author: PALMER, J.

text:
    ORMOND BEACH ASSOCIATES LIMITED, et al., Appellant, v. CITATION MORTGAGE, LTD., et al., Appellee.
    No. 5D01-2015, 5D01-3171.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 28, 2003.

      J. Lester Kaney of Cobb, Cole & Bell, Daytona Beach, Leighton Aiken and Dana M. Campbell of Owens, Clary & Aiken, L.L.P., Dallas, Texas, for Appellant.
    Shannon McLin Carlyle of The Carlyle Appellate Law Firm, Lady Lake and William E. Sherman of Landis Graham French, P.A., Deland, for Appellee.
   PALMER, J.

In this consolidated appeal, Ormond Beach Associates Limited Partnership (Or-mond Beach), LPIMC Inc., John Galston, Eugene Rosen, and Bruce Weinstein appeal:

(1) the final order recognizing as valid the voluntary dismissal without prejudice filed by appellee Citation Mortgage (Case No. 5D01-2015); and,
(2) the order denying Ormond Beach’s motion for attorney’s fees (Case No. 5D01-3171).

Concluding that the trial court properly held that Citation Mortgage was entitled to take a voluntary dismissal without prejudice, and that such dismissal precluded the trial court from granting Ormond Beach’s motion for attorney’s fees, we affirm.

These parties have previously been before this court for review of various final and non-final orders during the pendency of this complex, ten-year lawsuit involving claims for mortgage foreclosure, breach of contract, enforcement of guarantees, and foreclosure of security interests. Answers and affirmative defenses, but no counterclaims, were filed. Two particular events have an impact on the instant case.

First, during the course of this protracted litigation, Ormond Beach filed for bankruptcy. On December 22, 1994, the bankruptcy court lifted the automatic stay for the limited purpose of allowing Citation Mortgage to pursue a claim for rent against Ormond Beach. On December 27, 1994, Ormond Beach filed a motion for partial summary judgment, which was granted on March 5, 1995. However, on December 13, 1995, the bankruptcy court reconsidered its ruling and determined that the order lifting the automatic stay had been improvidently entered, and that Citation Mortgage’s claims for rent needed to be addressed by the bankruptcy court. The bankruptcy court also ruled that the findings of fact made by the Florida trial court in its March 5, 1995 order were not binding. See In re: Ormond Beach Assocs. Ltd. Partnership, 204 B.R. 336 (Bankr.D.Conn.1996).

Second, during the pendency of the bankruptcy proceeding several of the other named party defendants filed a motion to sever Citation Mortgage’s claims against them from its claims against Ormond Beach. They also moved for entry of a final judgment. The trial court granted the motion to sever and entered a final summary judgment in favor of those defendants. That order was affirmed on appeal. See Citation Mortgage Ltd. v. RC of a Retirement Living Ltd. Series III, 753 So.2d 777 (Fla. 5th DCA), rev. denied, 773 So.2d 54 (Fla.2000).

After the conclusion of that appeal, Or-mond Beach filed a motion for summary judgment in the trial court. In the meanwhile, a decision was rendered in its favor by the bankruptcy court. Ormond Beach then amended its motion and the matter was set for hearing on June 4, 2001. However, on June 1, 2001, Citation Mortgage served its notice of voluntary dismissal without prejudice. Over objection, the trial court entered an order, recognizing the voluntary dismissal without prejudice and determining the pending summary judgment motion was moot. This appeal timely followed.

Ormond Beach thereafter sought a ruling on its pending motion for attorney’s fees and costs which had been filed pursuant to section 768.79 of the Florida Statutes (Florida’s offer of judgment statute). The trial court denied the request for attorney’s fees. A separate notice of appeal was filed as to that order. This court consolidated the two appeals for purposes of appellate review.

We initially note that Ormond Beach’s filings below are confusing and imprecise as to which defendants were properly before the trial court and thus were affected by Citation Mortgage’s filing of its notice of voluntary dismissal without prejudice. Our review of the record reveals that Ormond Beach was the only party-defendant which was actually affected by that filing and, thus, the only party which possesses standing to pursue an appeal thereon. Similarly, the motion for attorney’s fees below only related to Or-mond Beach. Accordingly, only Ormond Beach possesses standing to challenge the order denying the request for offer of judgment attorney’s fees.

Ormond Beach first argues that the trial court erred in ruling that Citation Mortgage could file a voluntary dismissal without prejudice under rule 1.420 of the Florida Rules of Civil Procedure. We disagree.

Under rule 1.420, a plaintiff may dismiss an action without order of the court before trial by serving a notice of dismissal “at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury if the case is tried before a jury or submission of a non-jury case to the court.” Our courts have consistently construed this rule as meaning that, at any time before a hearing on a motion for summary judgment, a party seeking affirmative relief has nearly an absolute right to dismiss his entire action once, without a court order, by serving a notice of dismissal. Marine Contractors, Inc. v. Armco, Inc., 452 So.2d 77 (Fla. 2d DCA 1984); State Dep’t. of Natural Resources v. Hudson Pulp & Paper Corp., 363 So.2d 822 (Fla. 1st DCA 1978); Meyer v. Contemporary Broadcasting Co., 207 So.2d 325 (Fla. 4th DCA 1968). The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable. See Romar Int’l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346 (Fla. 5th DCA 1982); Visoly v. Bodek, 602 So.2d 979 (Fla. 3d DCA 1992).

When presented with Citation Mortgage’s notice of voluntary dismissal without prejudice, the issue for the trial court to resolve was simply whether either (1) a hearing on a motion for summary judgment had been conducted prior to the time the notice was filed, or (2) Ormond Beach was seriously prejudiced by the filing. Obviously, the trial court concluded that neither prong was established. Ormond Beach challenges this ruling, arguing that the court erred on both prongs.

In that regard, Ormond Beach contends that the trial court erred in permitting Citation Mortgage to voluntarily dismiss its case because the instant record demonstrates that a partial summary judgment had been entered in favor of Ormond Beach on March 5, 1995. However, Citation Mortgage aptly responds by arguing that this claim should be rejected as merit-less because the record demonstrates that the trial court’s March 5, 1995 summary judgment order was void.

As noted above, during the one-year time period between the time the bankruptcy court partially lifted the stay and the time the court rescinded its order, the trial court was presented with and thereafter granted a motion for partial summary judgment. Ormond Beach now relies on this order to support its position that rule 1.420 cannot be applied in this case. However, the March 5, 1995 partial summary judgment was rendered a nullity when the bankruptcy court rescinded its order lifting of the automatic stay. As such, the void order could not constitute a bar to the filing of a voluntary dismissal under rule 1.420. See Personalized Air Conditioning, Inc., v. C.M. Systems of Pinellas County, Inc., 522 So.2d 465 (Fla. 4th DCA 1988)(explaining that trial court proceeding is automatically stayed upon filing of a petition in bankruptcy so any trial court order entered during stay is void).

As for prong two of the rule 1.420 analysis, Ormond Beach argues that the trial court erred in concluding that Citation Mortgage’s filing of its notice of voluntary dismissal was proper in light of the fact that such dismissal operated to deny Ormond Beach of a substantive right to seek affirmative relief, to wit: the recovery of its offer of judgment attorney’s fees. In a closely related claim Ormond Beach argues that since our supreme court has ruled that upon voluntary dismissal of an action without prejudice offer of judgment attorney’s fees are not recoverable, the trial court’s acceptance of Citation Mortgage’s voluntary dismissal without prejudice deprived Ormond Beach of its “right” to recover any such fees and thus said ruling constituted “great prejudice”. We disagree because the instant record fails to demonstrate that Ormond Beach had acquired any “substantial right” to recover any offer of judgment attorney’s fees.

