author: FARMER, C.J. GROSS, J., PER CURIAM.

text:
    Raymond G. INGALSBE, Raymond G. Ingalsbe, P.A., and J. Kent Brown, Appellants, v. STEWART AGENCY, INC., d/b/a Stewart Toyota of North Palm Beach; and Earl Stewart, Jr., Appellees.
    Nos. 4D03-2618, 4D03-618.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Order Denying Rehearing and Granting Certification April 14, 2004.

      Richard A. Kupfer of Richard A. Kup-fer, P.A., West Palm Beach, for appellants.
    Gary M. Dunkel, Greenberg Traurig, P.A., West Palm Beach, and Elliot Scherker, Greenberg Traurig, P.A., Miami, for appellees.
    Dock A. Blanchard of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Amicus Curiae Academy of Florida Trial Lawyers.
   FARMER, C.J.

The issue we review arises from a lawsuit by a plaintiffs lawyer for interference with his fee contract with his client. The trial court dismissed his claim for failure to state a cause of action, holding that it was barred by absolute immunity. We disagree and reverse.

Basically the facts are these. Appellants [Lawyer] were retained by their Client to sue appellees [Dealer] under the Lemon Law. Lawyer and Client agreed in writing to a fee with 3 different alternatives for calculating the actual amount due. Under the contract the amount due would be either:

(A) 40% of the amount recovered plus an additional 5% (or $10,000 if greater than 5%) for any appeal, or
(B) the amount set by the Court under the attorney’s fee statutes in Lemon Law cases if greater than 40% of Client’s recovery; or
(C) if Client settled the case against the advice of the Lawyer, Client would pay $300 per hour for all time reasonably spent on the matter.

Suit was filed, and the case was tried to a jury, which awarded some $21,000 in damages. On an appeal of that judgment, we reversed upon a holding that the court improperly excluded defensive evidence and remanded for a new trial.

At some point after remand, Dealer approached Client personally and urged they settle the claim without any lawyers. Dealer and Client reached an agreement whereby Dealer agreed to pay Client $35,000 in damages, as well as attorneys fees in the amount of 33%% of the recovery and costs. When Dealer learned the actual terms of the fee agreement, Dealer increased the fee percentage to 40% of the recovery, plus $10,000 for the appeal that had been previously taken. Dealer tendered the 40% plus $10,000 to Lawyer, asserting he had tendered payment in full. Lawyer rejected Dealer’s tender and instead sued Dealer for interfering with his fee agreement. Dealer moved to dismiss the claim on the grounds of immunity. The trial court’s dismissal of Lawyer’s claim brought this appeal.

Dealer argues that Lawyer’s intentional interference with contractual relationship claim was barred absolutely by the “litigation privilege” established in Levin Middlebrooks Mabie Thomas Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994). That case began as a bad faith action by an insured against an insurance carrier for failing to settle a claim when it should have done so. During discovery in the bad faith action the carrier identified the insured’s attorney as a person having relevant knowledge of important facts in the suit. The carrier then filed a motion to disqualify the attorney and certified its intention to call that attorney as a witness during its defense of the bad faith action. The attorney was disqualified but the carrier never called the attorney as a witness at trial in the bad faith action.

The attorney then sued the carrier for intentional interference with a business relationship. In holding that his claim was barred by the privilege the supreme court explained:

“In balancing policy considerations, we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” [e.s.]

639 So.2d at 608. Dealer argues that “any act occurring during the course of a judicial proceeding” plainly covers the settlement effected by Dealer and Client without their lawyers. He contends that the broad phrasing of the court’s holding applies even in the case we face today involving Dealer’s attempt to limit the amount of possible fees due Lawyer under the contract provisions for his representation of Client.

The essential rationale of the supreme court’s Levin Middlebrooks holding is in the following sentence:

“Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.”

639 So.2d at 608. Dealer’s argument in this case does not fit within the supreme court’s rationale. The carrier and its counsel in Levin Middlebrooks were privileged in discovery to use their best judgment to assert a good faith right to call the opposing attorney as a witness because the attorney’s testimony might turn out at trial to be crucial to their defense of the bad faith claim. Their decision to name the attorney as one of their own witnesses was privileged — even though it resulted in the attorney’s disqualification from the case— because of the implicit importance of the corollary right of civil litigants to “every man’s evidence.”

Turning to this case and applying the same rationale, we begin with an acknowledgment that Dealer was privileged to propose and conclude a settlement because of the importance the law places on settlements of civil disputes. But there is nothing inherent in the right to settle lawsuits that would compel a corollary right to interfere with a fee contract between one of the settling parties and his lawyer. Without such a legally recognized right, Dealer was not privileged to use the right to settle in such a way as to interfere with the obligation of Client arising from the clear language of the fee contract. Dealer could not thereby set up a settlement imperative directing which contractual alternative for calculating the fee would be controlling after the settlement. Nor could Dealer bind Lawyer to an involuntary rescission of one or more of the contract’s reasonable alternatives simply by committing to paying only the one most favorable to Dealer. Nothing in Levin Middlebrooks purports to establish such a corollary right. No legitimate interest of Dealer and Client in settling their dispute gives them a privilege to interfere with Lawyer’s fee contract in such a way as to restrict the fee due to only the lowest among the contract’s reasonable alternatives.

We hasten to add that Levin Middle-brooks is also not controlling for still another reason. The facts alleged by Lawyer in this case are the functional mirror of the facts of the claim in Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530 (Fla.1985). Dealer’s relationship to Lawyer in this case cannot be differentiated on any principled basis from Bankers relationship to Farish in Bankers Multiple Line. In that case Farish represented a woman in a personal injury action. The defendant was insured under a policy issued by Bankers. MacArthur, the head of Bankers (who was also acquainted with plaintiff), told the woman of his “displeasure” with her fee agreement with Farish. The woman fired Farish and retained new counsel. In time, new counsel brought Farish back into the case. Farish tried the case, but the result was less favorable than he thought the case was worth. Farish thereupon sued both Bankers and MacArthur for tortious interference with his fee contract.

In affirming the liability of Bankers in that case, the supreme court necessarily approved of the legal sufficiency of the claim by Farish against Bankers. The claim alleged and tried by Farish against Bankers and MacArthur is interference with a contractual relationship. That is the identical claim alleged by Lawyer against Dealer in this case.

The person accused of interfering with Lawyer’s fee contract in the present case is the corporate defendant’s chief executive. In Bankers Multiple Line, the person accused of interfering was the corporate chief executive of the carrier insuring the defendant. Thus in both cases it was the entity who would pay any resulting judgment in the underlying litigation whose chief executive did the interfering. Hence the persons accused of interfering in the two cases are functionally identical.

Moreover the very tort of interference with a contractual relationship itself necessarily, and logically, can properly include attempts to alter or change only a single contractual provision benefitting the person bringing the action. This obvious implication must be true, whether the attempt is to extinguish the provision entirely or instead simply to alter it, so long as the effect is to interfere with benefits otherwise due the plaintiff.

By structuring the settlement in this case to limit the attorney’s fees to only the first alternative of a percentage of the recovery, Dealer was interfering with Lawyer’s entitlement to a fee under the alternative fee provisions regarding a fee set by the court and a fee based on an hourly rate. These alternative fee provisions were of obvious importance for the underlying claim that was the subject of the fee agreement. In consumer cases, such as those under the Lemon Law, the actual amount of damages may often be quite modest as against the probable amount of legal work required to achieve them. It is the recognition of that imbalance that is behind the Legislative decision to create an entitlement to fees by statute. Without the possibility that a reasonable fee will be set by the court, consumers may find it impossible to interest lawyers into litigating such claims. In short, if the defendants in such cases were privileged to interfere with the very provision that allows consumers to vindicate such statutory rights, the statutes would become mere ornaments in the statutory code.

