author: PALMER, J.

text:
    Eva POROPAT, Appellant, v. Mark POROPAT, Appellee.
    No. 5D10-1003.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.
    Jonathan P. Culver, of Jonathan P. Cul-ver, P.A., Ocala, for Appellant.
    Michael Massey and Patricia Duffy of Massey & Duffy, LLC, Gainesville, for Ap-pellee.
   PALMER, J.

Eva Poropat (wife) appeals the order entered by the trial court denying her motion for contempt against appellee, Mark Poropat (husband), and/or enforcement of the parties’ final dissolution judgment. Determining that the order, on its face, contains a calculation error, we reverse.

In 2005, a final judgment was entered dissolving the parties’ marriage. The final judgment of dissolution incorporated the parties’ marital settlement agreement. In 2007, the wife filed a motion for contempt and/or enforcement, alleging that she had fully satisfied her financial obligations under the marital settlement agreement but that the husband had failed to satisfy his obligations under the agreement. Following a hearing, the trial court denied the wife’s motion and entered an order concluding that the wife was entitled to receive various credits against a $170,000.00 debt she owed the husband as a result of the marital settlement agreement. After applying those credits, the trial court found that the husband was entitled to a judgment against the wife in the amount of $15,000.00.

The wife contends that the trial court’s order contains a calculation error since applying the listed credits against the $170,000.00 debt would result in a net credit to her of $10,500.00, rather than a net credit to the husband of $15,000.00. Specifically, the order indicated that the wife was entitled to credits of $36,000.00, $32,000.00, $10,000.00, and $102,500.00.

Although we would normally remand to the trial court with directions to correct the order to reflect the wife’s credit of $10,500.00, we are hampered by the fact that no transcript of the proceedings below is included in the record. Because the wife failed to provide this court with a transcript of the hearing on her motions, it is not possible for us to definitively determine whether the order contains a simple mathematical or some other type of error, such as the exclusion of some credit for the husband which would explain the calculation arrived at by the trial court.

Accordingly, we reverse and remand to the trial court to correct the mathematical error which is reflected on the face of the order. See Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010).

REVERSED and REMANDED.

SAWAYA, J., and ROUSE, R„ Associate Judge, concur.

      . This court possesses jurisdiction over the trial court’s non-final order pursuant to rule 9.130(a)(4) of the Florida Rules of Appellate Procedure.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael RODGERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5659.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2010.
    Michael Rodgers, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Logan v. State, 846 So.2d 472 (Fla.2003).

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


text:
    Lamir Lee GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1184.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2010.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.140(b)(2).

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


author: SHEPHERD, J.

text:
    Christopher MYLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3290.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Rehearing and Rehearing En Banc Denied March 1, 2011.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   SHEPHERD, J.

Christopher Myles appeals his convictions for sexual battery with a knife in violation of section 794.011(3) of the Florida Statutes (2001), kidnapping with a knife in violation of section 787.01 of the Florida Statutes (2001), and two counts of lewd and lascivious molestation on a child twelve to sixteen (12-16) years of age in violation of section 800.04(5) of the Florida Statutes (2001). Myles argues the trial court erred by denying his motion to suppress sample DNA swabs obtained while Myles was in temporary police custody on an unrelated matter, which ultimately cascaded into his arrest and convictions in this case, on the ground that his consent to the taking of the swabs was involuntary under the circumstances, and also by denying his request for a special jury instruction. Finding no error, we affirm the convictions.

On January 29, 2001, the police were called to investigate a sexual battery upon the victim, S.P. The victim testified she was walking to her school bus stop in the early morning when a man approached her from behind, grabbed her at knifepoint, and took her to an abandoned house. In the house, the perpetrator removed his clothing, and made the victim remove hers. The perpetrator laid on top of the victim, kissing her lips and breast. The victim testified she felt something wet on her vagina, like flesh, but there was no penetration. Startled by a neighbor’s shout, the perpetrator fled. When the police arrived, a crime scene technician swabbed the victim’s mouth and breast for DNA. The victim was unable to distinguish any features of the perpetrator, except for a general description that he was a black man bigger than she was. The lead that resolved the crime finally materialized on October 30, 2003, almost three years later.

On that date, the defendant, Myles, was stopped by City of Miami police in the early hours of the morning while driving his vehicle on Biscayne Boulevard, purportedly for “some dispute with a female.” Believing Myles looked sufficiently like the sketch of a suspect colloquially referred to as the “North Dade Rapist,” the officers called Miami-Dade County DNA swab detail detectives, Curtis Lueck and Roger Irving, to the scene. The detail detectives had been tasked with seeking voluntary DNA swabs “from people in the area where the offense occurred” in order to “eliminate them [from] the investigation” as the “North Dade Rapist.”

When the detectives arrived at the scene, the defendant was sitting in the back of a police car with handcuffs. Detective Lueck testified he advised the defendant they were investigating a series of sexual assaults and wanted to obtain a voluntary DNA swab from the defendant to “eliminate him” as a suspect. After the defendant agreed, he was removed from the car and his handcuffs were taken off. Detective Lueck read aloud the consent form to the defendant, and the defendant signed it. The defendant conducted the swabbing himself, taking two oral swabs from each side of his mouth.

Although the DNA swabs eliminated the defendant as the “North Dade Rapist,” the Florida Department of Law Enforcement conducted a routine comparison of the defendant’s DNA with DNA stored in the State Index Data Bank for unsolved crimes. This resulted in two “cold hits” for unsolved rapes in Miami-Dade County, one of which was of the victim in this case. Based upon this information, Miami-Dade County police arrested Myles and took him to the police station, where he signed a second consent form for confirmatory DNA swabs. These swabs again matched the DNA found on the victim’s body.

Prior to trial, the defendant moved, in separate motions, to suppress each of the DNA swabs. As to the first DNA swabs obtained on Biscayne Boulevard, Myles argued his consent was not freely and voluntarily given, thus any evidence obtained after that date would be “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The defendant testified he felt he had no choice but to do what the police asked, because there were approximately ten officers at the scene and he previously had been the victim of police brutality. Detective Lueck testified he could only recall five police officers at the scene, including his partner and him. Detective Lueck further testified he read the consent form to the defendant and the defendant freely and voluntarily signed it. He testified the defendant was neither threatened nor coerced, and if Myles had declined to sign the consent form, he simply would have departed the scene. The trial court denied the motion, finding, by a preponderance of the evidence, the defendant read the consent form, understood it, and signed it voluntarily.

When reviewing a motion to suppress evidence, “the appellate court affords a presumption of correctness to a trial court’s findings of fact but reviews de novo the mixed questions of law and fact that arise in the application of the historical facts to the protections of the Fourth Amendment.” Wyche v. State, 987 So.2d 23, 25 (Fla.2008). In determining whether a person voluntarily has consented to a search, the State has the burden of proving the consent was freely and voluntarily given by a preponderance of the evidence. See Taylor v. State, 855 So.2d 1, 17 (Fla.2003). Moreover, the officer’s conduct is evaluated objectively under the standard of a reasonable innocent person, rather than the subjective evaluation of one with the defendant’s state of mind. See Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Florida v. Royer, 460 U.S. 491, 519 n. 4, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (Blackmun, J. dissenting)). “This reasonable person standard ... ensures that the scope of [the] Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.” Bostick, 501 U.S. at 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (quoting Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). In reaching the decision in this case, the trial court appears to have given some consideration to the defendant’s testimony concerning his past experiences with the police. This, of course, could inure only to the defendant’s benefit. Upon de novo review, we affirm the trial court’s denial of the defendant’s motion to suppress the first DNA swabs.

As to the second DNA swabs obtained after Myles’ arrest on December 15, 2005, Myles advances the categorical argument that a cold DNA hit “does not constitute probable cause to arrest [a] defendant,” thus making the second DNA swabs inadmissible. We disagree.

Identification by a DNA match is analogous to identification by a fingerprint match. See, e.g., Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702, 705 (2007) (“The analogous treatment of the taking of DNA samples to the taking of fingerprints has been -widely accepted.”) (collecting cases). This Court has held that “[t]he comparison of latent prints and known prints already on file provides sufficient probable cause for a warrantless arrest thereby rendering admissible any evidence derived as a result of such an arrest.” State v. Roque, 809 So.2d 50, 51 (Fla. 3d DCA 2002). The latent prints in Roque were obtained from a cigarette carton found within a burglarized home, thus establishing the defendant’s unauthorized presence within that home. Id. at 50. Here, analogous to the “latent prints” is the DNA evidence obtained from sample swabs performed on the victim’s mouth and breast, establishing illegal contact. The first set of DNA swabs, legally taken from the defendant at the Biscayne Boulevard encounter, equate to the “known prints on file,” thereby establishing a DNA match in this case sufficient to create probable cause to arrest the defendant. See State v. Cortez, 705 So.2d 676, 678 (Fla. 3d DCA 1998) (“Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it.” (citations omitted)). Because the arrest was legal in this case, the second DNA swabs were admissible.

