text:
    Thomas SKIPPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3675.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Thomas Skipper, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice to appellant filing a petition for belated appeal, pursuant to rule 9.141(c), Florida Rules of Appellate Procedure, as to the September 7, 2001 order denying a prior post-conviction motion.

POLEN, C.J., STONE and STEVENSON, JJ„ concur-.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard MIRALLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3979.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Bradley M. Collins, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

The defendant, Richard Miralles appeals an order summarily denying his motion for post-conviction relief in which he seeks to withdraw his plea in an earlier conviction. We affirm the order below without prejudice.

The allegation that his attorney explicitly assured him in 1996 that his nolo contendere plea would not preclude his future occupational licensing by the State as a vehicle recovery agent (i.e., one licensed to repossess vehicles) presents a claim of affirmative misadvice, which this Court has determined to be reviewable under rule 3.850. See Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002); Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000). A defendant may be entitled to withdraw a plea entered in reliance on affirmative misadvice which results in prejudice even if the misadvice concerns collateral consequences. Kelley v. State, 821 So.2d 1255 (Fla. 4th DCA 2002). Notwithstanding the expiration of the two year filing deadline, an allegation of affirmative misadvice is reviewable under Rule 3.850 if a claim is filed within two years of discovering counsel’s misadvice. See Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002) and Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002).

The defendant does not allege in his motion when he discovered counsel’s affirmative misadvice. He claims to have been advised his felony convictions bar him from maintaining the license, and had adjudication been withheld in his 1996 case, he would otherwise be eligible for licensing. His claim is legally insufficient in that it cannot be determined if he filed his motion within two years of discovering counsel’s alleged affirmative misadvice. Accordingly, we affirm the order denying the motion without prejudice to his refiling of a legally sufficient motion within thirty days alleging when the defendant first learned that he received affirmative misad-vice from counsel.

KLEIN, GROSS and MAY, JJ„ concur.


author: PER CURIAM. GROSS, J.,

text:
    Phillip E. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4241.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Phillip E. Williams, Jr., Raiford, pro se.
    Charlie Crist, Attorney General, Tallahassee and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Phillip Williams appeals an order denying his motion for post-conviction relief. We affirm as to all issues but one.

After a jury trial, appellant was convicted of sexual battery and false imprisonment. He was sentenced to twenty-two years and three months, the maximum under the sentencing guidelines. His only point on appeal concerned whether the trial court erred in failing to properly take into consideration certain mitigating circumstances in imposing sentence. This court per curiam affirmed. See Williams v. State, 753 So.2d 144 (Fla. 4th DCA 2000).

In his post-conviction relief motion, appellant contends that the state made a plea offer to him for battery with a one-year sentence, that his counsel failed to convey this offer to him, that he would have accepted it, and that acceptance of the plea offer would have resulted in a sentence less than the one he received. Appellant states a prima facie case for ineffective assistance of counsel under Cottle v. State, 733 So.2d 963 (Fla.1999). See Smith v. State, 825 So.2d 1012 (Fla. 4th DCA 2002).

We affirm in part, reverse in part, and remand for attachment of portions of the record conclusively establishing that appellant is not entitled to relief or for an evidentiary hearing concerning the above referenced claim.

POLEN, C.J., and MAY, J. concur.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur for the reasons stated in my concurring opinion in Garcia v. State, 736 So.2d 89, 90-91 (Fla. 4th DCA 1999).


author: COVINGTON, Judge.

text:
    Paul CLEMENTS, Ph.D., Appellant, v. HILLSBOROUGH COUNTY HEALTH DEPARTMENT and Douglas Holt, M.D., Appellees.
    No. 2D02-1309.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
    Thomas H. McGowan of Thomas H. McGowan, P.A., St. Petersburg, for Appellant.
    Jeffrey M. Goodis, Chandra L. Miller, and Heather C. Goodis of Thompson, Goo-dis, Thompson, Groseclose, and Richardson, P.A., St. Petersburg, for Appellee Health Department.
    No appearance for Appellee Douglas Holt, M.D.
   COVINGTON, Judge.

Paul Clements, formerly employed as a psychologist with the Florida Department of Health/Hillsborough County Health Department, appeals the dismissal with prejudice of his amended complaint. While we affirm without comment the dismissal of Clements’ invasion of privacy claim (Count I), wrongful discharge claim (Count II), and declaratory action claim (Count V), we reverse the dismissal with prejudice of the remainder of Clements’ claims.

“Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion.” Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998). In his motion for rehearing, Clements submits that he can make such allegations. On remand, Clements should be given one additional chance to amend his complaint in an effort to articulate a sustainable cause of action.

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

CASANUEVA and SALCINES, JJ., concur.


text:
    Jose ACEVEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-43.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    Jose Acevedo, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hollis v. State, 763 So.2d 1155 (Fla. 4th DCA 2000); Heggan v. State, 745 So.2d 1066 (Fla. 3d DCA 1999). Compare Pitts v. State, 766 So.2d 1191 (Fla. 5th DCA 2000).

THOMPSON, C.J., SHARP, W., and GRIFFIN, JJ., concur.


text:
    Eric LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3946.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    Eric Lewis, Bonifay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Fla. R.Crim. P. 3.850(c). See Strickland v. Washington, 466 U.S. 668, 104 S;Ct. 2052, 80 L.Ed.2d 674 (1984); Turner v. Dugger, 614 So.2d 1075 (Fla.1992).

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


text:
    Jason DENSBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2557.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So,2d 321 (Fla.1987).

THOMPSON, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Fallon Anthony NALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1430.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See, Jane v. State, 362 So.2d 1005 (Fla. 4th DCA 1978).

AFFIRMED.

PETERSON, MONACO and PLEUS, JJ., concur.


text:
    Milton BLOOM, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-878.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Winther v. State, 812 So.2d 527 (Fla. 4th DCA 2002); Patterson v. State, 796 So.2d 572 (Fla. 2d DCA 2001).

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


text:
    Robert Earl TIPPENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-286.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    Robert E. Tippen, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See McCord v. State, 795 So.2d 101 (Fla. 5th DCA), rev. denied, 797 So.2d 586 (Fla.2001), cert. denied, 535 U.S. 1020, 122 S.Ct. 1612, 152 L.Ed.2d 626 (2002).

SHARP, W., PETERSON and ORFINGER, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Donald Demetrius JENKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1158.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

The sole point raised by the defendant on this appeal from a second degree murder conviction challenges the admission of the following statement of the investigating officer:

When I saw [the defendant], I thought it was supposedly somebody I had dealt with in the past year as a witness or somebody I just come across in the past during the course of a robbery investigation.

Particularly because the officer later stated that he had been mistaken and that he had not previously known Jenkins at all, we find no error, let alone, as is required because no objection was made below, fundamental error, in this statement. Contrary to the defendant’s argument, there was no harmful implication that Jenkins had even been involved in the prior robbery. See Willis v. State, 669 So.2d 1090 (Fla. 3d DCA 1996); Hardie v. State, 513 So.2d 791 (Fla. 4th DCA 1987), review denied, 520 So.2d 586 (Fla.1988); Periu v. State, 490 So.2d 1327 (Fla. 3d DCA 1986). See also Archer v. State, 673 So.2d 17 (Fla.1996)(fundamental error), cert. denied, 519 U.S. 876, 117 S.Ct. 197, 136 L.Ed.2d 134 (1996).

Affirmed.


text:
    Humberto PERDOMO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-91.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Alfonso Oviedo-Reyes, for appellant.
    Charlie Crist, Attorney General, for ap-pellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Defendant appeals the order denying his motion for relief under Florida Rule of Criminal Procedure 3.850. He cites to Peart v. State, 756 So.2d 42 (Fla.2000), and claims he is about to be deported based on a 1984 plea, where he was not informed of the immigration consequences of that plea. As previously observed, post-conviction relief is not available for the failure to advise a defendant of the immigration consequences of entering a plea prior to the time that the court was placed under a duty to render such an advisement. See Orellanes v. State, 790 So.2d 613 (Fla. 3d DCA 2001); State v. Paniagua, 789 So.2d 1199 (Fla. 3d DCA 2001). Here, by defendant’s own admission, the plea at issue occurred several years before the rule providing for notification of deportation consequences. Accordingly, the order under review is affirmed.


author: DELL, JOHN W, Senior Judge.

text:
    Jacqueline HUTSON and Ruthe Blecher, Appellants, v. REXALL SUNDOWN, INC. and John Does 1-10, individually and trading as Sundown, Inc., Appellees.
    No. 4D02-687.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Scott Shepherd of Shepherd, Finkelman, Miller & Shah, LLC, Ft. Lauderdale and Donna Siegel Moffa, Trujillo, Rodriguez & Richards, LLC, Haddonfield, NJ, for appellants.
    Gerry S. Gibson of Steel, Hector & Davis LLP, West Palm Beach, for appel-lee.
   DELL, JOHN W, Senior Judge.

Jacqueline Hutson and Ruth Blecher appeal from the trial court’s order denying their motion to certify a nationwide class action against appellee, Rexall Sundown, Inc. We affirm without prejudice to appellants seeking a limited class in accordance with this opinion.

Appellant Hutson filed an amended complaint for damages and other relief on behalf of herself and a nationwide class of purchasers of appellee’s products known as “Calcium 900” and “Calcium 1200.” She alleged that appellee’s labelling and point-of-purchase advertising constituted deceptive trade practices under the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, part II, Florida Statutes (FDUTPA), and that these practices resulted in unjust enrichment to appellee.