Nothing in Levin Middlebrooks even mentions, much less purports to overrule, Bankers Multiple Line. Levin Mid-dlebrooks, the later decision, is utterly silent on any purported change in the law applied in the earlier decision in Bankers Multiple Line. We know that the Florida Supreme Court does not silently overrule itself. See Puryear v. State, 810 So.2d 901 (Fla.2002) (supreme court does not intentionally overrule itself sub silentio; when lower court encounters express holding from supreme court on specific issue, followed by later contrary dicta statement on same issue, court should apply supreme court’s express holding in former decision until supreme court itself explicitly recedes from express holding). Thus, from the silence in the later decision in Levin Middlebrooks, we are required to conclude that the earlier decision in Bankers Multiple Line is still authoritative. Bankers Multiple Line compels the conclusion that Lawyer’s cause of action in this case is legally sufficient.

It is also crucial to appreciate the procedural context of the trial court’s determination in this case. The ruling was made on a motion to dismiss the complaint for failure to state a cause of action. Dealer argues that an affirmative defense of litigation immunity appears on the face of Client’s complaint. Rule 1.110(d) does provide that such defenses “appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b).” Fla.R.Civ.P. 1.110(d). Here, however, even if Dealer could theoretically have claimed some immunity, he could not have properly done so by motion to dismiss because no immunity appears on the face of Lawyer’s complaint in this case. The complaint is permissibly sketchy. It merely alleges the fee agreement, Dealer’s unjustifiable interference described in the facts above, and damages suffered by Lawyer.

Because no affirmative defense appears on the face of the pleading, we are required to treat the factual allegations of the complaint as true and consider them in a light most favorable to the plaintiff. Seminole Tribe of Fla. v. Times Pub. Co. Inc., 780 So.2d 310, 312 (Fla. 4th DCA 2001); Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381 (Fla. 4th DCA 1999) (motion to dismiss for failure to state cause of action admits all well pleaded facts as true; allegations and reasonable inferences arising therefrom must be construed in light most favorable to plaintiff); Burtman v. Tech. Chems. & Prods., Inc., 724 So.2d 672, 673 (Fla. 4th DCA 1999). Thus the ordinary test for dismissals under rule 1.140(b)(6) applies:

“a complaint should not be dismissed for failure to state a cause of action ‘unless the movant can establish beyond any doubt that the claimant could prove no set of facts whatever in support of his claim.’ ”

Morris v. Fla. Power & Light Co., 753 So.2d 153, 154 (Fla. 4th DCA 2000); Wausau Ins. Co. v. Haynes, 683 So.2d 1123 (Fla. 4th DCA 1996) (test for motion to dismiss for failure to state cause of action is whether pleader could prove any set of facts whatever in support of claim); Hillman Construction Corp. v. Wainer, 636 So.2d 576, 578 (Fla. 4th DCA 1994); Orlovsky v. Solid Surf, Inc., 405 So.2d 1363, 1364 (Fla. 4th DCA 1981) (“A motion to dismiss should not be granted if the pleader sets forth facts in his complaint upon which relief can be granted on any theory.”); Martin v. Highway Equipment Supply Co., 172 So.2d 246, 248 (Fla. 2d DCA 1965) (“a claim should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.”); Fla.R.Civ.P. 1.140(b)(6).

A motion to dismiss for failure to state a cause of action may be granted only by looking exclusively at the pleading itself, without reference to any defensive pleadings or evidence in the case. Wausau Ins. Co., 683 So.2d at 1125; Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971) (in ruling on motion to dismiss, court must confine itself to allegations of complaint and may not consider affirmative defenses which might absolve defendant of liability at motion for summary judgment or at trial); Rest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968) (same). We conclude that if Lawyer can prove the allegations in his complaint, any resulting money judgment would survive an appellate argument that his underlying legal theory of relief was defective for the immunity reason argued in this case.

REVERSED.

GUNTHER, J., concurs.

GROSS, J., dissents with opinion.

GROSS, J.,

dissenting.

Allowing a tortious interference cause of action in this case will severely impinge on a client’s right to settle a lawsuit, a right which takes paramount importance in our system.

In the trial of the underlying lawsuit, the jury found the Dealer had committed fraud and unfair trade practices against the Client. See Stewart Agency, Inc. v. Lesueur, 785 So.2d 1242, 1243-44 (Fla. 4th DCA 2001). The jury awarded $20,530 in damages. This court reversed because the Dealer was precluded from presenting key testimony at trial. Id. at 1244.

Later, the Dealer negotiated a settlement with the Client for $35,000, seventy percent more than the verdict at the first trial. Also, the Dealer agreed to pay $24,000 in attorney’s fees to the Attorneys, forty percent of $35,000, plus $10,000 for appellate fees.

It is inconceivable that a tort could arise out of these facts. As one federal court construing Florida law has written:

[I]t is clear that an attorney never has the right to prohibit his client from settling an action in good faith. A client by virtue of a contract with his attorney is not made an indentured servant, a puppet on counsel’s string, nor a chair in the courtroom. Counsel should advise, analyze, argue, and recommend, but his role is not that of an imperator whose edicts must prevail over the client’s desire. He has no authoritarian settlement thwarting rights by virtue of his employment.

Singleton v. Foreman, 435 F.2d 962, 970 (5th Cir.1970) (citations omitted).

From the Client’s perspective, the settlement was in good faith. The settlement far exceeded the amount of damages set at the first trial. At a second trial, the risk for the Client was enhanced, because the evidence omitted at the first trial would be heard by the jury. The Client was not “required to hazard the outcome of litigation, rather than settle the suit, simply because his attorneys [were] employed on a contingent fee basis.” Sentco, Inc. v. McCulloh, 84 So.2d 498, 499 (Fla.1955); see also Statement of Client’s Rights for Contingency Fees 10, R. Regulating Fla. Bar 4-1.5 (‘You, the client, have the right to make the final decision regarding settlement of a case.... [Y]ou must make the final decision to accept or reject a settlement.”).

The primacy of the Client’s right to settle a lawsuit compels the conclusion that the Attorneys have failed to state a cause of action for tortious interference. One of the essential elements of the cause of action is that there be “an intentional and unjustified interference” with a business relationship or contract. See Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985) (emphasis added). Parties to a lawsuit may settle an action “without the intervention of their attorneys.” McCulloh, 84 So.2d at 499. The Dealer acted in furtherance of a legitimate business interest to settle the lawsuit.

The Dealer did not use improper means to settle; its offer to settle honored one of the contractual provisions. The Dealer tendered $14,000 (forty percent of $35,000) plus $10,000 for the appeal to the Attorneys. A provision in the contract contemplated that it might be settled without the approval of the Attorneys. The Attorneys retained their right under the contract to enforce their contract against their Client. There was therefore no “unjustified” interference with the Attorneys’ rights under the contract that would justify the imposition of tort liability.

This scenario is very different from that in Bankers Multiple Line Insurance Co. v. Farish, 464 So.2d 530 (Fla.1985). There the tortfeasor convinced the client to discharge the attorney in an attempt to deprive him of any fee whatsoever. The conduct in this case, which was consistent with the fee contract, does not give rise to an independent tort with the full panoply of tort damages.

Also, this case is controlled by Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So.2d 606 (Fla.1994). Before Levin, it was clear that the litigation privilege applied to the “torts of perjury, libel, slander, defamation, and similar proceedings that are based on statements made in connection with a judicial proceeding.... ” Id. at 608. See, e.g., Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla.1992); Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929), receded from on other grounds by Fridovich, 598 So.2d at 68-69.

