author: VILLANTI, Judge.

text:
    Terry MALLOY, Wayne Ingram, and Steve Ingram, Petitioners, v. GUNSTER, YOAKLEY, VALDES-FAULI & STEWART, P.A.; and Charles J. Duffy, III, Respondents.
    No. 2D02-4413.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.
    Rehearing Denied July 22, 2003.

      Michael C. Sasso of Dempsey & Sasso, Orlando, and Sheldon E. Richie of Richie & Gueringer, P.C., Austin, TX, for Petitioners.
    John W. Frost, II, and Peter W. van den Boom of Frost Tamayo Sessums & Aran-da, P.A., Bartow, for Respondent, Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
    Morey Raiskin and Karen A. Williams of Lowndes, Drosdick,. Doster, Kantor & Reed, P.A., Orlando, for Respondent, Charles J. Duffy, III.
   VILLANTI, Judge.

Terry Malloy, Wayne Ingram, and Steve Ingram (collectively Petitioners) seek either a writ of mandamus or a writ of certiorari to avoid the effect of the trial court’s order abating their action against Gunster, Yoakley, Valdes-Fauli, & Stewart, P.A. (Gunster Yoakley), Charles J. Duffy, III, United Container, LLC, Andrew Todd Bullock, and Bradley W. Campbell until resolution of United Container’s bankruptcy action. Because a trial court , has no clear legal duty to rule in a particular way on a particular motion, there is no basis for issuing a writ of mandamus. However, because the trial court departed from the essential requirements of the law in abating the action, we treat this petition as a petition for writ of certiorari, grant the petition, and quash the trial court’s order.

In July 2000, Petitioners sued United Container, Bullock, Campbell, Gunster Yoakley, and Duffy in Florida state court after a series of complex financial transactions bétween Petitioners and United Container went' awry. ■ While the complaint alleged numerous causes of action, Petitioners essentially contended that all of the defendants conspired to defraud them out of $3.1 million that Petitioners either loaned to or invested in United Container. As to Gunster Yoakley and Duffy, Petitioners also asserted causes of action for breach of fiduciary duty and legal malpractice based on Gunster Yoakley and Duffy allegedly representing both Petitioners and United Container during the negotiar tions that led to the transactions.

In December 2001, United Container filed a voluntary bankruptcy petition in the bankruptcy court for the Middle District of Florida. This filing triggered an automatic stay of the state court case against United Container. See 11 U.S.C. § 362(a)(1) (providing that the filing of a petition for bankruptcy operates as a stay of' the commencement or continuation of any judicial, administrative, or other action against the debtor in any forum). Thus, Petitioners’ state court action against United Container was automatically stayed.

In an effort to proceed with their claims against Gunster Yoakley and Duffy, Petitioners filed a motion in the state court action seeking to sever their claims against United Container and to go to trial against the remaining defendants. The trial court denied this motion, finding that United Container was an indispensable party in the state court action.

In response to this ruling, Petitioners filed a motion in the bankruptcy action in January 2002 seeking to modify the automatic stay to allow the state court case to proceed so that Petitioners could liquidate their claims against United Container. Petitioners assured the bankruptcy court that they would not attempt to collect on any judgment obtained against United Container. Subject to this assurance, .the bankruptcy court modified the automatic stay to allow Petitioners to proceed in the state court action against United Container. Because none of the other defendants in the state court action were subject to the automatic stay, the result of this ruling was to allow the entire state court action to proceed.

Based on that ruling, the parties to the state court action returned to state court and proceeded with discovery. However, in August 2002, Gunster Yoakley and Duffy filed new motions asking the state court to abate the pending action. In these motions, Gunster Yoakley and Duffy contended for the first time that the bankruptcy estate was solvent and that the state court litigation should be abated until the conclusion of the bankruptcy action to avoid a double recovery by Petitioners. Gunster Yoakley and Duffy also contended that if Petitioners recovered their money in the bankruptcy action, their pending state court claims would fail as a matter of law because Petitioners would have suffered no damages. United Container did not join in these motions.

At the hearing on these motions, Petitioners argued that the solvency of the bankruptcy estate was irrelevant to their state court claims. Petitioners pointed out that they could not obtain a double recovery against United Container because they were not permitted to execute on any judgment obtained in the state court proceeding. Further, they could not obtain a double recovery against Gunster Yoakley and Duffy because any monies received in the bankruptcy action that duplicated damages awarded in the state court action would be an offset against the. damages award. Petitioners also argued that any stay or abatement of the trial court proceedings would violate their due process rights by denying them any forum in which to try their claims against Gunster Yoakley and Duffy. Petitioners also pointed out that their state court action had been pending before the bankruptcy action was commenced and that the bankruptcy court had modified the automatic stay specifically to allow Petitioners’ state court claims to be liquidated. Finally, Petitioners noted that United Container — the only party entitled to the benefits of the bankruptcy action — was not seeking to have the state court action stayed and that United Container agreed that the state court litigation should proceed.

Despite these arguments, the trial court granted Gunster Yoakley’s and Duffy’s motions to abate the state court action, finding that “[i]t now appears that the assets exceed the liabilities [in the bankruptcy estate] and plaintiffs may be fully compensated from the estate. Until that matter is determined, it makes little sense to continue this action.” Petitioners then filed their petition for writ of certio-rari with this court. In the petition, Petitioners contend that they are entitled to a writ of certiorari because the trial court departed from the essential requirements of the law in granting the motion to stay and/or abate. We agree.

The common law writ of certiorari is a special mechanism whereby an upper court can direct a lower tribunal to send up the record of a pending case so that the upper court can “be informed of’ events below and evaluate the proceedings for regularity. The writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.

Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 842 (Fla.2001) (footnote omitted). In order for the writ to issue, the petitioner must establish that the trial court departed from the essential requirements of the law. Kash N’ Karry Food Stores, Inc. v. Smart, 814 So.2d 530, 532 (Fla. 2d DCA 2002); Parkway Bank v. Fort Myers Armature Works, Inc., 658-So.2d 646, 648 (Fla. 2d DCA 1995).

[T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000), and Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995)).

In this case, the trial court violated a clearly established principle of law. When a state and federal court have concurrent jurisdiction over the same parties and the same subject matter, the court in which jurisdiction first attached should determine the controversy and decide every issue properly raised in the case before it. Wade v. Clower, 94 Fla. 817, 114 So. 548, 551 (1927); State v. Harbour Island, Inc., 601 So.2d 1334, 1335 (Fla. 2d DCA 1992); Schwartz v. DeLoach, 453 So.2d 454, 454-55 (Fla. 2d DCA 1984); Shooster v. BT Orlando Ltd. P’ship, 766 So.2d 1114, 1115-16 (Fla. 5th DCA 2000). Once that court has decided all the issues before, it, the parties may pursue whatever issues remain in the other court. Judicial economy is served by deciding the first case first without regard to the whims of the parties or their desired forum. In this case, jurisdiction first attached in the state court. Therefore, under clearly established law, the state court should decide all the issues before it — not defer to the bankruptcy action. The trial court’s refusal to decide the issues before it in this case violated a clearly established principle of law.

Moreover, under the unique facts of this case,.the trial court’s ruling results in a miscarriage of justice.' Were it not for United Container’s bankruptcy, the state court case against all defendants would have already been tried. While United Container is entitled to the protections from ongoing litigation afforded a debtor in bankruptcy, United Container is not seeking those protections. Rather, Gun-ster Yoakley and Duffy are using the protections of United Container’s bankruptcy action as a shield to avoid a preexisting state court action and as a sword to impose their desired forum on Petitioners. Allowing Gunster Yoakley and Duffy to manipulate the state and federal courts’ concurrent jurisdiction to deny Petitioners a timely trial on the merits of their state court action constitutes a miscarriage of justice.

Because the trial court’s ruling constitutes a departure from the essential requirements of the law, we grant the petition, quash the trial court’s order staying the state court proceedings, and remand for further proceedings in the state court action.

Petition granted.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . While the trial court's order affects all of the defendants in Petitioners’ state court action, Gunster Yoakley and Duffy were the only defendants who sought to abate the state court action and are the only defendants who responded to this petition.

        . The limited record before us indicates that the state court case was scheduled to be tried in September 2002.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Marysol SIERRA, as Personal Representative of the Estate of Michael Carlos Sierra, as Wife of Michael Carlos Sierra, and as Parent and Legal Guardian of Miguel Sierra and William Sierra, Appellant, v. ASSOCIATED MARINE INSTITUTES, INC., a Florida corporation, Department of Juvenile Justice, an agency of the State of Florida, and Big Cypress Wilderness Institute, Inc., a Florida corporation, Appellees.
    No. 2D01-2406.
    District Court of Appeal of Florida, Second District.
    June 18, 2003.
    Rehearing Denied July 23, 2003.