She further alleged that appellee’s labels and point of purchase marketing represented to consumers that each Calcium 900 and Calcium 1200 tablet [softgel] contained 900 and 1200 milligrams of calcium, respectively, when in fact, each softgel contained only 300 milligrams and 600 milligrams of calcium, respectively. Hutson claimed that because each softgel contained less calcium than the amount represented, the cost of a daily dose of calcium was more than represented, and that she did not receive the amount of calcium ap-pellee led her to believe she was receiving. In the motion for class certification and to add appellant Blecher as a party plaintiff, it is alleged that appellant Blecher also bought Calcium 900 and took one softgel per day thinking she was getting 900 milligrams of calcium.

Rexall denied the allegations and raised numerous defenses, including that the labels for each of the products at issue had usage instructions that set forth directions for use, and the number of softgels per serving. At the certification hearing, ap-pellee argued, among other things, that appellants, having purchased only Calcium 900, could not represent purchasers of Calcium 1200; that appellants could not represent those persons who were not deceived by the point of purchase advertising; that the FDUTPA should not be applied to claims of non-Florida residents; and that the motion to certify a national class action should be denied.

The trial court found that appellants failed to satisfy the typicality, adequacy, predominance, superiority, and manageability requirements of rule 1.220(a) and (b), Florida Rules of Civil Procedure, and denied the motion for class certification. The trial court granted the motion to join appellant Blecher as a party plaintiff.

Our standard for review is whether the trial court abused its discretion when it denied appellants’ motion to certify a national class action (excluding certain residents of New Jersey) of all of those persons who purchased Rexall Sundown’s Calcium 900 and Calcium 1200 within the six years prior to December 3, 1998. See Renaissance Cruises, Inc. v. Glassman, 738 So.2d 436 (Fla. 4th DCA 1999); Jenne v. Solomos, 707 So.2d 1203 (Fla. 4th DCA 1998).

The elements of a class action claim or defense are set forth in rule 1.220 Florida Rules of Civil Procedure. Under rule 1.220(a), a party must establish that: “the members of the class are so numerous that separate joinder of each member is impracticable” (numerosity); “the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class” (commonality); “the- claim or defense of the representative party is typical of the claim or defense of each member of the class” (typicality); and that “the representative party can fairly and adequately protect and represent the interests of each member of the class” (adequacy).

In addition to the requirements of rule 1.220(a), a party seeking class certification must also establish one of the three alternative requirements of rule 1.220(b). Here, appellants sought class certification pursuant to rule 1.220(b)(3), which requires that: “questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class” (predominance); and “class representation is superior to other available methods for the fair and efficient adjudication of the controversy” (superiority). Rule 1.220(b)(3) also provides that conclusions as to predominance and superiority “shall be derived from consideration of all relevant facts and circumstances, including ... (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class” (manageability).

Typicality

Appellants contend that the trial court abused its discretion when it concluded that they failed to satisfy the typicality and adequacy requirements of rule 1.220(a). They cite Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA 2000), rev. denied, 794 So.2d 605 (Fla.2001) in support of their argument that the trial court mistakenly applied a reliance standard when it determined that appellants failed to establish typicality.

In Davis, Powertel sold cellular telephones without disclosing to the consumers that the telephones had been programed to work only with its wireless communications service. The plaintiffs brought an action pursuant to FDUPTA on behalf of a class of those persons who had purchased the modified phones. The trial court denied class certification because the plaintiffs could not show that all of the purchasers had relied on Powertel’s alleged failure to disclose the phones had been modified. The district court reversed, holding that:

All of the claims share one essential common feature; that is, the alleged defective [sic] practice reduced the value of the telephones. Because proof of reliance is unnecessary, the plaintiffs’ inability to show reliance in every case cannot be used to justify a finding that individual issues will predominate over the class claims. Issues pertaining to the proof of the alleged deceptive practice and issues relating to causation and damages will be common to all members of the class.

Id. at 975.

The facts of this case are distinguishable from those considered in Davis. Here, the trial court did not apply a reliance standard in determining typicality but rather found that those, persons who read the labels could not claim damages because they had actual knowledge of the specific number of softgels needed to be taken per serving. The trial court concluded that the claims of those persons who bought the softgels without reading the labels differed from those persons who had actual knowledge of the amount of calcium in each softgel. See General Motors Acceptance Corp. v. Laesser, 718 So.2d 276, 277 (Fla. 4th DCA 1998)(revers-ing a verdict in favor of the plaintiff in a FDUPTA claim upon concluding that “to be actionable an unfair or deceptive trade practice must be the cause of loss or damage to a consumer”).

Based on the facts of this case, a person who had actual knowledge of the number of softgels needed to be taken per serving would not have suffered any damages as a result of the alleged deceptive trade practice and, therefore, would have no cause of action. Consequently, we hold that the trial court did not abuse its discretion when it concluded that appellants failed to satisfy the typicality requirement of the rule. The class appellants sought to represent included both persons who may have a claim under FDUPTA and persons who have no claim under FDUPTA because they have suffered no damage as a result of appellee’s allegedly deceptive practices.

Adequacy

Appellants challenge the trial court’s adequacy determination arguing that the trial court abused its discretion when it determined that appellants could not maintain a class action on behalf of those persons who had purchased Calcium 1200 because appellants had only purchased Calcium 900. Appellants maintain that it is irrelevant that neither of them had purchased Calcium 1200 since the purchasers of both Calcium 900 and Calcium 1200 were victims of an alleged common deceptive marketing scheme. We disagree. Rule 1.220 does not empower appellants to bring a class action on behalf of the users of Calcium 1200 because appellants could not have maintained such an action individually.

Factual Issues Predominate & Manageability

We also disagree with appellants’ contention that the trial court abused its discretion when it concluded that individual factual issues predominate that preclude class certification. The trial court found that appellants’ claims under FDUPTA and for unjust enrichment depend upon resolutions of predominant individualized fact issues. The record supports the trial court’s conclusion that “an individualized fact inquiry must be made for each class member to determine if he or she read the label and its usage instructions prior to purchase, or otherwise knew how much elemental calcium was contained in each softgel for the product purchased.... ” Because the proposed class includes consumers who had actual knowledge of the amount of calcium contained in each soft-gel, we hold that the trial court correctly concluded that a class action would be unmanageable because individual factual issues would predominate.

Questions of Law Predominate

Appellants next contend that the trial court abused its discretion when it concluded that common questions of law would not predominate in a nationwide class action because the laws of 49 other states would apply to the claims of nonresidents. Appellants cite Renaissance Cruises, Inc. v. Glassman, 738 So.2d 436 (Fla. 4th DCA 1999), and argue that FDUTPA applies to non-residents and, therefore, common questions of law would predominate in a nationwide class action. In Renaissance, the cruise line challenged a non-final order certifying a nationwide class of cruise travelers who claimed that Renaissance had engaged in a deceptive trade practice by charging a port charge in addition to the cruise price. Renaissance claimed “that there were insufficient contacts with Florida to warrant application of Florida law to the entire class so that common questions of law and fact would predominate over individual claims.” 738 So.2d at 439. This court rejected Renaissance’s argument and determined that there were sufficient contacts with Florida to warrant application of Florida law to the entire class. The contacts considered in Renaissance included the fact that the cruise ticket marketing information originated in Broward county and the tickets contained a forum selection clause that provided that Broward county courts would .have jurisdiction over disputes. Renaissance is also distinguishable from the facts of this case because, as found by the trial court, “the common injury occurred in Florida.”

Appellants cite Millennium, Communications & Fulfillment, Inc. v. Office of the Attorney General, 761 So.2d 1256 (Fla. 3d DCA 2000), in support of their argument that Renaissance superseded this court’s decision in Coastal Physician Services of Broward County, Inc. v. Ortiz, 764 So.2d 7 (Fla. 4th DCA 1999). We disagree. In Coastal, this court addressed a discovery issue as it applied to a class action for violation of FDUPTA and the Consumer Protection Act. On rehearing, this court limited discovery to Florida residents and stated that “we conclude that these acts are for the protection of in-state consumers from either in-state or out-of-state debt collectors. See, e.g., §§ 501.202(303); 559.55(6), Fla. Stat. (1997). Other states can protect their own residents as Florida itself does with regard to out-of-state collectors.” Id. at 7. As distinguished from Renaissance, the injuries claimed in Coastal occurred both within the state of Florida and outside of the state of Florida. See also Oce Printing Sys. USA, Inc. v. Mailers Data Serv., Inc., 760 So.2d 1037 (Fla. 2d DCA 2000), and Montgomery v. New Piper Aircraft, Inc., 209 F.R.D. 221 (S.D.Fla.2002).

The facts of this case are similar to those considered in Stone v. CompuServe Interactive Services, Inc., 804 So.2d 383 (Fla. 4th DCA 2001). In Stone, the plaintiffs, in a breach of contract action, sought certification of a nationwide class of persons who failed to receive, or received untimely, a rebate offered by CompuServe in nationwide advertising. This court held that the contracts were completed when the individual purchasers bought their computers, and the contract law of the state where that occurred would properly apply. This court distinguished Renaissance, concluding that in Renaissance, there were sufficient contacts with Florida to justify the application of Florida substantive law to a nationwide class and that “a single statute [FDUPTA] applied to all claims so that there was a predominance of common legal issues.” Stone, 804 So.2d at 389.

