author: ALTENBERND, Judge.

text:
    SOURCETRACK, LLC, a Nevada Limited Liability Company; Best Products, LLC, a Nevada Limited Liability Company; and MV Venture Partners V, LLC, a Delaware Limited Liability Company, Appellants, v. ARIBA, INC.; Tradex Technologies, Inc.; and Amherst Technologies, LLC, a Nevada Limited Liability Company, Appellees.
    No. 2D05-4908.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.

      Mark P. Stopa of Mark P. Stopa, P.A., Palmetto, for Appellants.
    Thomas J. Roehn of Carlton Fields, PA, Tampa; Jonathan W. Hughes of Howard, Rice, Nemerovski, Canady, Falk & Rab-kin, San Francisco, California; and John Sherrill and Erika A. Hickman of Seyfarth Shaw LLP, Atlanta, Georgia, for Appellees Ariba, Inc., and Tradex Technologies, Inc.
    No appearance by Appellee Amherst Technologies, LLC.
   ORDER ON MOTION FOR REVIEW OF APPELLATE FEES

ALTENBERND, Judge.

The appellants challenge a final judgment awarding appellate attorney’s fees pursuant to the order on attorney’s fees entered by this court on June 6, 2007. We review the order as authorized by Florida Rule of Appellate Procedure 9.400(c). See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (noting that “the correct method of seeking review of an order on appellate costs or attorney’s fees is to file a motion for review” under rule 9.400(c)); Zaremba Fla. Co. v. Klinger, 550 So.2d 1131, 1132 (Fla. 3d DCA 1989) (treating the appeal of an order on attorney’s fees entered after a remand from the district court as a motion for review of fees under rule 9.400(c)). We disapprove the order in part and remand for further proceedings.

There have been extensive appellate proceedings between these parties. See Lipson v. Ariba, Inc., 11 So.3d 950 (Fla. 2d DCA 2009) (table decision); Sourcetrack, LLC v. Ariba, Inc., 961 So.2d 948 (Fla. 2d DCA 2007) (table decision); Sourcetrack, LLC v. Ariba, Inc., 958 So.2d 523 (Fla. 2d DCA 2007). After this court authorized an award of appellate attorney’s fees for the appellees, the trial court awarded fees in the amount of $302,617.75 against the appellants, jointly and severally. The appellants argue that the fees should have been apportioned among them. We disagree and conclude that, under the facts of this case, the trial court did not err in awarding the fees jointly and severally.

The appellants also argue that the trial court erred because it did not require the appellees to present any expert testimony concerning the reasonable and necessary attorney’s fees for the defense of this appeal. The trial court relied on earlier expert testimony relating to reasonable fees for work in the trial court. Those rates were actually lower than some of the rates that the trial court awarded in this case.

Although the standard of review of an order setting an amount of appellate attorney’s fees is often described as abuse of discretion, see, e.g., Gen. Motors Acceptance Corp. v. Laesser, 791 So.2d 517, 519 (Fla. 4th DCA 2001), that discretion can only be exercised by a court after it has received competent, substantial evidence permitting a discretionary decision. There is currently some debate about whether trial judges should be given greater latitude to award attorney’s fees without always receiving expert testimony from attorneys uninvolved in the case. See, e.g., Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So.3d 158, 159 (Fla. 5th DCA 2010); In re Amendments to Fla. Rules of Civil Procedure, 966 So.2d 943, 944 (Fla.2007). This court, however, continues to require such testimony. See Snow v. Harlan Bakeries, Inc., 932 So.2d 411, 412 (Fla. 2d DCA 2006) (reversing attorney’s fee award because the defendant failed to present expert testimony as to the reasonableness of the amount of fees); Yakubik v. Bd. of County Comm’rs of Lee County, 656 So.2d 591, 591 (Fla. 2d DCA 1995) (“The testimony of an expert witness concerning reasonable attorney’s fees is necessary to support the establishment of the fees.”). Especially in a case of this magnitude, it is important for a trial judge, who may be unfamiliar with the work typically performed by appellate counsel, to obtain testimony on the reasonableness of the fees and the need for the legal work. Thus, in this case, the trial court erred by awarding fees without competent, substantial evidence to support an award.

We note that the appellees retained out-of-state attorneys who have been allowed to appear in these proceedings pro hac vice. They appear to have charged hourly rates in excess of those charged by competent attorneys residing within this district. See, e.g., Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985). The appellees were certainly free to retain the attorneys of their choice. But the appellants should not have to bear liability for additional fees absent some showing that these attorneys had a special expertise that required their participation at hourly rates above those normally charged by local attorneys handling comparable cases, or a showing of some alternative basis warranting fees above the market rate in this district.

Approved in part, disapproved in part, and remanded.

KELLY and LaROSE, JJ., Concur.

      . In a typical appeal, this court normally "affirms” or “reverses” an order. In this case, we are reviewing an order entered by the trial court, serving as a fact-finder and decision-maker for an issue of attorney's fees that this court referred to the trial court. We conclude that "approve” and "disapprove” are more accurate descriptions of our function in this context.
      Judge Altenbernd has been substituted for Justice Canady, who was the third judge on the panel that authorized an award of appellate attorney's fees.


source: Caselaw Access Project

license: Public Domain

text:
    John B. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5812.
    District Court of Appeal of Florida, Second District.
    May 12, 2010.

      Jackson Stuart Flyte, Regional Counsel, Second District, Bartow, and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

John B. Williams appeals his convictions for aggravated battery and battery. We affirm the conviction for battery without discussion. Concerning the conviction for aggravated battery, this offense was actually committed by another person, and Mr. Williams was convicted as a principal. He argues that the evidence warranted, in addition to an instruction on principals, an instruction on the issue of an independent act by another person. He maintains the omission of that instruction was not harmless in this case. See Fla. Std. Jury Instr. (Crim.) 3.6(i). Although there may be occasions in which a defendant is entitled to both an instruction on principals and an instruction on an independent act by another person, in this case we conclude the trial court correctly decided the instruction on principals was adequate to present the issue to the jury. Accordingly, we affirm the conviction for aggravated battery.

I.

The charges in this case arose from a parking lot brawl on July 29, 2006. On that day, a Saturday, a group of acquaintances gathered for an afternoon barbeque at an apartment complex in Temple Terrace. Among the group were Desmond and Rudell Ball, who were working on a car in the parking lot. When John Williams arrived in the parking lot with his brother, Brandon Williams, and cousin, Willie Williams, a fight broke out between the Williamses and the Balls.

For their involvement in the fight, each of the Williamses was charged with one count of aggravated battery with great bodily harm and use of a weapon arising from the beating of Rudell Ball. Each was also charged with one count of aggravated battery with a deadly weapon arising from the beating of Desmond Ball. John Williams was convicted of simple battery for the beating of Desmond Ball. We focus in this case on the conviction arising from the beating of Rudell Ball.

The three defendants proceeded together to trial by jury. At that trial, the witnesses presented conflicting versions of the events. In general, the State’s theory of the case was that the Williamses arrived at the scene in one car prepared to attack the two victims with various weapons. There was evidence, albeit conflicting, to support this theory. Thus, it was the State’s theory that the men in the car had a common plan to initiate this fight with the Balls before they arrived at the scene of the crime.

On the other hand, John Williams’s theory of the case was that he arrived at the location to pay child support to Desmond Ball’s sister, who is the mother of Mr. Williams’s three children. He and Desmond Ball disliked one another before the events of this day. He testified he drove to the apartment complex with Brandon and Willie Williams to deliver the check. After arriving, he left his car and began looking for the correct apartment, believing Willie and Brandon remained in the car. He testified he encountered two men, one of whom he recognized as Desmond Ball. After exchanging words, John Williams and Desmond Ball began fighting. John Williams testified that he was stabbed through his forearm while fighting with Desmond Ball. This fact was confirmed by one of the State’s witnesses, who claimed responsibility for the stabbing. John Williams recounted that as he ran to leave, he noticed someone lying on the ground. He later learned this person was Desmond Ball’s uncle, Rudell Ball. In his testimony, Willie Williams explained it was Brandon Williams who hit Rudell Ball.

Thus, John Williams maintained that he had no plan or intention to be involved in a fight with the Balls prior to arriving at the scene. Instead, after he separated from the other occupants of the car, he alone was involved in a fight with Desmond Ball. The events involving Rudell Ball were totally separate from his fight with Desmond Ball, and these two events had not been planned in concert.

During the charge conference, each of the Williamses requested an independent act jury instruction. The court declined to give the instruction, reasoning in part that the instruction was not applicable where there was no evidence presented by any defendant of any common design or unlawful act. The jury found each defendant guilty as charged of the aggravated battery on Rudell Ball and guilty of the lesser-included offense of battery as to Desmond Ball. For the aggravated battery, John Williams was sentenced to ten years’ imprisonment followed by twenty years’ probation.

II.

We review the trial court’s withholding of a requested jury instruction under an abuse of discretion standard. Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009) (citing Worley v. State, 848 So.2d 491, 491 (Fla. 5th DCA 2003)). In criminal cases, the trial court’s discretion is limited because “a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory, and so long as the theory is recognized as valid under the law of the state.” Worley, 848 So.2d at 492; see also Vazquez v. State, 518 So.2d 1348, 1350 (Fla. 4th DCA 1987).

Thus, the question in this case is whether there was any evidence, however slight, to support an independent act instruction in addition to an instruction on principals. More specifically, we consider what evidence was necessary to support giving the independent act instruction and whether that evidence was presented to the jury under the theories argued. To address these questions, it is helpful to first examine the instructions on principals and on independent act.

