author: CIKLIN, J.

text:
    Barrington LEVY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4117.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant, Barrington Levy, appeals from his convictions and argues that he is entitled to reversal for a number of reasons. We affirm the trial court’s rulings and write only to address Levy’s argument that his motion to strike a prospective juror for cause should have been granted.

Following a string of events that occurred in June of 2004, Levy was arrested and charged with attempted murder of a law enforcement officer by discharging a firearm (count I); injuring or hilling a police dog (count II); carjacking with a deadly weapon (count III); kidnapping with a weapon or firearm (count IV); armed burglary of a conveyance (count V); resisting an officer with violence (count VI); and possession of a firearm by a person previously found to be delinquent (count VII). Levy’s case proceeded to trial and during voir dire, Levy’s counsel questioned one prospective juror, Mr. Ca-hill, in particular about that juror’s ability to remain impartial although his brother-in-law was a police officer:

MR. CIENER: (Defense Counsel): Okay. Alright. And your feeling about being on a jury where allegedly someone tried to commit a first degree murder against a police officer, how do you feel about that? Do you think you’d be fair to everybody?
MR. CAHILL: (Prospective Juror): Yeah. If, even if it was just someone on the street, you know, a police officer, you know, a crime is a crime.
MR. CIENER: You don’t think you’d give the government here a little leg up because well it’s a police officer this time, we’re going to let them get by with a little less proof.
MR. CAHILL: Not really, no.

Defense counsel then asked all potential jurors whether they felt the State needed less proof when the victim was a police officer. One prospective juror, not Cahill, responded in the affirmative.

Levy’s counsel later moved to strike prospective juror Cahill for cause arguing his responses during voir dire showed a reasonable doubt as to his ability to remain impartial. The trial court denied Levy’s motion and thereafter Levy used a peremptory strike to remove prospective juror Cahill. Levy then sought an additional peremptory challenge to strike another juror but that request was denied. Thus, the claimed error has been properly preserved for our review. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990).

We review a trial court’s decision to deny a cause challenge for an abuse of discretion. Lewis v. State, 931 So.2d 1034, 1039 (Fla. 4th DCA 2006). The appropriate test when determining juror competency is “whether the juror can lay aside any bias or prejudice and render his or her verdict solely upon the evidence presented and the instructions on the law given by the court.” Davis v. State, 859 So.2d 465, 473 (Fla.2003). If there is any reasonable doubt about a juror’s impartiality, the juror should be excused for cause. Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2002).

In the instant case, Levy contends that when defense counsel asked prospective juror Cahill about whether having a police officer for a brother-in-law would impact Cahill’s ability to remain impartial, Cahill’s response of “Not really, no” constituted an equivocal answer creating reasonable doubt as to whether Cahill could serve as a fair and impartial juror.

We disagree and find that when viewed as a whole, Cahill’s responses do not emulate the sort of equivocation typically held to raise doubts about a potential juror’s impartiality. Cf. Hamilton v. State, 547 So.2d 630, 633 (Fla.1989) (holding that potential juror’s equivocal answers raised reasonable doubts about impartiality when juror claimed she could remain impartial but also stated she believed the defendant had the burden to prove his innocence); Street v. State, 592 So.2d 369, 371-72 (Fla. 4th DCA 1992) (holding prospective juror’s answers created reasonable doubt as to impartiality where juror stated he “might not be as fair and impartial” as he would in other cases where the defendant had no criminal past but that he would “try” to put those issues aside). Rather than show any bias, prospective juror Cahill’s responses indicated that he .would treat crimes against a police officer much the same as if the crimes were committed against any other person “on the street.” Cahill’s responses and then silence to the follow-up inquiry from defense counsel to the entire venire showed that he would not hold the State to a lesser burden of proof because the victim was a police officer and that he would remain fair and impartial regardless of the victim’s identity. Because the record fails to reveal statements raising a reasonable doubt as to prospective juror Cahill’s impartiality, the trial court was well within its discretion when denying Levy’s motion to strike for cause.

Affirmed.

GROSS, C.J., and WARNER, J., concur.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    LAW OFFICES OF DAVID J. STERN, P.A. and David J. Stern, individually, Appellants, v. Loren BANNER and Wells Fargo Bank, N.A., Appellees.
    No. 4D09-3928.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.
    Jeffrey Tew and Andrew B. Thomson of Tew Cardenas LLP, Miami, for appellants.
    Philip M. Burlington and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, and Louis M. Silber of Silber, Valenti & Davis, P.A., West Palm Beach, for Appellee-Loren Banner.
   TAYLOR, J.

Defendants, Law Offices of David J. Stern, P.A. (the “Law Firm”) and David Stern, appeal the trial court’s class certification order in this action brought by property owners in default on their mortgages against the defendants for alleged violations of the Florida Consumer Collection Practices Act (FCCPA) and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Their claims are based on the Law Firm’s transmission of reinstatement letters to borrowers demanding payment for fees and costs which plaintiffs contend were unreasonable, excessive, or “not currently due and owing.” These included service of process fees, title search and title examination fees, attorneys’ fees, and other charges.

Plaintiff, Loren Banner, sought class certification. Before the hearing on Banner’s motion for class certification, the parties stipulated to certain facts and agreed that the numerosity and adequacy elements were met. After a lengthy hearing, the trial court entered an extensive and detailed order finding that the requirements of Florida Rule of Civil Procedure 1.220(a), (b)(2), and (b)(3) were met. The order recites detailed findings as to how the commonality and typicality requirements were met with regard to service of process charges, title search and title exam charges, and payments that were not yet incurred. The court ruled as follows:

[T]he claims of BANNER and the class members all involve similar actions in that each class member defaulted on his or her residential mortgage and requested reinstatement. THE LAW FIRM and STERN acted similarly toward each class member, and BANNER and the class all seek recovery under the FCCPA and FDUTPA. Further, both the factual and legal issues arising under FCCPA and FDUTPA are essentially identical as to each member of the class and are susceptible to proof on a class wide basis. Therefore, both the commonality and typicality requirements of Rule 1.220(a) are satisfied.

The court determined that the injunctive or declaratory relief sought by Banner under the FCCPA and FDUTPA met the requirements of Rule 1.220(b)(2). Further, the cohesive requirement of Rule 1.220(b)(3) was deemed met 'because the members share common characteristics, and common questions of law and fact predominate over any individual issues, since “[t]he nature of this case and the elements of BANNER’S and the class members’ claims primarily involve issues focusing on THE LAW FIRM’S acts and not those of the class members. It was stipulated and shown that THE LAW FIRM’S activities and practices in attempting to collect charges related to the reinstatement of residential mortgages were common practices to all class members, and it is alleged that these activities violate the FCCPA and FDUTPA.”

Citing Cole v. Echevarria, McCalla, Raymer, Barrett & Frappier, 965 So.2d 1228 (Fla. 1st DCA 2007), the court declined the defendants’ request to distinguish between those class members who paid and reinstated their mortgages and those who lost their property in foreclosure. The court reasoned that “[t]he causes of action for unfair debt collection and unfair trade practices are based on the act of making an unlawful demand in the reinstatement letter, and not the ultimate consequence of the letter.” However, the court noted that those who lost their homes by final judgment of foreclosure and sale would be limited to statutory damages under FCCPA and injunctive relief under FCCPA or FDUTPA.

Finally, as to addressing any individualized damage issues that might arise, the court explained there are a number of management tools it could use to address these issues. The court stated: “As far as damages, assuming a finding of a violation of either FCCPA or FDUTPA, the majority of the class members would be entitled to assert statutory damages under FCCPA and request injunctive relief under FCCPA and FDUTPA. To the extent that class members who reinstated have actual damages, these damages can be determined by a relatively simple and mechanical computation, given the nature of these claims, and because each class member’s claim for actual damages is relatively small.”