      James L. O’Leary, II, of JLOESQ, LLC, Bonita Springs, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for ap-pellees Associated Marine Institutes, Inc. and Big Cypress Wilderness Institute, Inc.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for appellee Department of Juvenile Justice.
   NORTHCUTT, Judge.

The week after Michael Sierra began working as a counselor at a residential juvenile detention camp, two of the camp’s residents murdered him. His widow, Mar-ysol Sierra, filed a wrongful death suit against the Department of Juvenile Justice and against her husband’s employers, who operated the camp under contract with the Department. On motions by the three defendants, the circuit court dismissed Mrs. Sierra’s action with prejudice. The court ruled that the employers were entitled to workers’ compensation immunity and, further, that all defendants were shielded from liability by sovereign immunity. We conclude that Mrs. Sierra alleged facts sufficient to except her suit from the employers’ workers’ compensation immunity. Also, the second amended complaint did not demonstrate that sovereign immunity shielded the defendants from liability for the acts alleged. Accordingly, we reverse the dismissal of Mrs. Sierra’s suit and remand for further proceedings.

FACTS

For these purposes we must treat the material factual allegations of Mrs. Sierra’s pleadings as true. See Curtis v. Henderson, 777 So.2d 1017 (Fla. 2d DCA 2000). They reflect that Big Cypress Wilderness Institute was a “level 8” high-risk residential juvenile detention facility commonly known as a “boot camp,” housing felons aged fourteen to eighteen. It was located on federal land in.the Big Cypress National Preserve by virtue of an agreement between the National Park Service and the Florida Department of Juvenile Justice. The boot camp was operated by Big Cypress Wilderness Institute, Inc., pursuant to a contract between DJJ and BCWI’s parent, Associated Marine Institutes, Inc.

That contract acknowledged that a high-risk residential placement required “close supervision in a standard residential setting that provides 24-hour secure custody, care, and supervision.” Juveniles with a history of “serious felony offenses” were placed in such facilities out of “concern for public safety that outweighs placement in lower risk programs.”

Commensurate with this risk level, AMI’s contract and an amalgam of DJJ rules and procedural manuals imposed stringent security requirements. Thus, for example, high risk facilities such as Big Cypress were to have twelve-foot fences topped by razor wire. Staff members were required to undergo a rigorous orientation that included training in verbal and physical use of force, familiarization with policies and procedures, and “job shadowing” of experienced staffers. Until this training was completed, a new staff member was not to have direct contact with youths except under the direct supervision of a certified drill instructor or camp commander.

The DJJ Residential Commitment Service Manual, applicable to Big Cypress pursuant to the DJJ/AMI contract, called for continual assessment of each youth in the program to monitor his level of risk. The program was to devise and maintain an “alert system,” whereby all members of the staff would be apprised of specific developments affecting an individual youth’s level of risk. These included, for example, such things as an escape attempt or an assault or threat against another resident within the previous 30 days. The manual warned that youths assessed as risks should not be allowed off-campus or to participate in work projects in which they had access to work tools that could be used as weapons or means of escape. Moreover, all off-site work projects were to be supervised by at least two trained staff members.

The two youths who murdered Michael Sierra had been assessed as risks for escape. Jermaine Jones had a record of offenses including aggravated assault, cocaine possession, battery, resisting arrest, and a prior escape. He had attacked a staff member in the past and had made threatening remarks on three separate occasions. Mazer Jean’s record included burglary and possession of a short-barreled rifle, and he had made threatening remarks twice.

On the Sunday before Sierra’s death, Jones and Jean had a verbal confrontation, culminating in Jones’s threat to “split Jean’s head to the white meat.” On learning of the altercation, supervisor Erroll Denson placed them both on “contract,” a form of punishment requiring the offender to “pay off’ the contract with heavy manual labor. Jones in particular expressed anger about this, prompting one staffer to warn that he feared Jones would try to escape and that he should be closely watched.

At 7:19 p.m. on the second day after the altercation between Jones and Jean, Den-son instructed Sierra to accompany them and a third youth named Sal Beatty to a work site next to a pond roughly 100 yards outside the Big Cypress compound, where the youths were to fell trees as part of their “contract” punishments. -Denson ordered Sierra to oversee the work project until 9:00 p.m., when the group was to return to the compound.

Sierra had been employed as a youth counselor at Big Cypress only eight days. According to Mrs. Sierra’s second amended complaint, BCWI had failed to provide Sierra with the required new staff orientation or a copy of the employee handbook. It had never given him the DJJ-required written test on the policies and procedures governing Florida juvenile boot camps, nor had it given him the mandated video training about the boot camp’s policies and procedures. Further, Sierra was never warned of the violent threats by Jones or that his fellow staff member thought Jones might try to escape.

Sierra retrieved his car keys from a locked box located in the administrative office, and took his jacket from the trunk of his car. But he did not return the keys to the office as required by policy. Instead, he placed them in his pocket. Sierra next took the three youths to select tools for the work project. Jean and Beatty chose machetes, and Jones took a pickaxe. The four then walked out to the work site.

During a water break at approximately 8:25 p.m., Jones and Jean killed Sierra by repeatedly striking him about the head with their work tools. They took Sierra’s car keys, rolled him into the pond, returned to the Big Cypress compound, and escaped in Sierra’s car.

WORKERS’ COMPENSATION IMMUNITY

Workers’ compensation immunity, like other affirmative defenses, may justify dismissing a suit at the pleadings stage only if the plaintiffs complaint affirmatively and clearly demonstrates the conclusive applicability of the defense. Vause v. Bay Med. Ctr., 687 So.2d 258, 261 (Fla. 1st DCA 1996). We conclude that Mrs. Sierra’s second amended complaint did not conclusively demonstrate that Florida’s Workers’ Compensation Law immunized AMI and BCWI from liability.

Section 440.11, Florida Statutes (1997), protects employers from tort liability for injuries to their employees except in limited situations identified in the statute. In addition, Florida courts recognize an exception for intentional torts where an employer has either exhibited a deliberate intent to injure or engaged in conduct that is substantially certain to result in injury or death. See Eller v. Shova, 630 So.2d 537, 539 (Fla.1993); Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986).

In Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), the Florida Supreme Court reaffirmed the existence of an intentional tort exception to workers’ compensation immunity. When doing so, the court clarified the law in some important respects. First, the court disavowed suggestions in Fisher, 498 So.2d 882, and Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879 (Fla.1986), that the “substantial certainty of injury” standard for avoiding workers’ compensation immunity requires a showing that the employer’s conduct created a “virtual certainty” of injury. Turner, 754 So.2d at 687 n. 4; see also EAC USA, Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001).

The Turner court also held that when applying the “substantial certainty of injury” standard, the employer’s conduct must be evaluated under an objective test, as opposed to a subjective one. In other words, the plaintiff need not show that the employer actually knew that its conduct was substantially certain to cause an injury. Rather, the employer may be held liable if it “should have known ... that the conduct complained of was ‘substantially certain to result in injury or death.’ ” Id. at 688-89. Therefore, “[u]nder an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer’s conduct was ‘substantially certain’ to result in injury or death to the employee.” Turner, 754 So.2d at 688.

Turner involved an explosion at a chemical plant that killed the plaintiffs decedent, a worker at the plant. The plaintiff alleged that the employer knowingly used a highly unsafe processing method that was substantially certain to result in-injury or death. The supreme court reversed a summary judgment granted to the employer on its workers’ compensation immunity defense. It held that, under an objective test measuring whether the employer engaged in conduct that was substantially certain to result in injury, the record presented genuine issues of material fact that precluded summary judgment. Turner, 754 So.2d at 689-90. Most of the Florida cases addressing this issue also involve allegations that the employer knowingly created or permitted a dangerous physical condition in the workplace, e.g., removing safety guards from equipment, EAC USA 805 So.2d at 3; improperly guarding an open elevator shaft, Gerth v. Wilson, 774 So.2d 5 (Fla. 2d DCA 2000); or failing to maintain a commercial aircraft, Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990).

Fewer cases have involved allegations that employers failed to protect their employees from or warn them against the danger of violence by third persons. The courts have rejected these claims when the danger posed by third persons was too generalized to permit a conclusion that the employers’ failure to protect or warn against it was substantially certain to result in injury. See, e.g., Garrick v. Publix Super Mkts., Inc., 798 So.2d 875 (Fla. 4th DCA 2001) (holding that injured security guard’s allegation merely that employer knew, and deliberately withheld, that robbery was going to occur at one of two super markets on unspecified date at unspecified time was insufficient to defeat workers’ compensation immunity).