The standard jury instruction on principals states:

If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he][she] had done all the things the other person or persons did if:
1. the defendant had a conscious intent that the criminal act be done and
2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually [commit] [attempt to commit] the crime.

Fla. Std. Jury Instr. (Crim.) 3.5(a).

The standard jury instruction on independent act states:

If you find that the crime alleged was committed, an issue in this case is whether the crime of (crime alleged) was an independent act of a person other than the defendant. An independent act occurs when a person other than the defendant commits or attempts to commit a crime
1. which the defendant did not intend to occur, and
2. in which the defendant did not participate, and
3. which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.

Fla. Std. Jury Instr. (Crim.) 3.6(i).

If one examines the principals instructions, it is entirely adequate to encompass Mr. Williams’s theory that he was not a principal to the beating of Rudell Ball. The State was required to prove beyond a reasonable doubt that Mr. Williams had a conscious intent that the act of beating Rudell Ball “be done,” and it was also required to prove that he did some act or said some word which was intended to and did incite, cause, encourage, assist or advise the other person or persons to actually commit this beating. See Fla. Std. Jury Instr. (Crim.) 3.5(a). Depending on which version of the evidence it believed, the jury could have relied on the principals instruction to acquit Mr. Williams. The independent act instruction would not have added anything to his defense.

The requirement in Florida for an instruction in a criminal case on an independent act arose in connection with the felony murder rule. In felony murder cases, the courts have long required a causal connection between the murder and the underlying felony — specifically, that the death occurred in furtherance of the felony. See, e.g., Adams v. State, 310 So.2d 782 (Fla. 2d DCA 1975), vacated on other grounds. In these cases, if the lethal act was not committed in furtherance of the common scheme or design, then the murder may be shown to be “an independent act of another.” Bryant v. State, 412 So.2d 347, 350 (Fla.1982). Thus, the act is said to be “independent” not only because it is committed by another person, but because it is independent of the common scheme or design to commit a felony.

The independent act doctrine “arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofel-on, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’ ” Ray v. State, 755 So.2d 604, 609 (Fla.2000) (quoting Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995)). Our caselaw has not limited the independent act instruction’s application to felony murder cases. See, e.g., Calabrese v. State, 886 So.2d 396, 398-99 (Fla. 1st DCA 2004) (holding court erred in refusing to give independent act instruction in prosecution for conspiracy to traffic in cocaine); Barfield v. State, 762 So.2d 564, 566 (Fla. 5th DCA 2000) (finding error in refusal to give independent act instruction in prosecution for robbery). Additionally, in these cases, like those felony murder cases requiring the instruction, there was evidence of some common plan or design. See, e.g., Calabrese, 886 So.2d at 398 (“[T]he jury could have found that although Appellant and Rauf conspired to purchase cocaine, Rauf acted independently in deciding to buy a greater weight of cocaine[.]”).

As recited above, the standard instruction, which the Florida Supreme Court adopted in 1997, defines an independent act to include one which is “outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.” Fla. Std. Jury Inst. (Crim.) 3.6(1). Mr. Williams is essentially arguing that he is entitled to this instruction because the beating of Ru-dell Ball was separate from his individual “unlawful act” of battering Desmond Ball.

We interpret the independent act instruction to require some evidence of a common design or common unlawful act. The State claims the three men went to the scene of the crime to engage in a brawl with all comers. Mr. Williams claims that he simply got into a fight with Desmond Ball after he arrived, that one of the other occupants fought Rudell Ball, and that, overall, the occupants of the car had no common plan. In the absence of any evidence of a common plan to batter Desmond Ball but not Rudell Ball, the trial court did not abuse its discretion in declining to give an independent act instruction.

To the extent that Mr. Williams argues that he was entitled to the independent act instruction because there was evidence that he committed a separate “unlawful act,” we believe Mr. Williams is reading too much into the jury instruction. The caselaw in which this instruction is given does not appear to contain an example of a crime where the defendant had no common plan to commit some crime. For example, Calabrese, 886 So.2d at 398-99, dealt with a conspiracy to buy and, allegedly, traffic in cocaine; Barfield, 762 So.2d at 565, involved a plan to steal an ATM. For the reasons explained above, we conclude the instruction is describing a “common ... unlawful act contemplated by the defendant.” It is this common plan or act from which the charged offense is urged to be “independent.” If this were not the case, then a defendant would be entitled to both an instruction on principals and one on independent act in most, if not all, cases in which the principals instruction is given.

Mr. Williams also argues that two baseball bats that were recovered from his apartment should not have been introduced into evidence. We agree that there is little or nothing in this record that connects these two bats to the charged offenses. Given that the bats were ordinary baseball bats common in many American homes, we fail to see their relevance in this case. On the other hand, for essentially the same reasons, we conclude that the admission of these bats, which was not a feature of the trial, was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.

CASANUEVA, C.J., and NORTHCUTT, J., Concur.


author: BOWMAN, JOHN, Associate Judge.

text:
    Dany GILBERT, Appellant, v. ECKERD CORPORATION OF FLORIDA, INC., a Florida corporation, Appellee.
    No. 4D08-4025.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Cara C. Morris of Hoffman & Morris, P.L., Singer Island, for appellant.
    Russell M. Verona of Groves & Verona, P.A., Miami, for appellee.
   BOWMAN, JOHN, Associate Judge.

Dany Gilbert timely appeals the final order granting Eckerd Corporation of Florida, Inc.’s verified motion to dismiss for fraud and dismissing her complaint with prejudice. We reverse and remand for further proceedings.

In March 2003, Dany Gilbert allegedly tripped and fell while walking into an Eckerd store in Lake Worth. She filed a negligence suit against Eckerd seeking damages for injuries and losses she sustained from the fall.

As part of her claim for damages, Dany sought lost wages in the amount of $427,974.56, inclusive of past and future lost wages. She calculated that amount based on her disputed two-month employment with Gold Coast Surfaces, Inc., a company that sells and installs decorative concrete coatings. In her deposition, Dany testified that she worked at Gold Coast as a salesperson during January and February 2003. A Gold Coast employee named Tina hired her and was her immediate supervisor. She was working on twelve percent commission and estimated that she earned about $1600 during her two-month employment. As a result of the fall at Eckerd, in which she injured her hands, she could no longer carry concrete samples, so she quit her job at Gold Coast. She tendered her resignation to Tina. Pri- or to her employment at Gold Coast, she had not worked since 1996.

Eckerd deposed Larry Gilbert, Dany’s husband, shortly after Dany’s deposition. He testified that Dany never worked for Gold Coast and had not worked at all since 1999. Larry also testified that he owns a business called Santa Fe Texture, Coating and Concrete, which acts as an independent contractor for Gold Coast. He stated that his wife never worked for Santa Fe, either. Eckerd also deposed Richard Schulty, the owner and general manager of Gold Coast. Schulty testified that he never hired Dany as either an employee or independent contractor. He has no record of Dany ever working at Gold Coast.

Tina Davis, sales manager for Gold Coast during January and February 2003, filed an affidavit stating that she never hired, trained, or supervised Dany, and that Dany was never employed by Gold Coast in any capacity. She also stated that she was the only “Tina” working for Gold Coast in 2003. Finally, she stated that Dany never tendered resignation to her.

As a result of the dispute over Dany’s employment at Gold Coast, Eckerd filed a verified motion to dismiss for fraud. In the motion, Eckerd asserted that Dany never worked for Gold Coast, and that her claim for lost wages was a knowing and deliberate misrepresentation which constituted a fraud on the court.

In response to the motion to dismiss, Dany produced photocopies of two checks made payable to her from Gold Coast, dated May 13, 2003 and May 20, 2003. The checks totaled $1,734.12. On her 2003 tax return, Dany reported $1,734 from Gold Coast as “other income” on Statement 1. She referenced Statement 1 on the income section of her 1040 form. She also reported $1,734 on Schedule SE for assessment of self-employment tax, although she did not list the origin of the income on that schedule. Dany filed her 2003 return as “married filing separately.”

In his deposition, Schulty explained that the checks made payable to Dany were actually for work performed by Larry. He further explained that Larry asked him to make his first few checks payable to Dany so that she could run them through her psychiatry business. Neither Dany nor Larry testified that Dany ever ran a psychiatry business.

Larry filed an affidavit in which he corroborated Schulty’s testimony about the checks. Attached to his affidavit was a fax from Maggie Lima (a Gold Coast employee) to someone named “Karen” directing Karen to cancel the two checks made payable to Dany and to issue a check to Larry. On the fax, Schulty handwrote a note saying “Karen, per our conversation OK to cut commission agent check to Lawrence Gilbert.”

After a non-evidentiary hearing on the motion to dismiss for fraud, the court granted the motion and dismissed Dany’s complaint with prejudice. This appeal follows.

A dismissal for fraud on the court is reviewed under a narrowed abuse of discretion standard. Cherubino v. Fenstersheib & Fox, P.A., 925 So.2d 1066, 1068 (Fla. 4th DCA 2006). “Such sanction may be imposed only on a ‘clear showing of fraud, pretense, collusion, or similar wrongdoing.’ ” Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003) (quoting Tri Star Invs., Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981)). In other words, the extreme sanction of dismissal should be imposed only where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier [of fact] or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989); see also Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998). The scheme must go to the very core issue at trial. To support a dismissal the court must find the “false testimony was directly related to the central issue in the case.” Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002); see also Ramey v. Haverty Furniture Cos., 993 So.2d 1014, 1019 (Fla. 2d DCA 2008). It is the moving party’s burden to establish by clear and convincing evidence that the non-moving party has engaged in fraudulent conduct warranting dismissal. Cross v. Pumpco, Inc., 910 So.2d 324, 327 (Fla. 4th DCA 2005).

