whether the trial court correctly applied the law. Our standard of review of a trial court’s ruling on a motion for summary judgment regarding a pure question of law is de novo. Roberts v. Sarros, 920 So.2d 193, 194-95 (Fla. 2d DCA2006).

In this appeal, we are asked to determine whether the terms of the trust agreement permitted Sondra to remove all the funds and assets of Trust A without her cotrustee’s consent. The trial court considered two provisions in determining that Sondra did not have the authority to unilaterally remove the funds and assets of Trust A — paragraph 3(a)-(e) and paragraph 9(f). Paragraph 3(b) provides that “[t]he Trustees shall make distributions to my wife from the principal of Trust A, even to the complete exhaustion there-of_” (Emphasis added.) Paragraph 9(f) provides:

9. The following additional provisions and limitations, when applicable, shall govern the administration and disposition of the trust property:
(f) Notwithstanding any provision to the contrary elsewhere contained in this instrument, neither my wife nor any lineal descendant of mine shall, while serving as a Trustee hereunder, participate in the exercise by the Trustees of any discretionary power or authority conferred upon the Trustees by any provision of this instrument with respect to the distribution, or the withholding from distribution, of the principal of any trust estate held hereunder for the benefit of such one or with respect to the distribution, the withholding from distribution, or other application of the net income therefrom; and all such powers and authorities shall be exercised solely by the other Trustee.

(Emphasis added.)

The trial court determined that paragraph 9(f) required Sondra to obtain the authorization of the cotrustee, Aaron, for the transfer of the funds and assets from Trust A to herself since she was then the beneficiary and a cotrustee of that Trust. Paragraph 9(f), however, applied only to a trustee’s exercise of any discretionary authority. The unambiguous language of paragraph 3(b) allowed Sondra to demand distributions from Trust A “even to the complete exhaustion thereof.” Such distributions were not subject to the approval or discretion of Aaron, as cotrustee, since paragraph 3(b) provided that the trustees “shall make distributions” requested by Sondra. Because the trustees had no discretion under paragraph 3(b), paragraph 9(f) was inapplicable.

Accordingly, we reverse the partial summary judgment and remand for further proceedings consistent herewith.

STRINGER and LaROSE, JJ., Concur.

      . Paragraph 3(b), however, required that Sondra’s request for all the assets had to be made "by written instrument signed by her and delivered to the Trustees during her life.” Our review in the present appeal is limited to whether Sondra had the authority to remove all the assets of Trust A without obtaining Aaron’s approval. On remand the trial court may consider whether Sondra otherwise satisfied the requirements of paragraph 3(b).


author: KELLY, Judge.

text:
    Adell BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-393.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.

      Cheryl Hoover of Law Offices of Cheryl Hoover, P.A., Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Adell Barnes appeals from his judgment and five-year sentence following the entry of an open guilty plea to sale of marijuana, misdemeanor possession of marijuana, and felony possession of marijuana. He argues that his plea was not knowing and voluntary because his attorney never told him that he could receive up to five years in prison. He points out that his score-sheet recommended a nonstate prison sanction. In addition, his change of plea form does not state the maximum penalty for the offenses, nor did the trial court inform him of the maximum possible sentence during the plea colloquy. The record supports Barnes’ claim. In fact, a review of defense counsel’s arguments at the hearing reveals that she was mistaken as to what Barnes’ maximum sentence might actually be.

However, because Barnes has not moved to withdraw his plea, the issues he raises on appeal are not properly before this court. See Acord v. State, 841 So.2d 587, 590 (Fla. 2d DCA 2003). Also, as the State points out, claims of ineffective assistance of counsel generally must be raised in a postconviction motion. See Hillenbrand v. State, 790 So.2d 1153 (Fla. 2d DCA 2001).

Accordingly, we affirm without prejudice to Barnes’ right to seek postconviction relief in the trial court.

NORTHCUTT, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    Jeffrey LASTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-524.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    Appeal from the Circuit Court for Hills-borough County; Ralph C. Stoddard and Rex Martin Barbas, Judges.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Jeffrey Laster entered a plea of nolo contendere to the charge of delivery of cocaine and reserved his right to appeal the denial of his dispositive motion to suppress. We affirm.

