author: POLEN, J.

text:
    Myrna VELILLA, as Next Friend to Sara Velilla, Appellant, v. VIP CARE PAVILION LTD., a Florida corporation d/b/a Vip Care Pavilion, and Scott Colton, Appellees.
    No. 4D02-2162.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Rehearing Denied Dec. 31, 2003.

      Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, Jeffrey M. Fenster and Stacie L. Cohen of Fenster and Faerber, P.A., Plantation, for appellant.
    Kenneth R. Drake of Demahy Labrador & Drake, P.A., Coral Gables, for appellees.
   POLEN, J.

Myrna Velilla (“Myrna”), on behalf of her deceased mother Sara Velilla (“Sara”), filed an action alleging that VIP Care Pavilion, an assisted living facility, violated her mother’s rights under the Florida Assisted Living Facility Act. After deliberating for under an hour, a jury ruled in favor of VIP. Myrna raises three arguments on appeal. First, Myrna contends a new trial is warranted due to the erroneous admission of collateral source evidence. Second, she claims VIP improperly shifted the emphasis away from VIP’s violation of her mother’s rights and on to the availability of Medicare to pay for her mother’s care. Last, she asserts the trial court erred in denying her motion to strike the affirmative defense alleging her (Myrna’s) comparative fault. For the reasons expressed below, we agree on all three points and reverse the judgment, remanding for a new trial in accordance with this opinion.

Sara Velilla lived at home with her husband, daughter, and son-in-law prior to being relocated to VIP. She was blind, had diabetes, dementia, Alzheimer’s and other medical issues associated with old age. In March of 2000, her husband and daughter were both hospitalized and the family determined that Sara should be placed in an assisted living facility.

Myrna, Sara’s daughter and health care surrogate, contacted the state who sent her a list of assisted living facilities. Myrna and her husband met with VIP’s director of marketing and activities, Stacey Hamilton. Hamilton explained that VIP was trained to deal with patients like Sara. Hamilton then met with Sara at home to assess her and evaluate whether VIP was appropriate. Hamilton accepted Sara into the facility. Sara moved into VIP on March 14, 2000.

On March 20, 2000 an entry was made in Sara’s chart that read “[rjesident is favoring right hip, right side, continues to ambulate but with one-man assist. Has small bruise on left hand from possible hand stuck in door jamb. Something with the hip. Possible fall and hit wall.” The family was notified of the incident. The family decided not to send her to the hospital, but to have a mobile x-ray done. The x-ray came back negative.

Ms. Parola was the director of nursing at VIP. Parola allegedly called the family and advised them they should put on a private duty nurse who could provide one-on-one care. She explained that a one-on-one nurse would reduce the risk of falls, but not prevent them. Parola testified that the family told her they could not afford that option and that they can barely afford the monthly payment now. Myrna denied that anyone from VIP ever told her that her mother needed that type of care or offered her that option.

On April 8, 2000 another report was made. That report stated that Sara “lost her balance while walking independently in hallway. She fell to the floor on left side. She’s complaining of pain to the right side two to three inches above right knee.... ” The x-ray results, received two days after the fall, indicated Sara had bilateral hip fractures and a broken pelvis. She was brought to the hospital, had surgery, and stayed in the hospital for about a week. After being discharged from the hospital, Sara went to a rehabilitation center. The family was not interested in sending her back to VIP. Sara ended up in a nursing home in North Miami. She never walked after the incident, was bedridden, could no longer feed herself, was totally dependent on others for her care and did not recognize anyone. The Velilla family brought this cause of action alleging that VIP violated Sara Velilla’s statutory rights under section 400,429, Florida Statutes. A jury found no liability on the part of VIP.

Velilla initially seeks reversal based on the admission of collateral source evidence. Velilla contends that the trial court erred in allowing in testimony that Sara was entitled to Medicaid benefits which would help cover the cost of her care.

In Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984), a medical malpractice action, the trial court permitted the admission of evidence that there were free or low-cost charitable and governmental programs available in the community to meet the needs of the plaintiffs injured child. The district court determined the admission of such evidence was error and held that the admission of the evidence violated the collateral source rule. Id. at 515. The Florida Supreme Court disagreed arid ruled that “the collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care.” Id. at 515.

As stated by the Third District, Stanley “modified the collateral source rule to allow admission of evidence of the existence of governmental or charitable health care benefits.” Winston Towers 100 Ass’n, Inc. v. De Carlo, 481 So.2d 1261, 1262 (Fla. 3d DCA 1986).

In Parker v. Hoppock, 695 So.2d 424 (Fla. 4th DCA 1997) this court discussed Stanley. Parker clarified that “[t]he holding in Stanley applies only to testimony concerning benefits available to all citizens regardless of wealth or status and then only on the issue of the reasonable cost of a plaintiffs future medical care.” Id. at 428. The defendants in Parker argued that because the benefits were not paid for or earned by plaintiffs, there was no reason to exclude reference to those benefits from evidence. This court rejected that argument explaining that

[WJhile there is dicta in Stanley that the common-law collateral source rule excluding testimony about benefits received by a plaintiff should be limited to those benefits earned in some way by the plaintiff, the term “collateral sources” has never been limited to those benefits that a plaintiff has earned or paid for.

Id. at 428 (internal citations and quotations omitted).

On appeal, VIP asserts that the evidence was not collateral source evidence, and therefore properly admitted, because it did not address any benefits actually received by Sara Velilla. In Parker, this court specifically rejected this argument. Moreover, Parker emphasized that even if the evidence comes in under the Stanley exception, it is admissible only on the issue of the reasonable cost of a plaintiffs future medical care. The record makes clear, and VIP acknowledges, that the evidence of Medicaid benefits in this case did not go to the issue of Sara Velilla’s future medical care. For that reason we conclude the trial court erred in allowing this testimony to come in.

In Sheffield v. Superior Insurance Co., 800 So.2d 197 (Fla.2001) the court recognized the inherently damaging effect of a jury hearing such evidence. This record does not support a conclusion that this error was harmless. Further, we find no support in the record for VIP’s assertion that the Plaintiff opened the door to this testimony. Therefore, we reverse the order below and remand for a new trial. In so doing, we caution that upon remand there should be no reference to Medicare or Medicaid benefits.

Myrna next alleges that the trial court erred in allowing VIP to interject the financial situation of the Velilla family into the case. Once again, we agree. Appellant relies on Batlemento v. Dove Fountain Inc., 593 So.2d 234 (Fla. 5th DCA 1991). In Batlemento, the Fifth District commented that “[t]he general rule is that during trial no reference should be made to the wealth or poverty of a party.” Id. at 241. In Batlemento the evidence adduced at trial, under the auspices of being relevant to punitive damages, was that the appellee had cashed in insurance policies, mortgaged the home, and basically lost all his money as a result of the alleged fraud. The court concluded that the evidence of the appellee’s financial circumstances was not relevant and held that introduction of such evidence was erroneous. Id. at 242.

This court discussed Batlemento in Sossa v. Newman, 647 So.2d 1018 (Fla. 4th DCA 1994). Sossa is instructive. In Sos-sa, counsel for Defendants stressed the fact that the Plaintiff never returned to any of her medical providers. This court recognized that implicit in this line of argument was the contention that if the Plaintiff did not return to the doctors, then she may not have actually been injured. In order to rebut this contention, Plaintiffs attempted to elicit testimony from the plaintiffs father that the reason Plaintiff did not return for further medical treatment was due to a lack of financial resources. The trial court sustained defense counsel’s objection on relevancy grounds. This court, after acknowledging the general rule discussed in Batlemento, reversed and reasoned as follows:

In the instant case, however, Defendants repeatedly stressed the fact that Plaintiff Ridda never returned to any of her medical providers. In essence, Defendants were arguing that Plaintiff Ridda was not hurt in the instant accident otherwise she would have continued her medical treatment. Thus, by this tactic, Defendants opened the door to the issues of Plaintiffs’ financial ability to continue medical treatment and Plaintiff Ridda’s reason for failing to return to her doctors. See Whiteley v. OKC Corp., 719 F.2d 1051 (10th Cir.1983). Under these limited circumstances, Plaintiffs should have been able to elicit testimony from the father that the reason Plaintiff Ridda did not return to her doctors was due to the family’s financial inability to pay for further medical treatment.

Id. at 1020.

VIP’s director of nursing, Parola, testified that she called the Velilla family and advised them they should put on a private duty nurse who could provide one-on-one care for Sara. According to Parola, the family told her they could not afford that option. This testimony, and any additional testimony that may have come in regarding the financial situation of the Velilla family, violated the general rule discussed in Batlemento.

The case at bar is distinguishable from Sossa. In Sossa, the testimony regarding the financial status of the plaintiff came in to explain the family’s failure to obtain medical care. The case sub judice is not such a case. In this case, the Velilla family did obtain medical care. Sending Sara Velilla to VIP was that care. On remand testimony regarding the financial status of the Velilla’ family should be precluded.

Last, Myrna asserts that the trial court erred in denying her motion to strike VIP’s affirmative defense alleging the comparative fault of Myrna Velilla. This argument is premised on Myrna’s assertion that a statutory enforcement action under section 400.429, Florida Statutes, is not a negligence action in form or substance. We need not address this issue as the record plainly demonstrates there was no negligence on the part of Myrna Velilla in this case. This is not a case where a family member fails to seek medical care. Velilla sought the care of VIP; the issue then is, did VIP provide adequate care.