“When reviewing a case for fraud, the court should ‘consider the proper mix of factors’ and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system.” Cox, 706 So.2d at 46 (quoting Aoude, 892 F.2d at 1117). “Except in the most extreme cases, where it appears that the process of trial has itself been subverted, factual inconsistencies, even false statements are well managed through the use of impeachment and traditional discovery sanctions.” Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003).

We note that, as a preliminary matter, if the motion to dismiss for fraud would not likewise survive a motion for summary judgment, the trial court should presume the matter not subject to dismissal. See Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003) (“The same facts for which this case was dismissed would not withstand a motion for summary judgment nor a motion for directed verdict, for there are questions of material fact.”). The mere conflict between discovery depositions, interrogatories and records disclosed during the discovery process should not warrant dismissal. See Ramey, 993 So.2d at 1021-22 (Altenbernd, J., concurring). Factual inconsistencies or even false statements are better managed through the use of impeachment or other discovery sanctions. See Ruiz, 859 So.2d at 576.

The evidence advanced for Eckerd’s motion to dismiss was produced through the normal discovery process. There is no allegation that Dany’s discovery answers were manufactured to intentionally mislead the tribunal. It is undeniable that Eckerd produced evidence indicating that Dany never worked for Gold Coast as a salesperson or in any other capacity. Nevertheless, Dany also produced evidence that she did work for Gold Coast, specifically the two checks made payable to her and her 2003 income tax return. Eckerd explained that the checks were really meant for Larry and were only made out to Dany as a favor to Larry. However, Eckerd did not explain why Dany reported the income from those checks on her 2003 tax return as self-employment income. The lack of explanation distinguishes this case from cases where fraud or misrepresentation is uncontroverted. See, e.g., Brown v. Allstate Ins. Co., 838 So.2d 1264, 1265 (Fla. 5th DCA 2003) (where the insurer produced uncontroverted evidence that the plaintiff was not employed at the time of his accident).

The trial court did not make any express oral or written findings of fact. At the conclusion of the non-evidentiary hearing, the court stated, “[djefendant’s motion to dismiss is granted.” The court’s written order is also non-specific. It states that Dany “has made deliberate misrepresentations and has given false testimony in this matter on critical issues; which amounts to a willful perpetration of a fraud upon [the court] requiring a sanction of involuntary dismissal.” Thus, the court never expressly dealt with the unanswered question about Dany’s checks and tax return.

There is “no rule, statute, or case” that requires an evidentiary hearing to be held when a motion to dismiss for fraud is filed. Bologna v. Schlanger, 995 So.2d 526, 532 (Fla. 5th DCA 2008) (Thompson, J., dissenting); see McKnight v. Evancheck, 907 So.2d 699, 701 (Fla. 4th DCA 2005) (suggesting that an evidentiary hearing is not necessary on a motion to dismiss for fraud where neither party requests such a hearing); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997). However, we believe the better practice is for the trial court to conduct an evidentiary hearing on the motion and make specific findings. “The minimal amount of admissible evidence before the court did not authorize the court to dismiss this action as a sanction.” Howard v. Risch, 959 So.2d 308, 309 (Fla. 2d DCA 2007); see Villasenor v. Martinez, 991 So.2d 433, 436 (Fla. 5th DCA 2008) (suggesting that an evidentiary hearing is necessary to resolve certain factual disputes on a motion to dismiss for fraud, even where neither party requests the hearing); Bologna, 995 So.2d at 528 (noting that an evidentiary hearing is almost always necessary to provide clear and convincing evidence to support dismissal for fraud). Although not required, an eviden-tiary hearing might have given Dany the opportunity to respond to Eckerd’s evidence regarding her employment at Gold Coast.

Eckerd did not produce clear and convincing evidence that Dany perpetrated a fraud on the court because it failed to provide an explanation for the income Dany reported on her tax return from Gold Coast. Moreover, the trial court did not expressly resolve this issue in its dismissal order. We therefore reverse and remand for further proceedings.

Reversed and Remanded.

FARMER and HAZOURI, JJ., concur.


author: VILLANTI, Judge.

text:
    Joseph W. FINFROCK, Appellant, v. FLORIDA CIVIL COMMITMENT CENTER and Timothy Budz, Appellees.
    No. 2D08-6168.
    District Court of Appeal of Florida, Second District.
    May 14, 2010.

      Joseph W. Finfrock, pro se.
    No appearance for Appellees.
   VILLANTI, Judge.

Joseph Finfrock appeals the denial of his petition for writ of mandamus that he filed in the circuit court seeking an order requiring the Florida Civil Commitment Center (FCCC) to strike certain disciplinary sanctions from his record. We affirm because the record does not establish that Finfrock exhausted his administrative remedies before seeking relief in the circuit court. Therefore, his petition was premature.

The extremely limited record in this appeal shows that Finfrock, who is currently a resident of the FCCC, was disciplined for fighting with another resident. Fin-frock filed a petition for writ of mandamus in the circuit court seeking to have the disciplinary report stricken from his record. In his petition, he alleged that he did not start the fight, that he was just defending himself, and that he should not be disciplined for defending himself. However, he did not allege that he ever attempted to resolve this issue through any administrative channels within the FCCC, and he did not attach any documents showing that he had exhausted his administrative remedies. The circuit court denied Fin-frock’s petition on the grounds that Fin-frock had not shown a clear legal right to the relief he sought. Finfrock then brought this appeal.

In Henderson v. Crosby, 891 So.2d 1180, 1181 (Fla. 2d DCA 2005), this court held that a prison inmate is entitled to judicial review of a disciplinary report that is based on allegedly tainted evidence or improper procedures. A mandamus petition seeking review of a prison disciplinary proceeding should therefore be considered on its merits because the prisoner has a clear legal right to judicial review of that proceeding and no other remedy at law. Id. However, the caveat to this procedure is that the inmate must first exhaust all available administrative remedies in the prison system before seeking mandamus relief in the circuit court. Id. This same exhaustion requirement applies to mandamus petitions filed by residents of the FCCC. See Dep’t of Children & Family Servs. v. Burton, 802 So.2d 467, 470 (Fla. 2d DCA 2001); Widel v. Venz, 805 So.2d 1080, 1081 (Fla. 5th DCA 2002).

Here, the circuit court denied Fin-frock’s petition, stating that Finfrock had not established a clear legal right to the relief sought. This ruling was incorrect because Finfrock had a right to judicial review of the challenged disciplinary report. However, Finfrock did not allege that he had exhausted his administrative remedies, nor did he attach any documents showing that he had pursued any administrative remedies, nor did he allege that no administrative remedies existed. In the absence of such allegations and evidence, Finfrock’s petition was premature. Accordingly, we affirm the denial of Fin-frock’s petition without prejudice to him exhausting his administrative remedies within the FCCC and then seeking further relief in the appropriate circuit court if necessary.

Affirmed.

NORTHCUTT and MORRIS, JJ„ Concur.


author: MONACO, C.J.

text:
    Helen D. NEVILLE, Appellant, v. Thomas A. NEVILLE, Appellee.
    No. 5D09-1736.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    Sean P. Sheppard, of Sheppard & Sheppard, P.A., St. Augustine, for Appellant.
    No Appearance for Appellee.
   MONACO, C.J.

This is an appeal from an order terminating child support in which the appellant, Helen D. Neville, argues that the trial court erred in adopting the hearing officer’s recommendation to terminate child support paid by the appellee, Thomas A. Neville, with respect to the youngest child of the parties. Because the youngest child, C.W., although 18 years of age, had not graduated from high school, and because the order concerning child support based on the agreement of the parties required the child support for this child to be continued, we reverse.

At the time that the marriage between the parties was dissolved they entered into an agreement that provided, among other things, that “[c]hild support shall continue as to each minor child until said child graduates from high school but not to exceed age 19, dies, marries, becomes self-supporting, enters the armed forces, or is otherwise emancipated.” The final judgment of dissolution included similar language in ordering Mr. Neville to pay child support “until a child attains the age of eighteen (18) years and thereafter until said child graduates from high school but not to exceed age 19, marries, enters the armed forces, becomes self-supporting, dies or is otherwise emancipated, whichever event comes first.”

In 2009, Mr. Neville filed a supplemental petition for modification apparently aimed to terminate child support for his children other than C.W. He recognized that the final judgment required him to support his offspring “until each graduated from high school, but not to exceed the age of nineteen.” He asked only that child support be modified as to the other children to comport with the requirements of the final judgment.

The matter was considered initially by a hearing officer. Ms. Neville conceded at the hearing that all three children were over eighteen, but both parties acknowledged that the youngest was still in high school. The hearing officer found that the two eldest children were over eighteen and had already graduated from high school, and that while the youngest child was over eighteen, he would not graduate from high school before reaching nineteen. Surprisingly the hearing officer recommended that child support be terminated immediately for all three children. After the hearing officer announced his ruling, the former wife asked, “I don’t get any claims for [C.W.]? He’s still in high school.” The hearing officer responded “No, ma'am, because he’s not going to graduate prior to reaching 19.” The trial court thereafter approved the report and recommendation of the hearing officer and entered an order implementing it.