We hold that the search of Laster’s person was consistent with the requirements of the Fourth Amendment to the United States Constitution but was unlawful under the Florida Strip Search statute, section 901.211, Florida Statutes (2003). However, as we held in Jenkins v. State, 924 So.2d 20 (Fla. 2d DCA 2006), Laster is not entitled to have the fruits of the search suppressed. Accordingly, we affirm the judgment, the sentence, and the denial of the motion to suppress.

As in Jenkins, we certify that our decision is in direct conflict with D.F. v. State, 682 So.2d 149 (Fla. 4th DCA 1996).

Affirmed; conflict certified.

KELLY and WALLACE, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Aaron Eugene HAMPTON, Appellee.
    No. 2D05-1493.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Dylan M. Snyder of Dylan M. Snyder, P.A., Tampa, for Appellee.
   PER CURIAM.

Reversed and remanded. See State v. Vanderhors, 927 So.2d 1011 (Fla. 2d DCA 2006).

WALLACE and LaROSE, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: WHATLEY, Judge.

text:
    Gregory D. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2520.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Gregory D. Moore appeals his conviction and sentence for burglary of a dwelling. We affirm his conviction; however, we reverse and remand his sentence for the circuit court to correct two imposed costs.

While his appeal was pending, Moore filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) on September 19, 2005. In his motion, Moore challenged his sentence and the imposition of two costs. He argued that the circuit court erred in imposing $650 in court costs, because the court pronounced court costs of only $450. Moore also argued that the circuit court erred in imposing $950 in attorney fees without offering him an opportunity to object to those fees.

The circuit court granted Moore’s motion on November 28, 2005. This order was untimely, because it was not entered within sixty days as required by rule 3.800(b)(2). Therefore, the circuit court’s order is a nullity and Moore’s motion is deemed denied. See Whitmore v. State, 910 So.2d 308 (Fla. 2d DCA 2005).

On appeal, the State correctly concedes that the court costs should be reduced to $450 and that the $950 attorney fee assessment should be stricken. We therefore reverse and remand Moore’s sentence for the trial court to correct the assessment of these costs. His sentence is otherwise affirmed.

Accordingly, we affirm Moore’s conviction and reverse and remand his sentence for the trial court to reduce court costs to $450 and strike the attorney fee assessment.

Affirmed in part; reversed for the correction of court costs.

SILBERMAN and WALLACE, JJ., Concur.


author: LaROSE, Judge.

text:
    Donald SHERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2551.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Donald Sherwood challenges the revocation of his probation and the resulting sentence. We affirm in part and reverse in part.

In an amended affidavit of violation of probation, the State alleged that Mr. Sherwood committed seven violations of the conditions of his probation. At the revocation hearing, however, the State presented evidence for only five of the alleged violations: failing to report a January 9, 2005, contact with law enforcement (condition one); failing to live and remain at liberty without violating any law by virtue of traffic infractions that occurred on January 9, 2005 (condition five); and failing, on three instances, to comply with curfew (condition sixty-one). The State presented no evidence on two other violations of condition five that allegedly occurred on February 9, 2005 (driving without a license and failing to register a motor vehicle).

The trial court found Mr. Sherwood in willful and substantial violation of his probation. By listing all seven alleged violations in its written order of revocation, the trial court concluded that Mr. Sherwood had committed violations for which the State presented no evidence. We cannot sustain a revocation of probation based on unsupported allegations. See Davis v. State, 478 So.2d 112 (Fla. 2d DCA 1985).

We also conclude that one of the curfew violations is not substantial. See Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003) (holding that trial court may revoke a defendant’s probation only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation). Mr. Sherwood was not at his approved residence at 10:20 p.m., and at 10:40 p.m., on February 10, 2005. He was also absent at 5:40 a.m. on February 11, 2005. We cannot conclude that Mr. Sherwood’s absence at 10:40 p.m. was anything other than a continuation of his willful absence at 10:20 p.m. on February 10, 2005.

