text:
    Corey Dion GORDON, Petitioner, v. Michael MOORE, Sec., Fl. Dept. Corr., etc., Respondent.
    No. 3D02-992.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 2002.
    Bennett H. Brummer, and Lisa Walsh, Assistant Public Defender, for appellee.
    Richard E. Doran, Attorney General, and John Barker, Assistant Attorney General, for respondent.
    Before JORGENSON, COPE and GODERICH, JJ.
   PER CURIAM.

Corey Dion Gordon seeks a writ of habe-as corpus from unlawful habitual offender sentences. For the following reasons, we grant the petition in part and remand to the trial court for resentencing.

In case numbers 94-13111 and 94-32396, defendant was convicted of various offenses and sentenced as a habitual felony offender. The two necessary predicate offenses for the habitualization were 1991 convictions for burglary offenses. However, those two predicate convictions were entered on the same day by the same judge and did not meet the “sequential convictions” requirement of section 775.084, Florida Statutes (1993). See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001) (holding that although sentencing for separate convictions arising from unrelated crimes can take place on same day, sentences cannot be part of same sentencing proceeding; those separate convictions in same proceeding cannot be considered “sequential” for purposes of habitualization).

We grant the petition only insofar as we vacate the habitual offender sentences entered in case numbers 94-13111 and 94-32396. We remand this matter to the trial court for resentencing.

Upon resentencing, if the defendant has other prior felonies that would qualify him as a habitual offender, the State may make that showing on remand. See Delevaux v. State, 762 So.2d 1062 (Fla. 3d DCA 2000); Williams v. State, 692 So.2d 292, 293 (Fla. 3d DCA 1997); Olsen v. State, 691 So.2d 17, 18 (Fla. 3d DCA 1997).

Petition granted m part; remanded with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael Wayne LOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3526.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Appellant, pro se.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Banks v. State, 801 So.2d 153 (Fla. 1st DCA 2001), rev. granted, Supreme Court Case No. SC01-2733, 826 So.2d 991 (Fla.2002).

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Johnnie M. POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3422.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.

      Appellant, pro se.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002).

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Donna Manske ROMERO, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0780.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

This appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s judgment and sentence but remand for correction of the written judgment to conform to the trial court’s oral pronouncement granting prior prison credit.

The appellant was placed on probation when she pled guilty to third-degree felonies in two cases. The appellant violated that probation by committing more third-degree felonies in two other cases. For the new law violations, the appellant received concurrent probationary split sentences. The probation that the appellant was already on was tolled until she was released from incarceration for the new law violations. After completing the incar-cerative portion of the probationary split sentences, the appellant was found to be in violation of two conditions of her supervision in all four of the cases. When the trial court revoked the appellant’s probation and orally pronounced an otherwise legal sentence of concurrent but not coterminous terms of five years’ incarceration, the trial court awarded credit for all the time that the appellant had previously served in these cases. However, the appellant’s written judgment and sentence does not reflect the trial court’s award of prior prison credit against the sentences imposed for the violation of the probationary portions of the probationary split sentences. Therefore, we remand with instructions to the trial court to conform the appellant’s written judgment and sentence with its oral pronouncement. See Hudson v. State, 772 So.2d 614 (Fla. 1st DCA 2000). The appellant’s judgment and sentence are otherwise affirmed.

AFFIRMED; REMANDED WITH INSTRUCTIONS. .

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Rodney WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1468.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant’s revocation of probation and imposition of judgment and sentence. However, because the record does not contain a written order of revocation of probation listing the conditions of probation violated, we remand for the trial court to enter such an order, consistent with its oral pronouncement. See Oliver v. State, 819 So.2d 816 (Fla. 1st DCA 2002).

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Donald WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1987.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Appellant, pro se.
    Richard E. Doran, Attorney General, James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In his timely motion filed pursuant to Florida Rule of Criminal Procedure 3.850, Donald Wilson alleges that he would not have entered a plea and the outcome of the proceedings would probably have been different if he had not been deprived of the effective assistance of counsel. Specifically, his motion alleges he informed retained counsel that an earlier request for counsel was ignored during police interrogation; that, while in custody and without counsel, a statement was elicited before he was given Miranda warnings; and that .the statement was involuntary. The motion alleges that defense counsel failed to file a motion to suppress the statement, failed to depose any witnesses, failed to investigate a viable self-defense theory adequately, and so failed to. give advice about the state’s case against him that comported with minimum professional standards. Finally, the motion contains allegations that the plea was involuntary for reasons like those alleged in Luma v. State, 736 So.2d 1280 (Fla. 4th DCA 1999).

Nothing was attached to the order denying the motion that would refute any of these claims. We therefore remand for such attachments, or for an evidentiary hearing on each claim. The order is otherwise affirmed.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Jessie J. UPSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3455.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Appellant, pro se.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated October 14, 2002, this appeal is hereby dismissed for lack of jurisdiction.

MINER, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Chad WAID, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4042.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Appellant, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated October 29, 2002, this appeal is dismissed for lack of jurisdiction.

DAVIS, BENTON and POLSTON, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    Donnie CALDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1689.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.

      Appellant, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

KAHN and LEWIS, JJ., concur; BENTON, J. concurs with opinion.

BENTON, J.,

concurring.

I concur. See Bush v. State, 785 So.2d 1238, 1238 (Fla. 4th DCA 2001) (declining to reach merits of vindictive sentencing claim on appeal of denial of motion under Florida Rule of Criminal Procedure 3.850); contra Fairweather v. State, 505 So.2d 653, 654-55 (Fla. 2d DCA 1987) (reaching merits of vindictive sentencing claim raised collaterally). See generally Prado v. State, 816 So.2d 1155, 1157 (Fla. 3d DCA) (holding on direct appeal that a presumption of vindictiveness arises when a trial judge who has participated in plea negotiations imposes a sentence in excess of what the state offered), notice of discretionary jurisdiction filed, No. SC02-1124 (Fla. May 15, 2002); Byrd v. State, 794 So.2d 671, 673 (Fla. 5th DCA 2001) (same), review granted, 817 So.2d 850 (Fla. Apr.12, 2002) (Table); McDonald v. State, 751 So.2d 56, 58-59 (Fla. 2d DCA 1999) (same); contra Morales v. State, 819 So.2d 831, 832 (Fla. 4th DCA), review granted, No. SC02-1152 (Fla. May 20, 2002).


text:
    Dwayne A. JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-385.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

The defendant, Dwayne A. Jackson, appeals from his judgment of conviction and sentence for burglary of an occupied dwelling. We reverse and remand for further proceedings.

After the defense announced that it would not present a case, the trial court ruled that the defendant could be impeached with his prior felony convictions pursuant to section 90.806, Florida Statutes. Immediately thereafter, defense counsel moved to reopen the case. He attempted to explain to the trial court that the defendant’s initial decision not to testify was based on his desire that the jury not learn of his prior convictions but that now that the jury would learn of his prior convictions, his reason for not testifying was moot. The trial court denied the motion to reopen the case stating, “We’re going to finish it my way today. The answer is no.” Defense counsel’s motion for mistrial was denied, and the jury ultimately learned that the defendant had been convicted of numerous felonies.

The defendant contends that the trial court abused its discretion by not allowing him to reopen his case. We agree.

A trial court’s decision to reopen a case lies within its sound discretion and will not be disturbed on appeal absent an abuse of discretion. See Donaldson v. State, 722 So.2d 177, 181 (Fla.1998); Biggs v. State, 745 So.2d 1051, 1053 (Fla. 3d DCA 1999). In Donaldson, the Florida Supreme Court explained the circumstances where the denial of a defendant’s motion to reopen his case would be subject to reversal on appeal. The Court held:

Where the case is not technically closed (i.e., counsel have not begun closing argument and the case has not been submitted to the jury), the denial of a defendant’s motion to reopen the case will be reversed if the motion was timely and a proper showing has been made as to why the evidence was omitted.

Donaldson, 722 So.2d at 181 (citations omitted).

In applying the test set forth in Donaldson, it is clear that the trial court abused its discretion in denying the defendant’s motion to reopen his case. First, the case was not “technically closed” because closing argument had not yet begun. Second, the motion was timely because defense counsel moved to reopen the case immediately after the trial court ruled that the defendant’s prior convictions were admissible. Finally, defense counsel made a proper showing as to why the evidence had been omitted when he explained to the trial court why the defendant had initially decided not to testify.

As a result of our disposition of the above issue, we do not address the remaining points raised by the defendant.

Reversed and remand for further proceedings.

      . We recognize that trial courts are confronted with heavy case loads and that they strive for the expeditious resolution of matters; however, we would like to note, that a trial court's decision to deny a motion to reopen a case should not be based on its desire to "finish . . . it today.”


text:
    Jorge E. NIEBLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-48.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before JORGENSON, GODERICH, and GREEN, JJ.
   PER CURIAM.

Defendant appeals his convictions and sentence for three counts of kidnaping with a weapon, two counts of armed robbery, one count of carjacking, one count of burglary with assault, and six counts of attempted second degree murder of a law enforcement officer. We affirm.

The charges against defendant arose out of a home invasion. The trial court sentenced defendant to thirteen consecutive life terms as a habitual violent felony offender.

During the pendency of this appeal, this Court permitted defendant to withdraw his initial brief in order to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) challenging the imposition of the habitual violent offender sentence and the imposition of thirteen consecutive life terms. During the hearing on defendant’s motion, the trial court asked the prosecutor what the maximum permissible sentence was. As a result of this query, defense counsel filed a motion to disqualify the judge, arguing that the court had prejudged the matter. In the motion, prepared from defense counsel’s recollection and without the aid of a transcript, defense counsel incorrectly alleged that the trial court directed the prosecutor to “figure out” how he could again sentence defendant to consecutive life sentences. At a hearing on the motion, the trial court stated:

Okay. Now, I didn’t prejudge the matter. I sat during the entire trial and determined at that time that consecutive life sentences were appropriate. Motion for disqualification is denied.