REVERSED AND REMANDED for a new trial, consistent with this opinion.

STONE, J„ and ROSENBERG, ROBERT A., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3478.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Rehearing Denied Dec. 18, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003)(citing State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, Nos. SC03-413, SC03-532, 854 So.2d 659 (Fla. Sept. 19, 2003)).

AFFIRMED.

BROWNING, POLSTON and HAWKES, JJ., concur.


text:
    Juan MARQUEZ, Appellant, v. Patricia DUQUE, Appellee.
    No. 3D03-816.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Stephen H. Butter, Aventura, for appellant.
    Maria E. Medel, Miami, for appellee.

      Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Perez v. Perez, 687 So.2d 1359 (Fla. 3d DCA 1997).


text:
    U.S. PROJECT MANAGEMENT, INC., a Florida corporation, Appellant, v. PARC ROYALE EAST DEVELOPMENT, INC., a Florida corporation, Appellee.
    No. 4D03-119.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Rehearing Denied Dec. 31, 2003.

      James D. Ryan and Lauren J. Schindler of Ryan & Ryan, Attorneys, P.A., North Palm Beach, for appellant.
    Daniel H. Coultoff and Catherine J. Livingston of Gronek & Latham, LLP, Orlando, for appellee.
   POLEN, J.

Parc Royale East Development, Inc., a condominium developer,- ■ retained U.S. Project Management, Inc., a real estate development consulting firm, under a Consulting Agreement in 1994 for its Ocean Royale condominium project in Juno Beach, Florida. One of the contract’s provisions obligated Parc Royale to pay U.S. Project a monthly fee. Another provision required Parc Royale to pay an incentive fee based on a specified scale after all units had been sold, provided a profit was realized. U.S. Project allegedly provided its services from May 15,, 1994 through July 14, 1997, at which time it was excused from its consulting duties under the contract because Parc Royale refused to pay U.S. Project its monthly fees for any of the services rendered in 1997. Parc Ro-yale’s alleged position was that no payments were due because the contract no longer existed.

In 1997, U.S. Project filed suit for breach of contract, specifically for failure to pay the monthly fee, seeking an award for all of its damages flowing from' its expectation under the Consulting Agreement. The expectation under the Consulting Agreement was U.S. Project’s monthly fee due and owing, plus a percentage of the future profits due under the incentive fee provision which would have become due after a reasonable time upon the sale of the last residential unit. At the time of this prior litigation, the condominium was not completed and the units had not all been sold. At trial in the prior litigation, the lower court found that

[U.S. Project] has not shown, by the greater weight of the evidence, that there was a breach of the contract nor causation of damages which meet the appropriate standard for recovering future profits where a contract has not been fully performed. The law requires that damages for prospective profits be shown with reasonable certainty.

U.S. Project appealed this final judgment, and this Court affirmed without issuing an opinion on October 4, 2000. U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 773 So.2d 1163 (Fla. 4th DCA 2000).

U.S. Project concedes that it has not performed any work under the Consulting Agreement since before the filing of the prior litigation. Notwithstanding, U.S. Project claims that the incentive fee became presently due under the Consulting Agreement, since all units in the Ocean Royale development were sold and a profit was realized. Thereafter, U.S. Project filed suit for breach of contract on August 1, 2002, because Parc Royale refused to pay the incentive fee that was now currently due. The case was transferred to the same trial judge that presided over the prior litigation. The trial court granted a motion to dismiss stating:

this lawsuit is barred by res judicata, that there is no new conduct which would be the breach other than now we have the sales and now we think that the money should be paid. The issue was raised in the first suit, it was decided in favor of [Parc Royale] at that time, and there was nothing said here that convinces the court that it’s in any way a separate and distinct cause of action. I think that the principles of res judicata preclude the lawsuit on its face. The matter of incentive payments was raised, was considered, and was determined.

Whether a complaint should be dismissed is a question of law. “To rule on a motion to dismiss, a court’s gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true.” Alevizos v. John D. and Catherine T. MacArthur Found., 764 So.2d 8, 9 (Fla. 4th DCA 1999). The appropriate standard of review on appeal for a motion to dismiss is de novo. See K.W. Brown and Co. v. McCutchen, 819 So.2d 977 (Fla. 4th DCA 2002). Generally, defenses such as res judicata are not properly considered on a motion to dismiss. See, e.g., Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000)(citing United Servs. Auto. Ass’n v. Selz, 637 So.2d 320 (Fla. 4th DCA 1994)). There is, however, an exception to this general prohibition when the face of the complaint is itself sufficient to demonstrate the existence of the defense. See, e.g., Ramos v. Mast, 789 So.2d 1226, 1227 (Fla. 4th DCA 2001).

“In order for a final judgment to bar further litigation based upon principles of res judicata the judgment must reflect 1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action, and 4) identity of the quality in the person for or against whom the claim is made.” Hittel v. Rosenhagen, 492 So.2d 1086, 1089 (Fla. 4th DCA 1986); Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953). Thus if there is no common identity of the cause of action, the defense of res judicata will be unsuccessful. The general test when “deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.” Hittel, 492 So.2d at 1090 (citing Albrecht v. State, 444 So.2d 8, 12 (Fla.1984)).

Both parties concede that this action arises out of the same agreement, between the same parties, and in their same capacities under the agreement. However, U.S. Project contends there is no common identity of the cause of action. Though both actions involve breach of contract, U.S. Project is now suing based on a subsequent breach of the Consulting Agreement (failure to pay the incentive fee), and not the same breach from the prior litigation (failure to pay the monthly consulting fees). Under the ■ Consulting Agreement, Parc Royale’s obligation to pay the incentive fee did not become due until after the project was completed, the condominium units were all sold, and a profit was realized. This did not occur until long after the prior litigation had commenced.

Consequently, we find no common identity of the cause of action because the evidence necessary to maintain the first suit for breach of contract is different from the evidence needed in the current suit. In the prior litigation, the key issue as to whether or not there was a breach was whether the monthly fees had been paid pursuant to the Consulting Agreement. Now, however, the key issue in determining breach is whether or not Parc Royale paid the incentive fee pursuant to the Consulting Agreement, due upon sale of the last unit. Though the action involves the same contract, and the evidence considerably overlaps, each claim requires additional evidence which the other does not. The fact that Parc Royale was not in breach of contract with regard to the monthly fee provision, should not necessarily preclude a finding that it subsequently breached the incentive fee provision.' The final judgment merely states that although the existence of the contract was proved, neither “breach of contract nor causation of damages which meet the appropriate standard for recovering future profits where a contract has not been fully performed” was proved. Due to the vagueness of the final judgment, as a matter of law, this Court cannot say with certainty that the trial court intended the judgment to bar all claims for any possible subsequent breaches. To reach a contrary conclusion would seemingly be inconsistent with the findings in the final judgment. If a valid contract, which has yet to be fully performed, has been proved, then there must be performance to become due in the future. Following that logic, it is also possible to breach that contract by failing to perform that future bargained-for act. The defense of res judicata is inapplicable because the alleged new breach constitutes a new cause of action.

The enforceability of contracts is a bedrock principle of our society. When a contract has many provisions, an unsuccessful suit for breach of one provision should not act to bar all further suits for subsequent breaches of that contract. At the time of the prior litigation, the incentive fee had not become due. The existence of a contractual remedy allowing one to seek all expected benefits from a breached contract should not be determinative of the identity of the cause of action for res judicata purposes. Otherwise, a finding of no breach in a breach of contract action will essentially give the victorious party a “get out of jail free” card, enabling that party to subsequently breach without being subject to legal recourse. Alternatively, a party who is unwilling to seek all expected benefits under a contract because of the risk of forfeiture if ultimately unsuccessful at trial will only burden judicial resources when such matters can properly be handled in one consolidated action.

U.S. Project relies on an analogy to a mortgage foreclosure action and the two-dismissal rule. ■ We are unpersuaded by its argument in this regard. We need not address U.S. Project’s remaining issue. The order of the trial court granting Parc Royale’s motion to dismiss is reversed and remanded for further proceedings without prejudice to any affirmative defenses.

REVERSED AND REMANDED.

STONE, J., and ROSENBERG, ROBERT A., Associate Judge, concur.


author: WELLS, J.

text:
    Daniel Anthony BURNES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-352.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, and WELLS, JJ.
   WELLS, J.

Daniel Anthony Burnes appeals from his conviction for armed burglary with assault contending that Delgado v. State, 776 So.2d 233 (Fla.2000), requires reversal. We agree and reverse.

Burnes was convicted on two counts of second degree murder and on one count of burglary with assault resulting from events that occurred during the evening of February 7 and in the early morning hours of February 8, 1999. The evidence showed that Burnes, Bernard Clark and Clifton Felder were together throughout the evening of February 7, first at Clark’s home, then at the home of a third person, and ultimately at Clark’s home again. It appears from the record that Burnes was voluntarily admitted to Clark’s home on each occasion and that within minutes after Burnes made a number of telephone calls from Clark’s home on February 8, shots were heard and Clark and Felder were found dead inside Clark’s home.

