author: BENTON, J.

text:
    Michael RITCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0079.
    District Court of Appeal of Florida, First District.
    June 12, 2009.
    Rehearing Denied July 24, 2009.

      Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Michael Lewis Ritch appeals an order of the trial court requiring him to make restitution to his former employer, Columbia Grain & Ingredients, Inc. (Columbia Grain), in the amount of $22,152.95. Because this amount lacks substantial support in competent evidence adduced at the restitution hearing, we reverse with directions to substitute the lesser sum that the evidence did establish. We decline to give a judgment, entered in a civil lawsuit to which the state was not a party, preclu-sive collateral effect.

Charged with theft (of property worth more than $300 but less than $5,000), Mr. Ritch entered a plea of guilty to dealing in stolen property between October 20, 2005, and January 7, 2007, in violation of section 812.019(1), Florida Statutes (2005). The state then announced it would nolle prose-qui the grand theft charge. At the restitution hearing, Mr. Ritch testified that on five or six occasions (in the course of the last of which he was apprehended), he loaded a trailer for one Mario Alonso with soybean meal that belonged to Columbia Grain (in exchange for $300 per load, which he pocketed). He put the value of a trailer load of soybean meal at approximately $1,500, and no other evidence suggested a higher value.

Henry Ward testified that a civil action against Messrs. Ritch and Alonso resulted in a judgment in favor of Columbia Grain in the amount of $22,152.95. Mr. Ward testified that the business normally experiences some loss of grain or “shrinkage” as a result of spillage and spoliation. During the pertinent time period, he testified, the business experienced shrinkage in excess of its historical average for soybean meal. The figure of $22,152.95 was derived by multiplying the “excess shrinkage” of soybean meal by the lowest cost for soybean meal during that period. The trial court eventually ordered restitution in this amount, after granting a Florida Rule of Criminal Procedure 3.800(b)(2) motion challenging the amount initially ordered.

The state has the burden to show that a defendant’s criminal episode or offense caused the victim’s loss, directly or indirectly. § 775.089(7), Fla. Stat. (2005). It is not enough to show merely that a business suffered losses contemporaneously with employee theft. See Strickland v. State, 685 So.2d 1365, 1366 (Fla. 2d DCA 1996). The defendant in Strickland, a waitress at a restaurant, had control tickets totaling $631 in her personal possession, representing money for which she had not accounted to her employer. Id. at 1365. Upon her conviction, the state requested restitution based on the restaurateur’s testimony that the difference between actual revenue during the time she worked as a waitress and the revenue that had been projected amounted to $23,444. Id. at 1366. This testimony was held insufficient to meet the state’s burden of proving that she was responsible for the entire shortfall in revenues. Id.

The amount of restitution must be based on more than speculation; it requires competent, substantial evidence. See Glaubius v. State, 688 So.2d 913, 916 (Fla.1997); State v. Childers, 979 So.2d 412, 414 (Fla. 1st DCA 2008). That is why convicted cattle rustlers were not required to make restitution for all of a victim’s missing cattle, absent proof they had taken them all. See Crosby v. State, 637 So.2d 341, 343 (Fla. 2d DCA 1994). See also Morel v. State, 547 So.2d 341, 342 (Fla. 2d DCA 1989) (holding that the evidence established that some, but not all, shortages were the result of the defendants’ theft and limiting restitution accordingly). Mr. Ward testified that it was “certainly possible” that others were stealing from Columbia Grain during the period charged in the information. Here, much as in Strickland, the state did not prove that Mr. Ritch’s conduct, directly or indirectly, caused the entire “excess shrinkage.”

The doctrine of collateral estop-pel does not relieve the state of its burden to prove the amount of the loss caused by the crime. The offensive use of collateral estoppel is apparently unavailable in Florida altogether, even though the use defensively was permitted in a civil case on the basis of a judgment in an earlier, collateral criminal proceeding. See Zeidwig v. Ward, 548 So.2d 209, 214 (Fla.1989). But the exception identified in Zeidwig is not pertinent here. See Stogniew v. McQueen, 656 So.2d 917, 919 (Fla.1995) (“Zeidwig constituted a narrow exception in which collateral estoppel was permitted in a defensive context and then only under the compelling facts of that case.”).

In order for collateral estoppel to apply, moreover, Florida requires “mutuality” and “identity of parties.” See E.C. v. Katz, 731 So.2d 1268, 1269-70 (Fla.1999). “Identity of parties and mutuality do not exist unless the same parties or their privies participated in prior litigation that eventuated in a judgment by which they are mutually bound.” Massey v. David, 831 So.2d 226, 232 (Fla. 1st DCA 2002). See Stogniew, 656 So.2d at 919 (“[Ujnless both parties are bound by the prior judgment, neither may use it in a subsequent action.”). The state was not a party, and was not bound by the judgment entered, in the civil proceedings between Columbia Grain and Mr. Ward. See generally Kirby v. State, 863 So.2d 238, 242 (Fla.2003) (“The criminal sanction of restitution and the civil remedy of damages further distinct societal goals.”).

A criminal defendant is entitled to representation by counsel at all critical stages of the proceeding, including sentencing. This includes any hearing to determine the amount of restitution. See Long v. State, 876 So.2d 718, 718 (Fla. 5th DCA 2004); Moment v. State, 645 So.2d 502, 503 (Fla. 4th DCA 1994). We assume the same is true of any ostensibly civil proceedings the state could use to establish the amount of restitution by way of collateral estoppel, although we need not reach the issue in the present case.

The state having failed to meet its burden of proving that Mr. Ritch’s criminal conduct caused the entire loss the victim claimed, we reverse and remand with directions to enter an amended order imposing restitution in the amount of $7,500. See Strickland, 685 So.2d at 1366; Morel, 547 So.2d at 342.

Reversed and remanded with directions.

LEWIS and CLARK, JJ., concur.

      . Mr. Ritch does not argue that the amount alleged in the grand theft charge limited the restitution amount or that Columbia Grain did not suffer, directly or indirectly, some loss “related to the defendant's criminal episode" of dealing in stolen property. § 775.089(1)(a)2., Fla. Stat. (2005). See Johnston v. State, 870 So.2d 877, 879 (Fla. 1st DCA 2004).

      . There was thus evidence of dealing in no more than six stolen trailer loads with an aggregate value of no more than $9,000, and evidence of damage or loss to the victim of no more than $7,500. Columbia Grain did not suffer the loss of the load in the trailer the day Mr. Ritch was arrested.

      . The state argued that the amount of the civil judgment was the lowest amount of restitution that would be '‘appropriate.'’ Defense counsel argued that the only evidence regarding the actual number of times Mr. Ritch improperly sold grain to Mr. Alonso was the testimony of Mr. Ritch.

      . Section 775.089, Florida Statutes (2005), provides in part:
      (l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
      1. Damage or loss caused directly or indirectly by the defendant's offense; and
      2. Damage or loss related to the defendant's criminal episode,
      unless it finds clear and compelling reasons not to order such restitution.

      (7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney....

        . Collateral estoppel bars relitigation of an issue only when (1) an identical issue was presented in the prior proceeding; (2) the issue was a critical and necessary part of the prior determination; (3) there was a full and fair opportunity to litigate that issue; (4) the parties in the two proceedings are identical; and (5) the issue was actually litigated. See Felder v. State, Dep't of Mgmt. Servs., Div. of Ret., 993 So.2d 1031, 1034-35 (Fla. 1st DCA 2008).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SAN MARCO REALTY, INC., d/b/a Marco True Value Hardware, Appellant, v. David A. DOPIERALA and Pamela Dopierala, Appellees.
    No. 2D08-1928.
    District Court of Appeal of Florida, Second District.
    June 12, 2009.
    Rehearing Denied July 23, 2009.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellant.
    Richard L. Purtz of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., Fort Myers, for Appellees.
   PER CURIAM.

San Marco Realty, Inc., appeals a final judgment entered in favor of David and Pamela Dopierala, arguing that the trial court erred in entering a judgment notwithstanding the verdict. We reverse.

David Dopierala was severely injured when his leg slipped into a manhole. The cover for the manhole did not fit properly, thus causing the accident. The manhole was located on the property of San Marco. The sole issue at trial was who was responsible for maintaining the sewer system and manhole.

In addition to suing San Marco, the Dopieralas also sued Florida Water Systems (FWS), the Vucich Trust, and the City of Marco Island. The Vucich Trust originally installed the sewer line, and there was evidence that it sold the sewer system and its components to FWS in the early 1990’s. The Dopieralas settled with the Vucich Trust, and summary judgment was entered for the City of Marco Island. The Dopieralas also settled with FWS. San Marco then named FWS as a Fabre defendant. As the case proceeded to trial solely against San Marco, the Dopieralas took a new and completely opposite position, arguing that FWS was not responsible for maintaining the sewer system and manhole cover.

The jury returned a verdict of $500,000 in favor of the Dopieralas which was subsequently reduced by the trial court to $386,464 pursuant to additur and remitti-tur orders. The jury further found San Marco to be 5% at fault and FWS to be 95% at fault. The trial court granted the Dopieralas’ motion for judgment notwithstanding the verdict, in essence granting their motion for directed verdict as to San Marco’s Fabre defense.