Defendant claims that the trial court was required to grant the motion for disqualification after it made the aforementioned statement as the statement constituted an attempt by the court to refute the allegations in the motion. We disagree. Although it is impermissible for a trial court to refute the charges in a motion to disqualify, MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1339 (Fla.1990), a court is permitted to state the status of the record. Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1215 (Fla. 5th DCA 2001); Kowalski v. Boyles, 557 So.2d 885, 887 (Fla. 5th DCA 1990). Here, the trial court was merely stating the status of the record: that he imposed consecutive life sentences after defendant’s trial. That the’ trial judge was able to recall what he thought was the appropriate sentence at the conclusion of the trial is not evidence that he prejudged the matter, particularly given the heinous nature of the crimes involved in this case.

We find no merit in defendant’s argument concerning the sufficiency of the evidence. Affirmed.


author: WARNER, J.

text:
    MacCLENNY PRODUCTS, INC., and Bayer Clothing Group, each individually and for the use and benefit of the Indemnity Insurance Company of North America, Appellants, v. TROPICAL SHIPPING AND CONSTRUCTION CO., LTD., Appellee.
    No. 4D01-4663.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.

      Howard T. Sutter of Sullivan, Boyd & Goldsberry, P.A., Jacksonville, for appellants.
    William R. Boeringer of Hayden & Mil-liken, P.A., Miami, for appellee.
   WARNER, J.

Appellant, a clothing manufacturer, appeals the final summary judgment and trial court award of damages resulting from the destruction of three shipments of jackets aboard appellee’s vessels. The parties disputed the extent of appellee’s liability under the federal Carriage of Goods by Sea Act (“COGSA”) which limits a carrier’s liability to $500 per package. This case presents the question of what is the relevant “package” to which COGSA’s limitation of liability should be applied. The trial court determined this issue by summary judgment. We hold that material issues of disputed fact remain and reverse.

For approximately ten years, appellee has shipped appellant’s materials and merchandise between Florida and the Dominican Republic. Every week appellant ships materials to X-Cell Fashions (“X-Cell”), located in Santiago, for it to assemble the men’s jackets; and every week X-Cell returns seven to twelve containers of assembled jackets to appellant in Florida. After assembling the jackets, X-Cell places each jacket on a hanger, wraps the jacket in plastic, and hangs the jacket in a forty-foot shipping container that appellee supplies to X-Cell. Appellee’s forty-foot containers can carry between 4,500 and 5,000 jackets. Appellee has the loaded container transported from X-Cell’s factory to the port in Puerta Plata where- it is loaded on appel-lee’s vessel and shipped to Florida. When appellee receives the loaded container, X-Cell provides appellee its shipping documents from which appellee completes a bill of lading. X-Cell usually does not receive a copy of the bill of lading until after the jackets have been shipped.

This action arose when the jackets were damaged by stowaways who hid in the container while on appellee’s ship. Appellant filed a complaint for breach of contract seeking as damages the value of each destroyed jacket. In defense, appellee asserted that its liability was limited to $500 per “package” and that the forty-foot container was the “package” for purposes of the COGSA limitation.

In granting summary judgment, the trial court relied upon the shipping documents and the case of Fishman & Tobin, Inc. v. Tropical Shipping & Construction Co., 240 F.3d 956 (11th Cir.2001), involving the same parties and issue: what is the “package” which governs the extent of ap-pellee’s liability. The court concluded that the shipping documents in both cases were similar and not ambiguous. Therefore, because the documents did not clearly indicate more than one package was being shipped, it determined that the shipping container was the COGSA package and not the individual jackets.

The parties agree that COGSA, 46 U.S.C. section 1300, governs the resolution of the extent of appellee’s liability. The pertinent section of the Act regarding a carrier’s liability provides:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.

46 U.S.C. § 1304(5) (1997). The Act does not define “package,” leaving this issue to be heavily litigated throughout the Federal circuits. In Fishman & Tobin, the Eleventh Circuit adopted the Second Circuit’s definition of “package” as “a class of cargo, irrespective of size, shape or weight, to which some packaging preparation for transportation has been made which facilitates handling, which does not necessarily conceal or completely enclose the goods.” 240 F.3d at 960 (quoting Aluminios Pozuelo, Ltd. v. S.S. Navigator, 407 F.2d 152, 155 (2nd Cir.1968)).

When determining the relevant package in Fishman, the court looked first to the parties’ intent as evidenced in the bills of lading, particularly the section that provides the number of packages being shipped. See id. at 964; see also Hayes-Leger Assocs., Inc. v. M/V Oriental Knight, 765 F.2d 1076, 1080 (11th Cir.1985) (establishing the guidelines to determine the parties’ intent as to the applicable COGSA package):

[I]f a shipper places its packages of goods in a container furnished by the carrier and discloses the number of packages in the container to the carrier in the bill of lading or otherwise, each package or unit within the container constitutes one package for purposes of COGSA’s five hundred dollar limitation of liability.

Hayes-Leger, 765 F.2d at 1080 (quoting Vegas v. Compania Anonima Venezolana De Navegacion, 720 F.2d 629, 630 (11th Cir.1983)). If, however, either the bills of lading or the shipper’s invoice fails to place the carrier on notice of the number of packages the shipper intends to ship, then the Eleventh Circuit has derived two rules to apply to determine the applicable COG-SA package:

(1) [W]hen a bill of lading discloses the number of COGSA packages in a container, the liability limitation of section 4(5) applies to those packages; but (2) when a bill of lading lists the number of containers as the number of packages, and fails to disclose the number of COG-SA packages within each container, the liability limitation of section 4(5) applies to the containers themselves.

Id. (relying upon Binladen BSB Landscaping v. M.V. “Nedlloyd Rotterdam,” 759 F.2d 1006, 1013-16 (2d Cir.1985) (citations omitted)); see also Mitsui & Co. Ltd. v. Am. Export Lines, Inc., 636 F.2d 807, 821 (2d Cir.1981) (“[Generally a container supplied by the carrier is not a COGSA package if its contents and the number of packages or units are disclosed.”).

The Eleventh Circuit has further held that the number of packages declared must be clearly indicated in the number/quantity column in the bill of lading. If the bill of lading refers to both the container and “other units susceptible of being COGSA packages,” then it is “inherently ambiguous.” Fishman & Tobin, 240 F.3d at 964-65 (quoting Monica Textile Corp. v. S.S. Tana, 952 F.2d 636, 642 (2d Cir.1991)). Any ambiguities in the bill of lading are construed against the carrier, requiring the court to consider the shipper’s documents where they are “the next most reliable source of information [and] should give some clear indication that more than one package is being shipped in order to claim multiple losses.” Id. at 965.

Looking at the bill of lading and the shipping invoices, documents identical to the ones involved in this case, the Eleventh Circuit determined that there were ambiguities and conflicts among this evidence. It determined, nevertheless, that appellant’s own customs declaration form and “reembarque” form clearly indicated that only one package was being shipped. In this case, however, neither the “reemb-arque” nor the customs declaration forms were used. Instead, a Formulario form was used, which does not refer to the same terms as either the bill of lading or the invoice. Thus, there was no clear indication on appellant’s part, as there was in Fishman, that the container was considered the package.

Indeed, here there was substantial evidence offered that contradicted the claim that the container was the package for the COGSA limitation. The bill of lading referred both to the container and the number of jackets shipped. Appellee admitted it completed them based upon the information contained in appellant’s shipping invoices, which clearly indicated each jacket as a package. See id. at 964 (holding same based on identical shipping invoice). Knowing that appellant considered each jacket a package from appellant’s shipping invoices, appellee’s use of the term “units” in the bills of lading rather than “packages” could be considered a self-serving description. See Belize Trading v. Sun Ins. Co. of New York, 993 F.2d 790, 792 (11th Cir.1993). In fact, section 1303(3) of COGSA requires a carrier, after receiving a shipper’s goods and upon the shipper’s demand, to issue to the shipper a bill of lading indicating, inter alia, the number of packages or pieces, “as ... furnished in writing by the shipper.” 46 U.S.C. § 1303(3) (1997) (emphasis added).

Finally, appellants offered other evidence of their ten year relationship and course of dealing that would support its contention that the individually wrapped jackets were applicable units for purposes of COGSA. As such, we conclude that there were material issues of fact. We therefore reverse the summary judgment and remand for further proceedings.

STEVENSON and TAYLOR, JJ., concur.


author: LEVY, Judge.

text:
    MELROSE NURSERY, INC., Appellant, v. COLLINSWORTH, ALTER, NIELSON, FOWLER & DOWLING, INC., a Florida corporation, Appellee.
    No. 3D02-142.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Silverio & Hall and Mark V. Silverio, Brian M. Silverio, Naples, and Francis X. Sexton, Jr., for appellant.
    Bernstein & Chackman and Neil Rose and Steven J. Chackman (Hollywood), for appellee.
    Before COPE, LEVY, and FLETCHER, JJ.
   LEVY, Judge.

Appellant, Melrose Nursery, Inc., appeals from the denial of its Motion to Interview the Jury. Finding that the juror in question violated the trial court’s instructions, we reverse and remand for a jury interview.

Melrose brought suit against appellee, Collinsworth, Alter, Nielson, Fowler & Dowling, Inc., its insurance agent, for negligence in the handling of buy-up crop insurance which became available after Hurricane Irene. Collinsworth, in turn, filed a third party Complaint for contribution against Rain & Hail, an insurance agency involved in the placement and servicing of crop insurance programs to nursery businesses, and Ace Property and Casualty Insurance Company, alleging that if Collinsworth was liable to Melrose, then Collinsworth would be entitled to a judgment against Rain & Hail and Ace based upon their own negligence. After a jury trial, a verdict was returned finding no negligence on the part of Collinsworth. Subsequently, Melrose filed, in addition to other Motions, its Motion to Interview the Jurors. The affidavit of Nancy Atkins, the court reporter, was filed in support of the Motion. Collinsworth opposed the Motion. After a hearing, the trial court denied Melrose’s Motion and entered Final Judgment. Melrose timely filed this appeal.