Although the record demonstrates that Ormond Beach submitted two offers of judgment during the pendency of this litigation, one in 1992 and a second in 1993, the record fails to conclusively demonstrate Ormond Beach ever acquired a right to recover attorney’s fees based on same. The instant record does not contain conclusive evidence that, absent the voluntary dismissal, a judgment would have been entered in Ormond Beach’s favor on any or all of Citation Mortgage’s pending claims, nor is there any finding made by the trial court that either or both of the offers were made in good faith. See Disney v. Vaughen, 804 So.2d 581 (Fla. 5th DCA 2002)(recognizing that the determination of whether an offer of judgment was served in good faith turns entirely on whether the offeror had a reasonable foundation upon which to make the offer, a finding which must be made by the trial court after conducting an evidentiary hearing thereon).

Ormond Beach also claims that the trial court erred in denying its request for statutory offer of judgment attorney’s fees because its offer of judgment and amended offer of judgment “undeniably satisfied the requirements of section 768.79”. Ormond Beach argues that since it satisfied the procedural requirements of section 768.79 of the Florida Statute, the court trial erred in denying its request for fees. We disagree.

Our supreme court has ruled that, upon voluntary dismissal of an action without prejudice, statutory offer of judgment attorney’s fees are not recoverable. See MX Investments, Inc., v. Crawford, 700 So.2d 640 (Fla.1997)(holding that offer of judgment statute does not provide a basis for an award of attorney fees and costs unless dismissal is with prejudice). Thus, once the trial court recognized Citation Mortgage’s notice of voluntary dismissal without prejudice, Ormond Beach lost its right to request recovery of such fees. To hold otherwise would preclude the filing of a voluntary dismissal in all cases in which a defendant had filed an offer of judgment.

AFFIRMED.

COBB and PLEUS, JJ., concur.

      . The bankruptcy court disallowed all of Citation’s claims against Ormond Beach. See In Re: Ormond Beach Assocs., Ltd. Partnership, 204 B.R. 336 (Bankr.D.Conn.1996). That decision was affirmed on appeal. See In Re: Ormond Beach Assocs., Ltd. Partnership, 184 F.3d 143 (2d Cir.1999).

      . See MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla.1997)(holding that offer of judgment statute does not provide a basis for an award of attorney fees and costs unless dismissal is with prejudice).


source: Caselaw Access Project

author: PER CURIAM. SHARP, W., J.

license: Public Domain

text:
    David CARDONA, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3438.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 27, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

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

SHARP, W., J., concurs specially, with opinion.

SHARP, W., J.

concurring specially.

I agree this case should be affirmed. But, I also think it is important to state the reasons for affirming.

Cardona was convicted of false imprisonment without a weapon, improper exhibition of a deadly weapon, and exposure of his sexual organs, after he attacked Zvosec (the victim in this case), on the Rollins College campus. On appeal, Car-dona argues that the testimony of two state witnesses, Calandra and Raymond, were erroneously admitted as Williams Rule evidence. In my view, the facts established at trial and the law support the trial court’s evidentiary rulings, and reflect the supreme court’s interpretation of evidence admitted under section 90.404(2)(a). Robertson v. State, 780 So.2d 106 (Fla. 3d DCA 2001), rev. granted, 799 So.2d 219 (Fla.2001); Heath v. State, 648 So.2d 660 (Fla.1994)(trial court has broad discretion in determining relevance of evidence; such determination will not be disturbed, absent abuse of discretion).

The record discloses that between 5:00 and 5:30 p.m., on April 12, 2001, Zvosec, a Rollins College co-ed, was walking on the sidewalk on the Rollins campus, from the general store to her dorm room. It was the middle of the second semester. She was walking near an area where students and faculty park.

A dark green car, possibly a Honda, slowed down and stopped. When pressed as to the vehicle’s age, she first said she thought it was relatively new, but later said she didn’t know. She thought the car had four doors. A man in his twenties, Latin (or not Caucasian) with dark hair, was driving the car. His window was all the way down. He asked her directions to the campus center. She thought the question odd but answered it, pointing in the direction of the campus center, while moving closer to the car.

She guessed she was a few inches from him when she observed him with his pants down, or not wearing them, masturbating. He asked her if she liked watching people jerk off. Suddenly, he grabbed her arm, and she fell in towards the vehicle. At one point, he forced her hand onto his penis and tried to get her to masturbate him. She saw a knife on the seat next to him and felt it on her arm at one point. She said she remembered what her parents had told her about never getting into a car with a stranger, and pulled away. She began screaming in the middle of the street, attempting to summon her friends. The man drove around a roundabout. She wondered why he didn’t immediately leave. Then he sped up and she had to jump out of the way to avoid being hit.

Subsequently, a detective assigned to surveillance on the Rollins campus, Detective Rosner (Rosner), was informed by dispatch that a car matching the description given by Zvosec had stopped at a daycare center near the campus. Rosner approached the car, which Cardona was driving. After reading Cardona his rights, Cardona’s eyes started to tear and he told Rosner “I fucked up. I went to the lake, and I smoked a little weed, and I felt a little horny so I jerked off.” Subsequently (and later at trial), Zvosec identified Car-dona as her assailant.

I. Williams Rule Evidence.

At Cardona’ s trial, Calandra, also a Rollins College co-ed, testified that five months before the crime in this case took place, at midterms, and right before Thanksgiving in 2000, she was walking on the sidewalk on the Rollins College campus. It was between five and six p.m. A man in a dark green car stopped to ask her directions. He was Latin, with dark skin and dark hair. The car was a two-door model, with tinted windows; probably an older model. When asked, she defined “older” as five years. The driver’s window was all the way down.

The man first asked Calandra directions to the gym. She thought the question odd because any student would know its whereabouts. But she answered it was “right there,” indicating behind her and in the direction his car was facing. He asked her the location of the campus center. She responded it was a little farther down the street. Unlike Zvosec, Calandra did not approach the car. She guessed she was a few feet away. The man then told her he had one more question for her. At that point, she did walk off the sidewalk over towards his car but she never got as close to him as did Zvosec. The man then asked Calandra if she had ever had oral sex with a stranger.

Calandra testified she became afraid, said “no,” and headed for her car which was parked nearby. He followed her saying obscene things, like he had heard it was very exciting. He continued to yell obscenities at her and pulled his car into the gym entranceway to block her in. He pulled his car into the space next to hers and said “Look how big my cock is,” opening his car door. Calandra glanced up and saw that his pants were off, he was naked from the waist down. He had his hand on his penis; she couldn’t tell if he was erect. Fortunately for Calandra, another car was coming and the man exposing himself drove away. Calandra identified the man as Cardona.

Section 90.404(2)(a) is a codification of the rule announced in Williams v. State, 110 So.2d 654 (Fla.1959) regarding admission of evidence of other crimes or bad acts. See Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002). The rule states:

(2) OTHER CRIMES, WRONGS, OR ACTS—
(a) Similar fact evidence of other crimes, wrongs or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

This type of evidence is variously referred to as “Williams rule evidence,” “similar fact evidence,” or “collateral crimes evidence.”