The trial court’s findings of violation on the remaining four incidents recited in the amended affidavit were supported by competent, substantial evidence, and are sufficient to support the revocation of Mr. Sherwood’s probation. See Mitchell v. State, 871 So.2d 1040, 1042 (Fla. 2d DCA 2004); Coxon v. State, 365 So.2d 1067, 1068 (Fla. 2d DCA 1979). Accordingly, we affirm the trial court’s revocation of probation and sentence imposed. We reverse and remand, however, solely for entry of a corrected order of revocation that will, consistent with this opinion, delete one violation of condition sixty-one and two violations of condition five. Mr. Sherwood need not be present when the trial court enters the corrected order.

Affirmed in part, reversed in part, and remanded with instructions. •

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: PER CURIAM. STEVENSON, C.J.

text:
    Jermaine THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3143.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Opinion Denying Rehearing July 12, 2006.

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

A jury convicted Jermaine Thomas of robbery by snatching in violation of section 812.131(1), Florida Statutes (2002), and fleeing and eluding in violation of section 316.1935(2), Florida Statutes (2002). Thomas was sentenced as a habitual felony offender and a prison releas-ee reoffender for both offenses. In this appeal, Thomas challenges his conviction for robbery by snatching, arguing there was fundamental error in the jury instructions, and the sentences imposed for both offenses. We affirm in all respects, save the prison releasee reoffender sentence imposed for the fleeing and eluding conviction, which must be reversed. A prison releasee reoffender sentence is appropriate only if the crime for which the defendant is being sentenced is one of the enumerated felonies or “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a)(l), Fla. Stat. (2002). Fleeing and eluding in violation of section 316.1935(2) is neither an enumerated felony nor a felony that “involves the use or threat of physical force or violence against an individual.”

Affirmed in part and Reversed in part.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.

On Motion for Rehearing

STEVENSON, C.J.

After being convicted of robbery by sudden snatching in violation of section 812.131(1), Florida Statutes (2002), and fleeing and eluding in violation of section 316.1935(2), Florida Statutes (2002), appellant, Jermaine Thomas, was sentenced as a prison releasee reoffender and a habitual felony offender for both crimes. Thomas appealed, arguing the trial court fundamentally erred in instructing the jury that to find him guilty of robbery by sudden snatching, it had to find he “took the property from the person or custody” of the victim and challenging his habitual felony offender and prison releasee reoffender (PRR) sentences. In our prior opinion, we affirmed Thomas’s convictions and his sentence for the crime of robbery by sudden snatching without comment. We reversed, however, his PRR sentence for the crime of fleeing and eluding as a PRR sentence is appropriate only if the crime for which the defendant is being sentenced is one of the enumerated felonies or “[a]ny felony that involves the use or threat of physical force or violence against an individual,” see section 775.082(9)(a)l.o., Florida Statutes (2002), and fleeing and eluding is neither an enumerated felony nor a felony that involves the use or threat of physical force or violence.

Appellant has filed a motion for rehearing, insisting that our affirmance of his PRR sentence for the crime of robbery by sudden snatching suggests we have “overlooked” our prior decision in Smith v. State, 891 So.2d 1133 (Fla. 4th DCA 2005), and the Second District’s decision in Cohen v. State, 920 So.2d 682 (Fla. 2d DCA 2006), and that had we considered these decisions, we would have concluded that the jury instructions regarding the offense of robbery by sudden snatching rose to the level of fundamental error. We deny the motion for rehearing, but write to explain our affirmance of the robbery by sudden snatching conviction and PRR sentence.

In Smith, the trial court imposed a PRR sentence for the crime of “robbery by sudden snatching,” equating the crime with the “robbery” that is one of the enumerated felonies under section 775.082(9)(a)l.g. of the PRR statute. This court reversed the PRR sentence, holding “robbery by sudden snatching” was not the equivalent of the enumerated “robbery” because “robbery requires the use of force, violence, assault, or putting in fear, section 812.13, while robbery by sudden snatching does not.” 891 So.2d at 1133 (citing Brown v. State, 848 So.2d 361 (Fla. 4th DCA 2003)). Cohen is in accord. We did not affirm Thomas’s PRR sentence for the crime of “robbery by sudden snatching” under the rationale that “robbery by sudden snatching” is the equivalent of the enumerated crime of “robbery” under section 775.082(9)(a)l.g. Rather, we affirmed the sentence because the PRR statute allows for the imposition of a PRR sentence for one of the enumerated felonies or under section 775.082(9)(a)l.o. for “[a]ny felony that involves the use or threat of physical force or violence against an individual” and the evidence adduced at trial was to the effect that the victim and the defendant struggled over the victim’s purse and the defendant essentially dragged or pulled the victim toward the rear of her car.