The court certified the class as follows:

[A]ll persons in the state of Florida to whom THE LAW FIRM and STERN sent reinstatement letters on behalf of WELLS FARGO Bank, N.A. and who either reinstated their mortgages by paying the reinstatement charges, or who lost them property from January 18, 2003 through February 19, 2009 in which THE LAW FIRM and STERN attempted to collect the following:
A. Amounts for service of process on two or more persons commonly identified by THE LAW FIRM as “John Doe and Jane Doe, unknown tenants in possession” or “unknown spouse;” and/or
B. Costs for title search and/or title examination which exceeded the out of pocket and overhead costs for said title work; and/or
C. Where a title exam was performed by an employee of THE LAW FIRM when the invoice reflected that the title exam was performed by Professional Title & Abstract Co. (PT & A); and/or
D. Other charges, fees and costs which had not yet been incurred at the time Defendants demanded payment.

The standard of review of an order granting a motion for class certification is abuse of discretion. InPhyNet Contracting Servs., Inc. v. Soria, 33 So.3d 766, 770 (Fla. 4th DCA 2010) (quoting Olen Props. Corp. v. Moss, 981 So.2d 515, 518 (Fla. 4th DCA 2008)); Chase Manhattan Mortg. Corp. v. Porcher, 898 So.2d 153, 156 (Fla. 4th DCA 2005) (citing Stone v. CompuServe Interactive Servs., Inc., 804 So.2d 383, 387 (Fla. 4th DCA 2001)); Turner Greenberg Assocs., Inc. v. Pathman, 885 So.2d 1004, 1007 (Fla. 4th DCA 2004). Using that standard, we find no abuse of discretion in the trial court’s decision to certify the class in this case and affirm the certification order.

Affirmed.

CIKLIN, J., and TOWBIN SINGER, MICHELE, Associate Judge, concur.


author: STEVENSON, J.

text:
    Christopher B. SINCLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5065.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant, Christopher B. Sinclair, appeals his conviction and sentence for possession of a firearm by a convicted felon, carrying a concealed firearm, felony driving while license suspended, and unlawful use of a false name. Because of a prejudicial evidentiary error, we reverse the two firearm-related convictions.

At approximately 1:30 a.m., a detective conducting surveillance in a residential development noticed a Chevy Caprice being driven with a missing tag light. Intending to initiate a traffic stop, the detective followed the car until it came to a complete stop in the middle of the road. No one got out of the vehicle. The detective exited his police car and approached the stopped vehicle. While walking towards it, the detective noticed that the occupant was moving around within the car, causing it to sway from side to side.

When the detective reached the driver’s side window, Defendant was sitting in the driver’s seat and was the only occupant in the vehicle. Defendant was turning his body forward and bringing his right arm from the back seat to the front seat. The driver’s seat was pushed back and the back panel of the seat was laid back. Given Defendant’s size, he could easily access the back seat area of the car.

The detective asked Defendant for his license, registration and proof of insurance. Defendant did not have these items, and gave the detective a false name. During a consensual search of the vehicle, the detective discovered a loaded handgun lying underneath a vinyl flap connected to the backseat armrest. The detective also found a document containing Defendant’s true name. The detective ran a search on Defendant and discovered that Defendant had previously been convicted three times for driving with a revoked license.

During trial, Defendant argued that the firearm was not his but belonged to a gentleman who had left the firearm in the vehicle earlier that day, and that he had no knowledge that the firearm was in the vehicle. The owner of the firearm was not at trial. However, the State sought to question the detective on statements made by the owner during a telephone call with the detective. The detective testified that the owner contacted him and stated that he believed Defendant had stolen the firearm. Defendant objected to this testimony as hearsay and the testimony was stricken from the record.

On cross-examination, in referencing the owner of the firearm, Defendant asked “Do you know who that person is” to which the detective responded “No, I do not.” Defendant asked no further questions concerning the firearm’s owner. However, on re-direct, the State asked the detective, again, to relay the owner’s statements. Upon objection by Defendant, the State argued that Defendant opened the door to this testimony. The trial court allowed the testimony. The detective then testified that the owner of the firearm called him and told him that “he thought [Defendant] had stolen [the firearm] from his house.”

Defendant moved for a judgment of acquittal, arguing that the evidence was not sufficient to show that he was in possession of the firearm. On appeal, Defendant argues, first, that this motion should have been granted. A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. See Dumais v. State, 40 So.3d 850, 852 (Fla. 4th DCA 2010).

Possession of a firearm may be actual or constructive. See Wilcox v. State, 522 So.2d 1062, 1063 (Fla. 3d DCA 1988). Since the State presented no evidence that a firearm was found on Defendant’s person, the State had to present evidence of constructive possession. Constructive possession requires the State to prove “ ‘that the defendant had knowledge of the presence of the [contraband] and the ability to exercise dominion and control over the same.’ ” Ubiles v. State, 23 So.3d 1288, 1291 (Fla. 4th DCA 2010) (quoting Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007)). When the contraband is found in an area over which the defendant had exclusive possession, the defendant’s knowledge of the contraband and ability to maintain control over it may be presumed. See Smith v. State, 776 So.2d 957, 959 (Fla. 3d DCA 2000). Thus, when the defendant is the sole occupant of a vehicle in which contraband is found, a prima facie case of possession is established. See Lee v. State, 835 So.2d 1177, 1179 (Fla. 4th DCA 2002).

The State presented evidence that Defendant was the sole occupant and in exclusive possession of the vehicle. The detective testified that he followed the vehicle until it came to a complete stop, that no one exited the vehicle, and that, when he approached the vehicle, Defendant was the sole occupant. The firearm was subsequently found in the backseat, in an area over which the Defendant could have easily accessed. This evidence was enough to establish a prima facie case of possession.

We find merit, however, in Defendant’s argument that the trial court erred in admitting the statement from the firearm’s owner that he believed Defendant had stolen the gun from him. A trial court’s ruling on an evidentiary matter is reviewed for an abuse of discretion. See Hernandez v. State, 31 So.3d 873, 878 (Fla. 4th DCA 2010). We reject the State’s contention that Defendant “opened the door” to this testimony. The concept of “opening the door” permits admission of inadmissible evidence for the purpose of qualifying, explaining or limiting testimony previously admitted. See Hudson v. State, 992 So.2d 96, 110 (Fla.2008), cert. denied, - U.S. -, 129 S.Ct. 1360, 173 L.Ed.2d 621 (2009). This concept is based on considerations of fairness where “redirect examination reveals the ‘whole story of a transaction only partly explained’ in cross examination.” Love v. State, 971 So.2d 280, 286 (Fla. 4th DCA 2008) (quoting Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997)).

On cross-examination, Defendant’s question of “[d]o you know who that person is,” referring to the firearm’s owner, and the detective’s answer that he did not, required no further qualification or explanation. Defendant’s limited inquiry did not “open the door” to a statement from the firearm’s owner that accused Defendant of an additional crime. Further, the admission of this evidence was not harmless. An error is harmless only if there is no reasonable possibility that the error complained of contributed to the verdict. See Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010). Because of its prejudicial nature, “[e]rroneous admission of evidence of collateral crimes is presumed harmful.” Smith v. State, 743 So.2d 141, 144 (Fla. 4th DCA 1999) (citing Castro v. State, 547 So.2d 111 (Fla.1989)). We cannot say, beyond a reasonable doubt, that the accusation that Defendant stole the firearm that was later found in the Chevy Caprice did not contribute to the guilty verdict. As such, the conviction and sentence for possession of a firearm by a convicted felon, and carrying a concealed firearm, are reversed.

Reversed.

HAZOURI and DAMOORGIAN, JJ, concur.


author: PER CURIAM.

text:
    Norris BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-847.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.
    Norris Brown, Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant seeking relief pursuant to Florida Rule of Criminal Procedure 3.850. See, e.g., McCrea v. State, 980 So.2d 1268 (Fla. 2d DCA 2008).