So far as we can tell, the hearing officer derived his ruling that flew directly in the face of the agreement of the parties and the order requiring the payment of child support from section 743.07(2), Florida Statutes (2009). That statute, which deals with the removal of the disabilities of nonage when persons turn 18, provides that:

[t]his section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

As this court has noted previously, a parent is not legally bound to support his or her children beyond the age of 18, unless the parent agrees to do so in a binding contract, or unless one of the exceptions to section 743.07 applies. See Dep’t of Rev. ex rel. Hall v. Hall, 699 So.2d 1036, 1037 (Fla. 5th DCA 1997). In the matter before us section 743.07(2) should have played no role in the disposition. This case involved only the implementation of an agreement of the parties and the final judgment of dissolution. It was not about a court ordering child support beyond the age of 18 based on incapacity of the child. Here, by an unambiguous written agreement Mr. Neville was to pay child support for C.W. until the child graduated from high school, but not beyond the child’s nineteenth birthday. C.W. was still in high school and had not yet reached 19 when the court terminated child support for him. Because the trial court failed to order Mr. Neville to pay child support for C.W. in accordance with the agreement and as required by the final judgment, it erred. Cf. State, Dep’t of Health & Rehabilitative Servs. ex rel. Dodge v. Dodge, 647 So.2d 170 (Fla. 2d DCA 1994).

Accordingly, we reverse and remand this cause to the trial court to calculate the child support Mr. Neville owes for C.W. from the time support was terminated to the time C.W. turned 19 and to order payment of that amount in compliance with the joint stipulation and the final judgment of dissolution.

REVERSED and REMANDED with instructions.

ORFINGER and JACOBUS, JJ., concur.

      . For reasons that are unclear from the record it appears that before the trial court approved the hearing officer’s order, a notice was sent to the City of St. Augustine directing it to stop deducting child support from the former husband’s pay check. This was obviously inappropriate.


author: PER CURIAM.

text:
    Cecil WEST, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2782.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See, e.g., Cook v. Crosby, 914 So.2d 490, 491 n. 1 (Fla. 1st DCA 2005) (“Although a razor knife/box cutter was not designed or constructed to cause death or great bodily harm, it can be a deadly weapon if the defendant uses, threatens to use, or intends to use it in a manner likely to cause death or great bodily harm.”)

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Christopher DEMAREST, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2845.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The reference to a violation of condition D-5 contained within the order dated November 18, 2009, is stricken. In all other respects, Appellant’s judgment of conviction and sentence is AFFIRMED.

ORFINGER, TORPY and JACOBUS, JJ., concur.


text:
    Richard WIGHARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4560.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    Richard J. Wighard, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 911 So.2d 81, 83 (Fla.2005) (holding that imposition of an upward departure sentence without written reasons is not an issue cognizable in a rule 3.800(a) proceeding); Jackson v. State, 29 So.3d 1152 (Fla. 2d DCA 2010) (same); Wood v. State, 830 So.2d 902 (Fla. 1st DCA 2002) (same).

GRIFFIN, LAWSON and COHEN, JJ., concur.


text:
    Hector SUAREZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1025.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2010.
    Hector A. Suarez, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2006-CF-000238, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and ORFINGER, JJ., concur.


author: DAVIS, Judge.

text:
    David Lee GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2225.
    District Court of Appeal of Florida, Second District.
    May 19, 2010.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, and Crystal McBee of Crystal McBee Law Firm, P.A., Jupiter, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

David Lee Green challenges the denial of his Florida Rule of Criminal Procedure 3.850 motion in which he alleged eight claims of ineffective assistance of trial counsel in conjunction with his conviction after jury trial for solicitation to commit murder. We affirm the denial of grounds two through eight of Green’s motion without comment. However, because the portion of the transcript the postconviction court attached to its order does not conclusively refute ground one of Green’s motion, we reverse the summary denial of that ground.

The charges against Green stem from a taped conversation between Green and Michael Bemis, who was acting as a police informant. During the conversation, the two discussed Bemis’s murdering Green’s ex-wife for Green. In ground one of his postconviction motion, Green alleged that counsel was ineffective for failing to raise and prosecute a viable entrapment defense based on the fact that Bemis came to Green’s house and initiated the conversation. In summarily denying this claim, the postconviction court concluded that “the record reflects that trial counsel attempted to establish the defense of entrapment by inferring that the solicitation was induced by the police informant.” To support this conclusion, the court attached the transcript of counsel’s direct examination of Green. We do not agree that this attachment conclusively refutes Green’s allegation that counsel failed to present an entrapment defense.

The attached transcript starts with the following exchange:

Q. Did you ever in this tape honestly ask, from your heart of hearts, with sincerity, with zealous sincerity, did you ever ask Michael Bemis to kill Ginger Green?
A. No, absolutely not.
Q. Did you do anything to cause him to — did you try to persuade him or cause him by your actions to get him to go do something?
A. No.
Q. Try to induce him in any way on that tape?
A. No.
Q. Did you command, hire, encourage or request him?
A. No.
Q. To actually go kill Ginger?
A. No.

Counsel then asked Green what things on the tape “showed that you were not serious.” Green pointed out that Bemis “would be asking questions and I wouldn’t give him an answer ... [a]nd I would go ‘Er. Ah.’ And not give him an answer.” Counsel next asked Green to explain a game that he and Bemis sometimes played that they called “What If.” Green explained that the game consisted of them “defining ... the What Ifs, you know. What if you won the million dollars[?] What if we happen to be walking down the street and an armored car guy trips[?]” The transcript concludes with the following exchange:

Q. Did you ever, on speaking any words, about having Ginger Green killed, actually intend for Michael Bemis to go kill her?
A. Absolutely not. There’s no way.
Q. All right. Let’s change your answer. Let’s assume that you wanted her dead. Would you have hired Michael Bemis, of all the people in the world, to go and do it?
A. He would be on the bottom of the bottom of the list.

The transcript suggests that the defense theory presented at trial was that although Green and Bemis may have discussed killing Green’s ex-wife, Green was never serious and rather was only playing a game of “What If.” This is not an entrapment defense.

Section 777.201(1), Florida Statutes (2000), states that entrapment occurs when law enforcement or its agent “induces or encourages and, as a direct result, causes another person to engage in conduct constituting [a] crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.” By this definition, to present an entrapment defense, one would have to admit that he or she committed the crime but did so only because of the actions of law enforcement. However, our review of the postconviction court’s record attachments, which do not include counsel’s closing argument or the jury instructions, suggests that counsel argued below that Green never committed the offense. Instead, counsel maintained that Green was just joking around and at no time intended for Bemis to kill his wife. Accordingly, the postconviction court’s record attachments do not refute Green’s claim that counsel failed to present an entrapment defense.

We therefore must reverse the summary denial of this ground of Green’s rule 3.850 motion and remand the case to the post-conviction court for reconsideration of that ground. If the court again summarily denies the claim, it must attach portions of the record that conclusively refute the claim; otherwise, the court shall conduct an evidentiary hearing. See Fla. R.Crim. P. 3.850(d).

Affirmed in part, reversed in part, and remanded.

WALLACE and MORRIS, JJ., Concur.


author: GERBER, J.

text:
    Ramsey HASAN, Petitioner, v. Lanny GARVAR, D.M.D., and Garvar & Stewart, D.M.D., a Florida partnership, Respondents.
    No. 4D10-136.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Rehearing Denied June 11, 2010.
    James C. Blecke of The Haggard Law Firm, Coral Gables, and Paul Freedman of Kaplan and Freedman, P.A., Miami, for petitioner.

      Douglas M. McIntosh, Robert C. Weill, and Michael F. Barzyk of McIntosh, Saw-ran, Peltz & Cartaya, P.A., Fort Lauder-dale, for respondents.
    Michael R. Ragan of DeMahy, Labrador, Drake, Payne & Cabezas, P.A., Coral Gables, for amicus curiae Dr. Jennifer Schaumberg.
   GERBER, J.

In this medical negligence action, the circuit court entered an order allowing a nonparty treating physician to have an ex parte pre-deposition conference with her own attorney, excluding any discussion regarding the plaintiffs care and treatment. The plaintiff now petitions for a writ of certiorari seeking to quash the order. We deny the petition.

Ramsey Hasan (the “plaintiff’) brought a dental malpractice action against Lanny Garvar, D.M.D. and Garvar & Stewart, D.M.D. (the “defendants”). The plaintiff served notice of his intent to depose an oral surgeon who treated him. The same insurer provides coverage for both the defendants and the oral surgeon. However, the insurer retained separate attorneys to represent the defendants and the oral surgeon.

The plaintiff moved for a protective order to prevent the oral surgeon’s attorney from conducting a pre-deposition conference with the oral surgeon. The plaintiff represented that the oral surgeon is not a potential defendant in the malpractice action and, therefore, any discussion between the oral surgeon and the attorney would violate section 456.057(8), Florida Statutes (2009), which states:

Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

§ 456.057(8), Fla. Stat. (2009).

The oral surgeon’s attorney responded that he did not intend to discuss the plaintiffs care and treatment with the oral surgeon. Instead, the attorney just wanted to discuss general deposition techniques with the oral surgeon. The defendants responded that, although the court could prevent the oral surgeon’s attorney from discussing the plaintiffs care and treatment with the oral surgeon, the court could not prevent the oral surgeon’s attorney from meeting with the oral surgeon.