As for the jury instruction matter, we agree that the instruction given was erroneous. The trial judge instructed the jury that the State was required to prove Thomas “took property from the person or custody of [the victim].” The statute defining the crime provides that “ ![r]obbery by sudden snatching’ means the taking of money or other property from the victim’s person ....” § 812.131(1), Fla. Stat. (2002) (emphasis added). In Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003), this court stated that “the clear import of the statute’s words is to require that the property be abruptly and unexpectedly plucked from the embrace of the person, not from that person’s figurative biosphere,” and reversed a conviction where the victim’s purse was sitting on the bench beside her when it was taken. Here, Thomas argues that the jury instruction allowed the jury to convict if the property was taken from “the custody of the victim.” Thomas did not object to the instruction, however, and thus is entitled to relief only if the instruction can be said to constitute fundamental error.

An erroneous instruction rises to the level of fundamental error where “the error in the instruction relate[s] to an element of the crime that is a contested issue.” Caldwell v. State, 920 So.2d 727, 731 (Fla. 5th DCA 2006); see also Reed v. State, 837 So.2d 366, 369 (Fla.2002) (holding jury instruction that inaccurately defines element of crime is fundamental error “if the inaccurately defined ... element is disputed and the inaccurate definition ‘is pertinent or material to what the jury must consider in order to convict’ ”) (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)). Thomas points to a few isolated statements in counsel’s closing argument in support of his claim that the taking from the “person” versus taking from the “custody” issue was put in dispute. We reject this contention. Thomas presented no evidence at trial. The thrust of the defense cross-examination of the victim was simply to point out inconsistencies in the victim’s testimony and to suggest perhaps she was mistaken about a number of things, particularly Thomas’s identity. Defense counsel never addressed with the victim that she might be mistaken in her testimony that she and the assailant struggled as she attempted to hold onto her purse. It was not until closing argument that defense counsel suggested that since the victim was mistaken about some things in her testimony, maybe she was mistaken about her struggle with the assailant over the purse and perhaps it had merely been grabbed from the car or the ground. Nothing in the evidence at trial supported counsel’s speculation. Cf. Tito v. Potashnick, 488 So.2d 100, 101 (Fla. 4th DCA 1986) (“Arguing facts not in evidence or not warranted from the evidence is impermissible.”). In the context of the entire record, we cannot say that the defense argument raised an actual dispute as to whether the purse was taken from the victim’s person such that fundamental error may be claimed. See Davis v. State, 839 So.2d 734, 735-36 (Fla. 4th DCA 2003) (on reh’g) (finding that in order for a jury instruction which inaccurately defines an element of a crime to constitute fundamental error “there must be an actual dispute about that element raised by the evidence or argument”) (emphasis added); Pratt v. State, 601 So.2d 619, 620 (Fla. 2d DCA 1992) (noting that “ ‘fundamental error must involve a critical and disputed issue at trial’ ”) (quoting Steele v. State, 561 So.2d 638, 645 (Fla. 1st DCA 1990)).

GUNTHER and MAY, JJ„ concur.


author: SALCINES, Judge. ALTENBERND, Judge,

text:
    Walter J. KASM, Jr., Appellant, v. Patricia KASM, Appellee.
    No. 2D05-3889.
    District Court of Appeal of Florida, Second District.
    May 19, 2006.

      Denise E. Elder of Gerald R. Sage, P.A., Tampa, for Appellant.
    Ellen E. Ware and Jeanie E. Hanna of Ellen E. Ware, P.A., Tampa, for Appellee.
   SALCINES, Judge.