Here, the alleged deceptive unfair trade practice involved the nationwide sale of products with a misleading label and with misleading point of purchase marketing techniques. The claims asserted in the national class action occurred both in the state of Florida and in 49 other states. The alleged wrong was committed, and the damage done, at the site of the sale of appellees’ products; that is, in the various states where members of the pm-ported class made their purchases. We hold that the trial court correctly concluded that common issues of law do not predominate because the claims of non-resident consumers would require the application of consumer protection laws from each of the states where the deceptive trade practice occurred and the non-resident claimants suffered injury.

Accordingly, we affirm the trial court’s denial of appellants’ motion to certify a nationwide class action of all purchasers of Rexall Sundown Calcium 900 and Calcium 1200 during the six years prior to December 3, 1998. Our affirmance is without prejudice to appellants seeking certification in the trial court of a class limited to Florida consumers and defined in a manner consistent with this opinion.

AFFIRMED.

POLEN, C.J. and WARNER, J., concur.

      . The proposed nationwide class excludes certain residents of New Jersey. A New Jersey court denied a motion to certify a similar nationwide class action against appellee. The New Jersey court did, however, certify a class limited to residents of New Jersey who purchased Calcium 900 and Calcium 1200 believing that each softgel capsule contained 900 milligrams and 1200 milligrams of calcium respectively.

      . During the period encompassed by this suit, the instructions on the Calcium 900 label stated in part: "SUGGESTED ADULT USAGE: As a dietary supplement, take three (3) softgels daily. SUGGESTED ADULT USAGE PROVIDES: 900 mg. of Liquid Calcium ...”


author: STEVENSON, J.

text:
    Rene GUITTERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4982.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Carey Haughwout, Public Defender, and Nancy B. Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Rene Guitterrez was charged with battery on a law enforcement officer and resisting an officer with violence; the jury convicted him only of battery and resisting an officer without violence. In his sole point on appeal, Guitterrez argues that the trial court fundamentally erred when instructing the jury on the offense of resisting an officer without violence. We disagree and affirm.

On May 14, 2000, Guitterrez was a passenger in a car that was involved in a hit and run accident with another vehicle on Alligator Alley. After the accident, the driver and the two passengers jumped out of the ear and ran into the nearby swamp. Florida Highway Patrol Trooper Richard Nardiello responded to the call just before 2 a.m. and spoke with the victim. A police helicopter was called in to provide lighting from above and Nardiello, along with a couple of K-9 officers, went into the swamp looking for the individuals that ran from the vehicle. The officers found the three men in the swamp, including Guitter-rez, who was hiding in some bushes in deep mud. Guitterrez refused to follow the officers’ directions to come out of the bushes and then ran further into the swamp. Eventually, the officers grabbed Guitterrez. After a brief struggle, and with the assistance of the K-9 dogs, Nar-diello handcuffed Guitterrez, placed him under arrest, and brought him out of the swamp.

Guitterrez testified in his own defense using a Spanish interpreter. Guitterrez related that he and two friends were driving from Naples to Hollywood, Florida. The trio did not leave until about 11 p.m. and, during the drive, Guitterrez fell asleep. According to Guitterrez, at some point his friends woke him up and told him to run. Guitterrez testified that he was unaware of the accident and didn’t know why they were running. Guitterrez stated that he did not know that the officers wanted him to come out, and he did not understand what the officers were trying to say to him. When asked what he thought the police were doing in the swamp at 2 a.m., Guitterrez responded “investigating” or “[ljooking for something due to the car problems.” According to Guitterrez, once confronted by the officers, he only fled further to get away from the dog. Guitterrez stated that he never struck or tried to strike the officer. Rather, according to Guitterrez, the officer attempted to handcuff him and struck him with a flashlight. At that point, the officer fell. After a second dog was released and then retrieved, Guitterrez stated that he was handcuffed.

Guitterrez contends that the trial court’s instruction to the jury that “the arrest constitutes a lawful execution of a legal duty” effectively removed the lawfulness of his arrest, an element of the offense, from the jury. Indeed, Guitterrez is correct that an essential element of the offense of resisting a law enforcement officer without violence is that the arrest must be lawful. See V.L. v. State, 790 So.2d 1140, 1143 (Fla. 5th DCA 2001); see also Campbell v. State, 812 So.2d 540 (Fla. 4th DCA 2002). But here, because Guitterrez never objected to the jury instructions that were given, and even affirmatively stated that he had no objection, he must rely on the application of the doctrine of fundamental error in order to obtain relief. See Miller v. State, 828 So.2d 445, 447 (Fla. 4th DCA 2002)(“A party’s failure to object in the trial court precludes appellate review of an erroneous jury instruction unless the error is deemed fundamental.”)(citing Davis v. State, 736 So.2d 27, 28 (Fla. 4th DCA 1999)).

Guitterrez maintains that he is entitled to a new trial since this court has held that the failure to give a complete or accurate jury instruction constitutes fundamental error “if it relates to an element of the charged offense.” Dowling v. State, 723 So.2d 307, 308 (Fla. 4th DCA 1998)(citing State v. Delva, 575 So.2d 643 (Fla.1991)). While Guitterrez’ general statement of the law is correct, our supreme court recently stressed that fundamental error will result only where the issue to which an erroneous jury instruction is directed is in dispute at trial. See Reed v. State, 837 So.2d 366, 369 (Fla.2002)(holding that improper jury instruction rises to level of fundamental error only when it both relates to an element of the crime and that element is in dispute). Here, the lawfulness of Guitterrez’ arrest was not placed in material dispute.

McPhee v. State, 616 So.2d 483 (Fla. 4th DCA 1993)(on rehearing), is similar to the instant case. There, the defendant was convicted of resisting arrest. On appeal, McPhee argued that the trial court’s instruction to the jury that “an arrest and detention constitutes a lawful execution of a legal duty” essentially directed a verdict for the State on the element of whether the officer was acting lawfully in the performance of his legal duty. Id. at 483. In the absence of an objection, this court refused to find fundamental error in the trial court’s jury instruction since, at trial, “[tjhere was no real challenge to the lawfulness of the arrest.” Id. at 484. McPhee had maintained at trial that the police officer had used excessive force during his arrest for alleged petit theft and argued that he was justified in using reasonable force to defend himself. The court in McPhee went on to state that “it is not fundamental error to fail to instruct on an essential element of a crime where the existence of that element is not in genuine dispute.” Id.

A close review of the trial record in the instant case, including defense counsel’s opening statement and closing argument, reveals that the issue of whether the officers were engaged in the lawful execution of a legal duty while investigating the hit and run incident, and subsequently arresting Guitterrez, was never in material dispute. The primary argument advanced by Guitterrez at trial was that he lacked any intent to commit the offense. Guitterrez argued that: (1) because of the language barrier, he did not understand that the police wanted him to come out so that they could speak with him; and (2) his balance was unstable and if any resistance to the officer occurred, it was accidental and due to the muddy conditions in the swamp. See Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999)(holding that in order to be guilty of obstructing or resisting an officer, the defendant must know of the officer’s intent to detain or arrest him).

We acknowledge that it would not be difficult to construct various legal theories as to why this arrest may not have been a lawful one. Nonetheless, since we are concerned here with fundamental error, the question we address is not whether the arrest was in fact lawful, but whether the issue of the lawfulness of the arrest was in material dispute at trial. See McPhee; see also Anderson v. State, 780 So.2d 1012, 1014 (Fla. 4th DCA 2001)(stating that “only where the erroneous instruction pertains to a disputed element of the crime will the error be deemed fundamental”).

Accordingly, having lodged no objection to an instruction relating to an element of the offense which was not in material dispute, Guitterrez cannot demonstrate fundamental error.

AFFIRMED.

WARNER and KLEIN, JJ., concur.

      . Alligator Alley is the nickname for the east-west stretch of Interstate 75, crossing the Florida Everglades and connecting Naples with Fort Lauderdale.

      . For example, leaving the scene of an accident involving damage to a vehicle or property is a second degree misdemeanor. See § 316.061(1), Fla. Stat. Since the crime was only a misdemeanor and the officers did not witness the crime, it might be argued that they could not arrest Guitterrez, or any of the men, without a warrant. See § 901.15, Fla. Stat. On the other hand, the State could very well argue in response that it was not improper for the police to forcibly bring Guitterrez out of the swamp and briefly detain him so that they could complete their investigation of this “hit and run” incident.


author: WARNER, J.

text:
    L.F., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and J.F., Appellees.
    Nos. 4D01-4152, 4D02-1498.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Kathleen K. Pena, Fort Lauderdale, for appellant.
    Ileana Haedo of Ileana Haedo, P.A., Fort Lauderdale, for appellee J.F.
   WARNER, J.

The mother appeals a judicial review order in a dependency case which “reunified” her with her children by leaving them in the custody of their father/stepfather with visitation to the mother. She contends that the trial court used the wrong legal standard in determining the reunification issue. While we conclude the court did not err with respect to the natural child of the father, the court did err in awarding custody of the stepson to the father. As a consequence, we reverse the entire order for reconsideration.

The mother’s two minor children, N.R. and T.F., were placed in the Department of Children and Family Services’ (“Department”) shelter care when they were discovered home alone in unsanitary conditions. The mother also was alleged to have a substance abuse problem. The initial shelter order placed the children with a maternal aunt and directed a home study of the father/stepfather’s home as well as substance abuse and parenting evaluations and treatment for the mother. The father, J.F., is the natural father of T.F. and the stepfather of N.R. Within six months the father/stepfather was granted temporary custody of the children to live with him in Georgia. The maternal grandmother and aunt also live in Georgia. At subsequent reviews, the mother was ordered to have a psychological evaluation, follow the psychologist’s recommendations, and engage in individual and family counseling. The Department agreed to delay filing a dependency action based upon the mother’s agreement to accept services.