The supreme court has written a number of opinions elaborating its position in Williams and the application of section 90.404(2)(a). Simply stated, the true test for admissibility of similar fact evidence is relevancy: any evidence relevant to prove a material fact at issue is admissible, unless precluded by a specific rule of exclusion. See, e.g., Zack v. State, 753 So.2d 9, 16 (Fla.2000); Chandler v. State, 702 So.2d 186 (Fla.1997); State v. Savino, 567 So.2d 892 (Fla.1990); Drake v. State, 400 So.2d 1217, 1218 (Fla.1981); Williams; State v. Mosley, 760 So.2d 1129 (Fla. 5th DCA 2000). The evidence does not have to be necessary to the state’s case; merely relevant. Ruffin v. State, 397 So.2d 277, 279 (Fla.1981), receded from other grounds, Scull v. State, 533 So.2d 1137 (Fla.1988). So long as it is relevant for any purpose of fact, the fact that it is prejudicial does not make it inadmissible. Ashley v. State, 265 So.2d 685, 694 (Fla.1972).

Similar fact evidence is merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence. Bryan v. State, 533 So.2d 744, 746 (Fla.1988). Relevant evidence will not be excluded merely because it relates to facts that point to the commission of a separate crime. Williams v. State, 621 So.2d 413 (Fla.1993). In fact, all evidence that points to a defendant’s commission of a crime is prejudicial; the true test is relevancy. Bryan; Ashley. The only limitation to the relevancy rule is that the state should not be permitted to make the evidence of other crimes the feature of the trial, or to introduce the evidence solely for the purpose of showing bad character or propensity. Bryan at 746.

In Chandler, the supreme court again announced principles which govern how this rule should be applied, reiterating its position in Williams that “relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime.” Chandler at 191. Further, the court noted, Williams holds that evidence of similar facts is admissible for any purpose if relevant to any material issue, other than propensity or bad character, even though the evidence points to the commission of another crime. Id. Similar fact evidence is also admissible when the evidence establishes the circumstances leading to the defendant’s arrest. Geske v. State, 770 So.2d 252 (Fla. 5th DCA 2000).

The Chandler court stated that a common thread in admissibility of similar fact evidence is that there be startling similarities in the facts of each crime and that they are unique. But the supreme court has never required that the collateral crime be absolutely identical to the raime charged. Chandler. As the Chandler court noted, citing its opinion in Gore v.

State, 599 So.2d 978 (Fla.1992), the few dissimilarities between the two incidents in that case, and in particular the biggest difference, seemed to be a result of differences in the opportunities with which the defendant was presented. Chandler at 193. The Chandler court recognized that although the crimes were not exactly the same, that fact alone did not preclude admission of collateral crime evidence and, indeed, if exact identity were the standard, it would erect an almost impossible standard of admissibility. Chandler at 194.

There are two problems a trial judge must resolve before admitting similar fact evidence. First, the trial judge must determine what relevant issue the evidence is being offered to prove, aside from bad character or propensity. Second, the trial judge must determine whether the combination of facts in the two incidents is sufficiently unique to amount to fingerprint type , behavior, i.e., it is improbable that any other person would have committed the crime in the same manner. See Crowell v. State, 528 So.2d 535, 536 (Fla. 5th DCA 1988), and cases cited therein.

The similarities go to “unusual characteristics”; a unique scheme or pattern. In this vein, the term “fingerprint” is more akin to “signature.” See United States v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) (citing McCormick, Evidence § 190 at 449 (2d ed.1972)), where it was explained that:

The more unique and unusual are the common characteristics of the similar acts involved, the more probative become the prior acts, since they then are sufficiently distinctive to be viewed as “fingerprints” or “signatures” of the person charged. (Emphasis added)

Benedetto, 571 F.2d at 1249. Thus, to be admissible under section 90.404, there must be identifiable points of similarity which pervade the compared factual situations; the similarity must have a special character that points to the defendant; and it must be unique so as to constitute fingerprint type evidence. Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002). See also Chandler v. State, 702 So.2d 186 (Fla.1997). This does not mean, however, that the similar fact evidence must rise to the level of actual fingerprint evidence to be admissible.

These principles are illustrated in Evans v. State, 723 So.2d 855 (Fla. 4th DCA 1998), where the district court held that two robberies were sufficiently similar to satisfy the requirements for similar fact evidence. There, both robberies took place during the day; two weeks apart; the assailant was a young black male with noteworthy eyes; the victims were robbed while entering or leaving their vehicles; the assailant held a knife to their throats and swore at them; and the victims were older women who were alone.

Similarly, in State v. Ackers, 599 So.2d 222 (Fla. 5th DCA 1992), this court reversed the trial court’s decision to exclude evidence as similar fact evidence. In that case we found that although there were some differences in the manner in which two robberies had been committed, the similarities of modus operandi were strikingly similar: committed within a two week period, at fast food restaurants, located near one another; and committed at closing time.

Cardona argued that Calandra’s testimony was too dissimilar to be admissible under section 90.404(2)(a). The basis for this claim was:

-the incidents occurred at different times of the year;
-the incidents occurred at different locations on the Rollins College campus; -that the perpetrators did not say the same thing to the women;
- the women’s description of the vehicles differed as to the number of doors and whether the vehicle was old or newer; -the level of physical aggression was different.

These differences are differences without distinction. The similarity and uniqueness of the two incidents involving Zvosec and Calandra are substantial:

-both incidents occurred on the Rollins College campus;
-both incidents occurred late in the afternoon between five and six o’clock;
-in both cases, the perpetrator was driving a dark green vehicle with tinted windows (Zvosec stated it might be a Honda type vehicle);
- in both cases the victims were walking on sidewalks on the campus, near parking;
- both women were in their early twenties; Rollins College co-eds;
- both women were alone;
- in both cases, the perpetrator stopped his vehicle with his window all the way down, and asked the women questions;
-in both cases, the questions pertained to locations of well-known buildings on the campus- — and both were specifically asked how to get to the campus center;
-in both cases, the perpetrator made sexual remarks to the victims after engaging them in conversation;
-in both cases the perpetrator exposed his penis; in one case he was masturbating and in the other he was touching it;
-in both cases the perpetrator was naked below the waist;
-in both cases the perpetrator committed the offenses within his vehicle;
- in both cases the perpetrator used his vehicle to follow the victims after contact; in one case following the victim and in the other remaining in the area for a few minutes and then almost running the victim over;
- both women described the perpetrator as a young man, Latin, with olive colored skin and dark hair. In fact, both women identified Cardona as the perpetrator of the assaults on them.

These facts show a clear pattern of behavior. The perpetrator scoped-out the Rollins College campus, between five and six p.m., during midterms. He drove a green car with tinted windows, he had the driver’s window down, and he was looking for young women who were walking alone. He then engaged their attention by asking for directions, in the hope that, in giving him directions, they would move towards his vehicle. Once they approached he used sexually explicit language while masturbating. When the victims ran or walked away, he followed them in his car, until he was interrupted. In Calandra’s case, another vehicle approached; in Zvo-sec’s her screaming, and apparently the attention it aroused, caused the interruption. As clearly as in any other proper Williams rule case, the facts in this case establish Cardona’s “signature” or “fingerprint” as the perpetrator in this offense. Further, any error, if it occurred with regard to admitting Calandra’s testimony, was harmless because both Zvosec and Raymond identified Cardona at trial.