The circuit court denied the plaintiffs motion for protective order, stating, “[The oral surgeon] is entitled to a pre-deposition conference subject to attorney-client privilege with the exclusion of any discussion of health care information.” This petition followed.

Orders addressing the applicability of section 456.057 are reviewable by certiorari. Hannon v. Roper, 945 So.2d 534, 535 (Fla. 1st DCA 2006). “A writ of certiorari should only be issued where the petitioner has no adequate remedy on appeal and where the trial court’s order departs from the essential requirements of law.” Id.

We agree that the plaintiff has no adequate remedy on appeal. “The protection against disclosure of privileged information does not require a showing of irreparable harm beyond threat of disclosure itself to merit action by reviewing courts.” Kirkland v. Middleton, 639 So.2d 1002, 1004 (Fla. 5th DCA 1994).

However, we find that the trial court’s order does not depart from the essential requirements of the law. This case is distinguishable from the cases upon which the plaintiff relies—Acosta v. Richter, 671 So.2d 149 (Fla.1996); Keel v. Psychiatric Inst. of Delray, Inc., 668 So.2d 691 (Fla. 4th DCA 1996); Kirkland (cited above); Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745 (Fla. 2d DCA 2003); Dannemann v. Shands Teaching Hosp. & Clinics, Inc., 14 So.3d 246 (Fla. 1st DCA 2009); and Hannon (cited above). In Acosta, Keel, Kirkland, and Lemieux, the orders in error would have allowed the plaintiff’s nonparty treating physicians to have ex parte conferences with the defendants’ attorneys. Here, the order allows the plaintiffs nonparty treating physician to have an ex parte conference with her own attorney. In Dannemann and Han-non, the orders in error would have allowed the plaintiffs nonparty treating physicians to have ex parte conferences with their own attorneys, including discussion of the patient’s medical condition. Here, the order allows the plaintiffs nonparty treating physician to have an ex parte conference with her own attorney, excluding the plaintiffs health care information. See Royal v. Harnage, 826 So.2d 332, 335 (Fla. 2d DCA 2002) (“We are not inclined to believe that [the statute] bars all discussion between a health care provider and his or her attorney concerning an upcoming deposition.”).

The plaintiff further relies on Acosta, Keel, and Kirkland for other reasons. In Acosta, the supreme court “rejected] the contention that ex parte conferences with treating physicians may be approved so long as the physicians are not required to say anything.” 671 So.2d at 156. The court “believefd] it is pure sophistry to suggest that the purpose and spirit of the statute would not be violated by such conferences.” Id. We quoted this language in Keel. In Kirkland, the fifth district stated, “Were unsupervised ex parte interviews allowed, medical malpractice plaintiffs could not object and act to protect against inadvertent disclosure of privileged information, nor could they effectively prove that improper disclosure actually took place.” 639 So.2d at 1004.

However, it is our understanding that the ex parte conferences to which the foregoing quotes refer were conferences between nonparty treating physicians and the defendants’ attorneys. We do not believe the temptation to violate a court-ordered prohibition is as strong in situations involving nonparty treating physicians and their own attorneys. Though we are not naive, we also are not so cynical to accept the plaintiffs assumption that the prohibition will be disobeyed simply because the same insurer is providing attorneys to both the defendants and the oral surgeon, albeit separate attorneys. See Comment to R. Regulating Fla. Bar 4-1.8(j) (“[T]he representation of an insured client at the request of the insurer creates a special need for the lawyer to be cognizant of the potential for ethical risks.”). As the plaintiff states in his petition, “In theory at least, it should make no difference who pays the fees.”

Petition denied.

WARNER and CIKLIN, JJ., concur.


author: WARNER, J.

text:
    Robert HUMMEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1218.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Robert Hummel, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Robert Hummel appeals an order summarily denying his motion for postconviction relief. He claims that his counsel was ineffective in failing to object when the court vacated his plea and sentence based upon his refusal to agree to a condition not specified in the plea agreement. We agree that the record does not conclusively refute his allegations. We therefore reverse and remand for an evidentiary hearing.

Hummel was on community control for delivery of cocaine, a second degree felony, when an affidavit of violation of community control was filed against him. He executed a written agreement providing for him to plead no contest, in return for a sentence of 61.05 months, concurrent with the same sentence in a new case in which he was charged with robbery with a weapon. Nothing in the written plea agreement conditioned the plea on his testifying against his co-defendant in the robbery case.

At a morning plea colloquy, the trial court accepted the plea, deferring sentencing until the afternoon. Nothing was said during the colloquy about Hummel testifying against his co-defendant in the robbery case.

At the afternoon hearing, the trial court first received assurances from Hummel that he still wanted to plead to the probation violation. The court then adjudicated Hummel guilty and sentenced him to 61.05 months pursuant to the plea agreement. After pronouncing sentence, the court then recited that a condition of the sentence was that Hummel, if subpoenaed, would give truthful testimony in the matter. Defense counsel did not object to the imposition of this condition and agreed that he had discussed with Hummel that if he had any information about the matter, he would be required to testify or speak candidly about what he knew. When Hummel tried to speak himself, the trial court ordered a recess so that he could speak with his attorney.

Following the recess, the prosecutor explained that he had extended a generous offer to the bottom of the guidelines to cover both cases, with the understanding that Hummel would be testifying against his co-defendant in the robbery case. Otherwise, Hummel was facing fifteen years for the violation of community control case and life for the robbery. Hummel, however, insisted that he would not be testifying.

Defense counsel represented he had explained to Hummel that if Hummel had information which the prosecuting attorney needed, Hummel would have to testify truthfully, perhaps assisting in securing a conviction of the co-defendant. The prosecuting attorney maintained that if the state was not to have Hummel’s testimony, there was no inducement for the plea offer.

In light of the foregoing, the trial court vacated the plea and sentence. Following a violation of community control hearing the next day, the trial court found Hummel guilty, revoked his community control, and sentenced him to the statutory maximum of fifteen years.

In his rule 3.850 motion for postconviction relief, Hummel raised the following three related claims of ineffective assistance of counsel: (1) failing to object to the court’s withdrawing the plea, when neither the state nor the defense had filed any motion to do so; (2) failing to object to the prosecutor and the court adding a condition to the plea that was not part of the written or oral plea deal; and (3) failing to object to Hummel’s resentencing, where the trial court had already imposed the agreed sentence of 61.05 months in prison and then changed it the next day to 15 years. Hummel maintained that if counsel had objected, he would be serving a sentence of only 61.05 months. Moreover, counsel’s failure to make these objections waived the issues for purposes of appellate review.

The state argued in its response that these issues were or could have been raised on direct appeal. Furthermore, Hummel’s claims of ineffective assistance of counsel were conclusively refuted by the record and were legally insufficient, in that they did not demonstrate counsel was deficient in performance, nor that Hummel was legally prejudiced in any way. The court summarily denied the motion, prompting this appeal.

We reject the state’s claim that because these issues could have or should have been raised on direct appeal, Hum-mel is precluded from raising them on postconviction relief. Defense counsel did not object to the trial court’s vacation of the plea and sentence. In fact, his counsel appears to have agreed that the plea came with a condition. He also did not object to the vacation of the sentence or to the imposition of the harsher sentence. Because these issues were not preserved through objection they cannot be raised on appeal. Moreover, as Hummel’s motion also raises a double jeopardy issue, it can be raised in postconviction proceedings. See, e.g., Plowman v. State, 586 So.2d 454, 455 (Fla. 2d DCA 1991).

The record does not conclusively refute Hummel’s position that he never agreed to testify against his co-defendant as a condition of the plea agreement. The record contains no written plea agreement containing the condition that he testify against a co-defendant. No such condition was imposed before his plea was accepted and he was sentenced. If the plea agreement contained that condition, the judge should have been advised it was part of the agreement before the plea was accepted. Fla. R.Crim. P. 3.170(g)(1) (“Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.”). Then, if Hummel failed to comply with his agreement, the state could have moved to withdraw from the plea pursuant to Florida Rule of Criminal Procedure 3.170(g)(2). See, e.g., Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993) (reversing sentence in excess of initial sentence imposed pursuant to plea agreement, where plea agreement required defendant to testify truthfully if required, but, after original sentencing, defendant gave a statement that was less favorable to the state than the one he had given before entering the plea agreement, and state requested a higher sentence based on defendant’s breach of plea agreement; finding defendant did not breach agreement and reversing for resentenc-ing).

This case is most like McCoy v. State, 599 So.2d 645 (Fla.1992), in which the supreme court held that where the terms of the plea agreement allegedly violated were not part of the court record, a trial court could not vacate a plea and sentence already entered and impose a harsher sentence. The court ordered the original sentence to be reinstated.

The state’s position, that the condition of testifying had been clearly conveyed to Hummel prior to the plea proceedings, is not a matter of record. Cf. McFord v. State, 877 So.2d 874, 877 (Fla. 3d DCA 2004) (affirming conviction and sentence, where the trial judge made the terms of the substantial assistance agreement “crystal clear” during the plea colloquy and the evidence supported the conclusion that defendant violated the agreement). In this case, the factual question of whether Hummel was aware of the condition before entering the plea should be resolved in the course of an evidentiary hearing.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed, mid. Remanded.

POLEN and FARMER, JJ., concur.

      . The statutory maximum sentence for Hum-mel’s crime was fifteen years.