We recognize that trial courts have broad discretion to grant or deny a party’s Motion to Interview jurors. See Department of Transportation v. Rejrat, 540 So.2d 911, 912 (Fla. 2d DCA 1989); Schofield v. Carnival Cruise Lines, Inc., 461 So.2d 152, 155 (Fla. 3d DCA 1984). To invoke that discretion, the moving party must present sworn allegations that the jury’s verdict was infected by matters outside the evidence. See Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla.1991)(explaining that “the moving party [must] ma[k]e sworn factual allegations that, if true, would require a trial court to order a new trial”). See also Rejrat, 540 So.2d at 912. Thus, where the inquiry seeks to elicit objective, rather than subjective, information about overt prejudicial acts, the inquiry is appropriate. However, where the inquiry seeks to elicit information regarding the jury’s reasons and thoughts in reaching its verdict, the inquiry is impermissible. See Baptist Hospital, 579 So.2d at 99; see also Rejrat, 540 So.2d at 912-13.

In the instant case, Melrose submitted the sworn affidavit of the court reporter who, on her way home after the verdict was rendered in the case, learned from one of the jurors that he had logged on to the website of third-party defendant, Rain & Hail. Thus, the basis for the jury interview in the instant matter is clearly objective.

Although we acknowledge, as Col-linsworth urges, that the information contained in the website was part of the evidence, the website itself was not before the jury. In remanding for a jury interview, we emphasize that the sacrosanct nature of jury deliberations and its process should not be thwarted by outside influences. Where, as in the instant case, it is undisputed that the juror disregarded the trial court’s specific instructions not to consider any evidence or information outside what was presented at trial, a jury interview is necessary. Without inquiry of the jury, it is unclear what information the juror obtained and became privy to and, perhaps, more importantly, what of that information, if any, did he bring to deliberations. Accordingly, we reverse the denial of Mel-rose’s Motion for Jury Interview and remand with directions to interview the jury under conditions and circumstances the trial court feels are appropriate, and for such other relief the court finds are warranted.

Reversed and remanded with directions.


text:
    Jose I. SOLER, Appellant, v. SECONDARY HOLDINGS, INC., et al., Appellees.
    No. 3D02-65.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Rodriguez, Tramont, Guerra & Nunez and Jorge L. Guerra and Paulino A. Nunez, Jr., Miami, and Angelina S. Kaye, for appellant.
    Akerman, Senterfitt & Eidson and Oscar A. Sanchez and Jorge A. Lopez, Miami, for appellees.
    Before COPE, LEVY, and FLETCHER, JJ.
   LEVY, Judge.

Jose I. Soler (hereinafter “Appellant”) appeals from a trial court Order confirming an Arbitrator’s award, alleging that the Arbitrator exceeded the scope of his jurisdiction which was limited to a determination of whether a joint venture existed between the parties. We agree with the appellant and reverse accordingly.

The facts of the parties’ relationship and dealings are more fully developed in Soler v. Secondary Holdings, Inc., 771 So.2d 62 (Fla. 3d DCA 2000). The following facts are pertinent to the matter currently before the Court: Appellant brought suit against Appellees, Secondary Holdings, Inc., Shores Development, Inc., Wayne Ro-sen, and Michael Latterner, (hereinafter referred collectively as “Appellees”), for fraud, breach of contract, rescission, securities violations and unjust enrichment arising out of several real estate deals.

The gist of Appellant’s claims is that he was squeezed out of a joint venture created by the parties to pursue several real estate developments. Appellees responded with a Motion to Stay sixteen of the seventeen Counts in the Complaint. The trial court denied the Motion and this Court granted appellees’ writ, “remanding with instructions that the actions at law be abated until a determination is made that a partnership was formed, and until the action for an accounting has been completed.” Laurence v. Soler, 706 So.2d 896, 897 (Fla. 3d DCA 1998). Thus, the only Count not stayed was Count 15 of the Complaint, wherein appellant sought an accounting of the venture’s finances.

Subsequently, in the summer of 1998, the parties agreed to submit “all remaining differences between the parties with respect to the claims and defenses in or related to the litigations[,]” to arbitration. Moreover, in the Arbitration Agreement, the parties acknowledged this Court’s opinion in Laurence v. Soler, 706 So.2d 896 (Fla. 3d DCA 1998) and agreed that the ruling shall be given “full force and effect” in the arbitration.

During the course of arbitration, a dispute regarding the Spanish Lakes matter surfaced before this Court. See Soler v. Secondary Holdings, Inc., 771 So.2d 62 (Fla. 3d DCA 2000). On appeal, this Court found that the issues regarding Spanish Lakes had been disposed of by the Settlement Agreement. However, the Court reversed with respect to the Doral Landings issue on the basis that the Agreement and Release did not cover the Doral Landings matter, and that the Court previously mandated a determination of the parties’ relationship. See Soler v. Secondary Holdings, Inc., 771 So.2d at 70 (citing Laurence v. Soler, 706 So.2d at 897 (“[0]ur holding in Soler I mandated that this cause be abated and remanded for a determination as to whether a partnership/joint venture had ever been formed.”)). Consequently, the Doral Landings matter was remanded for arbitration. See Soler v. Secondary Holdings, Inc., 771 So.2d at 70.

The Arbitrator found that a joint venture as to the Doral Landings project existed between the parties. However; the Arbitrator’s Award went further and determined that the venture was terminated by the 1995 Settlement Agreement, and, as a result, awarded appellant $50,000, the balance of appellant’s contribution to the project which was not returned to him. The trial court denied appellant’s Motions to Vacate the Arbitrator’s award. Appellant appeals, arguing that the Arbitrator exceeded the scope of his jurisdiction. We agree.

Section 682.13(1), Florida Statutes, sets forth the only grounds upon which an award of an Arbitrator must be vacated. See Verzura Const., Inc. v. Surfside Ocean, Inc., 708 So.2d 994 (Fla. 3d DCA 1998). An Arbitrator’s award must be vacated when, among other things, the Arbitrator exceeds his or her powers. See § 682.13(l)(e), Fla. Stat.; Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989). An Arbitrator exceeds his or her power when he or she goes beyond the authority granted by the parties and decides an issue not pertinent to the resolution of the matter submitted to arbitration. • See Schnurmacher Holding, Inc., 542 So.2d at 1329; see also Simmons v. City of Avon Park, 788 So.2d 1076, 1077 (Fla. 2d DCA 2001). In the instant case, the parties agreed to submit “all remaining differences between the parties with respect to the claims and defenses in or related to the litigations.” At the time, the parties had a number of cases pending. We deal only with the Doral Landings matter.

The Doral Landings matter was submitted to arbitration after this Court’s ruling staying all the claims against appellees except appellant’s claim for an accounting. Specifically, this Court remanded the matter “with instructions that the actions at law be abated until a. determination is made that a partnership was formed, and until the action for an accounting has been completed.'” Laurence v. Soler, 706 So.2d 896, 897 (Fla. 3d DCA 1998) (emphasis added) (citations omitted). The Arbitrator found that a joint venture between the parties did, in fact, exist. It is clear from the Arbitration Agreement and this Court’s Mandate that the arbitrator was to determine whether a partnership existed and, if so, order an accounting. Moreover, it is clear from the Record, including the parties’ Pre-Hearing Memorandums, that the parties intended that the scope of the Arbitrator’s jurisdiction be limited to a determination of the status of the parties’ relationship. Nevertheless, and contrary to the scope of his authority, the Arbitrator went one step too far and awarded appellant damages to the extent of his initial contribution into the venture.

The case law is clear that a joint venture relationship is similar to that of a partnership and is therefore governed by the principles controlling partnership law. See Russell v. Thielen, 82 So.2d 143, 145 (Fla.1955). As such, upon a finding that a partnership or joint venture exists, the parties must “dissolve” the relationship and an accounting is required to determine each party’s interest in the entity. See Lindberg v. Creative Constr. of Palm Beach, Inc., 522 So.2d 467, 467-68 (Fla. 4th DCA 1988)(partnership must share equally in the profits and losses unless otherwise agreed); Hilgendorf v. Denson, 341 So.2d 549 (Fla. 1st DCA 1977)(citing Biers v. Sammons, 242 So.2d 158 (Fla. 3d DCA 1970) (holding that if a surviving or remaining partner continues the partnership business with the partnership assets, the remaining partner is required to account to the withdrawing partner)); Robert A. Tripp & Assoc., Inc. v. Best, 166 So.2d 603 (Fla. 3d DCA 1964); Russell, 82 So.2d at 144.

This is, in effect, a two-step process. See A-1 Truck Rentals, Inc. v. Vilberg, 222 So.2d 442, 444 (Fla. 3d DCA 1969). In fact, an accounting cannot occur until the individual seeking the accounting can prove that she or he is entitled to one. In A-1 Truck Rentals, this Court explained that a suit for an accounting is a two-stage proceeding calling first for the establishment of the right to the accounting, following with the actual accounting. See A-1 Truck Rentals, 222 So.2d at 444. Thus, the most the arbitrator could have done was to order and set for hearing, at another time, the accounting issue especially in light of the lack of evidence before the arbitrator at that moment. See Russell v. Thielen, 82 So.2d 143 (Fla.1955). Aside from the fact that an accounting is a two-step process, the appellees’ suggestion that an accounting was done in the instant case is clearly erroneous where it is evident from the Record on appeal, that no discovery on the issue of the venture’s worth was ever had. In fact, throughout the pendency of this action, appellant attempted to get discovery of the parties’ financial statements and was repeatedly met with appellees’ appropriate opposition on the ground that any financial records or discovery was protected where appellant had not shown that he had any interest in any of the ventures.