Other cases predated Turner and applied the “virtual certainty of injury” standard when rejecting claims based on the employers’ failures to protect or warn against generalized danger from third persons. See, e.g., Clark v. Gumby’s Pizza Sys., Inc., 674 So.2d 902 (Fla. 1st DCA 1996) (rejecting pizza delivery employee’s claim based on allegations that his employer failed to warn of dangers of delivering to certain areas of town at night); Gen. Motors Acceptance Corp. v. David, 632 So.2d 123 (Fla. 1st DCA 1994) (holding insufficient employees’ claim based on employer’s failure to take security measures to prevent customers from having direct contact with employees); Folk v. Rite Aid of Fla., Inc., 611 So.2d 35 (Fla. 4th DCA 1992) (concluding that employer’s conduct in failing to permit security guard to carry weapon was not virtually certain to result in his injury or death). In one case, the court rejected a claim because the employer’s lack of experience or expertise was such that a reasonable person in its place could not have foreseen that an employee, angry at being laid off, would make good on his threat against his supervisor: Holderbaum v. Itco Holding Co., 753 So.2d 699 (Fla. 3d DCA 2000).

None of those cases involved the situation here, in which an employer is alleged to have knowingly placed an unprotected employee directly in contact with specific, violent individuals. Although a similar circumstance was presented in ACT Corp. v. Devane, 672 So.2d 611 (Fla. 5th DCA 1996), the issue was not decided. In that case, a residential counselor at a runaway shelter sued her employer after suffering injuries at the hands of a shelter resident. The court determined that it had no jurisdiction to entertain the employer’s appeal of an order denying its motion for summary judgment based on workers’ compensation immunity. Therefore, it dismissed the appeal without determining whether the employer’s alleged conduct could be deemed substantially certain to result in injury or death. „

Our research has disclosed no other Florida case addressing the workers’ compensation immunity issue under circumstances such as these, but we have found helpful decisions in other states. Like Florida, Ohio law recognizes an exception to workers’ compensation immunity when the employer engages in conduct that is substantially certain to result in injury. Fyffe v. Jeno’s, Inc., 59. Ohio St.3d 115, 570 N.E.2d 1108 (1991); Blankenship v. Cincinnati Milacron Chem., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982). Unlike Florida, Ohio measures this standard by a subjective test, as opposed to the more lenient objective test adopted in Turner. Fyffe, 570 N.E.2d at 1112. In Ross v. Maumee City Schools, 103 Ohio App.3d 58, 658 N.E.2d 800 (1995), Ohio’s Court of Appeals for the Sixth District applied these principles to the case of a teacher’s assistant assigned to serve as the sole classroom aide to a fourteen-year-old boy who was severely mentally retarded and suffered other handicaps. It became apparent that the boy was prone to sudden violent outbursts. Because of this, and because the boy was as large as the aide, she had difficulty handling him. Nevertheless, her requests for assistance or for the boy to be given a different placement went unheeded. Eventually, the boy injured her. The aide sued the school system, alleging that she was injured as a result of. the school system’s intentional conduct. The trial court granted summary judgment for the employer, finding among other things that the uncontested material facts failed to show that the employer’s conduct was substantially certain to result in injury. The appellate court reversed, holding that the facts of the case did present an issue on that point. Ross, 658 N.E.2d at 805.

Washington, too, permits an intentional tort exception to workers’' compensation immunity, but the test for achieving it is much more stringent than Florida’s. In Birklid v. Boeing Co., 127 Wash.2d 858, 904 P.2d 278 (1995), that state’s supreme court expanded its interpretation of a statutory exception to workers’ compensation immunity founded on the employer’s “deliberate intention” to cause injury. In so doing, however, the court rejected the “substantial certainty of injury” standard as too expansive. Id. at 285. Rather, it held that an employer could be held to have a “deliberate intention” to injure so as to subject it to suit if it had “actual knowledge” that an injury was “certain to occur” and “willfully disregarded that knowledge.” Id.

In Stenger v. Stanwood School District, 95 Wash.App. 802, 977 P.2d 660 (1999), the court applied the Birklid standard to a scenario similar to the one in Ross, involving two public school instructional aides who were injured while assigned to work with a severely disabled special education student. Reversing a summary judgment for the employer, the court held that the employer’s knowledge of the boy’s extensive history of aggressive and violent behavior would permit a jury to find that the employer had actual knowledge that the staff would continue to be injured by the boy in the future and that the employer willfully disregarded this knowledge.

The Ross and Stenger courts recognized intentional tort exceptions to workers’ compensation immunity where employers knowingly placed employees directly in contact with specific, violent individuals. They did so under tests that were more demanding than Florida’s, based on facts that were less compelling than alleged by Mrs. Sierra in this case. Here, in waning daylight the employer allegedly sent a new, inexperienced, and incompletely trained employee into the woods 100 yards from the relative safety of the workplace to supervise, on his own, three teenaged felony offenders. Two of the employee’s charges had violent histories, and the employer knew, but the employee did not, that these two were specifically assessed as escape risks. The youths were armed with machetes and a pickaxe. The employee wielded only a walkie-talkie.

If proved, the facts alleged could convince a jury that when Sierra was sent into those woods his employer should have known there was a substantial certainty that doing so would result in his injury or death. More precisely for our purposes, Mrs. Sierra’s second amended complaint did not affirmatively and clearly demonstrate the conclusive applicability of AMI’s and BCWI’s workers’ compensation immunity defense. See Vause, 687 So.2d at 261. Therefore, the circuit court should not have dismissed the action based on workers’ compensation immunity.

SOVEREIGN IMMUNITY

The circuit court listed two bases for dismissing Mrs. Sierra’s suit on sovereign immunity grounds. The court held that the defendants were immune from “such intentional torts” and that the conduct alleged in the second amended complaint constituted planning level activity for which sovereign immunity was not waived.

We must preface our discussion of these issues with two observations. First, as in the case of workers’ compensation immunity, sovereign immunity generally is an affirmative defense that may justify granting a motion to dismiss only when the complaint itself conclusively establishes its applicability. Vause, 687 So.2d at 261; Randles v. Moore, 780 So.2d 158 (Fla. 2d DCA 2001); City of Ft. Lauderdale v. Todaro, 632 So.2d 655 (Fla. 4th DCA 1994). In light of this principle, our second observation is that Mrs. Sierra’s second amended complaint did not conclusively demonstrate that AMI and BCWI are entitled to any form of protection under sovereign immunity.

In this case the defendants’ claims to sovereign immunity stem from different sources. The DJJ, of course, is a government agency. Its immunity from liability flows directly from the sovereign. § 768.28(2), Fla. Stat. (1997). AMI and BCWI, on the other hand, are private corporations that haye contracted to furnish services to the state. Their entitlement, if any, to sovereign immunity protection turns on whether they can be deemed agents of the state under either common law or statute.

Under common law principles, a provider’s status as either an agent of or independent contractor to the state depends on the degree of control the state exercises over the provider’s performance of its duties. Stoll v. Noel, 694 So.2d 701 (Fla.1997). Here, the second amended complaint álleged that AMI and BCWI acted pursuant to a contract that incorporated by reference a number of other rules, policies, and manuals. The exhibits to the second amended complaint included some of these referenced materials, but not all of them. In some instances, such as the DJJ Residential Commitment Service Manual, only a portion of the incorporated document was attached. For this reason, the record was insufficient to permit a determination of the degree to which the DJJ exercised control over AMI and BCWI in the performance of their duties. See Agner v. APAC-Fla., Inc., 821 So.2d 336 (Fla. 1st DCA 2002), review denied sub nom AIM Eng’g & Surveying, Inc. v. Agner, 842 So.2d 842 (Fla.2003) (table decision); see also Robinson v. Linzer, 758 So.2d 1163 (Fla. 4th DCA 2000), review denied sub nom Cubas v. Robinson, 780 So.2d 912 (Fla.2001); Theodore ex rel. Theodore v. Graham, 733 So.2d 538 (Fla. 4th DCA 1999). Moreover, even a true agent is liable for acts outside the scope of the agency relationship or contrary to the principal’s instructions, whether or not the principal can be sued. Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265, 1268 n. 4 (Fla.1987) (citing Tedder v. Riggin, 65 Fla. 153, 61 So. 244 (1913)). Here, even if the contract and the evidence established that the state exercised control over AMI and BCWI sufficient to make them agents of the state, Mrs. Sierra’s allegations that these defendants substantially deviated from the “instructions” contained in the contract and sundry DJJ rules and manuals, if proved, could defeat their agent status for these purposes. Thus, we conclude that the allegations of the second amended complaint did not conclusively establish AMI’s or BCWI’s common law status as agents of the state for sovereign immunity purposes.