POLEN, TAYLOR and CIKLIN, JJ., concur.


author: GERBER, J.

text:
    Funduro MUYICO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-342.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.
    Funduro Muyico, Indiantown, pro se.
    No appearance required for appellee.
   GERBER, J.

The appellant challenges the circuit court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We remand only for correction of the judgment to show the classification of the appellant’s robbery with a firearm conviction as a first degree felony punishable by life. We otherwise affirm the denial of the motion.

In the motion, the appellant primarily argued that the sentencing court in 1982 erred in reclassifying his robbery with a firearm conviction as a life felony carrying a thirty-year mandatory minimum instead of as a first degree felony punishable by a term of years not exceeding life in prison. The appellant further argued that he should be entitled to a new sentencing hearing because, in his opinion, if the sentencing court had been aware of the error, then the court would have imposed a sentence less than the ninety-nine year sentence which it imposed.

The state’s response conceded that the sentencing court erred in reclassifying the appellant’s robbery with a firearm conviction as a life felony. However, the state argued the appellant should not be entitled to a new sentencing hearing because the ninety-nine year sentence was legal and because the sentencing transcript shows that, regardless of the error, the sentencing court would have imposed the same sentence. The court stated, “He is a dangerous, dangerous man in every sense of the word.... He is off the streets for the rest of his life, as far as I am concerned.”

We agree with the appellant and the state that the sentencing court erred in reclassifying the appellant’s robbery with a firearm conviction as a life felony instead of as a first degree felony punishable by life. See § 812.1S(2)(a), Fla. Stat. (1982) (“If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment....”); McDonald v. State, 957 So.2d 605, 613 (Fla.2007) (“Pursuant to section 812.13(2)(a), Florida Statutes ... armed robbery is a felony punishable by life.”). Thus, the court which reviewed the appellant’s rule 3.800(a) motion should have corrected the judgment in that regard.

However, we reject the appellant’s argument that he is entitled to a new sentencing hearing. We hold that a classification error raised in a rule 3.800(a) motion, like a scoresheet error raised in a rule 3.800(a) motion, is harmless if the sentencing court “could have imposed” the same sentence. Cf. Brooks v. State, 969 So.2d 238, 243 (Fla.2007) (“[F]or motions filed under rule 3.800(a), we hold that if the [sentencing] court could have imposed the same sentence using a correct score-sheet, any error was harmless.”). Here, regardless of the classification error, the sentencing court could have imposed the same ninety-nine year sentence under section 812.13(2)(a). Even if the “more defendant-friendly ‘would-have-been-imposed’ standard” applied, Brooks, 969 So.2d at 238, we agree with the state that the sentencing court’s comments conclusively show that the court would have imposed the same sentence.

In sum, we remand only for correction of the judgment to show the classification of the appellant’s robbery with a firearm conviction as a first degree felony punishable by life. We otherwise affirm the denial of the appellant’s remaining arguments in his rule 3.800(a) motion without further comment.

Remanded for correction of judgment; otherwise affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.


author: GROSS, C.J.

text:
    Freddie RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1544.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2011.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

This case is a paradigm for a type of case that is common in our courts, where “consent” to a search is found under objectively questionable circumstances.

Freddie Ruiz was charged with trafficking in cocaine and possession of cannabis. He moved to suppress, alleging that the evidence was the product of an unlawful search and seizure. The trial court denied the dispositive motion and Ruiz now has appealed to this court.

At the hearing on the motion, detectives testified they received an anonymous tip that a person with dreadlocks was selling narcotics from a certain apartment. The same afternoon that the police received the tip, two detectives drove to the location and parked across the street. After a few minutes, Ruiz left the apartment. He had dreadlocks.

The detectives drove their unmarked car into the parking lot of the complex. They got out of then* car and “nonchalantly” or “casually” approached Ruiz. One detective “calmly” asked Ruiz his name and he “calmly” replied that it was “Freddie” and that “he had his identification in his apartment, if [the officer] would like to see it.” One detective said that he wanted to see it and Ruiz led the two law enforcement agents up to his apartment. Ruiz went inside and “motioned” or “nodded” at the detectives to enter, so they went inside. Ruiz walked through the living room into the bedroom; one detective followed and waited at the entrance to the bedi'oom. From this vantage point, the detective saw a scale and silver spoon with cocaine residue in the scoop part of the spoon. The detective asked Ruiz if the substance was cocaine, and Ruiz admitted it was. The detectives then “detained” Ruiz and read him his Miranda rights. Ruiz was most cooperative — he told them that additional cocaine was located in a Barbasol shaving cream can and “weed” was inside his dresser di’awer.

Ruiz also testified at the suppression hearing. His version of events differed substantially from that of the detectives. Ruiz was on his way back from the store when three officers stopped them vehicle in front of him, jumped out with their guns drawn, and told him not to move. Ruiz did not think he was free to leave. One officer frisked him and asked for his identification. Ruiz said he did not have any identification and the police said they would arrest him if he could not produce some identification. Ruiz said that his identification was in his apartment. The officers escorted him to his apartment. After he opened the door, the officers went inside and searched through everything. Ruiz did not give the officers permission to enter his residence.

The trial judge found the officers “very credible” and Ruiz’s “testimony” “not credible.” Based on the “totality of the circumstances,” the court found that “this was a citizen’s encounter” where Ruiz “allowed” the police to “come in” to his apartment.

In reviewing an order on a motion to suppress, an appellate court defers to the trial court’s factual findings but reviews de novo the application of the law to the facts. E.g., Pantin v. State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004). A search conducted pursuant to consent is an exception to the Fourth Amendment requirements of a warrant or probable cause. Schmeckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Where consent to a search is the issue, “the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The state must prove voluntariness by a preponderance of the evidence, Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998), but if there has been an illegal detention, the state must establish by clear and convincing evidence that the consent was not a product of the illegal police action. Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992).

Whether consent is voluntary is a question of fact to be determined from the totality of the circumstances. McDonnell v. State, 981 So.2d 585, 588 (Fla. 1st DCA 2008). “Consent to search may be in the form of conduct, gestures, or words.” State v. Gamez, 34 So.3d 245, 247 (Fla. 2d DCA 2010). To decide whether a consent is voluntary, courts consider a number of factors, including the time and place of the encounter, the number of police officers present, the officers’ words and actions, and the age, education, or mental condition of the person detained. Hardin v. State, 18 So.3d 1246, 1248 (Fla. 2d DCA 2009); State v. Evans, 9 So.3d 767, 769 (Fla. 2d DCA 2009). “[A] private home, as here, is an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment[.] [S]ee, e.g., Payton v. New York, 445 U.S. 573, 585, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639, (1980). [Therefore,] the factors bearing on the vol-untariness of a consent to search a home must be scrutinized with special care.” Gonzalez v. State, 578 So.2d 729, 734 (Fla. 3d DCA 1991) (parallel citations omitted). Central to the idea of a consensual encounter “is the notion that if a reasonable person would feel free to end the police encounter, but does not, and is not compelled by the police to remain and continue the interaction, then he or she has consented to the encounter.” Golphin v. State, 945 So.2d 1174, 1182 (Fla.2006).

Over time, the concept of “consent” to a search has become divorced from its common meaning. In the Fourth Amendment context, “consent” has come to mean that set of circumstances that the law will tolerate as an exception to the probable cause or warrant requirement. What passes for “consent” today would not have survived a motion to suppress 25 years ago. Now, even aggressive conduct by the police will not necessarily vitiate “consent” when viewed as a part of the “totality of the circumstances.” Thus, in Golphin v. State, the Supreme Court rejected the concept that, as a matter of law, an otherwise consensual encounter matures into a seizure when an officer retains a person’s identification to conduct a check for outstanding warrants. Id. at 1187-89. Similarly, in Caldwell v. State, 41 So.3d 188 (Fla.2010), the Supreme Court held that the administration of Miranda warnings, as a matter of law, does not transform a consensual encounter into a seizure. Under Golphin and Caldwell, the challenged police conduct was but one factor to be considered in the totality of the circumstances.

