author: PALMER, J.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. CENTRAL FLORIDA PHYSIATRISTS, P.A., Appellee.
    No. 5D02-826.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Certification Denied Aug. 8, 2003.

      Bruce Allen Aebel, W. Donald Cox and Charles Tyler Cone of Fowler White Boggs Banker, P.A., Tampa, and Richard Godfrey of Kirkland & Ellis LLP, Chicago, Illinois for Appellant.
    Gregory A. Victor of Adorno & Yoss, P.A., Miami, Amicus Curiae ADP Integrated Medical Solutions, Inc., on behalf of Appellant.
    David B. Shelton of Rumberger Kirk & Caldwell, Orlando and Peter J. Valeta of Ross & Hardies, Chicago, Illinois, Amicus Curiae, Allstate Insurance Co. and Florida Defense Lawyers Assoc., on behalf of Appellant.
    George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, and Donald A. Myers of Bailey & Myers, P.A., Maitland, for Appellee Central Florida Physiatrists, P.A.
    William F. Merlin, Jr., and Mary E. Kestenbaum of Gunn Merlin, P.A., Tampa Amicus Curiae, The Academy of Florida Trial Lawyers, on behalf of Appellee.
    Laura M. Watson of Watson & Lentner, Ft. Lauderdale, Amicus Curiae, The Florida Hospital Assoc. & the Florida Ortho-paedic Society, on behalf of Appellee.
    Eric Lee of Lee & Amtzis, P.L., Deer-field Beach, Amicus Curiae, Florida Medical Assoc., on behalf of Appellee.
   PALMER, J.

Nationwide Mutual Fire Insurance Company (Nationwide) appeals the summary judgment entered by the county court in favor of Central Florida Physiatrists (CFP). The judgment required that Nationwide pay CFP the reasonable and necessary medical expenses incurred by Nationwide’s PIP insured, not the reduced PPO amount for such services, because Nationwide had failed to comply with the provisions of section 627.736(10) of the Florida Statutes (1999) which authorized the payments of PPO amounts. The court also certified the following question to this court as being of great public importance:

IS AN INSURER REQUIRED TO COMPLY WITH THE PROVISIONS OF SECTION 627.736(10), FLA. STAT. (1999) IN ORDER TO TAKE PREFERRED PROVIDER REDUCTIONS IN THE PAYMENT OF PIP BENEFITS FOR MEDICAL SERVICES RENDERED TO ITS INSUREDS?

Finding no error, we affirm the county court’s summary judgment order and answer the certified question in the affirmative.

CFP filed suit against Nationwide in county court seeking payment for medical services provided to Nationwide’s PIP insured, Therese Jivoin. The pleadings explained that Jivoin had received medical treatment from CFP for injuries she sustained in an automobile accident. The payment for such treatment was covered by Jivoin’s PIP policy. When Nationwide refused to pay the full amount charged by CFP for Jivoin’s medical care, Jivoin assigned her rights to receive such payment to CFP. CFP, as assignee, thereafter sought recovery of the amount still owing on Jivoin’s bill, as well as attorney’s fees and costs. Nationwide defended, alleging that since CFP was a participating medical provider in the Beech Street PPO (a health care management provider), CFP was only entitled to be reimbursed at agreed PPO rates (not the PIP statutory rate of 80% of the usual, customary and related charges as set forth in section 627.736(1) of the Florida Statutes) because Nationwide was also a member of the Beech Street PPO.

CFP moved for summary judgment, alleging that since Nationwide had not directly contracted with CFP to be a part of a PPO, had not complied with the requirements of section 627.736(10)of the Florida Statute (1999), and had not sold Jivoin a PPO policy, Nationwide was not entitled to pay at the reduced PPO rate.

In entering summary judgment in favor of CFP, the trial court concluded that section 627.736(10) of the Florida Statutes (1999) provides the exclusive means by which an insurance company can pay PPO rates for PIP benefits, and that since Nationwide had failed to comply with the terms of the statute, it was not entitled to pay CFP at the reduced PPO rate. We agree.

Section 627.736 of the Florida Statutes (1999) provides, in pertinent part, as follows:

627.736. Required personal injury protection benefits; exclusions; priority; claims
(1) Required benefits. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.
(10) An insurer may negotiate and enter into contracts with licensed health care providers for the benefits described in this section, referred to in this section as “preferred providers,” which shall include health care providers licensed under chapters 458, 459, 460, 461, and 463. The insurer may provide an option to an insured to use a preferred provider at the time of purchase of the policy for personal injury protection benefits, if the requirements of this subsection are met. If the insured elects to use a provider who is not a preferred provider, whether the insured purchased a preferred provider policy or a nonpre-ferred provider policy, the medical benefits provided by the insurer shall be as required by this section. If the insured elects to use a provider who is a preferred provider, the insurer may pay medical benefits in excess of the benefits required by this section and may waive or lower the amount of any deductible that applies to such medical benefits. If the insurer offers a preferred provider policy to a policyholder or applicant, it must also offer a nonpreferred provider policy. The insurer shall provide each policyholder with a current roster of preferred providers in the county in which the insured resides at the time of purchase of such policy, and shall make such list available for public inspection during regular business hours at the principal office of the insurer within the state.

§ 627.736(l)(a)(10), Fla. Stat. (1999).

Section 627.736(10) provides the sole language relating to the availability of PPO benefits in PIP cases. Said language is precise and limited in scope, thereby indicating the legislature’s intent that the availability of PPO PIP benefits is subject to strict compliance with the terms of subsection (10). The plain language of the statute states that an insurance company is permitted to contract with licensed healthcare providers for PPO benefits, but the statute provides no specific authority for insurance companies to contract with PPO networks.

Nationwide raises several additional claims of error. First, Nationwide maintains that the trial court’s ruling improperly “voided Nationwide’s agreement with Beech Street to give Nationwide’s PIP insureds access to treatment at PPO rates.” Next, Nationwide contends that CFP lacks standing to assert a claim against Nationwide because no standing is granted to medical providers by the PIP statutes. Nationwide also argues that the trial court erred in permitting CFP to invoke the terms of section 627.736(10) to void its agreement with Beech Street since the statute contains no private right of enforcement. We reject all these contentions as being without merit.

The trial court’s ruling does not void the agreement between Nationwide and Beech Street, but merely holds that it is inapplicable under the facts presented in this case. Furthermore, it is undisputed that CFP asserted its breach of contract claim against Nationwide in its capacity as the assignee of Jivoin’s rights under her PIP contract, not as a medical provider. As such, CFP possessed the same rights as Jivoin possessed vis a vis Nationwide, including the right to institute suit to enforce the terms of Jivoin’s PIP contract. Similarly, it is clear from the record that CFP has not sought to invoke the terms of section 627.736(10), but rather is merely suing for recovery of benefits under the standard PIP statute, section 627.736(1), Florida Statutes (1999). Accordingly, it is irrelevant that section 627.736(10) does not contain a private right of enforcement.

In summary, Nationwide was required to comply with the provisions of section 627.736(10) in order to take advantage of the option of paying reduced PPO rates for payment of PIP benefits. Its failure to do so requires Nationwide to pay the statutorily mandated 80% of the reasonable and necessary expenses incurred on behalf of its insured. Accordingly, the order of the trial court is affirmed and the certified question is answered in the affirmative.

AFFIRMED.

SAWAYA and PLEUS, JJ., concur.

      . Jurisdiction over this matter is authorized under rule 9.160 of the Florida Rules of Appellate Procedure.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell GREENE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1259.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Rehearing Denied Aug. 11, 2003.
    Steven G. Mason of the Law Offices of Steven G. Mason, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We elect to treat the petition for writ of mandamus as an appeal of the trial court’s orders denying Petitioner’s request to compel the Clerk of the Circuit Court of Orange County to produce certain records. Having thoroughly reviewed the matter, we find no error.

AFFIRMED.

PETERSON, PALMER and ORFINGER, JJ., concur.

      . See Fla. R.App. P. 9.040(c).


author: WHATLEY, Judge.

text:
    Kenneth J. STETSON, as personal representative of the Estate of Frances R. Stetson, deceased, and Kenneth J. Stetson, individually, Appellant, v. EXTENDICARE, INC., Extendicare Health Facilities, Inc., f/k/a Unicare Health Facilities, Inc., Extendicare Homes, Inc., f/k/a Unicare Homes, Inc., Extendicare Health Services, Inc., d/b/a The Arbors At Lakeland, Clark Burma, individually, and Daniel R. Davis, individually, Appellees.
    No. 2D02-5395.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
    Rebecca O’Dell Townsend of Haas, Dut-ton, Capito, Blackburn, Lewis & Longley, P.A., Tampa, for Appellants.
    Jamie Billotte Moses and Michael R. Willis of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees.
   WHATLEY, Judge.

Kenneth J. Stetson, individually and as personal representative of the estate of Frances R. Stetson, his wife, appeals the dismissal of his complaint with prejudice. We conclude that the trial court erred in dismissing the complaint and reverse.

Frances Stetson was a resident of the Arbors at Lakeland, and while being transported by Independent Community Transport (ICT), she fell from her wheelchair. Frances Stetson sustained injuries as a result of the fall, and less than one month later she died. Kenneth Stetson initially sued ICT, and the case was tried before a jury. During the trial, Stetson and ICT reached a settlement agreement, and as part of the agreement, Stetson agreed to assign to ICT his right to damages awarded in his suit against the Arbors.

Thereafter, ICT and Stetson both filed suit against the appellees, alleging negligence and a violation of Frances Stetson’s rights pursuant to section 440.022, Florida Statutes (1997). This complaint was dismissed upon the appellees’ motion, which alleged that the assignment between Stetson and ICT was improper. A second complaint was dismissed on the same ground.