Walter J. Kasm, Jr. (the Husband), appeals from a nonfinal order granting temporary attorney’s fees to Patricia Kasm (the Wife). We affirm, without discussion, the portion of the order which concluded that the Wife is entitled to temporary fees. However, the trial court made no findings whatsoever concerning the reasonableness of the temporary fees awarded, and this court cannot determine from the record before us how the trial court arrived at its determination of the amount awarded. Accordingly, we reverse the portion of the order awarding $10,000 in temporary fees and remand to the trial court for a determination of the reasonable amount of fees to be awarded.

In this appeal, the Husband argues that the trial court was required to determine whether the proposed fees were reasonable but that it failed to do so. Although the Wife’s counsel briefly alluded to the difficulty experienced in litigating the case up to the date of the temporary fee hearing, counsel did not otherwise address a specific fee amount which she considered reasonable and did not offer any evidence concerning a reasonable fee amount. The Wife’s attorney presented an affidavit which set forth amounts expended through the date of the affidavit as well as an estimate of additional hours to be expended and expenses to be incurred, but the affidavit itself could be read to support an award ranging from far less to far more than the amount actually awarded. Indeed, it is not entirely clear which fees and expenses, expended or projected, were appropriate in this case. The trial court awarded $10,000 without explanation.

“The trial court must ‘not only determine that one spouse has a need for suit money and the other has the ability to pay, but also that the temporary attorney’s fees and costs awarded are reasonable.’ ” Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994) (quoting Duncan v. Duncan, 642 So.2d 1167 (Fla. 4th DCA 1994)). In the present case, the trial court did not explain how it determined that $10,000 was a reasonable fee, and we cannot determine how it reached that conclusion based on the record before this court. Accordingly, we reverse that portion of the order awarding a specific amount of temporary fees and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

KELLY, J„ Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this case only because existing precedent seems to require this result. Especially considering the “very broadest discretion” trial judges are afforded when considering temporary awards, see, e.g., Driscoll v. Driscoll, 915 So.2d 771, 772 (Fla. 2d DCA 2005), I would conclude that it appears obvious from our record that a $10,000 temporary attorneys’ fee award is not an abuse of discretion.

This matter comes to us as an appeal of a nonfinal order that determines the right to immediate monetary relief in a family law matter. See Fla. R.App. P. 9.130(a)(3)(C)(iii). We have an appendix that includes only a portion of the record. This dissolution proceeding involves a nine-year marriage, apparently between parties who have been previously married. There are no children of this marriage, and the current income of the parties disclosed in the financial affidavits is quite low. The wife has living expenses in excess of $2500 per month and no income. She discloses limited assets. The husband agrees that there are few assets of the marriage but claims nonmarital assets in excess of $400,000. The wife has made a disputed but reasonable claim for alimony. It is obvious that the wife will not be able to afford representation without a temporary award.

The award is supported by an affidavit from the wife’s attorneys, disclosing their hourly rates and expected expenses, which certainly do not appear unreasonable. The affidavit, however, does not detail a method to support the $10,000 award in this case.

The trial court’s order properly explains that under the holding in Nichols v. Nichols, 519 So.2d 620 (Fla.1988), the process for determining attorneys’ fees is the same for both temporary and final awards. That process requires an inquiry into whether one spouse has a need and the other has the ability to pay. Id. at 622. The order in this case appears to have all of the necessary findings, except for a finding on the reasonable hourly rate and the reasonable number of hours the wife’s attorney expects to expend.

It seems to me that the process of setting a temporary award of attorneys’ fees in a divorce proceeding should not be subjected to the same rigors as a final award. See, e.g., Robbie v. Robbie, 591 So.2d 1006, 1010-11 (Fla. 4th DCA 1991) (Polen, J., concurring in part and dissenting in part) (trial courts should not be required to make detailed findings of fact on temporary attorneys’ fees awards); Wallace v. Wallace, 605 So.2d 504, 505 (Fla. 4th DCA 1992) (Polen, J., concurring). At least in a case in which there will be a final award of alimony or a property distribution that could be adjusted in the event that the trial court ultimately decides that the temporary award of fees was excessive, I believe that temporary attorneys’ fees should not be treated like a final determination of a monetary award. Unless a trial court expressly states that the award is final and will not be reconsidered in the final judgment, such temporary awards should be treated as only a temporary decision and reviewable in this court only by writ of certiorari.