There were only two differences in the episodes as to the modus operandi. First, Zvosec was physically attacked while Ca-landra was not. It seems apparent that Cardona did not physically grab Calandra because she did not approach his vehicle any closer than a few feet, and he therefore had no opportunity to grab her. Zvo-sec approached his car to within inches. This is a difference in opportunities, as discussed in Chandler, not in Cardona’s plan. Undoubtedly, had Cardona had the opportunity to grab Calandra, he would have done so because his actions, taken as a whole, point in the direction of having physical contact with the women.

The second difference was that Zvosec believed the green car was a four door, while Calandra testified it was a two door, and Zvosec and Calandra differed as to the age of the car. However, when Zvosec was subsequently pressed as to the car’s age, she admitted she just didn’t know. Furthermore, these young women found themselves isolated and in the presence of an individual by whom they felt threatened. The women testified they were frightened and upset, and as is normal under these type circumstances, had some difficulty in remembering every detail of the incidents. Thus, it is unremarkable that their testimony contained minor differences.

II. Direct Evidence:

Raymond’s testimony was extremely limited. She was also a co-ed at Rollins College. Her testimony related only to having seen Cardona on the Rollins campus on the day and at the time of the attack on Zvosec. She testified that on April 12, 2001, the same day Zvosec was attacked, between five and five-thirty p.m., she was walking along the sidewalk on the Rollins campus, where the parking lot for the sports complex is located. She saw a dark green Honda or Acura with tinted windows. The car pulled up alongside her. The driver’s window was open all the way down. The man was olive-skinned, not white or black. No charges stemmed from this incident. She identified Cardona at the trial, as the driver.

Cardona claimed that Raymond’s testimony was collateral crime evidence because the State elicited testimony from Rosner that he came into contact with Raymond after she had been “involved in a suspicious incident involving what appeared to be the same person,” that Ros-ner had interviewed Raymond, and that he had shown her a photographic line-up. However, there was also testimony that no charges stemmed from this incident and no crime was committed on Raymond.

Rosner’s testimony merely establishes he investigated the offense committed against Zvosec. Neither his testimony regarding a “suspicious incident,” nor the suggestion that Raymond had an “encounter” is sufficient to portray Cardona as engaging in a bad or criminal act.

In my view, Raymond’s testimony does not constitute Williams rule evidence. Rather it was direct evidence which placed Cardona on the Rollins College campus on the date and hour of the attack on Zvosec. It is similar to a security camera catching the image of a suspect entering a building where a crime was committed, close to the time of the commission of the crime. Raymond’s testimony was clearly relevant and admissible because it placed Cardona at or near the crime scene, near the time the crime was committed.

      . § 787.02(2); § 790.10; and § 800.03, Fla. Stat. (2001).

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . That one victim lived and the other died.

      . See State v. Savino, 567 So.2d 892, 894 (Fla.1990); Stephens v. State, 662 So.2d 394 (Fla. 5th DCA 1995).

      . Where there is direct evidence regarding the offense charged, it is not similar fact evidence. Boroughs v. State, 684 So.2d 274 (Fla. 5th DCA 1996).


author: PLEUS, J.

text:
    Victor MARINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1320.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 24, 2003.
    Victor Marino, Okeechobee, pro se.
    No Appearance for Appellee.
   PLEUS, J.

Victor Marino appeals an order denying his petition for writ of habeas corpus for permission to file a belated 3.850 motion for post-conviction relief. The issues raised in his petition are time-barred and could or should have been raised in prior appeals. Zeigler v. State, 654 So.2d 1162 (Fla.1995). Accordingly, the trial court appropriately denie'd relief.

Marino previously filed a 3.850 motion and two 3.800 motions concerning his convictions and sentences for first degree murder and use of a firearm during a felony. These motions were denied and the denials were affirmed on appeal. We prohibit Marino from filing further pleadings concerning the above judgments and sentences unless said pleadings are signed by an attorney licensed to practice law in the State of Florida. Hastings v. State, 788 So.2d 342 (Fla. 5th DCA 2001).

AFFIRMED.

COBB and PETERSON, JJ., concur.


author: WHATLEY, Judge.

text:
    Hollie Ann NABORS, Appellant, v. J. Mervyn NABORS, Appellee.
    No. 2D01-5493.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 30, 2003.

      John B. Gibbons, J. Frazier Carraway, and Cheryl J. Lister of Salem Saxon P.A., Tampa, for Appellant.
    Joseph R. Park of Park, Ossian and Zdravko, P.A., Clearwater, for Appellee.
   WHATLEY, Judge.

Hollie Anne Nabors (the Former Wife) challenges the trial court’s order denying in part her motion to enforce the marital settlement agreement she entered into with J. Mervyn Nabors (the Former Husband). We affirm the trial court’s interpretation of section 7 of the marital settlement agreement and the trial court’s denial of the Former Wife’s claim for rent. However, we reverse that portion of the trial court’s order finding that the Former Husband had fulfilled his obligations under section 10 of the marital settlement agreement and remand for further proceedings on this issue.

Section 10 of the marital settlement agreement states in pertinent part:

The parties acknowledge that the Former Husband is presently the controlling shareholder of American Instrument Co., Inc., Birmingham, Alabama. The Former Husband hereby agrees that-he will cause to be executed an Independent Contractor Consulting Agreement between American Instrument Co., Inc., and the Former Wife, providing for her services as an ad hoc consultant, said employment agreement having a term of twelve (12) months, and providing compensation during that period, of $2,000.00 a week. All other terms and provisions of the subject employment agreement shall be subject to the sole discretion and decision of American Instrument Co., Inc. Upon the expiration of the original twelve (12) month term, any and all extensions, amendments or other modifications of said employment agreement shall be at the sole discretion of American Instrument Co., Inc.

The parties signed the marital settlement agreement on April 1, 1999. In the trial court, the Former Wife argued that the Former Husband had not fulfilled his obligations under section 10 because American Instrument had not paid her $104,000 in salary over a twelve-month period. The trial court disagreed, crediting the Former Husband for amounts both he and American Instrument paid to the Former Wife from April 1, 1999, to March 30, 2000, and crediting the Former Husband for $15,000 that he paid to the Former Wife’s attorney on her behalf. Based on these credits, the trial court found that the Former Husband had fulfilled his obligations under section 10. We agree with the trial court on all aspects except one. We hold that the trial court improperly credited the Former Husband for the $15,000 he paid in attorney’s fees on behalf of the Former Wife because this payment was not contemplated under section 10 of the marital settlement agreement.

First, the trial court did not err in crediting the Former Husband with the $8000 that he paid to the Former Wife between April 9, 1999, and June 4, 1999. The parties do not dispute that they signed the marital settlement agreement on April 1, 1999, and that they intended the marital settlement agreement to be binding as of that date. The parties also do not dispute that the first increased payment by American Instrument was made in the pay period ending June 4, 1999. The Former Husband testified that it took some time for the change in salary to be made in the payroll department at American Instrument and that he personally paid the $8000 during this time to “catch up” on the payments that had been due since April 1, 1999. The Former Wife’s only testimony was the payments were gratuitous payments from the Former Husband. The trial court had the discretion to believe the Former Husband’s testimony on this issue.