Levin expressly extended the litigation privilege to cover the cause of action for tortious interference with a business relationship arising from any act that occurred during the course of a judicial proceeding. The court explained:

In balancing policy considerations, we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.

639 So.2d at 608 (emphasis added).

Applying this broad language from Lev-in, one must conclude that a settlement of a pending lawsuit has “some relation” to the lawsuit. See Jackson v. Bellsouth Telecomms., Inc., 181 F.Supp.2d 1345, 1363-64 (S.D.Fla.2001); Baglini v. Lauletta, 338 N.J.Super. 282, 768 A.2d 825, 833 (App.Div.2001). The Levin litigation privilege applies to bar the cause of action in this case.

To distinguish Levin, the majority relies on horseback opinions, not legal authority. The majority reasons that Levin does not apply because the Dealer did not have a “legally recognized right” to “interfere with a fee contract between one of the settling parties and his lawyer.” That approach fails, because the litigation privilege does not depend upon a party’s “right” to commit a tort; no one has a “right” to commit perjury, libel, or slander, yet the litigation privilege applies because policy considerations favor the freedom in prosecuting or defending a lawsuit over the preservation of those tort claims when they are connected to a judicial proceeding. See Levin, 639 So.2d at 608.

Next, the majority makes the assumption that Levin cannot apply in this case because Farish stands for an exception to Levin when attorney-client fee contracts are involved. However, as the Dealer argues, there is nothing in Farish even “remotely related to the litigation privilege” that the supreme court extended some nine years later in Levin. The litigation privilege was not an issue in Farish. Because Farish preceded Levin does not mean that tortious interference with an attorney-client fee contract was grandfathered out of Levin.

Significantly, Levin states that the issue of whether the litigation privilege should extend to torts such as tortious interference with a business relationship had “not been previously addressed by this Court.” 639 So.2d at 608. This statement indicates that, absent an effort to extend the law, there was no basis for the defendant to claim the privilege in Farish from 1973-1985, when that case was winding through the court system; the privilege did not apply to tortious interference during that time frame. For these reasons, Farish’s failure to mention the litigation privilege is understandable. Thus, in deciding whether the litigation privilege should apply in this case, Farish is without legal significance.

To say that a tortious interference cause of action is unavailable here does not mean that a party to a lawsuit is entitled to enter into settlements designed to “defraud or otherwise defeat the payment” of attorney’s fees. See Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894 (1943).

A line of Florida cases preceding Farish establishes the following rule:

[Wjhere the client makes a fraudulent or collusive settlement intended to deprive the attorney of his compensation or cost fees, the attorney will be permitted to proceed with the suit in the client’s name for the purpose of protecting his interests.

Mabry v. Knabb, 151 Fla. 432, 10 So.2d 330, 337 (1942) (citation omitted).

In Mabry, attorneys were retained to collect rents from a lessee owed pursuant to a lease which contained an attorney’s fees provision. The lessee and the lessor entered into a collusive settlement designed to defraud the attorneys. Id. at 336-37. Applying the rule quoted above, the supreme court held that the lessee “could not, by settling the case with lessor, escape his obligation to pay fees which he had contracted to pay under the lease provisions.” Warshaw-Seattle, Inc. v. Clark, 85 So.2d 623, 627 (Fla.1955). In Mabry, the supreme court allowed the attorneys to proceed with the case in the name of their client “to ascertain what sum of money or interest in the subject-matter, if any” was owed for legal fees and to recover that amount from the lessee. 10 So.2d at 337.

The Mabry rule does not apply here because the settlement included an offer of attorney’s fees consistent with the fee contract, forty percent of the recovery plus $10,000. The rule applies in cases like Mabry and Scobie, where the settlements “included no provision for payment to the attorneys.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1385 (Fla.1983); see also Soule, Leal & Assocs., P.A. v. Zipnick, 770 So.2d 1282, 1283 (Fla. 4th DCA 2000) (holding that Mabry rule did not apply in case where attorney informed of settlement after the fact and attempts were made to negotiate the fee).

Although it does not involve a tortious interference claim, Sinclair is instructive. Sinclair arose from a divorce case where the parties met without counsel and agreed upon a settlement, which required the wife to “bear the costs of her own professional expenses, including attorneys’ fees.” 428 So.2d at 1384. The wife’s attorney sought, among other things, to pursue the husband for attorneys’ fees under the Mabry rule. The supreme court held that the attorney could not pursue the claim, reasoning that, by making the wife responsible for fees, the settlement had included a provision for payment to the attorneys. Sinclair, 428 So.2d at 1385. The court wrote:

Where, as here, the client firmly abides by the terms of the settlement which make her liable for attorneys’ fees we must defer to this Court’s strong policy of encouraging settlement between parties to avoid the “vexation and expense of further litigation.” Harper v. Strong, 135 Fla. 10, 15, 184 So. 848, 850 (1938).
We are convinced that in its desire to continue the litigation petitioner wishes only to preserve for its client the greatest possible benefits of the settlement. Nonetheless, it is axiomatic in the attorney-client relationship that an attorney cannot protect his client beyond the client’s willingness to be protected.

Id. at 1385-86.

This policy articulated in Sinclair for the Mabry rule is equally applicable to one issue in this case, whether a cause of action for an independent tort arises out of a client’s settlement where the client remains bound by his contract with his attorney for fees.

Intent on stretching the law to cover the facts of this case, the majority has expanded the law of tortious interference to create tort liability in conflict with Levin.

On Motions for Rehearing, etc.

PER CURIAM.

We deny the motion for rehearing and motion for rehearing en banc, but grant the motion for certification and therefore certify to the supreme court the following question of great public importance:

“Does the litigation privilege of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insur anee Co., 639 So.2d 606 (Fla.1994), apply to claims alleging direct interference with an attorney’s fee earned by representing a consumer’s claim for unfair or deceptive practices in a sale of a motor vehicle, where the interference arose from a seller-initiated settlement without counsel in which the fee due the lawyer was reduced without the lawyer’s consent.”

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

      . See United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (exceptions to demand for every man’s evidence are in derogation of search for truth and thus are not lightly created or expansively construed); Miami Herald Pub. Co. v. Morejon, 561 So.2d 577, 581 (Fla.1990) (“The public 'has a right to every man’s evidence’.”); Preston v. City of Fort Pierce, 637 So.2d 326, 330 (Fla. 4th DCA 1994) (rule 1.410(a) codifies principle that party in civil case has right to every man's evidence). As Bentham explained:
      "Are men of the first rank and consideration — are men high in office — men whose time is not less valuable to the public than to themselves — are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far. as it is necessary, they and everybody.... Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpenny-worth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly.”
      4 Works of Jeremy Bentham 320-21 (J. Bowr-ing ed. 1843).

      . Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985) ("[S]ettlements are highly favored and will be enforced whenever possible.''); Feldman v. Kritch, 824 So.2d 274, 277 (Fla. 4th DCA 2002) (“Settlements are highly favored as a means to conserve judicial resources, and will be enforced when it is possible to do so.”).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the Interest of S.D., a/k/a S.S., a child A.D., Petitioner, v. K.S., and Department of Children and Family Services, Respondents.
    No. 2D03-1976.
    District Court of Appeal of Florida, Second District.
    March 3, 2004.
    Frank D.L. Winstead, New Port Richey, for Petitioner.
    Bernie McCabe, State Attorney, and Lori O’Connell, Assistant State Attorney, Clearwater, for Respondent.
    No appearance for Respondent K.S.
   PER CURIAM

A.D., the birth father of S.D., petitions this court for a writ of prohibition, or in the alternative a writ of certiorari, and requests that we quash a portion of the trial court’s order modifying custody to the father. Specifically, he objects to the portion of the order that gives the Pinellas County Sheriffs Office discretion to permit the maternal grandmother and the maternal great-grandmother to have unsupervised visitation with the minor child. We treat the petition for writ of prohibition as a petition for writ of certiorari. See Belair v. Drew, 770 So.2d 1164 (Fla.2000); T.M.M. v. H.M.C., 788 So.2d 1114 (Fla. 2d DCA 2001). We grant the petition and remand to the trial court to strike certain provisions from the order.