We conclude that the trial court improperly granted the Dopieralas’ post-trial motion. The record reflects that there was conflicting evidence as to whether San Marco or FWS was responsible for maintaining the sewer system and manhole cover. Accordingly, based on the evidence presented at trial, the jury was entitled to conclude that FWS was responsible for maintaining the sewer system, was responsible for the defective manhole cover, and thus was responsible for David Dopierala’s injuries. “ ‘[U]nless the evidence as a whole, with all reasonable deductions to be drawn therefrom, points to one possible conclusion, the trial judge is not warranted in withdrawing the case from the jury or in setting aside the jury’s determination on conflicting evidence and substituting therefor his own evaluation of the evidence.’ ” Pahucki v. Armster, 161 So.2d 719, 722 (Fla. 2d DCA 1964) (quoting Cash v. Gates, 151 So.2d 838 (Fla. 2d DCA 1963)); see also N. Dade Golf, Inc. v. Clarke, 439 So.2d 296, 298 (Fla. 3d DCA 1983) (“[A] trial judge is not authorized to act as a ‘seventh juror’ or to substitute his judgment for that of the jury on disputed questions of fact.”) (citations omitted).

Accordingly, we reverse the judgment notwithstanding the verdict and remand this matter for the trial court to reinstate the jury verdict.

Reversed and remanded with directions.

ALTENBERND, FULMER, and WHATLEY, JJ., Concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . For a good analysis of the limited use of a motion for judgment notwithstanding the ver-diet see Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure § 26:4 (2008-09 ed.).


text:
    B.K., the Father, In the Interest of K.K., Minor Child, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D08-4608.
    District Court of Appeal of Florida, First District.
    June 12, 2009.

      B.K., pro se, Appellant.
    Patricia M. Propheter, Children’s Legal Services, West Palm Beach, for Appellee.
   PER CURIAM.

B.K. appeals the trial court’s order denying his petition for writ of habeas corpus by which he sought to challenge the trial court’s permanency order rendered on February 15, 2008 nunc pro tunc November 20, 2006. Appellant contends that he was denied due process of law because he did not receive notice of the November 20, 2006 permanency hearing, and was not afforded the right to be present or represented by counsel at that hearing. The trial court denied the petition because it found that the February 15, 2008 order reflected “that the father was represented [by counsel] during the course of the proceedings leading to the guardianship.”

Our review of the record confirms appellant’s assertion that he was neither provided notice of the November 20 hearing, nor present or represented by counsel at that hearing. Further, the record reflects that, although appellant had been represented by counsel at a September 28, 2005 hearing in this proceeding, such counsel was discharged on February 9, 2006, nunc pro tunc September 28, 2005. The record reflects obvious and understandable confusion at the November 20 hearing because the hearing concerned two children, siblings, K.K. and J.K., Jr. Appellant is the father of K.K. and appellant’s brother, J.K., is the father of J.K., Jr. J.K. was present at the hearing and was represented by counsel. The permanency order closed the case as to both children.

In M.W. v. Department of Children & Families, 769 So.2d 513 (Fla. 1st DCA 2000), we explained that

the habeas remedy ... is analogous to a motion for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b) which may be used when a party to a civil action seeks to excuse the untimely filing of a notice of appeal on the theory that it did not timely receive a copy of the order sought to be appealed. In that circumstance, if the trial court finds the motion to be well-taken it should vacate the original order and re-enter it so that the adversely affected party may appeal. If the 1.540(b) motion is denied, that order may be appealed. See Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980)....

Pursuant to M.W., we REVERSE and REMAND for further proceedings consistent with this opinion.

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


author: MONACO, J.

text:
    W. Kenneth LOVELL, Appellant, v. Heidi M. LOVELL, Appellee.
    Nos. 5D08-12, 5D08-1393.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2009.

      Mina Bustamante, of Beller & Busta-mante, P.L., Jacksonville, and Michael J. Korn, and Mary C. Coxe, of Korn & Zeh-mer, P.A., Jacksonville, for Appellant.
    William S. Graessle, of William S. Graes-sle, P.A., Jacksonville, for Appellee.
   MONACO, J.

The former husband, the appellant, W. Kenneth Lovell, seeks review of the final judgment of dissolution of marriage from his former wife, the appellee, Heidi M. Lovell, with respect to child custody and visitation, rehabilitative alimony, attorney’s fees, and other determinations by the trial court. As we agree, at least to some extent, with the former husband’s position regarding several of these grounds, we reverse in part, remand certain issues for additional consideration, and affirm the remainder of the final judgment.

The parties were married for thirteen years when they separated, at which time the former husband petitioned for dissolution. The former husband is a well-paid executive with the PGA Golf Tour, while the former wife is a school teacher whose primary occupation prior to the separation was as a mother and homemaker. There were two children born of the marriage, a son who is now 14, and a daughter who is now 12. The former wife and children have relocated to the State of Utah where the former wife has returned to her teaching career.

The dissolution process appears to have been highly charged emotionally, primarily because the former husband admitted that he had developed a relationship with a close friend of the family and fellow church member. Religion and church membership are particularly important to the parties and them children. Subsequent to the dissolution, the former husband married the person who the trial court referred to as the “paramour.”

At the conclusion of the trial the court, with the acquiescence of the former husband, awarded the primary residential responsibility for the children in Utah to the former wife, and granted visitation to the former husband in accordance with local guidelines, but with some provisos that have proven to be troublesome. In addition, the former vafe was awarded rehabilitative alimony in the amount of $4,000 per month for a period of eight years, along with guidelines child support. Finally, the court also awarded attorney’s fees to the former wife. With this as a factual backdrop, we now deal with the legal issues raised by the parties.

I. Child Visitation Issues.

A. Limitation on Visitation In Presence of'Neiv Wife.

The former husband does not challenge the trial court’s decision to award full residential custody of the children to the former wife. He does, however, appeal the order of the trial court forbidding his current wife from being in the presence of the children during visitation. More specifically, the final judgment (with proper names deleted) provides that:

The Husband shall not expose the minor children to his paramour ... until such time as the minor children’s therapist ... deems it appropriate.

There are two serious flaws with this ruling. First, it is not supported by evidence or findings that would warrant the requirement to sequester the children from the current wife; and second, the court seems to have delegated an important part of the visitation regime to a third party.

It is clear from the testimony that the children do not like the their father’s new wife, and that they blame her for the breakup of the family. There is testimony, in fact, that they refer to her as “Satan’s Wife.” The former husband, on the other hand, is very distressed by the fact that his children do not wish to talk to his new wife, nor be with her in the same room. Thus, emotions on this issue have been ratcheted to a high degree. More importantly, the children now live in Utah, while the former husband still lives in Florida and is now married to the woman they despise. When the children come to Florida for visitation, however, they are going to be staying in the former husband’s residence, which, inconveniently, is also the residence of his current wife. One can easily appreciate the difficulties this situation presents.

Still, when the testimony is examined, there is scant evidence that being in the presence of the new wife is detrimental to the welfare of the children. There is no evidence that the female child suffered any ill effects by being exposed to the new wife, and the only negative manifestation demonstrated by the male child is that he lost a few pounds of weight. The experts testifying on behalf of each of the parties noted, on the other hand, that the new wife had never harmed the children, and that the young man’s weight loss stemmed either from a severe case of parental alienation (in the view of one expert), or from “anxiety related issues” (in the view of the other). One of the experts testified that:

They’ve not felt love because that’s being victimized by parental alienation. They’re caught between God, this game I’m in with my mother is crazy but I got to do it or I’ll be abandoned. It’s madness what’s going on in this family.

The former wife’s expert — the person to whom the trial court delegated the responsibility of determining when the children could be exposed to the new wife — testified that she saw no parental alienation being practiced by the former wife. She said, instead that “from the depths of their heart, [the children] don’t want to be around [new wife].”

We review a trial court’s decision to restrict or limit visitation by an abuse of discretion standard. Allen v. Allen, 787 So.2d 215 (Fla. 5th DCA 2001). There must, however, be competent, substantial evidence that such a restriction or limitation is in the best interests of the children in order for it to be sustained. Miller v. Miller) 423 So.2d 638 (Fla. 4th DCA 1982). In Miller, our sister court succinctly held that because restrictions such as the one imposed in the present case “impact upon the private life of the custodial parent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child.” Id. at 639-40. See also, Trylko v. Trylko, 392 So.2d 1034, 1035 (Fla. 2d DCA 1981). That logic applies here, as well.

In the present case the record is devoid of evidence demonstrating that exposure to the former husband’s new wife is detrimental to the best interests of the children, nor does the record contain findings in the final judgment to that effect. For this reason alone, that portion of the final judgment requiring the sequestration of the new wife from the children must be reversed. Additionally, reversal is required because the trial court cannot delegate its authority to another person to rule on the visitation details. There is no legal basis for allowing the children’s therapist to make the final call on when the new wife can be allowed to be in the presence of the children. This determination is solely within the province of a court of law.

B. Ambiguity With Respect To Summer Visitation.

The former husband contends that the trial court erred in not giving him the Seventh Circuit’s guidelines summer visitation period in long distance visitation cases. While we do not conclude that the trial court erred in its division of the summer visitation period, we do find that the award is ambiguous and in need of clarification.

The former husband was awarded “one-half of the children’s summer break, beginning at 5:00 p.m. on the second Friday after the end of the school year until 5:00 p.m. on the sixth Sunday after the end of the school year.” We note initially that the final judgment in this regard mirrors the language of the visitation guidelines found in the local rules for the Seventh Circuit. Nonetheless, the former husband argues that the language used in the judgment did not comport with the goal of the guidelines of awarding the non-custodial parent half of the children’s summer vacation because the award in time specific does not amount to half of the vacation period of the children.

Although we observe that the trial court is not bound by the visitation guidelines, as the guidelines themselves specifically provide, it appears that the trial court may have been attempting to adopt them in crafting the final judgment. Because it is uncertain from the final order whether the trial court intended to award to the former husband half of the summer vacation or four weeks of the vacation, either one of which would be reasonable under the circumstances, we remand to the trial court for clarification.