Stetson then filed the complaint at issue individually and as personal representative of his wife’s estate. The trial court also dismissed this complaint upon the appel-lees’ motion, ruling that the assignment between Stetson and ICT was improper and was therefore void. We conclude that the trial court erred in dismissing the complaint with prejudice because, regardless of whether Stetson’s assignment to ICT was valid, ICT was no longer a party to the action and the assignment did not foreclose Stetson from filing suit against the appellees.

The appellees request this court to affirm based on other grounds raised in their motion to dismiss. However, we decline to do so because it would require us to improperly look beyond the. four corners of the complaint. Hayward & Assocs. v. Hoffman, 826 So.2d 332 (Fla. 2d DCA 2002). Therefore, the order dismissing the complaint is reversed.

Reversed and remanded for proceedings consistent with this opinion.

STRINGER and COVINGTON, JJ., Concur.


author: STRINGER, Judge.

text:
    LOW COST AUTO PAWN, INC., n/k/a Low Cost Auto Pawn, Inc., a Florida corporation, Ralph E. Lang, individually, Ralph E. Lang a/k/a Ralph E. Lang, Jr., as Trustee of the Ralph E. Lang, Jr. Inter Vivos Trust Agreement dated October 21, 1998, and Ralph Lang, as Trustee of the S-P Trust Agreement, Appellants, v. Jeannette GRECO, Appellee.
    No. 2D02-1907.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
    Rehearing Denied July 31, 2003.

      Wm. Newt Hudson, Tarpon Springs, for Appellants.
    Hugh C. Umsted of Hugh C. Umsted, P.A., New Port Richey, for Appellee.
   STRINGER, Judge.

Low Cost Auto Pawn, Inc. (“Pawn”) seeks review of the final summary judgment that awarded Jeanette Greco $32,656 plus interest plus attorney’s fees and costs and imposed a lien over Ralph E. Lang’s homestead property for the entire amount. We affirm entry of the summary judgment as to liability and damages, but reverse the imposition of an equitable lien on Lang’s homestead property and the attorney’s fee and cost awards.

Greco initially filed suit against Pawn and Lang, alleging a variety of causes of action all arising out of a transaction between Greco and Pawn and a separate entity, the S-P Trust. In August 1995 Greco entered into an encumbrance of title and lien agreement with Pawn, and Greco simultaneously entered into a separate marketing agreement with the S-P Trust. Under the marketing agreement Greco was obligated to pay the S-P Trust certain sums, and under the encumbrance of title and lien agreement the payment of those sums was secured by a lien on Greco’s vehicle. Greco was also paid $1000 pursuant to the encumbrance of title and lien agreement.

When Greco failed to make the payments due under the marketing agreement, Pawn repossessed her vehicle and sold it at auction. After various amendments to her pleadings, Greco’s fourth amended complaint sought damages under theories of bailment, conversion, unfair and deceptive trade practices, usury, and for an illegal debt. Greco asserted that the two agreements actually constituted an illegal loan agreement between Greco and Pawn, whereby Greco obtained a $1000 loan from Pawn and the loan was secured by a lien against Greco’s vehicle. Pawn and Lang maintained that the transaction was not a loan agreement but was a contract for the marketing of Greco’s vehicle.

Greco also asserted that Lang should be held personally liable for the actions of Pawn because Pawn was a mere instrumentality of Lang and Pawn was used for an illegal purpose. Greco sought the imposition of an equitable lien over homestead property owned by the Ralph E. Lang, Jr. Inter Vivos Trust, alleging that Lang, as trustee of the Ralph E. Lang, Jr. Inter Vivos Trust, used the illegal funds Pawn received from Greco for the benefit of the property. The trial court ultimately granted Greco’s motion for summary judgment and entered a judgment awarding Greco damages in the principal amount of $32,656, plus prejudgment interest, along with attorney’s fees and costs. The judgment also imposed a lien over Lang’s homestead property for the total sums due.

On appeal, Pawn argues that the trial court erred in (1) granting Greco’s motion for summary judgment, (2) imposing an equitable lien over Lang’s property, and (3) awarding attorney’s fees and costs. We affirm all aspects of the summary judgment relating to liability without comment. However, we reverse the imposition of an equitable lien over Lang’s homestead property and the attorney’s fee and cost awards.

We conclude that the trial court erred in imposing an equitable lien over Lang’s homestead property because there is a genuine issue of material fact regarding whether Lang used the illegal proceeds he obtained from Greco to invest in, improve, or purchase a homestead. See Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1028 (Fla.2001). The trial court based the imposition of the lien on Lang’s admission that he deposited the proceeds in a personal bank account that he used to pay for property taxes and some small improvements on the homestead. However, it is not clear that the proceeds obtained from Greco were the only source of money in the account. Thus, Lang may have paid his property taxes and made “improvements” using money that was not a proceed from illegal conduct.

We also conclude that the trial court erred in awarding Greco attorney’s fees based solely on the contract for contingency attorney’s fees. Pawn correctly argues that the trial court was required to consider the guidelines set forth for determining the reasonableness of attorney’s fees in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), in addition to the contract for contingency attorney’s fees. Because the trial court failed to make findings regarding the Rowe factors, reversal is required. See Lara v. Fortune Ins. Co., 545 So.2d 909, 910 (Fla. 2d DCA 1989); S. Farm Bureau Life Ins. Co. v. Hoover, 833 So.2d 261, 261-62 (Fla. 4th DCA 2002). On remand, the trial court shall also recalculate the amount of costs because the cost award erroneously includes a portion of attorney’s fees. See Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 915 (Fla.2001) (holding that, as a general rule, only taxable costs should be included in a cost judgment). Greco concedes error on this point.

In conclusion, we find that the trial court did not err in entering summary judgment as to liability and damages. However, there is a genuine issue of material fact regarding whether the imposition of an equitable lien over Lang’s homestead property is proper, and a hearing on the matter is thus required. Additionally, the attorney’s fee and cost awards were erroneously entered without a determination of reasonableness.

Affirmed in part, reversed in part, and remanded.

FULMER and NORTHCUTT, JJ., Concur.

      . Lang is the trustee and sole beneficiary of the S-P Trust.


author: CANADY, Judge.

text:
    Phillip N. NORLAND, Appellant, v. VILLAGES AT COUNTRY CREEK MASTER ASSOCIATION, INC., Jack Blackburn, Frank Binka, Ed Eisele, Robert Spurlock, Wimp Moyer, George Falber, Robert Selby, Gene Hersch, and Bill Martin, Appellees.
    No. 2D02-3858.
    District Court of Appeal of Florida, Second District.
    July 2, 2003.
    Rehearing Denied Aug. 1, 2003.

      Phillip N. Norland, pro se.
    ' Michael R. Whitt and Sanjay Kurian of Becker & Poliakoff, P.A., Ft. Myers, for Appellees.
   CANADY, Judge.

Phillip N. Norland appeals an award of attorney’s fees that followed the dismissal of his lawsuit against the appel-lees, Villages at Country Creek Master Association, Inc. (a homeowners’ association), and members of its board of directors. Norland’s complaint alleged a failure to comply with the provisions of chapter 617, Florida Statutes (1999), relating to the duties of homeowners’ associations. Section 617.305(1) provides that the prevailing party in such litigation is entitled to recover attorney’s fees. The appel-lees became the prevailing party when Norland’s claim was dismissed for failure to prosecute. See Stout Jewelers v. Corson, 639 So.2d 82 (Fla. 2d DCA 1994) (holding that -defendant was prevailing party for purposes of awarding attorney’s fees when plaintiffs complaint was dismissed for failure to prosecute). Accordingly, we affirm the award of attorney’s fees pertaining to proceedings before the trial court.

However, we reverse the portion of the fee award pertaining to Norland’s previous appeals concerning the trial court’s dismissal of his suit. Since — as the appel-lees concede — neither this court nor the Florida Supreme Court issued an order awarding fees for Norland’s previous appeals, the trial court was without authority to award such fees. See Rados v. Rados, 791 So.2d 1130, 1131 (Fla. 2d DCA 2001) (stating that ordinarily “[a] trial court cannot award appellate attorney’s fees unless the appellate court has authorized such an award”). We therefore direct the trial court to recalculate the attorney’s fee award without including fees for those appeals.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and STRINGER, JJ„ concur.


author: SHARP, W., J.

text:
    Charles CAMAROTO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-273.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Rehearing Denied Aug. 8, 2003.
    Charles Camaroto, Crestview, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Camaroto appeals from the summary denial of his motion seeking post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, concerning his conviction for armed burglary of a dwelling (Case No. 98-226). He is a frequent filer with this court. We affirm, finding the motion is successive.

In June of 2000, Camaroto filed a motion for post-conviction relief, concerning Case No. 98-226. The trial court summarily denied the motion on March 14, 2001. No appeal was taken.

In January of 2002, Camaroto filed a second motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, concerning Case No. 98-226. The trial court denied it on September 11, 2002, as successive because it repeated the same issues raised in the first motion.

On October 8, 2002, Camaroto filed a lengthy petition for writ of habeas corpus in the Florida Supreme Court, reiterating the claims he raised in his second motion. The court treated his petition as an appeal from the trial court’s September 11, 2002 denial of his second motion and transferred the case to our court.

Although Camaroto’s pleading in this proceeding is exceedingly lengthy, it is basically a repeat of his first motion. As such, it is successive and improper. We warn Camaroto against filing additional successive pleadings in this court regarding his conviction in Case No. 98-226. His attempt to do so will result in an order instructing the Clerk of this court not to accept further pro se pleadings regarding that case unless signed by an attorney licensed to practice law in this state.

AFFIRMED.

SAWAYA, C.J., and THOMPSON, J., concur.