Burnes was charged with burglary then defined as “entering or remaining in a dwelling ... with the intent to commit an offense therein....” § 810.02(1), Fla. Stat. (1999). At the time Burnes committed this crime and was charged, the “remaining in” portion of the burglary statute could be proved by showing commission of a crime following consensual entry because the victim, upon learning of the crime, “implicitly withdraws consent to the perpetrator’s remaining in the premises.” E.g., Ray v. State, 522 So.2d 963, 966 (Fla. 3d DCA 1988).

However, on February 3, 2000, the Florida Supreme Court decided Delgado, in which it receded from several of its own prior decisions, to interpret the “remaining in” portion of the burglary statute to apply “only in situations where the remaining in was done surreptitiously.” Delgado, 776 So.2d at 240.

Burnes was tried in October 2001. Relying on Delgado, Burnes moved for a judgment of acquittal claiming that there was no evidence that he remained in Clark’s home surreptitiously. The State conceded the lack of evidence on this element but successfully argued that Delgado was inapplicable because the Legislature had overruled it. The State reasserts that same argumént here and additionally claims that because this case was not “pending” at the time Delgado was decided, Delgado is inapplicable. We disagree on both points.

The State correctly contends that while amending the burglary statute, to in part reconfirm the pre-Delgado definition of burglary, the Legislature expressly stated that Delgado “was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado,” and that the Legislature intended that Delgado “be nullified.” Ch.2001-58, §§ 1, 2, Laws of Fla. However, in Braggs v. State, 815 So.2d 657 (Fla. 3d DCA 2002)(en banc), review granted, 829 So.2d 919 (Fla.2002), we concluded that the Legislature’s post-Delgado statement of intent did not overrule Delgado, because “the Florida Supreme Court ... is the only body which can recede from Delgado. Unless and until the Florida Supreme Court overrules Delgado, we are obliged to follow it.” Braggs, 815 So.2d at 659-660 (citation omitted).

We also rejected the notion that the Florida Supreme Court had receded from Delgado. As we pointed out, “[pjerhaps the Florida Supreme Court will recede from- Delgado; perhaps not. But at this writing, the court has not done so and we are obliged to follow Delgado.” Braggs, 815 So.2d at 661.

' The fact that the Supreme Court has not yet receded from Delgado (and that Delgado .survived the enactment of section 810.015) was recently confirmed by Fitzpatrick v. State, 859 So.2d 4,86, 2008 WL 22097482 (Fla. Sept. 11, 2008), where the Florida Supreme Court applied Delgado to reverse a first-degree murder conviction and sentence of death. In Fitzpatrick, as here, the crime ivas committed before the initial release of Delgado on February 8, 2000, and before February 1, 2000, the date on which the Legislature’s attempted nullification of Delgado was to become effective. And, Fitzpatrick, like Burnes, was tried, convicted and sentenced after Delgado (February 3, 2000), and after the effective date of the statement of Legislative intent (February 1, 2000). The Fitzpatrick court nonetheless applied Delgado to reverse Fitzpatrick’s conviction and sentence.

As Justice Wells’ dissent in Fitzpatrick makes crystal clear, burglaries “committed” before the July 1, 2001 amendment to section 810.02 (which expressly defined burglary as both surreptitiously remaining in and remaining in with the intent to commit an offense after permission to remain has been withdrawn), but not adjudicated to finality (“meaning affirmed on direct appeal”) before Delgado, must satisfy Delgado:

... [W]e presently have the following situation. We have individuals serving sentences for valid convictions of burglary ... based on the burglary statute as construed by this Court prior to Delgado. Those sentences are being served in conformity with a construction of the burglary statute which the Legislature has stated was as the Legislature intended. See § 810.015, Fla. Stat. (2001). Those sentences are also being served in conformity with the present application of the burglary statute for offenses committed after July 1, 2001. See § 810.02(l)(b), Fla. Stat. (2002).
Yet, we also have individuals such as the defendant in the instant case, who are convicted of committing the same elements of a crime as the individuals described above based on similar facts that occurred during the same time period, who will nonetheless have their convictions reversed because their convictions were not “final” prior to the issuance of Delgado. This is true even though the language of the burglary statute did not change and was precisely the same express language for both those individuals whose convictions were final and those whose convictions were not final prior to Delgado. Furthermore, we have individuals who have yet to be prosecuted for burglary who will potentially receive the benefit of Delgado simply because the events leading to their prosecution were committed on or before July 1, 2001.
* * *
... Continuing to follow the Delgado decision ... will result in similar facts receiving dissimilar treatment in the courts, depending solely on when an offender’s conviction became final or whether the alleged criminal activities occurred on or before July 1, 2001....

See Fitzpatrick, 859 So.2d at 493-94, Wells, J. dissenting (emphasis added). In sum, Delgado has not been receded from and applies to crimes committed but not adjudicated to finality before that decision.

Based on the fact that there was no evidence that Burnes remained “surreptitiously” in Clark’s home, and on the State’s concession below that if Delgado applied, Burnes’ motion for judgment of acquittal had to be granted, Burnes’ conviction for burglary is reversed and this matter remanded for further proceedings consistent with this opinion.

      . Burnes does not challenge the murder convictions.

      . The original decision in Delgado was issued February 3, 2000. The opinion was withdrawn and superseded on rehearing on August 24, 2000, in Delgado v. State, 776 So.2d 233 (Fla.2000).

      . Fitzpatrick, 859 So.2d at 493.

      . As we did in Braggs and Ruiz v. State, 841 So.2d 468, 469 n. 1 (Fla. 3d DCA 2002), review granted, 829 So.2d 919 (Fla.2002), we certify that we have passed on the following question of great public importance:
      WHETHER SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, HAS LEGISLATIVELY OVERRULED DELGADO v. STATE, 776 So.2d 233 (Fla.2000) FOR CRIMES COMMITTED ON OR BEFORE JULY 1, 2001?


text:
    FAST LAUNDRY II, Appellant, v. Richard V. GRAY, as Personal Representative of the Estate of Gregoria Palomares, Appellee.
    No. 3D02-2581.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Luis E. Ordonez, and Frances F. Guasch, for appellant.
    Goldfarb, Gold, Gonzalez & Wald, and Estrella F. Gonzalez, Miami; and Barbara Green, Hayward, for appellee.
    Before LEVY, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Fast Laundry II (“Fast Laundry”), appeals the granting of appellee, Gregoria Palomares’ (“plaintiff’) motion for judgment notwithstanding the verdict (“JNOV”). The plaintiff cross-appeals a jury instruction on a Fabre defense. See Fabre v. Marin, 623 So.2d 1182 (Fla.1993). We reverse with directions to reinstate the jury’s verdict and affirm the cross-appeal.

The plaintiff sued Fast Laundry in a premise liability action to recover damages for injuries sustained when plaintiff slipped and fell as she entered Fast Laundry’s laundromat. Plaintiff alleged that Fast Laundry negligently maintained the premises and failed to warn of or mark the area of the step-down. Fast Laundry was permitted to identify Fabre defendants including the landlord/owner and the contractor.

The jury awarded plaintiff $200,000.00, finding Fast Laundry 20% at fault, and the landlord/owner and contractor, both 40% at fault. Plaintiff then moved for a JNOV on the issue of the non-parties comparative fault. The trial court, thereafter, granted the JNOV and apportioned 100% fault on Fast Laundry. Fast Laundry contends that the trial court erred in granting the plaintiffs motion for JNOV. We agree.

The party seeking a JNOV admits all material facts as attested by his adversary and all inferences that reasonably might be drawn from the evidence as a whole. See Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla. 2d DCA 1964). Trial courts may grant motions for JNOV only when there is no evidence or inferences which may support the opposing party’s position. See Stirling v. Sapp, 229 So.2d 850 (Fla.1969); United Farm Agency of Florida, Inc., v. DELS, Inc., 560 So.2d 1212 (Fla. 3d DCA 1990).

A review of the record shows that the evidence and inferences, when viewed in the light most favorable to Fast Laundry, support the jury’s verdict. See United Farm, 560 So.2d at 1213. Accordingly, we reverse and remand with instructions to vacate the JNOV and reinstate the jury’s verdict. We affirm the cross appeal, finding the trial court did not err in instructing the jury on the Fabre defense.

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


author: WELLS, Judge.

text:
    Robert CHEETHAM, etc., et al., Appellants, v. John BRICKMAN a/k/a Jack Brickman, Appellee.
    No. 3D03-224.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Rehearing Denied Dec. 10, 2003.
    Rosenthal Rosenthal Rasco and Eduardo I. Rasco, Aventura and Jessica B. Lass-man, for appellants.
    Judith H. Hayes, Miami, for appellee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   WELLS, Judge.

Robert Cheetham, the defendant below, appeals an order awarding attorney’s fees under section 57.105, Florida Statutes (2002) and costs to the plaintiff, John Brickman. We reverse.

Brickman filed a claim against Cheetham for breach of fiduciary duty based solely on allegations that Cheetham had sold Brickman’s interest in a tract of land without prior notice to Brickman and for an amount “substantially under the market value of the said real property.” Following a non-jury trial, final judgment was entered in Cheetham’s favor upon a finding that Cheetham had “obtained a price which ... was higher than the fair market value of the land, and therefore maximized the proceeds to BRICKMAN.” The trial court nevertheless awarded 57.105 attorney’s fees and costs to Brick-man on the ground that Cheetham had indefensibly failed to turn over the sale proceeds until after initiation of the lawsuit.