The attachments to the petition show that the child was removed from the mother’s custody and placed in the temporary custody of the Department of Children and Family Services (DCF) following allegations of present and prospective abuse and neglect. DCF filed an amended petition for dependency against the mother and also filed a petition for termination of the mother’s parental rights. DCF denied placement of the child with the maternal grandmother and great-grandmother and filed a motion to modify placement to the father. After a hearing, the trial court entered an order giving custody of the child to the father and abating his current child support obligation. This is the order under review. In the order, the trial court found that it was “appropriate to grant Pinellas County Sheriffs Office the discretion to permit the maternal grandmother and/or the maternal great-grandmother unsupervised visitation.”

In AS. v. Biddle, 829 So.2d 1004 (Fla. 2d DCA 2002), we granted A.S.’s petition for writ of prohibition and quashed the order for protective services entered by the trial court. The order required that the custodial parent deliver the children to the grandparents for overnight visitations and also make the children available to the grandparents to “permit the grandparents to assess the medical, dental, and educational ‘situations.’ ” 829 So.2d at 1005. In granting the petition, this court stated: “After deciding that the evidence did not warrant placing the children in shelter care, the trial judge could not legally order A.S. to perform any action with respect to the children absent a finding of dependency.” Id.

In this case, the trial court granted DCF’s motion to modify placement to the father and awarded custody of the child to the father, a non-offending parent. In granting the sheriffs office the authority to allow the maternal grandmother and the maternal great-grandmother to have unsupervised visitation with the child, the trial court was, in essence, ordering the father to provide visitation with the child to the maternal relatives should the sheriffs office determine such visitation appropriate. As in AS., the trial court in this case could not legally order the father to provide visitation to the maternal relatives. Generally, a grandparent is entitled to reasonable visitation with a grandchild who has been adjudicated dependent and taken from the physical custody of the parent. § 39.509, Fla. Stat. (2002). Here, however, the child was never adjudicated dependent as to the father, and the trial court’s order placed the child in the custody of the father. Thus, section 39.509 does not apply here.

The Florida Supreme Court recently declared section 61.13(2)(b)(2)(c), Florida Statutes (2001), unconstitutional as viola-tive of the constitutional right of privacy as articulated in article 1, section 23 of the Florida Constitution. In Sullivan v. Sapp, 866 So.2d 28, 37-38 (Fla.2004), the supreme court stated: “Clearly this Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard, without the required showing of harm to the child, to be unconstitutional.” Any such statute, “which fails to require a showing of harm to the affected child, does not further a compelling state interest, and, therefore ... is facially unconstitutional as violative of a parent’s fundamental right of privacy.” Id. Thus, the supreme court has held that absent a showing of harm to the child, a custodial parent should not be compelled to provide visitation with the child to a grandparent.

Accordingly, we grant the petition for writ of certiorari, quash those portions of the trial court order that grant the sheriffs office discretion to permit unsupervised visitation with the maternal grandmother and great-grandmother, and remand to the trial court to strike those provisions from the order giving custody to the father.

ALTENBERND, C.J., and WHATLEY and VILLANTI, JJ., Concur.

      . In T.M.M., this court treated the appeal of a nonfinal order as a petition for writ of certio-rari. We granted the petition and quashed the order of the trial court that required the custodial parent to, among other things, provide visitation with the children to the paternal aunt. In doing so, this court stated:
      We have also considered treating this appeal as a petition for writ of prohibition because the trial court's jurisdictional power is questionable. Although it is arguable that either approach would provide us with appellate jurisdiction, we conclude that the best approach is to treat this appeal as a petition for writ of certiorari. See Belair v. Drew, 770 So.2d 1164 (Fla.2000) (certiorari review of temporary order awarding visitation rights to grandmother).
      788 So.2d at 1118.

      . At the time of the filing of the petition, the child had not been adjudicated dependent as to the mother.


author: DAVIS, Judge.

text:
    Joseph N. PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2810.
    District Court of Appeal of Florida, Second District.
    March 3, 2004.
    Robert H. Dillinger, Public Defender, and Brian Donerly, Assistant Public Defender, Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Joseph N. Perry challenges the trial court order dismissing his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he raised two sentencing issues. We affirm without prejudice to any right Perry may have to file such a motion pro se.

Perry was convicted after jury trial of attempted first-degree murder with a firearm, and he pleaded no contest to felonious possession of firearms. The trial court sentenced Perry to concurrent thirty-year terms of incarceration as a habitual violent felony offender. Perry subsequently filed a rule 3.850 motion alleging ineffective assistance of trial counsel, which was summarily denied by the trial court. On appeal, this court reversed in part and remanded for an evidentiary hearing. Perry v. State, 787 So.2d 67 (Fla. 2d DCA 2001). On remand, following an evidentiary hearing, the trial court again denied Perry’s motion and appointed the Office of the Public Defender to assist him in bringing his appeal.

While his appeal was pending, Perry petitioned this court to relinquish jurisdiction to the trial court so that he could raise sentencing issues pursuant to rule 3.800(a). When this court granted that request, Perry’s attorney filed his motion challenging his sentence on two grounds: (1) that his habitual violent felony offender sentence was illegally imposed because at the time of his offense, such a sentence was not authorized for life felonies; and (2) that his sentence for count two was never orally pronounced. The trial court dismissed this motion as unauthorized in that the public defender was only appointed to represent Perry in the appellate proceedings and thus was not authorized to represent Perry in the collateral challenge of his sentence. Subsequently, this court affirmed the denial of Perry’s rule 3.850 motion, Perry v. State, No. 2D01-4349 (Fla. 2d DCA Jan. 23, 2004) (table decision), and Perry filed this appeal of the trial court’s dismissal of his rule 3.800(a) motion.

Although the issues raised in Perry’s rule 3.800(a) motion may be meritorious, the trial court did not err in finding that, under section 27.51, Florida Statutes (2002), which outlines the duties of the public defender, the public defender here was not authorized to file Perry’s collateral attack. Accordingly, we affirm the trial court’s dismissal of Perry’s rule 3.800(a) motion without prejudice to any right Perry may have to file such a motion pro se.

Affirmed.

WHATLEY and VILLANTI, JJ„ Concur.


text:
    A.Z.3, INC., a California corporation d/b/a BCBG Max Azria, Appellant, v. TAMPA WESTSHORE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, Appellee.
    No. 2D03-4438.
    District Court of Appeal of Florida, Second District.
    March 3, 2004.

      Lance W. Shinder of Lance W. Shinder, P.A., Boca Raton, for Appellant.
    J. Meredith Wester and Wendolyn S. Busch of Meehanik Nuccio Williams Hearne & Wester, P.A., Lutz, for Appel-lee.
   DAVIS, Judge.

In this appeal arising out of a commercial lease, the tenant, A.Z.3, d/b/a BCBG Max Azria, appeals the partial summary judgment determining that the landlord, Tampa Westshore Associates Limited Partnership (TWA) was entitled to immediate possession of the leased premises at issue located in the International Plaza Mall. We conclude that the trial court erred in entering summary judgment and reverse for further proceedings.