      . See Case Nos. 01-636, 01-637, 01-2456, 02-344, 02-755, 02-1525, 02-1527, 02-1664, 02-1670. This court prohibited the defendant from any further pro se filings with the exception of direct appeals of post-conviction motions. See Camaroto v. Pomar, 830 So.2d 955 (Fla. 5th DCA 2002).

      . See Polk v. State, 820 So.2d 456 (Fla. 5th DCA 2002); Freeman v. State, 773 So.2d 110 (Fla. 5th DCA 2000), rev. denied, 805 So.2d 806 (Fla.2001).


text:
    Nicolas MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1890.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2003.
    Rehearing Denied Aug. 13, 2003.
    Nicolas Martinez, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002).

SHARP, W., PLEUS and PALMER, JJ., concur.


author: VILLANTI, Judge.

text:
    Oneil LUIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3275.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      James Marion Moorman, Public Defender, and Charles D. Peters, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Oneil Luis challenges his conviction and sentence for possession of cocaine with intent to sell within 1000 feet of a church. Because the State committed a discovery violation and the trial court’s actions did not sufficiently cure the resulting prejudice, we reverse.

Three Winter Haven police officers traveled to a Marathon gas station located 500 feet from the First Christian Church based on a tip that a black male wearing a yellow shirt was selling cocaine in the parking lot of that gas station. When the officers arrived at the gas station, they spotted Luis, who fit the description of the seller provided in the tip. As the officers approached Luis, he fled. During the brief foot chase, Luis allegedly threw a brown cigar tube to the ground. When the cigar tube was recovered, it contained approximately twenty pieces of crack cocaine. Upon arrest, Luis had $131 in cash in his pocket. Following Miranda warnings, Luis allegedly told the officers that he had just started selling crack cocaine.

Prior to trial, the State provided its discovery exhibit, including its list of witnesses, to Luis’ counsel. Officer Fields was listed as a category A witness on the State’s discovery exhibit; however, he was not designated as an expert witness. At trial, after Officer Fields testified to the facts surrounding Luis’ arrest, the State began questioning Officer Fields concerning his training and experience in narcotics investigations. When Luis objected on relevance grounds, the State indicated for the first time that it intended to qualify Officer Fields as an expert in street-level narcotics transactions and drug investigations. Luis then objected on the ground that Officer Fields was not listed as an expert witness on the State’s discovery exhibit.

At a sidebar conference, the State agreed that it had not listed Officer Fields as an expert witness on its discovery exhibit but argued that it was not required to designate which category A witnesses it intended to call as experts. The trial court then asked Luis’ counsel, Mr. Mills, whether Luis had been prejudiced by the State’s omission. Mr. Mills told the trial court that he would have prepared differently for Officer Fields’ testimony and would have altered his case preparation had he known that the State intended to use Officer Fields as an expert witness on intent. Mr. Mills asked for a two-week continuance to prepare for this unanticipated testimony. The trial court denied Luis’ request for a continuance but did recess the trial for one hour so that Mr. Mills could review Officer Fields’ personnel file.

When the trial resumed, the State elicited testimony from Officer Fields that, in his experience, the most common container for carrying crack cocaine is a cigar tube. Officer Fields also testified that an individual who uses crack cocaine will usually have some type of device for smoking it in their possession: “[Yjou’ll very rarely find crack cocaine on a user, you’ll find a pipe with residue on it.” Officer Fields testified that the factors to be considered in determining whether drugs are intended for personal use or for sale are (1) the type of packaging used; (2) the quantity of cocaine found; (3) the amount and type of money found on the person; (4) any devices found for using the cocaine; and (5) the street value of the cocaine.

After offering this testimony, the State elicited the following from Officer Fields:

Q Officer Fields, based on the training and experience and schooling you’ve had in the area of street level drug investigations, and your own personal experience working undercover in the field, and the individual facts of this case involving Mr. Luis, do you have an opinion as to whether Mr. Luis’ possession of the alleged — or his alleged possession of the cocaine in this case was for his own personal use or for sale to others?

A For sale to others.

After the State rested, Luis testified in his own defense. He admitted that he had run from the police but denied that he had possessed or dropped the cigar tube. He also denied telling the police that he had just started selling cocaine. He also testified that he had $131 in his pocket because he had just cashed his social security check. Luis introduced a copy of the canceled check into evidence. After deliberations, the jury found Luis guilty as charged.

In this appeal, Luis contends that the State committed a discovery violation by not designating Officer Fields as an expert witness on its discovery exhibit and that the trial court’s actions failed to cure the prejudice that resulted from the violation. We agree.

Florida Rule of Criminal Procedure 3.220(b)(l)(A)(i)(7) specifically requires the State to provide a defendant who has elected to participate in discovery with the following information:

(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:
(i) Category A .... (7) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

Here, while Officer Fields was not going to testify to test results or other information requiring a Frye determination, he also did not provide a written report and a curriculum vitae. Therefore, under the plain language of rule 3.220(b)(l)(A)(i)(7), the State was required to designate Officer Fields as an expert witness.

The State argues that because it listed Officer Fields as a category A witness on its discovery exhibit, it was not also required to indicate that he would testify as an expert. This argument has two flaws. First, the State designated its Florida Department of Law Enforcement witness as an expert witness on the same discovery exhibit. Therefore, the State clearly believed that it had some obligation to designate which category A witnesses were experts, but it chose not to designate Officer Fields as such. At best, this was misleading. See State v. Evans, 770 So.2d 1174, 1182 (Fla.2000) (noting that furnishing misleading or inaccurate discovery is tantamount to furnishing no discovery at all and may be a violation of the discovery rules). Second, the supreme court has noted that rule 3.220 imposes an obligation on the State to provide the defense with a list of the expert witnesses it intends to call at trial. See Kearse v. State, 770 So.2d 1119, 1127 (Fla.2000) (upholding rule 3.202 against a constitutional challenge that it provided one-sided discovery by noting that rule 3.220 “spells out very specific discovery obligations” by both parties, including the obligation to provide a list of experts). Therefore, the State’s failure to designate Officer Fields as an expert witness constituted a discovery violation.

Because the State committed a discovery violation, it was incumbent on the trial court to conduct a Richardson hearing. Pursuant to Richardson v. State, 246 So.2d 771, 774-75 (Fla.1971), the trial court was required to determine whether the State’s discovery violation was (1) inadvertent or willful, (2) trivial or substantial, and (3) prejudicial to Luis’ trial preparation. In this case, the trial court held what can only be termed as a de facto Richardson hearing. The trial court asked the State whether it had designated Officer Fields as an expert. The State replied that it had not. The trial court then asked Mr. Mills how his trial preparation had been prejudiced. After Mr. Mills told the trial court how he was prejudiced, the trial court recessed the trial for one hour so that Mr. Mills could review Officer Fields’ personnel file. The trial court did not make any findings as to whether the discovery violation was inadvertent or willful or whether it was trivial or substantial, and, while the trial court apparently believed that the omission had prejudiced Luis to some degree, it made no such finding on the record. It did, however, fashion a remedy by allowing a one-hour recess so that Mr. Mills could review Officer Fields’ personnel file.

Luis argues that the remedy fashioned by the trial court was insufficient to cure the prejudice that resulted from the State’s discovery violation. Again, we agree. While Mr. Mills did have the opportunity to review Officer Fields’ personnel file, he told the trial court that he would have altered his case presentation had he known that Officer Fields was going to testify as an expert. Moreover, common sense indicates that given the critical nature of this testimony, Mr. Mills’ deposition of Officer Fields would have been different had he known that Officer Fields would be testifying as something other than a simple fact witness. Allowing Mr. Mills to simply review Officer Fields’ personnel file did little, if anything, to cure the prejudice created by this new and unanticipated expert testimony.

Moreover, contrary to the State’s assertions, the discovery violation was not harmless. While a violation of the discovery rules and the failure to conduct a proper Richardson hearing may be harmless error, this is true only when the appellate court can clearly determine from the record that the violation would have had no effect on the defendant’s trial preparation. Pender v. State, 700 So.2d 664, 666 (Fla.1997). We cannot make such a determination in this case. Other than the testimony from Officer Fields, the only evidence establishing that Luis had any intent to sell the cocaine was his alleged post-Miranda statement that he had “just started selling cocaine.” Luis denied making this statement. Therefore, prior to trial, the State had little proof on this critical issue. The introduction of undisclosed expert testimony that bolstered an essential element of the State’s ease was clearly prejudicial to Luis and his trial preparation, and this prejudice is apparent from the record. Accordingly, the violation was not harmless.

Because Luis was prejudiced by the State’s discovery violation and the trial court’s remedy was insufficient to cure the prejudice, we reverse Luis’ conviction and remand for a new trial. On remand, the State may again offer Officer Fields as an expert witness if he is properly designated and qualified as such. Because Officer Fields may again testify on remand, we address the proper scope of his testimony to guide both the State and the trial court.

At trial, Officer Fields testified as to the circumstances surrounding Luis’ possession of the cocaine. He also testified as to what he would expect to find on a “typical” drug user and on a “typical” drug seller. He then testified concerning the factors that should be considered in deciding whether a particular quantity of drugs is for personal use or for sale. From this testimony, the jury could have reached its own conclusion based on the facts of the case as to whether Luis intended to sell the cocaine in the cigar tube. We agree that this testimony was admissible once Officer Fields was qualified as an expert in street-level narcotics transactions. However, Officer Fields also testified that, in his personal opinion, Luis intended to sell the cocaine. This testimony was improper.