The “totality of the circumstances” approach has expanded the concept of “consent” in a way that has had a significant effect on the administration of criminal justice. It allows a trial court to rely on other factors that swallow aggressive police conduct and contract the limits of Fourth Amendment protection.

In many cases, the police rely upon a defendant’s voluntary consent to justify a search or a stop. One possibility is that citizens, especially those involved in crimes, have a desire to cooperate with the police to avoid making waves. Another possibility, far more sinister, is that the police have come to recognize that “consent” is the catch-all exception to the Fourth Amendment, so they tailor their testimony accordingly.

After Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applied the exclusionary rule to state prosecutions, one trial judge noticed the profusion of “dropsy” testimony in New York City— testimony by police officers that a defendant dropped drugs onto the street upon seeing the police:

Were this the first time a policeman had testified that a defendant dropped a packet of drugs to the ground, the matter would be unremarkable. The extraordinary thing is that each year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of cases — and that, in a nutshell, is the problem of ‘dropsy’ testimony. It disturbs me now, and it disturbed me when I was at the Bar. Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967, p. 596:
< ⅜ * ⅜ policemen see themselves as fighting a two-front war — against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example, the Supreme Court laid down the rule that evidence obtained by the police through an unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed. Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.

People v. McMurty, 64 Misc.2d 63, 314 N.Y.S.2d 194, 195-96 (N.Y.Crim.Ct.1970) (Younger, J.). “Dropsy” in 1970 has evolved into “consent” in 2010. The more things change the more they stay the same.

The profusion of consent cases requires trial judges, the gatekeepers of the Fourth Amendment, to critically evaluate the testimony given at hearings. Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable — an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the voluntariness of the consent scrutinized “with special care?” Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.

Affirmed.

DAMOORGIAN and MAY, JJ., concur.


text:
    Anthony J. STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-93.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2011.
    Anthony Stokes, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In the circuit court, the state’s response to a pro se emergency petition for writ of habeas corpus included a request for the issuance of an order prohibiting appellant from filing any further pro se pleadings in the case, pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Ultimately, the circuit court granted the state’s motion for a Spencer order. Appellant failed to respond to an order to show cause on the Spencer issue because he did not receive it; he established this fact through a prison log of mail received at the relevant time. As the state concedes, Spencer requires notice and a reasonable opportunity to respond before a Spencer order issues. We reverse the Spencer order and remand to the circuit court where appellant shall be given an opportunity to be heard on the Spencer issue.

GROSS, C.J., MAY and DAMOORGIAN, JJ., concur.


text:
    Sammy L. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-685.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2011.
    Sammy L. Edwards, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gusow v. State, 6 So.3d 699, 705 (Fla. 4th DCA 2009).

GROSS, C.J., POLEN and GERBER, JJ., concur.


author: MORRIS, Judge.

text:
    William Henry CALDWELL, IV, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1734.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

William Henry Caldwell, IV, appeals his convictions for felony murder and armed burglary. We reverse for the reason explained below and remand for a new trial.

Caldwell argues on appeal that during jury selection, the trial court improperly denied his cause challenge to a potential juror (Juror E), who questioned why a person would not want to testify in his defense. Caldwell claims that Juror E’s comments raised a reasonable doubt as to her ability to be impartial and that she was not rehabilitated by the State.

The following discussion occurred during voir dire:

DEFENSE COUNSEL:.... Now another principle that we need to discuss is the idea of a person[’s] not testifying in their own trial. Okay? How do you feel about that ... ?

After discussing with several jurors the right to not testify, defense counsel stated:

DEFENSE COUNSEL: Now, here is another legal principle that kind of butts up against that natural desire to know everything, and that is that the person does not have to testify. Okay? No person can be compelled to give testimony. Does that bother anybody? I mean, in other words, would you be thinking to yourself, well, he didn’t testify, that must mean that he’s guilty; otherwise he would get up and say so? Does anybody feel that way, have that reaction?
PROSPECTIVE JUROR [H]: I can deal with that. I can, you know, just draw from the evidence and make a decision.
DEFENSE COUNSEL: Right. Anyone else?
PROSPECTIVE JUROR [E]: I have a question. Why would someone not want to have the opportunity to speak the truth?
DEFENSE COUNSEL: Okay. Can you suggest a reason?

The State then objected, and a sidebar conference was held, during which the trial court overruled the State’s objection. The following continued before the prospective jurors:

DEFENSE COUNSEL: [Juror E]?
PROSPECTIVE JUROR [E]: Yes, sir.
DEFENSE COUNSEL: You asked me a question, you said why might a person—
PROSPECTIVE JUROR [E]: Not want to.
DEFENSE COUNSEL: And I asked you, can you think of a reason?
PROSPECTIVE JUROR [E]: Unless they are guilty.
DEFENSE COUNSEL: Unless they are guilty. Does anybody — what about nervousness? Could that be reason? Yes, ma’am?

Defense counsel then discussed the issue with other jurors and further explained the right to remain silent. Juror E was not again addressed on this issue, and she posed no additional questions.

During the selection process, defense counsel challenged Juror E for cause, stating that “she didn’t indicate that she could accept the idea of a person who was — a defendant not testifying.” After an objection by the State, the trial court denied the challenge, stating “I don’t have a note on that either.” Defense counsel then used a peremptory strike on Juror E and requested more peremptory strikes, identifying three jurors he wished to strike. The trial court denied defense counsel’s request for more peremptory strikes. One of the objectionable jurors served on the jury. Caldwell renewed the objection before the jury was sworn.

We first note that defense counsel properly preserved the issue for appeal and that Caldwell has demonstrated that if an error exists, it requires reversal. See Carratelli v. State, 961 So.2d 312, 318-19 (Fla.2007) (holding that in order to show that the improper denial of a challenge for cause constitutes reversible error, the challenging party must use a peremptory challenge to strike the juror, request additional peremptory strikes, and demonstrate that an objectionable juror served on the jury).

We now decide whether the trial court improperly denied Caldwell’s cause challenge to Juror E. “ ‘[A] juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.’ ” Overton v. State, 801 So.2d 877, 890 (Fla.2001) (quoting Kearse v. State, 770 So.2d 1119, 1128 (Fla.2000)). A trial court has broad discretion in determining whether to grant a challenge for cause. Id. Close cases should be resolved in favor of excusing the juror. See Thomas v. State, 958 So.2d 1047, 1050 (Fla. 2d DCA 2007). Specifically applicable to this case is “the premise that the presumption of innocence is defeated if ‘a juror is taken upon a trial whose mind is in such condition that the accused must produce evidence of his innocence to avoid a conviction.’ ” Overton, 801 So.2d at 891 (quoting Singer v. State, 109 So.2d 7, 24 (Fla.1959)).

In Mitchell v. State, 862 So.2d 908, 911 (Fla. 4th DCA 2003), one potential juror testified that “although she knew that the defendant had a right not to testify, it ‘probably1 would cross her mind if he did not.” A second potential juror testified that “he would ‘wonder why they didn’t get up there and tell their story.’” Id. Although the trial court then gave an instruction on the absolute right to not testify, the second juror said that his feelings had not changed. A third juror stated that “she would probably question why someone who was not guilty “wouldn’t want to perhaps tell their side of the story.’ ” Id. Then, a fourth juror said that the third juror “expressed [his] sentiments exactly.” Id. The defense challenged all four potential jurors for cause, and the trial court denied the challenge as to potential jurors one, two, and four. The defense used peremptory challenges on those jurors.