The statutory basis for AMI’s and BCWI’s claim to be agents of the state appears in section 768.28(ll)(a), Florida Statutes (1997). It reads:

Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in need of services, families in need of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope of and pursuant to guidelines established in the contract or by rule. A contract must provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.

We have found no pertinent judicial interpretation of this statute or of the nearly identical provision set forth at section 768.28(10)(a), related to health care providers under contract to the Department of Corrections. Within its sphere of operation, the statute seems to broaden the circumstances under which a provider may claim sovereign immunity, such that the provider need not show that its performance is controlled by the state to the degree necessary to prove a principal-agent relationship under common law.

It is not enough, however, to demonstrate simply that the provider contracted to act on behalf of the state in the furnishing of the mentioned services. Rather, to enjoy agent’s status under the statute, the provider must have acted “within the scope of and pursuant to guidelines established in the contract or by rule.” § 768.28(ll)(a). These last qualifications seem to echo the common law principle that an agent can lose its status as such if it deviates from its principal’s instructions.' Dorse, 513 So.2d at 1268. And they are akin to the limitations on immunity from tort liability enjoyed by a state officer, employee or agent under section 768.28(9)(a).

Mrs. Sierra’s second amended complaint did not reflect that AMI and BCWI acted pursuant to guidelines established in their contract or by rule. To the contrary, it alleged that these defendants violated pertinent guidelines. Therefore, the second amended complaint did not conclusively demonstrate that AMI and BCWI were entitled to any form of sovereign immunity protection, and the circuit court should not have dismissed Mrs. Sierra’s action against them on sovereign immunity grounds.

Even assuming AMTs and BCWI’s status as agents of the state, the circuit court should not have dismissed the suit on the ground that these defendants enjoyed sovereign immunity from liability for intentional torts. This holding was predicated on the defendants’ argument that if Mrs. Sierra could avoid their workers’ compensation immunity by proving her husband’s supervisor knew or should have known there was a substantial certainty that he would be injured or killed, they necessarily would be immunized from liability under the wanton and willful acts exception to state liability contained in section 768.28(9)(a).

AMI’s and BCWI’s reliance on this exception is misplaced. While the subsection provides that “the state or its subdivisions” shall not be liable for wanton and willful acts of its officers, employees or agents, it is clear that AMI and BCWI are not subdivisions of the state. See § 768.28(2). As providers or vendors under section 786.28(ll)(a), they may be deemed agents of the state, not agencies of the state. Under section 768.28(9)(a), agents of the state are immune from tort liability for acts or omissions committed while acting within the scope of their employment or function, but they are not immune from liability for acts committed in bad faith or with malicious purpose or “in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Therefore, even assuming that AMI and BCWI qualified as agents of the state, a determination that the conduct charged in Mrs. Sierra’s second amended complaint was wanton and willful would render them subject to liability under section 768.28(9)(a), not immune from it. On the other hand, in that case the DJJ would be immune from liability.

That said, we are not convinced that Mrs. Sierra’s allegations achieved the level of “wanton and willful” as contemplated in the statute. On this point the defendants rely on the First District’s decision in Elliott v. Dugger, 579 So.2d 827 (Fla. 1st DCA 1991). In that case the court held that the plaintiff, a Department of Corrections employee, had failed to allege conduct sufficient to overcome workers’ compensation immunity. Moreover, the court held, if the alleged conduct was sufficient for that purpose, the action necessarily would be barred by the wanton and willful acts exception to state liability contained in section 768.28(9)(a). Even if we were to accept the holding in Elliott, it would not control here. Elliott predated the supreme court’s clarification of the intentional tort exception to workers’ compensation immunity in Turner. As such, it applied the stricter “virtual certainty of injury” standard to the workers’ compensation immunity issue. Elliott, 579 So.2d at 830. Thus, Elliott stands for the proposition that conduct which is virtually certain to cause injury or death necessarily implicates the wanton and willful acts exception to state liability contained in section 768.28(9)(a). Of course, the question posed in this case is whether the wanton and willful acts exception is necessarily invoked by conduct that is only substantially certain to cause injury or death.

Case law furnishes no real guidance on this point. The only thing that is even somewhat discernible is that both standards contemplate conduct that is worse than “gross negligence.” Turner, 754 So.2d at 687 n. 4 (regarding substantial certainty of injury test); McClelland v. Cool, 547 So.2d 975, 976 (Fla. 2d DCA 1989) (recognizing that test for proving wanton and willful acts exception to employee immunity in section 768.28(9)(a) is more stringent than gross negligence exception to coemployee workers’ compensation immunity in section 440.11(1)). Yet, even this notion begets uncertainty. As Judge Altenbernd ably demonstrated when writing for this court in Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857, 866 (Fla. 2d DCA 2002), it is doubtful that the term “gross negligence” has precisely the same meaning in different contexts. Judge Altenbernd pointed to Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970), which bemoaned the difficulty of articulating the concept of gross negligence. “[F]rom a standpoint of degree, it is clear that gross negligence lies between simple negligence and the ‘wilful and wanton’ conduct sufficient, if death results, to constitute ‘culpable negligence’ within the crime of manslaughter. But we would agree that such ‘ * * * delimitation of ‘gross’ or ‘wanton’ negligence from other forms of negligence is neither conceptually satisfactory nor practically simple * * ” Fleetwood Homes, 833 So.2d at 867 (quoting Glaab, 236 So.2d at 182-83).

Whereas Fleetwood Homes dealt with the difficulty of applying a single concept in different contexts, here we are confronted with the task of comparing two different concepts that were devised in different contexts. The most likely connection between them seems to be yet a third concept, that of culpable negligence. As indicated in the foregoing quotation, wanton and willful conduct is often associated with culpable negligence. When, in Eller, the supreme court examined legislation that limited an employee’s actions against managerial coemployees, the court defined culpable negligence as “reckless indifference” or “grossly, careless disregard” of human life. Eller, 630 So.2d at 541 n. 3. Later, the Turner court observed that the culpable negligence exception discussed in Eller is “not unlike” the substantial certainty of injury exception to workers’ compensation immunity. Importantly, though, the court stopped short of holding that they are equivalent. Turner, 754 So.2d at 687 n. 4.

More recently, the supreme. court declined to foreclose the possibility that conduct falling shy of that necessary to exempt the defendant state subdivisions from liability under section 768.28(9)(a) nevertheless could establish a 42 U.S.C. § 1983 claim based on a deliberate deprivation of rights. Responding to a certified question in Crocker v. Pleasant, 778 So.2d 978 (Fla.2001), the supreme court held that Florida recognizes a claim of entitlement by the next of kin to possession of the remains of a decedent, thus permitting them to file a § 1983 action based on an alleged interference with that interest. The court noted, however, that in that case the circuit court had ruled that the offending individual officials did not act in bad faith or with malicious purpose, and the plaintiffs had conceded that they could not prove willful or malicious conduct on the part of the defendants. This prompted the court to question whether the plaintiffs could prove a “deprivation” under § 1983 because the United States Supreme Court has held that § 1983 applies only to deliberate decisions of government officials as opposed to merely negligent deprivations. Crocker, 778 So.2d at 988-89 (citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Nevertheless, the court refused to rule as a matter of law that the plaintiffs’ inability to prove bad faith, maliciousness, or wanton and willful conduct on the officials’ part precluded them from proving a deliberate deprivation of rights for purposes of their § 1983 claim. Crocker, 778 So.2d at 989.

Especially in light of Turner and Crocker, we are unable to declare that the “substantial certainty of injury” standard for avoiding workers’ compensation immunity requires misconduct of a degree that would necessarily be “wanton and willful” and therefore immunize a government defendant under section 768.28(9)(a). More particularly, Mrs. Sierra’s second amended complaint did not affirmatively and clearly demonstrate the conclusive applicability of this sovereign immunity defense. Therefore, the circuit court erred by dismissing her action on this ground.

Finally, the circuit court accepted the defendants’ argument that they were shielded by sovereign immunity because the acts alleged in the second amended complaint were planning level activities for which sovereign immunity has not been waived. See Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985). For purposes of this discussion we assume that AMI and BCWI were agents of the state although, as previously discussed, their status as such could not be determined at the pleadings stage in this case. Of course, if they were not agents of the state, they were not entitled to sovereign immunity, period.