Lastly, the defendant argues the trial court erred in failing to give the defendant’s special jury instruction defining the word vagina. The defendant was charged with sexual battery by union, and the trial court provided the standard jury instruction that: “Christopher Myles committed an act upon S.P. in which the sexual organ of Christopher Myles penetrated or had union with the vagina of S.P.” § 794.011(l)(h), Fla. Stat. (2001). The defendant claims the element of penile union with the victim’s vagina was a critical element in dispute because the victim testified there was no penetration, but that she felt something wet and fleshy on her. The defendant requested a special jury instruction on the dictionary definition of vagina as the canal between the vulva and the uterus. As the First District Court of Appeal has observed in Bowden v. State, 642 So.2d 769, 770 (Fla. 1st DCA 1994):

Given the strict medical definition of vagina, the only way the vagina could be reached is through penetration. However, the statute defining sexual battery provides for “vaginal penetration by, or union with, the sexual organ of anoth-
[It] is clear that the Legislature intended that “union” mean something other than penetration.... [C]ontact alone, between the sexual organ of the offender and the mouth, anus, or vagina of the victim, is sufficient to convict.

(citations omitted). In finding the standard jury instruction on sexual battery was sufficient to apprise the jury of the law, the trial court did not abuse its discretion.

Affirmed.

      . The defendant is mistaken in his argument that these standards cannot be used to establish probable cause because they were not properly authenticated at the hearing on the motion to suppress. Hearsay can be used to establish probable cause to arrest, even if it may not be used at trial. Hayward v. State, 24 So.3d 17, 37 (Fla.2009); see also Draper v. United States, 358 U.S. 307, 312 n. 4, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (“It is well settled that an arrest may be made on hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.”) (quoting United States v. Heitner, 149 F.2d 105, 106 (2nd Cir.1945) (Learned Hand, J.)).

      . Myles fleetingly argues his written consent to the taking of the second DNA swabs also was not freely and voluntarily given. We find no merit to this contention.


text:
    MICHAEL McWILLIAMS FAMILY, Appellant, v. DESTIN HOLIDAY BEACH RESORT/HBR Development II, Limited/O.W.O. Investment, Inc., RCI, CMS, et al., Appellees.
    No. 1D10-2300.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2010.
    Rehearing Denied Feb. 18, 2011.
    Michael McWilliams, pro se, Appellant.
    Louis A. Maygarden, III, Pensacola, for Appellees.
   PER CURIAM.

AFFIRMED. Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078 (Fla. 2d DCA 2002), and Rigby v. Liles, 505 So.2d 598 (Fla. 1st DCA 1987).

BENTON, C.J., PADOVANO, and CLARK, JJ., concur.


author: THOMAS, J.

text:
    James Linn HIGERD, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4028.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Rehearing Denied Feb. 4, 2011.

      Michelle P. Smith of the Law Office of Michelle P. Smith, P.A., Orlando; John P. Rutkowski, Atlanta, for Appellant.
    Bill McCollum, Attorney General, Tallahassee; Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMAS, J.

This is a case of first impression regarding the validity of the search of checked airline luggage. Appellant pled nolo con-tendré to 194 counts of possession of child pornography, reserving his right to appeal the trial court’s denial of two motions to suppress. We affirm without comment the denial of Appellant’s motion to compel discovery, which was not preserved for appellate review. We also affirm the denial of Appellant’s motion to suppress evidence found during an administrative search, and write to explain why the denial was not an abuse of discretion. Because we affirm the denial of the motion to suppress the evidence found during the search, we also affirm the denial of the motion to suppress statements made by Appellant during custodial interrogation.

Facts

Appellant arrived at the Pensacola Regional Airport for a flight to Colorado, checked in at the airline ticket kiosk, and registered one suitcase. He received a luggage tag and receipt and proceeded to a Transportation Security Administration (TSA) checkpoint for checked baggage. Appellant’s checked suitcase was swabbed by a TSA officer. Appellant testified the officer also opened an accordion-type folder found in the suitcase and swabbed it. The swab was then tested for trace amounts of explosives using an Explosive Detection System (EDS). Appellant’s bag was cleared, the officer handed him his boarding pass, and Appellant proceeded to the personal security checkpoint. Appellant did not set off the magnetometer, and his carry-on luggage did not arouse suspicion when x-rayed. Appellant proceeded to the terminal to await his flight.

Unbeknownst to Appellant, his checked suitcase was opened and physically searched by a TSA officer. The officer testified that TSA protocol required her to physically examine the inner contents of a preselected and random number of checked baggage. During the search, the TSA officer took out the accordion folder and opened it, removed the papers and flipped through them. The officer testified that TSA protocol required her to “thumb through” any thick stack of papers she found to search for potentially dangerous materials. She then discovered approximately 10 photographs, prompting her to contact a supervisor. An airport police officer arrived and was informed that the file contained child pornography.

Airport police contacted local law enforcement, and Appellant was detained. A detective applied for and received a warrant to search Appellant’s computer, camera, picture card, burned compact discs, flash drives, external hard drive, and briefcases, all of which were found in Appellant’s checked suitcase. Additional flash drives were later found when the detective separated Appellant’s personal property from the evidence, and an additional warrant was obtained to search those drives. Based on the evidence discovered during the searches, Appellant was charged with 196 counts of possessing child pornography.

Appellant moved to suppress all evidence seized from his suitcase, alleging the physical search of his checked baggage outside his presence violated the Fourth Amendment of the United States Constitution. Specifically, Appellant alleged the search was not minimally intrusive because available technology in use at the airport provided TSA a means to search his unopened baggage for dangerous contraband without searching the bag’s contents. The trial court denied the motion to compel, but granted an in camera review to determine whether TSA’s standard operating procedures were relevant. Pursuant to its review, the court denied the motion to suppress, finding TSA’s procedures and administrative search did not violate Appellant’s Fourth Amendment rights. Appellant was adjudicated guilty after pleading nolo contendré and sentenced to 30 months in prison.

Analysis

The standard of review on a motion to suppress is a mixed question of fact and law. Butler v. State, 706 So.2d 100, 101 (Fla. 1st DCA 1998). In reviewing a trial court’s factual findings, this court looks to whether competent, substantial evidence supports the trial court’s findings. This court reviews the trial court’s application of the law de novo. Id.

This is an issue of first impression; our independent research has not revealed any case directly deciding whether a purely administrative, physical search of checked luggage violates the Fourth Amendment. See United States v. Fofana, 620 F.Supp.2d 857, 861-62 n. 2 (S.D.Ohio 2009) (noting United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches); cf. United States v. McCarty, 672 F.Supp.2d 1085, 1091 (D.Hawai’i 2009) (examining administrative physical search of passenger’s checked luggage where suspicion was aroused by x-ray of the luggage). Florida courts are required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States Constitution, as interpreted by the United States Supreme Court. See art. I, § 12, Fla. Const.

Without precedent from the United States Supreme Court, we look to state and federal decisions for guidance. See Soca v. State, 673 So.2d 24, 26 (Fla.1996) (explaining “when the United States Supreme Court has not previously addressed a particular search and seizure issue which comes before us for review, we will look to our own precedent for guidance.”); see generally Jones v. State, 459 So.2d 1068, 1072 (Fla. 2d DCA 1984) (turning to case law from other states where there was no case directly on point from United States Supreme Court or federal courts concerning alleged Fourth Amendment violation).

In general, a warrantless search is per se unreasonable unless the search or seizure falls into one of the well established exceptions to the warrant requirement. Jones v. State, 648 So.2d 669, 674 (Fla.1994). The government bears the burden of proving that a warrantless search was conducted pursuant to an established exception. United States v. Oliver, 686 F.2d 356, 371 (6th Cir.1982).

Administrative searches in airports are an established exception. See United States v. Aukai, 497 F.3d 955, 959 (9th Cir.2007) (“airport screening searches ... are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme’ ”) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973)). In 1980, the Florida Supreme Court held that a person attempting to board an airplane may be searched without probable cause within the security area of an airport as long as the search is reasonable and conducted solely for the purpose of discovering an immediate threat to air commerce. Shapiro v. State, 390 So.2d 344, 350 (Fla.1980).

Consent is not required to conduct an airport screen search, if the search is otherwise reasonable and conducted pursuant to statutory authority. McCarty, 672 F.Supp.2d at 1096. “To determine the reasonableness of an administrative airport search, the Court must balance an individual’s right to be free of intrusion with ‘society’s interest in safe air travel.’ ” Fofana, 620 F.Supp.2d at 862 (quoting United States v. Pulido-Baquerizo, 800 F.2d 899, 901 (9th Cir.1986)). But, “the need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable.” Id. at 866. Accordingly, “an airport security search is reasonable if: (1) the search is ‘no more extensive or intensive than necessary, in light of current technology, to detect the presence of weapons or explosives;’ (2) the search ‘is confined in good faith to that purpose;’ and (3) a potential passenger may avoid the search by choosing not to fly.” Id. (quoting United States v. Aukai, 497 F.3d 955, 962 (9th Cir.2007) (en banc)).

We first address whether the search in this case was unnecessarily extensive or intrusive, in light of the available technology. All cargo transported on a passenger aircraft must be screened. 49 U.S.C.A. § 44901(g)(1). Screening is further defined to include physical searches when combined with manifest verification. U.S.C.A. § 44901(g)(5). All checked baggage must be screened by an EDS machine. U.S.C.A. § 44901(d)(1)(A). Until an airport possesses an EDS machine, TSA officers are permitted to use other alternative screening methods, including manual searches. U.S.C.A. § 44901(e)(2). The statute does not foreclose the possibility using an EDS machine in conjunction with physical searches to meet the mandate that all bags must be screened. See id.