Second, the trial court properly credited the Former Husband with the money that he personally 'paid to the Former Wife after American Instrument unilaterally reduced the payments to the Former Wife. The record reflects that the Former Husband is the controlling shareholder of American Instrument. American Instrument’s vice president of finance testified that he counseled the Former Husband to reduce the payroll payments to the Former Wife due to possible adverse tax consequences of these payments by American Instrument. The Former Husband testified that he personally made up the difference between the amounts due from American Instrument under section 10 and the amounts actually paid by American Instrument. The Former Wife testified that the Former Husband’s payments to her during this time period were simply gratuitous payments. The trial court again had the discretion to accept the Former Husband’s testimony on this issue and reject that of the Former Wife.

The Former Wife also argues that the Former Husband did not have the right to change the source of the payments without her written consent. While this may be true, the Former Wife’s only recourse is against the Former Husband because American Instrument is not a party to the marital settlement agreement. When American Instrument refused to make full payments to the Former Wife, she had to turn to the Former Husband, as the party to the contract, for relief. In this case, the Former Husband made up the difference in the payments. He was therefore entitled to credit for these payments, and the trial court did not err in allowing this credit.

Finally, however, the trial court erred in crediting the Former Husband for the $15,000 payment toward the Former Wife’s attorney’s fees. The parties had an extensive discussion on the record at the hearing at which the marital settlement agreement was ratified concerning the payment of attorney’s fees. At no time during that discussion did the Former Husband or his counsel request an offset against the amounts due under section 10 for the $15,000 in attorney’s fees previously paid by the Former Husband. After the hearing, the trial court entered an order ratifying the marital settlement agreement as amended on the record at the hearing. The Former Husband cannot now seek to amend his obligations under the ratified marital settlement agreement with alleged off-the-record agreements between himself and the Former Wife concerning this $15,000 payment. Therefore, the Former Husband is not entitled to credit for the $15,000 in attorney’s fees against his obligation under section 10 of the marital settlement agreement.

Accordingly, we reverse the trial court’s order as it pertains to the obligations under section 10 of the marital settlement agreement and remand for further proceedings on this issue.

Affirmed in part, reversed in part, and remanded for further proceedings.

FULMER and NORTHCUTT, JJ., Concur.

      . Prior to the signing of the marital settlement agreement, American Instrument was paying the Former Wife $1000 per week in salary.

      . The vice president of finance testified that there were potential adverse tax consequences to American Instrument for paying an excessive salary to the Former Wife, who had no actual job responsibilities with the corporation.


author: RAMIREZ, J.

text:
    Fernando CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3414.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied Jan. 29, 2003.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

      Richard E. Doran, Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   RAMIREZ, J.

Fernando Castillo appeals his judgment of conviction and sentence for unlawful compensation and official misconduct. We reverse the trial court’s denial of Castillo’s motion for judgment of acquittal as to count I, unlawful compensation, and affirm the denial as to count II, official misconduct.

Former Miami-Dade County police officer Castillo was accused of coercing sex from a motor vehicle driver, nineteen-year-old A.S., in lieu of arresting or ticketing her for driving under the influence of alcoholic beverages. Castillo was charged with unlawful compensation for the sexual conduct and official misconduct for intentionally falsifying official documents.

A jury convicted-Castillo of both charges and Castillo moved for a judgment of acquittal. The trial court denied the motion and sentenced Castillo to 56.25 months imprisonment to be followed by one year of probation. On the sentencing score-sheet, the court assessed 98 additional points to the sentencing guidelines score-sheet for which 80 points were assessed for sexual penetration and 18 points for possession of a firearm during the commission of the underlying offense.

I. The Testimony

At trial, A.S. testified that in the early morning hours of March 9, 2000, she was driving at approximately 55 miles per hour in a 40 mph zone. When she passed in front of a gas station, she saw Castillo illuminate his overhead lights and, over the car’s loudspeaker, he ordered her to pull over and produce her driver’s license. A.S. had been drinking heavily and had smoked a marijuana cigarette, so she thought she was going to be arrested. She stopped in front of a Burger King restaurant. As she walked over to Castillo’s patrol car, she slipped and had to catch herself on her car, to which Castillo remarked, “the party must have been good.” When she handed Castillo her driver’s license, he grabbed her wallet, and began to peruse through it. He was standing less than a foot away from A.S. The wallet contained a business card from a police officer. She explained that it belonged to her boyfriend.

Castillo requested that she follow him into the Burger King restaurant parking lot. After she had moved her car as ordered, they stood in the parking lot and spoke. Castillo was very friendly, as he kept smiling and touching her shoulder. Castillo then told her to follow him in her car, which she did. He led her to a nearby deserted warehouse area where he had vaginal intercourse with her. During the encounter, she did not say anything to him because she was scared and did not know what to do. He then told her that she was lucky he didn’t give her a ticket. He gave her his beeper number and they each drove off. Castillo gave her the impression that if she refused to have sex with him, he would either arrest her or give her a ticket for driving under the influence, but Castillo did not mention anything along the lines of DUI, and she could not recall if the sex-in-lieu-of-DUI idea originated after the fact from her friend or her friend’s father.

A.S. subsequently sought treatment at a rape center, and reported the incident first to the FBI and then to the Miami Dade Police Department.

Castillo testified that he pulled out of the gas station into A.S.’s lane of traffic. A.S. applied her brakes and waved him over to her. They both stopped in the median. Castillo got out of the car, asked A.S. for her driver’s license, reviewed the driver’s license and returned it to her. He asked A.S. if anything was wrong, to which A.S. responded in the negative and stated that she was lost and needed directions to the Palmetto Expressway. Castillo directed her to the expressway and returned to his patrol car to drive away. A.S. stopped Castillo and asked him if they could talk a while longer. They then drove to a nearby Burger King restaurant where they parked them cars and spoke about personal matters, including marriage and family. Castillo detected the smell of alcohol on A.S.’s breath. He did not notice that she walked or spoke as if she was drunk. He told her that he had to return to work, gave her his beeper number, and arranged to meet her at a park at the end of his shift. He then drove to a gas station to use the bathroom, purchase a drink, and begin work on his activity worksheet. He returned to the police station for the remainder of his shift. When he left the station at the end of his shift, he met A.S. and had masturbatory sex with her. He never discussed DUI charges with her. During the encounter, he was in full uniform, and he wore a gun that was visible.

In the police department’s taped telephone call between Castillo and A.S., A.S. told Castillo that she believed that she was pregnant and Castillo expressed disbelief because he had not ejaculated inside of her. Both vehicles were also videotaped driving to and from the warehouse area. Castillo’s semen was later found in A.S.’s panties. A condom which A.S. had in her wallet prior to the sexual encounter was later reported missing.

Several police officers testified in this case. Hernandez, an officer with the Sexual Crimes Bureau, testified that A.S.’s former boyfriend called him to say that A.S. made up the allegations against Castillo. During Castillo’s interrogation at the police station, Castillo denied stopping A.S.’s car, exiting his patrol car or having sex with A.S. Morales, an officer with the Professional Compliance Bureau, testified that the taped communications between Castillo and the police dispatcher reflected that a traffic stop was conducted, but there was a gap in the transmission. Bermudez, another officer with the Sexual Crimes Bureau, testified that there was a discrepancy between Castillo’s work sheet, the restaurant surveillance video, and the dispatcher records as to the time Castillo conducted the vehicle stop.