II. Propriety of Rehabilitative Alimony.

The former husband contends that the rehabilitative alimony awarded by the trial court to the former wife is not supported by a rehabilitative plan as required by law. The trial court awarded the former wife rehabilitative alimony in the amount of $4,000 per month for eight years. The award was supported, in part, by the following findings contained in the final judgment:

5. The time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment: The Husband is gainfully employed and has maintained his present employment for slightly over seven years. Although the Wife is employed as a school teacher, she just commenced her gainful employment on a full time basis. The Wife desires to return to school and pursue at least a master’s degree, which will place her at the same educational level as the Husband. In order for the Wife to obtain a master’s degree, she will need 45 credit hours at the rate of $270.00 per credit hour. In order for Wife to obtain her doctorate degree, she will be required to take an additional 70 credit hours at $270.00 per credit hour. Since the Wife is required to be employed, and since she is the primary caretaker of the minor children, it will take the Wife approximately six to ten years to complete her educational plan.

The principal purpose of awarding rehabilitative alimony is to provide funds to the requesting spouse so he or she can establish the capacity for self-support, either through the redevelopment of previous skills or the provision of the training necessary to develop potential supportive skills. Hill v. Hooten, 776 So.2d 1004, 1006 (Fla. 5th DCA 2001). Rehabilitative alimony, however, cannot be awarded absent a rehabilitative plan. Id. (citing Fullerton v. Fullerton, 709 So.2d 162, 164 (Fla. 5th DCA 1998)). The spouse seeking the award must present evidence establishing the objective of the rehabilitation, the areas in which rehabilitation is desired, and the amount of rehabilitative alimony necessary. Rowl v. Rowl, 864 So.2d 1236, 1239 (Fla. 5th DCA 2004) (citing Kalmanson v. Kalmanson, 796 So.2d 1249, 1250 (Fla. 5th DCA 2001)). Although the plan does not have to be in writing, an adequate and credible rehabilitative plan must be presented to the court. Layeni v. Layeni, 843 So.2d 295, 299 (Fla. 5th DCA 2003). In addition, the record must contain evidence of the need of the requesting spouse for such alimony, and a determination by the court that the other spouse has the ability to pay the amount awarded. Id. Finally, the trial court must make explicit the basis for the amount and duration of the award. Saporito v. Saporito, 831 So.2d 697, 701 (Fla. 5th DCA 2002).

In order to improve her employment status, former wife requested rehabilitative alimony because she planned to acquire a master’s degree in education. She argues that achieving that degree would put her at the same educational level as the former husband. She suggested, as well, that she would also like to acquire a doctorate in education because achieving the terminal degree in her field would allow for her to be employed as a principal of a school. She testified that the cost of this additional education would be approximately $30,000. She related that each credit hour costs $270, and that it would take 45 credits for her to earn a master’s degree, and an additional 70 credits for a doctorate degree. In her opinion these degrees would improve her ability to increase her salary significantly. Her plan was to work full time while attending classes on a part time basis. At the time of the trial, however, she had not made an application to any graduate school and had not yet even taken the graduate record examination.

In the present case the orally presented plan is sparce on details, but rich in aspiration. For example, there was no testimony or other evidence to show how much the foregoing degrees would increase her salary, or how much it would cost per year for her to reach her goal. Moreover, the award for eight years is based on a great deal of speculation. Candidly, however, it is logical that a master’s degree and a doctorate would increase the former wife’s income, as they would enhance her existing education in the field in which she currently works, and we thus agree with the trial court that rehabilitative alimony is appropriate. On the other hand the plan unquestionably needs to be fleshed out. We, therefore, affirm an award of rehabilitative alimony, but not the amount or time period for which it should be awarded. We remand to the trial court to revisit these unresolved issues after a new evidentiary hearing. While we certainly do not require it, this might be an instance where rehabilitative alimony should be tied to time-performance standards, such as taking the graduate record exam, gaining entrance into graduate school, and obtaining the master’s degree within specific outside time limits.

III. Propriety of an Award of Attorney ’,s Fees.

The final judgment requires the former husband to pay $28,906.42 to the former wife for attorney’s fees. The standard for awarding attorney’s fees in dissolution cases remains the financial need of the requesting party factored with the financial ability of the other party to pay. Price v. Price, 951 So.2d 55, 59 (Fla. 5th DCA 2007) (quoting Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (citations omitted)). The purpose of section 61.16, Florida Statutes, which governs the award of attorney’s fees in dissolution cases, is to ensure that both parties will have a similar ability to secure competent legal counsel. Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980). For this reason the most important factor in awarding attorney’s fees is the financial resources of each party. Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

One spouse does not have to “be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay [them].” Canakaris, 382 So.2d at 1205. On the other hand, this court has noted that attorney’s fees should not be awarded when the spouse has “received assets via equitable distribution or alimony, or has another income source with which to pay the attorney fees without diminishing the party’s standard of living or depleting that party’s assets.” Kelly v. Kelly, 925 So.2d 364, 368 (Fla. 5th DCA 2006). The trial court should make its determination regarding attorney’s fees “after the dissolution proceeding has concluded, based upon the financial situation in which it has left the parties.” Id. (citing Driscoll v. Driscoll, 763 So.2d 1189 (Fla. 4th DCA 2000)).

Here, the former -wife has received sufficient assets as a result of the dissolution so that it cannot be said that there is a requirement for the former husband to pay this part of the former wife’s attorney’s fees. Given the asset distribution, it is clear that both parties had a similar ability to secure competent legal counsel (and, parenthetically, did so). Accordingly, we conclude that the trial court abused its discretion in the award of $28,906.42 in fees to the former wife, and reverse in that respect. See (Stern v. Chovnick, 914 So.2d 524 (Fla. 4th DCA 2005); Ondrejack v. Ondrejack, 839 So.2d 867, 872 (Fla. 4th DCA 2003)).

IV. Conclusion.

While the former husband has sought relief with respect to other aspects of the final judgment, we find no merit in any of these positions. Accordingly, we reverse the final judgment of dissolution of marriage with regard to the limitation on visitation of the children of this marriage with the former husband which requires him not to expose the children to his current wife, and with respect to the award of attorney’s fees. We also reverse the award of rehabilitative alimony, and remand for a new evidentiary hearing on amount and length of the award. Finally, we remand for clarification with respect to the extent of summer visitation. Otherwise, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

COHEN, J., and PLEUS, JR., R., Senior Judge, concur.

      . This court reversed the trial court's order requiring husband to pay wife's attorney's fees because husband would be “in no bettcr position to pay [wife's] attorney's fees than she [would] be in after the divorce.”


text:
    A.S.C., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3996.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2009.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, A.S.C. (aged 15), was chai'ged in a petition for delinquency with disorderly conduct in violation of section 877.03, Florida Statutes (2007), and with disruption or interference with the lawful administration of an educational institution in violation of section 877.13, Florida Statutes (2007). At the conclusion of the State’s case the defense moved for a judgment of dismissal based on the failure of the State to prove that the actions and words used by A.S.C. constituted a violation of section 877.03. The trial court denied the motion, and A.S.C. was found to have committed both of the charged delinquent acts at the conclusion of the adjudicatory hearing. We affirm without further comment the conviction of disruption or interference with an educational institution. We reverse, however, the conviction of disorderly conduct because of the absence of evidence that A.S.C. was trying to incite a crowd or that a crowd had gathered and presented a safety risk.

The specific issue before us is whether the trial court erred in denying the motion for judgment of dismissal. We review the denial of such a motion using a de novo standard. In doing so, we view the evidence in the light most favorable to the State. See J.A.S.R. v. State, 967 So.2d 1050 (Fla. 5th DCA 2007); A.P.R. v. State, 894 So.2d 282 (Fla. 5th DCA 2005).

Section 877.03 defines and proscribes disorderly conduct, as follows:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct shall be guilty of a misdemeanor of the second degree....

In State v. Saunders, 339 So.2d 641 (Fla.1976), the Florida Supreme Court construed this statute narrowly so that it could withstand constitutional challenge. See Miller v. State, 667 So.2d 325 (Fla. 1st DCA 1995). Section 877.03 was limited by the high court so that it applies only to words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. In addition, it applies to words, known to be false, reporting some physical hazard in circumstances where such a report would create a clear and present danger of bodily harm to others. In brief, the statute was read to prohibit “fighting words” or shouting “fire” in a crowded theater. “Fighting words,” according to the United States Supreme Court, are those likely to cause an average person to whom they are addressed to fight. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

More importantly, for purposes of the present case, the courts of Florida have consistently held that unenhanced speech alone will not support a conviction for disorderly conduct. See, e.g., Barry v. State, 934 So.2d 656, 658 (Fla. 2d DCA 2006); Macon v. State, 854 So.2d 834, 837 n. 1 (Fla. 5th DCA 2003). Apropos to the case before us, our sister court in the First District held in Miller, 667 So.2d at 328, as follows:

Although appellant’s voice was loud and his language may have been offensive, there is nothing in the record to indicate that his conduct incited others to breach the peace or posed an imminent danger to others. Pursuant to Saunders and its progeny, to constitute a violation of section 877.03, there must be evidence of something more than loud or profane language or a belligerent attitude.

In the present case A.S.C. may have been loud, and she may have been profane, but the record, viewed de novo, is devoid of evidence that her words either incited or were even intended to incite others to breach the peace, or posed an imminent danger to others. We conclude, therefore, that the trial court should have granted A.S.C.’s motion for judgment of dismissal with respect to the disorderly conduct charge. Accordingly, we affirm the judgment and sentence with respect to the charge of disrupting an educational institution, but reverse as to the charge of disorderly conduct, and vacate the judgment and sentence as to that charge. We remand for a new disposition hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

PALMER, C.J. and LAWSON, J., concur.


text:
    Kimberly A. GRIDER-GARCIA, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE, etc., et al., Respondent.
    No. 5D08-3793.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2009.
    Steven J. Kirschner, of Steven J. Kir-schner, P.A., Winter Park, for Petitioner.
    Robert A. Kingsford, of Marshall, Den-nehey, Warner, Coleman & Goggin, Orlando, for Respondent.
   PER CURIAM.