      . Rule 3.170(g)(2) provides as follows:
      (2) Unless otherwise stated at the time the plea is entered:
      (A) The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.
      (B) When a motion is filed pursuant to subdivision (g)(2)(A) of this rule, the court shall hold an evidentiary hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.
      (C) No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.
      (D) When a plea and sentence is vacated pursuant to this rule, the cause shall be set for trial within 90 days of the order vacating the plea and sentence.


text:
    Rolando GONZALEZ, Appellant, v. ENTERPRISE LEASING COMPANY, a Florida corporation, Appellee.
    No. 4D09-1336.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Joshua Diamond of Sharp, Diamond, P.A., Coral Gables, for appellant.
    David C. Borucke of Holland & Knight, L.L.P., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Vargas v. Enter. Leasing Co., 993 So.2d 614 (Fla. 4th DCA 2008).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


author: TAYLOR, J.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., a Florida non-profit corporation, Appellant, v. The OLYMPUS ASSOCIATION, INC., a Florida non-profit corporation, Appellee.
    No. 4D09-11.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.

      Philip E. Ward, Jeffrey T. Kuntz and Roland E. Schwartz of GrayRobinson, P.A., Fort Lauderdale, for appellant.
    Melissa Groisman of Eisinger, Brown, Lewis & Frankel, P.A., Hollywood, for ap-pellee.
   TAYLOR, J.

The Florida Insurance Guaranty Association (FIGA) appeals the trial court’s order confirming an appraisal award and entering final judgment for The Olympus Association, Inc. (Olympus). Because the trial court erred in awarding final judgment for Olympus without first determining FIGA’s liability as to contested coverage claims, we reverse.

In April 2005, Southern Family Insurance Company (Southern Family) issued a property insurance policy to Olympus, a condominium association in Hallendale, Florida. The policy period ran from April 29, 2005 until April 29, 2006, and provided coverage for hurricanes.

On October 24, 2005, Hurricane Wilma caused substantial damage to the Olympus community, resulting in building damage in excess of $8.4 million. Olympus made a claim to Southern Family for insurance benefits under the policy.

On April 25, 2006, Southern Family was placed in receivership for liquidation purposes, and pursuant to section 631.041(1), Florida Statutes, all actions against the company were stayed. Southern Family’s insolvency triggered FIGA’s obligation, under section 631.57, Florida Statutes, to pay for “covered claims.”

Olympus’s public adjuster, Joseph Zevu-loni, demanded an appraisal for Buildings 500, 600, and 2500. The policy’s provision for appraisal states as follows:

2. Appraisal
If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.

Tony Allogia was the appraiser for FIGA, and Michelle L. Antinucci was appointed as the Umpire. On May 30, 2008, the Umpire submitted an Appraisal of Insurance Claim — Award Form (Appraisal Award) to the appraisers. Zevuloni signed it on May 31, 2008, making the award valid and binding. The Appraisal Award totaled $7,102,879.76; the amounts are as follows:

500 Building $2,669,823.63
600 Building $2,089,056.39
2500 Building $2,343,999.74

The Appraisal Award further stated:

This award is made without consideration of other terms, conditions, provisions or exclusions of the above policy, which might affect coverage or the amount of the insurer’s liability there under. Any previous advance payments or deductible should be subtracted from the Appraisal Award amount.

There was also a separate sheet indicating the line-item appraisal amounts for each building, which in part indicated that of the total amount, $3,785,000 was allotted for Waterproofing/Painting.

Olympus filed a complaint against FIGA for breach of contract. FIGA responded with a motion to dismiss, which was denied. FIGA then filed an Answer and Defenses, as well as thirty-six affirmative defenses. The Second Affirmative Defense stated that “[pjursuant to the Policy, Form CP 01 25 06 95, painting or waterproofing material is not covered.” This policy provision, labeled “Windstorm Exterior Paint and Waterproofing Exclusion,” indicates that the policy does not cover loss or damage to paint or waterproofing material applied to the exterior of the buildings.

Olympus filed a Motion to Confirm Appraisal Award and Entry of Final Judgment. The trial court heard the motion, entered an Order granting it, and entered Final Judgment allowing Olympus to recover from FIGA the sum of $7,102,879.76 in principal, less $2,550,545.78 in building deductibles and a $100.00 FIGA deductible, for a total amount of $4,552,233.98.

FIGA appeals the trial court’s order awarding Olympus $4,552,233.98, contending that the trial court erred in failing to determine FIGA’s liability with regard to the contested claim and entering final judgment in an amount equal to the entire appraisal amount. Because this issue involves the trial court’s application of law to facts, the standard of review is de novo. See Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 205 (Fla.2009).

FIGA was created in part to “[p]ro-vide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.” § 631.51(1), Fla. Stat. (2008) (emphasis added). But “the full gamut of a defunct insurance company’s liabilities was not intended to be shifted onto FIGA.” Williams v. Fla. Ins. Guar. Ass’n, Inc., 549 So.2d 253, 254 (Fla. 5th DCA 1989). A “covered claim” is “an unpaid claim, including one of the unearned premiums, which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer.” § 631.54(3), Fla. Stat. (2008).

Appraisal clauses are preferred, as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits. First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1125 (Fla. 2d DCA 2007). Issues relating to coverage challenges are questions exclusively for the judiciary. State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285, 1287 (Fla.1996). However, “ ‘when the insurer admits that there is a covered loss, but there is a disagreement on the amount of loss, it is for the appraisers to arrive at the amount to be paid.’ ” Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021, 1025 (Fla.2002) (quoting Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 816-17 (Fla. 3d DCA 2000)).

In Licea, the Florida Supreme Court decided the issue of whether an appraisal clause that stated “ ‘[o]ur request for an appraisal or examination shall not waive any of our rights’ ” was void for lack of mutuality. The Liceas’ home was damaged by Hurricane Andrew, and there was a dispute as to the amount of damages. 685 So.2d at 1286. Because the appraisers were unable to agree, an umpire was selected. Id. The Liceas argued that the parties were not equally bound because of this clause; thus it was void for lack of mutuality. Id. The court stated as follows:

Thus, where there is a demand for an appraisal under the policy, the only “defenses” which remain for the insurer to assert áre that there is no coverage under the policy for the loss as a whole or that there has been a violation of the usual policy conditions such as fraud, lack of notice, and failure to cooperate. We interpret the appraisal clause to require an assessment of the amount of a loss. This necessarily includes determinations as to the cost of repair or replacement and whether or not the requirement for a repair or replacement was caused by a covered peril or a cause not covered, such as normal wear and tear, dry rot, or various other designated, excluded causes.

Id. at 1288. The court held the appraisal clause was not void for lack of mutuality due to the retention of rights, “where we interpret the clause as retaining only the right to dispute the issues of coverage as to the whole loss, or whether the policy conditions have been violated.” Id.

In Three Palms Pointe, Inc. v. State Farm Fire & Casualty Co., 362 F.3d 1317, 1319 (11th Cir.2004), the Eleventh Circuit relied on Licea to hold that an insurer was limited to challenging coverage for the “loss as a whole” once an appraisal award had been made. In Three Palms Pointe, a condominium association sought confirmation of an appraisal award that determined the amount of the association’s loss under the property insurance policy, including costs of relocating residents while the condominium property was undergoing structural repairs. Id. at 1318. State Farm refused to pay the relocation costs, claiming that these expenses were not covered by its policy. Id. It appealed the district court’s summary judgment entered in favor of the association. Id. The Eleventh Circuit affirmed the summary judgment, holding that, under Licea, State Farm was not permitted to dispute coverage as to a portion of the claim after a binding appraisal award; it could only dispute coverage for the entire claim. Id. at 1319.

However, state courts that are construing and interpreting state law are not bound by the decisions of federal courts. Liberty Am. Ins. Co. v. Kennedy, 890 So.2d 539, 541 (Fla. 2d DCA 2005) (citing Int’l Ass’n of Bridge v. Blount Int’l, Ltd., 519 So.2d 1009, 1012 (Fla. 2d DCA 1987)). In Liberty American Insurance Co. v. Kennedy, 890 So.2d 539, 541 (Fla. 2d DCA 2005), the second district determined that Three Palms Pointe misinterpreted Li-cea ’s holding. It explained, as discussed above, that Licea’s dispositive issue was whether the appraisal clause was void for lack of mutuality. Id. The court stated as follows:

The [Licea ] court recognized that “coverage questions are outside the scope of ... appraisal proceedings” and established that there is a dichotomy between the issue of coverage and the issue of valuation of a covered loss. [Licea, 685 So.2d at 1287.] A coverage issue may exist, of course, even where the insurer has not denied the claim as a whole. The issue of coverage is not necessarily a matter of all or nothing. The court in Licea did not consider the specific circumstance where the scope of coverage is disputed. The reference in Licea to an insured’s right to “dispute the issues of coverage as to the whole loss” was not necessary to the court’s holding that there was no lack of mutuality. To the extent that the reference to “whole loss” can be understood to limit an insured’s right to dispute the scope of coverage where a claim has been submitted to appraisal, it is dictum.

Id. (emphasis added). The court concluded that “the submission of the claim to appraisal does not foreclose Liberty American from challenging an element of loss as not being covered by the policy.” Id. at 541-42 (emphasis added).