Accordingly, we affirm the Arbitrator’s finding that a joint venture existed between the parties, but reverse the finding that the appellant was entitled to $50,000, the balance of his contribution to the project, on the basis that the scope of the Arbitrator’s review was limited to a determination of the parties’ relationship, and remand for an appropriate accounting.

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

      . This appeal only concerns the Doral Landings deal, which is referred to as the "Spanish Lakes Litigation” in the parties' Arbitration Agreement. See also Soler v. Secondary Holdings, Inc., 711 So.2d 62 (Fla. 3d DCA 2000) wherein this Court affirmed Summary Judgment on the Spanish Lakes deal on the basis that appellant signed a release of settlement with appellees. This Court specifically found that the release did not extend to the Doral Landings deal.

      . The Arbitration Agreement governed several matters pending between the parties including the “Spanish Lakes Litigation,” part of which is the subject of this appeal.


text:
    Samuel MILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3070.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Michael J. Neimand Assistant Attorney General, and Alison F. Smith, Certified Legal Intern, for appellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Defendant appeals from a judgment of conviction and sentence for two counts of second degree murder with a firearm. We affirm.

The trial court did not abuse its discretion in allowing the State to use a “power point” presentation in closing argument to illustrate a verdict form. See Brown v. State, 550 So.2d 527, 528 (Fla. 1st DCA 1989) (holding that “[t]he determination as to whether to allow the use of a demonstrative exhibit is a matter within the trial court’s discretion” so long as the exhibit constitutes “an accurate and reasonable reproduction of the object involved.”).

We find no merit in the remaining points on appeal, as the errors, if any, were harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.


author: SCHWARTZ, Chief Judge.

text:
    Jeff J. JONES, Appellant, v. The STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. 3D01-3193.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Jeff J. Jones, in proper person.
    Judy Bone (Tallahassee), Assistant General Counsel, for appellee.
    Before SCHWARTZ, C.J., and JORGENSON, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

We find that the trial court properly denied the application of the appellant, a convicted second degree murderer in the custody of the Florida Department of Corrections, for additional overcrowding gain time credits, see Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), and for credits equivalent to those granted to inmates eligible for Control Release. Our review of the record shows that as a person designated in Gomez v. Singletary, 733 So.2d 499 (Fla.1998), cert. denied, 528 U.S. 822, 120 S.Ct. 67, 145 L.Ed.2d 58 (1999) as a member of Offender Group 5, Gomez, 733 So.2d at 513 n. 3, he had in fact been granted, as required by Lynce, all the provisional gain time credits which had already been awarded and of which he therefore could not be deprived. As Gomez squarely holds, however, he was not entitled, as he argues, to additional credits which had not yet been awarded when section 944.278, Florida Statutes (1993), which purported to cancel all such credits, was enacted. See Winkler v. Moore, 831 So.2d 63 (Fla.2002). Furthermore, as a convicted murderer, he was not eligible for and thus was not entitled to credits under the Control Release program. Gomez, 733 So.2d at 506; see also Winkler, 831 So.2d at 65-67; Meola v. Department of Corrections, 732 So.2d 1029 (Fla.1998).

Affirmed.

      . The petitioners also argue that for the years in which Control Release allotments were awarded they should receive the much higher number of Control Release allotments that were given to the Control Release eligible inmates. We conclude that under the Ex Post Facto Clause, the petitioners are only entitled to the number of credits that should have been awarded under the prior statutes, not what other inmates were actually awarded under the Control Release program. To do otherwise would result in an undue windfall for the petitioners.

        Gomez, 733 So.2d at 506.


text:
    Thomas GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3271.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Michael J. Neimand and Mark Rosen-blatt, Assistant Attorneys General, for ap-pellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Defendant appeals from a judgment of conviction and sentence for carrying a concealed firearm. For the reasons that follow, we reverse and remand for entry of a judgment of acquittal.

“Where a defendant is not in actual possession of a firearm, constructive possession must be established.” Williams v. State, 724 So.2d 1214, 1215 (Fla. 4th DCA 1998). To establish constructive possession, the State must prove that: (1) defendant knew that the firearm was within his presence; (2) defendant had the ability to maintain control over it; and (3) defendant knew of the illicit nature of the firearm. Id. If the property where the firearm is found is not in defendant’s exclusive control, defendant’s knowledge of the presence of the firearm must be established by independent proof. Id. See also Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997).

In this case, defendant was the driver of a truck in which the weapon was found. There were two passengers in the' truck with him. The weapon in question was partially concealed in the back of the truck behind the driver’s seat between the panel and the rear seat. There was no evidence that defendant had knowledge or dominion and control over the weapon.

REVERSED.


text:
    Reginald L. GREENLEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1039.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Joshua L. Fisher, for appellant.
    Richard E. Doran, Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

Reginald L. Greenlee appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, but do so without prejudice to the defendant to file a more detailed motion.

The motion for postconviction relief filed by defendant-appellant Greenlee claimed that defendant-appellant Greenlee’s trial counsel had been ineffective for failing to prepare a defense based on Diaz v. State, 800 So.2d 326 (Fla. 2d DCA 2001), review granted, 819 So.2d 139 (Fla.2002). As the trial court correctly pointed out, the Diaz decision was announced after the defendant entered his plea, and the original trial counsel could not be faulted for failing to rely on a decision not yet announced.

On appeal it is now contended that the motion really meant that the original trial counsel should have relied on the authorities cited within the Diaz decision. But that is not what the Rule 3.850 motion said, and there is no indication that this argument was made in the trial court.

As the State’s response points out, there is no factual statement in the Rule 3.850 motion outlining the facts of the defendant’s case. Since the record has not been properly developed, nor the legal issues squarely presented to the trial court, we affirm the trial court’s order, with leave to the defendant to file an amended motion.

Affirmed.

       Although not mentioned in the motion, other opinions on the issue include State v. Wilcso, 738 So.2d 390 (Fla. 4th DCA 1999); State v. Bass, 609 So.2d 151 (Fla. 5th DCA 1992); and L.W. v. State, 538 So.2d 523 (Fla. 3d DCA 1989).


text:
    Gerardo VASQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2522.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Bennett H. Brummer, Public Defender, and Clayton R. Keiser, Special Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before JORGENSON, LEVY and RAMIREZ, JJ.
   PER CURIAM.

ON ORDER DISMISSING APPEAL

On the Court’s own motion, this appeal is dismissed for the following reasons.

Gerardo Vasquez was found guilty of two counts of incest, two counts of engaging in sexual activity with a familial child, and two counts of lewd and lascivious assault. Vasquez absconded prior to trial and was sentenced in absentia. Vasquez has had no contact with appellate counsel, who has nevertheless proceeded as if an appeal were so desired.

Where a defendant absconds and fails to return before the appellate process begins, the appropriate measure is to dismiss the appeal. See Abed v. State, 806 So.2d 627 (Fla. 4th DCA 2002). Defense counsel’s reliance on Griffis v. State, 759 So.2d 668 (Fla.2000), is misplaced, as that case specifically concerns the situation where a defendant absconds but returns before filing an appeal. Abed at 627. Because Vasquez remains a fugitive, Griffis is inapplicable. DISMISSED.


author: BROWNING, J.

text:
    Glendell RUSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-0205.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.

      Nancy A. Daniels, Public Defender; and Andrew Thomas, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General; and Thomas D. Winokur, Assistant Public Defender, Tallahassee, for Appellee.
   BROWNING, J.

Glendell Russ (Appellant), a former city commissioner in Quincy, Gadsden County, was charged with various offenses under the election code relating to absentee ballots cast in the March 1999 city commission race. The jury acquitted Appellant of one count and found him guilty of the other charges. Appellant was adjudicated guilty on the four counts and sentenced to 15 months’ imprisonment, suspended for 3 years’ probation. Appellant contends that two of the statutes pursuant to which he was charged are unconstitutional, facially and as-applied, due to their vagueness and overbreadth; that the trial court erred in failing to sever the counts by elector and/or transaction; that the court erred in allowing the State to argue and introduce evidence of other crimes or wrongdoing; that the court erred ky not granting the motion for judgment of acquittal in its entirety; and that the court erred in denying a request to define “intimidation.” Although we find no deficiency in the challenged statutes or error in the trial court’s other rulings, we conclude that the trial court reversibly erred by denying defense counsel’s relevance objection to questions concerning similar wrongdoing by a third party in a previous election. Accordingly, we are constrained to reverse the convictions and sentences and remand for a new trial.

In its third amended information, the State charged Appellant with criminally abusing the absentee balloting process 1) by interfering with the right'to vote (or not vote) by intimidating, threatening, or coercing (or attempting to do so) electors Nancy Williams on March 12, 1999; and Tracy Youman on March 11, 1999 (Counts I & V, respectively), in violation of section 104.0515, Florida Statutes (1999); 2) by corruptly influencing voting by attempting to influence, deceive, or deter, directly or indirectly, by bribery, menace, threat, or other corruption, electors Williams on March 12,1999; and Youman on March 11, 1999 (Counts II & VI, respectively), in the free exercise of their right to vote, in violation of section 104.061, Florida Statutes (1999); 3) by false swearing between February 1 and March 11,1999, by procuring Onterrio Ward to swear or affirm falsely to an oath or affirmation in connection with or arising out of voting or elections (Count III), in violation of section 104.011, Florida Statutes (1999); and 4) by committing fraud in connection with casting a vote on March 11, 1999, by perpetrating, attempting to perpetrate, or aiding in the perpetration of fraud in connection with a vote cast, to be cast, or attempted to be cast by elector Ward (Count IV), in violation of section 104.041, Florida Statutes (1999). Given the nature of the charges, the State was allowed to present evidence that Appellant is 6'-4" and weighed 260 pounds.