A year after the children’s removal from the home, the mother had not fully complied with the case plan. However, the Department agreed to hold the petition for dependency in abeyance if the mother would obtain a psychological evaluation, complete a parenting class, and participate in individual and family counseling through the children’s therapist in Georgia. Visitation and telephone calls to the children would remain supervised. The children remained in the care of the father/stepfather, and the mother’s boyfriend was to have no contact with the children unless approved by the therapist. Although reunification was scheduled for May 2000, the ease plan was extended, reunification with the mother remaining the goal. The court maintained temporary custody with the father/stepfather.

When the case came before the court again, the mother still had not completed her tasks and had given birth to a third child. The court found the mother was not in substantial compliance with her case plan and adjudicated the children dependent as to the mother. It also ordered the Department to request the State of Georgia to accept jurisdiction, as the children had been living in a stable environment in that state for the past two years.

The mother appealed the court’s order of adjudication to this court, and the mother and the Department engaged in mediation of the case. The father was not notified of the mediation. The mother and the Department made an agreement at mediation as follows: (1) the adjudication of dependency should remain, and the mother would dismiss her appeal; (2) the mother’s boyfriend should submit to random drug tests within the next forty-five days, and if those tests proved negative, the Department would recommend to the court immediate reunification of the children with the mother in the State of Florida; (3) upon reunification, the mother and children would submit to family counseling provided by the Department.

The mediation agreement was submitted to the trial court for approval before a successor judge to the judge entering the order adjudicating the children dependent. At the hearing, the father was present and objected to the reunification with the mother, as the children were doing well in Georgia. He expressed his desire to appeal any order reunifying the children with the mother. Eventually, the attorney for the Department told the court that while it agreed to recommend reunification if the boyfriend’s drug tests were clear, it did not agree to reunification. Whether or not the children would be returned would still be the court’s decision. The court agreed that a hearing was required before ordering reunification. In its order, the trial court “accepted” the mediation agreement and ordered continued temporary custody with the father.

At a hearing about a month later, at which the father, maternal grandmother and aunts were present, all opposing reunification with the mother, the Department pointed out that no disposition hearing had been conducted in the case. The judge then required the Department to gather the psychological reports on the children, stressing that she strived to assure her rulings were always in the best interests of the children.

At the next review hearing, the court had reviewed the psychological reports, which indicated that the children were very resistant to leaving Georgia. The court also heard from the children’s psychologist in Georgia who testified that contact between the mother and children was difficult. The psychologist advised the court that both the short-term and long-term effects of splitting the children apart in a custody determination would be “psychologically devastating to them.” He also explained that the mother had not been consistently compliant in reintegration with the children either through telephone calls or visitation. Ultimately, he opined that attempting to reunify the children into an environment with the mother that they felt was unsafe, based upon their prior experience, would be very detrimental in the short-term, creating fear and anxiety which may not be resolved during the developmental years. He was less sure about the long-term effects, as those would depend upon the intervention services provided. The court also talked with the children. At the close of the hearing, the court continued custody with the father while evaluations of the mother and her boyfriend were conducted.

Another hearing was held where the parties reviewed the terms of the proposed disposition order. The mother objected to the goal of “maintain and strengthen current placement” in addition to reunification, contending the mediation agreement’s sole goal was reunification. The court disagreed, believing there to be a dual goal of “reunification/maintain and strengthen,” stating the issue was “who is ultimately going to have primary custody.” The court also expressed that shared custody between the parents was an option. The court continued custody with the father but allowed for the children to visit the mother in Florida for about two weeks.

Ultimately, a disposition hearing was held. At that hearing, the court was told that while the children enjoyed their visit in Florida with the mother, they had concerns about her conduct and did not feel safe in her home. The children continued to thrive in Georgia and obviously preferred it to Florida. Although the children were to have joint therapy sessions with a local psychologist and their Georgia psychologist while they were in Florida, these did not occur. The mother offered no explanation for this deficiency. Moreover, no report was received from the Florida psychologist.

In ruling on the matter, the court noted the case had come down to a custody battle. The court ordered custody to remain with the father with the mother to have visitation as often as was feasible for her, based upon a visitation schedule which the parties would work out. When the mother’s attorney objected that the mother was not being reunited with the children, the court interrupted and stated that she was being reunited by the court’s award of joint custody with primary residency being with the father. The court also refused to separate the children, although the older boy was not the natural son of the father, nor was he adopted by the father. It entered its second order which included a case plan goal of “reunification/maintain, strengthen placement.” It ordered the parties to agree on a visitation schedule, which they did. Once the visitation schedule was established, the court terminated protective supervision by the Department. Jurisdiction was retained until the minors’ majority. The mother appeals this order terminating supervision, contending the trial court failed to follow the statutory procedures and applied the wrong standard in determining custody.

The mother’s arguments assume the court was required to reunite the children with the mother based upon the mediated settlement agreement. We disagree. When the trial court entered its order adjudicating the children dependent, it did not conduct a disposition hearing. During the appeal of the adjudication order, the mother and the Department agreed on a plan for the mother to obtain the Department’s reunification recommendation. However, at the hearing when the court “accepted” the mediation agreement, the Department clearly agreed to make only a recommendation. The ultimate determination on reunification would be for the trial court. After obtaining the necessary information for a disposition order and conducting a hearing, the court quite clearly rejected reunification as the only goal. Instead, the judge adopted a dual goal of reunification and strengthening/maintaining the current placement. A goal of strengthening placement with the father rather than reunifying the child with the prior custodial parent is permissible. See F.M. v. Dep’t of Children & Families, 807 So.2d 200, 201 (Fla. 4th DCA 2002).

Under the dependency statutes the court has many options for placement of a dependent child. It can require placement under the protective supervision of the Department in the home of one or both of the parents, with a relative, with another adult approved by the court, or in the custody of the Department. See § 39.521(l)(b)3, Fla. Stat. (2002). In this case, the court chose to place the child with “a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court.” § 39.521(3)(b). That placement continued throughout these proceedings. Where such placement is ordered, the court has two options:

1. Order that the parent assume sole custodial responsibilities for the child. The court may also provide for reasonable visitation by the noncustodial parent. The court may then terminate its jurisdiction over the child. The.custody order shall continue unless modified by a subsequent order of the circuit court hearing dependency matters. The order of the circuit court hearing dependency matters shall be filed in any dissolution or other custody action or proceeding between the parents and shall take precedence over other custody and visitation orders entered in those actions.
2. Order that the parent assume custody subject to the jurisdiction of the circuit court hearing dependency matters. The court may order that reunification services be provided to the parent from whom the child has been removed, that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court jurisdiction, or that services be provided to both parents, in which case the court shall determine at every review hearing which parent, if either, shall have custody of the child. The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.

§ 39.521(b)(l)-(2). The statute further provides for protective supervision by the Department to continue until the court terminates it, and such supervision “shall be terminated by the court whenever the court determines that permanency has been achieved for the child.” § 39.521(3). The trial court clearly concluded that permanency had been achieved for the children when it terminated protective supervision.

As to T.F., the natural child of the father, the court was within its discretion to use the best interest standard to determine which parent should have custody of the child. While we disagree that “reunification,” as it is used in Chapter 39, is accomplished where only visitation is granted to the parent, the trial court could appropriately find the father was entitled to custody of T.F., his daughter.

That the older child, N.R., is not the natural son of the father, further complicates this case. Under the dependency statutes, a stepfather is neither a “parent” nor a “relative.” See § 39.01(49), (60), Fla. Stat. (2002). Therefore, the foregoing statutory options were unavailable to determine custody for N.R. Instead, N.R.’s placement with the father was an “out of home” placement. Section 39.521(3)(c) allows the court to do the following:

If no fit parent is willing or available to assume care and custody of the child, place the child in the temporary legal custody of an adult relative or other adult approved by the court who is willing to care for the child, under the protective supervision of the department. The department must supervise this placement until the child reaches permanency status in this home, and in no case for a period of less than 6 months. Permanency in a relative placement shall be by adoption, long-term custody, or guardianship.

First, there was no finding in any of the orders that the mother was unfit. Second, it appears that “permanency status” with the stepfather is not available for N.R. under the statutory scheme. Section 39.621 provides:

(1) When the court has determined that reunification with either parent is not appropriate, then the court must make a permanency determination for the child.
(2) Adoption, pursuant to chapter 63, is the primary permanency option available to the court. If the child is placed with a relative or with a relative of the child’s half-brother or half-sister as a permanency option, the court shall recognize the permanency of this placement without requiring the relative to adopt the child.
(3) The permanency options listed in the following paragraphs shall only be considered by the court if adoption is determined by the court to not be in the child’s best interest, except as otherwise provided in subsection (2):
(a) Guardianship pursuant to chapter 744.
(b) Long-term custody.
(c) Long-term licensed custody.
(d) Independent living.
The permanency placement is intended to continue until the child reaches the age of majority and shall not be disturbed absent a finding by the court that the circumstances of the permanency placement are no longer in the best interest of the child.