On appeal, the court held that juror two should have been stricken for cause because his responses “reflected doubt about this ability to set aside his conjecture as to why the defendant did not testify!] and that despite the instructions from the trial judge, his feelings did not change.” Id. The court also recognized juror four’s comment about “why someone innocently charged with a crime would not want to testify.” Id. The court held that “[a]ll of these comments create more than a reasonable doubt about these jurors’ ability to be fair and impartial] and, therefore, [that] the court erred in denying [defendant’s] challenge for cause as to” jurors two and four. Id. at 911-12.

Here, even after defense counsel informed the potential jurors that a defendant has an absolute right to not testify, Juror E stated that she did not understand why somebody would not want the opportunity to speak the truth. When asked by defense counsel why someone might not want to testify, Juror E stated “[ujnless they are guilty.” As in Mitchell, Juror E’s comments created a reasonable doubt regarding her ability to be fair and impartial. See also Segura v. State, 921 So.2d 765, 766 (Fla. 3d DCA 2006) (finding reversible error where trial court improperly denied a challenge for cause to juror who stated that he would want to hear from the defendant if there was any question in his mind and that if he were innocent, he would protest his innocence); Shannon v. State, 770 So.2d 714, 715 (Fla. 4th DCA 2000) (finding reversible error where trial court improperly denied a challenge for cause to juror who “stated that he could not understand why someone who was innocent would not speak to his innocence at trial” and that juror did not recede from his position or state he could be fair after expressing this view).

When sufficient grounds arose to sustain the challenge for cause as to Juror E, it was not defense counsel’s obligation to rehabilitate her. See Bryant v. State, 601 So.2d 529, 532 (Fla.1992) (“The appropriate procedure, when the record preliminarily establishes that a juror’s views could prevent or substantially impair his or her duties, is for either the prosecutor or the judge to make sure the prospective juror can be an impartial member of the jury.”); Taylor v. State, 796 So.2d 570, 572 (Fla. 2d DCA2001).

The State argues that Juror E was rehabilitated by defense counsel’s general questions to the voir dire regarding a defendant’s right to remain silent, as well as Juror E’s recognition of other applicable criminal principles. Although Juror E had earlier acknowledged that the charging document is not evidence and that a defendant is presumed innocent until proven guilty, a question arose about her ability to be impartial to a defendant who might not testify once she indicated her belief that a defendant would not testify because he is guilty. The only time Juror E spoke after making her comments on the decision to not testify was when defense counsel asked if the law regarding the principles they had been discussing— “burden of proof, presumption of innocence, reasonable doubt” — would apply to a serious charge. Juror E stated, “It does.” Juror E was not asked by the trial court or the prosecutor if she understood the right to remain silent or if she could be impartial and fair despite her earlier comments regarding the right to remain silent. Defense counsel twice asked the panel if a decision to not testify would prevent them from finding the person not guilty, but Juror E did not respond to this question. “[A] juror’s silence to a question asked of the entire panel” is not sufficient to overcome a concern about the impartiality of that juror caused by the juror’s earlier comments. Bell v. State, 870 So.2d 893, 895 (Fla. 4th DCA 2004) (“While Florida law permits the rehabilitation of a juror whose responses in voir dire raise concerns about impartiality, reasonable doubt is not overcome by a juror’s silence to a question asked of the entire panel.”). Thus, the State’s asserted justifications on appeal for the trial court’s denial of the cause challenge are without merit.

We conclude that the trial court abused its discretion in denying Caldwell’s challenge for cause to Juror E. We accordingly reverse Caldwell’s convictions and remand for a new trial.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ„ Concur.


text:
    Avis ESIAKA, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D10-1059.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Avis Esiaka, Augusta Georgia, pro se.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Suarez v. Unemployment Appeals Comm’n, 871 So.2d 1039 (Fla. 5th DCA 2004).

GROSS, C.J., HAZOURI and MAY, JJ., concur.


text:
    Jimmy JAMES, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D10-48.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Jimmy James, Lantana, pro se.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Suarez v. Unemployment Appeals Commission, 871 So.2d 1039 (Fla. 5th DCA 2004).

GROSS, C.J., MAY and LEVINE, JJ., concur.


text:
    Jose TACHER, Appellant, v. HELM BANK, Appellee.
    No. 4D09-2931.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Andreas M. Kelly, Doral, for appellant.
    Manuel A. Ramirez of Castro & Ramirez, LLC, Coral Gables, for appellee.
   PER CURIAM.

Helm Bank sued to foreclose a mortgage contending that appellant Jose Tacher stopped making payments after June, 2008. Tacher filed a 19 paragraph laundry list of affirmative defenses; some are legally insufficient on their face and others state general legal conclusions without any facts. The bank moved for summary judgment and its motion was accompanied by an affidavit. It also filed the original of the note, showing that it was the payee when the loan was made. Tacher filed no counter affidavit. The circuit court entered a summary final judgment. Tacher filed a one-and-one-half page motion for rehearing contending only that each of his affirmative defenses had not been “conclusively refuted on the record.” The circuit court denied the motion.

The legal argument in Tacher’s short brief does nothing more than generally state that affirmative defenses were not refuted and that genuine issues of material fact remain. Plainly, the bank’s affidavit disproves the affirmative defenses of payment, tender, and accord and satisfaction. On its face, the note is not unconscionable. The brief does not specifically discuss a single affirmative defense, nor does it describe what issues of fact need to be tried. It is not the responsibility of an appellate court to make an appellant’s arguments for him, “to sift through the pleadings and affidavits to determine whether there are material issues of fact.” E & I, Inc. v. Excavators, Inc., 697 So.2d 545, 547 (Fla. 4th DCA 1997). Tacher has not carried his “burden of making ‘any reversible error clearly, definitely, and fully appear.’ ” Id. (quoting Strate v. Strate, 328 So.2d 29, 30 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976)).

Affirmed.

GROSS, C.J., MAY and DAMOORGIAN, JJ., concur.


text:
    Timothy CRAWFORD, Sr., Appellant, v. In re The GUARDIANSHIP OF Timothy CRAWFORD, III, Appellee.
    No. 4D09-1361.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Timothy Crawford, Sr., Belle Glade, pro se.
    No appearance for appellee.
   PER CURIAM.

Appellant appeals an order on the Guardian ad Litem’s Petition for Permanent Guardianship and an order denying a motion to disqualify the circuit judge. The appeal of the order on permanent guardianship is untimely, having been filed nearly a year after entry of the order. See Fla. R.App. P. 9.110(b). We therefore dismiss the appeal from that order. We affirm the order denying disqualification. Although the appeal was timely as to this order, appellant has not raised any challenge to it in his brief. See Capital Motors of Orlando, Inc. v. Signature Automotive Group, Inc., 795 So.2d 1060 (Fla. 4th DCA 2001).

WARNER, POLEN and LEVINE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Matthew T. BOES, Appellee.
    No. 4D09-4694.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
   PER CURIAM.

The state appeals a sentence on the ground that the court erred in entering a downward departure where the evidence did not support it. We affirm. The state did not object to the trial court’s downward departure on the ground that the trial court’s ruling was not supported by competent substantial evidence. “For an issue to be preserved for appeal, it must be presented to the lower court, and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Doorbal v. State, 983 So.2d 464, 492 (Fla.2008). The state’s arguments in this appeal concerning the sufficiency of the evidence are being raised for the first time on appeal and therefore were not preserved for appellate review. See State v. Clark, 770 So.2d 237 (Fla. 4th DCA 2000) (holding that the state failed to preserve the issue of whether the specific reasons given for imposition of downward departure sentence were invalid where at sentencing the state did not object on the same grounds argued on appeal).