Constitutional Challenges

Appellant filed several pretrial motions to dismiss certain counts of a series of informations because of the alleged unconstitutionality of vague or overbroad underlying statutes. Citing the right to free speech and Trushin v. State, 425 So.2d 1126 (Fla.1982), Appellant attacked two statutes specifically. Section 104.0515 states in pertinent part:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or not to vote as that person may choose, or for the purpose of causing such other person to vote for, or not vote for, any candidate for any office at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.

§ 104.0515(3), Fla. Stat. (1999). Section 104.061 states in pertinent part:

Whoever by bribery, menace, threat, or other corruption whatsoever, either directly or indirectly, attempts to influence, deceive, or deter any elector in voting or interferes with him or her in the free exercise of the elector’s right to vote at any election commits a felony of the third degree,....

§ 104.061(1), Fla. Stat. (1999).

One motion to dismiss sought a declaration that section 104.061 is unconstitutional because the term “menace” is vague and overbroad unless its meaning, in the statute and as-applied, is the same as “threat.” Another motion alleged that both statutes improperly prohibit acts that are protected by the Voting Rights Act of 1965. See 42 U.S.C. § 1971(b). Yet another motion sought a declaration that section 104.061 is unconstitutional because the terms “threat” and “other corruption,” as well as “menace,” are vague and ambiguous. Appellant contended that “menace” also is overbroad. The defense asserted that Appellant’s charged conduct constitutes “pure political speech” protected under the United States and Florida Constitutions. Specifically, counsel contended that it is perfectly lawful to exercise free-speeeh rights to attempt to influence electors in their voting, and that these statutory provisions, if enforced, “would virtually outlaw most if not all politicking.” The defense found no vagueness problem with “other corruption whatsoever” in section 104.061(1), so long as the words are construed as offering something of value in exchange for a commitment to vote.

The prosecutor noted that “menace” and “threat” are used in the same provision and have different meanings. The State argued that the statutory terms in question are understandable and not vague. The State notes on appeal that at that point, the trial court appears to have ruled on only one motion when it determined that “menace” and “other corruption” are not unconstitutionally vague.

At the close of the State’s case, defense counsel moved for a judgment of acquittal primarily on the ground that the two statutes are unconstitutionally vague. Counsel argued that “intimidate” involves “a very nebulous concept” and that section 104.0515 fails to provide guidance as to what the Legislature intended to define as unlawful or criminal intimidation, threat, or coercion. The defense reiterated its positions that “menace” in section 104.061 is vague and overbroad and that the statute fails to provide adequate notice as to what conduct is proscribed. Counsel asserted that “other corruption” is unconstitutionally vague unless its meaning is limited. The State renewed its argument that thé challenged language in both statutes is neither vague nor overbroad. The trial court found no constitutional deficiency in either statute.

Issues involving constitutional challenges to, or construction of, statutes are pure questions of law subject to de novo review. City of Jacksonville v. Cook, 765 So.2d 289 (Fla. 1st DCA 2000), quashed on other grounds, 823 So.2d 86 (Fla.2002); Department of Ins. v. Keys Title and Abstract Co., Inc., 741 So.2d 599 (Fla. 1st DCA 1999). “All statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute bears the burden of demonstrating that it is invalid.” Hudson v. State, 825 So.2d 460, 465 (Fla. 1st DCA 2002). For the reasons that follow, we conclude that Appellant has failed to carry his burden of demonstrating that either section 104.0515 or section 104.061 is unconstitutional, facially or as-applied.

The “void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The benchmark for testing vagueness is whether a criminal statute affords a person of ordinary or common intelligence fair notice . of what constitutes forbidden conduct. Bouters v. State, 659 So.2d 235, 238 (Fla.1995) (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)); State v. Hagan, 387 So.2d 943, 945 (Fla.1980). A vagueness claim “must be evaluated by an examination of the statute in the abstract if the statute is one that purports to regulate constitutionally protected activity such as speech.... ” Travis v. State, 700 So.2d 104, 105 (Fla. 1st DCA 1997). In construing a penal statute against an attack of vagueness, any doubt should be resolved in favor of the defendant and against the State. State v. Wershow, 343 So.2d 605, 608 (Fla.1977). “[WJhere a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” State v. Mitro, 700 So.2d 643, 645 (Fla.1997). The State correctly notes that none of the words employed in the two challenged provisions have technical or specialized definitions; each of the words is used as it is understood in common parlance. Both statutes should be given their plain meaning, for the language in each is clear and unambiguous and conveys a clear, definite meaning. See Florida Hosp. v. State of Fla. Agency for Health Care Admin., 823 So.2d 844 (Fla. 1st DCA 2002). In summary, the words in question “convey[] a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” Hagan, 387 So.2d at 945. Accordingly, Appellant has not demonstrated a problem with vagueness in either section 104.0515 or section 104.061, facially or as-applied.

The overbreadth doctrine applies to statutes that are “susceptible of application” to constitutionally protected conduct, e.g., protected speech. Carricarte v. State, 384 So.2d 1261, 1262 (Fla.1980). “A ‘facial’ challenge, in this context, means a claim that the law is ‘invalid in toto- and therefore incapable of any valid application.’ ” State v. Kahles, 644 So.2d 512, 512 n. 5 (Fla. 4th DCA 1994) (quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). In a facial challenge to a law’s overbreadth, it must be determined “whether the enactment reaches a substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Given the express limiting language in the two provisions, the State correctly notes that the statutes clearly prohibit conduct that could never be considered constitutionally protected. In essence, section 104.0515(3) proscribes a person from intimidating, threatening, or coercing anyone else for the purpose of interfering with the other person’s right to vote or not to vote, or for the purpose of causing the other person to vote or not to vote for any candidate for any office in any election held for the purpose of selecting or electing any such candidate. Similarly, section 104.061(1) criminalizes the use of bribery, menace, threat, or other corruption, whether direct or indirect, in an attempt to influence, deceive, or deter any elector in voting or to interfere with the elector in the free exercise of the elector’s right to vote at any election. Thus, Appellant has failed to satisfy his burden to show that either statute, facially, or as-applied, infringes upon constitutionally protected conduct. The trial court correctly found no constitutional deficiency.

Failure to Sever Counts

Appellant asserts that the trial court reversibly erred by failing to sever the counts by elector and/or transaction. This issue was not preserved for appellate review. Prior to the State’s filing the third amended information, defense counsel moved pursuant to Florida Rules of Criminal Procedure 3.150(a) and 3.152(a) and Wright v. State, 586 So.2d 1024 (Fla.1991), to sever the counts by elector and/or transaction, on the ground that the acts did not occur within a single episode, ie., they were unrelated because they were not the same act, were not part of the same transaction, and were not based on two or more connected acts or transactions. The alleged offenses involved three victims (after the additional charges were dropped).

Opposing the motion, the prosecutor argued that all the counts were properly joined because the temporal range of the alleged crimes was very short, the geographical scope of the allegations was one small district in Quincy, the common episode was the March 1999 city commission election, and the context of all the counts was the influencing of (or attempt to influence) the outcome of one election in favor of Appellant’s chosen candidate. After the trial court orally denied the motion, defense counsel waited until the close of all the evidence to seek severance. That belated request to sever, made after Appellant had been tried on all counts, did not afford the trial court timely notice of the question to be resolved. Fla. R.Crim. P. 3.152(a)(2). See State v. Stell, 407 So.2d 642, 643 (Fla. 4th DCA 1981) (noting that the filing of a signed, sworn amended information extinguishes the previous one).

Despite the defense’s failure to preserve this question, we address the merits for the benefit of the trial court, in light of the fact that we are reversing Appellant’s convictions and remanding for a new trial. The proper standard of review of the denial of a motion to sever is abuse of discretion. State v. Vazquez, 419 So.2d 1088, 1090 (Fla.1982). For the reasons set forth by the State in opposition to the motion to sever, the trial court did not abuse its discretion in denying the motion. See Ellis v. State, 622 So.2d 991, 999 (Fla.1993) (citing Wright v. State, 586 So.2d 1024, 1029-30 (Fla.1991)); Garcia v. State, 568 So.2d 896, 899 (Fla.1990) (stating that in determining propriety of joinder or severance, courts may consider geographical and temporal association, nature of crimes, and manner in which they were committed).

Evidence of Other Crimes or Wrongdoing

Appellant contends that the trial court reversibly erred by allowing the State to introduce and discuss evidence of other crimes or wrongdoing. Generally, the admission or exclusion of evidence is reviewed for abuse of discretion. Howard v. State, 616 So.2d 484, 485 (Fla. 1st DCA 1993). However, the erroneous admission of collateral wrongdoing is presumptively harmful. Keen v. State, 775 So.2d 263, 275 (Fla.2000); Czubak v. State, 570 So.2d 925, 928 (Fla.1990).

In his opening statement, the prosecutor discussed the expected evidence relating to Counts I and II, involving Ms. Williams. The prosecutor indicated the evidence would show that in Quincy on March 12, 1999, Virginia Davis visited the residence of her elderly mother, Ms. Williams. As Ms. Davis entered the residence, she observed Appellant pointing at some absentee voting materials in front of the seated Ms. Williams, who was asking where she was supposed to vote. The young woman questioned Appellant’s being there and told him that he should not be doing that. Ms. Davis immediately went to the nearby home of the District I incumbent, Keith Dowdell, and reported what she had just seen. By the time Mr. Dowdell and Ms. Davis got back to Ms. Williams’ residence, Appellant had left. Ms. Williams said that she had wanted to vote for Mr. Dowdell but that Appellant had made her vote for an opposing candidate, Gary Baker.