      . We confess some discomfort in reversing that portion of the order because the amount awarded was not unusually excessive. Furthermore, the trial court enjoys "broad” discretion in making temporary fee determinations which, by their very nature, can be adjusted at a later date by an additional interim award or, in certain circumstances, a credit. See Nault v. Nault, 883 So.2d 894 (Fla. 2d DCA 2004) (citing Walker v. Walker, 827 So.2d 363 (Fla. 2d DCA 2002), and Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991)). Nonetheless, in this case we are compelled to reach this result. See Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994).


text:
    James SPRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4356.
    District Court of Appeal of Florida, Second District.
    May 19, 2006.
    Rehearing Denied June 29, 2006.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

James Spradley appeals his judgment and sentence for armed trafficking in cocaine, operating a crack house, and possession of marijuana. Mr. Spradley pleaded no contest to the charges after the trial court denied his dispositive motion to suppress the evidence seized at his home that supported the charges. Mr. Spradley argues on appeal that the police violated Florida’s knock-and-announce statute by failing to wait a reasonable time before entering his residence to execute a search warrant. See § 933.09, Fla. Stat. (2003). Because the officers intentionally detonated an explosive “distraction device” during the fifteen seconds between knocking and announcing their presence and breaking down Mr. Spradley’s front door to gain entry into the residence, we reverse. Although in some circumstances a fifteen-second wait may be sufficient to satisfy the knock-and-announce requirement, the use of a “distraction device” during the fifteen seconds, as its name suggests, dramatically diminishes the ability of the occupants of a home to permit peaceable entry within the allotted time.

I. THE FACTS

On the evening of March 20, 2003, at 9:41 p.m., Mr. Spradley was at home. He was working on a car in his backyard with the help of a man who is unidentified in our record. There were two other unidentified people in the fenced-in backyard. Mr. Spradley’s girlfriend was inside their home. She was upstairs putting their five-year-old daughter to bed.

St. Petersburg police officers had a search warrant to enter this home. There is no dispute that they did not have exigent circumstances to enter this home without knocking and announcing. See, e.g., State v. Bamber, 630 So.2d 1048 (Fla.1994); Wilson v. State, 673 So.2d 505 (Fla. 1st DCA 1996). The officers arrived at 9:41 p.m. The testimony by the officers varied, but there were no fewer than eight officers and there could have been as many as sixteen. There were three supervising officers. This was a team trained to execute warrants. Mr. Spradley’s girlfriend testified that the officers wore dark paramilitary uniforms like a SWAT team and at least some of them had masks or covers over their faces.

Several officers were deployed to the rear of the house. They immediately confronted Mr. Spradley and the other man and ordered them to the ground. It is unclear from the record whether the officers knew at that time that one of the men was Mr. Spradley or that he was a primary resident of the home. Other officers observed and detained two more unidentified people who were attempting to leave the backyard.

The officers organized an entry team in a line at the front of the house. There are two doors at the front entrance of the home. The first door is a standard wood or metal door to an enclosed porch. The second door is an iron-bar security door between the porch and living room. It appears that the officers performed the knock and announce at the first door and were unaware of the second door until they entered the home. The officer in charge of this team testified that he was the officer who began knocking and announcing. He explained that he yelled as loudly as he could and banged on the first door. As soon as he finished knocking and announcing, he had the officers set off an explosive detonation device, which makes a very loud noise and apparently produces a flash of light if set off during evening hours. He then ordered the officers with the battering ram to break the door open. He testified that he waited about ten seconds before he gave this order and that it took a few more seconds to break through the second door. Thus, counting the time that the officers were actually using the battering ram to break down the two doors, the time between the initial knock and announce and entry was approximately fifteen seconds.

When the officers entered the home, they found evidence of drugs that all agree was dispositive as to the charges filed against Mr. Spradley. They also found his girlfriend and daughter upstairs. There were no other occupants of this home. Mr. Spradley’s girlfriend testified that she heard the distraction device but did not hear the officer knock and announce.