In August 2000, A.Z.3 entered into a ten-year lease with TWA to lease rental space from TWA in various shopping centers across the country, including the International Plaza Mall. The lease required A.Z.3 to make its rent payments on or before the first day of every month. When the March 2003 lease payment was not timely made, TWA sent A.Z.3 a notice by certified mail demanding payment of the $25,034.69 due or delivery of possession within three days of the date of delivery of the notice. This notice was sent pursuant to section 83.20(2), Florida Statutes (2000), the statutory three-day notice provision, which allows a landlord to terminate the lease and remove a tenant from the premises after a default in payment where the landlord has served a written notice on the tenant giving the tenant three days to either pay the rent or submit possession of the premises. Within the three-day period, A.Z.3 paid TWA, TWA accepted the payment, and A.Z.3 remained in possession.

Likewise, when the April 1, 2003, lease payment was not timely made, TWA sent A.Z.3 by certified mail a notice informing A.Z.3 that the April 1, 2003, rent of $32,408.41 was past due and demanding possession within three days from the date of delivery of the notice. Unlike the March notice, however, the April notice did not include the option of payment of rent within three days of receipt of the notice, rendering it insufficient as a three-day notice under section 83.20(2). A.Z.3 tendered payment within three days but TWA refused to accept the payment.

TWA then filed an action seeking: (1) possession of the premises; (2) termination of the lease; and (3) breach of lease damages. A.Z.3 answered, raising affirmative defenses, and filed a counterclaim for declaratory relief. TWA then filed a subsequent emergency motion for summary proceeding for possession and sought summary judgment on the remainder of its claims and on the counterclaim. A.Z.3 opposed TWA’s motion and cross-filed for summary judgment.

On September 2, 2003, the trial court denied A.Z.3’s cross-motion for summary judgment and granted TWA’s motion for partial summary judgment on the possession count, finding that (1) the failure of the April notice to adhere to the requirements of Florida’s statutory three-day notice provision under section 83.20(2) did not preclude TWA from retaking possession because the lease had unambiguously waived that three-day notice provision; and (2) TWA did not waive its right to enforce the lease and retake possession without notice when it accepted a late lease payment in March. A.Z.3 challenges both determinations.

First, we disagree with the trial court’s finding that the lease unambiguously waived the three-day statutory notice. To the contrary, we believe that the lease provision regarding waiver of the three-day statutory notice created a genuine issue of material fact and that the issue was not properly decided by summary judgment.

Under Florida law, any waiver of the three-day statutory notice must be expressly stated. Clark v. Hiett, 495 So.2d 773 (Fla. 2d DCA 1986). While there is language in the lease suggesting an express waiver, the parties’ act of striking through other language in the same section of the lease would appear to negate the existence of any such waiver. The language upon which the trial court relied to find an unambiguous or express waiver of the statutory three-day notice is contained in section 19.01 of the lease. It provides that the landlord may “without notice, re-enter the leased premises and dispossess [the tenant], by summary proceedings.” However, that section also contains the following language that the parties clearly intended to delete by striking through it during the course of prelease negotiations: “Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end.”

The first quoted phrase above appears to support the trial court’s finding that the lease specifically allowed the landlord to terminate the lease and re-enter without giving the tenant notice of same. However, the parties’ act of striking through the last sentence appears to directly contradict that premise. Because the trial court had before it the struck-through copy, not a “clean copy,” the inconsistency or ambiguity contained in the lease regarding the requirement of notice was apparent. In view of this contradictory language, the parties’ intent as to the need for TWA to give the statutory three-day notice was certainly not expressly stated, as is required by Clark, 495 So.2d 773. Given this ambiguity, we conclude that the trial court erred in finding that there was no genuine issue of material fact. Accordingly, the trial court erred in entering summary judgment on this issue. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

We decline to address the second issue, which is whether TWA waived its rights to seek eviction by accepting a late payment in March. The determination of that issue is dependent on the fact finder’s ultimate determination of the first issue, whether the lease expressly and unambiguously waived the three-day notice provision, resulting in a valid eviction under section 83.20(2). It is only in the event that the eviction is considered valid under the statute that A.Z.3 will wish to raise the affirmative defense that TWA waived the right to pursue eviction by accepting a late payment. Given our inability to determine the validity of the eviction at this point due to the ambiguity of the three-day notice provision, we are likewise unable to make a determination as to A.Z.3’s affirmative defense of waiver at this time.

Reversed and remanded.

SILBERMAN and WALLACE, JJ., Concur.


author: MONACO, J. SHARP, W., J.,

text:
    Gene Robert SIMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D02-2401, 5D02-2448.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied April 7, 2004.
    Thomas E. Cushman, St. Augustine, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

This appeal brought by Gene Robert Sims raises an issue concerning the assessment of victim injury points for the crime of leaving the scene of an accident involving death. We conclude that victim injury points were properly assessed and affirm.

Mr. Sims was driving his wife’s truck when he struck and killed Bernell Williams (the “Victim”). For reasons not specified Mr. Sims left the scene of the accident without ever stopping the truck. He was charged with violating section 316.027(l)(b), Florida Statutes (2001), and found guilty as charged in the information.

Sheila Asbury, one of the passengers in the Sims vehicle, testified that the occupants of the truck were looking for drugs, having already smoked crack cocaine and drunk beer prior to the accident. She stated that before Mr. Sims hit the Victim, she saw the Victim laying on top of a bicycle in the middle of the road. She described the sounds made by the accident as a “loud dragging like metal ... it was dragging bad.” Because the Victim was laying in the middle of the road, Mr. Sims had only two choices. He could either hit the Victim or hit the guardrail on the side of the road. In any event, the trial court eventually determined that the accident was virtually unavoidable.

The medical examiner testified at trial that at the time of his death the Victim had a blood alcohol level of .196, and that he had been struck while he was lying in the street. He theorized that the Victim had fallen off of his bicycle and was lying in the middle of the road when he was struck. The medical examiner further testified that the victim’s death was “instantaneous” upon impact, or certainly “within a second or two.” The autopsy revealed that the Victim had lacerations of the head, neck, and face; bruises and abrasions on the lower chest; skin rubbed off from large areas of his arms and from his lower back to the top of his shoulders; a torn scalp; crushing injuries to his entire chest and to the right side of his abdomen; a broken right pelvis; every rib fractured on both sides of his torso; a crushed and torn liver; a crushed and torn heart; extensive lung injuries; a broken back and neck; and a crushed skull with extensive injuries to the brain. The doctor concluded that the Victim’s injuries were consistent with his being hit, dragged, and run over.

A law enforcement homicide investigator who responded to the scene indicated that he saw the Victim on the side of the road, where he had been placed by two passersby. When asked what he was able to determine from an examination of the accident scene, he said “Basically all I could say for sure is that the gentleman had been hit by some type of vehicle and drug down the road for a bit and was dead.”

Prior to sentencing a pre-sentence investigation was prepared which reflected a minimum sentence of 8 months incarceration. At the sentencing hearing, however, the State argued in favor of adding 120 victim injury points to Mr. Sims’ Criminal Punishment Code scoresheet. The trial judge agreed, and but for a downward departure, the result was a lowest permissible incarcerative sentence of eight years. Because the trial judge found, among other things, that the accident was “nearly unavoidable,” he downwardly departed, and sentenced Mr. Sims to five years in the custody of the Department of Corrections, followed by five years of probation.

Mr. Sims contends that the trial court improperly assessed “victim injury points” to his scoresheet, thus resulting in a minimum sentence longer than called for under the guidelines. He argues that he was charged only with the offense of leaving the scene of a crash involving a death. He was not charged with a crime specifically concerning the injury inflicted on the Victim because the Victim’s actions made the crash nearly unavoidable. Essentially, Mr. Sims contends that because the offense he committed occurred after the victim was already dead, the injuries and death were not the “direct result” of leaving the scene of the accident.