The court made no finding that reunification of N.R. with the mother was “inappropriate.” Moreover, adoption does not appear to be an option. See Chapter 63, Fla. Stat. (2002). N.R. is not a candidate for “long-term custody,” as the statute requires that the parent fail to substantially comply with a case plan before the court can consider long-term custody with a non-relative. See § 39.622, Fla. Stat. (2002). Here, the court made no finding that the mother failed to substantially comply with the case plan. The statute also requires the submission of a case plan that does not include reunification as a goal and describes the responsibilities of the adult having long-term custody. See § 39.622(l)-(2). In this case, reunification was a dual goal of the case plan. We have to conclude that permanent placement was not authorized on this record.

It is apparent that the court was trying to do what was best for these children. Their lives in Georgia are happy and stable. They openly expressed their desire to remain with their father/stepfather and their fear in returning to their mother. The statutory scheme would allow the father to retain custody of his own daughter. But we have searched the statutes and can find no authority for the trial court to grant permanent custody of N.R. to the father, even though the psychologist testified that both children would be psychologically harmed if they are split up. Here, the legislature has not given the trial court the power to achieve this sensible solution, even though one of the legislative purposes of chapter 39 is “[t]o make every possible effort, when two or more children who are in the care or under the supervision of the department are siblings, to place the siblings in the same home.” § 39.001(l)(k), Fla. Stat. (2002).

Although we have concluded that the court was within its discretion in ordering permanent custody of T.F. with her father, the trial court could not do the same for N.R. without determining that the mother had failed to substantially comply with the case plan. Because the trial court was particularly concerned with thé children remaining together, given the testimony of psychological harm if they were separated, we reverse the orders in their entirety for the court to reconsider this case. Unless the trial court determines that the mother failed to substantially comply with a case plan, or she agrees to custody of both children with the father as being in the children’s best interest, thus consenting to long-term custody of N.R. by the stepfather, then the court cannot permanently place N.R. with the father. In redetermining this issue, the trial court may consider the development of a new case plan while it decides the ultimate disposition in this case.

Reversed and remanded for further proceedings.

KLEIN and STEVENSON, JJ., concur.

      . Although no copy of the petition for dependency was provided to this court, we assume that one was filed based upon a statement in the motion for rehearing of the court’s order.

      . The parties argue as to whether section 39.522 applies, dealing with postdisposition changes of temporary legal custody, not the permanent custody determination which was made in this case. Unlike S.J. v. Department of Health & Rehabilitative Services, 700 So.2d 71 (Fla. 1st DCA 1997), upon which the mother relies, there was never a postdisposition change of custody. The father has had custody of the children for the past four years.

      . There is evidence that the mother was not communicating with the children and was not participating in family therapy. The trial court never determined whether that constituted substantial non-compliance.


author: MAASS, ELIZABETH T„ Associate Judge.

text:
    OREGON PARTNERS NO. 2, LTD., and Oregon Properties, Inc., Appellants, v. KLAUDER & NUNNO ENTERPRISES, INC., Appellee.
    No. 4D02-1126.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Timothy A. Hunt and Lynn C. Hearn of Hill, Ward & Henderson, P.A., Tampa, for appellants.

      Harriet R. Lewis of Weiss Serota Helf-man Pastoriza & Guedes, P.A., Fort Laud-erdale, for appellee.
   MAASS, ELIZABETH T„ Associate Judge.

Appellant, Oregon Partners No. 2, Ltd. (“Oregon”), appeals a final judgment awarding appellee, Klauder & Nunno Enterprises, Inc. (“K & N”), its attorney’s fees following confirmation of an arbitration award. We find that appellee sought arbitration of multiple claims, not all of which permitted an award of fees; the arbitration award failed to specify on which claim appellee prevailed; and the time to seek modification or clarification of the award has expired. Therefore, we reverse.

K & N and Oregon entered into a written contract for K & N to construct a Walgreeris drugstore on Oregon’s property. The contract required that any claim arising out of, or related to the contract be settled in arbitration. K & N filed suit against Oregon for lien foreclosure, breach of contract, and unjust enrichment. Oregon filed a motion to compel arbitration or in the alternative a motion to dismiss contending, among other things, that K & N had failed to timely serve its final contractor’s affidavit. In response, K & N served its demand for arbitration “for balance of contract price, plus claim for delay damages.”

The arbitration award, issued June 8, 2001, awarded $99,806.36 to K & N and $1,500.00 to Oregon on its counterclaim, leaving a net award to K & N of $98,309.36. The award did not specify the basis on which K & N prevailed.

The parties stipulated to entry of an order confirming the award. Indeed, Oregon paid the award prior to its confirmation. The stipulation required the trial court to determine whether either party was entitled to an award of attorney’s fees.

K & N sought fees under section 713.29, Florida Statutes (2001), which requires an award in “any action brought to enforce a hen ... for the services of her or his attorney for trial and appeal or for arbitration.... ” The trial court awarded $45,240 in attorney’s fees and $1,750 in costs, and this appeal followed.

Where various claims are submitted to arbitration, some of which permit an award of fees and some of which do not, fees may not be awarded unless the award indicates that the party prevailed on a claim for which fees are permitted. See Josephthal Lyon & Ross, Inc. v. Durham, 734 So.2d 487 (Fla. 5th DCA 1999); Kirchner v. Interfirst Capital Corp., 732 So.2d 482 (Fla. 5th DCA 1999); Pharmacy Mgmt. Servs., Inc. v. Perschon, 622 So.2d 75 (Fla. 2d DCA 1993). The failure of an arbitration award to specify the basis on which a party prevailed in arbitration may unfairly deny the party recovery of fees. Recognizing this problem, the Florida Supreme Court has held an award that fails to indicate the theory upon which the party prevailed is per se inadequate and subject to correction. See Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 237 (Fla.2001).

The arbitrator may modify, correct, or clarify an award on application made within twenty days after its delivery. See § 682.10, Fla. Stat. (2001). A court may modify or correct an award imperfect as to form on application made within ninety days after delivery. See § 682.14(l)(e), Fla. Stat. (2001). Here, the time to request modification or clarification has long since passed. Further, the parties stipulated to confirmation of the award without modification.

Because the award fails to show that K & N prevailed on a theory which permitted an award of fees, the award of fees was in error. See Chatfield Dean & Co. v. Kesler, 818 So.2d 572 (Fla. 2d DCA 2002); NationsBanc Sec., Inc. v. Aron, 787 So.2d 881 (Fla. 2d DCA), review denied, 791 So.2d 1094 (Fla.2001). This action is remanded to the trial court with directions to vacate the order awarding attorney’s fees and costs.

SHAHOOD and GROSS, JJ., concur.

      . We have not considered Oregon’s claim that the lien foreclosure was not part of the arbitration, since we find that the award did not permit an award of fees, in any event.


author: POLEN, C.J.

text:
    Emile X. QUEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1112.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Carey Haughwout, Public Defender, and Joseph P. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Michael J. Neimand, Assistant Attorney General, Fort Lauderdale, for appellee.
   POLEN, C.J.

Emile Quest was stopped by police on August 9, 2001, for allegedly pointing a handgun at a passing vehicle while driving on 1-95. The field officer checked Quest’s license, and learned his license had been suspended indefinitely on December 4, 2000 for failure to comply with a traffic citation or summons in North Carolina. Quest was charged, and convicted of, aggravated assault and driving with a suspended license. Quest does not challenge the aggravated assault conviction. However, he contends the trial court erred in denying his motion for judgment of acquittal on the driving with a suspended license charge, where the State failed to establish he had “knowledge” that his license was suspended. We agree.

Under section 322.34(2), Florida Statutes (2001), an individual is guilty of the criminal offense of driving with a suspended license if he or she drives a motor vehicle in the state of Florida while knowing of such suspension. Elaborating on this knowledge requirement, the statute further provides:

The element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice as provided in subsection (4). There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s records for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation. Id.

One who unknowingly drives with a suspended license is guilty of only a noncriminal moving violation, punishable pursuant to chapter 318. See § 322.34(1), Fla. Stat. Where the State fails to establish one drove with knowledge of a suspension, the trial court should enter a judgment of acquittal on the charge of driving with a suspended license under section 322.34(2). See Brown v. State, 764 So.2d 741 (Fla. 4th DCA 2000).

Here, the only evidence the State offered in its ease-in-chief relating to Quest’s supposed “knowledge” of his license suspension consisted of a certified copy of his driving record. Although this record, as interpreted by a Florida Highway Patrol Trooper, provided Quest’s license had been suspended a number of times between 1997 and 1998, it did not reflect Quest had been sent notice of the December 4, 2000, suspension at the time of the suspension. Although Quest admitted having received some correspondence in the past regarding his 1997-98 suspensions on cross, he provided he had moved within the past year and vehemently denied ever receiving notice of the December 2000 suspension. Since the State did not introduce any evidence that Quest received notice of his December 2000 suspension (much less that notice was even sent out), and Quest did not admit knowledge of the instant suspension, the conviction for driving with a suspended license under section 322.34(2) cannot stand.

We reject the State’s contention that Quest should be imputed knowledge of the December 2000 suspension since he was cited for driving with a suspended license on two previous occasions: once in August of 1997 (convicted in January of 1998) and once in February of 1998 (convicted in April of 1998). These past two citations under section 322.34(1), for prior suspensions (which were subsequently reinstated), do not impute knowledge of the new December 2000 suspension. See § 322.34(2). Knowledge of the particular suspension at issue, whether by way of direct proof or one of the statutory presumptions, must be established in order to support a conviction for driving with a suspended license under section 322.34(2).

Accordingly, Quest’s conviction for driving with a suspended license must be reversed.

REVERSE conviction for driving with a suspended license.