Petitioner, Kimberly A. Grider-Garcia [“Petitioner”], seeks a writ of certiorari from this Court quashing two separate orders of the lower court. The first order was rendered October 9, 2008, and denied Petitioner’s renewed motion to amend the complaint. The second order was rendered October 2, 2008, and denied Petitioner’s “Motion to Strike Defendant’s ‘Requests for Admissions to Plaintiff, Jose Juan Garcia’, Objection to the Set of Request for Admissions and Motion for Protective Order.” The petition for certiorari must be denied because any error would be fully remediable on plenary appeal.

This proceeding does, however, give rise to the question whether Petitioner is entitled to a provisional award of fees for this proceeding tied to the ultimate determination whether she is the prevailing party in the suit against her insurer pursuant to section 627.428, Florida Statutes.

We have only located one district court case where the issue of appellate attorney’s fees was addressed in a certiorari proceeding involving review of a non-final order, General Accident Insurance Co. v. Packal, 512 So.2d 344, 345 (Fla. 4th DCA 1987). In Packal, the respondent filed a timely motion for appellate attorney’s fees in a certiorari proceeding where the respondent did not ultimately prevail in the certiorari proceeding itself. After conditionally granting the motion, the Fourth District later concluded that “no appellate attorney’s fees should [be] awarded to [respondent] because [respondent] was not a prevailing party in [the certiorari] proceeding.” Id. at 346.

Subsequently, in Aksomitas v. Maharaj, 771 So.2d 541, 542 (Fla. 4th DCA 2000), the Fourth District receded from its decision in Packal, while using the provisions of section 627.428, Florida Statutes, to illustrate its basis for receding. The Fourth District stated in pertinent part:

When prevailing party attorney’s fees are assessed at the conclusion of litigation, the trial court determines “which party has in fact prevailed on the significant issues tried before the court.” Moritz v. Hoyt Enter., Inc., 604 So.2d 807, 810 (Fla.1992). Trial courts, however, have no authority to award prevailing party attorney’s fees for an appeal unless specifically authorized to do so by the appellate court. Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995); Travelers Indem. Co. of Am. v. Morris, 390 So.2d 464 (Fla. 3d DCA 1980). Appellate courts are thus required to rule on motions for prevailing party attorney’s fees without knowing who will ultimately prevail. This court grants those motions contingent on that party prevailing, leaving the determination of the amount to the trial court, as is authorized by rule 9.400(b).
We now recognize that the inflexible rule of Packal is contrary to the public policy behind statutes which provide for prevailing party attorney’s fees. For example, section 627.428, Florida Statutes, provides that an insured who prevails in litigation against an insurer is entitled to recover attorney’s fees from the insurer. The purpose of the statute is to make the insured whole, i.e., in the same position the insured would had [sic] been if the insurer had paid the claim without litigation. Clay v. Prudential Ins. Co. of Am., 617 So.2d 433 (Fla. 4th DCA 1993), citing Insurance Co. of N. Am. v. Lexow, 602 So.2d 528 (Fla.1992)(purpose of section 627.428 is to “reimburse successful insureds for their attorney’s fees.”). Under Packal, however, if the insured loses an appeal during the litigation, but ultimately recovers under the policy, the insured cannot recover fees for services rendered on the appeal. The policy behind the statute, which is to make the insured whole, is thus frustrated.

Id. at 544 (emphasis added). The Fourth District then conditionally granted appellate attorney’s fees to the party who did not prevail in the non-final appellate proceeding itself.

In Nationwide Mutual Insurance Co. v. Nu-Best Diagnostic Labs, Inc., 810 So.2d 514, 515 (Fla. 5th DCA 2002), this Court expressly disagreed with the Fourth District’s conclusion in Aksomitas as it related to the conditional granting of section 627.428 appellate attorney’s fees to a party that did not prevail in the appellate proceeding. In doing so, this Court applied a strict construction to the language of section 627.428 and concluded:

In the instant case, Nu-Best, as assign-ee of National’s insureds, seeks a conditional awarcT of fees based on section 627.428, Florida Statutes, which provides for awards of appellate fees to insureds who prevail against the insurer:
627.428. Attorney’s fee
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or; in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
(emphasis added).
The underlined words control the outcome of Nu-Best’s motion. Nu-Best is not entitled to a conditional award of fees because this is not an appeal “in which the insured or beneficiary prevails.”

Id. at 516. This Court’s opinion in Nu-Best was approved by the Florida Supreme Court in Brass & Singer, P.A. v. United Auto. Insurance Co., 944 So.2d 252 (Fla.2006). Given the courts’ narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins.

PETITION DENIED; MOTION FOR FEES DENIED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.


author: THOMAS, J.

text:
    James WALKER, Petitioner, v. RIVER CITY LOGISTICS INC., and CNA Claim Plus, Respondents.
    No. 1D09-0780.
    District Court of Appeal of Florida, First District.
    June 12, 2009.

      Bill McCabe, Longwood, for Petitioner.
    David C. Halpern of Eraclides, Johns, Hall, Gelman, Johannessen, and Goodman, P.A., Aventura, for Respondents.
   THOMAS, J.

Petitioner/Claimant seeks review of an order disqualifying his workers’ compensation counsel below for possession of documents deemed privileged. For the reasons explained below, we grant the petition.

This court will grant a certiorari petition when an interlocutory order “departs from the essential requirements of law, causing material injury of an irreparable nature which cannot be remedied on appeal from a final order.” Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169, 1176 (Fla. 1st DCA 2008) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)). The irreparable harm prong of this test should be considered first, as it is a condition precedent to invoking certiorari jurisdiction. Id.; see Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998).

As Claimant points out, because disqualification of counsel denies a party its counsel of choice, such disqualification constitutes a material injury not remediable on plenary appeal. See, e.g., Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So.2d 774, 775 (Fla. 2d DCA 2007); Akrey v. Kindred Nursing Ctrs. E., LLC, 837 So.2d 1142, 1144 (Fla. 2d DCA 2003). Disqualification of counsel is an extraordinary remedy. See Yang Enters., Inc. v. Georgalis, 988 So.2d 1180, 1183 (Fla. 1st DCA 2008). Accordingly, this court reviews an order of disqualification by certiorari and, upon a showing that the order departed from the essential requirements of law, this court may issue the writ. See, e.g., Seaman, 959 So.2d at 775; Akrey, 837 So.2d at 1144.

The JCC’s order departed from the essential requirements of law. The employer/Carrier’s (E/C) motion to disqualify counsel contains statements that the E/C disclosed privileged documents to Claimant’s public defender in another proceeding. The E/C has not argued that this disclosure was inadvertent. The E/C’s voluntary disclosure of the documents waived the privilege. See § 90.507, Fla. Stat. (2006). Because the documents were no longer privileged, the JCC’s order disqualifying Claimant’s workers’ compensation counsel below departed from the essential requirements of law.

The petition for writ of certiorari is GRANTED.

DAVIS and BROWNING, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    ST. JOSEPH’S HOSPITAL, Appellant, v. William COX and Martha Cox, Appellees. Eric Castellucci, M.D., and Emergency Medical Associates of Florida, L.L.C., Appellants, v. William Cox and Martha Cox, Appellees.
    Nos. 2D07-1038, 2D07-1471.
    District Court of Appeal of Florida, Second District.
    June 17, 2009.
    Rehearing Denied Aug. 25, 2009.

      Rodney W. Morgan and Roland J. Lamb of Morgan, Lamb, Goldman & Valles, P.A., Tampa, and Kimberly A. Ashby of Aker-man Senterfitt, Orlando, for Appellant St. Joseph’s Hospital.
    Mark Hicks, Shannon Kain, and Irene Porter of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Edward M. Copeland IV of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellants Eric Castellucci, M.D., and Emergency Medical Associates of Florida, L.L.C.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami, Alan F. Wagner of Wagner Vaughan & McLaughlin, Tampa, and Weldon Earl Brennan of Brennan, Holden & Kavouklis, P.A., Tampa, for Appellees.
   NORTHCUTT, Chief Judge.

At the age of sixty-nine, William Cox suffered a stroke with devastating consequences. He contends that the effects of the stroke would have been prevented or reversed if he had been given a clot-busting drug when he was seen in the emergency room at St. Joseph’s Hospital. Mr. Cox and his wife sued the hospital, the emergency room doctor, and the doctor’s medical practice. The defendants have appealed following a jury verdict that awarded the Coxes substantial damages. They raise a number of issues, but we find it necessary to address only the trial court’s refusal to grant the defense motion for a directed verdict. Because the Coxes failed to meet their burden of proving causation, the defendants were entitled to a directed verdict. Accordingly, we reverse the judgment entered against them.

The testimony at trial provided an overview about the treatment of strokes. Whereas a hemorrhaging stroke is caused by bleeding on the brain, an ischemic stroke — the kind suffered by Mr. Cox- — is caused by a blood clot. Doctors are able to treat ischemic strokes with a tissue plasminogen activator drug, referred to as tPA, which dissolves blood clots. However, the drag must be administered within a short window of opportunity, no more than three hours after the onset of the stroke if administered intravenously and no more than six hours after onset if administered intra-arterially. Therefore, in order to consider using tPA, the treatment team must know when the stroke began. A further complication is that tPA therapy poses a significantly increased risk for hemorrhaging.