We reverse the fee award because the distribution of sale proceeds was never the subject of either a claim or a defense in this action at any time, nor was this issue tried below. § 57.105(1), Fla. Stat. (2002)(authorizing awards of attorney’s fees to parties prevailing on “any claim or defense” unsupported by fact or law). There also is no evidence that Cheetham took any action “primarily for the purpose of unreasonable delay” within the meaning of section 57.105(3) of the Florida Statutes.

We also reverse the award of costs. The law is clear that only a prevailing party who recovers a judgment is entitled to recover costs under section 57.041, Florida Statutes (2002). See Arellano v. Bisson, 761 So.2d 365, 366 (Fla. 3d DCA 2000); Fernandez v. Hendry Tractor Co., 406 So.2d 1213, 1214 (Fla. 3d DCA 1981).

Finally, a fee award to Cheetham was rejected below on the finding that Cheet-ham had failed to pay sales proceeds to Brickman until after suit had been filed, thereby entitling Brickman rather than Cheetham to a fee award — a determination that we reverse here. We therefore remand for entry of a fee award to Cheet-ham on his offer of judgment.

Reversed and remanded.

      . Brickman also alleged that Cheetham had collected sums for allowing a third person to place fill on the property and that Cheetham had borrowed $5,000 from Brickman that had never been repaid. These two claims were involuntarily dismissed following trial.

      . The trial court awarded the fees under the current version of the statute, which provides:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney's fees to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing parly's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.

      § 57.105, Fla. Stat. (2002). Even if the former version of statute were applicable here, see Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003), the award of fees in this case would have been equally inappropriate.


text:
    Braulio LOPEZ, Appellant, v. Alberto VELASCO & Aarla, Appellees.
    No. 1D02-4846.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Rehearing Denied Dec. 17, 2003.
    David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellant.
    Mary Frances Burnett of Eraclides, Johns, Hall, Gelman, Eikner & Johannes-sen, L.L.P., Fort Myers, for Appellees.
   PER CURIAM.

In this Workers’ Compensation case, the claimant’s counsel seeks review of an order of the Judge of Compensation Claims that, without more, informed the parties that the judge did not find reasonable and would not approve the amount of attorneys’ fees sought in connection with the parties’ lump-sum settlement and side stipulation thereto. Upon further consideration of the claimant’s response to this Court’s order to demonstrate why this appeal should not be dismissed for lack of jurisdiction, we conclude that the JCC’s order is interlocutory and is not appeal-able. See Fla. R. App. P. 9.180.

Appeal dismissed.

ALLEN, DAVIS and BENTON, JJ., concur.


author: KLEIN, J.

text:
    Harry PAPPAS, Appellant, v. SMART HEALTH U.S.A., a foreign corporation, Malibu Medica, a foreign corporation, Fred Buckley and General Nutrition Corporation, a foreign corporation, Appellees.
    No. 4D02-2300.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Rehearing Denied Jan. 5, 2004.
    Gus H. Carratt of Morgan, Carratt and O’Connor, P.A., Fort Lauderdale, for appellant.

      Joseph T. Kissane of Hinshaw & Culbertson, Jacksonville, for appellee General Nutrition Corporation.
   KLEIN, J.

Appellant plaintiff sued the appellees for using his picture in an advertisement without his permission. He alleged invasion of privacy and a violation of section 540.08, Florida Statutes (2000), which imposes liability for using a person’s name or likeness in a commercial advertisement without consent. The advertisements, which were not prepared or authorized by General Nutrition Corporation (GNC), indicated that the product could be purchased at GNC stores. We affirm a summary judgment holding that GNC is not liable.

Defendant Buckley, who was employed by Smart Health, used a picture of plaintiff, his former high school coach, in an ad for an herbal product which supposedly cures impotency. Buckley copied the picture from his high school yearbook. The ad also contained an alleged quote from plaintiff, suggesting that his sex life had improved, signed “Harry P.” Plaintiff had not authorized this.

One of the ads stated that the product was available at “GNC & other fine health food stores,” while another contained the statement “Herbal V. from Smart Health USA is available at Fine Health Food Stores Nationwide including General Nutrition Centers.”

On motion for summary judgment GNC established that these ads were created entirely by Buckley for Smart Health, and neither approved nor authorized by GNC. GNC does permit its vendors to state in advertisements that a particular product is available at GNC stores.

Plaintiff does not dispute these facts, but argues that there are inferences from which it could be found that Smart Health is the agent of GNC. Plaintiff relies for that inference on evidence that GNC permitted vendors of products to state that the products are available at GNC stores.

In Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995), plaintiff was beaten by an employee of a gas station owned by Mobil Oil, but leased to Berman. The plaintiff sued Mobil on the theory that Berman was Mobil’s agent because Mobil products were sold and Mobile trademarks and logos were displayed. The Florida Supreme Court affirmed a summary judgment in favor of Mobil, stating that the mere permissive use of Mobil’s name did not create an agency relationship. The permissive use of its name in the present case did not create an agency by GNC anymore than Mobil’s actions did in Bransford. See also Charles of the Ritz Group, Ltd. v. Quality King Distrib., Inc., 664 F.Supp. 152 (S.D.N.Y.1987) (cosmetic supplier was not responsible for the contents of advertisements published by retailers); Pittman v. Dow Jones & Co., Inc., 662 F.Supp. 921, 922 (E.D.La.1987) (a newspaper does not have a duty to investigate the accuracy of an advertisement placed with it).

In the present case, the pleadings do not allege an agency relationship, nor is there any evidence from which it could be inferred that there was an agency relationship between GNC and Smart Health. Affirmed.

WARNER and SHAHOOD, JJ., concur.


author: PLEUS, J.

text:
    Elizabeth A. MESZAROS and G. Frank Meszaros, Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-791.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Elizabeth A. Meszaros and G. Frank Meszaros, Orlando, pro se.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P.A., Miami, for Appel-lee.
   PLEUS, J.

Homeowners Elizabeth and Frank Meszaros appeal from an immediate final order (IFO) of the Department of Agriculture and Consumer Services (Department), advising them that their citrus trees would be destroyed because they were located within 1900 feet of trees diseased with citrus canker. The Meszaroses argue that the Department erred in issuing the IFO because their citrus trees constitute an acceptable level of risk. The standard for reviewing this order is whether the IFO was “lawfully entered” and “not defective.” Markus v. Florida Department of Agriculture and Consumer Services, 785 So.2d 595 (Fla. 3d DCA 2001); Sapp Farms, Inc. v. Florida Dep’t of Agriculture and Consumer Services, 761 So.2d 347 (Fla. 3d DCA 2000).

We note at the outset that the Meszaroses do not contest whether the IFO was lawfully entered and not defective. They also do not dispute the fact that their citrus trees fall within 1900 feet of trees diseased by citrus canker. Accordingly, the IFO can be affirmed on that basis alone. However, we will briefly address the Meszaroses’ arguments.

Section 581.184, Florida Statutes (2002) mandates that the “Department shall remove and destroy all infected citrus trees and all citrus trees exposed to an infection.” It further defines citrus trees “exposed to infection” as those trees “located within 1900 feet of an infected tree.” The Meszaroses argue that the 1900 foot boundary established in section 581.184 is based upon scientific and statistical data showing that the probability of capturing all diseased trees is 95.5% and the probability of not capturing a diseased tree is 4.5%. Thus, despite the explicit 1900 foot boundary mandated in the statute, the Meszaroses argue that the true principle underlying the statute is a 4.5% acceptable level of risk, rather than what they consider to be an arbitrary 1900 foot boundary. Based on this assumption, the Meszaroses argue that their citrus trees fall within the 4.5% acceptable level of risk when factors such as distance, barriers, time of year and time since detection are considered.

We conclude that the Meszaroses’ challenges to the IFO must fail. First, it is well-established that these IFOs are permissible. Sapp; Denney v. Conner, 462 So.2d 534 (Fla. 1st DCA 1985); Nordmann v. Florida Dep’t of Agriculture and Consumer Services, 473 So.2d 278 (Fla. 5th DCA 1985). The Meszaroses do not dispute the lawfulness of the IFO or the constitutionality of its enacting statute. Second, the Meszaroses’ criticisms of the methods employed by the Department in eradicating citrus canker are insufficient in light of the rule that courts should defer to an agency’s interpretation of its enacting statutes and rules in determining how to implement them. See e.g., Hobbs v. Department of Transportation, 831 So.2d 745 (Fla. 5th DCA 2002).

Accordingly, we affirm the IFO without prejudice to the Meszaroses to seek just compensation for the destruction of the trees having value, and we order that the stay previously entered is now lifted.

AFFIRMED WITHOUT PREJUDICE.

PETERSON and ORFINGER, JJ., concur.


author: GROSS, J.

text:
    Yves J. LAGUEUX, Appellant, v. UNION CARBIDE CORPORATION, Appellee.
    No. 4D03-383.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 12, 2004.

      Joel S. Perwin of Podhurst, Orseck, P.A., Miami, David A. Jagolinzer and James L. Ferraro of Ferraro & Associates, P.A., Miami, and John A. Sivinski of Kelley & Ferraro, LLP, Cleveland, Ohio, for appellant.
    David R. Venderbush of Alston & Bird LLP, New York, NY, Michelle Jerusalem Cole, Charlotte, NC, and John Pelzer of Ruden, McClosky, Smith, Schuster & Russell, Fort Lauderdale, for appellee.
   GROSS, J.