Numerous cases have held that a qualified expert witness may testify that the quantity and packaging of drugs and the circumstances surrounding their possession are “consistent with” possession for sale or are “inconsistent with” possession for personal use. See, e.g., Damen v. State, 793 So.2d 106, 108 (Fla. 2d DCA 2001); Adams v. State, 696 So.2d 773 (Fla. 2d DCA 1996); Melton v. State, 824 So.2d 948 (Fla. 1st DCA 2002); Ramos v. State, 798 So.2d 4, 6 (Fla. 4th DCA 2001); Bruce v. State, 616 So.2d 504 (Fla. 3d DCA 1993). However, there is a split of authority as to whether a qualified expert may testify to the defendant’s actual intent. The First District has held that it is improper for an expert to testify that the defendant intended to sell the drugs because that testimony simply tells the jury how to decide the case rather than helping the jury reach its own decision on intent. See Melton, 824 So.2d at 951; Lewis v. State, 754 So.2d 897, 902 (Fla. 1st DCA 2000). To the contrary, the Third and Fourth Districts have allowed qualified experts to testify to the defendant’s intent. See Prescott v. State, 753 So.2d 568, 569 (Fla. 4th DCA 1998) (holding that there was no abuse of discretion in allowing an expert witness to testify that the drugs were intended for sale rather than personal use); Scarlett v. State, 704 So.2d 615, 616 (Fla. 4th DCA 1997) (same); Bruce, 616 So.2d at 504 (same).

We agree with the First District that expert testimony concerning the defendant’s intent crosses the line from providing expert testimony to simply telling the jury how to decide the case. Moreover, expert testimony concerning a defendant’s intent is improper when the proffered expert has no expertise in the inner workings of the defendant’s mind. Cf. Damen, 793 So.2d at 109 (noting with approval the witness’s statement that he was not qualified to offer testimony concerning the inner workings of the defendant’s mind and so could not testify as to the defendant’s actual intent). Therefore, on remand, Officer Fields may not testify as to his opinion of Luis’ intent. We certify conflict on this issue with Prescott and Bruce.

Reversed and remanded.

ALTENBERND, C.J., and SALCINES, J., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Ruth Y. SIMMERS, Appellant/Cross-Appellee, v. William E. SIMMERS, Appellee/Cross-Appellant.
    No. 2D02-3832.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.
    Rehearing Denied Aug. 8, 2003.
    Joseph R. Park and Michael J. Park of Park and Ossian, P.A., Clearwater, for Appellant/Cross-Appellee.
    Wayne J. Boyer of Boyer and Schütz, P.A., Dunedin, for Appellee/Cross-Appel-lant.
   PER CURIAM.

In this appeal from a final judgment of dissolution of marriage, we affirm that portion of the judgment that denied the wife’s challenge to the parties’ antenuptial agreement. We also affirm that portion of the judgment that denied the husband’s request for an award of attorney’s fees, finding that this issue is controlled by our recent decision in Lashkajani v. Lashkajani, 28 Fla. L. Weekly D1400, — So.2d —, 2003 WL 21359585 (Fla. 2d DCA June 13, 2003). As we did in that case, we certify the following question as one of great public importance.

MAY THE PARTIES, BY AN EXPRESS PROVISION IN A PRENUPTIAL AGREEMENT, CONTRACT AWAY A FUTURE OBLIGATION TO PAY ATTORNEY’S FEES AND COSTS DURING THE TERM OF THE MARRIAGE BY PROVIDING FOR PREVAILING PARTY ATTORNEY’S FEES IN ACTIONS SEEKING TO ENFORCE OR PREVENT THE BREACH OF THE PRENUPTIAL AGREEMENT?

Affirmed; question certified.

FULMER and VILLANTI, JJ„ and THREADGILL, EDWARD F., Senior Judge, concur.


text:
    Alan FROMAN, Appellant, v. Robert KIRLAND, Appellee.
    No. 4D02-3503.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Edward R. Curtis of Curtis & Curtis, P.A., and Bruce Botsford of Bruce Bots-ford, P.A., Fort Lauderdale, for appellant.
    Albert G. Caruana, Dirk Lorenzen and Lisa Mullins of Caruana and Lorenzen, P.A., Miami, and Bruce S. Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Chong v. Milano, 623 So.2d 536 (Fla. 4th DCA 1993); Khawly v. Reboul, 488 So.2d 856 (Fla. 3d DCA 1986).

WARNER, KLEIN and SHAHOOD, JJ., concur.


text:
    Crystal Lynn WILSON and Cam-Jo, Inc., d/b/a Clearwater Yellow Cab, Appellants/Cross-Appellees, v. Lillian E. PYLE, Appellee/Cross-Appellant.
    No. 2D02-3342.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    Rehearing Denied Aug. 7, 2003.

      Eddy R. Resnick of Gold, Resnick & Fiearrotta, P.A., Tampa, for Appellants.
    James A. Sheehan and Richard E. Wolfe of James A. Sheehan, P.A., St. Petersburg, for Appellee.
   WHATLEY, Judge.

This appeal arises from the dismissal of a personal injury action. On August 1, 2001, Lillian E. Pyle brought suit against Crystal Lynn Wilson and Cam-Jo, Inc. for injuries she sustained in an automobile accident. Pyle died during the course of the litigation, and on February 20, 2001, Wilson and Cam-Jo filed a suggestion of death. On May 28, 2002, Wilson and Cam-Jo filed a motion to dismiss with prejudice, arguing that neither a timely motion for substitution of parties nor a motion for extension of time had been filed as required by Florida Rule of Civil Procedure 1.260(a)(1). On May 30, 2002, Pyle’s counsel filed a motion for leave to expand time to substitute party and for substitution of party. After a hearing on the motions, the trial court dismissed the case without prejudice and made the finding that Pyle did not establish excusable neglect under Florida Rule of Civil Procedure 1.540. On appeal, Wilson and Cam-Jo argue that the case should have been dismissed with prejudice. Pyle filed a cross-appeal arguing that the trial court erred in finding that there was no excusable neglect. We affirm.

We conclude that the trial court correctly dismissed the action without prejudice. Florida courts have a longstanding tradition in favor of the disposition of an action on its merits. Tucker v. Firestone Tire & Rubber Co., 552 So.2d 1178, 1179 (Fla. 2d DCA 1989). “The purpose of a default judgment is to speed the litigation to conclusion and to prevent a dilatory defendant from impeding the plaintiffs claim. Nonetheless, all doubt should be resolved in favor of allowing trial upon the merits.” Id.

The courts of this state have consistently held that dismissals pursuant to rule 1.260(a)(1) should be without prejudice. Id.; Stroh v. Dudley, 476 So.2d 230 (Fla. 4th DCA 1985) (holding that rule 1.260(a)(1) does not require mandatory, non-diseretionary dismissal); DeArmas v. Blonstein, 356 So.2d 1339 (Fla. 3d DCA 1978) (concluding that dismissal for failure to timely move to substitute parties pursuant to rule 1.260 should have been without prejudice). Wilson and Cam-Jo argue that this case is identical to Kash N’ Karry Food Stores, Inc. v. Smart, 814 So.2d 530 (Fla. 2d DCA 2002), which held that the dismissal of that action pursuant to rule 1.260(a)(1) should have been with prejudice. We conclude that Kash N’ Karry Food Stores is distinguishable from the instant action because the statute of limitations had run in that case and the dismissal was therefore with prejudice. As the statute of limitations has not run in the instant action, the trial court correctly dismissed it without prejudice.

We affirm the cross-appeal without discussion.

Affirmed.

CASANUEVA and SILBERMAN, JJ„ Concur.


author: WOLF, C.J.

text:
    Rita H. JENKINS, Personal Representative of the Estate of James Kelly Goddard, deceased, Appellant, v. W.L. ROBERTS, INC., a Florida Corporation, d/b/a Ace Hardware Appliance & Auto Center, also d/b/a Napa Auto Parts, Appellee.
    No. 1D02-2815.
    District Court of Appeal of Florida, First District.
    July 14, 2003.
    Rehearing Denied Aug. 14, 2003.

      William W. Corry, of Law Office of William W. Corry, P.A.; and Sidney L. Matthew, of Gorman & Matthew, P.A., Tallahassee, for appellant.
    Tammy de Soto Cicchetti and Stephan Lampasso, of The Cicchetti Law Firm, Tallahassee, for appellee.
   WOLF, C.J.

Rita Jenkins appeals from a final summary judgment in favor of the defendant, W.L. Roberts, Inc. in the wrongful death action filed as a result of the death of her 22-year-old son, James Kelly Goddard. Because we find that the undisputed material facts fail to establish a legal duty on behalf of the defendant, we affirm.

W.L. Roberts, Inc., appellee, is a retail hardware and auto racing supply store in Crawfordville, Florida which sold nitrous oxide to a customer named Tyler Augat sometime before November 7, 1998. On November 7, 1998, Mr. Augat was a passenger in a car driven by James Kelly Goddard; Mr. Augat and another passenger were inhaling the nitrous oxide (commonly referred to as “huffing”) during the ride. Mr. Goddard’s vehicle veered off the road, striking a steel I-beam sign pole. Mr. Goddard sustained fatal injuries. The autopsy report showed nitrous oxide in Goddard’s system at the time of death.

On September 9, 1999, Rita Jenkins, as personal representative of the estate of James Kelly Goddard, filed a complaint against W.L. Roberts, Inc. for the wrongful death of her 22-year-old son. The complaint alleged that Kelly Goddard lost consciousness and crashed his car as a result of inhaling nitrous oxide given to him by his passenger, Mr. Augat, who had purchased the nitrous oxide from W.L. Roberts, Inc. The complaint alleged that W.L. Roberts, Inc. had a duty to take reasonable care to ensure that the nitrous oxide sold at its store would not be used as an inhalant, but would be only used for the lawful purpose of enhancing the engine performance of race cars. The complaint alleged that the defendant breached its duty by failing to take reasonable precautions to ensure that the nitrous oxide sold in its store would be used for its lawful purpose, and that defendant’s failure to take such reasonable steps was the proximate cause of Mr. Goddard’s death.