II. THE KNOCK-AND-ANNOUNCE RULE

Section 933.09 provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

Section 933.09 thus requires law enforcement to provide due notice of their authority and purpose and to be “refused admittance” before they are authorized to forcibly enter a home. Kellom v. State, 849 So.2d 391, 394 (Fla. 1st DCA 2003). The refusal can be express or implied by a lack of response. Id. Wfiiere officers knock, announce their authority and purpose, and enter with such haste that the occupant does not have a reasonable opportunity to respond, the search violates section 933.09. See Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001).

The knock-and-announce rule has been described as fulfilling “a number of most worthwhile purposes.” Bamber, 630 So.2d at 1062 (Fla.1994) (quoting 2 Wayne R. LaFave, Search and Seizure § 4.8(a) (2d ed.1987)). Primarily, it is described as a rule that decreases the potential for violence during the execution of the warrant and one that protects the privacy of the occupants of the home, keeping them from being terrified by a forceful entry. Id.; see also Benefield v. State, 160 So.2d 706, 709 (Fla.1964) (“The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly.”). The knock-and-announce rule is also described as fulfilling the purpose of preventing destruction of private property. Bamber, 630 So.2d at 1052.

The statute does not state that evidence must be suppressed when the police violate its terms, but the United States Supreme Court has treated this knock-and-announce rule as an element of the reasonableness inquiry under the Fourth Amendment, Wilson v. Arkansas, 514 U.S. 927, 933, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), and courts have regularly enforced this statute by invoking the exclusionary rule, see, e.g., Richardson, 787 So.2d 906; State v. Robinson, 565 So.2d 730, 732 (Fla. 2d DCA 1990).

III. STANDING TO ENFORCE SECTION 933.09 AND ENTITLEMENT TO THE EXCLUSIONARY REMEDY

Although neither party has raised the issue, a careful reader of the facts will notice that Mr. Spradley was not inside the home at the time of the knock and announce. Thus Mr. Spradley’s standing to challenge a violation of this statute and to demand the remedy of exclusion of evidence due to the violation may be questioned.

Section 933.09 does not state that a defendant must be present inside the house in order to have standing to enforce this right or to obtain the remedy of the exclusionary rule. The District of Columbia Court of Appeals, in what it described as a nationwide case of first impression, held that such a statute could be enforced under circumstances “[w]here the resident, being within earshot, could have effectuated a peaceful entrance had the statute been complied with and where, being within eyeshot, may witness the violation as it takes place.” District of Columbia v. Mancouso, 778 A.2d 270, 274 (D.C.2001). No court in Florida has adopted this “earshot-eyeshot” rule, but at least one case has been resolved consistently with such a rule. See Ealey v. State, 714 So.2d 1162 (Fla. 1st DCA 1998) (finding a violation of the knock-and-announce rule when the defendant was detained by officers in his front yard).

Because the State has not challenged Mr. Spradley’s standing, we simply assume that Mr. Spradley had standing to challenge the violation of the statute in this case. We note, however, that this case involves invoking the exclusionary rule essentially to remedy the physical damage to Mr. Spradley’s two doors. To the extent that the rule’s purposes are to decrease the potential for violence during the execution of the warrant and to protect the privacy of the occupants of the home, these purposes do not apply directly to a suspect like Mr. Spradley, who is not within the confines of the home but instead detained outside. Even though these purposes may affect Mr. Spradley’s girlfriend and his young child, their remedy for this invasion is presumably provided by a civil action against the police, not the exclusion of evidence against Mr. Spradley. To the extent that the knock-and-announce rule is intended to prevent the destruction of private property, Mr. Spradley’s interests are implicated by the damage occurring to his two front doors.

IV. WAITING FIFTEEN SECONDS UNDER THESE CIRCUMSTANCES IS INSUFFICIENT FOR THE POLICE TO CONCLUDE THAT THEY HAVE BEEN REFUSED ADMITTANCE

Section 933.09 does not contain any express period that an officer must wait at a door following his knock and announce before he is authorized to enter the home with force. Normally, the question is whether the officer has waited a sufficient period, under all of the circumstances, so that the officer can reasonably infer or conclude that he or she has been refused admittance by the occupants. See Richardson, 787 So.2d at 908; see generally Wayne R. LaFave, Search and Seizure: A Treatise On The Fourth Amendment § 4.8(e) (4th ed.2004). This court has noted that “[t]ime periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate.” State v. Cassells, 835 So.2d 397, 399 n. 2 (Fla. 2d DCA 2003); see also United States v. Banks, 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (holding officers’ forcible entry after knocking and waiting fifteen to twenty seconds for response was reasonable).