This was a negligence and strict liability asbestos case. After a jury trial, appellant, Yves Lagueux, prevailed against defendant/appellee Union Carbide Corporation. However, the jury allocated 70% of the fault in the case between non-parties Johns-Manville, Inc., Phillip Carey, Inc., and Georgia-Pacific.

We hold that. Union Carbide did not produce specific evidence sufficient under Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), receded from in part by Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995), and W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746 (Fla. 2d DCA 1994) to justify the inclusion of the non-parties Johns-Man-ville and Phillip Carey in the jury instructions and on the verdict form.

Addressing apportionment of liability, section 768.81 provides that “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3), Fla. Stat. (2002). In Fabre, the supreme court construed section 768.81 and wrote: “Clearly, the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.” 623 So.2d at 1185.

To include non-parties on a verdict form for the purpose of apportioning liability, a defendant must plead the negligence of a non-party as an affirmative defense and specifically identify the non-party. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla.1996). In addition, there must be evidence of the non-party’s fault before the issue can go to the jury. Id. (citing Dougherty, 636 So.2d at 748). As the second district has explained,

[i]f [the defendant] want[s] the benefit of jury instructions and a verdict form which include[s] other entities that manufactured asbestos products used on the job sites where [the plaintiff] worked, then [the defendant] need[s] to produce evidence establishing the specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used. This evidence would permit the jury to assess more accurately each of the asbestos products of both parties and non-parties on a job site and the likelihood of injury from each of the products. Without that evidence, [the defendant has] not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre.

Dougherty, 636 So.2d at 748 (emphasis added); see also Nash, 678 So.2d at 1264; Snoozy v. U.S. Gypsum Co., 695 So.2d 767, 769 (Fla. 3d DCA 1997).

Based on a thorough reading of the record, we find that Union Carbide failed to provide the necessary and specific evidence described in Dougherty. The scant evidence offered by Union Carbide was not enough to “permit the jury to assess more accurately each of the asbestos products of both parties and non-parties on a job site and the likelihood of injury from each of the products.” 636 So.2d at 748. Without guessing, the jury would have been unable to ascertain Johns-Manville and Phillip Carey’s percentage of fault; although the jury was informed that Georgia-Pacific used asbestos from these two companies around the same time that it used Union Carbide’s product, no evidence pointed to a specific time frame and percentage of usage in comparison to Union Carbide.

This case is similar to Snoozy. There, the decedent’s estate filed suit against U.S. Gypsum for the decedent’s asbestos-related death. 695 So.2d at 768. One of U.S. Gypsum’s affirmative defenses was that other non-parties were responsible. Id. At trial, the jury returned a verdict attributing 25% fault to U.S. Gypsum and 75% to “others.” Id. After trial, the circuit court granted the estate’s motion for directed verdict, finding that U.S. Gypsum failed to “sufficiently establish the necessary foundation for the jury to determine the issue of fault of non-parties.” Id. The third district affirmed, holding that U.S. Gypsum did not introduce the essential evidence required by Dougherty. It stated:

In the instant case, the jury apportioned 25% of the liability to [U.S. Gypsum] and 75% of the liability to “others.” The record, however, demonstrates that [U.S. Gypsum] failed to introduce evidence as to the “specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used.” [.Dougherty ], 636 So.2d at 748. Therefore, since [U.S. Gypsum] failed to satisfy “the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81,” the trial court correctly granted the plaintiffs motion for directed verdict as to the nonparty “others.”

Id. at 769; see also Owens-Ill., Inc. v. Baione, 642 So.2d 3, 4 (Fla. 2d DCA 1994) (affirming the trial court’s determination that the defendant provided insufficient evidence under Dougherty).

For these reasons we reverse the judgment and remand with instructions to enter judgment for Lagueux in the amount of $1,620,000. This amount takes into account a 10% set-off for the fault attributable to Georgia-Pacific, which Lagueux does not challenge on appeal.

On the cross-appeal, we find no reversible errors.

REVERSED.

STEVENSON and TAYLOR, JJ., concur.


text:
    Denzia WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4159.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Denzia Williams, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gonzales v. State, 779 So.2d 520 (Fla. 2d DCA 2000).

GUNTHER, WARNER and POLEN, JJ., concur.


text:
    Alan SIEGEL, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-3218.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.

      Paul A. Calli and Stephen J. Bronis of Zuckerman Spaeder LLP, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition disqualifying the trial judge, Cheryl J. Ale-mán, from presiding over his criminal case based on his belief that the judge harbors personal bias or prejudice toward his lawyers, which will adversely affect his ability to receive a fair and impartial trial. For the reasons stated below, we grant the petition.

In his motion to disqualify, petitioner gave a detailed account of an acrimonious dispute between Judge Alemán and his attorneys, which occurred before the judge’s appointment to the bench. On November 28, 2001, when Cheryl Alemán was a statewide prosecutor, petitioner’s attorneys filed a complaint with the Florida Bar against her, alleging misconduct during her investigation and prosecution of a client. Specifically, his attorneys alleged that Alemán had violated the Florida Bar’s rule prohibiting a lawyer from communicating with a represented individual by interviewing their client without notifying them of the interview, despite knowing that he was represented by counsel. Petitioner’s attorneys additionally alleged that Alemán knowingly offered false testimony from a witness.

On November 29, 2001, around the same time when Alemán was being considered for appointment to the Broward circuit bench, petitioner’s attorneys contacted the Governor’s office to inform the Governor of the pending bar complaint and express their personal belief that Alemán was unfit to serve as a judge. Shortly thereafter, Alemán filed a lengthy response to the bar complaint, denying the attorneys’ allegations and denouncing the timing of the complaint on the eve of the expected announcement of judicial appointments. She accused the attorneys of making untrue statements, under penalty of perjury, and concluded her remarks with a quotation by French poet and essayist Charles Peguy: “He who does not bellow the truth when he knows the truth makes himself the accomplice of liars and forgers.”

Based on the above, petitioner filed a motion in his pending prosecution to disqualify Judge Alemán, pursuant to rule 2.160(d)(1) of the Florida Rules of Judicial Administration and section 38.10, Florida Statutes. Judge Alemán denied the motion as legally insufficient.

Prohibition lies to review trial court orders denying motions to disqualify trial judges. Martin v. State, 804 So.2d 360 (Fla. 4th DCA 2001)(citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990) and Bundy v. Rudd, 366 So.2d 440 (Fla.1978)). As we ■ explained in Hayes v. State, 686 So.2d 694, 695 (Fla. 4th DCA 1996), “[o]ur task on appeal is to determine the legal sufficiency of the motion based on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” The facts alleged in the motion need only show a well-grounded fear that the movant will not receive a fair trial. See MacKenzie, 565 So.2d at 1334. In determining whether the allegations are sufficient, the facts alleged must be taken as true and must be viewed from the mov-ant’s perspective. Id. The inquiry focuses on whether the defendant may reasonably question a judge’s impartiality rather than whether the judge perceives she is able to act fairly and impartially. See Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983). “Disqualification is ordinarily required in any situation where the facts are reasonably sufficient to create a well-founded fear in the mind of the moving party that he will not receive a fair trial.” Martin, 804 So.2d at 362-363 (citing Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986)).

Personal bias or prejudice concerning a party or a party’s lawyer may result in disqualification of a trial judge. See 5-H Coloration v. Padovano, 708 So.2d 244, 248 (Fla.1998). In 5-H Corporation, the supreme court clarified that neither a judge’s mere reporting of perceived attorney unprofessionalism to the Florida Bar nor an attorney’s reporting of perceived judicial unprofessionalism to the Judicial Qualifications Commission, in and of itself, is legally sufficient to support judicial disqualification. The court noted, however, that “disqualification remains available where it can be shown that ‘the judge has a personal bias or prejudice concerning a party or a party’s lawyer.’ ” Id. at 248 (citing Fla. Code Jud. Conduct Canon 3E(l)(a)). The court further explained that this showing of personal bias must contain an actual factual foundation for the alleged fear of prejudice. Id. (citing Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986)).

Petitioner asserts that his basis for disqualification is not merely that his attorneys filed a bar complaint against the trial judge when she was a prosecutor, but that the extrajudicial dispute deteriorated into personal attacks by the judge against his attorneys. He fears that her personal animosity toward them was further fueled by their efforts to prevent the judge’s appointment to the bench.

We believe the grounds for disqualification in this case are analogous to those in Brewton v. Kelly, 166 So.2d 834 (Fla. 2d DCA 1964). There, the defendants on trial for election violations filed a suggestion of disqualification, alleging that partners of counsel for the defendants had signed a petition which resulted in the House of Representatives’ adoption of a bill of impeachment against the presiding judge. One of the partners had testified at the impeachment trial before the Senate and assisted in the preparation and prosecution of the charges. Further, counsel for the plaintiff had appeared and was an attorney of record for the judge at the impeachment trial. The second district held that the affidavits were legally sufficient to require the judge to disqualify himself because “such facts would prompt a reasonable, prudent person to fear that he would not receive a fair trial under the circumstances set forth therein.”