Thus, the trial court erred by entering final judgment in favor of Olympus without first determining FIGA’s liability as to the coverage claims contested in its affirmative defenses. Although Li-cea made mention of challenging a “whole loss,” it is not reasonable to order an insurer to pay for all elements set forth by an appraiser if the insurer raises an issue of coverage as to only one element and not the whole claim. See Fisher v. Certain Interested Underwriters at Lloyds Subscribing to Contract No. 242/99, 930 So.2d 756, 759 (Fla. 4th DCA 2006) (stating, with regard to construing a policy too narrowly, that “[t]o do so would require us to turn a blind eye to what common sense dictates”). It is the appraiser’s duty to determine the amount of coverage, while questions of coverage liability are left for the judiciary. Licea, 685 So.2d at 1287. Then, “[i]f a court decides that coverage exists, the dollar value agreed upon by the appraisal process will be binding upon both parties.” Id. at 1287-88.

Our holding in Fisher v. Certain Interested Underwriters at Lloyds Subscribing to Contract No. 242/99, 930 So.2d 756, 759-60 (Fla. 4th DCA 2006), further supports FIGA’s contention that the trial court erred in not permitting it to contest one element of the coverage. In Fisher, the homeowners appealed, in part, the trial court’s order requiring them to repay money given to them by the insurer for future living expenses and depreciation, which was included in the appraisal award. Id. at 757, 759. The insurer tendered the money based on the holding in Three Palms Pointe, because, although it disagreed with that holding, it wanted to avoid any bad faith claims. Id. at 759. We held as follows:

This did not prevent the insurer from asking the state trial court to rule on the issue of coverage for the homeowners’ claim for future additional living expenses and depreciation. The trial court found the claim was not covered and ordered the homeowners to return those funds. We find no error in the court’s decision on this issue and affirm that part of the judgment requiring the homeowners to repay the insurer.

Id. at 759-60 (emphasis added). Thus, we decided that the insurer could contest coverage and liability as to only one element of the claim and appraisal award.

Finally, in Sands on the Ocean Condominium Ass’n, Inc. v. QBE Insurance Corp., No. 05-14362-CIV, 2009 WL 790120, at *2 (S.D.Fla. Mar. 24, 2009), the district court discussed Three Palms Pointe, but explained it was of “limited use” because in Sands, the appraisal contained a disclaimer stating that the award was “ ‘made without any consideration of the deductible amount or prior payments issued to the insured or any terms, conditions, provisions or exclusions’ of the insurance policy.... [Thus, the award] does not reflect the amount owed to Plaintiff under the policy.” Id. Similarly, here, the appraisal award form contained comparable language. The award stated that “[t]his award is made without consideration of other terms, conditions, provisions or exclusions of the above policy, which might affect coverage or the amount of the insurer’s liability there under.” The court also discussed Kennedy and stated that given Kennedy’s holding, “in conjunction with the language in this appraisal award, the Court finds that Defendant is entitled to challenge coverage as to portions of the appraisal award.” Id. at *3.

Based on the above, we conclude that the trial court erred by entering final judgment in favor of Olympus and awarding it the amount set forth in the appraisal (less the deductibles), without first deciding the issue of coverage liability. When FIGA filed its affirmative defenses in response to Olympus’s complaint, the trial court should have first decided FIGA’s liability. As explained in Kennedy and supported by Fisher, FIGA could contest part of the liability without challenging coverage as a whole. The appraisal award itself indicated the amount could change as the award was made without consideration of the policy’s provisions of coverage.

Accordingly, we reverse and remand for the trial court to determine FIGA’s liability with regard to the contested claims, and then enter the appropriate amount based on the appraisal.

Reversed and Remanded.

CIKLIN, J, and BLANC, PETER D„ Associate Judge, concur.

      . When an appraiser uses a line-item appraisal form, as was done here, "a court can readily identify any coverage issues that arise during the course of appraisal and resolve these without having to try and decipher what value the appraiser assigned for a particular type of damage.” Bonafonte v. Lexington Ins. Co., No. 08-21062-CIV, 2008 WL 2705437, at *2 (S.D.Fla. July 9, 2008).


text:
    Luis J. DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-543.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.

      Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant entered a plea of no contest to trafficking in heroin and possession of drug paraphernalia, reserving the right to appeal the denial of his motion to suppress evidence. He argues that the police officers’ warrantless entry into his home after the arrest of an individual outside his home was unlawful. We agree. Because the trial court erred in denying the defendant’s motion to suppress, we reverse.

At the motion to suppress hearing, Detective Vincent Campos of the Broward Sheriffs Office testified that in July 2008 he was engaged in an on-going narcotics investigation of the defendant, based on complaints that the defendant was selling narcotics. While conducting undercover surveillance, Campos observed a white female, later identified as Alexis Russell, leave the defendant’s residence and make contact with an unknown white male, later identified as Steadham. The officer saw Russell reach into Steadham’s pocket and deposit something, which he believed to be narcotics. After Russell and Steadham parted ways, Campos made contact with Steadham. Steadham admitted that Russell delivered narcotics to him and agreed to fully cooperate with the police. He told the officer that he had contacted the defendant to buy the narcotics and explained that they had a code for drug transactions. Once Steadham learned that he would not be released for a felony charge, however, he refused to cooperate any further.

After Steadham was placed in custody, Campos informed his supervisors about the hand-to-hand drug transaction he witnessed. He told them that Steadham said there were probably more drugs inside the defendant’s home and that the defendant was there with his girlfriend. Campos also told the sergeant about his prior interaction with the defendant in January 2008, when the defendant was arrested for possession of heroin after dropping narcotics to the ground when approached by police at his residence.

Members of Detective Campos’s selective enforcement team continued surveillance on the defendant’s home from unmarked police vehicles. Campos stayed in contact with them by radio. At that time, he did not believe he had probable cause to apply for a search warrant.

Detective Gregory Eglund arrived on the scene to assist the take-down team with the arrest of Alexis Russell, who was believed to be inside the defendant’s home. Eglund was informed about her delivery of heroin and the officers’ plan to wait for her to come out. Russell eventually came out and was arrested outside the defendant’s home, about five feet from the front door. The front door remained open. Eglund said he could tell that there were other people inside because from the front door he could see some movement in the back bedroom. Five officers entered the home with guns drawn and performed a protective sweep. Eglund explained that the protective sweep was “for our well being, making sure nobody was armed,” and that they “went inside and detained the other people that were inside the house.”

Eglund went to the back bedroom, where he found the defendant and the defendant’s girlfriend, Stephanie Scott, sitting on the bed. Containers of what appeared to be heroin were lying next to them. The defendant and Scott were detained and brought outside the house. Eglund did not see the defendant or Scott try to destroy any evidence. They did not resist; they were handcuffed and brought outside, where they remained calm and cooperative.

Sergeant Edward Grant testified that both the defendant and Scott were detained and that they were not free to leave. They were read their Miranda rights, given BSO consent forms, and advised of their right to refuse consent. After determining that both the defendant and Scott lived in the house, the officers obtained their signed consents to search the home. The defendant’s handcuffs were removed to allow him to sign the consent from. This occurred within ten to fifteen minutes after the protective sweep. The police did not threaten or coerce the defendant and Scott into signing the consent forms. Neither the defendant nor Scott yelled or resisted; the defendant appeared to sign under his own free will. When Scott signed the consent form, however, she gave a false name.

Scott testified that she did not know the police were in the house until they came into the bedroom. She admitted giving a false name on the consent form, because she “didn’t want to have any responsibility to sign anything, you know, because I didn’t want any part of it.” She testified the officers told her if she did not sign the consent to search form, she would face the same charges as the defendant. She said that she signed it because she was a little scared.

After consent was given, the officers reentered the home to conduct a search. Heroin was found in the bedroom on the bed, on the floor, at the foot of the bed, and around the room. Eglund stated that the heroin that they recovered was only what they had seen during the protective sweep, in addition to heroin out in the open on the floor.

Campos, who described the entry into the defendant’s home as a protective sweep, explained that there are safety concerns with narcotics investigations, and that “[t]ypically, with narcotics investigations, there’s an unknown. You don’t know if there’s going to be weapons inside, if there’s going to be booby traps inside. You are walking into, you know, some type of ambush, maybe, you know, and we have to take precautions for ourselves and for the public.... [I]t’s dangerous business. Typically, there’s guns and drugs.” On cross-examination, however, Campos acknowledged that, although he knew there were occupants inside the residence, he did not know whether or not they were armed. He recalled that the defendant did not resist arrest or pose any threat during his arrest in January 2008. Further, he did not remember any weapons being recovered from the defendant’s home at that time. Campos acknowledged that in January 2008 the officers performed a protective sweep of the defendant’s home after his arrest outside the home and afterwards obtained his consent to search in the same way as they did in July 2008.

At the end of the suppression hearing, the defendant argued that the officers had no right to enter his home to conduct a protective sweep since Russell’s arrest occurred outside the home and the officers had no reasonable belief, based on specific and articulable facts, that the home harbored individuals that posed a danger to them. As such, he argued, any consents given after the illegal entry were invalid.

The court denied the motion. It reasoned that because the officers could see from the front door that there were other individuals inside the home, they were authorized to conduct a protective sweep for their safety and to protect them “from the possibility of any type of harm coming to them.” The court further found that the consent given by the defendant’s girlfriend was valid and that the defendant did not have standing to attack her consent.

The defendant ultimately pled no contest to the charges and reserved the right to appeal the trial court’s ruling on the motion to suppress. He was sentenced concurrently to three years for trafficking in heroin, and 364 days for possession of drug paraphernalia.

The state first argues that the defendant’s motion to suppress was not properly preserved for appeal because, although the defendant indicated at his plea hearing that he intended to appeal the denial of the motion to suppress, the court did not rule, nor did the parties stipulate, that the ruling was dispositive.