The defendant answered the complaint, asserting that there was no evidence on the issue of causation to establish that Mr. Goddard inhaled nitrous oxide from the defendant’s store while driving; no evidence that Mr. Goddard lost consciousness while driving, causing him to hit a steel pole; and no evidence that even if Mr. Goddard lost consciousness, it was caused by the inhalation of nitrous oxide. The defendant also asserted that the circumstances described in the complaint were not foreseeable as a matter of law given the independent and intervening nature of the events.

The court reviewed the pleadings and the deposition transcript of Tyler Augat which contained Mr. Augat’s testimony that he purchased nitrous oxide from the defendant’s store the day before the accident. He further testified that he was 25 years old at the time of the purchase and that he told the store he was purchasing the nitrous oxide for the purpose of enhancing performance of his automobile for racing.

The trial court granted final summary judgment in favor of the defendant relying on Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980), and Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), to find that the defendant’s sale of nitrous oxide to the passenger in the Goddard vehicle was not foreseeable and was not the proximate cause of Mr. Goddard’s death. The court also found that the defendant owed no legal duty to Mr. Goddard.

To establish a cause of action for negligence in a wrongful death action, a plaintiff must allege and prove (1) the existence of a legal duty owed to the decedent, (2) breach of that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages. See, e.g., Fritsch v. Rocky Bayou Country Club, Inc., 799 So.2d 433 (Fla. 1st DCA 2001). The duty element of negligence is a threshold legal question; if no legal duty exists, then no action for negligence may lie. McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992); Menendez v. Palms West Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999).

In the complaint, Ms. Jenkins alleges that W.L. Roberts, Inc. “had a duty to take reasonable care to ensure that [nitrous oxide] sold at its store # 182, would be used for its lawful purpose of enhancing the engine performance of race cars and not as an inhalant.” The complaint alleged no other basis for the existence of a legal duty. The relevant Florida statutes at the time of the sale of nitrous oxide at issue here and Mr. Goddard’s death were sections 499.039 and 877.111(2), Florida Statutes (1997). Section 499.039 made it unlawful for a person to sell, deliver, or give to a person under the age of 18 years any compound, liquid, or chemical containing ... nitrous oxide ... for the purpose of inducing by breathing, inhaling, or ingesting a condition of intoxication or which is intended to distort or disturb the auditory, visual, or other physical or mental processes.

(Emphasis added.) Section 877.111(2) made it unlawful for any person to possess, buy, sell, or otherwise transfer nitrous oxide for the purpose of inducing or aiding any other person to violate the provisions of the statute. Both statutes require actual knowledge for violation of their provisions. There is no evidence in the record, and the appellant did not allege, that the person who bought the nitrous oxide, Tyler Augat, was under the age of 18 at the time the store sold it to him, and there is no competent evidence in the record that the store sold nitrous oxide to him or anyone under the age of 18 with the knowledge that they intended to inhale it. Although the appellant alleged in paragraphs 11 and 12 of the complaint that the store “knew or should have known” that the nitrous oxide sold to Tyler Augat was intended to be used as an inhalant or that Mr. Augat might distribute the nitrous oxide to others for inhaling, there is no competent evidence in the record that anyone associated with the auto parts store knew that Tyler Augat purchased the nitrous oxide with the intention of inhaling it or with the intention of giving it to a third party to inhale. The affidavits of Kevin Roberts, Walter Roberts, and Beverly Roberts contain sworn statements that there was no such knowledge. Absent special circumstances, there is no legal duty requiring a store to ensure that a product lawfully sold will ultimately be used by a customer or unknown third party for a lawful purpose.

We therefore affirm.

ERVIN, J., CONCURS; BENTON, J., CONCURS IN RESULT.

      . Section 877.111, Florida Statutes, was amended effective July 1, 2000, two years after the death of Kelly Goddard, to require a seller of nitrous oxide for automotive enhancement to include sulphur additive to make the gas smell like rotten eggs.

      . Although a legal duty can be created where none existed in limited circumstances (special relationship of the parties, a contract, a violation of a specific statute created by the legislature to protect a class of persons into which the plaintiff falls), see Whelan v. Dacoma Enter., Inc., 394 So.2d 506 (Fla. 5th DCA 1981); Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA 1985), no special relationship was alleged nor is there evidence in the record to establish any special relationship between the hardware store and Kelly Goddard.


text:
    Wilfred HART, II, Appellant, v. Bruce C. BAILLIE, Appellee.
    No. 4D02-266.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Rehearing Denied Aug. 26, 2003.
    Wilfred Hart, II, Jensen Beach, pro se.
    Nancy W. Gregoire and D. David Keller of Bunnell, Woulfe, Kirsehbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Affirmed. See Steele v. Kehoe, 747 So.2d 981 (Fla.1999); Rowe v. Schreiber, 725 So.2d 1245 (Fla. 4th DCA 1999).

KLEIN, GROSS and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Marilyn WIGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-595.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Rehearing Denied Aug. 29, 2003.
    Juan C. Enjamio and James J. Thornton of Hunton & Williams, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

In 1995 appellant plead guilty to drug possession charges, adjudication was withheld, and she received two years probation which she successfully completed. After the plea, she became a naturalized citizen; however, in December, 2000, the United States filed an action to revoke appellant’s naturalization based on the guilty plea.

Appellant then filed a rule 3.850 motion to vacate her plea because she was not adequately advised of immigration consequences, which the trial court held was premature under State v. Carmona, 827 So.2d 342 (Fla. 3d DCA 2002). In that case the court pointed out that the 3.850 motion improperly assumed that the government would prevail in the denaturalization proceeding and, if it did, that the government would subsequently seek to deport the defendant. We agree with Car-mona and accordingly affirm without prejudice to the defendant seeking relief when the “threat of deportation,” Peart v. State, 756 So.2d 42 (Fla.2000), is more demonstrable.

STONE and HAZOURI, JJ., concur.


text:
    Victor JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-776.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Rehearing Denied Aug. 26, 2003.
    Victor Johnson, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks review of an order that denied his rule 3.850 motion for post-conviction relief. Appellant challenged his sentence as illegal because there was no factual basis to support a finding that the starter pistol qualified as a firearm in support of the three year minimum mandatory sentence. We reverse and remand for the trial court to consider the merits of Appellant’s rule 3.850 motion challenging the factual basis for the imposition of his minimum mandatory sentence. See State v. Mancino, 705 So.2d 1379, 1381 (Fla.1998); Evans v. State, 758 So.2d 1282 (Fla. 3d DCA 2000).

FARMER, C.J., STEVENSON and GROSS, JJ., concur.


author: ERVIN, J.

text:
    Dotty SMITH and Ray Smith, Appellants, v. Robert G. MAYES, Jr., Appellee.
    No. 1D02-2918.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    Rehearing Denied Aug. 14, 2003.

      Timothy M. O’Brien and Troy A. Rafferty of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A., Pensacola, for Appellants.
    Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, Alabama; and John S. Penton, Jr., Esquire, Pensacola, for Appellee.
   ERVIN, J.

This is an appeal from a final summary judgment entered in an action for personal injuries against appellee, Robert Mayes, Jr. The trial court found that appellants, Dotty and Ray Smith, could not recover damages from Mayes for physical injury caused by the alleged negligent act of Mayes’s real estate agent, Christian Wen-dolek, which occurred when Wendolek was showing the property to appellants for the purpose of sale. In the court’s judgment, Wendolek was an independent contractor and thus Mayes was not vicariously liable for Wendolek’s negligence. We affirm.

In arguing that the court erred in entering judgment against them, because the issue of vicarious responsibility raised questions of material fact, appellants rely on cases reciting the rule that a real estate broker serves as an agent for the principal — the homeowner — for the purpose of selling the home. See Bradley v. Waldrop, 611 So.2d 31 (Fla. 1st DCA 1992); Outlaw v. McMichael, 397 So.2d 1009 (Fla. 1st DCA 1981). Although we agree that Wen-dolek acted as the agent of Mayes for the purpose of the sale of his home, the agency relationship could not be extended to include physical tortious conduct by Wendo-lek. The cases appellants cite do not involve such conduct, but rather the liability of an owner resulting from a realtor’s misrepresentation or breach of contract relating to the property sought to be sold, under the theory that the agent was given the implied authority to so act on behalf of the owner or seller. Because no Florida cases have been brought to our attention regarding the precise issue appealed, we have consulted other authority for its resolution.

The Restatement (Second) of Agency § 1, Comment e (2003), states that an agent who is employed by a principal and whose physical conduct in the performance of the service is subject to the right of control by the principal is called a “servant,” while an agent who is not subject to the principal’s right of control with regard to his or her physical conduct is considered an “independent contractor.” Real estate brokers are included in the latter category. The liability that attaches to each type of agent is further amplified in the following comment:

The word “servant” is used in contrast with “independent contractor.” The latter term includes all persons who contract to do something for another but who are not servants in doing the work undertaken. An agent who is not a servant is, therefore, an independent contractor when he contracts to act on account of the principal. Thus, a broker who contracts to sell goods for his principal is an independent contractor as distinguished from a servant. Although, under some circumstances, the principal is bound by the broker’s unauthorized contracts and representations, the principal is not liable to third persons for tangible harm resulting from his unauthorized physical conduct within the scope of the employment, as the principal would be for similar conduct by a servant; nor does the principal have the duties or immunities of a master towards the broker.... The word “servant” is thus used to distinguish a group of persons for whose physical conduct the master is responsible to third persons .... [T]he term “independent contractor” is used to indicate all persons for whose conduct, aside from their use of words, the employer is not responsible except in the performance of nondel-egable duties.