We begin our analysis by noting that the imposition of victim injury points is within the sound discretion of the trial court. See Jones v. State, 826 So.2d 1100 (Fla. 5th DCA 2002); Ely v. State, 719 So.2d 11 (Fla. 2d DCA 1998). A trial court abuses its discretion “only where no reasonable man would take the view adopted by the trial court.” See Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998). We believe that the imposition of victim injury points in this case was within the trial court’s discretion, and that no abuse has been shown.

Section 921.0021(7)(a) defines victim injury as:

The physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.

The Florida Rules of Criminal Procedure also give guidance on how to assess victim injury points. Rule 3.701(d)(7), Florida Rules of Criminal Procedure, provides that:

Victim injury shall be scored for each victim physically injured during a criminal episode or transaction, and for each count resulting in such injury whether there are one or more victims.

The committee’s comments following the rule reflect the intention of the committee that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical injury. When the rule was adopted, the Supreme Court reiterated that:

The commission recommends that victim injury be scored whether or not it is an element of the crime, if, in fact, injury occurred during the offense which led to the conviction. We see merit in scoring physical injury if a defendant physically injures the victim of the offense during the course of a criminal episode, regardless of whether the injury is an element of the crime, but do not believe it wise to extend the definition of injury to include psychic injury.

Florida Rules of Criminal Procedure re Sentencing Guidelines (rules 3.701 and 3.988), 509 So.2d 1088, 1089 (Fla.1987). Thus, it is clear that the current rule allows for the assessment of victim injury points even if the injury is not an element of the crime, as long as there is physical trauma.

The Fourth District Court of Appeal has considered a factually similar case. In May v. State, 747 So.2d 459 (Fla. 4th DCA 1999), the defendant appealed his sentence arguing that the trial court erred when it assessed victim injury points for the death of the victim. The defendant struck and hit the victim. While trying to dislodge the body, the defendant swerved from side to side and dragged the body approximately 500 feet, throwing the body into the middle of the street where it was struck by another car. The defendant pled no contest to the charges of leaving the scene of an accident involving death in violation of section 316.027(1)(b). At sentencing the state introduced the deposition of the medical examiner to establish a nexus between the defendant’s actions and the victim’s death. The medical examiner testified that as a result of being dragged under the defendant’s vehicle, the victim sustained multiple blunt trauma injuries and large brush abrasions which eroded skin and muscle, exposing the victim’s internal organs. The medical examiner opined that the combination of all of the injuries caused the victim’s death, but could not say for sure whether the victim’s death was a direct result of the first collision, being dragged under defendant’s vehicle in the course of defendant’s leaving the scene, or the second impact. The testimony was that both the impact and the dragging caused the death. The Fourth District Court determined that the trial court had sufficient evidence to support its finding that the commission of the crime in issue ... resulted in “death suffered by a person as a direct result of the primary offense,” and affirmed the lower court, stating that section 921.0011(7)(a) requires that the crime be a cause of death, not necessarily the cause of death.

In the present case there is substantial competent evidence that the Victim was dragged after being hit by Mr. Sims’ vehicle. Using the reasoning set forth in May, we conclude that there was a sufficient causal connection between the leaving of the accident scene and the death to justify the imposition of victim injury points, and that the trial judge did not abuse his discretion in doing so.

Mr. Sims has brought to our attention two cases from the Second District Court of Appeal that he believes stand for the proposition that victim injury points should not be assessed for the crime of which he was convicted. An examination of these cases, Rodriguez v. State, 684 So.2d 864 (Fla. 2d DCA 1996), and Geary v. State, 675 So.2d 625 (Fla. 2d DCA), review denied, 680 So.2d 422 (Fla.1996), however, reflects that our sister court concluded that in those cases there was no causal connection between the crimes and the victim injury. In the present case, however, as we have indicated, there is a nexus between the death of the Victim and the crime. Cf., Schuette v. State, 822 So.2d 1275 (Fla.2002); Triplett v. State, 709 So.2d 107 (Fla. 5th DCA 1998).

Mr Sims also relies on two cases, Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984), and Benedict v. State, 475 So.2d 1000 (Fla. 5th DCA 1985), for the proposition that Rule 3.701(d)(7) only permits victim injury points to be scored if victim injury is an element of one of the offenses for which a criminal defendant is convicted. Since victim injury is not an element of leaving the scene of a crash involving death, he argues that victim injury points were inappropriate. This theory, however, fails to recognize that Rule 3.701(d)(7) was amended in 1988, after the publication of those cases to remove the requirement that victim injury be an element of the offense. In fact, the commission notes to the amendment specifically relate that the injury need not be an element of the crime. See also Seccia v. State, 786 So.2d 12, 14 (Fla. 1st DCA 2001).

An issue arose at the oral argument of this case concerning whether victim injury points are already factored into the offense level for the offense of which he was convicted. Mr. Sims points out that section 316.027(l)(a), Florida Statutes, makes the offense of leaving the scene of a crash resulting in injury a third degree felony, while subsection (l)(b) of that statute makes leaving the scene of a crash involving death a second degree felony. Thus, he theorizes that victim injury has already been mixed into this sentencing calculus. His theory, however, misapprehends the purpose of victim injury points.

Victim injury points are added to a scoresheet to ratchet up the sentencing mínimums within a felony level. That is to say, for example, that not all second degree felonies are deemed to require the same punishment, even though they share the same maximum punishments. By adding victim injury points, a higher quantity of incarceration can be expected, because the lowest permissible sentence is elevated. Dealing in stolen property, a second degree felony, may justify a less severe punishment than leaving the scene of a crash involving death. To assure that the seriousness of the latter crime is recognized, the legislature has required that victim injury points be added if the death is the direct result of the offense. See § 921.0021(7)(a), Fla. Stat. (2001). Similarly, if a criminal defendant is convicted of second degree murder in violation of section 782.04(2) or (3), Florida Statutes (2001), a felony of the first degree, 240 victim injury points are added to the Criminal Punishment Code worksheet, even though the death of the victim is by definition factored into the offense level. See § 921.0024, Fla. Stat. (2001). In contrast, insurance fraud where the property value is $100,000 or more is also a first degree felony, but no victim injury points are imposed. See § 817.234(ll)(c), Fla. Stat. (2001). The net effect, of course, is that the lowest permissible sentence will be higher for second degree murder, even though both are first degree felonies. Finally, we note that the appellate courts of this state have frequently acknowledged the propriety of the imposition of victim injury points in cases where the injury is an element of the crime. See, e.g., Whipple v. State, 789 So.2d 1132, 1138 (Fla. 4th DCA 2001); Trombley v. State, 754 So.2d 121 (Fla. 5th DCA 2000); Scholz v. State, 734 So.2d 526 (Fla. 4th DCA 1999); Wendt v. State, 711 So.2d 1166 (Fla. 2d DCA 1998); Martinez v. State, 692 So.2d 199 (Fla. 3d DCA), review dismissed, 697 So.2d 1217 (Fla.1997).

Finally, we do not disagree with the general legal theory articulated in the dissenting opinion. Our disagreement stems only from a view of the evidence that was before the trial court. We are satisfied that the testimony from the medical examiner and from the homicide investigator to the effect that the Victim was hit, dragged and run over provides, as in May, a sufficient nexus between the failure to stop and the victim injury.

Based on this analysis, we conclude that the trial court properly assessed victim injury points in connection with the sentencing of Mr. Sims.

AFFIRMED.

SMITH, M. T., Associate Judge, concurs.

SHARP, W., J., dissents with opinion.

SHARP, W., J.,

dissenting.