The trial court’s order denying Appellant’s motion to suppress reveals that the airport possessed not only an EDS, but also an Explosive Trace Device System (ETDS). The trial court determined, after reviewing TSA’s protocol in camera, that the physical search of Appellant’s checked suitcase did not violate 49 U.S.C.A. § 44901 and was no more intrusive or extensive than necessary. Our independent review of the protocol leads us to the same conclusion.

TSA’s protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer’s testimony was that she discovered several photographs while thumbing through a large file. TSA’s protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant’s bag while conducting the open bag search in lieu of swabbing every piece of paper. See also McCarty, 672 F.Supp.2d at 1098 (suggesting TSA officers had authority and discretion to leaf through photographs when searching for sheet explosives). Thus, without more evidence proving that such a search was unnecessary given the current technology, we hold that the search was no more extensive or intrusive than necessary in light of current technology-

Recently, two federal district courts determined similar administrative airport searches were unreasonable because they were not confined, in good faith, to searching for weapons or explosives. See Fofana, 620 F.Supp.2d at 863-64; McCarty, 672 F.Supp.2d at 1096. These opinions are distinguishable but instructive.

In Fofana, an airline passenger was “flagged” at check-in for enhanced screening at the personal security checkpoint. 620 F.Supp.2d at 859. The passenger and his carry-on bag passed through the security checkpoint without setting off the magnetometer or the x-ray machine. Id. Because he had been flagged for additional screening, the passenger’s carry-on bag was emptied and the contents were thoroughly searched. Id. at 859-60. A TSA officer found several envelopes which she believed contained cash. Id. The officer did not believe the envelopes contained explosives or weapons, but because she had been trained to look for large quantities of cash as evidence of likely criminal activity, she opened all the envelopes. Id. at 860-61. The search uncovered false passports and evidence of bank fraud. Id. at 861. Holding that the search violated the passenger’s Fourth Amendment right against unreasonable searches, the court explained that “the evidence in this case shows that the extent of the search went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing.” Id. at 863.

Similarly, the court in McCarty held that a TSA officer’s search of photographs in an envelope in a carry-on bag exceeded the scope of the officer’s authority when the officer stopped looking for weapons or explosives and began looking for evidence of child pornography. 672 F.Supp.2d at 1096-97. Like the case sub judice, the passenger’s suitcase in McCarty was opened and physically searched outside the passenger’s presence. Id. at 1091-92. Unlike the facts of this appeal, however, the passenger’s checked bag in McCarty was opened only after an x-ray of the bag indicated it contained a dense item that could have been dangerous, although the TSA screeners believed it to be a laptop computer. Id. at 1092. The TSA officer in McCarty testified a photograph envelope and its contents fell out when the bag was opened to retrieve the item that set off the x-ray alarm. Id. The officer then went through the contents of the photograph envelope and found evidence of child pornography. Id. at 1092-93. The court explained that what began as a permissible administrative search became impermissible when the officer’s focus switched from leafing through the photographs to look for sheet explosives to inspecting the contents of the envelope for evidence of child pornography. Id. at 1096-98.

Unlike the officers in McCarty and Fofana, the TSA officer’s testimony in this case demonstrates her search remained confined, in good faith, to the purpose of searching for explosives or weapons. The TSA officer’s testimony was simple and unwavering: She was required to open a certain number of bags; Appellant’s bag was the next randomly selected bag; she was required to thumb through the contents of the accordion-type file folder found in Appellant’s bag, under TSA protocol; and she saw the photographs as soon as she opened the folder. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post fac-to.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir.2005). Unlike the officers in Fofana and McCarty, the TSA officer’s testimony here did not hint that she was intentionally looking for evidence of criminal behavior.

Assuming arguendo that the search in this case ran afoul of the Fourth Amendment, we would uphold the trial court’s decision to not suppress the evidence in this case under the good faith exception to the warrant requirement, and because the extreme sanction of exclusion is not always justified. Illegally seized evidence is not automatically suppressed. Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 698, 172 L.Ed.2d 496 (2009). The TSA officer’s conduct in this case was based on TSA protocol and was not “deliberate, reckless, or grossly negligent.” Id. It is unlikely that a “ ‘reasonably well trained officer would have known that the search was illegal.’ ” Id. (quoting United States v. Leon, 468 U.S. 897, 922 n. 3, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)); but see Fofana, 620 F.Supp.2d at 866 n. 5 (declining to apply good faith exception to the exclusionary rule in the context of an airport screening search where no warrant was obtained); McCarty, 672 F.Supp.2d at 1103-04 (noting Herring may apply to some Fourth Amendment violations resulting from warrantless searches, but determining exclusion was warranted under the facts of the case). Based on our applicable standard of review of the facts and law, we hold that the TSA agent was not engaged in “general law enforcement objectives” when she discovered the child pornography. Cf. Fofana, 620 F.Supp.2d at 863-65.

Accordingly, we hold that the trial court’s denial of Appellant’s motion to suppress was not an abuse of discretion.

AFFIRMED.

KAHN, J., concurs; VAN NORTWICK, J., concurs in result only.


text:
    SIMKINS INDUSTRIES, INC., Appellant, v. INDUSTRIAL RISK INSURERS, et al., Appellees.
    No. 3D10-1273.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Rehearing and Rehearing En Banc Denied Feb. 17, 2011.

      Ver Ploeg & Lumpkin and Jason S. Mazer and Brian S. Jacobson, Miami, for appellant.
    Simpson Thacher & Bartlett and Lynn K. Nuener; Deborah L. Stein; Bilzin Sumberg Baena Price & Axelrod and Robert W. Turken and Lori P. Lustrín, Miami, for appellees.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301 (S.D.Fla.2002) aff'd 128 Fed.Appx. 100 (11th Cir.2005); Gov’t Employees Ins. Co. v. Grounds, 332 So.2d 13 (Fla.1976).


author: POLEN, J.

text:
    Richard J. SULLIVAN, Appellant, v. Angela SULLIVAN, Appellee.
    No. 4D10-331.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.

      Ralph T. White of Schütz & White, LLP, West Palm Beach, for appellant.
    Kristen A. Floyd and Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee.
   POLEN, J.

Former husband appeals from the trial court’s non-final order on former wife’s application for civil contempt against former husband, for enforcement and for sanctions. We affirm, and write only to address former wife’s motion for appellate attorney’s fees pursuant to section 57.105, Florida Statutes (2010).

The parties’ marriage was dissolved by final judgment entered on February 28, 2008. Pursuant to the final judgment, former husband was to transfer the New Hampshire commercial property known as Brady’s Plaza to former wife within thirty days. However, the transfer did not occur until May 28, 2008. Meanwhile, he continued to collect all rents from Brady’s Plaza, and deposit them into one of his corporate bank accounts. Former wife then moved for civil contempt and to enforce the final judgment, for sanctions and other relief. At the subsequent hearing, former husband alleged that the trial court lacked personal jurisdiction over the entity that owned Brady’s Plaza, Bay Acquisitions, LLC. The trial court rejected this argument, and granted former wife’s application for civil contempt against former husband. The court found that former husband had complete control and dominion over Bay Acquisitions as its sole member, and that it was former husband alone who decided to collect and deposit the rental dollars belonging to former wife into that corporate bank account. Pursuant to this order, entered January 5, 2009, former husband was ordered to pay former wife the sum of $41,160. Former husband did not seek rehearing of or appeal this order.

Former husband failed to pay the amount ordered, and thus former wife filed a subsequent application for civil contempt against former husband, for enforcement and for sanctions. Thereafter, the court conducted another hearing, during which former husband again argued that the trial court lacked jurisdiction. Former husband did not contest the fact that he had not paid former wife pursuant to the underlying order finding him in contempt, or his present ability to pay the same. The trial court again rejected this argument, and found former husband to be in contempt for failing to pay former wife the sum of $41,160, as previously ordered. In the instant appeal, former husband seeks review of the most recent order holding him in contempt, again alleging that the trial court lacks jurisdiction over Bay Acquisitions, LLC.

Fees are appropriate under section 57.105(1) when the party or his attorney pursues a claim or defense that is without factual or legal merit. The section reads:

[T]he losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

§ 57.105(1), Fla. Stat. (2010). As the First District recently reiterated:

The determination of factual or legal merit can occur either when the claim or defense is first made, or later when the party discovers, or should have discovered, that the claim or defense lacks factual or legal merit. See Gopman v. Department of Education, 974 So.2d 1208, 1210 (Fla. 1st DCA 2008). The test is simply whether the “party or his counsel knew or should have known, at the time of filing, [that the claims were] not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law.” Id. Importantly, section 57.105 “does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.” Id.; see also Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003). Section 57.105 permits an appellate court to impose appellate attorneys’ fees for conduct on appeal. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 574-75 (Fla.2005).

Long v. AvMed, Inc., 14 So.3d 1264, 1265 (Fla. 1st DCA 2009).

These criteria, when applied to the argument raised by former husband, warrants an imposition of the sanction of appellate attorney’s fees pursuant to section 57.105.

First, a contemnor’s objections to the nature of a prior civil contempt order are untimely and are waived when no appeal is taken. M.G. v. State, 711 So.2d 1377 (Fla. 1st DCA 1998). As stated, former husband failed to timely seek review of the first order finding him in contempt. Further, the trial court has inherent jurisdiction to enforce its own orders. Gil v. Mendelson, 870 So.2d 825, 826 (Fla. 3d DCA 2003) (holding that trial court could order sale of foreign real property where parties made such part of litigation, and equity required it); see also Hoskin v. Hoskin, 349 So.2d 755 (Fla. 3d DCA 1977) (courts retain jurisdiction to enforce execu-tory provisions, like those in this case, contained in a final judgment of dissolution of marriage).