As a preliminary matter, we note that the defendants do not dispute that they owed Sierra a duty of care. See Henderson v. Bowden, 737 So.2d 532, 535 (Fla.1999) (reiterating that the question of sovereign immunity does not arise until it is determined that the defendant owes a duty of care to the plaintiff); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (same). Indeed, it is easy to see that the defendants’ actions foreseeably placed their employee, Sierra, in a zone of increased risk, giving rise to a common law duty on their part either to lessen the risk or to protect him against it. See Henderson, 737 So.2d at 537; Kaisner, 543 So.2d at 735-36; see also Bardy v. Walt Disney World Co., 643 So.2d 46 (Fla. 5th DCA 1994).

We turn now to the question of whether the conduct alleged by Mrs. Sierra constituted planning level activity for which sovereign immunity has not been waived. As made clear in Kaisner, the simple classification of a government endeavor as a law enforcement or public safety activity pursuant to Trianon Park does not shield the actor from liability. The court emphasized that the planning or “discretionary” function exception to government tort liability is grounded in the separation of powers. Kaisner, 543 So.2d at 736 (citing Trianon Park, 468 So.2d at 918, and Commercial Carrier Corp. v. Indian River Comity, 371 So.2d 1010, 1022 (Fla.1979)). “That is,” the Kaisner court wrote, “it would be an improper infringement of separation of powers for the judiciary, by way of tort law, to intervene in fundamental decisionmaking of the executive and legislative branches of government, including the agencies and municipal corporations they have created.” Id.

Kaisner held that this principle does not shield acts that are “operational” in nature. An act is operational if it “is not one necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.” Id. at 737. On the other hand, governmental acts are “discretionary” and immune if they involve “an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning.” Id.

In City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992), the supreme court applied these tests to a suit stemming from the deaths of two innocent bystanders during a raucous high speed police chase through the streets and roads of Pinellas County.

[T]his conduct cannot honestly be characterized either as ‘policy’ or ‘planning,’ because it self-evidently was contrary to both. In fact, the plaintiffs have alleged that each of the police agencies had adopted a policy to the contrary. Accordingly, the actions of the police in this instance are not entitled to sovereign immunity.

Id. at 1226 (citing Dep’t of Transp. v. Neilson, 419 So.2d 1071, 1077-78 (Fla.1982)).

The same is true of the conduct alleged in Mrs. Sierra’s second amended complaint. As such, it was operational activity, not shielded by sovereign immunity.

CONCLUSION

Mrs. Sierra’s second amended complaint did not affirmatively and clearly demonstrate the conclusive applicability of the defendants’ affirmative defenses based on workers’ compensation immunity and sovereign immunity. Accordingly, we reverse the order dismissing her suit with prejudice and remand for further proceedings.

FULMER, J., and GREEN, OLIVER J., Senior Judge, Concur.

      . In 1995, the Ohio General Assembly enacted the "employment intentional tort” statute, codified in Ohio Revised Code section 2745.01. In this legislation, the General Assembly declared that it intended to supersede the effect of Ohio Supreme Court decisions adopting the "substantial certainty of injury” standard for avoiding workers’ compensation immunity. The statutory standard required the plaintiff to prove by clear and convincing evidence that the employer deliberately and intentionally injured him. The Ohio Supreme Court later struck the statute on state constitutional grounds. Johnson v. BP Chems., Inc., 85 Ohio St.3d 298, 707 N.E.2d 1107 (1999).

      . Section 768.28(9)(a), Florida Statutes (1997), provides:
      (9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

      . Section 768.28(2), Florida Statutes (1997), provides: “As used in this act, 'state agencies or subdivisions' include the executive departments, the Legislature, the judicial branch (including public defenders), and the indepen- , dent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties or municipalities, including the Spaceport Florida Authority.”

      . Certainly, for these purposes AMI and BCWI are similar to health care providers described in section 768.28(9)(b)(2), which states "(b) As used in this subsection, the term: ... 2. 'Officer, employee, or agent’ includes, but is not limited to, any health care provider when providing services pursuant to s. 766.1115....” Section 766.1115, Florida Statutes (1997), permitted the former Department of Health and Rehabilitative Services to contract with private medical providers to furnish- free services to underserved populations.

      . The Crocker court acknowledged that some federal courts have held that a § 1983 claim may be based on recklessness or deliberate indifference, citing as examples Stemler v. City of Florence, 126 F.3d 856, 865-66 (6th Cir.1997) (deliberate indifference); Hill v. Shobe, 93 F.3d 418, 421 (7th Cir.1996) (criminal recklessness or deliberate indifference); and Davis v. Fulton County, 90 F.3d 1346, 1352-53 (8th Cir.1996) (rejecting gross negligence). Crocker, 778 So.2d at 989 n. 12.


author: GROSS, J.

text:
    Frederick BYXBEE, Petitioner, v. Placido Rocha REYES, Respondent.
    No. 4D03-560.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Rehearing Denied Aug. 12, 2003.

      James C. Spitz of Law Offices of James C. Spitz, West Palm Beach, for petitioner.
    Douglas D. Rozelle, Jr. and Leonard S. Villafranco of Rozelle and Call, West Palm Beach, for respondent.
   GROSS, J.

Petitioner, Frederick Byxbee, the plaintiff below, files a petition for writ of certio-rari asking this court to quash the trial court’s January 17, 2003 order granting the respondent’s motion to compel the production of Byxbee’s psychotherapy records from Columbia Hospital. We grant the petition.

Byxbee filed a personal injury action against the respondent arising out of a car accident. On March 1, 2002, Byxbee filed a notice of withdrawal of his claim for mental anguish. In October 2002, respondent filed a notice of taking deposition duces tecum of the records custodian of Columbia Hospital. In response, Byxbee filed a motion for protective order seeking to invoke the psychotherapist-patient privilege contained at section 90.503(2), Florida Statutes (2002). The trial judge compelled disclosure of the records, believing that they were relevant to Byxbee’s non-mental, physical condition.

This is not a case where Byxbee has relied upon his mental condition “as an element of [his] claim or defense,” so that the exception of section 90.503(4)(c) applies. Byxbee withdrew his claim for mental anguish. A claim for loss of enjoyment of life, “without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the protection of section 90.503.” Partner-Brown v. Bornstein, 734 So.2d 555, 556 (Fla. 5th DCA 1999). The records of Columbia Hospital fall within the privilege of section 90.503. That the records contain information pertaining to physical examinations during hospital admissions does not remove the records from the privilege. There is no indication that such examinations were not made “for the purpose of diagnosis or treatment of the patient’s mental or emotional condition.” § 90.503(2). To allow discovery of the records because they contain information about the patient’s physical or medical condition would be to en-graft an additional exception to section 90.503(4). The petition for writ of certio-rari is granted and the January 17, 2003 order is quashed. See Palm Beach County Sch. Bd. v. Morrison, 621 So.2d 464 (Fla. 4th DCA 1993); Sykes v. St. Andrews Sch., 619 So.2d 467 (Fla. 4th DCA 1993).

GUNTHER and TAYLOR, JJ„ concur.


author: PER CURIAM.

text:
    William BETHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2178.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Rehearing Denied Aug. 15, 2003.
    William Bethel, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), without prejudice to appellant’s right to present his gain-time challenge to the Department of Corrections first. If he is not satisfied after exhaustion of administrative remedies there, he can then file a petition for writ of mandamus with the appropriate circuit court. See Dacosta v. State, 842 So.2d 935 (Fla. 4th DCA 2003).

KLEIN, SHAHOOD and MAY, JJ., concur.

2


author: STONE, J.

text:
    Anthony GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1974.
    District Court of Appeal of Florida, Fourth District. ■
    July 2, 2003.
    Rehearing Denied Aug. 13, 2003.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, Fort Lauderdale, for appellee.
   STONE, J.

Green was convicted, along with co-defendant Shelton, of attempted armed robbery. We reversed the co-defendant’s conviction in Shelton v. State, 831 So.2d 806 (Fla. 4th DCA 2002). As in Shelton, we also reverse and conclude that requiring Green to be shackled during trial, in the absence of record support for the restraint, is reversible error. We, therefore, reverse and remand for re-trial on the charge of attempted armed robbery.

Green also contends that it was error below and it would be error on remand to charge the jury on the lesser offense of attempt where the evidence indicates that the robbery was completed notwithstanding that it was still in progress when interrupted by a law enforcement officer.