STONE and TAYLOR, JJ., concur.

      . Although the certified record provided correspondence had been sent out, our review of the dated entries, and the FHP Trooper’s testimony, suggest correspondence was sent out each time Quest's license was reinstated, not when it was suspended. Regarding the instant suspension, Quest reinstated his license on August 15, 2001, after the arrest.


text:
    J.B.P.F., the Mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D01-5028.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   POLEN, C.J.

J.B.P.F. (“Mother”) timely appeals an order adjudicating her minor child A.P. dependent. While it appears dependency may in fact be an appropriate remedy, since we do not find dispositive the lower court’s reasons for adjudicating A.P. dependent, we remand for further proceedings as discussed below.

The Department of Children and Family Services (“DCF”) filed its first petition seeking to adjudicate A.P. dependent in July of 2000. A.P. was thirteen at the time. Her younger brother, J.P., age eleven, had previously been adjudicated dependent in January of 1996. J.P. suffered from severe psychological and behavioral problems and had a past history of uncontrollable explosive aggressive behavior. Between 1996 and 2000 J.P. was in and out of residential treatment programs and was Baker acted on a number of occasions. However, by the spring of 2000, J.P.’s counselor believed he was progressing and arranged an unsupervised visitation at his Mother’s home for June of that year. The visit did not go well. J.P. had a violent outbreak; his Mother and her live-in boyfriend, Mr. Festa, physically restrained him with handcuffs for 10-15 minutes and poured the contents of an entire bottle of hot sauce down his mouth. J.P.’s therapeutic foster parent noticed braising on his face when he was returned to her care.

As alluded to above, this instance of abuse on A.P.’s brother J.P. brought about the July 2000 petition seeking to declare A.P. dependent. The petition stated A.P. was at substantial risk of imminent abuse or neglect, as evidenced by the physical abuse inflicted on J.P. The petition was subsequently amended, adding allegations that A.P. had resided primarily in the home of a non-relative on and off for the past four years without any financial support from the Mother, and that the Mother worked as a prostitute. The matter proceeded to an adjudicatory hearing on November 8, 2001.

A number of expert witnesses testified concerning J.P.’s severe psychological problems. The consensus seemed to be J.P. had needed to be restrained in the past, but that the use of handcuffs and hot sauce had been excessive. The primary fact witness was family friend and neighbor Windy Fountain. Mrs. Fountain testified she had been helping the Mother care for A.P. since the end of 1995, and that over time the level of assistance had progressed to where now A.P. was residing with Mrs. Fountain and her family. Mrs. Fountain first met the Mother’s boyfriend, Mr. Festa, in April of 1999 when he moved in with the Mother. Mrs. Fountain testified their cohabitation was filled with fighting, arguing, yelling matches, and throwing things around. Mrs. Fountain specifically recounted four specific instances concerning the Mother and Mr. Festa, including one where she overheard Mr. Festa threaten to kill her, and one where she observed Festa walking around their home with a knife. Before and after these instances, the Mother engaged in a pattern of moving in and out of the apartment she shared with Festa. Initially A.P. followed her Mother in and out of Festa’s home, but stayed on with the Fountains permanently since September of 1999.

At the conclusion of the adjudicatory hearing, the court orally pronounced, “I can’t tell you how concerned I am about what has happened to [J.P.]. And as a result of what has happened to [J.P.], what is occurring with [A.P.]. And I don’t believe that you can really separate the two.” The court subsequently entered an order finding A.P. was at substantial risk of imminent abuse and neglect and adjudicated A.P. dependent. See § 39.01(14), Fla. Stat. (2001). The Mother fought the adjudication proceedings below, and continues to do so on appeal.

Upon review of the record, it appears the lower court’s order adjudicating A.P. dependent relied in large part upon the June 2000 instance of abuse upon J.P. We find this was error. Although the lower court did not find A.P. had been personally abused in the past, it did find she was “at substantial risk of imminent abuse and neglect” based upon the abuse inflicted upon J.P. and therefore was dependent. See § 39.01(14). Addressing this specific ground for dependency, this court has held:

Based upon this provision, the supreme court has held that a trial court can find children who have not been abused to be dependent because of the abuse inflicted upon their siblings. The evidence, however, must support a nexus between the act of abuse and any prospective abuse to another sibling. O.S. v. Dep’t of Children & Families, 821 So.2d 1145, 1148 (Fla. 4th DCA 2002) (citations omitted).

Here, the evidence fails to establish a sufficient “nexus” between the instance of abuse upon J.P. and the risk of prospective abuse upon A.P. Although the June 2000 restraint/abuse of J.P. by the Mother and Mr. Festa was excessive, and perhaps malicious, there appears to be no question it was, at least initially, directly related to 'J.P.’s behavioral condition. No evidence was presented that A.P. suffered from any psychological or behavioral problems at all; to the contrary, testimony established she was a relatively happy and well-adjusted child. Moreover, it appears the Mother certainly appreciated the uniqueness of J.P.’s situation, as evidenced by the fact that she had initially contacted DCF in 1995 for assistance in dealing with him, and on a past occasion she had contacted DCF in order to protect A.P. from J.P. Aside from the June 2000 incident, no other evidence of any abuse by the Mother upon J.P., or anyone else, was presented. J.P. does not live with the Mother, and as of the date of the adjudicatory hearing the Mother was prohibited from any contact with J.P. We hold the evidence fails to establish a nexus between a single incident of restraint/abuse upon a child with severe behavioral problems, and a finding that A.P., a “normal” well-adjusted child, is at substantial risk of suffering the same or similar abuse. See D.H. v. Dep’t of Children and Families, 769 So.2d 424, 428 (Fla. 4th DCA 2000)(evidence failed to establish sufficient nexus between single incident of abuse by father upon his stepdaughter and finding his natural daughter was at substantial risk of prospective abuse, finding the testimony did not indicate a probability that the condition causing the father to be abusive would continue or be directed at his natural child); cf O.S., 821 So.2d at 1148 (substantial nexus existed between specific incident of abuse upon older daughter and prospective abuse of younger daughter where the mother had administered the same form of excessive punishment on both children in the past, and there was high likelihood the younger daughter would receive even more beatings in the future, since the older daughter, who had received the majority of the beatings in the past, was no longer in the home).

However, we do not reverse the adjudication of dependency outright. We are extremely concerned regarding the pattern of behavior between the Mother and Mr. Festa. We note domestic violence that occurs in the presence of the child may serve as the basis that a child has been “harmed,” and may serve as grounds for adjudicating that child dependent. See § 39.01(30X1), Fla. Stat. (2001); D.D. v. Dep’t of Children & Families, 773 So.2d 615 (Fla. 5th DCA 2000)(child must see, or be aware of, the violence occurring); D.H., 769 So.2d at 426. Although the lower court mentioned the pattern of domestic violence between the Mother and Mr. Festa below, where its order adjudicating A.P. dependent relies so largely on an invalid ground, the single incident of abuse upon J.P., we hold reversal and remanding for further proceedings is the appropriate remedy. Thus, we remand with directions for the lower court to determine whether it is satisfied that the record supports adjudicating A.P. dependent, based upon her awareness of domestic violence between her Mother and Mr. Festa. A.P.’s safety and well-being is the penultimate goal, and we commend the lower court for its actions below, which were clearly aimed at furthering such.

REVERSED and REMANDED.

SHAHOOD and GROSS, JJ., concur.

      . See § 394.467, Fla. Stat. (1998).

      . Criminal charges were also brought against the Mother arising from this episode.

      . The petition also alleged A.P.’s father was incarcerated and had abandoned her. The father was eventually deported. He is not a party to this appeal.

      .We find the introduction of this hearsay testimony, the specific contents of Mr. Festa's threat, even if erroneous, was harmless beyond a reasonable doubt. See Goodwin v. State, 751 So.2d 537 (Fla.1999).

      . Although the record does not clearly state the date on which such occurred, it appears the Mother and Mr. Festa are now married.


author: GROSS, J.

text:
    STATE of Florida, Appellant, v. William CAMERON, Appellee.
    No. 4D01-835.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   GROSS, J.

The state appeals from an order granting William Cameron’s motion for a new trial after a jury found him guilty as charged of DUI-Manslaughter, Vehicular Homicide, and DUI-Property Damage. We reverse the order as to all counts.

The supreme court’s decision in State v. Miles, 775 So.2d 950 (Fla.2000), was rendered two days after the verdict. The trial court felt that Miles compelled the granting of Cameron’s motion for new trial.

At trial, the state called the trial court’s attention to the first district’s decision in State v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999), and said that review was pending in the supreme court. The state argued that the first district’s decision in Miles did not apply and that the court should give the instruction on the presumption of impairment. At no time did Cameron object to the instruction given by the trial judge, which included the presumption of impairment instruction at issue in Miles.

The general rule is that “a stronger showing is required to overturn an order granting a new trial than to overturn an order denying a new trial.” State v. Andrews, 820 So.2d 1016, 1022 (Fla. 4th DCA 2002). However, the trial court’s discretion to grant a new trial is substantially narrowed when the basis for the new trial is a non-preserved, non-fundamental error.