Former husband does not deny that former wife is entitled to the money collected from Brady’s Plaza subsequent to the entry of the final judgment, and readily admits that he has not paid this money to former wife, in violation of the trial court’s order dated January 5, 2009. Former husband also admits that he deposited this money into a bank account in the name of Bay Acquisitions, LLC. Yet, he argues that he cannot be held in contempt, as it was Bay Acquisitions, LLC that received the rental dollars belonging to former wife. As former wife argues, however, this money does not belong to Bay Acquisitions, LLC or to former husband. Rather, this money constitutes income from an asset awarded to former wife pursuant to the final judgment. Moreover, former husband is the sole member of Bay Acquisitions, LLC, and has complete control over it. Thus, while he may have been acting on behalf of the entity in collecting and depositing the rent money, it was he alone who decided to collect the rents, and where to deposit them. “[Ejquity will not allow a corporate veil to cover fraud or injustice, and to prevent such the corporate entity may be disregarded and the corporation and individual or individuals owning all of its stock and assets treated as identical.” Plank v. Arban, 241 So.2d 198, 200 (Fla. 4th DCA 1970).

Based on the foregoing, we conclude that former husband’s counsel knew or should have known that former husband’s claim on appeal is completely devoid of merit. We grant former wife’s motion and find appellate attorney’s fees should be paid in equal amount by former husband and his attorney pursuant to section 57.105(1), Florida Statutes. The ease is Remanded to the trial court to determine the reasonable attorney’s fees former wife incurred.

Remanded.

WARNER and FARMER, JJ., concur.

      . Bay Acquisitions, LLC is a New Hampshire corporation of which former husband is the sole member.


text:
    Willie McGRIFF, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3137.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Willie McGriff, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is the tenth post-judgment case brought to this Court by the defendant. All have been meritless, and at least those filed since 2007 have also been successive and frivolous. We affirm the trial court’s denial of the latest motion, but in doing so we find that “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).

Accordingly, Willie McGriff is now directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions both here and in the lower court relating to his convictions and sentences in circuit court case numbers 91-20674; 85-32434; 86-749. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to these circuit court case numbers unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by the defendant will subject him to appropriate sanctions. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999).

Affirmed.


text:
    Walter McCOLLUM, et al., Appellants, v. LIEBHERR-AMERICA, INC., etc., Appellee.
    No. 3D10-332.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Rehearing Denied Feb. 17, 2011.
    Ver Ploeg & Lumpkin and Brenton N. Ver Ploeg, Danya J. Pincavage, Miami and Cayla B. Tenenbaum; McKenna & Obront and Paul A. McKenna and Curt D. Obront, Miami, for appellants.
    Morris & Stella and Joseph N. Stella, Jeffrey W. Gunn and John M. Dugan, Chicago; Henderson, Franklin, Starnes & Holt and J. Matthew Belcastro, Ft. Myers, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Perera v. United States Fidelity and Guaranty Co., 35 So.3d 893 (Fla.2010); Christiansen v. Holiday Rent-A-Car, 845 P.2d 1316 (Utah App.1992).


text:
    Samir HADDAD, Appellant, v. Yasmin KHAN, Appellee.
    No. 3D10-631.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Rehearing Denied Feb. 11, 2011.
    Samir Haddad, in proper person.
    Tracy Belinda Newmark, Fort Lauder-dale, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

The former husband, Samir Haddad, appeals the final judgment of dissolution of marriage to his former wife, Yasmin Khan. Haddad has raised eight issues on appeal. We affirm.

Because Haddad has not provided us with a transcript of the proceedings, our review is limited to the pleadings, the judgment dissolving the marriage and other matters contained in the record. As the appellant, Haddad has the burden of demonstrating error. “In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed.” See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Mayfield v. Mayfield, 929 So.2d 671, 672-73 (Fla. 5th DCA 2006). Nor has Haddad complied with Florida Rule of Appellate Procedure 9.200(b)(4), which governs the preparation of a record when no transcript of the proceedings is available.

Because no reversible error has been demonstrated from the record provided to us, we affirm.

Affirmed.


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    MIAMI-DADE COUNTY, Appellant, v. Mansour EGHBAL, Appellee.
    Nos. 3D10-1596, 3D09-3520.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 2011.
    Rehearing and Rehearing En Banc Denied Feb. 22, 2011.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and William X. Candela, Assistant County Attorney, for appellant.
    Gary A. Costales, Miami, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Miami-Dade County (“the County5’) appeals the trial court’s order denying the County’s motion for directed verdict and for judgment notwithstanding the verdict (“the motion”), and final judgment on age discrimination and retaliation claims. We affirm.

Mansour Eghbal (“Eghbal”), a sixty-nine-year-old County employee, applied for a promotion four times, but the County did not promote him. Thereafter, Eghbal sued for age discrimination and retaliation under the Florida Civil Rights Act (“the FCRA”), sections 760.01-760.11 and 509.902, Florida Statutes, claiming the County failed to select him for a promotion because of his age and because he filed an Equal Employment Opportunity Commission (“EEOC”) complaint.

At trial, the jury found age discrimination in one of the four promotion applications and retaliation in another promotion application. The County moved for directed verdict and for judgment notwithstanding the verdict. The trial court denied the motion. Thereafter, the trial court entered a final judgment in Eghbal’s favor on the two claims. The County appealed.

On appeal, the County contends that the trial court erred in denying its motion because Eghbal did not establish a prima facie case of age discrimination and retaliation. Eghbal asserts that the trial court did not err in denying the motion because it presented a prima facie case of age discrimination and retaliation for a jury determination. We agree with Eghbal.

The standard of review on appeal of the trial court’s ruling on a motion for directed verdict and for judgment notwithstanding the verdict is de novo. See Martin Cnty. v. Polivka Paving, Inc., 44 So.3d 126 (Fla. 4th DCA 2010). An appellate court must evaluate the evidence in the light most favorable to the non-moving party, drawing every reasonable inference flowing from the evidence in the non-moving party’s favor. See Floyd v. Video Barn, Inc., 538 So.2d 1322 (Fla. 1st DCA 1989). If there is conflicting evidence or if different reasonable inferences may be drawn from the evidence, then the issue is factual and should be submitted to the jury for resolution. See Blizzard v. Appliance Direct, Inc., 16 So.3d 922, 925 (Fla. 5th DCA 2009).

To establish a prima facie case of age discrimination, Eghbal had to prove that: (1)he was a member of a protected class, i.e., at least forty years of age; (2) he was otherwise qualified for the positions sought; (3) he was rejected for the position; and (4) the position was filled by a worker who was substantially younger than the plaintiff.

Here, Eghbal proved that: (1) he was sixty-nine years old; (2) he was qualified for the position sought; (3) he was rejected for the position, and (4) the position was filled by a substantially younger worker. Therefore, because Eghbal proved a prima facie case of age discrimination, the trial court properly denied the motion.

Next, turning to retaliation under the FCRA, an employee must demonstrate: (1) that he or she engaged in statutorily protected activity, (2) that he or she suffered adverse employment action, and (3)that the adverse employment action was causally related to the protected activity. Blizzard, 16 So.3d at 926.

Here, there was evidence to prove retaliation, to-wit, (1) Eghbal was engaged in a statutorily protected activity, filing the EEOC charges; (2) Eghbal’s adverse employment action was that he was denied the promotion; and (3) causal relation was established when Eghbal testified that the promotion decision makers knew of his lawsuit because “when something happens like that this, my case, it spreads around immediately in the County.” This became apparent when one of the promotion decision makers stated in his notes that Egh-bal thought he was, “extremely unfairly treated with county.” Therefore, since there was evidence concerning the retaliation, the trial court correctly denied the motion and allowed the jury to make the factual determination.

Accordingly, we affirm the trial court’s order denying the County’s motion and the final judgment.

Affirmed.

GERSTEN and SUAREZ, JJ., concur.

SCHWARTZ, Senior Judge

(dissenting).

I do not believe the evidence is sufficient to demonstrate an indispensible element of a retaliation claim: that is, that the decision makers actually knew of the employee’s complaint so that their adverse action could have been causally related to that protected activity. See Gibbons v. State Pub. Emps. Relations Comm’n, 702 So.2d 536, 537 (Fla. 2d DCA 1997) (“The plaintiff, at a minimum, must establish that the employer was aware of the protected expression when it took the adverse employment action.”); see also Johnson v. State of Florida, Dep’t of Elder Affairs, 2010 WL 1328995, *2 (N.D.Fla.2010) (“A court will not presume that a decisionmaker was motivated to retaliate by something unknown to him or her.”); Brown v. Sybase, Inc., 287 F.Supp.2d 1330, 1347 (S.D.Fla.2003).

In this regard, it is undisputed that (a) Eghbal never told any of the three panel members, either specifically or impliedly, that he had made such a complaint and (b) two of the three stated, in unimpeached and uncontradicted testimony, that they were not aware of it. We have previously held that mere circumstantial evidence cannot overcome uncontradicted direct evidence to the contrary. See Alan & Alan, Inc. v. Gulfstream Car Wash, Inc., 385 So.2d 121, 123 (Fla. 3d DCA 1980) (“[A] fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist.”). This rule is applicable in spades to this case in which the only even circumstantial evidence to which Eghbal and the majority can point approaches if it does not reach the non-existent:

1. The panelist’s note that Eghbal considered himself “unfairly treated” by the County is a wildly uncertain observation which does not speak to the existence of a prior complaint at all and indeed more clearly referred to the claim of age discrimination which he had insisted upon but was rejected by the jury.