At that point, Mr. Dowdell saw what he believed to be Appellant’s automobile parked outside the nearby home of another elderly woman, Susie Rogers. Although Appellant had supported Mr. Dow-dell in a previous election, Mr. Dowdell knew that Appellant was supporting opponent Mr. Baker in the March 1999 campaign. When the prosecutor stated that the evidence would show that Mr. Dowdell went to Ms. Rogers’ house and knocked on the door, defense counsel objected on the ground that the one count involving Ms. Rogers had been dropped and anything that happened inside her residence was not relevant. The objection was denied. The prosecutor said the evidence would show that as Mr. Dowdell entered the residence, he saw Appellant marking some absentee voting materials. Appellant immediately stood up and seated Ms. Rogers next to the materials. Mr. Dowdell heard her ask Appellant whom she was supposed to vote for. After a confrontation ensued between the men, Mr. Dowdell reported the incident to the Office of the Supervisor of Elections, and then to the Quincy Police Department, and filed a complaint with the Florida Elections Commission. During the course of the investigation, the police and the Florida Department of Law Enforcement gatheréd information that led to the filing of these criminal charges against Appellant.

In the direct examination of Mr. Dowdell concerning his arrival at Ms. Rogers’ residence, an objection was made that the State would be eliciting “similar fact” evidence regarding Appellant’s actions at that lady’s home that had no bearing on whether Appellant had intimidated, threatened, coerced, menaced, bribed, or otherwise committed a crime in dealing with Ms. Williams. The State responded that the testimony would corroborate Ms. Davis’ testimony about what had happened at Ms. Williams’ house and was relevant to the charges. While finding the expected evidence relevant, the trial court sustained the objection on the ground the evidence was overly prejudicial. We find no abuse of discretion in the trial court’s rulings regarding the evidence relating to Ms. Rogers. The court was not inconsistent in denying the objection to the prosecutor’s comments during opening statements, and then sustaining the objection during the direct examination of Mr. Dowdell. Opening statements do not constitute evidence, Whitted v. State, 362 So.2d 668, 673 (Fla.1978), and the jury was instructed accordingly. When the State sought to elicit the offending testimony from Mr. Dowdell, the court refused to allow it. If the defense believed that the State’s reference in opening statements had so tainted the fairness of the trial, then it was incumbent for Appellant to move for a mistrial or a new trial on that ground after the objection was sustained. See Gray v. State, 640 So.2d 186, 193 (Fla. 1st DCA 1994) (stating failure to request curative instruction or mistrial after objection to evidence sustained waives review). Appellant has waived review of this claim.

During the cross-examination of Mr. Dowdell, defense counsel asked several questions relating to the witness’ complaint against Appellant to the Florida Elections Commission and the filing of a protest of the election with the Gadsden County Canvassing Board regarding the absentee ballots. Although the witness could not remember whether the protest was his or someone else’s, the questions clearly related to challenges to the 1999 election, and the reasonable implication was that the challenges related at least partly to activities in which Appellant was allegedly involved and that Mr. Dowdell might harbor some bias against Appellant. The State was entitled to rebut this suggestion by showing that Mr. Dowdell had an appropriate basis to bring these challenges and that they were not brought solely because of some animus against Appellant. In that regard, the State (over a relevance objection) was allowed to introduce a document reflecting the total number of machine votes and absentee votes and a breakdown of how many of each category of votes were cast for each candidate. The tally sheets showed that Mr. Dowdell and Mr. Baker received 243 and 47 machine votes, respectively; and 15 and 41 absentee votes, respectively. Defense counsel argued that the raw vote numbers are collateral and that whether or not Mr. Baker “got an extraordinary number of absentee ballots” is not relevant to the charges. Given defense counsel’s apparent effort to suggest a particular bias or motive on Mr. Dowdell’s part, we cannot say that allowing the tally sheets into evidence constitutes an abuse of discretion.

During defense counsel’s cross-examination of Mr. Dowdell, the witness testified that he and Appellant formerly had been “somewhat” political allies serving together on the Quincy City Commission. Mr. Dowdell admitted that Appellant had assisted him during the successful 1996 campaign, during which some absentee ballots were cast for Mr. Dowdell. The witness acknowledged that while he was not personally involved in the 1996 campaign directed towards absentee voters, persons in his campaign, including Appellant, had solicited votes from electors who voted absentee. On redirect examination, the prosecutor asked Mr. Dowdell the following question: “In the absentee voting of the 1996 election that Mr. Glendell Russ was assisting you on, was McNeal Branch charged with a violation of the laws involving absentee voting in the 1996 election by fraudulently — ” Defense counsel immediately objected on the ground of relevance, whereupon the State argued the defense had “opened the door” by questioning the witness about Appellant’s having assisted Mr. Dowdell in the absentee voting process during the 1996 election. The objection was overruled. When the prosecutor asked whether Ms. Branch had been charged with fraudulent notary violations involving absentee voting materials collected by Appellant and Ms. Branch in the 1996 campaign, the witness answered: “I don’t know the exact charges, but she were [sic].” Defense counsel objected pursuant to section 90.403, Florida Statutes, and argued that the charging of Ms. Branch in another case could not be used as evidence of criminal activity in Appellant’s case and was highly prejudicial despite its limited probative value. ■ While acknowledging on the record that he was “inclined to agree” with defense counsel’s position, the trial court overruled the objection. The State then elicited testimony that Ms. Branch had been charged and convicted of some violation of the law involving absentee voting.

Appellant contends that the trial court erred by allowing the State to pursue the line of questioning about Ms. Branch’s charge and conviction on the ground that the defense had opened the door by cross-examining Mr. Dowdell regarding the fact that Appellant had collected absentee ballots for him in the 1996 election. We agree this ruling is erroneous and constitutes an abuse of discretion. “As an evidentiary principle, the concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000). As to the testimony concerning Ms. Branch and the 1996 campaign, the State suggested that either Mr. Dowdell was implicated in the same activity for which Appellant was on trial or Mr. Dowdell had previously supported such activity when it was done on his behalf. The testimony initially elicited by defense counsel merely established that Mr. Dowdell had a campaign for absentee votes, that he had received some, and that Appellant had been a part of the campaign to solicit absentee votes during the 1996 campaign. That testimony is totally unrelated to the criminal charge and conviction of Ms. Branch, who is another individual who worked in the 1996 campaign. Thus, the testimony about Ms. Branch’s conviction for conduct similar to that for which Appellant was on trial neither qualified, explained, nor limited Mr. Dowdell’s prior testimony. Appellant notes that if anything, the objectionable testimony relates to prior bad acts one step removed, i.e., a prior bad act not of Appellant, but of someone with whom he had been associated. The testimony initially elicited by the defense was not misleading or incorrect. The testimony about Ms. Branch’s charge and conviction did nothing to rebut the facts that Mr. Dowdell had received some absentee votes in 1996, that some of those votes doubtless resulted from a campaign directed towards absentee voters, and that Appellant was one of those persons soliciting absentee votes then. Defense counsel’s questioning of Mr. Dowdell did not open the door to testimony about Ms. Branch’s charge and conviction. See Thompson v. State, 615 So.2d 737, 743-44 (Fla. 1st DCA 1993) (finding defense question about where witness got information for arrest warrant did not open door to testimony regarding what that information was). The State has not shown that this erroneous ruling is harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The defense vigorously asserted that all of Appellant’s acts occupied the lawful side of the line demarcating protected political speech from criminal abuse of the absentee balloting process. The jury acquitted Appellant of Count VI. Therefore, Appellant is entitled to a new trial.

Denial of Motion for Judgment of Acquittal

Appellant contends that the trial court erred in denying his motion for judgment of acquittal on Counts I, II, III, and V of the third amended information. Having reviewed that ruling de novo, in accordance with Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001) (rev’d en banc), we find no error in the trial court’s ruling.

Refusal to Give Special Jury Instruction

Defense counsel asked the trial court to give Standard Jury Instruction 47.2 (of the Eleventh Circuit Court of Appeals) employing an objective standard and defining “intimidate” as “to intentionally say or do something that would cause a person of ordinary sensibility to be fearful of bodily harm.” The prosecutor successfully argued that “intimidation” is commonly understood by juries, without having to be defined by the court, and that the limiting definition of “intimidate” offered by the defense constituted only assault, whereas intimidation does not necessarily involve fear of physical harm or violence. A trial court is under no obligation to define terms in common use and generally understood by the average person. See United States v. Vegar-Figueroa, 234 F.3d 744, 757 (1st Cir.2000). As was noted, supra, “intimidate” does not have a technical or unconventional meaning in section 104.0515(3). Accordingly, the court did not abuse its discretion in refusing to give a misleading jury instruction.

We REVERSE Appellant’s conviction and REMAND for a new trial.

MINER and WEBSTER, JJ. CONCUR.


text:
    FLORIDA NATIONAL ORGANIZATION FOR WOMEN, INC.; South Palm Beach Chapter, National Organization for Women, Inc.; Congregation L’Dor Vador; Reverend Matthew Anderson; and Charlotte Danciu, Esq., Appellants, v. STATE of Florida; and Fred Dickinson, in his official capacity as Executive Director of the Florida Department of Highway Safety and Motor Vehicles, Appellees.
    No. 1D01-4913.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.

      Barry Silver, Boca Raton, for Appellants.
    James J. Dean of Messer, Caparello & Self, P.A., Tallahassee, for Appellees.
   BROWNING, J.

Appellants appeal a trial court order dismissing their Second Amended Complaint with prejudice. Appellants argue that the trial court should have permitted them an opportunity to amend. We affirm the trial court’s dismissal of Count II with prejudice. However, we reverse as to Counts I, III, IV, and V, and remand for the trial court to grant leave to amend.

Appellants challenge the constitutionality of one of Florida’s specialty license plates, which reads “Choose Life” across the top and “Florida” across the bottom. § 320.08058(30), Fla. Stat. (1999). The law creating this plate was enacted as chapter 99-301, Laws of Florida (the Act), effective July 1, 1999. On December 6, 1999, Appellants sought a declaratory judgment and temporary and permanent injunction alleging that the Act creating the Choose Life plate is unconstitutional because it violates Article I, Section 3, otherwise known as the Establishment Clause, of the Florida Constitution.