Id. at § 2, Comment b.

A case illustrating the application of the limited authority extended a real estate broker by a homeowner is Anderson v. Wiegand, 223 Mich.App. 549, 567 N.W.2d 452 (1997), a slip-and-fall case. In Wie-gand, although the homeowners had cleared snow from their driveway and sidewalk two days before an open house, a potential buyer was injured when she fell on the icy walkway on the premises. The Michigan appellate court affirmed the trial court’s summary judgment for the homeowners, concluding that the realtor was an independent contractor for the sellers who were not liable for the realtor’s alleged negligence for failing to inspect the premises before the open house.

Appellants alternatively argue that even if Wendolek may be considered an independent contractor, Mayes’s duty to maintain the premises in a reasonably safe condition was non-delegable and he could therefore still be hable for the breach which resulted in injury to Dotty Smith, a business invitee. They continue that while a person may hire an independent contractor to perform a non-delegable duty owed to third parties, such person escapes vicarious responsibility only if the duty is properly performed. See Goldin v. Lipkind, 49 So.2d 539 (Fla.1950); Mortgage Guar. Ins. Corp. v. Stewart, 427 So.2d 776 (Fla. 3d DCA 1983).

We agree that Mayes did have a non-delegable duty to use reasonable care in maintaining his premises in a reasonably safe condition, and to give invitees warning of any latent and concealed perils on the premises. Nevertheless, appellants did not present any evidence that the premises were unsafe. The purported negligence lay in Wendolek’s act of opening the garage door to the home only partially, contrary to Dotty Smith’s expectation that the door was fully raised, which caused her to hit her head on the door.

AFFIRMED.

WOLF, C.J., and BENTON, JJ., concur.


author: CASANUEVA, Judge.

text:
    Leon STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1292.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.
    Rehearing Denied Aug. 6, 2003.
   CASANUEVA, Judge.

Leon Stokes challenges the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Stokes was arrested on April 21, 2000, and posted bond on April 25, 2000. On February 19, 2001, he pleaded guilty to two drug offenses and was sentenced to fifty-seven months in prison on each count to run concurrently. On January 11, 2002, Stokes was resentenced to 43.05 months in prison on each count to run concurrently.

In his motion, Stokes claims that he is entitled to 116 days’ jail credit for time he spent in the county jail. The record reflects that he was in the county jail from April 21, 2000, until April 25, 2000, and on February 19, 2001. This is a total of six days. The record reflects that he received the six days’ credit to which he is entitled.

Stokes also makes several claims for jail credit for days after his sentencing date of February 19, 2001. The relief he seeks regarding jail time spent after sentencing must be sought through administrative proceedings with the Department of Corrections. See Monroe v. State, 842 So.2d 265, 265 n. 1 (Fla. 2d DCA 2003); Knight v. State, 681 So.2d 772, 773 (Fla. 2d DCA 1996). Accordingly, the trial court was correct in denying Stokes’ motion.

Affirmed.

FULMER and SALCINES, JJ., Concur.


author: SHAHOOD, J.

text:
    Larry Charles SANDIFER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1086.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Rehearing Denied Aug. 29, 2003.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Larry Charles Sandifer, appeals his conviction and sentence on the charge of sale of cocaine. We reverse appellant’s conviction because the trial court denied his requested jury instruction on the element of guilty knowledge of the illicit nature of the substance, and remand for a new trial.

During trial and at the charge conference, appellant’s counsel requested that the jury be given a Chicone instruction, i.e., addressing appellant’s knowledge of the illicit nature of the substance; the request was denied. Counsel objected to the exclusion of this instruction after the trial court instructed the jury. Instead, the jury was instructed that sale of cocaine consisted of the following elements: “Number one, Larry Charles Sandifer sold a certain substance. Number two, the substance was cocaine or a mixture containing cocaine. Number three, Larry Charles Sandifer had knowledge of the presence of the substance.”

In Chicone, the supreme court held that the offense of possession of a controlled substance included not only knowledge that the substance was in the defendant’s possession, but also knowledge of the illicit nature of the substance. See id. at 738. Subsequently, in Scott v. State, 808 So.2d 166 (Fla.2002), the supreme court determined that, regardless of the defense raised or the affirmative defenses asserted, a defendant is entitled to an instruction on the element of guilty knowledge in a possession case because it is an element of the crime. See id. at 170. The Scott court stated that failure to give the requested instruction is not harmless error. Id. In McMillon v. State, 813 So.2d 56 (Fla.2002), Chicone was extended to cases where the defendant was charged with sale of cocaine.

Both Chicone and Scott were addressed, however, by the legislature’s enactment of section 893.101, Florida Statutes (2002), which states the following:

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC 94701[, 808 So.2d 166] (Fla.2002) and Chicone v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

The effective date of the statute is May 13, 2002 and it may not be applied retroactively. See Quaintance v. State, 845 So.2d 294 (Fla. 1st DCA 2003)(For any offense occurring prior to May 13, 2002, an essential element of the crime of possession of an illegal substance was knowledge of the illicit nature of the substance); see also Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002)(May 13, 2002 law may not be applied retroactively to a charge arising before its effective date).

The crime in this case occurred in October 2000, a date which precedes the effective date of the statute. Thus, following Chicone, appellant was entitled to a jury instruction on the issue of his knowledge of the illicit nature of the substance on the delivery charge. Based on Scott, it was not harmless error for the trial court to deny appellant’s request for the Chicone instruction on the sale/delivery charge. Appellant’s conviction for that charge only must, therefore, be reversed and the cause remanded for a new trial where he will be entitled to the Chicone instruction.

The remaining issue raised by appellant is rendered moot by our decision concerning the jury instruction issue.

REVERSED AND REMANDED FOR A NEW TRIAL.

FARMER, C.J., and KLEIN, J., concur.

      . Chicone v. State, 684 So.2d 736 (Fla.1996).


author: STONE, J.

text:
    STATE STREET BANK AND TRUST COMPANY, Trustee for Holders of Bear Stearns Mortgage Securities Inc. Mortgage Pass-Through Certificates, Series 1993-12., Appellant, v. Hartley LORD, Boca Grove Plantation Property Owners Association, Inc., and Boca Grove Golf and Tennis Club, Inc., Appellees.
    No. 4D02-4051.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      Forrest G. McSurdy of Law Offices of David J. Stern, P.A., Plantation, for appellant.
    Harold B. Haimowitz, Boca Raton, for Appellee Hartley Lord.
   STONE, J.

The issue on appeal is whether a mortgagee by assignment, State Street Bank, may pursue a mortgage foreclosure in the absence of proof that either the mortgagee, or its assignor, ever had possession of the missing promissory note. A summary judgment was entered in favor of the mortgagor, Hartley Lord. We affirm.

State Street sought to establish the promissory note and mortgage under section 71.011, Florida Statutes. State Street alleged that Hartley executed the note and mortgage and that, after multiple assignments, the documents were assigned to State Street by EMC Mortgage Corporation. Although State Street alleged in its pleading that the original documents were received by it, the record established that State Street never had possession of the original note and, further, that its assign- or, EMC, never had possession of the note and, thus, was not able to transfer the original note to State Street.

The trial court correctly concluded that as State Street never had actual or constructive possession of the promissory note, State Street could not, as a matter of law, maintain a cause of action to enforce the note or foreclose the mortgage. The right to enforce the lost instrument was not properly assigned where neither State Street nor its predecessor in interest possessed the note and did not otherwise satisfy the requirements of section 673.3091, Florida Statutes, at the time of the assignment. See Slizyk v. Smilack, 825 So.2d 428, 430 (Fla. 4th DCA 2002).

To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so. § 90.953(1), Fla. Stat. (2002); W.H. Downing v. First Nat’l Bank of Lake City, 81 So.2d 486 (Fla.1955); Nat’l Loan Investors, L.P. v. Joymar Assocs., 767 So.2d 549, 551 (Fla. 3d DCA 2000). A limited exception applies for lost, destroyed, or stolen instruments, where it is shown that “the person was in possession of the instrument and entitled to enforce it when-loss of possession occurred.” § 673.3091, Fla. Stat. (2002).

Section 673.3091 provides, in part:

(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

Here, it is unrefuted that State Street was unable to meet the requirement of section 678.8091. The undisputed facts show that the note was lost before the assignment to State Street was made. This court has previously refused to allow a mortgage foreclosure under similar circumstances. In Mason v. Rubin, 727 So.2d 283 (Pla. 4th DCA 1999), the appellant brought a foreclosure action on a second mortgage, the trial court denied the foreclosure, and this court affirmed on the basis that the appellant had failed to establish the lost note under section 673.3091. Likewise, here, where State Street failed to comply with section 673.3091, the trial court correctly entered summary judgment denying its foreclosure claim.

State Street cannot succeed under an assignment theory. We recognize that this court, and the Third District, have held that the right of enforcement of a lost note can be assigned. See Slizyk, 825 So.2d at 430; Deakter v. Menendez, 830 So.2d 124 (Fla. 3d DCA 2002); Nat’l Loan, 767 So.2d at 551. Here, however, in contrast to National Loan, Slizyk, and Deak-ter, there is no evidence as to who possessed the note when it was lost.

In Slizyk, we held that the assignee of a note and mortgage was entitled to foreclose despite his inability to produce the original documents. This court concluded that because the assignor was in possession of the notes, he had the right to enforce them. When the notes were assigned to the appellee, the right to enforce the instruments was assigned to him as well. Id. at 430. In contrast, here, the undisputed evidence was that EMC, the assignor, never had possession of the notes and, thus, could not enforce the note under section 673.3091 governing lost notes. Because EMC could not enforce the lost note under section 673.3091, it had no power of enforcement which it could assign to State Street. Were we to allow State Street to enforce the note because some unidentified person further back in the chain may possess the note, it would render the 673.3091 rule meaningless. We do not, and need not, reach any question as to whether Sli-zyk and National Loan may be applied where there is proof of an earlier assign- or’s possession further removed than the most immediate assignor.

