         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                             NOT FINAL UNTIL TIME EXPIRES TO
                                             FILE MOTION FOR REHEARING AND
                                             DISPOSITION THEREOF IF FILED

STATE OF FLORIDA,

             Appellant,

 v.                                               Case No. 5D16-792

RICHARD ARVIN GUEVARA,

             Appellee.

________________________________/

Decision filed January 13, 2017

Appeal from the Circuit Court
for Orange County,
Alan S. Apte, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellant.

James S. Purdy, Public Defender, and
Kevin R. Holtz, Assistant Public Defender,
Daytona Beach, for Appellee.


PER CURIAM.


      AFFIRMED.




ORFINGER and EDWARDS, JJ., concur.
BERGER, J., concurring specially.
BERGER, J., concurring specially.                                              5D16-0792

       It is more likely than not that exigent circumstances existed in this capital sexual

battery case to justify the warrantless search. However, at the hearing on Guevara’s

motion to suppress, the State inexplicably failed to put on any evidence in support of the

exigency exception, even after being given the opportunity to reopen its case. 1 For this

reason, I am constrained to concur.




              1 In addition to the testimony presented during the hearing on Guevara’s
motion to suppress, the record on appeal contains the police report and a transcript of the
victim’s mother’s testimony. The additional information, while probative, was not
introduced at the hearing and, thus, was not considered by the trial court when ruling on
the motion to suppress.
                                            2