Similarly, in this case, the disqualification motion contains factual circumstances which would prompt a reasonable, prudent person to fear personal prejudice and believe that he would not receive a fair and impartial trial. The sworn allegations involve matters that go beyond the mere reporting of unprofessionalism to the Florida Bar or the Judicial Qualifications Commission. They refer to responses of the trial judge (while a prosecutor) essentially characterizing petitioner’s attorneys as liars. Further, the motion relates his attorneys’ communication with the Governor concerning their belief that she was unfit for appointment to the circuit bench. This conduct amounts to more than simply campaigning for an opposing judicial candidate. See The Tower Group v. Doral Enter. Joint Ventures, 760 So.2d 256 (Fla. 3d DCA 2000)(holding that disqualification of the trial judge was warranted where the movant’s attorney had been a re-election opponent of the trial judge in an acrimonious judicial campaign).

Because the circumstances alleged by petitioner combine to create a reasonable fear on his part of not receiving a fair hearing or trial, we grant the petition to prohibit Judge Alemán from proceeding any further in this cause and direct the chief judge of the Seventeenth Judicial Circuit to assign another judge to preside over the proceedings against petitioner.

WARNER, TAYLOR and MAY, JJ., concur.


text:
    William GEIGER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4533.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    William Geiger, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

William Geiger petitions this court for a writ of habeas corpus, contending that his plea to criminal charges was involuntary and raising other challenges to his conviction. This petition must be denied because petitioner has an adequate remedy through a motion for postconviction relief in the circuit court. Fla. R.Crim. P. 3.850(h). In fact, Geiger’s petition suggests that he has already filed such a motion but the circuit court has been slow in disposing of the matter. Our denial of the habeas corpus petition is therefore without prejudice to Geiger’s right to petition this court for a writ of mandamus if the circuit court does not act on the motion within a reasonable time. See Bernard v. State, 734 So.2d 606 (Fla. 1st DCA 1999).

PETITION DENIED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Brian E. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4368.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Brian E. Roberts, Sanderson, pro se.
    No appearance required, for appellee.
   PER CURIAM.

Affirmed. See Dean v. State, 414 So.2d 1096 (Fla. 2d DCA 1982), rev. denied, 424 So.2d 761 (Fla.1983).

POLEN, STEVENSON and TAYLOR, JJ., concur.


text:
    Ignacio VALDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2466.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Ignacio Valdez, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hemandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).

POLEN, STEVENSON and MAY, JJ., concur.


text:
    Ivan ARIAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-531.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Ivan M. Arias, Orlando, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

STONE, GROSS and TAYLOR, JJ., concur.


text:
    Jason HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4736.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal following revocation of community control and imposition of a prison sentence, the public defender has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although afforded the opportunity to do so, appellant has elected not to file a brief in proper person. Following an independent review of the record, we agree that no reversible error occurred. Accordingly, we affirm. However, because the record does not include a written order revoking community control, we remand with directions that the trial court enter such an order consistent with its oral pronouncement, and identifying the conditions of community control violated. See, e.g., Curry v. State, 843 So.2d 969 (Fla. 1st DCA 2003).

AFFIRMED and REMANDED, with directions.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Randolf X. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4611.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Nancy A. Daniels, Public Defender; A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s judgments and sentences. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

KAHN, BENTON, and VAN NORTWICK, JJ„ concur.


text:
    Alexis R. COLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3890.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion. as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

KAHN, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Glenn SMITH, Appellant, v. DEPARTMENT OF CORRECTIONS, Capt. LL. Hatcher, Sgt. Jeffrey Pippin, Co Christopher M. Lister, Co Jan D. Heffel, and Marcell Johnson, Appellees.
    No. 1D03-3826.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Appellant, pro se.
    Louis A. Vargas, Tallahassee, and Charlie Crist, Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of October 9, 2003, we dismiss this appeal as premature. The order on appeal dismissed the appellant’s complaint without prejudice to his right to file an amended complaint. Such an order is not final, however, the appellant may request entry of a final order of dismissal with prejudice if he is unable or unwilling to amend his complaint. Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991). All pending motions are denied as moot.

WOLF, G.J., ERVIN and PADOVANO, JJ., concur.


text:
    Nancy KLATT, Appellant, v. WAL-MART STORES, INC. and Integrated Administrators, Appellees.
    No. 1D02-2624.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.
    Keith A. Mann of Mann Employers Legal Group, P.A., Sarasota, for Appellant.
    Douglas A. Orr and Jeffrey M. Friedman of Kelley, Kronenberg, Gilmartin, Fi-chtel & Wander, Fort Myers, for Appel-lees.
   PER CURIAM.

The final order is affirmed with the exception of those rulings pertaining to claimant’s colon and stomach conditions, which we reverse pursuant to Claims Management, Inc. v. Grenier, 111 So.2d 1039 (Fla. 1st DCA 2000). We remand to permit claimant to proceed with an independent medical examination (IME) by a physician who specializes in those conditions.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    HOME DEPOT and Sedgwick CMS (Atlanta), Appellants, v. Mary Allison FERREIRA, Appellee.
    No. 1D02-3248.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.
    Gerald F. Znosko, Esquire and Philip R. Augustine, Esquire of Langston, Hess, Bolton, Znosko, Helm & Allen, P.A., Mait-land, for Appellants.
    T. Rhett Smith, Esquire and Teresa E. Liles, Esquire of Smith & Janes, P.A., Pensacola, for Appellee.
   PER CURIAM.

The order awarding wage-loss benefits, interest, penalties, fees, and costs is reversed. See Brannon v. Tampa Tribune, 711 So.2d 97 (Fla. 1st DCA 1998).

REVERSED.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    Ben H. WILLINGHAM, Jr., Corim, Inc. and Corim Ag, Appellants, v. CITY OF JACKSONVILLE, Appellee.
    No. 1D02-4496.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.
    William L. Durden, Jacksonville, for Appellants.
    Richard A. Mullaney, General Counsel; Bruce D. Page, Assistant General Counsel, Jacksonville, for Appellee.
   PER CURIAM.

Affirmed and Remanded for a new trial. See 325 West Adams Street, Ltd. v. City Of Jacksonville, Case Number 1D02-4522, 863 So.2d 380, 2003 WL 22927206 (Fla. 1st DCA Dec. 12, 2003).

BROWNING, POLSTON and HAWKES, JJ. Concur.


text:
    Robert RUDISEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4452.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.
    Nancy A. Daniels, Public Defender; Pamela P. Garvin and Paula S. Saunders, Assistant Public Defenders, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court did not err in denying appellant’s motion for judgment of acquittal, which was based on the theory that the mattress and bed sheet in his prison cell were not “contents” of the cell within the meaning of the arson statute, section 806.01(1)(b), Florida Statutes (2001). See, e.g., Higgins v. State, 565 So.2d 698 (Fla.1990) (affirming a first-degree felony arson conviction where the defendant set fire to the mattress in his prison cell even though there was no evidence of damage to the building). Compare State v. Tomblin, 400 So.2d 1012 (Fla. 5th DCA 1981) (reversing dismissal of an arson charge involving the defendant setting fire to clothing he had piled in the center of his jail cell, noting that if the defendant had set fire to his mattress, there would be no question the mattress would be considered “contents” of the cell).

AFFIRMED.

WOLF, C.J., ERVIN and PADOVANO, JJ., Concur.


text:
    David McCARTHY, Petitioner, v. Ken JENNE, Sheriff of Broward County, Respondent.
    No. 4D03-4324.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We deny the petition for writ of habeas corpus. In this ease, petitioner is charged with a violation of probation. Bail pending revocation of a violation of probation is not a guaranteed constitutional right. See § 948.06(1), Fla. Stat. (2002) (stating that if the probationer does not admit the violation, “the court may commit [the person] or release [the person] with or without bail to await further hearing”); Fla. R.Crim. P. 3.790(b) (same); Bernhardt v. State, 288 So.2d 490, 497 (Fla.1974). Unless petitioner can show that the trial court abused its discretion in denying bail, he is not entitled to a writ of habeas corpus. See Bennington v. Thornton, 370 So.2d 856 (Fla. 4th DCA 1979). In this case, after bond had been set, the state filed an amended affidavit of violation of probation adding the new charge that petitioner had been driving under the influence of a controlled substance, in addition to alcohol. At the first bail hearing, petitioner argued that the evidence against him for DUI was weak, since his blood alcohol reading was .00. The trial court did not abuse its discretion in reconsidering bail under the new charge on the amended violation of probation warrant.

GUNTHER, GROSS and MAY, JJ., concur.


text:
    Lisa LEVY, Appellant, v. In re GUARDIANSHIP OF Jacob LEVY, Appellee.
    No. 4D02-3240.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Paul Aiello of Bennett Aiello Henry & McGuinness, LLP, Miami, for appellant.
    Ellen M. Gibbs, Chief Legal Counsel, and Deborah Guller, Assistant Chief Legal Counsel, Department of Children & Families, Fort Lauderdale, for appellee.
   PER CURIAM.

Lisa Levy appeals the circuit court order denying her petition to be the guardian for her adult autistic son. Levy filed her petition on November 2, 2000. Section 744.309(3), Florida Statutes (2000), which was amended in 2000, applies to the petition. Contrary to the circuit court’s ruling, the provisions of that statute do not automatically preclude Levy from serving as a guardian, because her son was not a “child” within the meaning of section 39.01(12), Florida Statutes (2000) at the time of a July 1992 incident. On remand, the court shall consider the totality of the circumstances to decide whether Levy is “otherwise unsuitable to perform the duties of a guardian.” § 744.309(3), Fla. Stat. (2000).