On the morning of his stroke, Mr. Cox was at a friend’s car dealership. He appeared normal when he first spoke with a visitor, but he was incapacitated and unable to speak or walk when the visitor returned fifteen to twenty minutes later. This person thus was able to narrow the onset of Mr. Cox’s stroke to a fifteen- or twenty-minute period, and this information apparently was relayed to the responding emergency medical personnel. However, the ER staff and doctor never obtained this information. Consequently, although Mr. Cox arrived at the hospital within the window for administering' tPA, the ER doctor never considered treating Mr. Cox’s stroke in that fashion because he did not know the time of onset.

Another fact pertinent to this case was that Mr. Cox’s medical records indicated he had suffered a subdural hematoma approximately two-and-a-half years before his stroke. Given the increased risk for hemorrhaging associated with tPA, the drug is contraindicated for, among others, any patient who previously has suffered a subdural hematoma.

The case was submitted to the jury under section 768.13(2)(b)(1), Florida Statutes (2000), which provides for immunity from civil liability when a patient entered a hospital through the emergency room unless damages resulted “from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.” The Coxes claimed that the emergency room doctor and staff acted with reckless disregard by failing to determine the stroke’s time of onset and, lacking this critical information, failing to administer tPA to Mr. Cox. They maintained that the drug would have prevented or reversed the effects of Mr. Cox’s stroke.

In moving for a directed verdict, the hospital and ER doctor argued that the Coxes failed to prove that Mr. Cox more likely than not would have benefitted from tPA. We review this issue de novo, evaluating the evidence and inferences therefrom in the light most favorable to the nonmoving party. Sims v. Cristinzio, 898 So.2d 1004 (Fla. 2d DCA 2005); see also Hancock v. Schorr, 941 So.2d 409 (Fla. 4th DCA 2006).

The plaintiffs’ evidence on causation came from two sources: trial testimony by Dr. Nancy Futrell and an opinion letter, later recanted, from Dr. Eddy Berges, a neurologist who treated Mr. Cox. Dr. Futrell is board certified in psychiatry and neurology with a particular specialty in strokes. She testified that she has given tPA forty to fifty times and that, on three occasions, she has given it to patients with contraindications. She testified about the successful outcomes for those three patients, but she said nothing about the results in her other cases.

On cross examination, Dr. Futrell admitted that she had never to her knowledge given tPA to a patient with a prior intra-cranial hemorrhage. Still, she questioned the accuracy of the reports indicating that Mr. Cox previously had suffered a subdural hematoma. She had not been able to review the older CT scans on which those reports were based because apparently they had been long since destroyed. But, when reviewing the CT scan taken at the time of Mr. Cox’s stroke, she did not see any signs that he had had a significant subdural hematoma. Therefore, she did not think he faced an increased risk with the use of tPA.

Dr. Futrell testified that she believed “to a high degree of medical probability” that “Mr. Cox, had he received tPA, would have had a very good recovery and have minimal or no neurologic deficit.” She based her conclusion on “a combination of what we can find in the medical literature and clinical experience that [she has] from having given the drug and seeing which patient it works on and, of course, we have the additional resource of our colleagues that we know what’s happened to their cases.” She did not elaborate further. Dr. Futrell then reiterated that her opinion was based on all she knows and all she has seen about this case. The singular fact she noted about Mr. Cox was that his brain appeared younger than his age because it showed minimal or no evidence of the shrinkage that typically occurs with aging.

On cross examination, the medical literature was discussed. Defense counsel questioned Dr. Futrell about the “NINDS study,” which Dr. Futrell acknowledged was the seminal 1995 study that first established the efficacy of tPA therapy for the treatment of ischemic strokes. Dr. Futrell concurred in the NINDS study results, which showed that twenty percent of stroke patients recover without any medication and that the rate of successful outcomes increases to thirty-one percent when tPA is given.

In his initial opinion letter, Dr. Berges asserted that Mr. Cox had been a suitable candidate for tPA treatment and that he likely would have recovered from his stroke if the treatment had been given. Dr. Berges withdrew his opinion when he learned of the medical record of Mr. Cox’s subdural hematoma.

In negligence actions, Florida courts follow the “more likely than not” standard of causation, i.e., they require proof that the negligence “probably caused” the plaintiffs injury. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). “‘A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ ” Id. (quoting Prosser, Law of Torts § 41 (4th Ed.1971) (footnotes omitted)).

A medical expert’s opinion is not exempt from this rule. The supreme court has explained that “[t]he opinion of an expert is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion.” Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960) (approving rejection of worker’s compensation claim when one doctor connected claimant’s condition with occupation but that doctor’s opinion was based on pure speculation).

It has been said that the more-likely-than-not standard for causation is satisfied with evidence of a “fifty-one percent or better chance.” Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 328 (Fla. 1st DCA 2002). In this case, Dr. Futrell was the only expert witness at trial who testified that Mr. Cox probably would have had a good recovery from the stroke if he had received tPA therapy. We have carefully reviewed her testimony, but we can glean no facts that support her assertion that Mr. Cox would have had a fifty-one percent or greater chance of benefitting from tPA treatment.

Even assuming that Mr. Cox was an ideal candidate for the treatment — thus indulging for these purposes Dr. Futrell’s doubts that the treatment was contraindicated in Mr. Cox’s case because he previously suffered a subdural hematoma — -we find nothing in Dr. Futrell’s testimony or anywhere else in the evidence to suggest that Mr. Cox’s chances of benefiting from tPA therapy exceeded those of other patients. Dr. Futrell herself never testified that she had enjoyed a greater success rate with tPA than that documented in the NINDS study, i.e., thirty-one percent. She never compared any aspects of Mr. Cox’s physical condition to those of patients who had successful interventions in order to suggest that he, as opposed to sixty-nine percent of all patients, was predisposed to a positive outcome from tPA therapy. In short, Dr. Futrell’s opinion on causation was purely speculative. See id. (reversing denial of directed verdict when expert’s opinion on causation was based on speculation). r

Dr. Berges’ initial opinion letter also suffered from the same fatal flaw, in that he offered nothing to support his bare assertion that Mr. Cox more likely than not would have recovered if he had been treated with tPA. See Harris, 122 So.2d at 563 (“ ‘[T]he basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.’ ”) (quoting Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957)). Dr. Berges later rejected any suggestion that he would have administered tPA to someone with Mr. Cox’s medical history. But even notwithstanding this recantation, the doctor’s initial opinion that Mr. Cox was injured by his failure to receive tPA was speculative and therefore insufficient to establish causation.

The cases cited by the Coxes are distinguishable. In Marsh v. Valyou, 977 So.2d 543 (Fla.2007), the court addressed the admissibility of evidence under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Hughes v. Slomka, 807 So.2d 98 (Fla. 2d DCA 2002), Lawrinson v. Bartruff, 600 So.2d 22 (Fla. 2d DCA 1992), and Olsten Health Services, Inc. v. Cody, 979 So.2d 1221 (Fla. 3d DCA 2008), the plaintiffs expert testimony on causation was not constrained by statistical evidence revealing success rates of less than fifty percent, as in this case. And the motion for directed verdict in Goss v. Permenter, 827 So.2d 285 (Fla. 5th DCA 2002), challenged the force of conflicting evidence on the question of whether the doctor had deviated from the standard of care — the doctor claimed that he had not been informed about the patient’s condition but a nurse’s testimony and her notes in the medical record provided a basis for the jury to reject the doctor’s testimony. That is distinguishable from a case such as this one, in which the best known rate for medical success is less than fifty percent.

In the absence of competent evidence to prove that the failure to treat Mr. Cox with tPA more likely than not affected his outcome, the trial court should have granted the defense motion for a directed verdict. Under these circumstances, we must reverse the judgment.

Reversed.

KELLY, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . The "NINDS study" refers to the National Institute of Neurological Disorders and Stroke Recombinant Tissue Plasminogen Activator Stroke Study Group, the conclusions of which were reported in the December 14, 1995, issue of the New England Journal of Medicine.


author: WHATLEY, Judge.

text:
    Robert WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4421.
    District Court of Appeal of Florida, Second District.
    June 17, 2009.

      Robert Watkins, pro se.
   WHATLEY, Judge.

Robert Watkins challenges the order of the postconviction court denying his motion to vacate, set aside, or correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the order and remand for further proceedings.

In December 2000, the trial court sentenced Watkins to prison in trial court case number 99-18436. In May 2001, Watkins was also sentenced to prison in trial court case number 00-14062. The trial court ordered that the sentence in 00-14062 be served consecutively to the sentences imposed in 99-18436. In December 2004, Watkins filed a motion to correct illegal sentence in 99-18436. In response to the motion, the postconviction court resen-tenced Watkins in that case on September 12, 2005. However, in April of 2006, Watkins filed a motion for clarification of sentence in 99-18436. In the motion for clarification, Watkins contended that when it resentenced him, the postconviction court ordered that the sentences in 99-18436 were to run concurrently with the sentence imposed in 00-14062 but the Department of Corrections (DOC) had misinterpreted the postconviction court’s sentencing scheme and determined that the sentence in 00-14062 was to run consecutively to the sentences imposed in 99-18436. The post-conviction court denied the motion for clarification, finding that in resentencing Watkins in 99-18436, the prior postconviction court did not order that the sentences in the two trial court cases be served concurrently.

In the first ground in the present rule 3.800(a) motion, Watkins argued that the prior postconviction court erred in denying the motion to clarify. The postcon-viction court dismissed the claim without prejudice to refile because Watkins did not allege that it could be determined from the face of the record. However, Watkins’ claim that the DOC incorrectly interpreted his sentences is not cognizable in a motion for clarification. See Edward v. State, 966 So.2d 1012, 1013 (Fla. 4th DCA 2007). Furthermore, the claim is not cognizable in a rule 3.800(a) motion. See Swinney v. State, 757 So.2d 1218, 1218 (Fla. 2d DCA 2000). Any complaint to the effect that the DOC has misinterpreted Watkins’ sentences must be addressed through administrative procedures and, if necessary, by a petition for writ of mandamus in Leon County. Id.; Stovall v. Cooper, 860 So.2d 5, 7-8 (Fla. 2d DCA 2003) (en banc). We therefore reverse that portion of the order dismissing without prejudice the claim alleged in ground one and direct the post-conviction court on remand to dismiss the claim with prejudice.