Castillo did not record the encounter with A.S. in his daily activity work report. He also acknowledged that his daily log report mistakenly indicated that he was on patrol during the time in which he was speaking to A.S. in the parking lot.

II. Unlawful Compensation

Castillo asserts that the trial court erred in denying his motion for judgment of acquittal on the charge of unlawful compensation. In count I, Castillo was charged with placing A.S. in such a position that she was forced to engage in vaginal intercourse in lieu of his issuing her a ticket or arresting her for DUI. Section 838.016, Florida Statutes (1999), provides:

(1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, . in violation of a public duty, or in performance of a public duty.

In State ex rel. Grady v. Coleman, 133 Fla. 400, 183 So. 25, 31 (1938), the Florida Supreme Court stated that if the compensation is demanded “and there is a meeting of the minds on the part of the officer who is to be compensated or rewarded by his exaction or acceptance of the reward other than that allowed by law, and the party from whom it is exacted or accepted, then the statutes, supra, have been violated.”

A.S.’s own candid testimony belies any meeting of the minds, as reflected in the following exchange:

Q: Did you ever tell the FBI that he said you can either get a DUI or you can follow me or something to that, of that nature?
A: Yes, I did.
Q: Why did you tell her that?
A: I didn’t, I don’t think that was exactly what I said. Basically, I felt that everybody would be on his side — I didn’t know what I felt — I was being asked to do.
Q: Did he say that?
A: No. He didn’t. But who was going to believe me over a police officer.

Later, on cross-examination, A.S. testified as follows:

Q: He never suggested he was going to arrest you for DUI?
A: No.
Q: He never said anything about along the lines of DUI, the entire encounter, did he?
A: No.
Q: It was never any quid quo pro [sic] that he wouldn’t arrest you if you come with me, was there?
A: No.

The State was thus unable to show any meeting of the minds. At best, the prosecution only showed that in the mind of A.S., she thought that Castillo would arrest or ticket her if she did not have intercourse with him. But in the absence of any spoken understanding, Castillo could simply have thought that A.S. followed him voluntarily.

III. Official Misconduct

We find no merit in Castillo’s argument that the trial court also erred in not granting a judgment of acquittal on the charge of official misconduct. Castillo acknowledged that the daily activity report he prepared contained a few errors, but claimed that they had been mistakes. All the mistakes, of course, occurred around the time he was with A.S. The jury could reasonably reject his explanation. We thus conclude that after all conflicts in the evidence and all reasonable inferences have been resolved in favor of the verdict, there is substantial, competent evidence to support the verdict and judgment. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981).

IV. Conclusion

We reverse the conviction and sentence for unlawful compensation as charged in count I and affirm the conviction for official misconduct as charged in count II. Because we are reversing the conviction on count I, we need not reach Castillo’s claim of error on the sentencing guideline score-sheet.

Reversed in part, affirmed in part, and remanded.


author: SCHWARTZ, Chief Judge.

text:
    Herbert WILLIAMS, Wilma Misla, Luz Ovalles and Luciano Morel, Appellants, v. POTAMKIN MOTOR CARS, INC., et al., Hallett Pontiac-GMC Truck, Inc., Kelly Chevrolet, Inc., Smith/Florida Group, LLC d/b/a Saturn of North Dade and JM Pontiac, Inc. d/b/a Hollywood Pontiac, Inc., Jointly and severally, Appellees. Herbert Williams, Wilma Misla, Luz Ovalles and Luciano Morel, Appellants, v. General Motors Corporation, Appellee.
    Nos. 3D01-1900, 3D01-1293.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Quinn Serralta & Quinn; Philip D. Parrish, for appellants.
    Carlton Fields and Benjamine Reid and Jeffrey A. Cohen, Miami; Adams & Quinton and Kenneth L. Paretti; Wicker, Smith, O’Hara, McCoy, Graham & Ford and Michele I. Nelson (West Palm Beach); Ritter, Chusid, Bivona & Cohen and Allison L. Kay and Mitchell R. Katz (Boca Raton), for appellees.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   SCHWARTZ, Chief Judge.

The plaintiffs appeal from judgments below dismissing their attempted class action complaint alleging violations of the resale, or “laundered lemon,” section of the Florida Lemon Law, section 681.114(2), Florida Statutes (2002). We affirm on the ground that the pleadings reveal on their face, see General Motors Acceptance Corp. v. Thomberry, 629 So.2d 292 (Fla. 3d DCA 1993), that the statute of limitations bars the action as a matter of law.

Specifically, the action was brought beyond the three-year limitations period after the delivery of the motor vehicle in question to the respective plaintiff provided by section 681.112(2), Florida Statutes (2002)(“An action brought under this chapter must be commenced within 1 year after the expiration of the Lemon Law rights period .... ”), which incorporates section 681.102(10), Florida Statutes (Supp. Pamphlet 2003)(“ ‘Lemon Law rights period’ means the period ending 24 months after the date of the original delivery of a motor vehicle to a consumer.”).

Moreover, contrary to the plaintiffs’ contention, because it does not so provide, the limitations period was not “tolled” until the discovery of the alleged violations, Davis v. Monahan, 832 So.2d 708 (Fla.2002); Mercedes Benz of North America, Inc. v. Kling, 549 So.2d 795 (Fla. 5th DCA 1989), review denied, 560 So.2d 233 (Fla.1990), and the doctrine of “equitable estoppel” cannot apply because there is no suggestion of post-accrual misconduct by the defendants. See Florida Dep’t of Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091 (Fla.2002); Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001).

Affirmed.

      . 681.114 Resale of returned vehicles.—
      (1) A manufacturer who accepts the return of a motor vehicle by reason of a settlement, determination, or decision pursuant to this chapter shall notify the department and report the vehicle identification number of that motor vehicle within 10 days after such acceptance, transfer, or disposal of the vehicle, whichever occurs later.
      (2) A person shall not knowingly lease, sell at wholesale or retail, or transfer a title to a motor vehicle returned by reason of a settlement, determination, or decision pursuant to this chapter or similar statute of another state unless the nature of the nonconformity is clearly and conspicuously disclosed to the prospective transferee, lessee, or buyer, and the manufacturer warrants to correct such nonconformity for a term of 1 year or 12,000 miles, whichever occurs first. The Department of Legal Affairs shall prescribe by rule the form, content, and procedure pertaining to such disclosure statement.
      (3) As used in this section, the term "settlement” means an agreement entered into between a manufacturer and consumer that occurs after a dispute is submitted to a procedure or program or is approved for arbitration before the board.

      . This holding pretermits discussion or ruling on the other issues presented.

      . The complaint was filed on May 26, 2000. The plaintiff Williams purchased his allegedly unlaundered lemon in early 1996; Leopold Griffith, in late 1995; Wilma Misla, in early 1995; Luz Ovalles, in early 1996; and Luciano Morel, in early 1995.

      . "This chapter,” Ch. 88-95, Laws of Fla., includes section 681.112(2), which is § 10, at 442, Laws of Fla. and the resale provision sued upon, section 681.114(2), which is § 12, at 443, Laws of Fla.