REVERSED AND REMANDED.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Jamalis B. HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-3148.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Jamalis B. Hall, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Jamalis B. Hall filed a petition alleging ineffective assistance of appellate counsel. As the state does not oppose the requested relief, we grant the petition, providing for a belated appeal limited to the issues raised in the petition.

This opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered in July 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If Petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

KLEIN, TAYLOR and MAY, JJ., concur.


text:
    Jose MORINA, Appellant, v. SUGAR FARMS CO-OP, Appellee.
    No. 4D03-2255.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.

      Jason S. Remer of J.H. Zidell, P.A., Miami Beach, for appellant.
    Steven M. Pincus of C. Brooks Ricca, Jr. & Associates, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Weitzel v. Hargrove, 543 So.2d 392 (Fla. 3d DCA 1989).

KLEIN, MAY, JJ., and HOROWITZ, ALFRED, J., Associate Judge, concur.


text:
    JAMES F. STILLMAN, Appellant, v. SUNTRUST BANK and Thomas W. Johnson, as Co-Personal Representative of the Estate of Timothy G. Stillman, deceased, Appellees.
    No. 4D4D03-1249.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    John Farina of Boyes & Farina, P.A., West Palm Beach, for appellant.
    Stephen L. Ziegler and Stephen J. Simmons of Murray, Simmons & Ziegler, LLP, Fort Lauderdale, for appellees.
   PER CURIAM.

There were errors in the procedure by which the probate court entered a final judgment determining that appellant’s petition to revoke probate was not timely filed. However, appellant received a full and fair evidentiary hearing on the issue. We conclude that appellant waived the right to rely on the procedural defect of which he complains by tacitly consenting to the procedure employed by the court. We affirm as to all issues.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Debbie Celyen MIRANDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-505.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 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 August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
    POLEN, KLEIN and MAY, JJ., concur.
   PER CURIAM.

AFFIRMED. United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).


text:
    James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Petitioner, v. Otis HARVEY, Respondent.
    No. 4D03-3119.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Chris Korn, Tallahassee, for petitioner.
    No appearance for respondent.
    GUNTHER, TAYLOR and MAY, JJ., concur.
   PER CURIAM.

The Department of Corrections seeks certiorari review of a circuit court order directing the Department to award respondent Otis Harvey, a state prisoner, gain time for the time he was incarcerated at the Broward County Jail waiting to testify in a criminal prosecution. We grant the petition and vacate the order, because the sentencing court lacks authority to award gain time to state prisoners. That authority rests within the exclusive province of the Department. See State v. Green, 547 So.2d 925, 927 (Fla.1989); Walker v. State, 619 So.2d 518, 519 (Fla. 1st DCA 1993). Where a sentencing court attempts to either bar or grant gain time awards, those portions of the sentencing order have been struck or treated as “surplusage.” See Singletary v. Coronado, 673 So.2d 924 (Fla. 2d DCA 1996)(holding that trial court lacked authority to award gain time to prisoners who testified at state’s behest); Shupe v. State, 516 So.2d 73 (Fla. 5th DCA 1987)(striking portion of sentence ordering that no gain time be allowed until restitution was paid); Hall v. State, 493 So.2d 93 (Fla. 2d DCA 1986)(finding that trial court could not bar gain time upon violation of probation by defendant).

PETITION GRANTED.

GUNTHER, TAYLOR and MAY, JJ., concur.


text:
    VISTA HEALTHPLAN, INC. (f/k/a HIP Health Plan of Florida, Inc. [via name change] and Beacon Health Plans, Inc. [via merger] ), and VISTA Healthplan of South Florida, Inc. (f/k/a Foundation Health, a Florida Health Plan, Inc.), Appellants, v. HCA, INC., [HCA] East Florida Division Inc., Miami Beach Healthcare Group, Ltd. (d/b/a Aventura Hospital and Medical Center), Cedars Healthcare Group, Ltd. (d/b/a Cedars Medical Center), Columbia Hospital (Palm Beaches) Limited Partnership (d/b/a Columbia Hospital), Columbia/JFK Medical Center Limited Partnership (d/b/a JFK Medical Center), Kendall Healthcare Group, Ltd. (d/b/a Kendall Regional Medical Center), Northwest Medical Center, Inc. (d/b/a Northwest Medical Center), Columbia Palms West Hospital Limited Partnership (d/b/a Palms West Hospital), Hospital Service Development Corp. (d/b/a Plantation General Hospital), University Hospital, Ltd. (d/b/a University Hospital and Medical Center), Columbia Hospital Corporation Of South Broward (d/b/a Westside Regional Medical Center), and Plantation General Hospital Limited Partnership (d/b/a Plantation General Hospital), Appellees.
    No. 4D03-3747.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Glenn J. Waldman of Waldman, Feluren & Trigoboff, P.A., Weston, for appellants.
    Edward J. Pozzuoli, Peter G. Herman and Stephanie Alexander of Tripp Scott, P.A., Fort Lauderdale for appellee HCA, Inc.
   ON MOTION TO STAY ARBITRATION

PENDING APPEAL

PER CURIAM.

Appellants, in this non-final appeal of an order requiring arbitration, seek review of the trial court’s order denying their motion to stay arbitration pending the outcome of this appeal. The only reason they give for staying arbitration is that the time and expense of arbitration will have been wasted if we reverse the order requiring arbitration.

Section 682.03(3), Florida Statutes (2003) provides that any action involving an issue subject to arbitration shall be stayed if arbitration has been ordered. It is thus our policy, as expressed by the legislature, that, once arbitration is ordered, arbitration proceeds and the lawsuit does not. The only reason advanced for staying the arbitration in this case, to save time and expense, would apply in every ease, and staying the arbitration for that reason would be contrary to section 682.03(3). We accordingly deny review of the order denying a stay pending appeal.

STONE, KLEIN and SHAHOOD, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Jacques E. THEARD, Appellant, v. THE STATE OF FLORIDA, Appellee.
    No. 3D03-752.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.

      Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant and Thomas C. Mielke, Assistant Attorneys General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEYIN, JJ.
   SCHWARTZ, Chief Judge.

The conviction and sentence imposed below for violating an injunction against domestic violence, see section 741.31, Florida Statutes (2001), after a two-day, three-witness jury trial, is reversed for a new one because of the grossly abusive limitation of counsel to five minutes for final argument. See Stockton v. State, 544 So.2d 1006 (Fla.1989); Munez v. State, 643 So.2d 82 (Fla. 3d DCA 1994); Adams v. State, 585 So.2d 1092 (Fla. 3d DCA 1991); Foster v. State, 464 So.2d 1214 (Fla. 3d DCA 1984).

We find no merit in the other points presented. See Franklin v. State, 825 So.2d 487 (Fla. 5th DCA 2002); Crume v. State, 703 So.2d 1216 (Fla. 5th DCA 1997).

Reversed.


text:
    Linda SANCHEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-1487.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Linda Sanchez, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before COPE, FLETCHER, and WELLS, JJ.
   PER CURIAM.

The record, including the transcript of the hearing before the appeals referee, contains substantial competent evidence that the appellant’s voluntarily leaving her employment was not attributable to her employer. Accordingly, the decision of the Florida Unemployment Appeals Commission is affirmed. See Narbona v. Florida Unemployment Appeals Comm’n, 851 So.2d 226 (Fla. 3d DCA 2003).

Affirmed.


text:
    The EXPRESSWAY COMPANIES, INC., et al., Appellants, v. STATE of Florida DEPT. OF COMMUNITY AFFAIRS, Appellee.
    No. 3D03-564.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.

      Richard W. Gross, Hileah, for appellants.
    Shaw P. Stiller, Tallahassee, for appel-lee.
    Before SCHWARTZ, C.J., and COPE, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Giordano v. Dep’t of Banking and Finance, 596 So.2d 712 (Fla. 1st DCA 1992).


text:
    Dontrelle LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 02-3044.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Dontrelle Lee appeals from an order revoking his probation and sentencing him to life in prison. We reverse and remand for a new hearing before a different judge, with directions to consider whether revocation of probation is warranted based upon the charges alleged in the affidavit of violation of probation. If the court decides to revoke probation it shall resentence Lee. See e.g., Cheatham v. State, 751 So.2d 751 (Fla. 3d DCA 2000).

Reversed and remanded.


text:
    Ernst ANICET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-7.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender and Christina A. Spaulding, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Lugo v. State, 845 So.2d 74, 92 (Fla.2003); Espinosa v. State, 589 So.2d 887, 891 (Fla.1991).


text:
    Glynis BETHEL, Appellant, v. John SALZER, Appellee.
    No. 1D03-4590.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Glynis Bethel, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

DISMISSED. See Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

BARFIELD, ALLEN and DAVIS, JJ„ concur.


text:
    Gregory MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3627.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Gregory Miller, pro se, petitioner.
    Charlie Crist, Attorney General, and Karen Armstrong, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Gregory Miller seeks a belated appeal of the order rendered on or about November 22, 2002, denying Miller’s motion for post-conviction relief in Gadsden County Circuit Court case number 97-768CFA. According to Miller, the order failed to apprise him of his right to appeal as required by Florida Rule of Criminal Procedure 3.850(g). In response to an order to show cause, the state has conceded that Miller is entitled to a belated appeal. Accordingly, Miller’s petition is granted. Upon issuance .of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, ALLEN and DAVIS, JJ., concur.


text:
    Demeshio WARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1731.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Demeshio Ward, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Among other claims, the appellant alleged that trial counsel was ineffective in failing to obtain an expert for fingerprint analysis and present such evidence at trial, so as to counter the state’s fingerprint evidence. This claim was made with the specificity required under Gaskin v. State, 737 So.2d 509 (Fla.1999), and is not precluded by the appellant’s acquiescence in counsel’s actions at trial. See Evans v. State, 737 So.2d 1167 (Fla. 2d DCA 1999). The claim is legally sufficient as indicated in Baker v. State, 826 So.2d 524 (Fla. 4th DCA 2002), and should not have been denied without proper record attachments or an evidentiary hearing. The appealed order is therefore reversed as to the denial of this claim, and affirmed as to the denial of the remaining claims.