In ground two of the rule 3.800(a) motion, Watkins alleged that the trial court illegally imposed a prison release reoffender (PRR) sentence in count one of 99-18436, wherein he was convicted of burglary of a dwelling, because the jury did not specifically find that the dwelling was occupied. This claim is cognizable in a rule 3.800(a) motion. See Saunders v. State, 823 So.2d 829 (Fla. 4th DCA 2002). Furthermore, as in Saunders, the commission of the offense in 99-18436 took place before the legislature amended the PRR statute to add burglary of an unoccupied dwelling to the list of offenses qualifying a defendant for a PRR designation. The postconviction court misinterpreted this claim, finding that Watkins was attempting to raise a factual challenge as to whether the dwelling was occupied. In doing so, it erroneously dismissed this claim without prejudice because Watkins did not allege that his entitlement to relief could be determined from the face of the record. Accordingly, we reverse that portion of the order denying the claim raised in ground two of the motion. On remand, the post-conviction court shall address the merits of the claim.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ., Concur.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. James DAVIS, Appellee.
    No. 4D08-1216.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

This is an appeal by the State of an order dismissing a felony DUI charge against defendant James Davis. The dismissal was entered as a sanction for the State’s loss of the video recording of Davis’s performance of roadside sobriety tests. Finding that dismissal was too harsh under the circumstances present here, we reverse and remand for further proceedings.

The defendant was stopped at a DUI checkpoint in Pembroke Pines. The probable cause affidavit reflects that Officer Charles Herring of the Pembroke Pines Police Department observed the following: the smell of alcohol on the defendant’s breath; the defendant’s eyes were bloodshot and his face flushed; the defendant’s speech was slurred and his movements slow and deliberate; and the defendant had difficulty retrieving his wallet. The probable cause affidavit also indicates that the defendant admitted to consuming two beers and that he was taking oxycodone. As a result, Officer Herring asked the defendant to perform roadside sobriety tests. These roadside sobriety tests were recorded by the digital video camera in the officer’s car. The defendant refused to submit to a breathalyzer.

When the State failed to provide the defense with a copy of the video recording of the roadside sobriety tests, the defendant filed a motion to compel its production, which was granted. When the State still failed to provide the defense with a copy of the video, the defendant filed a motion seeking dismissal of the felony DUI. At a subsequent evidentiary hearing on the motion, the officer testified that the defendant’s roadside sobriety test had accurately been recorded to the system’s hard drive, but that for reasons he could not explain, the recording was lost during the transfer of the recording from the hard drive to a DVD. The officer insisted that he had viewed the recording during his attempt to transfer it to the DVD, it was consistent with his testimony and it demonstrated that the defendant was impaired. The defendant took the position that the recording would have impeached the officer’s testimony that he was impaired and would have been helpful to the defendant. With this evidence before it, the trial court concluded that, while there was no bad faith on the part of the police surrounding the loss of the recording, due process concerns required the dismissal of the felony DUI charge as the defendant was prejudiced by the loss of the evidence “since there exists no comparable evidence.”

Where lost or unpreserved evidence is “material exculpatory evidence,” the loss of such evidence is a violation of the defendant’s due process rights and the good or bad faith of the State is irrelevant. State v. Muro, 909 So.2d 448, 452 (Fla. 4th DCA 2005); see also Kelley v. State, 486 So.2d 578, 581 (Fla.1986) (“ ‘[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.’ ” (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963))). Lost or unpreserved evidence is “material” in this sense “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” State v. Sobel, 363 So.2d 324, 327 (Fla.1978) (citing United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

In the instant case, we find no error in the trial court’s conclusion that the lost video of the defendant’s roadside sobriety tests was “material” and that the defendant was prejudiced by the tape’s loss. The defendant refused to take a breathalyzer and, consequently, whether he was driving while under the influence must be determined by resort to whether he demonstrated physical signs of impairment. An evaluation of an individual’s impairment is necessarily somewhat subjective and the tape would have provided a jury with the opportunity to assess for itself whether the defendant was impaired. The significance of a tape of a DUI stojo vis-a-vis the testimony of the officer and the defendant was addressed by the Oregon appellate court in State v. Zinsli, 156 Or.App. 245, 966 P.2d 1200 (1998):

In general, the prosecution of a DUII [driving under the influence of intoxicants] case depends heavily on the opinion of the arresting officer in determining whether a defendant’s “mental or physical faculties were adversely affected ... to a noticeable or perceptible degree.” State v. Gaylor, 19 Or.App. 154, 163-64, 527 P.2d 4 (1974). Here, in the absence of the videotape, a jury would have only ... [the arresting officer’s] interpretation of defendant’s performance of the FSTs [field sobriety tests], demeanor, appearance and speech patterns, which, as noted, were to some extent not noticeably affected by alcohol. Of course, defendant may, but does not have to, offer his own version of the events to rebut [the arresting officer’s] conclusions and the Intoxilyzer results. However, defendant’s testimony is not an acceptable substitute, because defendant’s testimony carries the risk that the jury will view that testimony as extraordinarily self-serving, whereas that risk is not present in the videotape evidence. Accordingly, the videotape evidence is unique because it would provide defendant with an objective video replay of the events from which a jury could draw its own conclusions.

Id. at 1205 (emphasis omitted).

This, then, brings us to the sanction imposed — dismissal. The State’s loss of material exculpatory evidence need not always result in dismissal of the criminal charge. See Lancaster v. State, 457 So.2d 506 (Fla. 4th DCA 1984) (holding defendant’s due process rights were violated by loss of burned vehicle underlying an arson charge, reversing conviction, and remanding with instructions that defendant be retried, but that, at retrial, State was barred from calling as witnesses the experts who had examined the truck); State v. Herrera, 365 So.2d 399, 401 (Fla. 3d DCA 1978) (noting that “state’s intentional or negligent suppression of material evidence favorable to the defendant ... constitutes a denial of due process” and “may call for a new trial, the exclusion of certain of the state’s evidence at trial, or the dismissal of the prosecution against the defendant”). And, while it is true that a trial court’s choice of sanction is to be reviewed on appeal for an abuse of discretion, dismissal of a charge is “an extreme sanction that should be used with caution” and should be limited to “cases where no other sanction can remedy the prejudice to the defendant,” see State, v. Carpenter, 899 So.2d 1176, 1182 (Fla. 3d DCA 2005). That is not the case here and, consequently, we hold that dismissal of the charge was too harsh a sanction.'

In so holding, we are aware of the decision in State v. Powers, 555 So.2d 888 (Fla. 2d DCA 1990). There, the police had failed to record the defendants’ field sobriety tests. The defendants claimed that the failure to record the sobriety tests required dismissal of the DUI charges as the police should have recorded the sobriety tests and their failure to do so was the product of bad faith, i.e., a belief that recording field sobriety tests did not help in prosecuting DUIs and was, in fact, favorable to the defense. The county court dismissed the charges. The Second District reversed, holding that dismissal was not required as the police had no duty to record the sobriety tests. The court then went further, stating that, had the field sobriety tests been recorded and the recordings not been preserved, it would have affirmed the dismissals as such evidence was “material” and its loss was a violation of the defendants’ due process rights regardless of any bad faith on the part of the State. In so concluding, the court wrote that the defendants had presented evidence indicating that the tapes would have impeached the field sobriety test reports and the testimony of the officers. The nature of this evidence is not, however, apparent from the opinion. The Second District’s statements regarding the propriety of dismissal in the face of unpreserved field sobriety tests are dicta and nothing in the opinion indicates that the court considered whether lesser sanctions would have sufficed.

The State suggests that an appropriate lesser sanction is to simply try the case without informing the jury that the tape existed. We agree with the defendant, however, that this provides the defendant no remedy at all for the loss of the tape. There are, however, other possibilities. One is for the trial court to preclude the State from utilizing the roadside sobriety tests. See Lancaster, 457 So.2d at 506. Another possibility would be instructing the jury that they may infer that the lost evidence is exculpatory. See, e.g., State v. Leslie, 147 Ariz. 38, 708 P.2d 719, 728 (1985) (en banc) (stating that defendant is entitled to have the jury instructed that it “may infer that the true fact is against the interest of the state” where the state fails to preserve material evidence that may have exonerated the defendant) (citation omitted); Deberry v. State, 457 A.2d 744, 754 (Del.1983) (requiring State to stipulate on retrial that if defendant’s clothing, lost by the State, were introduced, it would not contain any evidence incriminating him). Such an instruction would be akin to the so-called Valcin instruction given in Florida civil cases. See, e.g., Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547, 551 (Fla. 4th DCA 2005).

Having concluded that dismissal was too harsh a sanction, we reverse the order dismissing the felony DUI charge and remand the case to the trial court with instructions that it consider a sanction short of dismissal to address the loss of the tape. We leave it to the trial court to determine what lesser sanction is appropriate.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.

      . Pub. Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987).


author: FARMER, J. GERBER, J.,

text:
    Matthew PROVOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-594.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

We affirm defendant’s conviction, writing to explain why the use of the locution and/or in both the charge and a jury instruction in this case does not constitute error.

Among other things, defendant was charged with at once resisting two police officers whose names were joined in the charge by the compound conjunctive/disjunctive and/or. At trial the State presented testimony that defendant fought both officers simultaneously as they attempted to detain him for questioning about a reported incident of domestic violence.