We note that several facts in this case might seem important, but they are actually more of a distraction than a help during a proper analysis. First, Mr. Spradley was on the ground in the backyard under police guard at the time of the knock and announce. Second, his girlfriend was upstairs supervising a child a considerable distance from the front door and was unlikely to be able to reach the door in fifteen seconds. Finally, there was not one, but two locked doors between the occupants and the police, which would have further slowed the occupants’ ability to invite the police to enter within fifteen seconds. Although these facts may explain why no one reached the door in ten to fifteen seconds, they play little or no role in deciding whether the fifteen-second period was reasonable. None of these facts were known or reasonably ascertainable by the officer at the door making the decision to enter. The officer is required to make a reasonable judgment of whether he is being refused admittance based on the information that is actually available to him. Banks, 540 U.S. at 39, 124 S.Ct. 521 (“The facts known to the police are what count in judging a reasonable waiting time.”).

However, the officers did know that it was 9:41 p.m., a time when they could reasonably expect an occupant to be awake but late enough that the occupants might be preparing for bed. The home had at least two stories. The large team of officers descended upon the home and yard, yelling at people in the backyard, detaining people in the side yard, and knocking on the front door — all within the same fifteen-second time frame in which they expected the occupants to respond to their knock. Most important, the officers also detonated an explosive “distraction device” during these fifteen seconds. A “distraction device” is so named because it is designed and intended to distract and disorient occupants when officers make a forced entry into a home. It is not intended to be used as part of the knock-and-announce procedure but as an officer-safety measure that is used after a decision has been made to enter the home with force. Finally, the fifteen-second time frame included at least a few seconds when the officers were using the battering ram.

Under these circumstances, a reasonable, law-abiding person might delay more than a few seconds to respond to the door- — -to orient themselves, to make certain that the explosive device posed no danger, and to determine that it was safe to invite the person knocking to enter. It seems particularly unreasonable to expect an occupant to open the door in the seconds within which it is being hit with a large object on the other side.

Each of these factors occurring individually may not have rendered the fifteen-second delay unreasonable, but in their totality the actions of the officers during the fifteen-second delay succeeded in eliminating any chance that the occupants may have had to permit a peaceable entry. We are most influenced by the timing of the detonation of the distraction device. At the hearing on the motion to suppress, defense counsel argued, “I don’t see how the government could set off explosions and then wonder why there is a delay in answering the door.” We agree. By intentionally detonating the distraction device during the few seconds that the occupants had to go to the front door and open it, the police could not reasonably expect the occupants to accomplish that which was expected of them.

We reverse the judgment and sentence and remand with instructions to grant Mr. Spradley’s dispositive motion to suppress and to discharge him.

SALCINES and KELLY, JJ., Concur.

      . The descriptions of the house by the officers vary, but we are aided by a surveillance video that was taken shortly before and immediately after the execution of the warrant. The execution of the warrant was not recorded.


text:
    Leroy Crowder REED, Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-4423.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    Rehearing Denied July 10, 2006.
    Leroy Crowder Reed, Polk City, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The petitioner, Leroy Crowder Reed, is in prison because he committed an armed robbery and tried to kill the owner of a small grocery store. He pointed his gun right at the man’s heart, and pulled the trigger, but the gun did not go off. He later confessed to his crimes.

Reed’s latest filing here is his petition for writ of certiorari, and it is a totally inappropriate use of the writ. He is also abusing the judicial process by continuing to attack his habitual felony offender sentences. Consequently, he is prohibited from filing any further pro se pleadings concerning his 16-year-old case. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough”), and its progeny.

In order to conserve judicial resources, we prohibit Leroy Reed, DOC No. 625208, from filing with this Court any further pro se pleadings concerning Marion County, Fifth Judicial Circuit Court Case No. 90-297. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat.; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

WRIT DENIED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

PALMER, MONACO, and TORPY, JJ„ concur.