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) permits a defendant to appeal from a guilty or nolo contendere plea when the defendant “expressly reserved the right to appeal a prior disposi-tive order of the lower tribunal, identifying with particularity the point of law being reserved.” “An issue is dispositive only when it is clear that regardless of the outcome of the appeal, there will be no trial.” Fuller v. State, 748 So.2d 292, 294 (Fla. 4th DCA 1999) (citing Vaughn v. State, 711 So.2d 64, 65 (Fla. 1st DCA), rev. denied, 722 So.2d 195 (Fla.1998)). It is the trial court’s duty “to determine the dispos-itive nature of the reserved question.” Everett v. State, 535 So.2d 667, 669 (Fla. 2d DCA 1988). The court errs if it “merely acknowledges that the defendant has reserved an issue for appellate review.” Id.

However, “where a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.” J.J.V. v. State, 17 So.3d 881, 883 (Fla. 4th DCA 2009) (citing Brown v. State, 376 So.2d 382, 385 (Fla.1979); Howard v. State, 515 So.2d 346 (Fla. 1st DCA 1987)). “Thus, the lack of an express finding that the issue is dispositive is not fatal.” Id. (citing Hawk v. State, 848 So.2d 475, 478 (Fla. 5th DCA 2003)).

Here, the defendant was charged with trafficking in heroin. The information alleged that the defendant “did then and there unlawfully and knowingly have in his actual or constructive possession a controlled substance” contrary to sections 893.135(l)(c)la and 893.03(l)(b)(ll), Florida Statutes. Because the defendant was charged with trafficking through possession, the possession cases that hold that the lack of a dispositiveness finding is not fatal apply in this case. We thus find that the issue was properly preserved.

On the merits, the state argues that the trial court correctly denied the motion to suppress because the officers clearly articulated facts, based on the circumstances of this case, which justified a protective sweep of the defendant’s home.

A protective sweep is “ ‘a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others.’ ” Vasquez v. State, 870 So.2d 26, 30 (Fla. 2d DCA 2003) (quoting Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). It may only extend to those places where a person may be hiding. Runge v. State, 701 So.2d 1182, 1183 (Fla. 2d DCA 1997) (citing Buie, 494 U.S. at 335, 110 S.Ct. 1093).

Without extraordinary circumstances, “government agents have no right to search a dwelling when an arrest is effectuated outside it.” Klosieski v. State, 482 So.2d 448, 450 (Fla. 5th DCA 1986) (citing Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970)). The threshold to the entrance of a house “may not reasonably be crossed without a warrant” absent exigent circumstances. Id. (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).

Regardless of whether the initial arrest is made inside or outside the home, “ ‘police officers have a right to conduct a quick and cursory check of a residence when they have reasonable grounds to believe that there are other persons present inside the residence who might present a security risk.’ ” Newton v. State, 378 So.2d 297, 299 (Fla. 4th DCA 1979) (quoting U.S. v. Bowdach, 561 F.2d 1160 (5th Cir.1977)). The officers must have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence. United States v. Thompson, No. 08-60264-CR-COHN, 2009 WL 302037, at *1 (S.D.Fla. Feb. 6, 2009). Further, “a protective sweep of the inside of a residence incident to an arrest made outside the residence is not per se unlawful, and is proper if the arresting officer has (1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons were aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public.” United States v. Flores, No. 2:08-cr-108-FtM-29SPC, 2009 WL 55022, at *2 (M.D.Fla. Jan.7, 2009) (citing United States v. Oguns, 921 F.2d 442, 446 (2d Cir.1990)).

In Klosieski v. State, 482 So.2d 448, 449 (Fla. 5th DCA 1986), the police conducted a protective sweep of the house after the two defendants were arrested and secured outside the home. The fifth district reversed the denial of the motion to suppress, holding that “the police had no reason to believe that other individuals, dangerous to their safety, were inside the house.... The fact that the police did not know, as an absolute ceHainty, whether more people were in the house ... cannot justify entry into the house.” Id. at 450 (emphasis supplied).

Here, the officers had a reasonable belief that third persons were inside. Not only did Steadham tell Campos that the defendant and Scott were in the house, but Eglund testified he saw some movement in the back bedroom. However, no evidence was adduced at the hearing to establish the required “reasonable, articulable suspicion” that these individuals posed a danger and might jeopardize the officers’ safety or destroy evidence. The officers testified only about their general safety concerns with narcotics investigations. Their testimony suggests that they entered the residence as part of a routine practice, rather than on the basis of any articulable facts which would warrant a reasonable belief that the occupants posed a threat to officer safety. See Mestral v. State, 16 So.3d 1015, 1018 (Fla. 3d DCA 2009) (holding that a protective sweep of the defendant’s home was impermissible where no exigent circumstances existed).

Moreover, exigent circumstances did not exist to support a warrant-less entry to search the defendant’s house. Warrantless searches are considered, under the Fourth Amendment, per se unreasonable, subject to certain exceptions. Hornblower v. State, 351 So.2d 716, 717 (Fla.1977) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The state bears the burden to demonstrate that “procurement of a warrant was not feasible because ‘the exigencies of the situation made that course imperative.’ ” Id. (citing McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948)). Even if they have probable cause, “police officers may not enter a dwelling without a warrant, absent consent or exigent circumstances.” Levine v. State, 684 So.2d 903, 904 (Fla. 4th DCA 1996) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). The measure of reasonableness is totality of the circumstances. Wright v. State, 1 So.3d 409, 412 (Fla. 2d DCA 2009) (citing Lee v. State, 856 So.2d 1133, 1136 (Fla. 1st DCA 2003)).

The state must prove that the police lacked sufficient time to obtain a warrant; “if time to get a warrant exists, [then] the enforcement agency must use that time to obtain the warrant.” Hornblower, 351 So.2d at 718. The Florida Supreme Court explained that “[l]aw enforcement officers may not sit and wait ... (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent circumstances.” Id. at 719. In this case, the state failed to present evidence of any exigent circumstances that would have made procurement of a warrant not feasible. Campos had sufficient probable cause to apply for a search warrant, based on his observations of the hand-to-hand transaction, Steadham’s statements and admissions, and the defendant’s arrest for heroin possession six months earlier. Yet, rather than obtain a warrant, the police continued surveillance, waited for Russell to re-emerge from the house, and then arrested her just a few feet from the front door. The state failed to establish that sufficient time did not exist during this interim to procure a search warrant. In Hornblower, the court held that forty-five minutes was an unreasonable length of time and that the warrantless search was unjustified. State v. Moyer, 394 So.2d 433, 435 (Fla. 2d DCA 1980) (citing Hornblower, 351 So.2d at 717, and Wilson v. State, 363 So.2d 1146 (Fla. 2d DCA 1978)) (stating “[t]he courts held that 45 minutes in Homblower and six hours in Wilson were unreasonable lengths of time and thus the warrantless searches were unjustified”).

Further, the state presented no evidence that the defendant or Scott knew of the police presence outside their home or that the officers perceived them doing anything to indicate that they were attempting to destroy evidence or to escape. See Gilbert v. State, 789 So.2d 426, 428 (Fla. 4th DCA 2001) (explaining an exigent circumstance includes “where the possessor of contraband is aware that the police are on his or her trail”). In Lee v. State, 856 So.2d 1133, 1138 (Fla. 1st DCA 2003), the court explained that “in order to justify a war-rantless entry into a residence to prevent the imminent destruction of evidence, the police must have an objectively reasonable fear that the evidence will be destroyed before a warrant can be obtained.” The Florida Supreme Court in Benefield v. State, 160 So.2d 706 (Fla.1964), also held that “exigent circumstances exist where the occupants of the house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence.” Lee, 856 So.2d at 1138 (citing Benefield, 160 So.2d 706). Fears based on generalizations about drugs and guns are not enough to create an exigent circumstance. Id. at 1139-40.

In Rebello v. State, 773 So.2d 579, 579-80 (Fla. 4th DCA 2000), the defendant was supplying cocaine from his motel room. When an officer knocked on his door and announced he was a police officer, the defendant ran to the bathroom. The officer could hear the toilet flushing and the shower running, so he kicked in the door. Id. at 580. We reversed the trial court’s denial of the defendant’s motion to suppress, concluding that the officer’s actions triggered the excitement that led to insufficient time to obtain a warrant. Id. at 581. The police “may not create exigent circumstances by their own conduct.” Id. at 580 (citing Levine, 684 So.2d at 904).

Because the police were not justified in entering the defendant’s house without a warrant and conducting a protective sweep, the consents to search given by the defendant and Scott were invalid. It is well-settled law that “where ... a ‘consent [to search] is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.’ ” Gonzalez v. State, 578 So.2d 729, 734 (Fla. 3d DCA 1991) (quoting Norman v. State, 379 So.2d 643, 646-47 (Fla.1980)). We explained that “ ‘[c]onsent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.’ ” Navamuel v. State, 12 So.3d 1283, 1286 (Fla. 4th DCA 2009) (quoting Delorenzo v. State, 921 So.2d 873, 879 (Fla. 4th DCA 2006)). Here, the state failed to prove that the taint of illegal entry was dissipated by subsequent events. See State v. Sakezeles, 778 So.2d 432, 434 (Fla. 3d DCA 2001) (the state bears the burden to show that the taint of illegal entry was dissipated by subsequent events).

Accordingly, we reverse the denial of the defendant’s motion to suppress and reverse and remand for further proceedings.

CIKLIN, J. and BLANC, PETER D., Associate Judge, concur.