We recognize that applying the statute as we do will result in a windfall to the mortgagor and a likely injustice to the mortgagee, unless it is able to obtain new evidence. In Dennis Joslin Company v. Robinson Broadcasting Corp., 977 F.Supp. 491 (D.D.C.1997), the district court rejected the right to assign the enforcement of a lost note. Apparently, in response to that opinion, the Uniform Commercial Code was amended to delete the requirement that the transferee be in possession at the time the instrument was lost and now provides that the person seeking to enforce the instrument either was entitled to enforce the instrument when loss of possession occurred, or acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred. See U.C.C. § 3~309(a)(l) (2002). Florida, however, has not similarly amended its code and still requires possession either by the assignor at the time of loss or by the person seeking to enforce the note. Any remedy must, therefore, be left to the legislature.

GUNTHER and STEVENSON, JJ„ concur.

      . We recognize that in O'Donovan v. Citibank, F.S.B., 710 So.2d 654 (Fla. 3d DCA 1998), the court affirmed a summary judgment allowing foreclosure but reversed on the re-establishment claim where there was a question of fact as to whether the plaintiff could re-establish the terms of the promissory note under section 71.011(5).
      Although it appears that O’Donovan permits foreclosure even where the promissory note is not re-established, the Third District applied section 71.011 governing enforcement of lost papers, records, or files, and not section 673.3091. This court, however, has concluded that lost promissory notes are negotiable instruments and are actually governed by section 673.3091. See Slizyk, 825 So.2d 428; Mason, 727 So.2d 283.


text:
    STATE of Florida, Appellant, v. J.T.D., Appellee.
    No. 2D02-5132.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Ngozichukwu C. Acholonu, Assistant Public Defender, Bartow, for Appel-lee.
   CASANUEVA, Judge.

The State of Florida appeals from the trial court’s order suppressing J.T.D.’s confession in this delinquency proceeding. Because the court erred in finding that the juvenile was in custody at the time he was questioned, we reverse.

A petition charged J.T.D., a middle schooler, with lewd or lascivious molestation of another student. Before trial, defense counsel filed a motion to suppress the admission J.T.D. had made to the assistant principal of his school. The motion to suppress claimed the statement was made during a custodial interrogation without the benefit of the legal warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

When reviewing orders on motions to suppress a confession, appellate courts make a two-tier inquiry. First, on questions of historical fact, the trial court is entitled to a presumption of correctness and can be reversed only where those findings are not supported by the record. The second tier permits a de novo review of the application of the legal standards to the historical facts as found by the trial court. Loredo v. State, 836 So.2d 1103, 1105 (Fla. 2d DCA 2003) (citing Connor v. State, 803 So.2d 598, 605-08 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002)).

The facts were developed at the suppression hearing, where the State presented two witnesses, Gail Weston, the assistant principal, and St. Petersburg Police Officer Deloris Williams, the school’s resource officer. No one testified for the defense. Ms. Weston detailed her investigation of a complaint alleging that J.T.D. had improperly touched a female student on her breast and/or her buttocks. She interviewed J.T.D. in the principal’s office twice, in the presence of the principal. During the first interview, J.T.D. denied any wrongdoing. After further investigation and talks with witnesses, J.T.D. was brought in a second time. This second interview is the primary focus of this case.

Ms. Weston’s testimony contained a number of facts important to the resolution of the suppression motion. The investigation Ms. Weston conducted was mandated by the Pinellas County School Board to enforce its student code of conduct. To further the public policy of providing safe schools, school officials investigate all complaints to ascertain whether any discipline is required. When the complaint is about behavior that might also constitute a crime, it is customary for the school resource officer to sit in during the interviews. This was the reason Ms. Weston had Officer Williams sit in on J.T.D.’s second interview.

Officer Williams testified that she knew J.T.D. from earlier contacts. Her separate investigation of the incident had begun the previous day, before the start of the school’s own investigation, and was prompted by a telephone conversation with the victim’s mother. Ms. Weston and Officer Williams had shared information. Because her presence was at times required elsewhere, Officer Williams was in and out of the room during J.T.D.’s second interview. She did not interview him while he was in the principal’s office or threaten him with confinement at the juvenile detention center, although she had warned him on earlier occasions that she had the authority to send him there based on his behavior. The officer did hear J.T.D. admit to Ms. Weston during the second interview that he had touched the complaining student’s dress and her “butt.” When J.T.D. made this admission, Ms. Weston turned the questioning over to Officer Williams, who started to read J.T.D. the Miranda warnings. Unfortunately, another problem at the school arose and required the officer to leave; thus, the Miranda warnings were not completed. Officer Williams’s interview ceased at that moment.

Although Officer Williams confirmed that she and the assistant principal shared the information they gathered, both witnesses maintained that they conducted separate investigations. Additionally, Officer Williams admitted that whatever she heard J.T.D. tell the assistant principal would be included in her report.

Following the hearing, the circuit court made several findings: that the assistant principal was not an agent of law enforcement; that because Officer Williams had knowledge of the witnesses’ statements, J.T.D. was the target of a criminal investigation; and that the school resource officer’s investigation was inextricably intertwined with the school’s investigation. Thus, the court concluded that a custodial interrogation had taken place entitling J.T.D. to Miranda warnings. Because he had not received them at the time he confessed, the court granted J.T.D.’s motion to suppress the confession.

The case law supports the circuit court’s conclusion that Ms. Weston was not acting as a law enforcement agent. In W.B. v. State, 356 So.2d 884 (Fla. 3d DCA 1978), the juvenile defendant argued that a school official could become an agent of the police and thereby trigger the need for Miranda warnings. Because the assistant principal’s job in W.B. was only to investigate complaints arising from a student’s activity on school grounds, the Third District concluded that the assistant principal was a school official and not a police official. “Therefore, the necessity for Miranda warnings did not exist.” Id. at 885. Here, the circuit court also concluded that the assistant principal was not an agent of the police. Given that finding, Miranda warnings were not necessary in this case either.

The Third District confronted a similar issue in State v. V.C., 600 So.2d 1280 (Fla. 3d DCA 1992), where a student at a high school identified to an assistant principal two students who had robbed him. The assistant principal, in turn, informed the police of the alleged robbery. Later, the assistant principal interviewed separately each student the victim had identified, one of whom was V.C. Each student admitted the robbery and provided a written statement. The assistant principal warned the two that the police could get involved. The two students moved to suppress their statements, alleging that they were not freely given and were the products of an illegal detention. The appellate court reversed the circuit court’s suppression order because the record showed there was no evidence that the assistant principal coerced the students or did anything unconstitutional to extract the confessions. Additionally, although the students were not free to leave, this restriction flowed from their status as students, not suspects.

Similarly, in In re J.C., 591 So.2d 315 (Fla. 4th DCA 1991), a high school student admitted possessing marijuana to the assistant principal during an interview conducted in the presence of the school’s resource officer, a deputy sheriff. The Fourth District affirmed the circuit court’s ruling that under the circumstances no Miranda warnings were required. The majority reasoned that interrogation by a school official, acting in that capacity and not as a police official, could not be construed as custodial interrogation requiring Miranda warnings. Id. at 316. The mere presence of a law enforcement officer who stands mute is not sufficient to transform the school official’s interview into a custodial interrogation by law enforcement. Conversely, if a law enforcement officer participates in the interrogation, Miranda warnings would be required. Id.

In J.T.D.’s case, the circuit court found that Ms. Weston was not acting as a police agent, and the record supports that determination. Furthermore, Officer Williams testified without rebuttal that she was merely present during the interview, in and out of the room, and asked no questions. Under the principles of W.B., V.C., and J.C., Miranda warnings were unnecessary as the police officer’s mere presence did not transform the school official’s interview of J.T.D. into a custodial interrogation.

Our conclusion that Miranda warnings were not required in this case is bolstered by application of the traditional concept of custody to these facts. For purposes of Miranda, custody is “any restraint on freedom of movement of the degree associated with formal arrest.” Ramirez v. State, 739 So.2d 568, 573 (Fla.1999). The determination whether a person is in custody is a mixed question of law and fact, requiring application of a four-factor test examining the following:

(1) The manner in which police summon the subject for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence suggestive of his guilt; and (4) whether the suspect is informed that he is free to leave the place of questioning.

Id. at 574 (citing State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997)). In J.T.D.’s case, these four factors show that he was not under custodial interrogation.

First of all, J.T.D. was summoned by his school’s assistant principal, not by a police officer, for questioning on a student code of conduct issue- which could result in student discipline. Second, the clear purpose of the interview was to determine whether J.T.D. had breached the student code of conduct by improperly touching a fellow student. The interview took place in the principal’s office, not at a jail facility or in an officer’s interview room. The principal, assistant principal, and school resource officer were present, but only the first two participated in questioning J.T.D.

As to the third factor, Ms. Weston testified that she told J.T.D. the substance of the other witnesses’ statements which incriminated him. Thus, he was confronted with evidence of his wrongful behavior. As to the fourth factor, J.T.D. was not told that he could leave, although under school policy he had to remain until excused, and it is likely that he was aware of this requirement. However, because of the special context of the public school in this case, the fact that J.T.D. could not leave the principal’s office is not determinative of whether this was a custodial interrogation that had to be preceded by Miranda warnings.