      .Because "a” means any, Izadi v. Machado Ford, Inc., 550 So.2d 1135, 1138, n. 3 (Fla. 3d DCA 1989), and section 681.102(4) provides that:
      "Consumer” means the purchaser, other than for purposes of resale, or the lessee, of a motor vehicle primarily used for personal, family, or household purposes[,]
      it is clear that the "Lemon Law rights period” begins from the "original” delivery to the particular consumer involved, that is, either the purchaser of a new vehicle suing under the Lemon Law, section 681.112, or, as here, the purchaser at the re sale provided by section 681.114.
      In context, then, the difficult word "original” — since it modifies, not "consumer,” but "delivery” — must refer to the first or "original” transfer of a new defective vehicle to the purchaser, rather than any of the successive redelivery-after-attempted-repairs which the statute requires to try to sweeten the Lemon. See § 681.104, Fla. Stat. (2002). The alternative explanation floated at the oral argument that the statute runs only once from the "orig.inal” sale of the vehicle, would mean that, as to resales, which, as in some of the present cases, may occur more than three years after the "original” one, the statute of limitations would have run even before the resale took place. This view must be rejected under the doctrine that a statutory interpretation which leads to absurd results is unacceptable. In sum, we believe that the three-year statute runs as to the principal provisions of the Lemon Law from the original delivery, and, as to the resale provisions, from the resale itself.


text:
    STATE of Florida, Appellant, v. Diane FRATELLO and James Otte, Appellees.
    No. 5D02-503.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Rehearing Denied Jan. 28, 2003.

      Richard E. Doran, Attorney General, Tallahassee and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
    Gerard F. Keating, Daytona Beach, for Appellee James Otte.
    No Appearance for Appellee Diane Fra-tello.
   PALMER, J.

The State appeals the order entered by the trial court granting appellee James Otte’s motion to suppress intercepts obtained by the police pursuant to a wiretap of his home phone. Concluding that the trial court properly determined that the wiretap intercepts were unauthorized under federal or state law, we affirm.

Otte was charged with racketeering, conspiracy to commit racketeering, and deriving support from prostitution. The information alleged that Otte was employed by, or associated with, a business operating under the name of Elegant Encounters. After the charges were filed, the State filed an application and affidavit for an order authorizing a wiretap on a phone located in Otte’s home. The affidavit alleged that probable cause existed to believe that Otte’s business constituted a criminal enterprise for the unlawful receipt of proceeds derived directly or indirectly from a pattern of racketeering activity through the illegal management of an escort service that provided prostitution services. The application further alleged that Otte’s prostitution and money laundering activities constituted violations of Florida’s RICO statute.

Upon review, the trial court granted the State’s application, finding that probable cause existed to believe Otte was violating Florida’s RICO statute by virtue of his actions which included the management and direction of prostitutes and the clients of prostitutes. The police thereafter executed the wiretap and obtained oral intercepts from Otte’s home phone.

Otte subsequently filed a motion to suppress the oral intercepts, as well as all fruits derived therefrom, as being illegally obtained. After conducting an evidentiary hearing thereon, the trial court granted the motion concluding that, as a matter of law, the police lacked the legal authority to obtain a wiretap in order to investigate the instant charges since the charges were all centered around alleged prostitution activities.

The State argues that the trial court erred in concluding that federal and state law prohibits the police from obtaining wiretap authorization for RICO prosecutions which are based upon the underlying predicate offense of prostitution. We disagree.

In State v. Rivers, 660 So.2d 1360 (Fla.1995), our supreme court explained the dynamics of the law relating to wiretaps, and the interrelationship between state and federal laws in this area. The Rivers court explained that by enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Congress enacted legislation which authorizes the interception of private wire and oral communications in circumstances where federal or state law enforcement officials are investigating certain specified crimes provided that they receive prior judicial authorization. To that end, the federal wiretap statute authorizes wiretap interception by law enforcement officials for purposes of investigating:

(1) certain enumerated offenses including murder, kidnaping, gambling, robbery, bribery, extortion, and dealing in narcotic drugs, marihuana, or other dangerous drugs; and
(2) other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year.

By enacting this legislation, Congress specifically preempted the field of interception of wire communications under its power to regulate interstate communications, yet at the same time authorized the individual states to adopt their own wiretap statutes so long as they were not less restrictive than the federal legislation. Pursuant to this grant of authority, the Florida Legislature enacted a wiretap statute, section 934.07 of the Florida Statutes (1999), which authorizes the interception of wire, oral, and electronic communications as follows:

934.07. Authorization for interception of wire, oral, or electronic communications
The Governor, the Attorney General, the statewide prosecutor, or any state attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with ss. 934.03-934.09 an order authorizing or approving the interception of, wire, oral, or electronic communications by the Department of Law Enforcement or any law enforcement agency as defined in s. 934.02 having responsibility for the investigation of the offense as to which the application is made when such interception may provide or has provided evidence of the commission of the offense of murder, kidnaping, arson, gambling, robbery, burglary, theft, dealing in stolen property, prostitution, criminal usury, bribery, or extortion; any felony violation of ss. 790.161-790.166, inclusive; any violation of chapter 893; any violation of the provisions of the Florida Anti-Fencing Act; any violation of chapter 895 [RICO]; any violation of chapter 896; any violation of chapter 815; any violation of chapter 847; any violation of s. 827.071; any violation of s. 944.40; or any conspiracy or solicitation to commit any violation of the laws of this state relating to the crimes specifically enumerated above.

§ 934.07, Fla. Stat. (1999)(emphasis added). Notably, the 1999 version of the wiretap statute specifically authorized wiretaps for investigations involving prostitution offenses. However, such authorization was successfully challenged as being beyond the scope of the federal mandate by the defendants in the Rivers case.

In Rivers, our supreme court reviewed a wiretap order that was issued during in the investigation of an alleged prostitution ring in Orlando. The defendants were subsequently charged with committing several crimes including prostitution, directing or transporting for the purpose of prostitution, and deriving support from the proceeds of prostitution. However, they moved to suppress the wiretap interceptions, arguing that the wiretap order was illegal because it was premised upon allegations of prostitution, a crime which was authorized under the Florida statute but one which was not specifically authorized under the federal statute. Upon review, the trial court granted the defendants’ motion, concluding that “to the extent that [section] 934.07 [of the Florida Statutes] permits the authorization of wiretaps to investigate prostitution not involving the use of force or any danger to life, limb, or property, or interstate commerce, it contravenes the requirements of Title 18 U.S.C. Section 2516(2).” The Fifth District affirmed the trial court’s ruling and the matter proceeded on to the supreme court wherein the suppression order was again affirmed:

While Florida’s counterpart is quite similar to the federal statute, it enumerates a more expansive list of offenses where wiretaps are authorized, including prostitution. § 934.07, Fla. Stat. (1991). Thus, the district court correctly identified the key issue as whether prostitution falls within the “dangerous to life” general category of the federal statute. Courts in several other jurisdictions have concluded that prostitution is not a crime dangerous to life, limb, or property under the federal wiretap statute. See People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897 (1980); United States v. Millstone Enters., Inc., 684 F.Supp. 867, 870 (W.D.Pa.), rev’d on other grounds, 864 F.2d 21 (3d Cir.1988); but see Commonwealth v. Birdseye, 432 Pa.Super. 167, 637 A.2d 1036, 1040-41 (finding that prostitution is dangerous to life based upon the threat of AIDS), review granted, 538 Pa. 664, 649 A.2d 667 (1994).
The State argues that prostitution is dangerous to life because the virus that causes AIDS is sexually transmitted. Thus, the State contends, prostitution-related felonies such as deriving support from the proceeds of prostitution meet both prongs of the general category: dangerous to life and punishable by imprisonment for more than one year. Unquestionably, the spread of the virus that causes AIDS is a great health concern. However, this alone does not make prostitution intrinsically “dangerous to life.” Moreover, Congress specifically provided that the “dangerous to life” general category “is intended to exclude such offenses as fornication and adultery, which do not involve danger to life, limb, or property.”
While we find that prostitution in general is not “dangerous to life,” we agree with the Millstone and Shapiro courts that wiretaps could be authorized in conformance with the federal statute where the allegations of prostitution-related offenses involve violence or the threat of violence. See Millstone, 684 F.Supp. at 870-71; Shapiro, 431 N.Y.S.2d at 431-33, 409 N.E.2d at 907-08. However, under the circumstances of this case, section 934.07 cannot be read as authorizing wiretaps to investigate nonviolent prostitution-related offenses without contravening the requirements of 18 U.S.C. § 2516(2). Thus, we agree with the district court that the trial court properly suppressed the evidence obtained from the wiretaps in this case.

Rivers, 660 So.2d at 1362-63.

Here, no allegation was made that Otte’s prostitution-related offenses involved any violence or the threat of violence and thus, in granting Otte’s motion to suppress, the trial court ruled that the interception of communications based on racketeering offenses with predicates of nonviolent prostitution-related acts contravenes federal law. The State challenges this ruling, arguing that the wiretap was permitted under federal law because racketeering is a felony which, by its nature, is necessarily dangerous to life, limb, or property because it involves claims of organized criminal activity and therefore falls within the “dangerous to life” general category of the federal statute. We disagree.

Since wiretap statutes are exceptions to the federal and state constitutional rights to privacy, they must be strictly construed and narrowly applied. State v. Aurilio, 366 So.2d 71 (Fla. 4th DCA 1978). In reaching the conclusion that the wiretap was not authorized under federal law, the trial court properly relied upon the decision in Rivers, and the decision in United States v. Millstone Enterprises, Inc., 684 F.Supp. 867, 871 (W.D.Pa.), rev’d on other grounds, 864 F.2d 21 (3d Cir.1988), which held:

We do not think that an alleged corrupt organization’s violation, where a non-violent prostitution-related offense is the underlying “racketeering activity,” may be permitted to bootstrap prostitution-related conduct into the category of crimes dangerous to life or limb.

Accordingly, we affirm the trial court’s suppression order.

AFFIRMED.

PETERSON and PLEUS, JJ., concur.

      . The instant appeal is moot as to appellee Diane Fratello because Fratello entered a plea in the underlying criminal prosecution and was sentenced accordingly.

      . See § 895.03(3) Fla. Stat. (1999) (setting forth the activities which are prohibited under Florida’s Racketeer Influenced and Corrupt Organization Act).

      . The 1999 version of the statute applies in this case since Otte's criminal offenses were alleged to have occurred starting in January 1, 1999.


author: SAWAYA, J.

text:
    J.W., Mother of S.L. and J.W., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D01-3634.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Rehearing Denied Jan. 27, 2003.

      R. Mitchell Prugh, Melrose, for Appellant.
    Jodi Seitlin, Assistant District Legal Counsel, Department of Children and Families, St. Augustine, for Appellee.
   SAWAYA, J.

Appellant appeals the final order terminating her parental rights to her children, S.L. and J.W. Appellant asserts that the trial court erred by denying her motion to continue where she was advised by the attorney for the Department of Children and Families (the Department) that the adjudicatory hearing would be continued on the Department’s motion. We disagree and, therefore, affirm.

The Department filed a petition seeking to terminate Appellant’s parental rights, alleging that Appellant failed to complete her ease plan and continued to abandon her children, as defined in paragraph 39.806(l)(e), Florida Statutes (2001), and abuse them, as provided in paragraph 39.806(l)(f), Florida Statues (2001). Appellant, a resident of Indiana, was served while in Florida and given notice of the advisory hearing. At the advisory hearing, Appellant signed a notice of the adjudicatory hearing, which was to be held on September 17, 2001.

On Friday, September 14, 2001, the Department filed a motion to continue because its chief witness was stranded in London, England, as a result of the September 11, 2001, terrorist attacks. The trial judge denied the Department’s motion, and the adjudicatory hearing was held on Monday, September 17, 2001.

At the hearing, the Department requested that Appellant be defaulted as a result of her failure to appear. Appellant’s counsel requested a continuance based on a conversation counsel had with Appellant on Friday, September 14, 2001, during which Appellant indicated she was aware the Department had filed a motion to continue. Counsel then stated that counsel advised Appellant that the court had not continued the hearing and Appellant’s attendance was required. The court denied the motion and proceeded to enter a default judgment against Appellant. The court issued a written order terminating Appellant’s parental rights based upon paragraphs 39.806(l)(c), (l)(e), and (l)(f), Florida Statutes (2001).

Appellant argues that the trial court erred in denying her motion to continue. A court’s decision to grant or deny a continuance is reviewed on appeal using an abuse of discretion standard. Scott v. State, 717 So.2d 908 (Fla.), cert. denied, 525 U.S. 972, 119 S.Ct. 425, 142 L.Ed.2d 346 (1998); Gore v. State, 599 So.2d 978 (Fla.1992); see also C.J. v. Department of Children & Families, 756 So.2d 1108 (Fla. 3d DCA 2000). In Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), the Florida Supreme Court set forth the standard of review to be employed by an appellate court when reviewing a discretionary act, stating,

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.

In the instant case, Appellant claims that the Department’s attorney told her not to come to Florida for the adjudicatory hearing because the ease would be continued. However, this is clearly contrary to the statements made by Appellant’s counsel when moving to continue the hearing. Counsel stated that, during a phone conversation with Appellant on Friday September 14, 2001, counsel advised Appellant that the court had not ruled on the Department’s motion for continuance and Appellant needed to attend the hearing. Moreover, Appellant merely asserts that the Department’s counsel informed her that the Department was requesting a continuance, not that the judge had ordered a continuance. Assuming, arguendo, that Appellant’s version of events was true, the trial court would not have abused its discretion because reasonable men could differ as to the propriety of the trial court’s denial of the continuance. Hence, it cannot be said that the trial court erred.

Accordingly, we affirm the final order terminating Appellant’s parental rights to S.L. and J.W.

AFFIRMED.

THOMPSON, C.J. and HARRIS, J., concur.

      . As a collateral matter, Appellant also claims that the trial court erred in terminating Appellant's parental rights based on a violation of paragraph 39.806(l)(c), Florida Statutes (2001), where such a violation was not averred in the petition and the Department did not seek to amend the petition to conform to the evidence. This issue is moot because the trial court also terminated her rights based upon paragraphs 39.806(l)(e) and (l)(f), both of which were cited in the petition. Therefore, even if it was error for the judge to terminate Appellant’s rights based upon paragraph 39.806(l)(c), it would not change the outcome.