Because the issue has not been properly preserved, we affirm.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Roshan RAMKHALAWAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4765.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Roshan Ramkhalawan, Belle Glade, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals a circuit court order summarily denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 for lack of a valid oath. This was error because the unnotarized oath did comport with the requirements of rule 3.850 and the model form of rule 3.987, Florida Rule of Criminal Procedure.

The trial court did not consider appellant’s five claims of ineffective assistance of trial counsel on their merit. We find that ground four, ineffective assistance of trial counsel for failure to object to and preserve for appeal the issue of the trial court’s interruption of defense counsel’s closing arguments on reasonable doubt, to be largely repetitive of one of the claims he raised and which was rejected on direct appeal. Also, we conclude that the claim is without merit as a matter of law. We therefore affirm the trial court’s summary denial of that claim under the tipsy coachman rule. See S & I Invs. v. Payless Flea Mkt., Inc., 36 So.3d 909, 913-14 n. 3 (Fla. 4th DCA 2010).

As for the remaining claims, the state conceded that appellant had the right to have leave to amend claim one under Spera v. State, 971 So.2d 754 (Fla.2007). We find this to be the case for claims two, three and five as well. Therefore, we reverse and remand to the trial court for further proceedings consistent with this opinion as to claims one, two, three and five, and affirm the circuit court’s summary denial of claim four.

Affirmed in part, reversed in part and remanded.

GROSS, C.J., TAYLOR and CIKLIN, JJ., concur.


text:
    Mary-Therese DELATE, Appellant, v. Henry ILER, Appellee.
    No. 4D09-4825.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Lynn G. Waxman of Lynn G. Waxman, P.A., Palm Beach Gardens, for appellant.
    Jaime A. Quick and James R. Quick of Quick Law Firm, P.A., Jupiter, for appel-lee.
   PER CURIAM.

The former wife appeals the final judgment of dissolution, challenging the permanent periodic alimony award, the treatment of her health insurance expenses, and that portion of the order requiring each party to pay their own outstanding attorney’s fees. Having considered all arguments raised, we affirm the final judgment of dissolution. In making the alimony award, the trial court found that the husband did not have the ability to pay an amount that would net the former wife sufficient funds to cover the entirety of her determined “needs.” While we affirm the alimony award, we note that, in the event the former husband’s financial circumstances change, the wife is free to seek a modification of alimony. See, e.g., Suarez v. Sanchez, 43 So.3d 118, 121 (Fla. 3d DCA 2010) (“ ‘[T]o justify a modification of alimony, the moving party must show: (1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.’ ”) (quoting Kusick v. Kusick, 944 So.2d 1081, 1082 (Fla. 2d DCA 2006), and citing section 61.14, Florida Statutes).

Affirmed.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    R.F., a minor child, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Guardian Ad Litem Program and C.K., the mother, Respondents.
    No. 4D10-4104.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Shahar Pasch, West Palm Beach, for petitioner.
    Jeffrey Dana Gillen, West Palm Beach, for respondent Department of Children and Families.
    Hillary Kambour, Tavares, for respondent Guardian Ad Litem Program.
   PER CURIAM.

Through his attorney ad litem, R.F. petitions this court for a writ of certiorari to review an order requiring the child to return to Florida because his continued stay in New York is in violation of the Interstate Compact on the Placement of Children (ICPC). § 409.401, Fla. Stat. (2010). R.F., a seventeen-year-old, is residing in New York with his uncle and aunt who have applied for guardianship. There is general agreement that placement with the uncle is in the child’s best interest, but the procedures for modification of placement under the ICPC were not complied with before the child decided to remain with his uncle after a summer visit and to enroll in school in New York. The trial court’s order has been stayed pending resolution of this petition. We grant the petition.

After R.F.’s father died, he lived with an aunt, but the placement broke down and he asked to be placed in foster care. He was placed in a boy’s group home and his grades began to suffer. His guardian ad litem explained in a report that R.F. “is an exceptional young man, who, despite his desire and willingness to overcome the significant obstacles of his childhood, has been having severe difficulties of late.” His mother has been allowed therapeutic visitation at the child’s discretion, a right he has never exercised.

During the summer he was encouraged to visit his paternal uncle in New York. According to the guardian ad litem’s report, the uncle passed a home study before the child’s visit. R.F. did not return from the visit and indicated that he wanted to live with his uncle.

The Department of Children and Families filed an emergency motion requesting the court order R.F. to return to Florida. DCF argued the child is in New York illegally and allowing him to remain with his family in New York violates the ICPC.

R.F.’s guardian ad litem recommended that the court allow him to remain in New York during the ICPC review procedures. The guardian ad litem and the attorney ad litem believe that it is in R.F.’s best interest to remain with his uncle. Counsel for the Guardian Ad Litem Program agreed that placement with the uncle appears to be in the child’s best interest, but, like DCF, argued that R.F. is in New York illegally.

The uncle is a newspaper editor and the aunt is an assistant director at a library. The family is very serious about education. They have three children who are in college on scholarships, two on Presidential Scholarships and one attending an Ivy League university. The uncle is very concerned about R.F.’s education and wants to assure that he is prepared for college. R.F. and his uncle have testified that R.F. is doing very well in New York: he is loved by his family; he has made friends; he is taking challenging courses at school; and he made the school’s JV soccer team. The uncle is prepared to provide tutors if necessary, and R.F.’s cousins are also willing to help him with his studies.

An ICPC deputy compact administrator for Florida testified that the ICPC process for placement of a dependent child in New York is typically 60 to 90 days. More than 90 days have elapsed since DCF raised this issue, and the record does not indicate the status of the ICPC proceedings in New York.

The uncle paid for a private home study through a Manhattan adoption agency. The home study, which was completed while this petition was pending, approves adoption of R.F. by his uncle and aunt. The home study indicates that the adoption agency is authorized under New York law to conduct home studies and place children. The Florida compact administrator indicated that it would be up to New York authorities whether they accepted the private home study.

Recognizing that it is in R.F.’s best interest to remain with his uncle, the trial court initially extended the visit. Before the visit expired, R.F.’s attorney ad litem moved to modify placement. The attorney ad litem strenuously argued that the child’s right to expeditious permanency and the best possible placement are paramount to strict compliance with the compact, and the dependency court is required to consider the best interest of the child. Counsel pointed out that R.F. has remained in contact with his guardian ad litem and his therapist. He has continued to receive services from Florida including participating by phone in an independent living staffing. The judge felt compelled to order that R.F. return to Florida until the ICPC review is complete, but stayed her order pending this petition.

Even if an out-of-state placement does not strictly comply with the ICPC, a court may allow the child to remain in the out-of-state placement during the ICPC process if it is in the child’s best interest. See H.P. v. Dept. of Children and Families, 838 So.2d 583, 586-87 (Fla. 5th DCA 2003); see also Dept. of Children and Families v. T.T., 42 So.3d 962, 964 (Fla. 5th DCA 2010); In re J.D., 35 So.3d 145 (Fla. 2d DCA 2010).

DCF and the Guardian Ad Litem Program argue that there are no exceptions to the ICPC procedures, and strict compliance with the compact is required. They argue if the procedures were not complied with and the receiving state was unaware of the placement, there would be no way to guarantee the child’s safety. According to respondents, “[mjaking an exception in this case would [be] contrary to this child’s best interest as it would be contrary to the best interest of any child.”

These arguments are not persuasive based on the circumstances in this case. There is no reason to question whether R.F. is safe with his uncle. R.F. is nearly an adult. He has clearly articulated his very reasonable desire to remain with his family in New York. He has contact with his guardian ad litem and daily contact with his therapist. Even before the private home study was completed, it seemed clear from the testimony of the uncle, R.F., and the guardian ad litem that residing with the uncle and aunt is the best possible placement for R.F. Although respondents suggest that the child’s best interests cannot be determined until ICPC proceedings are completed, they have not cited any factual basis to question whether it is in R.F.’s best interest to remain with the uncle during the ICPC process. Requiring R.F. to return to Florida for a few months would at a minimum disrupt his school work and the relationships he is developing, and there appears to be no suitable placement with family in Florida.