In State v. Delafuente, 487 So.2d 1083 (Fla. 4th DCA 1986), we reversed an order granting the defendant a new trial because of alleged prosecutorial misconduct in closing argument. We observed that defense counsel never objected to the state’s argument or moved for a mistrial. We held that “for that reason alone,” the trial court “should have denied the motion for new trial, in the absence of fundamental error.” Id. at 1085; see also State v. Goldwire, 762 So.2d 996, 998 (Fla. 5th DCA 2000) (observing that where admission of evidence did not constitute fundamental error, “trial court should not have entertained a motion for new trial ... absent an objection”); State v. Fritz, 652 So.2d 1243 (Fla. 5th DCA 1995) (reversing order granting new trial where defendant did not preserve objection to closing argument, because he failed to move for a curative instruction or mistrial); State v. Benton, 662 So.2d 1364 (Fla. 3d DCA 1995) (reversing order granting new trial; finding no preservation as to state’s impermissible comment on defendant’s right to remain silent where defendant failed to request curative instruction or mistrial).

We agree with the first district that the giving of the presumption of impairment instruction does not constitute fundamental error. See Leveritt v. State, 817 So.2d 891, 897 (Fla. 1st DCA 2002). Under Delafuente, the trial court should have denied the motion for new trial because Cameron failed to preserve his Miles objection.

We also disagree with the trial court’s belief that Miles compelled reversal in this case.

Miles held that rule 11 D-8.012(3), Florida Administrative Code was inadequate because it failed to insure the reliability of blood test results. 775 So.2d at 955. The supreme court also reaffirmed the ruling of Robertson v. State, 604 So.2d 783 (Fla.1992), that when there is no assurance of compliance with the implied consent law, the state must revert back to the “common law approach” for admitting blood alcohol test results. Miles, 775 So.2d at 956. The “three-prong predicate” that had to be established in order to admit test results was that: “(1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment, and (3) expert testimony was presented concerning the meaning of the test.” Id. Here, the state met this predicate.

Miles is distinguishable from this case on its facts. There, the state was not entitled to the presumption of impairment for following the administrative rule which provided inadequate specimen maintenance standards. Id. at 955. The blood specimen in Miles remained unrefrigerated for fourteen days prior to testing and the integrity of the samples could have been compromised. An expert testified that the blood alcohol content of a blood sample may be affected by a sample’s exposure to heat or by the presence of bacteria; “the evidence presented established that a sample should be kept refrigerated.” Id. at 951.

The evidence in this case did not similarly impugn the integrity of the blood specimens. After the defendant’s blood was drawn, it was kept refrigerated at all times, with the exception of (1) its transportation from the hospital to the police department’s refrigerated locker, and (2) the overnight Federal Express delivery of the specimen to National Medical Services for a second round of testing. An expert testified that overnight transportation without refrigeration would not affect the sample’s integrity.

Additionally, this case is controlled by Dodge v. State, 805 So.2d 990 (Fla. 4th DCA 2001). In Dodge, this court held that where a defendant’s blood test results were admitted in compliance with the three-prong common law test, the “presumption of impairment created by [section 316.1934(2) Florida Statutes] is a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level.” Id. at 994 (quoting Robertson, 604 So.2d at 792 n. 14). Because there was evidence in Dodge that the defendant’s blood alcohol level at the time it was tested was .09, and there was expert testimony that it was .12 at the time of the accident, this court held that it was proper to instruct the jury that if it found that the defendant’s blood alcohol was greater than .08 a the time of the accident, then the jury must also find that the defendant was guilty of the DUI offense.

In this case, one expert fixed the defendant’s blood alcohol level at the time of the crash as .185 or .19. A second expert testified that the defendant had the equivalent of eleven drinks of alcohol in his body at the time of the crash. According to the testimony, the maximum blood alcohol level he could have had at the time of the accident was .20, and the minimum was .12. The defendant had also ingested Valium, which further impaired him. The state proved beyond a reasonable doubt that he drove with an unlawful blood alcohol level. As in Dodge, any presumption of impairment issues was a moot concern. See also Searles v. State, 816 So.2d 793, 795 (Fla. 2d DCA 2002) (holding that the giving of the presumption of impairment instruction was harmless error when “there is sufficient evidence of actual impairment such that there is no doubt that the jury would have found impairment even without the erroneous instruction.”).

The trial court believed that the granting of a new trial on the DUI counts compelled a new trial on the vehicular homicide. Because we have held that no new trial is required on those counts, we reverse the order granting a new trial on the vehicular homicide.

REVERSED.

STONE and WARNER, JJ., concur.


author: STONE, J. WARNER, J.,

text:
    Jean JUEDE a/k/a Jean Nobean a/k/a Jean Didier, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-772.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Alexander R. Brumfield, III of Brown and Brumfield, West Palm Beach, for appellant.

      Charlie Crist, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse Juede’s conviction for the offense of sale of cocaine within one thousand feet of a place of worship and remand for a new trial.

The trial court erred by disallowing a challenge for cause of a juror. During voir dire, prospective juror Fitzgerald was asked whether the fact that a witness was a police officer would affect his trust in the officer’s testimony. Fitzgerald responded, “Yes, because that’s what he is paid to do. They go through special training to notice tattoos, sears.” The court then asked Fitzgerald if he would automatically credit a police officer more because he had a uniform. Fitzgerald responded, “I would only credit him because of his training and his — he deals with it more than other people.” The court then repeated, “If a police officer testified one way and the lay witness testified another tuay, would you look — would you try to look at all the evidence supporting both testimonies, weighing and deciding who you were going to believe or would you credit the police officer more because he was a police officer?” Fitzgerald responded, “I’d probably go with the police officer.” Subsequently, defense counsel asked for a show of hands of people who agreed with Fitzgerald. At that time, defense counsel stated, “[t]he people who raised them hands, they agree they’d give more credibility to the police officer — that was the question— when they were weighing testimony; that they would give more weight to a police officer’s testimony than a lay person’s testimony just because of the uniform.” Fitzgerald then responded, “No, no.” The court, for a final time, attempted to clarify by asking the entire jury whether they would believe officers more than other witnesses. Apparently no one responded.

A juror should be dismissed for cause where there is reasonable doubt as to his or her impartiality. Brown v. State, 755 So.2d 737, 738 (Fla. 4th DCA 2000). The applicable test is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984); Henry v. State, 756 So.2d 170, 172 (Fla. 4th DCA 2000). Whether a challenged juror’s responses meet the Lusk test is a mixed question of law and fact to be resolved by the trial court. Henry, 756 So.2d at 172.

Here, there is a reasonable doubt as to juror Fitzgerald’s ability to remain impartial and unbiased. In Henry, for example, where a prospective juror stated he would give more credibility to a police officer than a lay witness and that police officers do not lie, this court held that the juror indicated an inability to lay aside a bias in favor of law enforcement. Id. Here, Fitzgerald indicated a similar bias by stating and then reiterating that he would defer to the testimony of a police officer over a lay witness.

We recognize that Florida law allows the rehabilitation of jurors whose responses in voir dire raise concerns about their impartiality. Martinez v. State, 795 So.2d 279 (Fla. 3d DCA 2001). Here, however, the juror stated three different times that he would believe a police officer over a lay witness, only to later seemingly recant by saying “no, no” when defense counsel asked the panel if they would give more weight to a police officer’s testimony “just because of’ the uniform. In light of the juror’s earlier comments, this response is, at best, confusing. Furthermore, as this court has recognized, “[a] juror’s subsequent statements that he or she could be fair should not necessarily control the decision to excuse a juror for cause, when the juror has expressed genuine reservations about his or her preconceived opinions or attitudes.” Rodas v. State, 821 So.2d 1150, 1153 (Fla. 4th DCA 2002). This purported recantation is insufficient to overcome the reasonable doubts as to his partiality created by his previous statements. See also Scott v. State, 825 So.2d 1067 (Fla. 4th DCA 2002)(reversing conviction where reasonable doubt existed as to juror’s ability to be impartial after juror indicated she would find police officers to be more credible and subsequent attempts at rehabilitation were insufficient); cf. Carratelli v. State, 832 So.2d 850 (Fla. 4th DCA 2002)(recognizing that although error was not preserved and, thus, not reversible, trial court did err in failing to grant cause challenges where reasonable doubts were created as to juror’s ability to be fair and impartial and attempted rehabilitation was not sufficient to overcome doubts).

We also conclude that his silence to a question asked to the entire panel was not sufficient to overcome the reasonable doubt. See Rodas, 821 So.2d at 1153 (holding that fact that prosecutor asked all of the jurors if they would listen to the evidence and base their verdict on the evidence in the case and everybody in this panel indicated that they would was inadequate to overcome the reasonable doubt created by individual jurors’ comments upon their ability to be fair and impartial). Furthermore, close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality. Id.

We have also considered, and reject, the state’s assertion that the challenge was not preserved.

MAY, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would affirm, as I do not think the juror in this case had the same preconceived belief as was present in Henry v. State, 756 So.2d 170, 172 (Fla. 4th DCA 2000). In Henry, the juror had a decided bias in favor of police officers, stating officers did not lie. In this case, juror Fitzgerald stated there was conflicting evidence. Later, he clarified his responses by stating “no, no” when asked whether he would give more weight to the officer’s testimony “just because of the uniform.” He explained he believed the officers were trained in investigation, and thus, would tend to give more weight to an officer’s observations than a lay witness’ based upon this experience. I see nothing biased about a belief that a witness’ training and experience may make his or her testimony more believable and readily accepted by a juror than a witness without those same experiences.