Testimony (obviously believed by the jmy) established these essential facts. As defendant bolted from the upstairs of the apartment building, one officer (POl) yelled for him stop. When he continued to flee, the officer told another officer (P02) to head him off at a stairway. At the bottom of that stairway, defendant crashed into P02 who managed to hold onto him. Defendant strained to break away and then, as the one officer testified, “the fight was on.” At that point POl joined the fray. During the course of the ensuing fight, defendant kicked P02 in the groin and bit him on the arm, while also using a police baton to hit POl. The baton caused a serious laceration on POl’s head, which bled “profusely” according to the testimony. Eventually the officers together brought defendant under control with handcuffs and placed him under arrest.

Defendant made no objection to the charge at any time before or during trial. Nor did he object to the use of and/or in the standard jury instruction. On appeal he now argues that it was fundamental error to instruct the jury that the State could prove the single charge that he resisted POl and/or P02 by doing violence to POl and/or P02. He relies on the decisions in Wallace v. State, 724 So.2d 1176, 1181 (Fla.1998), and Love v. State, 971 So.2d 280 (Fla. 4th DCA 2008). Neither decision helps him.

Before we look at these cases, a word about the semantics of and/or is indicated. The venerable British grammarian, Henry Fowler, had this to say about and/ or:

“The ugly device of writing x and/or y to save the trouble of writing x or y or both of them is common and convenient in some kinds of official, legal, and business documents, but should not be allowed outside of them.”

Fowler’s Modern English Usage (2d ed.) at 29. Plainly, his only point is that while and/or does express a logically possible choice — namely, either or both — to him it is unstylish or “ugly”. But his condemnation is solely on aesthetic grounds, not because it fails to describe correctly the conjunctive/disjunctive possibility presented by a set of facts. Hence, as a matter of legal semantics, when the law prescribes or permits that same logical possibility, and/or may properly be employed to explain it. It may not be used, however, when the only legal choice is disjunctive, with one negating the other, or when the selection of both creates a legally intolerable ambiguity.

Passing on then to the cases, Wallace holds that defendant’s continuous violent resistance of multiple officers constitutes only one instance of resisting. Fan-enough. And here defendant was charged in a single count with continuously and violently resisting multiple officers. Under Wallace he could have been convicted for this single offense if he resisted either or both officers at the same time. There is no error in using and/or to express this thought, for it is both prescribed and permitted by law.

Because and/or correctly expressed the meaning of the statute that defendant could be found guilty of resisting with violence if he resisted either officer or both at the same time, the same conjunctive/disjunctive may properly be used in the jury instructions to convey the applicable legal rule to the jury. For that reason, Love v. State, 971 So.2d 280 (Fla. 4th DCA 2008), is inapt because the error in that case lay in attempting so to instruct the jury as to two separate crimes of battery on two different officers. Again, this case involves only a single count of resisting multiple officers with violence, which could be proved by specifying either or both.

Affirmed.

POLEN, J., concurs.

GERBER, J.,

specially concurring.

This latest and/or issue has arisen because the standard jury instruction for the charge of resisting officer with violence, upon which the trial court apparently relied below, has been outdated since the supreme court’s holding in Wallace v. State, 724 So.2d 1176 (Fla.1998).

As the majority opinion states, Wallace holds that a defendant’s continuous violent resistance of multiple officers constitutes only one instance of resisting. Id. at 1181. However, the standard jury instruction for the charge of resisting an officer with violence does not contemplate the possibility that one instance of resisting may involve multiple officers. Instead, the standard jury instruction recommends that a trial court insert the name of only one officer as the “victim” of the offense:

21.1 RESISTING OFFICER WITH VIOLENCE
§ 843.01, Fla. Stat.
To prove the crime of Resisting Officer with Violence, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do [him][her] violence] [doing violence to [him][her]].
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
3. At the time, (victim) was [an officer] [a person legally authorized to execute process],
4. At the time, (Defendant) knew (victim) was [an officer] [a person legally authorized to execute process].
The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.
“Offering” to do violence means threatening to do violence.

Because the standard jury instruction does not contemplate the possibility of there being more than one “victim” of the single offense, it is understandable that trial courts have had difficulty applying the standard instruction to the multiple officer situation. See Love v. State, 971 So.2d 280, 288 (Fla. 4th DCA 2008) (“The ‘and/or’ instruction on the resisting count presents similar problems.”).

To fit both the single officer and multiple officer situations, we recommend that the Committee on Standard Jury Instructions for Criminal Cases propose to the supreme court the following revisions to the standard jury instruction:

21.1 RESISTING OFFICER WITH VIOLENCE
§ 843.01, Fla. Stat.
To prove the crime of Resisting Officer with Violence, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) any officer by [offering to do [him][her] violence] [doing violence to.[him][he¥j] to any officer.
2. At the time, (victim) was the [officer tvas] [officers were] engaged in the [exec-ution-of-legal process] [lawful execution of a legal duty],
3. At the time, (victim) the [person] [persons] to whom (Defendant) [offered to do violence] [did violence] was [was an officer] [were officers ] [a-person-legally^authorized to execute, process],
4. At the time, (Defendant) knew (victim) the [person] [persons] to whom (Defendant) [offered to do violence] [did violence] was [was an officer] [were officers ] [a-person legally authorized to execute process].
The court now instructs you that every (name of official position of victim officer or officers designated in charge) is an officer within the meaning of this law.
“Offering” to do violence means threatening to do violence.

Although these proposed revisions obviously could not prevent the and/or issue from arising in this case, they may prevent the issue from arising in future cases.

      . The Stale charged (1) resisting the two named officers with violence, (2) aggravated battery on one, and (3) depriving an officer of a means of protection or communication. The jmy found him guilty only of the first two charges.

      . The juiy instruction read as follows:
      "To prove the crime of Resisting an Officer with violence, the State must prove the following 3 elements beyond a reasonable doubt:
      1 .[Defendant] knowingly and willfully resisted or obstructed or opposed [POl] and/or [P02] by doing violence to [POl] and/or [P02],
      2. At the time [POl] and/or [P02] were engaged in the lawful execution of a legal duty. And
      3. At the time [POl] and [P02] were Police Officer[s-? ].”

      . See also Cochrane v. Florida East Coast Ry., 107 Fla. 431, 145 So. 217, 218-19 (1932) ("In the matter of the use of the alternative, conjunctive phrase 'and/or,' it is sufficient to say that we do not hold this to be reversible error, but we take our position with that distinguished company of lawyers who have condemned its use. It is one of those inexcusable barbarisms which was sired by indolence and dammed by indifference.... I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English”).

      . See Knight v. State, 819 So.2d 883 (Fla. 4th DCA 2002) (so explaining Wallace).

      . We agree entirely with Judge Gerber’s concurring opinion and urge the adoption of the changes to the Standard Jury Instruction he has proposed.


author: POLEN, J. GROSS, J., HAZOURI, J.,

text:
    John Robert COTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-515.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied Aug. 11, 2009.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant John Robert Cote was charged by information with one count of possession of cocaine and one count of possession of drug paraphernalia. He filed a motion to suppress evidence, and a hearing was held on that motion. According to the sole witness, Detective Joshua Mijal of the City of Fort Lauderdale Police Department, an anonymous complaint came in regarding narcotics activity at 2895 NE 22nd St. Apt. 303 in Fort Lauder-dale. The caller informed that there was constant heavy traffic at the apartment and that drug sales were taking place.

Detectives Mijal and Maldonado responded to that address and noticed that the door to the apartment was open. Cote was in the kitchen, two to five feet in front of them, wiping down the counter with a paper towel. Detective Mijal also saw a digital scale on the kitchen counter with a white powdery substance and a straw on it. Based on his training, the detective recognized the powdery substance as “suspect powder cocaine” and immediately entered the apartment and handcuffed Cote.

Detective Mijal testified that he entered the apartment without first seeking a warrant because he did not want Cote to wipe off the substance from the digital scale and destroy the potential evidence. The two detectives then searched Cote and found two bags of cocaine in his pants pocket. Cote also admitted that earlier that day he snorted some of the cocaine.

At the conclusion of Detective Mijal’s testimony, Cote argued that the evidence should be suppressed because Detective Mijal failed to corroborate the anonymous tip and to obtain a warrant to search the apartment. The State responded that exigent circumstances existed in this case to excuse the lack of a warrant because Detective Mijal entered the apartment to prevent Cote from potentially destroying the evidence.

The trial court denied the motion to suppress. Thereupon, Cote pled no contest as part of a plea agreement with the State. Adjudication was withheld, and Cote was placed on two concurrent terms of twelve months probation. Cote also reserved his right to appeal the denial of his motion to suppress.

We begin our analysis with the notion that the highest level of Fourth Amendment protection lies at the entrance of one’s home (or apartment). In State v. Titus, 707 So.2d 706 (Fla.1998), Senior Justice Grimes noted

The Fourth Amendment establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” U.S. Const. amend. IV (emphasis added). Indeed, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35, 32 L.Ed.2d 752 (1972), and “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682-83, 5 L.Ed.2d 734 (1961).

A ruling on a motion to suppress comes to the appellate court as presumptively correct as to disputed facts and all reasonable inferences and deductions drawn from them. Pagan v. State, 830 So.2d 792 (Fla.2002). Conversely, the trial court’s application of the law to the facts is reviewed under the de novo standard. Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998). The dispositive issue in this case is whether exigent circumstances existed to establish an exception to the search warrant requirement. This is a mixed question of law and facts and should be reviewed under the de novo standard. Fitzpatrick v. State, 900 So.2d 495, 510 (Fla.2005) (“[A]ppellate courts should ... accord a presumption of correctness to ... the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment[s].”) (quoting Nelson v. State, 850 So.2d 514, 521 (Fla.2003)) (quoting Connor v. State, 803 So.2d 598, 608 (Fla.2001)).