DCF and the Guardian Ad Litem Program also argue that R.F. should be compelled to return to Florida because New York may impose some sanction for noncompliance with the compact. Article IV of the compact authorizes sending and receiving states to penalize non-compliance in accordance with laws in each jurisdiction. A sending agency that places a child in violation of the compact could also lose its license. Respondents have not cited any laws in Florida or New York that would penalize the non-compliance in this case, and there is no private sending agency that would lose its license or permit.

In fact, New York courts have in some cases declined to impose sanctions and have not required strict compliance with the ICPC where it would be contrary to the best interest of a child. See In re Adoption of Adoptive Child R, 14 Misc.3d 806, 828 N.Y.S.2d 846 (N.Y.Fam.Ct.2006); Matter of Adoption of Baby Boy M.G., 135 Misc.2d 252, 515 N.Y.S.2d 198 (Surr.Ct.1987). Contrary to respondents’ arguments, New York courts have held that the best interests of the child are paramount. M.G., 135 Misc.2d at 257, 515 N.Y.S.2d 198; see also Matter of Shakiba P., 181 A.D.2d 138, 147, 587 N.Y.S.2d 300 (N.Y.A.D. 1 Dept.1992) (the court should consider “above all, the best interests of the child”). Although efforts should be made to comply with the compact, “the most desirable course to follow is often dependent upon reasonable judgment as to the equities.” M.G., 135 Misc.2d at 257, 515 N.Y.S.2d 198 (quoting Matter of Adoption of Baby E, 104 Misc.2d 185, 193, 427 N.Y.S.2d 705 (N.Y.Fam.Ct.1980), superseded by statute on other grounds, Matter of Adoption of Baby Boy, O.G., 145 Misc.2d 746, 547 N.Y.S.2d 806 (N.Y.Sur.1989)).

R.F. went to New York on an authorized visit. A private home study has been completed by an adoption agency in New York and it finds the uncle and aunt can provide a suitable, safe residence and a supportive, nurturing environment for R.F. By all accounts, he is doing well in New York. Although there is a technical non-compliance with the compact, the paramount concern is the best interest of the child. DCF has provided no reason why it is in R.F.’s best interest to return to Florida pending ICPC proceedings and disrupt permanent placement with his family in New York. Rather, DCF has taken an overly legalistic position that cannot be reconciled with the facts in this case. Courts and agencies charged with protecting the welfare of children should be concerned foremost with the best interests of the child.

The record in this case does not fully reveal the extent of the hardships R.F. has faced, but he has expressed a determination to overcome these obstacles and a brighter future is at hand.

The petition for writ of certiorari is granted and the, trial court’s order is quashed. On remand, the court may consider any additional evidence in deciding whether it is in R.F.’s best interest to remain in New York pending completion of the ICPC process.

GROSS, C.J., WARNER and MAY, JJ., concur.


text:
    August URBANEK, Petitioner, v. Gerald URBANEK, Commercial Management Corporation, and Philip W. Hopkins, as Trustee, Respondents.
    No. 4D10-2459.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    David Howard Goldberg of Ellis & Goldberg, P.L., Miami, and Michael J. Weber of Michael J. Weber, P.A., Miami, for petitioner.
    Jesse H. Diner, Jack Geckler and Sean P. Sullivan of Atkinson, Diner, Stone, Man-kuta & Ploucha, P.A., Fort Lauderdale, for respondents Gerald Urbanek and Commercial Management Corporation.
   PER CURIAM.

August Urbanek seeks certiorari review of a non-final order compelling him to answer certain interrogatories that he refused to answer based on his Fifth Amendment privilege against self-incrimination. At issue are questions surrounding a tape recorded conversation. We grant his petition with respect to questions four through seven, which concern the details surrounding the decision to tape, the taping itself, the equipment used, and whether the tape was altered or edited. See generally, Belniak v. McWilliams, 44 So.3d 1282 (Fla. 2d DCA 2010). The record does not reflect that the privilege is being used in this case as a “sword and shield.” DeLisi v. Bankers Ins. Co., 436 So.2d 1099 (Fla. 4th DCA 1983). Also, we reject any suggestion that petitioner waived the privilege by acknowledging that the conversation at issue was tape recorded. Pisciotti v. Stephens, 940 So.2d 1217 (Fla. 4th DCA 2006).

CeHiorari granted and order quashed.

GROSS, C.J., WARNER and TAYLOR, JJ., concur.


text:
    Herman CARRIER, Individually and in his Capacity as the Administrator of the Estate of his minor child, Herman Blake Carrier, and his wife, Wendy Wallace Carrier v. CITY OF AMITE, Bell Sports, Inc., and Sears Roebuck and Co.
    No. 2010-CC-0007.
    Supreme Court of Louisiana.
    Oct. 19, 2010.
    Rehearing Denied Dec. 10, 2010.
    Guglielmo, Marks, Schutte, Terhoeve & Love, Stephen Dale Cronin, Kennon, Odom & Dardenne, APC, John David Ziober, Baton Rouge, for Applicant.
    Arthur W. Landry and Jeanne Andry Landry, Attorneys, Arthur W. Landry, Jeanne Andry Landry, Christopher M. Moody, Hammond, Gieger, Laborde & La-perhouse, LLC, John Ernest William Baay, II, Ernest Paul Gieger, Jr., New Orleans, Thomas R. Hightower, Jr., APLC, Thomas Reginald Hightower, Jr., Lafayette, for Respondent.
   PER CURIAM.

_JjWe granted certiorari in this case to determine whether this retail seller has a duty to instruct buyers on the proper method of wearing and fitting bicycle helmets. For the reasons that follow, we conclude plaintiffs failed to establish any legal duty on the part of the retailer under the facts presented.

UNDERLYING FACTS AND PROCEDURAL HISTORY

This case arises from an incident in which six-year-old Blake Carrier was injured while riding his bicycle on a municipal tennis court on May 29, 2002. At the time of the accident, Blake was wearing a bicycle helmet his parents allegedly purchased from Sears, Roebuck and Co. (“Sears”) in December 2001.

Subsequently, Blake’s parents filed the instant suit against several defendants, including Sears. Plaintiffs alleged Sears failed to properly fit the helmet and instruct them regarding its correct use.

| ¡.During discovery, plaintiffs produced an expert in the area of bicycle safety, James Green. In his deposition, Mr. Green stated he advised his clients to instruct their buyers on the proper use and fit of bicycle helmets. However, Mr. Green admitted he knew of no rules or laws requiring retailers to fit and instruct buyers of bicycle helmets. Mr. Green also explained his clients did not include Sears.

Sears filed both a motion in limine and a motion for summary judgment. In support of the motion in limine, Sears argued Mr. Green had no basis for his conclusion that retailers had a duty to fit and instruct buyers on the proper way to wear a bicycle helmet. In support of the motion for summary judgment, Sears argued retailers had no duty to buyers to fit and instruct on the proper use of bicycle helmets.

The district court granted Sears’ motion in limine to exclude Mr. Green’s testimony, and further granted Sears’ motion for summary judgment to dismiss all claims against Sears.

Plaintiffs appealed. On appeal, the court of appeal reversed, finding the district court erred in deciding the duty issue without first determining that the expert’s testimony was inadmissible under the factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993). Accordingly, the court of appeal reversed the judgment granting the motion for summary judgment, and remanded the case to the district court for further proceedings. Carrier v. City of Amite, 08-1092 (La.App. 1 Cir. 2/13/09), 6 So.3d 893, writ denied, 09-919 (La.6/5/09), 9 So.3d 874.

|sOn remand, Sears re-urged both the motion in limine and the motion for summary judgment. After a hearing, the district court denied Sears’ motions.