2. Eghbal’s statement that “when something happens like this, my case, it spreads around immediately in the County ... [a]nd almost everybody knows about it” is likewise too speculative to warrant any consideration. Simply put, a statement that everyone must know something is no evidence that anyone in particular actually does. See Morris v. New York Dep’t of Correctional Servs., No. 91-CV-634, 1995 WL 21647, at 9-10 (N.D.N.Y.Jan.17, 1995) (claim that plaintiffs support of co-worker’s discrimination claim was “common knowledge” insuffi-dent to prove defendant’s knowledge of protected activity); Long v. AT & T Information Systems, Inc., 733 F.Supp. 188, 205, 205 (S.D.N.Y.1990) (claim that retaliating employees knew of protected activity from “familiarity with office gossip” insufficient to create an issue of fact as to their knowledge); Hayden v. Atlanta Newspapers, 534 F.Supp. 1166 (N.D.Ga.1982) (summary judgment granted where plaintiff merely alleged that it was logical to assume that person who took adverse action had knowledge of protected activity); see generally Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004) (“the plaintiff must show a defendant’s awareness with more evidence than mere curious timing coupled with speculative possibilities”).

These items, taken individually or collectively, did not justify the verdict and judgment below. See Alan & Alan, Inc., 385 So.2d at 123.


author: CORTIÑAS, J. RAMIREZ, C.J.,

text:
    INTRACOASTAL POINT CONDOMINIUM ASSOCIATION, a Condominium Association, Appellant, v. Lisa HOROWITZ, individually; Nancy Teske, individually; and Robert Judd, individually., Appellees.
    No. 3D10-973.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 2011.
    Litchfield Cavo and Geralyn M. Passaro and Thomas J. Jerla, Jr., Fort Lauderdale, for appellant.
    Marva L. Wiley, Hialeah, for appellees.
    Before, RAMIREZ, C.J., and SUAREZ and CORTIÑAS, JJ.
   CORTIÑAS, J.

Lisa Horowitz, Nancy Teske, and Robert Judd (collectively the “Unit Owners”) filed an action for declaratory judgment against the Intracoastal Point Condominium Association (the “Association”) asserting the invalidity of a “special meeting” held in January 2009 and seeking the appointment of a receiver. The Unit Owners alleged, in part, that three specific members of the Association “did not receive appropriate notice as the owners of the record at the time of the purported ‘special meeting.’ ” The Association, in turn, filed a motion to dismiss the complaint because the Unit Owners failed to first seek arbitration as required by section 718.1255. The trial court denied the motion.

Section 718.1255(4)(a), Florida Statutes, requires that “[pjrior to the institution of court litigation, a party to a dispute shall petition the [Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business] for nonbinding arbitration.” § 718.1255(4)(a), Fla. Stat. (2009). As set forth in the statute,

(1) ... “dispute” means any disagreement between two or more parties that involves:
(b) The failure of a governing body, when required by this chapter or an association document to:
2. Give adequate notice of meetings or other actions.

§ 718.1255(l)(b)(2), Fla. Stat. (2009).

Under the facts of this case, we agree with the Association that the motion to dismiss should have been granted because the Unit Owners failed to comply with the arbitration requirement of section 718.1255. See Neate v. Cypress Club Condo., Inc., 718 So.2d 390 (Fla. 4th DCA 1998). Accordingly, we reverse.

Reversed and remanded.

RAMIREZ, C.J.,

concurring.

I concur with our reversal in this case. Upon remand, the trial court should dismiss the action without prejudice to comply with section 718.1255, Florida Statutes (2009).


text:
    Timothy James EDGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1715.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See, Edge v. State, 985 So.2d 705 (Fla. 1st DCA 2008).

BENTON, C.J., PADOVANO, and CLARK, JJ., concur.


text:
    Robin M. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5972.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Rehearing Denied Feb. 24, 2011.
    Robin M. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Robert K. REED, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6427.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Rehearing Denied Feb. 23, 2011.
    Robert K. Reed, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, KAHN, and THOMAS, JJ., concur.


author: JACOBUS, J.

text:
    STATE of Florida, Appellant, v. Deon Everade HILL, Appellee.
    No. 5D09-1598.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2011.
    Rehearing Denied Feb. 18, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   JACOBUS, J.

The State of Florida appeals the trial court’s order suppressing the evidence against the defendant, Deon Hill. We agree with the State that reversal is warranted.

Hill’s suppression motion claimed the marijuana that formed the basis for the charges against him was the product of an unlawful search performed during a pedestrian stop. The validity of the stop is not at issue. Hill committed a pedestrian violation in a police officer’s presence, and the officer had probable cause to stop him for that noncriminal traffic infraction. By the end of the suppression hearing, this was undisputed. Having probable cause to make a pedestrian traffic stop, the officer had the right to approach Hill and detain him for the time necessary to write a citation. When the officer approached to within three to five feet of Hill, he detected the strong odor of marijuana emanating directly from Hill’s person. This turn of events led to the officer searching Hill for marijuana, which he soon discovered. Whether a warrantless search was reasonable under these circumstances is the question presented by this case.

We believe the trial court would have answered in the affirmative, as we do, had it not been for these additional facts: the pedestrian violation occurred near Hill’s home and Hill had attained the steps of his front porch before he heeded the officer’s command to stop. In the trial court’s view, Hill enjoyed the same Fourth Amendment protections on his front steps as he would inside the house. However, as this court has explained:

The Fourth Amendment protects areas where a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It does not, however, protect areas of the home that are “open and exposed to public view.” State v. Duhart, 810 So.2d 972, 973 (Fla. 4th DCA 2002). “[Ojne does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time.” State v. Morsman, 394 So.2d 408 (Fla.1981) (citing State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976)).

State v. E.D.R., 959 So.2d 1225, 1227 (Fla. 5th DCA 2007). In E.D.R., a patrol officer observed several males asleep on the front porch of a home early in the morning. He thought this was unusual and decided to walk up to the front porch. As he approached, the officer noticed there was crack cocaine laying in E.D.R.’s lap. He stepped up to the front porch, collected the contraband, and arrested E.D.R. when he awoke. This court reversed the trial court’s suppression order. We held that E.D.R. had no reasonable expectation of privacy on his front porch, which was unenclosed and open to public view.

We likewise conclude in the present case that Hill did not garner a reasonable expectation of privacy by standing on his front porch steps. The officer had a lawful reason for approaching Hill. When he smelled the strong odor of marijuana wafting from Hill, the officer had probable cause and sufficient grounds for a warrant-less search. See State v. Reed, 712 So.2d 458, 460 (Fla. 5th DCA 1998) (explaining that the smell of cannabis can provide probable cause to search); State v. T.T., 594 So.2d 839 (Fla. 5th DCA 1992) (holding that where an officer smelled marijuana on a particular youth at a skating rink, the officer had probable cause for a warrant-less search).

The warrantless search in this case was reasonable under the Fourth Amendment and the totality of the circumstances. Therefore, the order granting Hill’s motion to suppress is reversed and the cause remanded for further proceedings.

REVERSED and REMANDED.

EVANDER and COHEN, JJ., concur.


text:
    PARC CENTRAL AVENTURA EAST CONDOMINIUM, etc., Appellant, v. VICTORIA GROUP SERVICES, LLC, et al., Appellees.
    No. 3D10-254.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Tripp Scott and Salvatore H. Fasulo, Fort Lauderdale, for appellant.
    Airan2, Airan-Pace & Crosa, and Damo-dar Airan, Michele A. Crosa, Miami and Adam Cohen, for appellees.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   SHEPHERD, J.

This is an appeal from an Amended Order Granting Summary Judgment and ensuing Final Judgment of Foreclosure of a statutory claim of lien filed by Victoria Group Services, LLC, Victoria Security Services, LLC, Victoria Management Services, Inc., and Victoria Property Services, Inc. (the “Victoria Group”), against Parc Central Aventura East Condominium Association, Inc., a/k/a Parc Central Aventu-ra East Condominium, Inc. (Parc Central or the association), purporting to encumber more than 100 condominium units of the Parc Central East Condominium for payment of $280,737.27, owed by the association to the Victoria Group for cleaning, maintenance, concierge, and security services. We reverse the final judgment of foreclosure and dissolve the claim of lien, but remand for entry of a final money judgment in the amount sought solely against the association.

This appeal arises out of a five-count complaint, filed by the Victoria Group against Parc Central for services rendered by it to Parc Central, pursuant to three separate contracts between the parties, spanning thirteen months from January 31, 2008, through the end of February 2009. The scope of the services to be provided by the Victoria Group pursuant to the first and third of the agreements reads as follows:

I. SCOPE AND SERVICES (CLEANING)
Victoria shall provide standard residential cleaning, maintenance & concierge sendees to all common areas of the building entrance and lobby, pool area, club house, []gym, activity rooms and lavatories....

Further below in the agreement, the services to be provided and their frequency are “more specific[ally]” described to include those one might expect of a company employed to perform general maintenance, upkeep, and concierge or general security services in the common areas of a condominium building, e.g., vacuuming carpets, dusting furniture, disposing of trash, maintaining floors in a “lustrous manner using proper agents,” monitoring residents and visitors entering the property, accepting packages for residents, and the like.