An item may be seized from a constitutionally protected place without a warrant, if (1) the police view the contraband from a place they have a legitimate right to be, (2) the incriminating character of the contraband is immediately apparent to the officer, and (3) the officer had a lawful right of access to the contraband. Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005). If one of these requirements is not met, then the State must establish an exception to the warrant requirement such as consent or exigent circumstances. Id. at 1033.

Cote relies on Gnann v. State, 662 So.2d 406 (Fla. 2d DCA 1995), and State v. Garcia, 866 So.2d 124 (Fla. 4th DCA 2004), to argue that no such exigency existed here and that the police should have obtained a warrant before arresting him and seizing the contraband. The State, on the other hand, relies on Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001) to argue that the facts of this case amounted to exigent circumstances and that Cote’s Fourth Amendment rights have not been violated. The pertinent facts and the rationale in Gnann, Gilbert, and Garcia are as follows.

In Gnann,

Tampa police officers stopped an individual, Lisa, for a traffic offense. Lisa told the officers that she had information regarding the presence of cocaine at a local motel. Lisa called the motel room and arranged to purchase cocaine there. It is undisputed that at this point the officers had probable cause to obtain a warrant to arrest Gnann or obtain a warrant to search her motel room. However, the officers made a decision to not obtain a warrant and instead proceeded to the motel.
At the motel, Lisa knocked on the room door and entered. The officers were in the corridor outside the room, and through a gap in the curtains, observed Gnann cutting cocaine. Rather than obtain an arrest or search warrant based on this additional information, the officers knocked, the door was opened, the officers entered the room and arrested Gnann.

662 So.2d at 407-408.

In Gilbert,

[t]wo Fort Lauderdale police officers were dispatched to a Ramada Inn because they were given information that appellant, who was wanted on other charges, wanted to turn himself in. When they knocked on the door of the room number given by the dispatcher, appellant opened the door, and said “Oh, it has all been taken care of. I had a girl banging on the door earlier. It’s all settled now.” The officers were standing on the catwalk of the second floor of the motel just to the side of the door. After appellant admitted that he was the only one in the room, one of the officers noticed a clear baggie sitting on the dresser next to the door, only two or three feet away. The officer immediately recognized the bag’s contents as crack cocaine. The other officer also observed the cocaine. At that point, the officers stepped into the room and told appellant he was under arrest.

789 So.2d at 427-428.

In Garcia,

Officer Guaracino apprehended Morcig-lio ... [and] found cocaine on [him]. Guaracino asked him if he had any other drugs. Morciglio volunteered that he had more in the apartment upstairs. Guaracino testified that Morciglio did not tell them whether he lived in the apartment. Officer Velez, however, testified that Morciglio told them that he did not live there and was just visiting friends.

Id. at 125. At that point, “[ajlthough [the officers] had probable cause, they did not seek a warrant. Instead, they enlisted Morciglio as their agent to gain entry into the apartment.” Id. at 127. There, Defendant Garcia was found with drugs and apprehended. Id.

Though the three cases are seemingly similar in their facts, the exigent circumstances exception stood in Gilbert while it failed in Gnann and Garcia. First, in Gnann, “the room occupants were unaware of the police presence when the officer surreptitiously saw the contraband in the room. The officers could have posted an officer by the door of the motel while a search warrant was obtained without tipping off the occupant as to their presence and the possible destruction of evidence.” Id. at 429. On the other hand, “the officers [in Gilbert ] saw the contraband in open view in appellant's presence.” Id (emphasis added).

Further, in Garcia, the officers “created the exigent circumstance (the possible destruction of evidence) by making their presence known before they obtained a warrant.” 866 So.2d at 127. This was distinguishable from the situation in Gilbert where “the defendant called the police to come and arrest him on an outstanding-warrant. In doing so, the defendant created the exigent circumstance of potential destruction of evidence because the defendant anticipated the officer’s arrival.” Id. at 126-127.

Comparing the case at hand with Gnann, Gilbert, and Garcia, when Detectives Mijal and Maldonado arrived at Cote’s apartment and observed the contraband through the open door, the record does not support that Cote was aware of the detectives’ presence. In addition, although Cote was seen wiping down the kitchen counter where the digital scale and the white powdery substance were located, we cannot infer from that that he was in the process of destroying that evidence. We cannot tell from this record what Cote was wiping from the counter. (Perhaps it was peanut butter and jelly from his lunch sandwich.) Yet the dissent argues it was a reasonable inference that Cote was next going to wipe the cocaine from the scale, hence the exigent circumstances to excuse obtaining a warrant. It is just’ as reasonable to infer that, unlike whatever Cote was wiping from the counter, the cocaine on the scale had a certain value to him — a cocaine user — and that he had no intention of destroying it, being unaware at that point of the police presence outside. Thus, when the detectives entered Cote’s apartment without a warrant, they — not Cote— created the exigent circumstance. And such exigency, under Gnann, Gilbert, and Garcia, does not justify a violation of the search warrant requirement of the Fourth Amendment.

The trial court erred in denying Cote’s motion to suppress evidence. And because the motion to suppress was dispositive in this case, we reverse arid remand for the trial court to vacate Cote’s judgment and sentence.

GROSS, C.J., dissents with opinion.

HAZOURI, J., concurs specially with opinion.

GROSS, J.,

dissenting.

I would affirm because I believe that there were exigent circumstances justifying the detective’s warrantless entry into the apartment.

This is an “open view” case. The detectives stood outside the apartment, where they had a lawful right to be. They looked through an open door and saw the defendant in the kitchen, no more than five feet away. The defendant was wiping down the counter with a paper towel. On the counter, one detective saw a digital scale with cocaine and a straw on it. He entered the apartment and arrested the defendant because he was concerned that the defendant would wipe the substance off the scale and destroy the evidence.

An “open view” situation occurs “where the officer is not in a constitutionally protected place but can view contraband in a protected place from his or her vantage point.” Gilbert v. State, 789 So.2d 426, 428 (Fla. 4th DCA 2001); Murphy v. State, 898 So.2d 1031, 1033-34 (Fla. 5th DCA 2005). Situated where he has a right to be, an officer’s sighting of contraband inside a constitutionally protected area, such as a home or apartment, gives rise to probable cause to seize the item, “but the officer must still obtain a warrant or qualify under an exception to the warrant requirement to enter the dwelling and seize the contraband.” Gilbert, 789 So.2d at 428 (citing Ensor v. State, 403 So.2d 349 (Fla.1981)).

Exigent circumstances are an exception to the warrant requirement. Id.; see Murphy, 898 So.2d at 1034-35; Gnann v. State, 662 So.2d 406, 408 (Fla. 2d DCA 1995). One exigent circumstance that permits a warrantless entry into constitutionally protected space is the imminent destruction of evidence. Gilbert, 789 So.2d at 428. Here, the detective observed the defendant cleaning up the kitchen counter; it was objectively reasonable to assume that the defendant was about to wipe away the evidence on the scale. The facts, as they appeared at the moment of entry, “would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.” Id. at 429 (quoting United States v. Rivera, 825 F.2d 152 (7th Cir.1987)). Thus, faced with the imminent destruction of the cocaine on the scale, it was proper for the detective to move five feet into the apartment and place the defendant under arrest.

The majority relies on Gnann and State v. Garcia, 866 So.2d 124 (Fla. 4th DCA 2004), but places emphasis on the wrong fact — that the defendant was not aware of the detectives’ presence when he was cleaning up. The exigency exists because evidence is about to be destroyed not because of a defendant’s state of mind while performing the act of destruction. A defendant’s knowledge of the police presence leads to the conclusion that the defendant would do something to destroy incriminating evidence before a warrant could be obtained. Only for this reason is such knowledge relevant to the exigent circumstances inquiry. Here, the defendant was already cleaning up when the detectives arrived. Unlike the situation in Garcia, this was not a case where the exigent circumstance was created by the officers.

Also, the majority says that it “cannot infer” from the defendant’s actions in the kitchen “that he was in the process of destroying evidence.” However, in reviewing a ruling denying a motion to suppress, “we are to interpret the evidence and reasonable inferences and deductions drawn therefrom in a manner most favorable to sustaining the trial court’s ruling.” Jones v. State, 648 So.2d 669, 676 (Fla.1994). An experienced detective concluded that the defendant’s cleaning activity was about to extend to the scale. The tidal court believed the detective. The inference was not unreasonable and we are bound to accept it.

The majority has placed Detective Mijal in a catch-22 dilemma. It tells him that he needed a warrant to enter the apartment and make an arrest. However, he would be unable to get a warrant; there would be no reason to believe that contraband would be found in the apartment because the defendant had destroyed it.

HAZOURI, J.,

concurring specially.

I concur but write to respond to the dissent. Although the dissent makes a persuasive common sense argument, we are constrained by the Fourth Amendment and the case law which requires that law enforcement obtain a search warrant, absent exigent circumstances, to enter a person’s dwelling. The fact that the detectives in the instant case had a clear view of the cocaine did not permit them to enter the defendant’s dwelling. Cote was not aware of the detectives’ presence so his action in wiping down the countertop was not an attempt to destroy evidence in response to law enforcement’s presence.

If the dissent is correct, then the detectives could have been hundreds of yards from the entrance of Cote’s apartment, perhaps in a stake out, and with the use of binoculars, observed Cote’s activities and would not be required to obtain a search warrant. That would clearly be a violation of the Fourth Amendment.

Proximity to the defendant cannot be a logical basis for doing away with the requirement of obtaining a search warrant to enter a person’s dwelling. Proximity alone cannot be the basis for claiming exigent circumstances.

I would also take exception to the dissent’s contention that the majority has placed Detective Mijal in a catch-22 dilemma. There is no reason to believe with the information available to Detective Mijal that any reasonable judge would not issue a search warrant.