Sears sought supervisory review of this ruling. The court of appeal denied the writ, with one judge dissenting.

Upon Sears’ application, we granted cer-tiorari to consider the correctness of the district court’s decision. Carrier v. City of Amite, 10-0007 (La.3/12/10), 29 So.3d 1241.

DISCUSSION

The central question presented in this case is whether plaintiffs established a legal duty on the part of a retailer, such as Sears, to provide point-of-sale fitting instructions for bicycle helmets. In Lemann v. Essen Lane Daiquiris, Inc., 05-1095 at p. 8 (La.3/10/06), 923 So.2d 627, 633, we discussed the principles for determining the existence of a legal duty:

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La.1993); Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La.1993). In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991). The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Faucheaux, 615 So.2d at 292; Perkins, 98-2081 at 22, 756 So.2d at 404.

|4In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale. Rather, plaintiffs seek to establish the existence of industry standards, including best practices, which they claim are relevant to determine whether a general duty is owed.

At this juncture, the parties dedicate a large part of their briefs to discussing whether the district court properly qualified Mr. Green as an expert on the subject of point-of-sale assistance in the sale of bicycle accessories. However, we find we need not resolve the question of Mr. Green’s qualifications under the unique facts presented, because we find that Mr. Green’s testimony, even if accepted, is insufficient to establish any factual basis for a duty on the part of Sears.

In his deposition, Mr. Green testified as follows:

They came out with a mass market approach to the Wal-Marts, etcetera, the Sears, the Lowe’s, whoever, that wanted to sell bikes, where they just wanted to get bikes and components out there into the commerce stream. They don’t provide point-of-sale service at all. You have, you have two families of retail organizations here. I maintained ever since I saw this developing some years ago that this mass market approach is not a good thing, that if you’re going to be a reputable retailer and I tell my clients that, if you’re going to be a reputable retailer, you must properly instruct at the point-of-sale from everything to how to operate a quick release, to how to fit a helmet, to never ride at night without a light on your bike, that kind of thing. It should be done at the point-of-sale, because bikes aren’t toys, they’re, they’re vehicles, [emphasis added]

Although Mr. Green testified the fitting of bicycle helmets “should” be done at the point of sale, he cited no authority for this proposition other than his own opinion. To the contrary, when asked whether any regulations existed requiring a |Bretailer to provide point-of-sale instructions on fitting bicycle helmets, Mr. Green testified, “[n]o, there’s nothing written up as a standard.”

Similarly, in response to Sears’ interrogatories, plaintiffs admitted Mr. Green did not rely on any formal requirements in support of his position:

INTERROGATORY NO. h
Please identify any and all standards, state or federal regulations, engineering, helmet manufacturer, department store and/or retail association periodicals, documents or guidelines which your expert, James M. Green, relies upon in opining that an industry standard existed in November, 2001 requiring that retailers of bicycle helmets must give point of sale instructions on proper sizing and fitting.
ANSWER TO INTERROGATORY NO. U:
There is no requirement but perfectly clear instructions provided by BHSI. Most reputable retailers do fit at the point of sale. These include REI, Performance Bicycle, Brooklyn Bike Shop, and any bike shop who belong to the Independent Bicycle Retailer Organization (now known as the National Bicycle Dealers Association (NBDA)). There are currently 6000 shops who belong to NBDA who employ helmet fit at point of sale (See attached documentation from NBDA). The NBDA also outlined the differences between a reputable shop and a mass merchant shop on the safety issue. (See attached documentation from NBDA). [emphasis in original]

A review of the documentation attached to plaintiffs’ answer to Interrogatory No. 4 reveals none of these documents set forth an industry standard which would mandate the fitting of bicycle helmets by a retailer at the point of sale. Moreover, Mr. Green admitted he did not know if Sears belonged to any bicycle safety industry group.

Under these circumstances, we must conclude Mr. Green’s testimony reflects his own personal opinion as to what a retailer should do, and is not based on any objective standards establishing what a retailer is required to do. Courts have held that experts may not rely on their own conclusions as authority in the absence of any objective support. See Grdinich v. Bradlees, 187 F.R.D. 77 (S.D.N.Y.1999) (holding | (¿he expert’s testimony was without foundation because “[w]ithout ‘industry standards’ to rely upon, [the expert] seems to base his conclusions on his own authority”). Thus, Mr. Green’s testimony does not establish the existence of any statutes, regulations, or industry standards which would support the finding of a duty on a retailer to fit bicycle helmets at the point of sale.

Additionally, as a matter of policy, we find no ground for recognizing such a duty based on general principles of tort law. In Meany v. Meany, 94-0251 at p. 6 (La.7/5/94), 639 So.2d 229, 233, we discussed the policy considerations to be taken into account in determining whether the law imposes a duty under particular facts:

When a plaintiff articulates a general rule or principle of law that protects his interests, it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991). In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiffs harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La.1988); William E. Crow, The Anatomy of a Tort, 22 Loy. L.Rev. 903 (1976).

Applying these precepts to the instant case, we believe the policy considerations militate against the finding of any duty on the part of a retailer to provide point-of-sale fitting instructions for bicycle helmets. Under current societal norms, we do not believe it is reasonable to require mass-marketing retailers, such as Sears, to offer specialized point-of-sale advice on the thousands of products they |7sell. Rather, it is typically understood the consumer will ask for assistance, if it is required. In the instant case, the deposition testimony of Mr. Carrier establishes he never asked for any assistance at the time he purchased the helmet. Moreover, Mr. and Mrs. Carrier testified in their respective depositions that they believed the helmet, which was purchased as a Christmas gift for Blake, fit him properly; indeed, Mrs. Carrier testified it “was the best-fitting helmet [Blake] ever had.” Mrs. Carrier admitted she did not consult the instructions for fitting the helmet, and testified the instructions “probably got thrown away because we’ve had helmets before so we know how to use them.” Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.

In summary, we conclude that under the facts presented, there is no legal duty which would require Sears to provide fitting instructions for bicycle helmets at the point of sale. In the absence of any legal duty, Sears is entitled to summary judgment as a matter of law.

DECREE

For the reasons assigned, the judgment of the district court is reversed. The motion for summary judgment filed by Sears, Roebuck Co. is granted, and judgment is entered in its favor dismissing the claims of plaintiffs with prejudice.

REVERSED AND RENDERED.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . Also named as defendants were Bell Sports, Inc. (the manufacturer of the helmet), and the City of Amite (the owner of the tennis court). These defendants are not at issue for purposes of this opinion.

      . On remand, Sears filed a pleading captioned "Motion for Hearing on Summary Judgment and Motion in Limine for Purposes of Issuance of Oral Reasons for Judgment, or Alternatively, Motion Requesting Written Reasons for Judgment.” Plaintiffs assert this motion was procedurally improper, because nothing in the court of appeal's opinion indicated the case was being remanded for entry of reasons. However, the record reveals Sears filed its original motion for summary judgment and motion in limine, as well as supporting exhibits, into the record at the hearing. Thus, despite the caption of the motion, we believe Sears expanded its pleadings to reurge its motion for summary judgment and motion in limine. See La.Code Civ. P. art. 1154.

      . Interestingly, Mr. Green opined that the manufacturer’s instruction on use and fit in this case were "the best I’ve ever seen.” Nonetheless, Mr. Green stated he believed point-of-sale assistance on fit was necessary in part, because consumers frequently failed to consider the instructions on fit and use provided by manufacturers. However, Mr. Green conceded that such a duty did not exist in the case of mail-order purchases. This dichotomy in Mr. Green’s testimony reveals the fallacy in his conclusions. We believe the more consistent approach is to place the duty on the consumer to determine the product he or she purchased is appropriate for its intended use.