The United States Supreme Court has noted:

Even in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of school children, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult. “Events calling for discipline are frequent occurrences and sometimes require immediate effective action.” Goss v. Lopez, 419 U.S. [565], at 580, 95 S.Ct. [729], at 739 [, 42 L.Ed.2d 725 (1975)]. Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship. See id., at 582-583, 95 S.Ct. at 740; Ingraham v. Wright, 430 U.S. [651], at 680-682, 97 S.Ct. [1401], at 1417-1418 [, 51 L.Ed.2d 711 (1977)].

New Jersey v. T.L.O., 469 U.S. 325, 339-40, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).

“Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i.e., the right to come and go at will.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Thus, the power possessed by the state over its school children is of a “custodial and tutelary nature, permitting a degree of supervision and control that could not be exercised over free adults.” Id at 655, 115 S.Ct. 2386.

Although both T.L.O. and Vemonia arose in the Fourth Amendment context, their underlying policy pronouncements are relevant to J.T.D.’s Fifth Amendment situation. A proper educational environment requires that school officials be able to closely supervise their students and determine whether rules regarding student behavior have been violated. One need not be an expert in the problems confronting today’s schools to be aware that violent acts occur in the schools of this state, acts against students as well as teachers and administrators. We can envision numerous scenarios where it would be prudent and proper to have a law enforcement officer present. Establishing a blanket rule that excludes the presence of a police officer whenever a school administrator questions a student unless Miranda warnings are given turns a blind eye to the threatening world surrounding our schools. The appropriate focus is to examine the actual conduct of the police officer or school official to determine whether that conduct transformed the school official’s interview into a custodial interrogation by law enforcement. Additionally, where the school official’s conduct shows that he or she has become an agent of law enforcement, that conduct, too, will invoke the protections of Miranda and the privilege against self-incrimination. By placing the focus upon the actual conduct of the school official and the law enforcement officer, those events calling for immediate action in a school disciplinary setting can be evaluated with the necessary flexibility consistent with the constitutional guarantee Miranda warnings provide.

In summary, in consideration of the Ramirez factors, the policy concerns for the schools expressed in T.L.O. and Vemonia, and the circuit court’s finding, supported by the record and case law, that the assistant principal was not an agent of the police, we conclude that Ms. Weston’s interview of J.T.D. in the presence of Officer Williams was not transformed into a custodial interrogation requiring Miranda warnings. Accordingly, we reverse the circuit court’s suppression order.

Reversed and remanded for further proceedings.

FULMER and CANADY, JJ„ concur.


text:
    J.D. IRONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4728.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

J.D. Irons appeals the three-year minimum mandatory sentence imposed for possession of a firearm by a convicted felon. We reverse and remand for correction of the sentence.

For possession of a firearm by a convicted felon, section 790.23, Florida Statutes (1999), the trial court sentenced Irons to three years in state prison as a habitual felony offender under section 775.084, Florida Statutes (1999). The trial court also imposed a three-year minimum mandatory sentence enhancement pursuant to section 775.087(2)(a)(l)(r). Irons contends that the three-year minimum mandatory provision of the sentence was illegal because he was in constructive, not actual, possession of the firearm. The information filed by the State did not specifically charge Irons with being in actual possession of a firearm. Moreover, no proof was presented to the trial court that Irons was in actual possession of .a firearm. Therefore, imposition of the three-year minimum mandatory sentence was error. See Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002) (holding that although the underlying offense of possession of a firearm by a convicted felon may be proved by either actual or constructive possession, the minimum mandatory sentence of section 775.087(2)(a)(l)(r) may be imposed only upon a finding of actual possession). With commendable candor, the State concedes error on this point.

The State also suggests that under the circumstances of this particular case, Irons should be granted the relief he requests, which is remand with instructions for the trial court to strike the three-year minimum mandatory sentence under section 775.087(2)(a)(l)(r), leaving the remainder of the sentence undisturbed. We agree. Irons does not need to be present for this correction of sentence. See Windisch v. State, 709 So.2d 606, 607 (Fla. 2d DCA 1998).

Conviction affirmed; minimum mandatory sentence reversed, remanded to strike minimum mandatory sentence.

ALTENBERND, C.J., and FULMER and WALLACE, JJ., concur.


text:
    Joseph Scot BARRETT, Petitioner, v. Kristina BARRETT, Respondent.
    No. 4D03-2052.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2003.
    Jeanne C. Brady of Brady & Brady, P.A., and Steven M. Pesso of Steven M. Pesso, P.A., Boca Raton, for petitioner.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for respondent.
   KLEIN, J.

Petitioner, the father in a child custody proceeding, seeks a writ of prohibition quashing an order denying his motion to disqualify the trial judge. We conclude that the judge’s cross examination of a witness for the father would reasonably have caused the father to fear that he could not get a fair and impartial trial, and grant the petition.

The witness was a woman with whom the mother and her two children had lived after the father and mother were divorced. She' testified that the mother had neglected the children, was often out all night, and had abused both children. After this witness, who had testified in this case on a prior occasion, was questioned by the lawyers, the court indicated that it had “a lot of questions.”

One of several areas in which the court questioned this witness concerned the fact that the four year old child, the only one of this marriage, had lived with her father for an eight month period with no contact from the mother, while the mother had legal custody. The court inquired of the witness:

THE COURT: And do you know how long the children were not allowed to see their mother? Do you know how long there was an interference with the mother’s visitation and custody?
THE WITNESS: Best I remember, this happened February I want to say and then—
THE COURT: February 23rd, 2000.
THE WITNESS: — okay, and then it was June when she got the children back. But I don’t think she was not allowed to see them. I think it was — I think it just didn’t happen more than it wasn’t allowed.
THE COURT: Were there allegations that the former husband used drugs and beat the children?
THE WITNESS: I heard those stories, yes.
THE COURT: And were there allegations that the husband interfered with her custody of her child by a former relationship and that would have been Harmony because he wasn’t Harmony’s father, was he?
THE COURT: Do you know what allegations he made in order to get custody of the children?
THE WITNESS: No. No, no, I didn’t.
THE COURT: Did you realize that she wasn’t able to have her children because of his allegations?
THE COURT: Are you aware he’s been substantially in arrears in child support since that last time?
THE WITNESS: No, no, I have no idea.
THE COURT: And that in fact he is in arrearage of $4590 in child support?
THE WITNESS: No, I didn’t know. No. I’m only a concerned — I’m more concerned about the way the children will be raised than I am about their financial situation.
THE COURT: I am too.
THE COURT: So do you know how long she was prohibited from being around her infant daughter?
THE WITNESS: Well, it must have been from February to June.
THE COURT: No contact from February 23rd till June 28, four months—
THE WITNESS: Okay.
THE COURT: — for an infant not to be allowed to be near her mother. Are you aware of that?

The father and mother were married when the mother was eighteen and divorced when the mother was twenty-two. During those years the mother had lived much of the time in the witness’s home because of financial problems. The court asked:

THE COURT: Well, she was married to him. He couldn’t afford her. So what was to happen with her and the two babies? What was she supposed to do?
THE COURT: Did you know that he [the father] told the hearing officer that he didn’t know where she lived and he hadn’t seen his child and he didn’t know where his child was? Did you know that?
THE WITNESS: No, I didn’t.
THE COURT: And did you know that as soon as he got the order, he went directly to her house and picked up the child? Did you know that?
THE WITNESS: No. I know that he was given the order that he could go pick her up.
THE COURT: Did you know she had a hearing set and it was part of the court file for his failure to support with her accurate address in the court file?
THE WITNESS: I don’t know these things, Judge.
THE COURT: Well, those are things that I found out through a lot of investigation, certainly wasn’t what Mr. Barrett told me.
MR. KORMAN: Your information is incorrect because I know what he went through to find her.
THE COURT: Well, sir, he admitted in this courtroom that he had received a notice of hearing from her that he was copied in the court file with her accurate address, with the address that he went to pick up the baby.
MR. KORMAN: He found that address a week prior to picking up the child.
THE COURT: He didn’t notify her at that address.
MR. KORMAN: Oh, he may not have.
THE COURT: And therefore, it was a fraudulent hearing because if you don’t notify the person on the other side and you do know the address, you are committing a fraud on the Court. And I think everybody in this room needs to know that.

The court’s examination of this witness went beyond that of a neutral arbiter seeking information, and into the impermissible role of an advocate. Blackpool Assocs., Ltd. v. SM-106, Ltd., 839 So.2d 837 (Fla. 4th DCA 2003); Cammarata v. Jones, 763 So.2d 552 (Fla. 4th DCA 2000); Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993). We therefore grant the petition and quash the order denying disqualification.

WARNER and GROSS, JJ., concur.


text:
    Ivory Lee ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2226.
    District Court of Appeal of Florida, First District.
    July 28, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Freeman v. State, 616 So.2d 155 (Fla. 1st DCA 1993).

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Brian BIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1993.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s dismissal of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which alleged several grounds of ineffective assistance of counsel. The trial court summarily dismissed the appellant’s motion because it was successive and because it was without jurisdiction to rule on the motion. Because the appellant’s motion is successive, we affirm.

The trial court determined that the summary denial of the appellant’s previous rule 3.850 motion was pending on appeal with this Court at the time the appellant filed his second motion and concluded that it was without jurisdiction for that reason. Although the appellant’s appeal of a previous denial was pending on appeal at the time he filed his second motion, the issues in the motions were unrelated, so the trial court did not lose jurisdiction to rule on the subsequent motion. McFarland v. State, 808 So.2d 274 (Fla. 1st DCA 2002). However, the appellant’s motion was properly dismissed as successive because he failed to show that the grounds asserted were not known and could not have been known to him at the time of his earlier motion. Zeigler v. State, 632 So.2d 48 (Fla.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994).

AFFIRMED.

WOLF, C.J., BROWNING and HAWKES, JJ., concur.