Appellants filed an amended complaint on December 13, 1999, alleging that the Act also violates Article I, Section 23 of the Florida Constitution, which provides a right of privacy to the citizens of Florida. Appellees filed an answer without seeking dismissal but put forth four affirmative defenses, including improper venue, failure to state a cause of action, lack of ripeness, and lack of standing. Subsequently, the case was transferred to Leon County.

Appellants moved for leave to file a Second Amended Complaint the day before the injunction hearing, which was scheduled for March 1, 2001. The proposed Second Amended Complaint contained a free speech claim, among others. At the hearing, Appellants attempted to make these additional arguments as a basis for injunctive relief. The trial court denied the injunction but granted leave for Appellants to file a Second Amended Complaint. However, the court stipulated that “[t]he Second Amended Complaint shall allege the facts concisely in the statement of claim in separate, consecutively numbered paragraphs. The theories under which the plaintiffs claim relief, including the particular constitutional challenges, shall be divided into separate counts for each alleged constitutional violation of the statutes in question.”

The Second Amended Complaint was filed and alleged violations of the Establishment Clause in Count I, the right to free speech in Count II, several challenges to the Act’s funding mechanism in Count III, the right to privacy in Count IV, and the rights to equal protection and due process in Count V. As remedies, Appellants sought an injunction prohibiting further implementation of the Act and a mandatory injunction requiring the Department of Highway Safety and Motor Vehicles to recall all Choose Life plates already issued. Appellees moved to dismiss, and a hearing was held. The trial court granted the motion and dismissed the entire complaint with prejudice, finding that Counts III and V contain multiple constitutional claims in violation of the requirements listed in the trial court’s order. Further, the trial court found that Counts I, II, and IV fail to state a cause of action. '

The standard of review as to Counts III and V, dismissed with prejudice for failure to comply with the trial court’s order, is abuse of discretion. Zaccaria v. Russell, 700 So.2d 187, 187-88 (Fla. 4th DCA 1997). We hold that the trial court abused its discretion in dismissing these counts with prejudice.

A trial court’s dismissal of an action for failure to comport with its order is an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b). That rule explicitly states that

[ujnless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

Fla. R. Civ. P. 1.420(b). This indicates that such a dismissal would be with prejudice, because the merits of the issue would have been ruled upon; older casé law supports this interpretation. See, e.g., Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978). However, recent case law holds that a trial court should not dismiss an action with prejudice under rule 1.420(b) for failure to comply with court orders unless certain factors are met. See, e.g., Town of Manalapan v. Florida Power & Light Co., 815 So.2d 670 (Fla. 4th DCA 2002).

In Manalapan, the court explained that not every failure to comply with a court order will justify dismissal under rule 1.420. Id. at 672. The Fourth District applied factors outlined in Kozel v. Osten-dorf 629 So.2d 817 (Fla.1993), to reverse the trial court’s dismissal of the plaintiffs claim. In doing so, the court distinguished cases that would support affirmance, such as Clifford Ragsdale, on the ground that they were decided before Kozel. Therefore, the Kozel factors should be applied to the trial court’s exercise of discretion in the instant case.

In Kozel, the supreme court stated that trial courts should consider the following factors in determining whether dismissal with prejudice is warranted:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id. at 818. There is no indication that the trial court in this case considered these factors, as it failed to make the required findings in its order. Further, it appears that the factors are not met in the instant case. Appellants’ attorney offered a reasonable justification for their noncompliance; specifically, multiple claims were included in the counts to comply with the trial court’s direction to be concise. It is apparent from the record that counsel has not been previously sanctioned and the client was not personally involved in drafting the Second Amended Complaint. There is no indication in the record that Appellees or the court were prejudiced by any delay in the filing of the Second Amended Complaint. Because the trial court failed to consider the Kozel factors, and the application of these factors indicates that Counts III and V should not have been dismissed, the trial court abused its discretion in dismissing those counts.

The trial court also erred in dismissing with prejudice Counts I and IV for failure to state a claim. Although Appel-lee’s motion to dismiss specifically alleged that Counts II and IV failed to state a cause of action, the motion did not make such an allegation as to Count I. In any event, neither Counts I or IV should have been dismissed without leave to amend. The standard of review for dismissal for failure to state a claim is de novo. W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999).

Leave to amend a complaint “shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). Thus, a trial court should grant leave to amend, rather than dismiss a complaint with prejudice, unless a party has abused the privilege to amend, an amendment would prejudice the opposing party, or the complaint is clearly not amendable. E.g.; Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991). This is true even if an amended complaint fails to state a cause of action. Bouldin v. Okaloosa County, 580 So.2d 205 (Fla. 1st DCA 1991). Further, a party that “may bé able to allege additional facts to support its cause of action or support another cause of action under a different legal theory” should be allowed to amend a complaint. Obenschain v. Williams, 750 So.2d 771, 773 (Fla. 1st DCA 2000).

Appellants have not abused their privilege to amend, and there is no showing that an amendment would prejudice Appel-lees. The trial court gave Appellants one opportunity to amend the complaint after an answer had been filed; however, Appellants were given no opportunity to amend after the motion to dismiss had been granted. Thus, the trial court should not have dismissed with prejudice Counts I and IV.

Count II was also dismissed for failure to state a cause of action, and the above analysis would apply. However, leave to amend may be denied “where the proposed amendment would be futile.” Marchi v. Board of Coop. Educ. Servs. of Albany, 173 F.3d 469, 478 (2d Cir.1999). “Dismissal of a complaint with prejudice should only be granted when the pleader has failed to state a cause of action and it conclusively appears there is no possible way to amend the complaint to state a cause of action.” Undereducated Foster Children of Fla. v. Florida Senate, 700 So.2d 66, 67 (Fla. 1st DCA 1997). Appellants allege that their right to free speech has been violated by the mere existence of the Choose Life plate. As the trial court explained in dismissing Count II, “the facts alleged do not show that any of the plaintiffs have attempted any expression and been denied access to the alleged forum for speech, or that the statutes at issue have hindered or curtailed any plaintiffs speech in any way.” Because Appellants have not applied for, and been denied, a pro-choice plate, and have stated their intention not to do so, they cannot amend the count to state a viable claim as they lack standing to do so. See Hildreth v. Dickinson, 1999 U.S. Dist. LEXIS 22503 (M.D.Fla.1999). This justification for dismissing Count II is supported by the record, so there is no need to remand. See Abramson v. Gonzalez, 949 F.2d 1567, 1581 (11th Cir.1992).

The trial court did not specifically rely on the futility exception as a basis for dismissing Count II with prejudice. However, we have the power to affirm a trial court’s ruling on any alternate basis. Farrey’s Wholesale Hardware Co., Inc. v. Hobesound Indus. Park, Inc., 719 So.2d 374, 375 (Fla. 3d DCA 1998). Accordingly, we affirm the trial court’s dismissal of Claim II with prejudice.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED with instructions.

ERVIN and KAHN, JJ. CONCUR.


text:
    ERP OPERATING LIMITED PARTNERSHIP and Equity Residential Properties, Management Limited Partnership, Appellants, v. Pamela Ann SUPERDOCK, All Pro Maintenance of Tallahassee, Inc., Appellees.
    No. 1D01-4532.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Harold R, Mardenborough, Jr. of McFarlain & Cassedy, P.A., Tallahassee, for Appellants.
    Jeffrey S. Howell of The Phipps Firm, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Insurance Company of North America v. Edmondson, 354 So.2d 887 (Fla. 1st DCA 1977).

MINER, WOLF and LEWIS, JJ., concur.


author: BENTON, J.

text:
    Lazaro PADILLA, Appellant, v. LIBERTY MUTUAL INS. CO. and Department of Insurance, Appellees.
    No. 1D01-3825.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.

      Sharon C. Degnan, Esquire and Diane H. Tutt, Esquire of Diane H. Tutt, P.A., Plantation, for Appellant.
    Nina K. Brown, Esquire, Mark S. Shapiro, Esquire and Jennifer Cohen Glasser, Esquire of Akerman, Senterfitt and Eid-son, P.A., Miami, for Appellee Liberty Mutual Ins. Co., and S. Marc Herskovitz, Esquire, Tallahassee, for Appellee Department of Insurance.
   BENTON, J.

Lazaré Padilla appeals the order of the Department of Insurance that, citing Couch v. State Department of Health and Rehabilitative Services, 377 So.2d 32 (Fla. 1st DCA 1979), dismissed his amended petition for declaratory statement because he “ha[d] not demonstrated a present need for the declaratory statement.” We affirm.

Initially, as a putative class representative, Mr. Padilla filed a claim in the Circuit Court for the Eleventh Circuit against Liberty Mutual Insurance Company (Liberty Mutual), seeking additional reimbursement for mileage in personal automobile travel to and from medical appointments. See § 627.736(l)(a), Fla. Stat. (2001); Hunter v. Allstate Ins. Co., 498 So.2d 514, 516 (Fla. 5th DCA 1986). On behalf of himself and others allegedly, similarly entitled to such personal injury protection benefits, the complaint he filed in Miami-Dade County asserted that Liberty Mutual’s reimbursement rate of 32.5 cents per mile was too low.

Liberty Mutual moved to dismiss in circuit court on several grounds, including its contention- that the Department of Insurance (DOI) had primary jurisdiction over the subject matter of the lawsuit. Liberty Mutual argued that the relief sought by the class action complaint would effectively set statewide mileage reimbursement rates, a matter over which it claimed DOI had primary jurisdiction. The circuit court granted the motion to dismiss, without prejudice, on April 6, 2001, reasoning that “this action is inappropriate as a class action and [must be dismissed because Mr. Padilla’s individual claim fell below the monetary, jurisdictional threshold for circuit court and also] ... decline[d] to exercise jurisdiction based upon the doctrine of primary jurisdiction.” Mr. Padilla appealed the dismissal to the District Court of Appeal, Third District, where the case is now pending. Padilla v. Liberty Mut. Ins. Co., No. 3D01-1187 (filed May 2, 2001).