An intermediate agreement signed by the parties is more concise in its description of the scope of services to be provided, calling for the provision of “Concierge, Engineering, Administrative Assistant services to the building ... seven (07) days per week,” but it is clear from the record the same services were being provided pursuant to this agreement as well.

The Victoria Group purported to file the claim of lien in this case pursuant to Chapter 713 and section 718.121 of the Florida Statutes (2009). Count I of the complaint seeks to foreclose that claim of lien. Counts II through IV seek money judgments against Parc Central for amounts due under each of the three service agreements, presumably as alternative pleadings to the foreclosure count. Count V, properly dismissed by the trial court, was a count for unjust enrichment. As previously indicated, the trial court first entered an amended order on summary judgment in the sum of $280,737.27, reflecting the total amount due under the three agreements, followed by a Final Judgment of Foreclosure on the individual condominium units under Chapter 713 and section 718.121 of the Florida Statutes.

Parc Central’s first point on appeal is that the trial court erred in foreclosing the claim of lien filed pursuant to Chapter 713 and section 718.121 of the Florida Statutes. We agree.

It is apodictic that the fundamental purpose of Chapter 713 of the Florida Statutes, commonly known as this state’s “Mechanics’ Lien Statute” or by its short title, the “Construction Lien Law,” is “to protect those who have provided labor and materials for the improvement of real property.” WMS Constr., Inc. v. Palm Springs Mile Assocs., Ltd., 762 So.2d 973, 974-75 (Fla. 3d DCA 2000) (emphasis added); see also Prof'l Plastering & Stucco, Inc. v. Bridgeport-Strasberg Joint Venture, 940 So.2d 444, 453 (Fla. 5th DCA 2006). Section 713.01(15) of the Mechanics’ Lien Statute defines an “improvement” to mean “any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit.” (emphasis added). The qualifying benefit contemplated by this definition is an addition to the fee. E & E Elec. Co. v. Gold Coast 72nd St. Diner, Inc., 116 So.2d 660, 663 (Fla. 3d DCA 1959) (“It is apparent that if the work is an addition to the fee that it must, for the purpose of the mechanics’ hen law, be considered an improvement thereon.”). This is so even if the addition to the fee does not make the land more valuable. Id. (“It is not the duty of the court to weigh the relative advantage to the fee owner of each structure erected. It is entirely possible that through mistakes in judgment it may happen that there are erected buildings which it would have been better not to build.”).

Perhaps because the point is self-evident, the case law treating the issue before us is sparse. We note, however, that twenty-six years after our decision in E & E Electric, the Fourth District Court of Appeal adverted to our analysis in E & E Electric in concluding that lawn mowing and shrubbery cutting services were not lienable under Florida’s Mechanics’ Lien Law, although the actual planting of plants and trees might be. Legault v. Suncoast Lawn Serv., Inc., 486 So.2d 72, 73 (Fla. 4th DCA 1986). Similarly, the only other state court our research revealed to have considered an analogous factual circumstance, concluded the services provided in that case-cleaning of stairways, washroom grouting, and sealing of washroom walls-were not lienable under that state’s mechanics’ lien law. See Lyons Sav. v. Gash Assocs., 279 Ill.App.3d 742, 216 Ill.Dec. 266, 665 N.E.2d 326, 331 (1996). Like the Fourth District Court of Appeal in Legault, the Illinois District Court of Appeal opined that “[wjhile mere maintenance of property is non-lienable, [] Watson v. Watson, 218 Ill.App.3d 397, 161 Ill.Dec. 148, 578 N.E.2d 275, 278 [Ill.App.Ct.1991 (payments and advances for federal estate tax installments, county real estate taxes and farm operating loans) ], cleaning the mess of demolition and construction is lien-able.” Id. (citing Cleveland Wrecking Co. v. Cent. Nat’l Bank, 216 Ill.App.3d 279, 160 Ill.Dec. 101, 576 N.E.2d 1055, 1061 (1991)). Parc Central Condominium was not a condominium under construction during the time the Victoria Group was providing services to it.

Additionally, we disagree with the Victoria Group’s contention it has an independent right to a claim of lien under section 718.121. As pointed out by Parc Central, we rejected that principle several years ago. See Trintec Constr., Inc. v. Countryside Vill. Condo. Ass’n, 992 So.2d 277, 279 (Fla. 3d DCA 2008) (“[Sjection 718.121(3) confirms that if a valid lien encumbers multiple condominium parcels, each owner of an encumbered parcel may exercise the rights of a property owner under Chapter 713 ....”) (emphasis added). Finally, we agree the affidavit filed by the Victoria Group in opposition to the motion for summary judgment just one day before the hearing on the motion, but where the decision of the trial court was delayed on its own volition for the receipt of additional legal memoranda from the parties, was filed late under Florida Rule of Civil Procedure 1.510(c). Cf. Rodriguez v. Tri-Square Constr., Inc., 635 So.2d 125, 127 (Fla. 3d DCA 1994) (reaching a contrary result where summary judgment hearing was continued).

For the foregoing reasons, we reverse the Final Judgment of Foreclosure in this case and remand with the direction to dissolve the claim of lien filed against the property. We further direct the trial court to enter judgment in favor of the Victoria Group and against the Parc Central Aventura East Condominium Association, Inc., consistent with the terms of the Amended Order Granting Summary Judgment.

Reversed and remanded with directions.

      . The Victoria Group contends that because the services in this case were “authorized by the association,” they "are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels” within the meaning of section 718.121. The fallacy of this argument is explained infra.


author: PER CURIAM. RAMIREZ, J.

text:
    Yosvani TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1433.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

Affirmed.

CORTIÑAS and LAGOA, JJ., concur.

RAMIREZ, J.

(dissenting).

This case can go down under the “anything goes” department when it comes to a criminal prosecution of an unsympathetic defendant. All you need is a trial judge with a flexible outlook on what constitutes relevant evidence and an appellate panel with a bountiful view of trial court discretion.

Yosvani Torres, the unsympathetic defendant, appeals his conviction for two counts of sexual battery on a victim under the age of twelve. The trial judge allowed a Williams Rule witness to testify about the permanent damage she suffered as a result of being the victim of a sexual assault. We have today expanded the admissibility of victim impact testimony from the penalty phase in capital cases to the guilt phase of a criminal trial.

The State charged Torres with committing a sexual battery on the victim, N.R. The trial court allowed the prosecution to present the testimony at trial of J.T., who had been the victim of sexual battery in 1998. J.T., who was 20 years old at the time of trial, testified that when she was seven years of age, Torres had touched both her vagina and breasts. Not satisfied with the devastating impact of the Williams Rule testimony, the prosecution sought to elicit testimony as to how the experience she had with Torres affected her. There was a long sidebar discussion at which defense counsel objected, arguing that the witness was called to give Williams Rule testimony and the evidence had been elicited. Any further testimony as to how she had suffered was irrelevant and highly prejudicial. The State argued that it was relevant for the purpose of assessing her credibility. The trial court stated that “I didn’t see the relevance when the question was asked ... However, after listening to [the prosecutor’s] explanation, these jurors do have to asses [sic] the credibility of the witness [as to] what she has said and perhaps how it has effected [sic] her is part of their ability [credibility?] analysis to see if what she is saying is true.” J.T. then testified:

It basically changed my life. It changed who I am mentally and emotionally. It is part of the reason that I am majoring in criminal justice and I used this situation, traumatizing as it’s been, I used it in a positive manner to help me better my future.
I do not I will not be around men alone, now. I do not trust men and I am afraid to be by myself at any given point, I do not like anything the only man I am comfortable around is my dad and brothers and nobody new. I cannot be alone with them no matter who they are and I basically just even though it changed me and something that has been mentally a roller coaster I use it to help me get through a lot of situations and helps me help other people.

In my view, this type of testimony is not allowed in any criminal prosecution. The only exception to this can be found in section 921.141(7), Florida Statutes (2010), which involves victim impact evidence, and even then, the testimony is only admissible in the penalty phase of the trial after the State “has provided evidence of the existence of one or more aggravating circumstances.”

Not only is this type of evidence not admissible in any prosecution, it is particularly egregious in this case because it had absolutely no probative value. The proffered reason — to evaluate J.T.’s credibility — is totally inapplicable in this ease because J.T.’s credibility was never challenged. J.T.’s honesty was never disputed, and the incident or incidents in 1998 were never contested. In fact, defense counsel did not cross examine J.T. Defense counsel did not ask a single question. Unless we have different rules of evidence in the prosecution of sexual battery on minors, we are now going to allow victims of crimes to testify as to the impact the traumatic event had on their lives. Robbery victims can recount how they will no longer go out at night, burglary victims will testify that they are now terrified to leave their homes, embezzlement victims will recount how they are afraid to talk to strangers and all rape victims will be able to tell the juries how the crime has devastated their lives.

A review of the transcript of the trial, or the State’s brief, does not disclose how the testimony in this case added to the credibility of J.T. I begin with the assumption that all victims of sexual molestation are affected by the experience, but how does the intensity of the impact affect their credibility? Are victims in denial, who claim that the incident has not affected them less credible than those that admit that the abuse has impacted their lives? I do not believe so.