Moreover, the trial court examined the jurors on this issue and concluded, with the exception of two other jurors whom the judge did grant challenges for cause, Mr. Fitzgerald had adequately explained his answers. I think even if his first statements appeared to favor an officer’s testimony, they were adequately explained and placed into the foregoing context. It was within the trial court’s discretion to determine the juror’s responses did not create a reasonable doubt as to his ability to be impartial. See Brown v. State, 755 So.2d 737, 738 (Fla. 4th DCA 2000). I would not second guess the trial judge on this issue.


text:
    S.H., The Father, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-2215.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    J. Steven Hudson, Deerfield Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   GROSS, J.

The father appeals a disposition order in a dependency case under Chapter 39, Florida Statutes (2001).

The Department of Children and Families (DCF) filed a petition for dependency regarding appellant’s teenage daughter on February 15, 2002. An arraignment was scheduled for February 25 at 8:30 a.m. A summons for appellant was served on the mother at her home. The father was at the courthouse on the morning of February 25; he signed an attendance sheet outside the courtroom. However, appellant left the courthouse before the arraignment began. The trial judge ruled that appellant had been properly served by substituted service and entered a default judgment against him, finding the daughter to be dependent.

On March 28, 2002, appellant moved to set aside the default on the ground that personal service had not been effectuated. He argued that he had not resided with the mother for over one year and that DCF had not attempted any other service upon him.

The court held a hearing on appellant’s motion on May 10, 2002. Appellant testified that he had been separated from his wife since February, 1999. He submitted an affidavit from his wife saying that he had not lived at her residence for the past year. Appellant admitted that he had been informed of the February 25 arraignment; he said he left the courthouse because the hearing started late and he had to keep another appointment.

The trial judge recognized that the case presented difficult issues, since appellant had notice of the hearing and chose not to attend. Finding that “[t]he child deserves an adjudication of this litigation quicker,” the trial judge ruled that under the totality of the circumstances appellant’s actions constituted “an evasion of process.”

We are sympathetic to the considered ruling of the trial judge. However, to affirm it would be to rewrite Chapter 39 and the law regarding service of process.

Section 39.502(3), Florida Statutes (2001), requires the clerk to “issue a summons” upon the filing of a dependency petition. Section 39.502(5) mandates that the summons “be served” upon “all parties other than the petitioner.” By this service requirement, Chapter 39 contemplates that service will usually be effectuated pursuant to Chapter 48, Florida Statutes (2001).

Section 39.502(2) provides that “[p]er-sonal appearance of any person in a hearing before the court obviates the necessity of serving process on that person.” That section is similar to the principle in civil cases that a defendant’s general appearance in a lawsuit waives any objection to personal jurisdiction. That section does not apply in this case, because appellant did not appear “in a hearing before the court”; he appeared outside the courtroom, before the hearing. Even the “liberal construction” of the statute allowed under section 39.001(9), Florida Statues (2001) does not allow us to ignore the boldfaced prepositions in the preceding sentence.

There was no substituted service under section 48.031(l)(a), Florida Statutes (2001), because the mother’s residence was not appellant’s “usual place of abode” at the time of the service. See Gonzalez v. Totalbank, 472 So.2d 861, 863-64 (Fla. 3d DCA 1985) (invalidating substituted service where wife was separated from husband and no longer living at address where service was . attempted). The phrase “usual place of abode” means “the place where the defendant is actually living at the time of service.” Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla.2001).

Appellant’s knowledge of the dependency proceeding is not enough to waive the section 39.502(5) requirement of service. Both this court and the supreme court have held that actual knowledge of a pending lawsuit will not excuse the failure of a plaintiff to comply with the strict mandates of the law regarding service of process:

The appellant argues that the purpose of service of process is notice and that the father, who was in contact with his son, had advised the appellant of the pen-dency of the suit. However, the appellant’s actual knowledge of the attempted service cannot be used to justify the appellee’s failure to strictly observe and substantially comply with service requirements-

Panter v. Werbel-Roth Sec., Inc., 406 So.2d 1267, 1268 (Fla. 4th DCA 1981); see also Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1984) (“The fact that the defendant received actual notice of this lawsuit does not render the [attempted] service of process valid”); Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Were Due, 160 Fla. 120, 33 So.2d 716, 718 (1948) (“The fact that the defendant had actual knowledge of the attempted service cannot be relied upon to justify the failure of the plaintiff to strictly observe and substantially comply with [the] statute.... ’).

Finally, this is not a case where service of process can be excused because appellant deliberately refused to accept delivery of service of process. See Wyatt v. Haese, 649 So.2d 905, 907 (Fla. 4th DCA 1995) (defendant did not intentionally fail or refuse service of process notices); Smith v. Leaman, 826 So.2d 1077, 1078-79 (Fla. 2d DCA 2002). Nor is this a case where appellant intentionally hid from a process server. See, e.g., Schupak v. Sutton Hill Assocs., 710 So.2d 707, 709 (Fla. 4th DCA 1998) (noting that evasion of service results when there is both a service of process to be attempted and the person to be served was actively attempting to frustrate or prevent the service of process); Liberman v. Commercial Nat’l Bank of Broward County, 256 So.2d 63, 64 (Fla. 4th DCA 1971) (defendant, after seeing process server, ran into house and closed door; process server then went up to door of residence and left copy of service of process in mailbox, process server then observed the defendant come out of the house and remove papers from mailbox). Other than the attempted substituted service at his wife’s house, there was no other attempt at serving appellant, at his office or elsewhere.

The order of disposition with respect to the father is reversed.

STONE, J„ and STERN, KENNETH D., Associate Judge, concur.

      . We recognize that in the situation where a defendant has actual knowledge of a lawsuit, other jurisdictions have adopted a more liberal view in deciding whether someone has been served at their "usual place of abode.” However, neither the Florida Supreme Court nor Chapter 39 has adopted this more liberal view. See, e.g., Nowell v. Nowell, 384 F.2d 951, 953 (5th. Cir.1967) ("[The parallel federal rule] should be broadly construed where the defendant, as in this case, received notice of the suit.... [T]he provision concerning usual place of abode should be liberally construed to effectuate service if actual notice has been received by the defendant and that in the last analysis the question of service must be resolved by 'what best serves to give notice to a defendant that he [or she] is being served with process, considering the situation from a practical standpoint.’ ") (citation omitted); Howard Johnson Int'l, Inc. v. Wang, 7 F.Supp.2d 336, 341 (S.D.N.Y.1998) (“That [the defendant] wilfully failed to defend this action weighs heavily against disturbing the judgment.”); Hartford Fire Ins. Co. v. Perinovic, 152 F.R.D. 128, 131 n. 1 (N.D.Ill.1993) (applying a liberal interpretation of the federal rule regarding one's “usual place of abode.”); Scott v. G.A.C. Fin. Corp., 107 Ariz. 304, 486 P.2d 786, 787-88 (1971) (defendant separated from his wife received actual notice of pending lawsuit after process server delivered summons at wife's house before default judgment was entered — "It has been held that the provision concerning] usual place of abode shall be construed liberally to effectuate service if actual notice has been received by the defendant and that in the last analysis the question of service must be resolved by 'what best serves to give notice to a defendant that he [or she] is being served with process, considering the situation from a practical standpoint'.... The defendant’s unreasonable delay after receiving actual notice justifies the court in refusing to set aside the default judgment.”) (citations omitted); Plushner v. Mills, 429 A.2d 444, 446 (R.I.1981) ("What does concern us is that actual notice was received by both defendant and his attorney shortly after the original service and that defendant was not prejudiced by this method of service.”); Sheldon v. Fettig, 129 Wash.2d 601, 919 P.2d 1209, 1211-12 (1996) ("In interpreting substitute service of process statutes, strict construction was once the guiding principle of statutory construction. However, more recently, we have applied liberal construction to substitute service of process statutes in order to effectuate the purpose of the statute while adhering to its spirit and intent. ... We also note many sister jurisdictions follow a rule of liberal construction in interpreting substitute service of process statutes when actual notice is received.”) (citations omitted); Trammel v. Nat'l Bank of Ga., 159 Ga.App. 850, 285 S.E.2d 590 (1981); Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn.Ct.App.1986) ("When actual notice of the action has been received by the intended recipient, 'the rules governing such service should be liberally construed.’ ”) (citation omitted); Plonski v. Halloran, 36 Conn.Supp. 335, 420 A.2d 117, 118 (1980) ("In the case at bar, the fact that the defendant received actual notice of this action weighs heavily in favor of the plaintiff; the defendant cannot be heard to say that he was prejudiced in any manner whatsoever. As an exception to the general rule requiring strict construction of statutes in derogation of the common law, it has been held that provisions for substituted service should be liberally construed in those cases in which the defendant received actual notice.”).


text:
    Michaela MILLER, Richard Stolpman, and Ramon Matos, Appellants, v. HEWLETT-PACKARD COMPANY, Appellee.
    No. 4D02-1656.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    John F. Romano of Romano, Eriksen, Cronin & Mullins, West Palm Beach, and Helene Hvizd Morris, West Palm Beach, for appellants.
    Thomas R. Julin, Samuel A. Danon, and Christopher N. Johnson, Miami, and Lawrence J. Bracken II, Atlanta, for appellee.
   PER CURIAM.

AFFIRMED. See Bellinger v. Hewlett-Packard Co., 2002 WL 533403 (Ohio App. 9 Dist.2002), appeal denied, 96 Ohio St.3d 1492, 774 N.E.2d 766 (2002); Andre Stris-hak & Assoc. v. Hewlett-Packard Co., 300 A.D.2d 608, 752 N.Y.S.2d 400 (2002).

GROSS, MAY, JJ„ and DAMOORGIAN, DORIAN, Associate Judge, concur.