At trial, the state presented testimony that Detective Spear, while on his way to the scene of one robbery involving four individuals in a black Ford Mustang and a victim on a pay phone, saw a Mustang and several individuals by a pay phone at a convenience store. The car matched the description given over the radio. When he approached, two of the men ran away, while one remained, pretending to be another robbery victim.

The victim, Cedric Kyles, testified that he was held up at gunpoint by Green and the others. He stated that they took his wallet, four hundred dollars, and his pager. The wallet and money were not found, but the pager was found by the police in the vicinity of the offense. Green denied robbing Kyles. Instead, he claimed he was engaged in a drug transaction when the police arrived on the scene.

At the charge conference, defense counsel objected to any jury instruction on attempted robbery. The objection was overruled. The jury returned a verdict of guilty on the lesser offense of attempted armed robbery with a weapon.

A prima facie case for robbery requires proof that the accused took the victim’s property with the intent to permanently deprive the victim of that property. § 812.13(1), Fla. Stat. (1999). To prove attempted robbery, the state must show that the accused formed the intent to take the victim’s property and committed some overt act to accomplish that goal. § 777.04, Fla. Stat. (1999); Fournier v. State, 827 So.2d 399, 400-01 (Fla. 2d DCA 2002).

We recognize that Florida Rule of Criminal Procedure 3.510, provides, in part, that a “jury may convict the defendant of: (a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense.” Here, there is evidence that the offense was completed. Kyles testified that the pager belonged to him and that it was later returned to him by the police. Nevertheless, it cannot be said, as a matter of law, that there is a “total lack of evidence of the lesser offense.” See Amado v. State, 585 So.2d 282 (Fla.1991). Officer Spear saw Green and Shelton confronting Kyles and saw them going through his pockets but did not see them take anything. When they fled on foot, nothing was seen in their hands. None of the property was found on Green’s person. This, coupled with the fact that the crime was interrupted in progress, could lead the jury to conclude that the robbery had not been concluded, but only attempted and then interrupted.

In any event, even accepting that the perpetrators had completed the physical taking of the pager, we agree with the Third District that a trial court’s decision to give an attempt instruction, where there is not a total lack of evidence as to the lesser offense, does not constitute reversible error. See Jones v. State, 492 So.2d 1124 (Fla. 3d DCA 1986). In Jones, the jury was instructed as to, and the defendant was convicted of, attempted burglary. As here, the defendant argued that under rule 3.510(a), he was entitled to a new trial because the instruction was improper where the evidence only showed a completed act of burglary. Id. at 1125. The Third District rejected that argument stating, “[a]n accused who is convicted of an attempt as a lesser of a charged offense will not be heard to complain that he should be set free merely because the evidence shows that he was guilty of the greater offense.” Id. at 1126. The court noted that rule 3.510(a) was construed by the supreme court as not creating any new rights, “but simply as a tool to streamline a trial by eliminating the need to instruct as to a lesser offense ‘when there is a total lack of evidence of the lesser offense.’ ” Id. (citing In re Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.), modified, 431 So.2d 599 (Fla.1981)).

We conclude that rule 3.510(a) does not create a right for a defendant to insist that a jury not to be instructed on attempt. The jury was properly instructed where a view of the evidence supports attempt as a lesser-included offense. We recognize possible conflict with Gleason v. State, 591 So.2d 278, 279 (Fla. 5th DCA 1991), in which the Fifth District reversed the appellant’s conviction for attempted sexual battery where there was no evidence to support the attempt and the only evidence prove the completed offense. We note, however, that the cases cited for support in Gleason are inapposite, as they both involved a trial court’s denial of a defense’s request to have an attempt instruction and did not recognize the right of a defendant to not have a jury instructed on an attempt.

Therefore, on remand, Green may be retried on the attempt.

STEVENSON and MAY, JJ., concur.

      . We note this court’s decision in Taylor v. State, 848 So.2d 448, 2003 WL 21505350 (Fla. 4th DCA July 2, 2003), holding that the appellant failed to preserve the shackling issue by not requesting an inquiry on the necessity of shackling. Here, the issue was preserved.


author: SHAHOOD, J. KLEIN, J.,

text:
    Nancy MURPHY as Natural Mother and Guardian of Carlee Murphy, a minor, Appellant, v. James CENTLIVRE and Brian R. Hersh, Appellees.
    No. 4D01-2834.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Aug. 14, 2003.
    Kenneth D. Cooper of Kenneth D. Cooper, P.A., Fort Lauderdale, for appellant.
    Brian R. Hersh óf Law Office of Brian R. Hersh, Miami, for appellee Brian R. Hersh.
   SHAHOOD, J.

Appellant, Nancy Murphy, as natural mother and guardian of Carlee Murphy, a minor, appeals from a Final Judgment awarding discharged attorney, Brian R. Hersh, $100,000 based on his claim for an attorney’s charging and retaining hen. Based on the evidence, we hold that the trial court abused its discretion and reverse and remand.

The underlying facts in this case involved a claim by Nancy Murphy, on behalf of her minor daughter against James Centlivre, for injuries sustained by the minor child when Centlivre lost control of his vehicle and collided with the child and two other juveniles. The child sustained a severe break in her leg, requiring two surgeries and the placement of two lifetime pins in her leg. The accident took place on April 21, 2000.

On or about April 27, 2000, Murphy entered into a contingency fee agreement with attorney Hersh to represent the child’s interests following the accident.

On December 20, 2000, Hersh served a notice of intent to claim damages pursuant to section 768.76(6), Florida Statutes, upon health providers, Health Options, Inc. and CIGNA Health Care. Hersh asserted that the health care providers, as collateral source providers, would waive any right to subrogation or reimbursement unless they each provided him with a statement asserting payment of benefits and right of subro-gation or reimbursement within thirty days of receipt of this notification.

On or about February 5, 2001, Hersh received an offer from Centlivre’s liability insurer in the amount of $800,000 to settle the matter, including the mother’s consortium claim. The offer was for $200,000 up front and $100,000 as a structured settlement annuity. In a letter dated February 19, 2001, the insurance adjuster reiterated the offer and noted that she awaited Hersh’s counter-demand. The offer was never conveyed to Murphy. On February 20, 2001, Hersh, by e-mail, was discharged as Murphy’s attorney.

On February 21, 2001, Murphy, through her new attorney, filed a lawsuit against Centlivre for negligence and punitive damages. On that same day, Hersh served a notice of intent to impose a retaining and charging lien upon Murphy and the insurer as “the result of the work, labor and efforts, as well as results achieved ($300,-000.00 offer) in the above-referenced matter.”

On May 31, 2001, Hersh filed a Motion for Granting, Imposing, Determining, and Enforcing his Charging Lien and Incorporated Memorandum of Law. In his motion, Hersh claimed that he expended 14.20 hours on behalf of Murphy and her daughter and incurred $2,528.12 in costs. Hersh claimed that he was entitled to attorney’s fees in the matter pursuant to contract or quantum meruit.

At the hearing on Hersh’s motion to impose a retaining and charging lien and Murphy’s motion to strike the hen, Hersh’s expert testified that in addition to the $300,000 offer Hersh was able to obtain from the insurer, Hersh was able to waive subrogation claims in the amount of $75,000 from the health care providers.

In finding in favor of Hersh, the trial court concluded that Hersh was able to waive the subrogation liens of the health providers with a benefit totaling $75,000. Further, the court held that Hersh obtained a $300,000 offer of settlement from the insurer with a note for a counter-offer. Before a counter-offer could be made, Murphy discharged Hersh. Because the contract between Murphy and Hersh called for a one-third contingency, Hersh was entitled to $100,000 as a quantum meruit award for his services.

Following Murphy’s appeal of this matter to this court, Murphy moved this court to relinquish jurisdiction in order to allow the' trial court to hear her motion to vacate the final judgment based upon new evidence; said motion was granted April 15, 2001. On September 21, 2001, Murphy moved for rehearing based upon new evidence or mistake to vacate final judgment. Murphy claimed that the déposition taken of the Health Options representative after the hearing revealed that it had a lien of only $10,357.30 and that it never claimed a lien of over $75,000. The representative stated that there were no negotiations between Health Options and Hersh regarding the reduction of any lien. Moreover, Murphy argued that Health Options filed a memorandum in court stating that its policy was an ERISA plan, and that the notice sent to it pursuant to Florida statute had no effect upon its right to recover its lien. Thus, Hersh’s claim that he waived such claims was incorrect and untruthful.

Murphy also took the deposition of the CIGNA representative, who stated that the lien amount it was claiming was $4,861.77.

Despite this new evidence, the trial court denied Murphy’s motion for rehear-' ing on the amount of attorney’s fees. This was error.

In Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366 (Fla.1995), the Supreme Court of Florida set out the proper criteria for determining the quantum meruit recovery of an attorney discharged without cause prior to resolution of the client’s case. See also Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982)(an attorney is entitled to the reasonable value of the services rendered on the basis of quantum meruit, but recovery is limited to the maximum fee set in the employment contract). Under the Searcy standard, the court must consider several factors in determining a quantum meruit award, taking into account the value of the services to the client. See Searcy, 652 So.2d at 369. The court recognized that the time reasonably devoted to the representation and a reasonable hourly rate, are factors to consider when determining a proper award. See id. Additionally, the court recognized that several other factors provide guidance in determining a reasonable fee, including the time and labor required, the novelty, complexity and difficulty of the issues involved, the likelihood that acceptance of the case will preclude other employment, the customary rate charged in the locality, the significance of or amount involved in the representation and result obtained, special demands or time limitations, the nature and length of the professional relationship with the client, the reputation and experience of the attorney, and whether the fee is fixed or contingent. See id. at 369 n. 4; see also Frank J. Pepper, Inc. v. Vining, 783 So.2d 1160, 1163 (Fla. 3d DCA 2001); R. Regulating Fla. Bar 4^1.5. The determination as to which factors are relevant in a given case, the weight to be given each factor and the ultimate determination as to the amount awarded are matters within the sound discretion of the court. See Searcy, 652 So.2d at 369.

In this case, it is apparent that the trial court gave great weight to the “results obtained” by Hersh, namely, Hersh’s claim that he obtained a waiver of $75,000 in subrogation liens from the healthcare providers and the $300,000 offer of settlement obtained from the insurance company. Other than this one factor, it does not appear from the order itself that the court considered any other Searcy factors in arriving at a determination as to the amount to be awarded Hersh.

As to the “results obtained” factor, the court’s findings are unsupported by the evidence. There is no evidence whatsoever to support Hersh’s claim that he saved Murphy $75,000 in subrogation liens from either Health Options or CIGNA. The record evidence shows that in February 2001, Hersh was notified by Health Options that it was seeking, by virtue of its subrogation clause under its ERISA plan, benefits in the amount of $10,357.30. Its representative testified that its lien amount was never more than the $10,357.30 and that there were never any negotiations with Hersh regarding the reduction of its lien.

Hersh also claims that in addition to the Health Options lien, he “wiped out” a CIG-NA health insurance hen of “approximately $75,000.” This claim is also unsupported by any record evidence. The CIGNA representative, deposed after the hearing, testified that CIGNA was claiming a lien of only $4,861.77. Thus, assuming that Hersh is entitled to any credit for “wiping out” these liens, the maximum amount for which he would be entitled to credit is $15,219.07, not the $75,000 claimed by Hersh and found by the trial court.

The record in this case shows that during the 10 months in which he had the case, Hersh expended only 14.20 hours. At most, Hersh sent some correspondence, gathered some, but not all medical records, and failed to communicate a settlement offer to his client. In the complete absence of record evidence to support the trial court’s findings, we reverse. We remand with directions to set as compensation for Hersh the 14.20 hours expended at a reasonable rate for like attorneys in the community.

REVERSED AND REMANDED.

GROSS, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree entirely with the majority opinion. I am writing separately to call the Florida Bar’s attention to the misrepresentation of fact made by attorney Brian Hersh in regard to his obtaining a benefit to the client of the waiver of subrogation liens totaling $75,000. When he first made this representation Mr. Hersh had no basis, so far as this record shows, for making it. He repeated it even after the alleged lienor testified that the lien would have been no more than $10,357.

Mr. Hersh has continued to misrepresent what he accomplished for the client to this court. On page two of appellee’s brief, under the statement of the facts, he states:

As a direct result of Appellee’s actions, the Plaintiffs’ recovery will not be subject to approximately $75,000 in subro-gation claims.

This misrepresentation was repeated in the summary of argument and argument sections of appellee’s brief.

The Comment to Florida Rule of Professional Conduct 4-3.3, which provides that lawyers shall not knowingly make false statements of material facts or law to a tribunal, indicates that the primary goal of this rule is to limit counsel in presenting the client’s case. What Mr. Hersh did in this case is, in my opinion, even more egregious than the type of misrepresentation contemplated by the rule, because this misrepresentation was made solely for the purpose of enriching Mr. Hersh, at the expense of his former client.


author: SHAHOOD, J.

text:
    Peter D. BARNA, Appellant, v. Angela C. BARNA, Appellee.
    No. 4D02-3332.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Aug. 13, 2003.

      Stephen N. Martyak, Palm Beach Gardens, and Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   SHAHOOD, J.

Appellant’s, Peter Barna, marriage was dissolved by final judgment entered on January 31, 2001. Pursuant to the final judgment, appellant was to pay child support and permanent alimony. Thereafter, he filed a “Motion for a Declaratory Judgment, Temporary Injunctive Relief, Permanent Injunctive Relief, Recusal and Certiorari Because the Postdissolution Permanent Spousal Support Provisions of Florida Statutes Chapter 61 Violate the Florida Constitution.” Following a hearing, the court entered an order denying appellant’s motion and reserving jurisdiction to hear the former wife’s pending motion for attorney’s fees and costs. The court later granted the former wife’s motion for fees. That order is the subject of this appeal.

Appellant raises several issues on appeal. We affirm on all issues and write only to address the court’s award of fees pursuant to section 57.105, Florida Statutes.

In the context of dissolution proceedings, appellant asserted his constitutional challenge to the alimony statutes. While appellant represented to the court that his actions did not require the former wife’s participation, the trial court found otherwise. In addition, the trial court found that appellant’s counsel’s attack on the alimony statutes was irrelevant, frivolous, and brought only to advance the cause of an unrelated client, the Alliance for Freedom from Alimony, Inc. As a result, the court awarded fees to the former wife for pursuing frivolous litigation brought without regard for the cost burden to the former wife.

Under section 57.105, Florida Statutes, the court may award fees to the prevailing party if at the time a claim or defense is presented to the court, the losing party knows or should know that it “[w]as not supported by the material facts necessary to establish the claim or defense” or “[wjould not be supported by the application of then-existing law to those material facts.” § 57.105(l)(a),(b), Fla. Stat. (2002); see also Read v. Taylor, 832 So.2d 219 (Fla. 4th DCA 2002). Based on the facts in this case, the trial court properly awarded fees pursuant to section 57.105, Florida Statutes. See, e.g., Morrone v. State Farm Fire and Cas. Ins. Co., 664 So.2d 972 (Fla. 4th DCA 1995)(sua sponte awarding appellate fees pursuant to section 57.105, Florida Statutes); see also Smyth v. Smyth, 417 So.2d 821 (Fla. 4th DCA 1982)(sua sponte awarding appellate fees pursuant to section 57.105, Florida Statutes).

AFFIRMED.

KLEIN and GROSS, JJ., concur.


text:
    Kenneth Byron FORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2590.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rehearing Denied Aug. 15, 2003.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm an order denying Appellant’s motion to withdraw plea. The record reflects that the motion is facially insufficient. Fla. R.Crim. P. 3.170(1); 9.140(b)(2)(A); Harris v. State, 818 So.2d 567 (Fla. 2d DCA2002).

GUNTHER, STONE and STEVENSON, JJ., concur.


text:
    James C. MORRISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2209.
    District Court of Appeal of Florida, First District.
    July 14, 2003.
    Petition Alleging Ineffective Assistance of Appellate Counsel — Original Jurisdiction.
    James C. Morrison, petitioner, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for respondent.
   PER CURIAM.

James C. Morrison petitions for relief on a claim of ineffective assistance of appellate counsel. However, inasmuch as his direct appeal is still pending before the court, his petition is premature and we deny it on that basis. Moreover, we note that the substantive issue raised in the petition is also raised in Morrison’s pro se initial brief in the direct appeal, and thus will necessarily be considered by the panel determining the merits of that proceeding.

PETITION DENIED.

ERVIN, PADOVANO and POLSTON, JJ., concur.


text:
    Eric BAIME, Appellant, v. Jill L. BAIME, Appellee.
    Nos. 4D01-2925, 4D01-4594, 4D02-93.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Rehearing Denied Aug. 13, 2003.
    Lisa Marie Macci of Lisa Marie Macci, P.A., and Eric Baime, Boca Raton, for appellant.
    Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., for appellee.
   SHAHOOD, J.

This appeal concerns the trial court’s award of attorney’s fees to the former wife following the court’s denial of the former husband’s petition for modification of child support. We reverse the order and remand for the trial court to make appropriate findings.