I respectfully disagree that the 120 victim injury points were properly added to Sims’ guidelines scoresheet in this case. While assessment of injury points is a matter addressed to the sentencing judge’s discretion, the wording of the guidelines and applicable rules control when victim injury points should or should not be assessed. Martinez v. State, 692 So.2d 199 (Fla. 3d DCA 1997).

Sims was driving a semi-tractor trailer, late at night, in an unlighted rural area. He was not exceeding the speed limit. He was in his own lane. He was not impaired, according to the testimony of a passenger. There was no contrary testimony. As the Sims’ vehicle approached the end of a bridge, suddenly the victim appeared before them in the middle of the road. The victim had apparently fallen on top of his bicycle and was not standing up. Sims testified he could not stop his vehicle in time to avoid hitting the victim and because of the guardrails on either side of the road, he could not swerve to avoid him.

Sims realized he had run over the victim. He made a decision not to stop and continued, leaving the scene of the accident. Later, apparently the victim’s body was moved to the side of the highway by unknown persons. There were no postmortem injuries evident to indicate he had been hit by another vehicle. The death-causing injuries were consistent with being hit and then run over.

The trial judge concluded that the accident which caused the death of the victim was “nearly unavoidable.” Sims was not charged with vehicular manslaughter or DUI/manslaughter. Rather, he was only tried and convicted of leaving the scene of an accident resulting in the death of a person. Section 316.027(l)(b) provides:

The driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062.

Section 316.062 mandates that the driver must give information about the accident to authorities and render such aid as appropriate and needed to the victim.

At the time of the accident (May 13, 2001), the applicable statute, section 921.0021(7)(a) (2001) defined “victim injury” as:

[T]he physical injury or death suffered by a person as a direct result of the primary offense, ... which is pending before the court for sentencing at the time of the primary offense, (emphasis supplied)

And, Florida Rule of Criminal Procedure 3.704(d)(9) (2001), which implemented the 1998 Criminal Punishment Code, provides:

Victim injury is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.... Victim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims. However, victim injury must not be scored for an offense for which the offender has not been convicted, (emphasis supplied)

In my view, both of the applicable provisions mandate that there be a cause and effect relationship between the crime for which a defendant is being sentenced (here leaving the scene of an accident causing a death) and the injuries or death for which points are being assessed. That is totally lacking in this case. The victim died on impact. Sims’ failure to stop and render assistance or report to the authorities the facts and circumstances of the accident had no nexus or connection with the death under the facts of this case. Even had Sims stopped and tried to render assistance, and reported to the police all he knew about the accident, the victim died instantly. His unlawful departure from the scene had no connection with the death.

Both the state and the defense rely on May v. State, 747 So.2d 459 (Fla. 4th DCA 1999) to support their positions. That case appears to be factually distinguishable from this one because the victim in that case was hit by the defendant’s vehicle and dragged 500 feet, after the defendant knew he had hit the victim, had determined not to stop and had begun to leave the scene, dragging the victim’s body. Further, the medical examiner testified that he could not tell whether the defendant’s act of hitting or dragging the victim caused his death or whether it was the impact of a second car that later struck the victim in the road. He said both the impact and the dragging while the defendant attempted to flee, caused the death. Based on that testimony, the court determined that the evidence supported the trial court’s conclusion that the death was a direct result of the primary offense (leaving the scene of an accident).

However, as noted above, there is no such testimony in this case. Sims’ fleeing or leaving the scene of the accident did not cause or contribute to the victim’s death because the victim died instantly upon impact and before Sims could possibly have stopped his vehicle.

The second DCA has issued two opinions indicating, as suggested above, that there must be a nexus between the crime for which the defendant is convicted, and the victim injury or death points assessed. In Geary v. State, 675 So.2d 625 (Fla. 2d DCA 1996), the court relied on the wording in section 927.001(7)(a) (quoted above) and rule 3.702(d)(5) (discussed above), which both require that the injury or death be a direct result of the offense pending for sentencing in order to assess injury points. The court concluded in that case, that because the defendant’s leaving the scene of an accident did not cause the injury, injury points would not be assessed. It reasoned that had the defendant stayed at the scene, the injury would have occurred in any event. Although the court did not state the facts in the case, it similarly concluded in Rodriguez v. State, 684 So.2d 864 (Fla. 2d DCA 1996) that in order to assess injury points against a defendant for leaving the scene of an accident resulting in death, there must be evidence that death was caused by, or was a direct result of, the defendant’s leaving the scene of the accident.

The error in this case, I think, was caused by the trial court’s view of this case as “the flip side of a DUI/manslaughter.” The judge commented that Sims left the scene of the accident to avoid being charged with manslaughter because he had been smoking cocaine and had consumed an alcoholic beverage, and he was “impaired.” The difficulty with this approach is that Sims was not charged with nor convicted of manslaughter or DUI, and there was no evidence in this record that Sims was impaired.

Had Sims been charged with and convicted of manslaughter or DUI in connection with this accident, clearly the imposition of points for the victim’s death would be appropriate. See Martinez v. State, 692 So.2d 199 (Fla. 3d DCA 1997). But the rule and statute both require that the death or injury must be a direct result of the “primary offense,” to authorize assessment of victim injury points. Absent a conviction for manslaughter or DUI causing a death or injury as the primary offense, as in this case, both the rule and statute require a causal or result connection with the death and the leaving the scene of the accident offense.

This case is in the same posture as if Sims had been charged and tried for manslaughter or DUI, but the jury acquitted him of that charge because the accident was unavoidable and not his fault, yet it convicted him of leaving the scene. Rule 3.704(d)(9) mandates that no victim injury points should be assessed for a crime for which a defendant has not been convicted.

In sum, had the state presented evidence that Sims’ leaving the scene of the accident, the only crime for which he was convicted, caused in part or in full the death of the victim, then I would agree with assessing victim injury points in this case. Situations can be imagined where victim injury points should be assessed. For example, a driver who hits and knocks a person from a bicycle, leaving the person in the road, injured, who is later run over by another car and killed. The problem with the precedent of assessing victim injury points in this case is that it is difficult to image any case in the future where victim injury points will not be assessed where a person is run over and killed by a vehicle in an accident, and the errant driver flees the scene. In my view, that is contrary to the wording of the statute and rules which require a “direct result” relationship.

      . The various versions of the Criminal Rules applicable to different guidelines (rules 3.701 and 3.702) word this provision slightly differently. Rule 3.701(d)(8) which is quoted in the majority opinion provides “victim injury shall be scored for each victim physically injured during a criminal episode or transaction,” but it addressed the guidelines prior to 1994. Rule 3.702(d)(5) reads substantially the same as the rule quoted above, and it applies to the 1994 Sentencing Guidelines.


author: GRIFFIN, J.

text:
    Derrick S. ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3763.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied April 6, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Derrick S. Ellis [“Ellis”] appeals his sentences, for the fourth time, for violent crimes apparently committed in 1989. The sentencing history of these convictions is chronicled in Ellis v. State, 774 So.2d 707 (Fla. 5th DCA 2000) [“Ellis I”]; Ellis v. State, 785 So.2d 497 (Fla. 5th DCA 2001) [“Ellis II’’]; and Ellis v. State, 826 So.2d 488 (Fla. 5th DCA 2002) [“Ellis III”].

In Ellis III, this court considered the denial of the most recent of Ellis’ rule 3.800(a) post-conviction motions. The court concluded that the claim raised in the motion — that the consecutive habitual offender sentences imposed for the three crimes were illegal — was cognizable as an “illegal sentence” under rule 3.800(a) and that the motion was not barred as successive based upon this court’s decision in McBride v. State, 810 So.2d 1019 (Fla. 5th DCA 2002).