He then filed a petition for declaratory statement with the Department, asking it to determine whether (as the circuit court in Miami-Dade County had concluded) DOI had primary jurisdiction to determine the rate of reimbursement for personal automobile mileage payable under personal injury protection policies. By a subsequent amendment, he sought a declaratory statement in which DOI would not only answer the jurisdictional question, but would also “declare the proper amount to be reimbursed pursuant to the .terms of the PIP statute should [DOI] have jurisdiction.” DOI allowed Liberty Mutual to intervene in opposition to the petition. See generally Fla. Ass’n of Nurse Anesthetists v. Dep’t of Prof'l Regulation, 500 So.2d 324, 326 (Fla. 1st DCA 1986) (noting that, when such intervention is allowed, the intervenor is a proper party on appeal).

We are not unmindful of the recent teachings of our supreme court with regard to primary jurisdiction, including those in which the court said, quoting United States v. Western Pac. R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956):

The'doctrine of primary jurisdiction ... is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.... “Primary jurisdiction” ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires resolution of issues which, under a regulatory scheme, have been placed 'within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its reyiew.

Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1037 n. 5 (Fla.2001) (“Accordingly, ... primary jurisdiction operates where a party seeks to invoke the original jurisdiction of a court to decide issues which may require resort to administrative expertise. See generally Louis L. Jaffe, Primary Jurisdiction, 77 Harv. L.Rev. 1037 (1964).”). Our supreme court explained that the doctrine of primary jurisdiction is designed to foster, not to frustrate, the work of administrative agencies:

The doctrine of primary agency jurisdiction operates “to ... eoordinatef ] the work of the court and the agency by permitting the agency to rule first and giving the court the benefit of the agency’s views.... ” Hill Top Developers v. Holiday Pines Serv. Corp., 478 So.2d 368, 370 (Fla. 2d DCA 1985) (quoting Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091-92 (5th Cir.1973) (emphasis added).) Thus, where the doctrine is applicable, the court is to suspend consideration of the issues until these have been presented to the appropriate administrative agency. See, e.g., Hill Top Developers, 478 So.2d at 370 (finding that application of primary jurisdiction “simply would have required the trial court to abate the proceeding until such time as an order was issued by the [Public Service Commission], pursuant to its powers.”). Similarly, in Bal Harbour Village, the Third District"... noted that “[t]he dismissal is, of course, without prejudice to Bal Harbour to pursue its environmental objections with the [DEP].” 678 So.2d at 364.

Flo-Sun, Inc., 783 So.2d at 1041. Clearly, a pending court case does not automatically preclude related administrative proceedings of all kinds. See Flo-Sun, Inc., 783 So.2d at 1037 n. 5; Fla. Marine Fisheries Comm’n v. Pringle, 736 So.2d 17, 21-22 & n. 3 (Fla. 1st DCA 1999); Bal Harbour Vill. v. City of N. Miami, 678 So.2d 356, 364 (Fla. 3d DCA 1996).

An agency with primary jurisdiction can ordinarily go forward with substantial interest proceedings, for example, despite the pendency of related judicial proceedings. See Flo-Sun, Inc., 783 So.2d at 1036-38 & nn. 4-5; S. Lake Worth Inlet Dist. v. Town of Ocean Ridge, 633 So.2d 79, 86-87 (Fla. 4th DCA 1994). “The provisions of [section 120.569] apply in all proceedings in which the substantial interests of a party are determined by an agency....” § 120.569(1), Fla. Stat. (2001); see Fla. Admin.Code R. 28-106.101 (indicating that section 120.569 “shall apply in all pro ceedings in which the substantial interests of a party are determined by the agency”). See also Bishop Assocs. Ltd. P’ship v. Belkin, 521 So.2d 158, 159-60 (Fla. 1st DCA 1988). But Mr. Padilla did not seek relief under section 120.569 or ask for an administrative hearing under section 120.57(1). Cf. Fla. Optometric Ass’n v. Dep’t of Prof'l Regulation, 567 So.2d 928, 936 (Fla. 1st DCA 1990); Truman Annex Co. v. Fla. Keys Aqueduct Auth., 526 So.2d 724, 725 (Fla. 3d DCA 1988). He sought only a declaratory statement.

Where questions presented in a petition for declaratory statement are at issue in pending judicial proceedings,-the administrative agency to whom the petition is addressed should refrain from issuing a declaratory statement until the proceedings in court conclude. See Kruer v. Bd. of Trustees, 647 So.2d 129, 134 (Fla. 1st DCA 1994); Suntide Condo. Ass’n v. Div. of Fla. Land Sales, 504 So.2d 1343, 1345 (Fla. 1st DCA 1987); Couch, 377 So.2d at 33-34. See also Novick v. Dep’t of Health, 816 So.2d 1237, 1240 (Fla. 5th DCA 2002) (“[A] declaratory statement is not an appropriate remedy where there is related pending [administrative] litigation .... ”); Fox v. State, Bd. of Osteopathic Med. Examiners, 395 So.2d 192, 193 (Fla. 1st DCA 1981). As has been previously indicated,

it as an abuse of authority for an agency to either permit the use of the declaratory statement process by one party to a controversy as a vehicle for obstructing an opposing party’s pursuit of a judicial remedy, or as a means of obtaining, or attempting to obtain, administrative preemption over legal issues then pending in a court proceeding involving the same parties.

Suntide Condo. Ass’n, 504 So.2d at 1345. “[W]hen a case is properly pending in a circuit court, a party cannot compel an agency through a declaratory statement petition to give opinions or decisions concerning the issues, or as to the outcome of controversies, then pending in the court.” Kruer, 647 So.2d at 134. Here the question of primary jurisdiction was (and is still) at issue in the appeal pending in the Third District, and there was no need or justification for DOI to issue a declaratory statement on the point. See Kruer, 647 So.2d at 134; Suntide Condo. Ass’n, 504 So.2d at 1345; Couch, 377 So.2d at 33-34. DOI correctly dismissed the petition for declaratory statement on this basis.

Even if his petition for declaratory statement could somehow be construed as seeking a substantial interest proceeding under sections 120.569 and 120.57(1), moreover, dismissal would have been proper, because DOI does not have statutory authority to adjudicate simple contractual disputes about the amounts of benefits payable under personal injury protection policies. Under the statutory scheme, the courts decide, case by case, whether insurers have met their obligations to pay personal injury protection benefits under section 627.736(l)(a). See § 627.736(4)(b) & (11), Fla. Stat. (2001). Nor can the petition for declaratory statement be deemed a demand for mediation under departmental auspices. See § 627.745, Fla. Stat. (2001); Fla. Admin. Code R. 4-176.022. In any event, the deadline for such a demand was long past by the time Mr. Padilla filed his petition for declaratory statement. See § 627.745(l)(a), Fla. Stat. (2001) (“either party may demand mediation of the claim prior to the institution of litigation”).

Affirmed.

KAHN and LEWIS, JJ., CONCUR.

      . Liberty Mutual contended that the Department should be given an opportunity to set such rates before the courts acted, but did not cite any statute or rule.giving DOI specific authority to set mileage reimbursement rates.

      .In relevant part, the petition alleged as follows:
      3. Petitioner was involved in a motor vehicle accident. As a result of the accident, petitioner received medical treatment. Petitioner used his private automobile to travel to and from his medical services providers. Petitioner made a claim for Personal Injury Protection [PIP] benefits from his insurer ... for the use of his automobile to travel to and from the medical services. Petitioner's insurer paid Petitioner 32.5 cents per mile for the use of his automobile.
      4. Claiming that his insurer should have paid him more than 32.5 cents per mile, Petitioner filed a class action lawsuit against his insurer. The insurer sought dismissal of Petitioner’s complaint based, among others, upon the “primary jurisdiction” doctrine, i.a., that Petitioner's claim fell within the ambit of [DOI]’s jurisdiction. The trial court agreed with the insurer and dismissed Petitioner's complaint based upon the “primary jurisdiction” doctrine.
      6. The trial court effectively deferred Petitioner’s PIP claim to [DOI] for resolution. Obviously, Petitioner is affected by the statutory scheme according to which the insurer has explicitly contended and the court implicitly determined that his PIP claim should be adjudicated by [DOI],
      7. Petitioner contends that [DOI] lacks the statutoiy authority to meddle in his PIP claim. Although [DOI] has jurisdiction over insurance premium "rates” which Petitioner may be charged by his insurer, it does not have jurisdiction to determine the amount per mile his insurer should pay Petitioner for the use of his automobiles to travel to and from medical services under Florida’s PIP statutory scheme.
      8. Accordingly, Petitioner asks [DOI] to issue a declaratory statement as to whether it has “primary jurisdiction” over Petitioner's PIP claim-as indicated by the trial court's dismissal order.

      . Although the Department has authority to regulate the rates at which insurers charge premiums, see §§ 627.011-381, Fla. Stat. (2001), DOI has no statutory authority, rule-making or otherwise, to set mileage reimbursement rates payable as benefits under section 627.736(l)(a), Florida Statutes (2001). Cf. § 627.736(5)(b), Fla. Stat. (2001).
      Nothing in Chapters 624 or 627 confers any authority on DOI to determine the amount an insurer should pay as personal automobile mileage reimbursement in an ordinary contract dispute. Compare § 440.13(12), Fla. Stat. (2001) (creating panels to set maximum reimbursement allowances for medical care under the Workers’ Compensation Law).

      . DOI's authority to investigate and hold hearings under sections 624.317 and 624.321, which arises only when DOl has reason to believe someone "has violated or is violating any provision of [Chapter 624],” § 624.317, Fla. Stat. (2001), does not, of course, depend on judicial proceedings, judgments or decrees. If an insurer makes excessive profits on motor vehicle insurance, DOI has authority to order refunds or credits, but not to increase benefits. See § 627.066(7), Fla. Stat. (2001).