The trial court entered an order denying the former husband’s petition for modification, granting the former wife’s motion for fees, and reserving jurisdiction to determine the amount. Following a hearing, the trial court entered a Final Judgment Awarding Fees and Costs, requiring the former husband to pay a total of $44,203.37. It is not apparent from either order that the trial court considered the financial resources of the parties. See Ondrejack v. Ondrejack, 839 So.2d 867, 872 (Fla. 4th DCA 2003)(The standard for awarding attorneys fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay). The trial court is required to make findings regarding the parties’ respective financial needs and abilities to pay. See Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002). Failure to do so requires reversal. Id.

In addition, the trial court did not make the requisite findings as to the reasonableness of the fees requested, including the reasonableness of the former wife’s attorney’s time and hourly rate. Thus, reversal is required for the court to make these findings as well. See Saporito v. Saporito, 831 So.2d 697 (Fla. 5th DCA 2002)(reversal required where trial court does not make express findings as to number of hours reasonably expended and hourly rate); Ard v. Ard, 765 So.2d 106, 107 (Fla. 1st DCA 2000)(holding that even where there is competent substantial evidence in the record to support an award of attorney’s fees to the wife, the trial court must make factual findings with regard to the total number of hours expended by the wife’s attorney, the hourly rate, or the reasonableness of the fee).

REVERSED AND REMANDED.

KLEIN and GROSS, JJ., concur.


author: WARNER, J.

text:
    Jeffrey VALENCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-140.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Jeffrey Valencia, West Palm Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-EUen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Jeffrey Valencia, appellant, appeals an order summarily denying as untimely his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm.

After his conviction, appellant filed a petition for writ of mandamus to this court claiming in February 2001, he delivered to prison authorities a timely motion for post-conviction relief. He attached a copy of this alleged motion to the writ. Our court denied the petition after the state’s response indicated that the clerk’s office had no record of appellant’s motion.

After we denied the petition, appellant filed another motion for postconviction relief identical to the one attached to his petition for writ of mandamus. The trial court denied the motion as untimely as it was filed beyond the two-year period provided in Rule 3.850. Appellant appeals, claiming that because he turned his motion over to prison authorities within the two-year period, it was timely filed within the meaning of Haag v. State, 591 So.2d 614, 617 (Fla.1992).

Appellant has failed to establish, with any documents or affidavits, that he sent a motion for postconvietion relief to the court on February 28, 2001. He relies solely upon his own self-serving statements that he did so. Moreover, appellant’s motion for postconviction relief filed in October 2002 was not a copy of the one allegedly filed in 2001 but rather was a motion redrawn in 2002, as evidenced in the first line of the motion where it indicates, “Florida Rule of Criminal Procedure 3.850(g)(2002 Florida Rules of Court).” (Emphasis added). Because appellant apparently did not keep a copy of his alleged 2001 motion, we have no way of substantiating that his 2002 motion was the same motion and raised the same issues as the February 2001 motion.

The “mailbox” rule, which deems a petition or motion filed upon delivery to the prison officials for mailing, was premised on the availability of the logging of the prisoner’s mail. See Haag, 591 So.2d at 617. The court stated in Haag that “[u]n-less it appears on the face of the pleading that it was timely received by the prison officials, our opinion does not mean that the court must inquire into whether every late-filed pro se petition meets the test of the mailbox rule.” Id. at 617 n. 3. In Doty v. State, 792 So.2d 1248, 1249 (Fla. 2d DCA 2001), Jones v. State, 785 So.2d 561, 561 (Fla. 2d DCA 2001), and Bray v. State, 702 So.2d 302, 302 (Fla. 1st DCA 1997), cases in which an evidentiary hearing was conducted, the defendants attached affidavits and other documents attesting the delivery of their motions to the prison officials. Here there are none, not even the original motion which would show that it was sworn before a prison official. Further, there is nothing on the face of the pleading establishing the motion was timely delivered because appellant’s 2002 motion was not the original pleading. Without more, we conclude the trial court properly denied the motion as untimely.

Affirmed.

STONE, and SHAHOOD, JJ., concur.

      . In his reply to the state's response, he claims that the October 2002 motion is an "original copy.” That is belied by the reference to the 2002 rules.


author: SALCINES, Judge.

text:
    Richard Arlen LEPPERT a/k/a Richard A. Leppert, Jr., a/k/a Richard A. Leppert, II, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4113.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Richard Arlen Leppert a/k/a Richard A. Leppert, Jr., a/k/a Richard A. Leppert, II, has appealed the revocation of his community control in trial court case numbers 98-3929-CF, 98-4052-CF, 99-16-CF, and 99-17-CF. The public defender filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), questioning whether the trial court erred in revoking Leppert’s community control and in imposing the sentences thereon. In a pro se supplemental brief Leppert also challenges his sentences.

We hold that the trial court did not abuse its discretion when it revoked Leppert’s community control. See Brown v. State, 813 So.2d 202, 203 (Fla. 2d DCA 2002). The sentences orally announced by the trial court are legal; however, the written sentences in cases 98-3929-CF, 98-4052-CF, and 99-16-CF do not comport with the oral pronouncements and must be remanded for correction of scrivener’s errors. See Allison v. State, 825 So.2d 504, 504 (Fla. 2d DCA 2002). Accordingly, we affirm the convictions, affirm the sentence imposed in case 99-17-CF; and remand the sentences in cases 98-3929-CF, 98-4052-CF, and 99-16-CF for correction of scrivener’s errors.

Affirmed and remanded.

ALTENBERND, C.J., and KELLY, J., Concur.


author: FULMER, Judge.

text:
    Franklyn GLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-230.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.
   FULMER, Judge.

FranHyn Glinton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Glin-ton alleged that his nolo contendere plea to robbery was involuntary because he was not informed of the deportation consequences of the conviction. His claim is facially insufficient because he has not affirmatively alleged nor demonstrated that he is threatened with deportation as a result of the robbery conviction. See Mendez v. State, 805 So.2d 905 (Fla. 2d DCA 2001); Bellevue v. State, 794 So.2d 730 (Fla. 3d DCA 2001). Therefore, we affirm without prejudice to whatever right Glin-ton may have to file a facially sufficient rule 3.850 motion if he can establish that his robbery conviction has resulted in a threat of deportation. Any such motion filed within sixty days of the issuance of this mandate shall be deemed timely filed and shall not be denied as successive.

Affirmed.

STRINGER and CANADY, JJ., Concur.


text:
    James William BURNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3798.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.

      James William Burney, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to any right Burney might have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a).

Affirmed.

WHATLEY, STRINGER, and COVINGTON, JJ., Concur.


text:
    David R. CARTER, Sr., Appellant, v. Roberta CARTER, as guardian of the property of David Carter, Jr. and Cayla Nicole Carter; and Enterprise Leasing Company, a foreign corporation, Appellees.
    No. 1D03-2061.
    District Court of Appeal of Florida, First District.
    July 21, 2003.
    Terence J. Kann, Gainesville, for Appellant.
    Dennis P. Dore of Dore, Lanier, Noey & Fannin, Jacksonville, for Appellee Enterprise Leasing Company.
   PER CURIAM.

The appellant brought this appeal seeking review of an order that granted a motion for summary judgment. However, because the order on appeal did not enter judgment, the order is not final and this Court lacks appellate jurisdiction to review it. Cf. McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). See generally Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). As the appellant concedes that the instant order is not ap-pealable, the appeal is hereby DISMISSED.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Martha J. TANNER, Appellant, v. Stephen C. TANNER, Appellee.
    No. 1D02-4035.
    District Court of Appeal of Florida, First District.
    July 21, 2003.
    Gary N. Holthus, Esquire, Gainesville, for Appellant.
    John R. Nettles, Esquire, Gainesville, for Appellee.
   PER CURIAM.

Appellee concedes the trial judge erred by including a provision in the Amended Final Judgment of Dissolution, not requested by the parties, that terminates the former wife’s entitlement to periodic alimony upon remarriage or cohabitation, whichever comes first. See Bridges v. Bridges, 842 So.2d 983, 984 (Fla. 1st DCA 2003)(agreeing that Florida law does not recognize cohabitation as a basis for automatic termination of court ordered alimony). The amended final judgment is reversed and remanded to the trial court with directions to strike that portion of the judgment automatically terminating the former wife’s periodic alimony upon cohabitation.

We find no merit in the any of the other issues raised by the former wife on appeal or by the former husband’s cross-appeal.

AFFIRMED in part, REVERSED in part and remanded with instructions.

WEBSTER, PADOVANO and POLSTON, JJ., concur.