BARFIELD, ALLEN and DAVIS, JJ„ concur.


text:
    John McDOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3124.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm, but, as in Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003), certify the following question to be one of great public importance:

IS THE FLORIDA STANDARD JURY INSTRUCTION ON “POSSESSION OF PROPERTY RECENTLY STOLEN” AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

AFFIRMED.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


text:
    Jerry R. MULLINS, Jr., Individually and as trustee for Gulf Coast Cattle Semen Services, Inc., and Gulf Coast Cattle Services, Inc., a corporation, Appellants, v. Waymon MONEYHAM, Appellee.
    No. 1D02-3802.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    John R. Sawyer, Esq., Pensacola, for Appellants.
    Frank A. Baker, Esq., Marianna, for Appellee.
   PER CURIAM.

Appellants, Jerry R. Mullins, Jr. and Gulf Coast Cattle Services, Inc., appeal the final judgment entered against them in favor of appellee, Waymon Moneyham. The trial court entered an order striking appellants’ pleadings and entered a default judgment against appellants as sanctions for appellants’ failure to timely comply with its order compelling discovery. Because the trial court failed to make an express written finding that appellants’ conduct was a willful or deliberate violation of its order compelling discovery, we reverse and remand for further proceedings.

We are required to reverse the final judgment because the order imposing sanctions failed to contain the necessary express findings of willfulness required when this ultimate sanction is imposed. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1272 (Fla.1990). The record may certainly support a finding that appellants willfully failed to comply with the trial court's order compelling discovery. On remand, the trial court may, if deemed necessary, conduct an evi-dentiary hearing for the limited purpose of having appellants present evidence of any mitigating or extenuating circumstances demonstrating that their noncompliance was not deliberate or willful. See Harper-Elder v. Elder, 701 So.2d 1230, 1231 (Fla. 4th DCA 1997). If the trial court determines the sanctions were justified and makes the express findings required by Tubero, it is authorized to reinstate the order striking appellants’ pleadings and the final judgment. Id.

REVERSED and REMANDED for further proceedings.

WOLF, C.J., LEWIS and POLSTON, JJ., concur.


text:
    Mario MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4912.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General; Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks to have her judgment and sentence corrected. Appellant contends that her sentence was illegal because it was based on an incorrect scoresheet and because her judgment erroneously cited a crime for which she was not charged. After consideration of appellant’s rule 3.800(b)(2) motion, the trial court reimposed the previous sentence without attaching a corrected scoresheet or citing the correct statute in appellant’s judgment. The State concedes that this was error. We affirm appellant’s conviction and sentence and remand for correction of the scoresheet and judgment.

AFFIRMED; REMANDED with directions.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    Arturo GONZALEZ, Appellant, v. Jeanette GONZALEZ, Appellee.
    No. 1D02-0282.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Arturo Gonzalez, pro se.
    Deborah A. Washington of Jacksonville Area Legal Ad, Inc., Jacksonville, for Ap-pellee.
   PER CURIAM.

Aturo Gonzalez appeals an order granting temporary custody of the two children born to the marriage of Aturo Gonzalez and Jeanette Gonzalez to the appellee, Jeanette Gonzalez. Among other things, appellant argues the trial court improperly considered hearsay evidence but did not consider other evidence appellant believes was relevant to the adjudication of the emergency motions for custody of the children. Appellant also argues that the trial court did not allow sufficient opportunity at the hearing for appellant to present his case. We have not been provided a transcript of the hearing on the motions for custody and, therefore, appellant is unable to demonstrate reversible error with regard to the conduct of the hearing and the evidence considered. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Appellant’s remaining arguments are without merit. Accordingly, the order granting temporary custody is AFFIRMED.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    James BULLARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3184.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Bullard’s conviction but certify to the Supreme Court of Florida as a matter of great public importance the following question:

IS THE FLORIDA STANDARD JURY INSTRUCTION ON “POSSESSION OF PROPERTY RECENTLY STOLEN” AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

See Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003).

We reverse the order denying Bullard’s motion to withdraw plea and remand for appointment of conflict-free counsel and a new hearing. Bullard v. State, 28 Fla. L. Weekly D2018 (Fla. 1st DCA Aug.26, 2003).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BARFIELD, ALLEN and DAVIS, JJ., concur.


text:
    Michael D. DREW, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3919.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie J. Crist, Jr., Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981); Alexander v. State, 470 So.2d 856 (Fla. 1st DCA 1985); Schummer v. State, 657 So.2d 3 (Fla. 1st DCA 1995); Blair v. State, 667 So.2d 834 (Fla. 4th DCA 1996), approved, 698 So.2d 1210 (Fla.1997); Bishop v. State, 718 So.2d 890 (Fla. 2d DCA 1998).

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    Kelvin STEWART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1358.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.

      Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Venus Zilieris, Certified Legal Intern, for appellee.
    Before COPE, GODERICH and SHEPHERD, JJ.
   PER CURIAM.

Kelvin Stewart appeals his conviction for two counts of armed robbery and one count of armed burglary. We affirm.

First, the defense claims that the State knowingly offered false testimony at trial in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), was never raised in the trial court and is not, in our view, fundamental error. This claim is thus not properly preserved for appellate review. See § 924.051, Fla. Stat. (2002).

Second, assuming for purposes of discussion that the claim had been preserved, it is clearly without merit. “To demonstrate perjury, [a party] must also show more than mere inconsistencies.” Maharaj v. State, 778 So.2d 944, 956 (Fla.2000) (citations omitted). The two witnesses whose testimony was in partial conflict both testified before the jury, and the question what weight or significance to give to the conflict was a matter for the jury to decide.

Affirmed.


text:
    D.L.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2264.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, and Rebecca M. Plasencia, Certified Legal Intern, for appellee.
    Before GERSTEN, GODERICH, and GREEN, JJ.
   PER CURIAM.

Affirmed. See C.L.B. v. State, 689 So.2d 1171 (Fla. 2d DCA 1997).


text:
    Sheldon A. CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3513.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.

      Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara Zappi and Andrea D. England, Assistant Attorneys General, for ap-pellee.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   PER CURIAM.

Sheldon Clark appeals his convictions for first degree murder and burglary of a dwelling.

First, assuming without deciding that duress can be a defense to a felony murder charge, see Wright v. State, 402 So.2d 493, 498 n. 8 (Fla. 3d DCA 1981), we conclude that the defense request for a jury instruction on duress was properly denied, because there was no competent evidence of duress. Second, the motion for judgment of acquittal on the burglary count was correctly denied. See Nicarry v. State, 795 So.2d 1114, 1116 (Fla. 5th DCA 2001), review denied, 819 So.2d 138 (Fla.2002); Britton v. State, 604 So.2d 1288, 1290 (Fla. 2d DCA 1992).

Affirmed.

       He does not challenge his conviction on possession of a firearm by a convicted felon.


text:
    Curtis JACOBS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-792.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Bennett H. Brummer, Public Defender and Howard K.' Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Williams v. State, 621 So.2d 413 (Fla.1993), affirming, 592 So.2d 350 (Fla. 3d DCA 1992); Houston v. State, 852 So.2d 425 (Fla. 5th DCA 2003); cf. State v. Rickman, 861 So.2d 1195, 2003 WL 22899976 (Fla. 2d DCA Case no. 2D02-4697, opinion filed, December 10, 2003)(Canady, J., concurring).


text:
    Orlando RUEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2526.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.

      Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Lee v. State, 770 So.2d 231 (Fla. 3d DCA 2000) Biggs v. State, 745 So.2d 1051 (Fla. 3d DCA 1999).


text:
    Roudy FOUGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4422.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Appellant’s conviction and sentence without prejudice to his raising the claim of ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850.

STONE, KLEIN, and HAZOURI, JJ., concur.


text:
    The STATE of Florida, Petitioner, v. Roger ARSHAM, Respondent.
    No. 3D03-2598.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Charles J. Crist, Jr. Attorney General and Roberta G. Mandel, Assistant Attorney General, for petitioner.
    Ellis Rubin and Robert I. Barrar, Miami, for respondent.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Because the showing made by the criminal defendant below was totally insufficient to justify a bodily intrusion into the privacy of the alleged victim, the order requiring her to provide a DNA sample is quashed. See State v. Famiglietti 817 So.2d 901 (Fla. 3d DCA 2002), review dismissed, 838 So.2d 528 (Fla.2003); State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994); State v. Brewster, 601 So.2d 1289 (Fla. 5th DCA 1992); Bartlett v. Hamwi, 626 So.2d 1040 (Fla. 4th DCA 1993).

Certiorari granted.