Another aspect of this case is that pursuant to section 794.022(3), Florida Statutes (2010), the State was able to obtain a ruling in limine which prevented Torres from eliciting any evidence regarding J.T.’s past sexual abuse by another perpetrator, Juan Carlos Morales. How do we know that her life was changed by her experience with Torres and not Morales, or that it was a combination of both? The Morales incident was properly excluded as irrelevant, but the effect either or both incidents had on J.T.’s life was equally irrelevant.

In its brief, the State argued that the trial court did not err because the trial court gave a curative instruction and the testimony was not made a feature of the trial. There is nothing in the Evidence Code that turns inadmissible evidence into admissible simply by giving a curative instruction and not allowing the proponent to make it a feature of the case. The State has not cited a single case in which a victim of a crime has been allowed to testify as to how the incident has affected their lives. One would think with the thousands of criminal prosecutions and the hundreds of reported cases in the State of Florida, the Office of the Attorney General could have' found at least one that approved of what occurred here.

Instead, the State has cited to us cases from other states. The first case cited is State v. Radjenovich, 138 Ariz. 270, 674 P.2d 333 (1983), and it lends no support. In fact, there the prosecution introduced precisely the same evidence that the State successfully excluded through its in limine motion — that the victim had been previously raped. Id. at 335. Additionally, the court ruled that, because the evidence had not been objected to at trial on the same grounds as on appeal, the issue had been waived. Id. at 336. Third, in its dicta, the court stated that the evidence of the prior rape and the fact that “[t]he victim’s marked personality change after her encounter with defendant was relevant to the issue of consent in that it corroborated the credibility of the victim.” Id. (emphasis added). Here, Torres never argued consent nor attacked J.T.’s credibility.

The State next cites to State v. Blackman, 2007 WL 2325830 (Ohio App.2007), a non-reported case. This citation not only lends no support for the State’s argument, it actually is helpful to Torres. It states that “[t]he courts exclude victim impact evidence because it is irrelevant and immaterial to the guilt or innocence of the accused' — -it merely serves to inflame the passion of the trier of fact.” Id. at 7. The court then examined the issue in the context of ineffective assistance of counsel for failing to object to the admission of the victim impact evidence. Id. at 7-8. It then concluded that the victim’s personality changes during the time frame the offenses occurred were relevant and therefore counsel had no duty to object to the testimony. Id. at 8.

Next, the State cites to State v. Thompson, 668 S.W.2d 179, 181 (Mo.App. E.D. 1984) for the proposition that a rape victim who would not spend another night in her apartment after the rape, was relevant to establish a lack of consent. Again, Torres never alleged that he had consensual sex with the seven-year-old J.T.

The State then disingenuously cites to Davis v. State, 928 So.2d 1089, 1134 (Fla.2005), for the proposition that no reversible error occurred where the victim testified that the victim had seven children (five girls and two boys), that the victim’s nickname was Skip, that the victim had a little dog, and that the victim had retired from NASA. The Florida Supreme Court actually held that the admission of this testimony did not constitute fundamental error, as no objection was made to its admission. Id. The opinion seems to take for granted that the testimony was otherwise inadmissible. There is also no question that Torres’ counsel objected to the victim impact evidence on relevance grounds.

Finally, the State cites to Pankow v. State, 895 So.2d 1149 (Fla. 5th DCA 2005) as “helpful”, but it is beyond my intellectual abilities to surmise how this case is relevant to our analysis. There, the defendant argued error in permitting testimony that when the child’s custodian would attempt to bathe the victim in the tub, the victim would shake uncontrollably and scream “hot, hot, hot.” Id. at 1150. The defense argued that this testimony implied that defendant injured the victim by intentionally placing her in a tub of hot water and was therefore unduly prejudicial. Id. The court concluded that this testimony indicated that the child was frightened of taking a bath because of the fear of being burned, for whatever reason, and therefore the testimony’s probative value outweighed the prejudice to the defendant. Id. at 1150-51.

I have no sympathy for Torres. He is an admitted sex offender who preyed upon a seven year old girl. He probably also abused N.R. If we, as a society, decide that sex offenders are not entitled to a fair trial, let’s come out and say so. But if the rules of evidence apply equally to all, as we profess they do, this victim impact evidence was clearly inadmissible. The only issue should be whether the admission of this evidence constituted harmless error. And I cannot say beyond a reasonable doubt that the admission of this evidence did not contribute to the jury verdict.

In this case, N.R.’s credibility was the only issue the jury had to resolve. There were no witnesses other than N.R. to the alleged assault nor was there any physical evidence to support N.R.’s allegations. The law allowed the State to introduce evidence from J.T. that she had been sexually assaulted by Torres in a similar manner approximately thirteen years prior to the assault in this case to corroborate N.R.’s testimony. However, what the law did not allow was for the State to introduce irrelevant prejudicial testimony that the assault committed against J.T. changed her life forever and has prevented her from ever having a normal relationship with a male. This evidence was meant to inflame the jury and distract them from its difficult job of assessing N.R.’s credibility. I believe it is impossible to determine how this inflammatory evidence ultimately affected the jury’s decision.


author: ROTHENBERG, J.

text:
    Daniel STAHL, Appellant, v. TENET HEALTH SYSTEMS, INC. d/b/a Hialeah Hospital, etc., Appellee.
    No. 3D09-3146.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Rehearing Denied Feb. 14, 2011.

      Jay M. Levy, Miami, for appellant.
    Marlow, Connell, Abrams, Adler, Newman & Lewis, and Rosemary Wilder, Coral Gables, for appellee.
    Before CORTINAS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Daniel Stahl (“the plaintiff’) appeals from an adverse final judgment following the trial court’s order granting the defendant’s, Tenet Health Systems, Inc. (“Tenet”), motion to dismiss the plaintiffs complaint with prejudice. We affirm.

In December 2003, while working for Tenet as a registered nurse, the plaintiff injured his back. The plaintiff filed a workers’ compensation claim, and Tenet paid out the benefits required under the Workers’ Compensation Act (“the Act”). The treating physician assigned a seven percent disability rating to the plaintiff. In October 2005, the physician determined that the plaintiff had reached maximum medical improvement. Accordingly, Tenet paid out fourteen weeks of permanent impairment benefits as required by the Act. See § 440.15(3)(g)l, Fla. Stat. (2003) (providing for two weeks of benefits for each percentage point of impairment between one and ten percent).

The plaintiff sought additional benefits for permanent total disability before the Office of the Judges of Compensation Claims (“OJCC”). Tenet and the plaintiff actively litigated those claims before the OJCC, and a final hearing was scheduled in April 2007. However, the plaintiff filed a lawsuit against Tenet in the trial court, and voluntarily dismissed his petition before the OJCC. In the first complaint, the plaintiff alleged that Tenet’s negligence caused him permanent disability in the form of the loss of wage earning capacity. Further, he alleged, because the 2003 version of section 440.15(3) eliminated any benefits for such recovery, the plaintiff could recover those losses by way of a tort suit. Tenet moved to dismiss this complaint, arguing that the claim was barred by workers’ compensation immunity, and Tenet had fully complied with its statutory obligations. By agreed order, the trial court dismissed the first complaint without prejudice.

The plaintiffs first amended complaint was a declaratory judgment action seeking a finding that section 440.15(3), Florida Statutes (2003), was unconstitutional. The plaintiff claimed that section 440.15(3) eliminated (for someone with his level of disability) his common law right to wage-loss benefits. Tenet moved to dismiss that complaint, arguing that the trial court lacked jurisdiction, the plaintiff lacked standing, and any challenge to the Act’s constitutionality should have been raised before the OJCC. The trial court dismissed the first amended complaint without prejudice.

The second amended complaint was essentially the same as the first amended complaint, making a limited challenge to section 440.15(3), as amended in 2003. Tenet moved to dismiss the second amended complaint upon the same grounds raised in its previous motion. The trial court dismissed the second amended complaint with prejudice, and entered final judgment in favor of Tenet. This appeal followed.

The plaintiff has pursued a rather unconventional procedural course in this case. He litigated his petition for benefits before the OJCC for more than three years without once contending that the statute was unconstitutional. Then, before the conclusion of those proceedings, he voluntarily abandoned his benefits petition and filed a tort action against his employer in the circuit court. The trial court dismissed the plaintiffs first complaint pursuant to the parties’ agreement. Now, following the dismissal of his first amended complaint, by way of a circuit court action for declaratory relief, the plaintiff seeks to make a facial challenge to the constitutionality of the 2003 version of section 440.15(3).

Even if the plaintiffs chosen procedural course was appropriate (which is far from certain), we nevertheless conclude that he lacked standing to challenge the constitutionality of section 440.15(3). To challenge this section of the statute, the plaintiff must demonstrate — through a finding made in the OJCC proceeding, or a showing of evidence — that but for the provisions of section 440.15(3), as amended in 2003, he would be entitled to receive wage-loss benefits. Izquierdo v. Volkswagen Interamericana, 450 So.2d 602, 603 (Fla. 1st DCA 1984); Acosta v. Kraco, Inc., 426 So.2d 1120, 1121 (Fla. 1st DCA 1983); Jack Eckerd Corp. v. Coker, 411 So.2d 1026, 1028 (Fla. 1st DCA 1982).