On remand, the court decided that the consecutive sentences were illegal and Ellis had to be resentenced. The State urged the court to carry out the evident intent of the original sentence as closely as possible by giving Ellis a guidelines sentence, which, given his score, the State asserted would be life imprisonment. Ellis objected that in Ellis III, we did not authorize any revision in the sentence beyond elimination of “consecutive sentences.” According to Ellis, to do other than impose three concurrent sentences of thirty years would violate this court’s mandate.

We disagree. Ellis claimed his sentences were illegal for a specific reason. This court agreed that he was entitled to have his claim of illegality considered on the merits. Once it was determined that Ellis had received illegal sentences, he was not entitled to a specific sentence but only to a legal sentence. At the resentencing, no one suggested that the sentence imposed was not a sentence that could legally have been imposed at his original sentencing. The trial court’s imposition of a legal sentence after deciding that consecutive habitual offender sentences were illegal was entirely within this court’s mandate. See Trotter v. State, 825 So.2d 362 (Fla.2002); Wood v. State, 582 So.2d 751 (Fla. 5th DCA 1991).

AFFIRMED.

SAWAYA, C.J., and MONACO, J„ concur.

      . At the time of this court’s opinion, the Supreme Court of Florida had accepted jurisdiction of McBride and subsequently quashed this court's decision. State v. McBride, 848 So.2d 287 (Fla.2003). Because of our disposition of the case, we do not consider the effect of this outcome.

      . Appellant suggests for the first time in his reply brief that the sentences imposed may not, in fact, be legal sentences, but given the limited record we have before us, we cannot tell whether this is so.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Denise TAMBURINI, Appellee.
    No. 4D03-27.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Susely BATTLE, Appellee.
    No. 4D03-292.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. John O’BRIEN, Appellee.
    No. 4D03-399.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Richard BASKIN, Appellee.
    No. 4D03-513.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Naomi CONNELL, Appellee.
    No. 4D03-680.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Barry WILLIAMSON, Appellee.
    No. 4D03-685.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Gregory SPENCER, Appellee.
    No. 4D03-686.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert HAYES, Appellee.
    No. 4D03-1036.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Pamela FLORES, Appellee.
    No. 4D03-2249.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender, Debra A. Bookout and Pascale Chancy, Assistant Public Defenders, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613 (Fla. 4th DCA 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Matthew Alexander DAYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3045.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Bennett H. Brummer, Public Defender, and Naphtali Hertz Wacks, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

Matthew Alexander Dayes appeals his conviction for aggravated battery. We affirm.

Defendant-appellant Dayes and a code-fendant were charged with attempted second degree murder of Jean Toussaint. The defendant was convicted of aggravated battery as a lesser included offense.

The relevant part of the jury verdict form stated:

/ Guilty of Aggravated Battery as a lesser included offense
Using a firearm
/ Not using a firearm

R. 421.

The defendant argues that when the jury found that he had committed the crime without using a firearm, this necessarily negated an essential element of the crime of aggravated battery. He argues that the offense must be reduced to simple battery. See § 924.34, Fla. Stat. (1999).

The State argues that this issue was not timely presented in the trial court. For present purposes we treat the issue as having been timely presented. On the merits, however, we affirm.

In instructing on this lesser included offense, the trial court gave the instruction on the “deadly weapon” part of the aggravated battery statute. The relevant part of the statute provides that “[a] person commits aggravated battery who, in committing battery ... [u]ses a deadly weapon.” § 784.045(1)(a)2., Fla. Stat. (1999). The trial court went on to give the “principal” instruction, informing the jury that it could convict if the defendant helped another person to commit the crime. TR. 832; see § 777.011, Fla. Stat. (1999); Fla. Std. Jury Instr. (Crim.) 3.01.

In the present case the evidence was that the defendant drove the codefendant to the encounter with the victims. There was evidence that the defendant handed a handgun to the codefendant, who shot (but did not kill) victim Toussaint. The jury could conclude that the defendant gave assistance to the codefendant in shooting the victim, by driving the codefendant to the encounter and handing him the gun. It follows that the evidence amply supports the conviction of this defendant as a principal in the crime of aggravated battery.

The defendant argues that this is inconsistent with, and negated by, the jury finding that he was guilty of aggravated battery “[n]ot using a firearm.” The defendant is incorrect.

The purpose of the “Using a firearm” and “Not using a firearm” interrogatories is to determine whether the defendant personally possessed a firearm so as to require the mandatory minimum term of imprisonment under the Ten-Twenty-Life law. See § 775.087(2)(a)1., Fla. Stat. (1999). The requirement for an interrogatory verdict for purposes of a mandatory minimum term of imprisonment is set forth in State v. Overfelt, 457 So.2d 1385 (Fla.1984). See also State v. Tripp, 642 So.2d 728, 730 (Fla.1994).

Thus, there is no inconsistency. By its verdict the jury found that the defendant had assisted the shooter by handing him the weapon. However, the jury concluded that the defendant did not personally use the firearm during the actual shooting.

The trial court properly imposed judgment and sentence for the crime of aggravated battery, without a firearm mandatory minimum.

Affirmed.

      . The crime date was February 15, 2000.

      . The defendant and codefendant were charged in another count with the murder of another victim, but the defendant was acquitted of that count.


text:
    BLACKSTONE CALLING CARD, INC., Appellant, v. Pradip PATEL, Kaushika Patel, The Phone Card Warehouse, Inc., and Sky Telecom, Inc., Appellees.
    No. 3D03-2236.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.

      Catlin, Saxon, Evans, Fink, Kolski & Romanez, P.A.; Arnaldo Velez, Coral Gables, for appellant.
    Carlton Fields and Alfred Saikali, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

Blackstone Calling Card, Inc. appeals an order transferring venue. We affirm.

Plaintiff-appellant Blackstone Calling Card, Inc. sued the defendants-appel-lees on checks returned for insufficient funds. The defendants’ bank is in Orange County, Florida, and it dishonored the checks there. For purposes of the venue statute, the cause of action accrued there. See Shindler v. State Wide Recovery & Research Corp., 330 So.2d 807, 808 (Fla. 3d DCA 1976); § 47.011, Fla. Stat. (2001).

The plaintiff argues that the result should be otherwise because the plaintiff made demand under the worthless check statute, section 68.065, Florida Statutes (2001). The plaintiff argues that once demand is made under the statute, the demanded sum is payable where the plaintiff resides. See § 68.065(3), Fla. Stat. (2001). Since the plaintiff resides in Miami-Dade County, the plaintiff argues that this means the cause of action accrued in Miami-Dade County for purposes of the venue statute. We disagree, as it still appears that the cause of action is properly viewed as having accrued where the check was dishonored. Thus, we adhere to the Shin-dler rule. Venue was proper in Orange County on the bad check claims.

The plaintiff also asserted a claim for breach of contract. In this case the plaintiff sold prepaid telephone calling cards to the defendants on a C.O.D. (“cash on delivery”) basis. A Federal Express courier delivered the calling cards to the defendants’ place of business and exchanged the calling cards for checks which were then delivered by courier to the plaintiff in Miami.

The trial court ruled, and we agree, that since this was a C.O.D. transaction, it follows that the place of payment was at the place of delivery — the defendants’ business location — not the plaintiffs place of business in Miami. The plaintiff cites the rule that in the absence of an agreement on place of payment, the debtor must seek the creditor at the creditor’s residence or office. See Carter Realty Co. v. Roper Bros. Land Co., 461 So.2d 1029 (Fla. 5th DCA 1985). That rule does not apply here, because payment was agreed to be C.O.D. at the defendant’s business location.

We therefore agree with the trial court that Miami-Dade County was an impermissible venue and the case was appropriately transferred to Orange County.

Affirmed.