In this case, the plaintiff abandoned his petition for benefits, and therefore, this Court was not presented with an OJCC finding that but for the 2003 statute he would be entitled to wage-loss benefits. Similarly, a review of the evidence presented in this case reveals that under all versions of section 440.15(3) between 1993 and 2003, the plaintiff still would not have met the twenty percent disability threshold required for obtaining supplemental benefits. See, e.g., § 440.15(3)(b)l.a, Fla. Stat. (2002) (providing that an employee must be assigned a minimum twenty percent impairment rating to be entitled to supplemental/wage-loss benefits). The plaintiff cannot, and does not dispute this fact. Accordingly, the plaintiff cannot prove that he would be entitled to the wage-loss benefits he seeks but for the provisions of section 440.15(3), as amended in 2003.

We therefore affirm the trial court’s order granting Tenet’s motion to dismiss the plaintiffs complaint with prejudice.

Affirmed.

      . In fact, the plaintiff concedes that his constitutional challenge to section 440.15(3) could have been preserved before the OJCC, and upon resolution of the benefits petition, determined by the First District Court of Appeal in a plenary appeal. The plaintiff, however, finding this course of action "less than satisfactory,” opted to pursue the procedural course outlined above. The plaintiff has not provided this Court with any legal authority suggesting that he may disregard such a "less than satisfactory” procedure.

      . After publication of the 1993 version, but prior to the 2003 version at issue in this case, subsection (3) of section 440.15 was amended on several occasions. In chronological order, see Ch. 93-415, § 20, at 121-27, Laws of Fla.; Ch. 97-264, § 47, at 4806-07, Laws of Fla.; Ch. 98-125, § 2, at 839-43, Laws of Fla.; Ch. 98-166, §§ 190, 261, at 1331-33, 1367-68, Laws of Fla.; Ch. 2002-194, § 28, at 1228-31, Laws of Fla. (detailing amendments to subsection (3) during this period).


text:
    Charles JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6434.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Rehearing Denied Feb. 23, 2011.

      Charles Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus and motion to enforce mandate are denied on the merits.

WOLF, KAHN, and THOMAS, JJ., concur.


author: SUAREZ, J.

text:
    Vanessa VIERA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Paradise Parking Systems, LLC., Appellees.
    No. 3D09-3429.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Vanessa Viera, in proper person.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for Florida Unemployment Appeals Commission.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Vanessa Viera (“Viera”) appeals a decision of the Florida Unemployment Appeals Commission holding that she was disqualified from receiving unemployment benefits because she voluntarily left employment without good cause attributable to the employer. We reverse the holding of the Florida Unemployment Appeals Commission and find that there was insufficient evidence to support the Commission’s finding that Viera quit the job without good cause attributable to the employer. See Mattice v. State Unemployment Appeals Comm’n, 992 So.2d 428 (Fla. 4th DCA 2008).

Viera worked as an administrative assistant to the valet manager at a janitorial-valet, condominium parking job. Her job was to assign decals and put bar codes on cars entering and leaving the garage in order that a record be maintained. On September 3, 2008, Viera was asked by a co-worker, Michael, to go the garage and pass out registration forms to the occupants of the cars as they drove into the garage to ensure that that they had a decal. Viera contended at the hearing before the appeals referee that she was assigned to a job in an office assigning the bar codes and that she never had gone to the garage to do this job before. On this occasion, she refused to go to the garage because she was feeling ill and the fumes in the garage would have made her feel worse. Viera testified that she advised Michael and the Human Resources Department that she was refusing to go to the garage because of the fumes and that she was feeling ill that day. Mr. Liss, Viera’s supervisor, testified that Viera never informed him that she was ill; however, he did not refute the fact that she was not feeling well on that day or that she had reported this to Michael and Human Resources. The hearing officer considered the evidence presented and the credibility of the witnesses, finding that the testimony of the employer was more credible. The referee found that Viera quit her job without good cause attributable to the employer. The Florida Unemployment Appeals Commission affirmed the referee’s decision.

Whether or not the claimant has left employment for good cause attributable to the employer and is entitled to unemployment compensation benefits is a mixed question of law and fact to the extent that, if competent substantial evidence is insufficient to support a factual finding then, as a matter of law, the unemployment appeals referee’s conclusion cannot stand. Mattice, 992 So.2d at 430-31 (citing Tourte v. Oriole of Naples, Inc., 696 So.2d 1283 (Fla. 2d DCA 1997)). The un-rebutted testimony was that Viera told both Michael and the Human Resources Department that she would not go to work in the garage to pass out registration forms because she was feeling ill and was concerned that the fumes in the garage would make her feel worse. This evidence satisfies the statutory test for good cause for leaving the job. § 443.101(l)(a)l., Fla. Stat. (2010); Humble v. Unemployment Appeals Comm’n, 963 So.2d 956 (Fla. 2d DCA 2007); Vajda v. Fla. Unemployment Appeals Comm’n, 610 So.2d 645 (Fla. 3d DCA 1992).

We conclude that the Viera has presented competent substantial evidence that she left her job for good cause within the meaning of the unemployment compensation statute and is not disqualified from receiving benefits. See Vajda; see also Salinas v. Eastern Aero Marine, 908 So.2d 1169, 1171 (Fla. 3d DCA 2005) (holding that claimant’s refusal to comply with supervisor’s order to perform production work did not constitute misconduct that would preclude award of unemployment compensation benefits, as claimant had previously suffered from allergies from chemicals used in manufacturing department); Delaughter v. Fla. Unemployment Appeals, 847 So.2d 1058, 1058 (Fla. 3d DCA 2003) (reversing because employer’s testimony completely failed to address, much less rebut, claimant’s testimony about the risk of personal injury in delivering a piano); Crosby v. Unemployment Appeals Comm’n, 711 So.2d 260, 262 (Fla. 5th DCA 1998) (holding that if an employee reasonably refuses to perform a required act, the employee is still eligible to receive unemployment compensation benefits); Chery v. Flagship Airlines, Inc., 692 So.2d 213, 214 (Fla. 3d DCA 1997) (“[Ajlthough the employer’s order may be reasonable, if the employee reasonably refuses to perform the required act, the employee is still eligible for unemployment compensation.”).

Reversed.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. KENDALL SOUTH MEDICAL CENTER and Dailyn Medical Center, Inc., Appellees.
    No. 3D10-108.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Rehearing Denied Feb. 22, 2011.
    Michael J. Neimand, Miami, for appellant.
    Panter, Panter, Sampedro and Christian Carrazana, Miami; Russel Lazega, North Miami, for appellees.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

United Automobile Insurance Company (“UAIC”) appeals the dismissal of an amended complaint for declaratory relief brought in Miami-Dade Circuit Court, seeking to determine whether section 627.745(l)(a), Florida Statutes (2008) requires medical providers to mediate a PIP claim prior to the filing of a breach of contract action for benefits. We affirm the trial court’s dismissal for lack of subject matter jurisdiction.

Kendall South Medical Center and Dai-lyn Medical Center, Inc. were medical providers that submitted PIP claims and demands for payment to UAIC pursuant to assignments of PIP benefits from UAIC’s insureds. In accord with section 627.745, UAIC requested the appellees to enter into presuit mediation to determine whether the claimed medical services were covered under their PIP policies. The appel-lees declined mediation. UAIC then filed the present amended complaint for declaratory judgment asking the trial court to determine whether Kendall South Medical Center and Dailyn Medical Center, Inc. are required to comply with Section 627.745 mediation prior to filing suit. Kendall South moved to dismiss the amended complaint alleging lack of jurisdiction of the Circuit Court as the declaratory action was based on a PIP claim of less than the jurisdictional amount of $15,000. Dailyn Medical moved to transfer to County Court asserting that the Circuit Court lacked jurisdiction as UAIC’s maximum liability under its policy was $10,000, which is below the jurisdictional threshold. The trial court dismissed the declaratory action for lack of subject matter jurisdiction and this appeal followed.

Relying on Alexdex Corp. v. Nachon Enters., Inc., 641 So.2d 858 (Fla.1994), UAIC contends on appeal that the trial court erred in dismissing the action for declaratory relief for lack of subject matter jurisdiction because the action was equitable in nature and, based on concurrent jurisdiction, could be brought either in circuit court or county court. We disagree.

Alexdex concerned the foreclosure of a construction lien and not, as in this case, a claim for declaratory relief pursuant to Chapter 86.011 of the Florida Statutes. In Alexdex, the Supreme Court analyzed the interplay of circuit and county court jurisdiction as found in Chapters 26 and 34 of the Florida Statutes. The Supreme Court concluded that the legislature intended to provide concurrent jurisdiction in equity cases in the circuit and county courts, except that equity cases filed in county court could not exceed that court’s monetary jurisdiction whereas the circuit court could reach down and take jurisdiction of equity matters below the circuit court’s monetary jurisdiction. However, unlike other matters in equity, there is no concurrent jurisdiction for section 86.011 claims for declaratory relief. Prior to 1990, circuit courts had exclusive jurisdiction over claims for declaratory relief. In 1990, the Legislature amended the statute to grant jurisdiction in declaratory matters to both the circuit and county courts but only “within their respective jurisdictional amounts.” Therefore, the Miami-Dade Circuit Court has jurisdiction of a declaratory action only if the amount in controversy exceeds $15,000 and only the county court has jurisdiction of any amount in controversy less than $15,000. Because UAIC alleges claims of less than $15,000 for each medical provider in its declaratory action, the trial court lacked jurisdiction of the subject matter and properly dismissed the second amended complaint for declaratory relief.

Affirmed.

      . The pertinent portion of section 86.011, Florida Statutes (2010) provides:
      86.011 Jurisdiction of trial court. — The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed....