author: MONACO, J.

text:
    Mitchel KALMANSON, Appellant, v. Jerry T. LOCKETT, Appellee.
    No. 5D02-3415.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Rehearing Denied July 3, 2003.

      T.W. Ackert of T.W. Ackert, P.A., Winter Park, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela Lutton-Shields, Senior Assistant Attorney General, Tallahassee, for Appellee.
   MONACO, J.

This appeal examines the breadth of the judicial immunity defense. Mitchel Kal-manson, who was the plaintiff below, sought damages and injunctive relief against a sitting judge arising out of actions taken by the judge in Mr. Kalman-son’s dissolution of marriage action after the judge had entered an order of recusal. We have concluded that the causes of actions about which Mr. Kalmanson complains are barred by the doctrine of judicial immunity.

ADJUDICATIVE FACTS

Mr. and Mrs. Kalmanson were embroiled in a dissolution of marriage action that was assigned to then Circuit Judge Jerry T. Lockett (“Judge Lockett”), the appellee. After having presided over this controversy for a significant period, Judge Lockett filed an order of recusal in January of 2001, at the request of Mr. Kalman-son, and the matter was reassigned to a different judge.

According to the complaint, about eight months after Judge Lockett recused himself, Mr. Kalmanson and his wife entered into a written property settlement agreement in which Mr. Kalmanson obtained exclusive possession of the former marital residence. Mrs. Kalmanson appeared at the residence shortly after she executed the agreement and demanded access to it to retrieve her personal belongings. Mr. Kalmanson refused.

Deputies from the Lake County Sheriffs Office were called and responded to the marital residence at about 8:00 p.m. The former wife claimed that Mr. Kalmanson was destroying her personal property. A deputy soon ascertained, however, that Mr. Kalmanson was only burning trash in his back yard and that a property settlement had been reached giving Mr. Kal-manson the residence. The complaint further alleges that the former wife then handed her cell phone to the deputy, saying that Judge Lockett was on the line. The complaint continues that the person speaking on the phone was “very angry and further directed said Deputy to order Plaintiff (Mr. Kalmanson) from the residence and out of the area.”

The deputy asked his supervisor to go to Judge Lockett’s home to confirm the identity of the speaker and “the nature and substance of the Order received.” When the supervisor went to Judge Lockett’s home, Mr. Kalmanson alleges that Judge Lockett was “very upset, further stated direct threats of physical harm to Plaintiff, and utilized cursing epitaphs [sic] directed towards Plaintiff.” The complaint particularizes the conversation by saying that the judge would have the deputy fired unless he removed Mr. Kalmanson from the house, referred to Mr. Kalmanson as a “murderer,” and asserted that the judge had killed in Viet Nam and was not afraid to kill again. Finally, according to the complaint, the judge threatened to come to the scene and attack the deputy, Mr. Kal-manson and Mr. Kalmanson’s attorney, and his actions were “actuated by malice.” According to the briefs filed in this court, the matter was concluded when the assigned judge ordered both parties from the home until the following day when he could sort things out. Both parties complied.

Mr. Kalmanson sought damages from Judge Lockett for “Personal acts in Excess of Jurisdiction,” and for defamation. Mr. Kalmanson also sought injunctive relief based on the interference of the judge with the quiet enjoyment of his residence, but this issue is largely moot because Judge Lockett no longer holds office. In any event, the trial court granted Judge Lockett’s motion to dismiss all counts based on judicial immunity.

At the conclusion of the hearing on the motion to dismiss and after the trial court announced her ruling, Mr. Kalmanson’s counsel inquired if the dismissal was with prejudice “for purposes of appeal.” The court agreed that it was. Mr. Kalmanson timely moved for rehearing a short time later and for the first time urged that the dismissal should have been without prejudice, and that leave to amend should have been granted. Mr. Kalmanson attached a proposed amended complaint to his motion in which he sought to state causes of action for tortious interference with property rights, tortious interference with economic rights, assault or, alternatively, intentional infliction of emotional distress, permanent injunction, defamation, and abuse of process. All counts were based on essentially the same facts that are recited above. After the trial court denied the motion for rehearing, this appeal ensued.

JUDICIAL IMMUNITY

Judicial immunity was first clearly articulated about 400 years ago in the case of Floyd & Barker, 12 Coke Rep., 77 Eng. Rep. 1305 (Star Chamber 1607). Lord Coke advised that judicial immunity insures the finality of judgments, protects judicial independence, deflects regular attacks on judges, and protects the legal system from falling into disrepute. Shaman, Lubet & Alfini, Judicial Conduct and Ethics, 441 (1990). In more recent times the rationale for judicial immunity includes the important public policies of protecting the finality of judgments, discouraging inappropriate collateral attacks, and preserving judicial independence by insulating judges from lawsuits by unsatisfied litigants. See Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). After recognizing that unfairness and injustice to an individual litigant might result from the doctrine of judicial immunity, the United States Supreme Court summed up the necessity for the application of this doctrine in Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 347, 20 L.Ed. 646 (1871):

[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.

Judicial immunity, which is unquestionably one of the cornerstones of judicial independence, is an immunity from suit, not just from an assessment of damages. Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). It is not overcome by allegations of bad faith or malice, because a determination of these and similar assertions would require discovery and trial. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Rather, the United States Supreme Court has drawn a line between where immunity applies and where it does not.

In Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the Court reaffirmed some older precedents in holding that “a judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors,” and then articulated a sequential two-part test to be applied. The first part seeks to discover whether the conduct of the judge is a “judicial act.” If so, the second part asks whether the judge acted in the clear absence of all jurisdiction. Put differently, a judge is not immune from liability for nonjudicial actions (i.e., actions not taken in a judicial capacity), and a judge is not immune for actions, even though judicial in nature, that are taken in the complete absence of jurisdiction. Míreles, 502 U.S. at 11-12, 112 S.Ct. 286.

To help determine whether the conduct is a “judicial act,” we must consider the following four attributes or functions of judicial actions: (a) whether the precise conduct was in performance of a normal judicial function; (b) whether the event occurred in the courtroom or judge’s chambers; (c) whether the controversy centered around a case pending before the judge; and (d) whether the confrontation arose directly or immediately out of a visit to the judge in his judicial capacity. Mireles; Stump, 435 U.S. at 361-362, 98 S.Ct. 1099; McAlester v. Brown, 469 F.2d 1280 (5th Cir.1972). If the act is determined to be a judicial act, it is protected by judicial immunity, no matter how unfair, injurious or inappropriate it might be, provided it meets the second prong of the test concerning jurisdiction.

The second prong requires us to construe the scope of the judge’s jurisdiction in an extremely broad fashion. As noted, a judge will be deprived of judicial immunity only if the judge acted in the clear absence of all jurisdiction over the subject matter. Stump; see also Harper v. Merckle, 638 F.2d 848 (5th Cir.) cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981); Farish v. Smoot, 58 So.2d 534 (Fla.1952). Moreover, as will become clear in the following analysis, the question is really whether the court, as opposed to an individual judge, has jurisdiction over the subject matter of the dispute between the parties.

LEGAL ANALYSIS

A. WERE THE ACTS JUDICIAL?

The first part of the functional analysis set forth by the Stump court in defining a judicial act requires a determination of whether Judge Lockett’s actions were in the performance of a normal judicial function. The nature or function of the acts of Judge Lockett being examined were verbal orders to law enforcement officers to enjoin a litigant in a dissolution of marriage case from access to property that was part of the estate being divided. This category of act is clearly one within the general authority of a circuit judge. Chapter 61, Florida Statutes, outlines in great detail the broad powers of circuit judges presiding over dissolution of marriage cases. Section 61.011 specifically provides that these proceedings are “in chancery,” and accordingly authorizes circuit judges to use the tools of equity, including injunctions, to manage such cases to a fair conclusion. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Moreover, verbal orders to law enforcement officers, “while not preferred, are necessary at times,” and are generally enforceable. See Jamason v. State, 455 So.2d 380, 381 (Fla.1984), cert. denied, 469 U.S. 1100,105 S.Ct. 768, 83 L.Ed.2d 766 (1985). Thus, Judge Lockett’s alleged conduct, while regrettable if true, was in the performance of a normal judicial function, and met the requirements of the first part of the definition of a judicial act.

Whether the conduct met the second part is far less clear. The second facet of the Stump court’s test requires us to examine whether the event occurred in the courtroom or judge’s chambers. The actions of Judge Lockett were at his home and were initiated by telephone. It is not unusual, however, for trial court judges to be contacted by telephone by law enforcement officials seeking, for example, consideration of an emergency search or arrest warrant or a temporary injunction to prevent domestic violence. Thus, the fact that the dispute was brought to the attention of Judge Lockett by telephone call beyond the normal working day does not alter the essential character of his actions as judicial. That the actions of Judge Lockett were not surrounded by the usual formalities is likewise not, in itself, determinative where the other factors suggest that the acts were judicial. In Stump, for example, a judge’s order to sterilize a 15 year old without her knowledge was protected by judicial immunity, even though the case was not assigned a docket number, was not on file in the clerk’s office, and was ordered at an ex parte hearing without notice to the minor or a hearing. Similarly, in McAlester v. Brown, 469 F.2d 1280 (5th Cir.1972), a judge ordered a courthouse visitor to be jailed, even though the visitor was not charged with contempt, and even though normal court procedures were not followed. Immunity was accorded to the judge because the confrontation arose out of a visit to the judge in his official capacity.

The third and fourth parts of the test—whether there was a pending ease before the judge, and whether the confrontation arose out of a visit to the judge in his judicial capacity—lend weight to the determination that Judge Lockett’s actions were judicial. He was unquestionably contacted specifically because he was a circuit judge, and the case was, in fact, pending in the Circuit Court of Lake County. Judge Lockett was approached solely and exclusively because he was a judge, even though the approach was made outside of the usual business day and outside of the courtroom.

We conclude, in summary, that the actions of Judge Lockett fall within the definition of judicial acts set forth in Stump.

B. WERE THE ACTS TAKEN IN THE CLEAR ABSENCE OF JURISDICTION?

Having concluded that the actions of Judge Lockett were judicial in function, we now must determine whether his actions were taken in the clear absence of all subject matter jurisdiction. There is no doubt that a dissolution of marriage action between Mr. and Mrs. Kalmanson was pending in the Circuit Court of Lake County, and that the Circuit Court of Lake County had subject matter jurisdiction over the dispute at the time that Judge Lockett acted. The pivotal issue is whether the fact that Judge Lockett had earlier recused himself from the case means that the actions in question were taken in the clear absence of all subject matter jurisdiction. We hold that they do not.

Actions that are merely in “excess of jurisdiction” over the subject matter are still protected by immunity. Mireles, 502 U.S. at 13,112 S.Ct. 286; Stump, 435 U.S. at 356, 98 S.Ct. 1099. The United States Supreme Court held in Bradley in this regard as follows:

A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness, of his determination in these particulars the validity of his judgments may depend. Stump, 435 U.S. at 356 [98 S.Ct. 1099], quoting Bradley, 13 Wall, at 351-352, 20 L.Ed. 646.

The circuit court had subject matter jurisdiction over the dispute and personal jurisdiction over the parties. Jurisdiction is vested in the court itself, and not in any individual judge of the court. See Allen v. Bridge, 427 So.2d 249, 250 (Fla. 4th DCA 1983); Kruckenberg v. Powell, 422 So.2d 994 (Fla. 5th DCA 1982); cf. State ex rel. Palmer v. Atkinson, 116 Fla. 366, 156 So. 726 (1934). If the allegations of the complaint are true, Judge Lockett’s individual actions most probably violated Rule 2.160(f), Fla. R. Jud. Admin., in that he should have taken no further actions in the suit, except for certain ministerial acts. See Berry v. Berry, 765 So.2d 855 (Fla. 5th DCA 2000). His recusal, however, did not diminish the jurisdiction of the circuit court over this case. We cannot say, therefore, that his actions were taken in clear absence of all jurisdiction. We note, as well, that we are in consonance with the only appellate decisions that we have found on this point. See Generes v. Foreman, 277 Ill.App.3d 353, 214 Ill.Dec. 1, 660 N.E.2d 192, 194 (1995); DeNardo v. Michalski, 811 P.2d 315 (Alaska 1991).

ABSENCE OF OPPORTUNITY TO AMEND

Finally, we must address the fact that the trial judge granted the motion to dismiss with prejudice without giving Mr. Kalmanson the opportunity to amend. We again find no error.

Florida follows a liberal policy of allowing litigants the freedom to amend their pleadings so that cases can, if at all possible, be tried on the merits. Normally, the lower court should allow a party to amend at least once. Dingess v. Florida Aircraft Sales and Leasing, Inc., 442 So.2d 431 (Fla. 5th DCA 1983). Here, however, the pertinent facts material to this appeal are generally not in dispute, and the proposed amended complaint submitted with the motion for rehearing below does nothing to improve Mr. Kalmanson’s position. As an amendment of the complaint would have been futile, there was no need in this instance to allow another opportunity. See Doe v. America Online, Inc., 718 So.2d 385, 389 (Fla. 4th DCA 1998), approved, 783 So.2d 1010 (Fla.), cert. denied, 534 U.S. 891, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001) (complaint could not be amended to overcome immunity).

CONCLUSION

No trial has been held to determine if the actions of Judge Lockett alleged in the complaint actually occurred. If they did, it is difficult to imagine why any judge would act so excessively. We certainly do not by any means intend to condone them. The fact that these actions might be condemned as unethical or excessive, and may be grounds for removal of a judge from office, however, does not transform them into something they are not. The actions of Judge Lockett were judicial acts taken within the jurisdiction of the court, and are, therefore, subject to the doctrine of judicial immunity.

AFFIRMED.

PLEUS and TORPY, JJ., concur.

      . Because of the manner in which this case was disposed of below, the issue of whether there exists a cause of action for "Personal Acts In Excess of Jurisdiction” was not reached by the trial court and has not been argued in this court. Thus, no opinion is expressed with respect to its viability.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth BALKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3997.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2003.
    Rehearing Denied July 1, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Marcano v. State, 814 So.2d 1174 (Fla. 4th DCA 2002).

SAWAYA, ORFINGER and MONACO, JJ., concur.


text:
    Carlos LEIVA-SUAZO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3501.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See King v. State, 808 So.2d 1237 (Fla.2002) and Hartline v. State, 806 So.2d 595 (Fla. 5th DCA 2002).

PETERSON, ORFINGER and MONACO, JJ., concur.


author: WARNER, J.

text:
    James J. QUIGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1741.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Rehearing Denied July 16, 2003.

      James J. Quigley, Newport, Vermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges the trial court’s summary denial of his motion for postcon-viction relief on the ground that laches barred his claim due to his counsel’s failure to timely file the motion. Because appellant filed his motion within two years of Steele v. Kehoe, 747 So.2d 931 (Fla.1999), we hold that laches is not a bar. We reverse and remand to hold an evidentiary hearing on appellant’s claims.

On May 5, 1980, appellant was convicted of first degree murder (Count I) and attempted first degree murder (Count II), for which he was sentenced to life imprisonment with a mandatory minimum of twenty-five years on Count I and a concurrent life term as to Count II. On July 1, 1980, appellant’s sentence on Count II was amended to a concurrent thirty year sentence. His convictions and sentences were affirmed per curiam without opinion by this court on November 4, 1981. See Quigley v. State, 407 So.2d 1127 (Fla. 4th DCA 1981).

In 1997, appellant filed a Florida Rule of Criminal Procedure 3.850 motion alleging ineffectiveness of counsel claims, which the trial court denied as untimely. That order was reviewed and affirmed by this court. After our affirmance, the supreme court decided Steele v. Kehoe, 747 So.2d 931 (Fla.1999), and Medrano v. State, 748 So.2d 986 (Fla.1999). The court held in those cases that when a convicted defendant alleges his or her attorney agreed to file a postconviction motion on his or her behalf but failed to do so in a timely manner, the defendant is entitled to a hearing on the issue. If the defendant proves that he timely requested the attorney file the motion, and the motion was not filed, then the defendant is entitled to file a belated postconviction motion. See Steele, 747 So.2d at 934; Medrano, 748 So.2d at 987. A defendant may request such relief by way of a petition for habeas corpus seeking to file a belated motion for postconviction relief. See id.

Shortly before the court’s opinion in Steele was released, defendant filed a petition for writ of habeas corpus seeking leave to file a belated postconviction relief motion; As grounds, he alleged that the attorney he retained in 1985 failed to file such a motion. The trial court denied his request. However, we reversed, based upon Steele and Medrano. See Quigley v. State, 753 So.2d 764 (Fla. 4th DCA 2000). Upon remand, the trial court granted appellant’s petition to file a belated appeal, finding appellant’s attorney had not timely filed a motion for postconviction relief.

Appellant then filed his motion raising two claims of ineffectiveness of counsel. First, he alleged that his attorney faded to advise him of the existence of a voluntary intoxication defense, to investigate the extent of his intoxication at the time of his offense, and to assert a voluntary intoxication defense at trial. Appellant claimed that he was on an alcohol and drug binge at the time of the crime. Second, counsel agreed to allow the admission of an inflammatory and prejudicial videotaped deposition of the victim. The state responded that appellant’s motion should be denied based upon laches because appellant’s lawyer is deceased and therefore unavailable to testify. As to the second claim, the state also claimed laches as the videotape could not be found in its file or in the court file.

The trial court agreed with the state that the claims were time-barred and that laches was a valid defense; thus it denied relief. The appellant filed a motion for rehearing, which we deem to have been timely pursuant to Haag v. State, 591 So.2d 614, 617 (Fla.1992), but it also was denied. He then filed this appeal.

Although appellant filed his belated motion eleven years after discovering his attorney had not timely filed his postconviction relief motion, his motion is not time-barred by Rule 3.850 based upon Steele. This same situation was addressed in Mediate v. State, 804 So.2d 472, 473 (Fla. 5th DCA 2001), where a prisoner waited some fifteen years before filing a habeas petition seeking a belated appeal. The fifth district rejected the application of laches, holding, “[w]here ... the delay in filing is due to the time limitations of the then existing rule, laches cannot be a bar.” Mediate, 804 So.2d at 473. As the court noted in a footnote, any other holding would destroy the viability of Steele and Medrano. See id. at 473 n. 4. Consistent with Mediate, we reverse the trial court’s denial of appellant’s motion based on laches.

Appellant also appeals the trial court’s order denying appointment of counsel. In postconvietion proceedings, the appointment of counsel is discretionary, and we conclude that there was no abuse of discretion. See Graham v. State, 372 So.2d 1363, 1366 (Fla.1979). Our affirmance, however, is without prejudice to the appellant reapplying to the court for appointment of counsel now that the claims are to be heard on the merits. As an evidentiary hearing is probable, and appellant may have difficulty making a prima facie ease with his prior counsel being deceased and the videotape missing, the court may wish to reconsider whether the criteria of Graham have been met.

We therefore reverse and remand for the court to consider the merits of appellant’s claims. Unless the record conclusively refutes these claims, an evidentiary hearing will be required.

KLEIN and SHAHOOD, JJ., concur.

      . The deadline for the motion was January 1, 1986. See The Florida Bar Re Amendment to Rules of Criminal Procedure, 460 So.2d 907, 908 (Fla.1984).


text:
    Derrick Gregory JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4190.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied July 16, 2003.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hoefert v. State, 617 So.2d 1046, 1050 (Fla.1993); Swafford v. State, 533 So.2d 270 (Fla.1988).

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


author: PER CURIAM. GREEN, J.,

text:
    Jesus D. ROSARIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1232.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.
    Jesus D. Rosario, in proper person.
    Charles J. Crist, Attorney General, for Appellee.
    Before SCHWARTZ, C.J., and GREEN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).

SCHWARTZ, C.J., and RAMIREZ, J., concur.

GREEN, J.,

specially concurring.

The doctrine of stare decisis compels me to join in the reversal of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution.


author: ORFINGER, J.

text:
    Quincy Bernard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1288.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    Rehearing Denied July 3, 2003.
    Quincy Bernard Jones, Century, pro se.
    No Appearance for Appellee.
   ORFINGER, J.

Quincy Bernard Jones seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In this proceeding, Jones asserts that his sentence exceeds the sentence stated in the plea agreement. We affirm.

This motion is successive. In a prior rule 3.800(a) motion, Jones raised the very same issue that is the subject of this appeal. Based on the supreme court’s recent decision in State v. McBride, No. 02-627, 28 Fla. L. Weekly S401, 848 So.2d 287, 2003 WL 21088088 (Fla. May 15, 2003), his claim is barred under the collateral estop-pel doctrine. Thus, he is precluded from arguing in a successive 3.800 motion the same issue argued in the prior motion.

We caution Jones against filing additional successive and improper motions. Enough is enough. See Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995); see also Thomas v. State, 824 So.2d 1061 (Fla. 5th DCA 2002).

AFFIRMED.

THOMPSON, C.J. and PLEUS, J., concur.


text:
    Del HOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0820.
    District Court of Appeal of Florida, First District.
    June 11, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275, 2003 WL 1877193 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

ALLEN, C.J., ERVIN and BARFIELD, JJ., concur.


author: STONE, J.

text:
    TREASURE COAST MOTOR SALES, INC. d/b/a Toyota of Stuart, Appellant, v. James L. HEATON, Appellee.
    No. 4D02-4662.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Rehearing Denied July 16, 2003.

      Jeffrey A. Blaker of Conroy, Simberg, Ganon, Krevans & Abel, P.A., West Palm Beach, for appellant.
    Robert G. Fegers of Robert G. Fegers, P.L., Winter Haven, for appellee.
   STONE, J.

We reverse an order denying Treasure Coast’s motion to compel arbitration. The arbitration is required by the terms of the parties’ motor vehicle purchase agreement.

Heaton paid Treasure Coast for a Land Cruiser in accordance with the terms of the contract, but Treasure Coast refused to deliver the vehicle. Heaton sued for specific performance and deceptive and unfair trade practices and Treasure Coast moved to compel arbitration.

The contract contained the following arbitration clause:

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN SOUTHEAST FLORIDA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATION MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

Heaton’s claim is within the scope of this provision.

Heaton’s sole argument against arbitration is based on the location of the arbitration clause in the contract. He asserts that its location indicates that arbitration is applicable only to a specific clause and that the subject clause is not germane to this transaction. The trial court was persuaded by this argument.

We conclude' upon de novo review of the document that the arbitration provision applies to the contract as a whole. See Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). We note that in the left column of the contract there are several headings. Those headings are, from top to bottom: “trade-in information,” “payoff information,” “estimated payoff acknowledgment,” “rescission agreement,” and “insurance information,” under which Heaton’s insurance company and policy number are printed. The arbitration provision follows the “insurance information” section, and is clearly separate and distinct from the “rescission agreement” section, the clause to which Heaton claims it is limited. Nothing in the wording of either the arbitration or rescission provision implies the more restrictive interpretation advocated by Heaton.

We reverse and remand accordingly.

WARNER and STEVENSON, JJ„ concur.


text:
    Ernest LOCKHART, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2311.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Ernest Lockhart, Florida City, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

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


text:
    Marie GREEN, as guardian and next friend for Tinisha Marie Green, a minor child, Appellant, v. JACKSON COUNTY SCHOOL BOARD, Appellee.
    No. 1D03-1382.
    District Court of Appeal of Florida, First District.
    June 19, 2003.
    Marva A. Davis, Quincy, for Appellant.
    Robert L. Harris, Tallahassee, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of April 22, 2003, the appeal is hereby DISMISSED as premature because the order below, dated March 3, 2003, merely granted a motion to dismiss without entering a judgment of dismissal. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995); Johnson v. First City Bank of Gainesville, 491 So.2d 1217 (Fla. 1st DCA 1986).

ERVIN, KAHN and HAWKES, JJ., concur.


author: WHATLEY, Judge.

text:
    Willie James BISHOP, Appellant, v. Michael W. MOORE, Secretary Department of Corrections, Appellee.
    No. 2D02-4654.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.

      Willie J. Bishop, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Philip Jay Spengler II, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Willie James Bishop appeals the denial of his petition for writ of mandamus. Bishop is seeking to obtain a talisman medallion, which he claims he is allowed to possess pursuant to Florida Administrative Code Rule 33-602, because it is a religious medallion. Although he is allowed to possess such a medallion, Florida Administrative Code Rule 33 — 602.201(15)(d) requires that he acquire the medallion through an authorized vendor, canteen purchase, or bona fide religious organization. In his petition, Bishop sought to compel the Department of Corrections to produce its list of approved vendors from whom he could order the medallion and to show why a pawn shop is not an approved vendor.

We affirm because it appears that Bishop can order a talisman medallion from the prison canteen. Therefore, he has failed to demonstrate that there has been a violation of a clear legal right and a corresponding breach by the Department of Corrections of an indisputable legal duty. Newell v. Moore, 767 So.2d 1240 (Fla. 1st DCA 2000). However, we would note that Bishop’s confusion is understandable, as it appears from the record that he was given either incorrect or incomplete answers to his requests for instructions regarding the proper method to order the medallion.

Accordingly, we affirm the denial of Bishop’s petition for writ of mandamus. However, Bishop may file another petition for writ of mandamus should he be unable to procure the medallion through the canteen or another approved source.

CASANUEVA and SILBERMAN, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Christopher WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-182.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
   CASANUEVA, Judge.

Christopher Williams challenges the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion, finding that it was untimely filed. We affirm the denial of the rule 3.850 claims contained in the motion on that basis. However, in several of the grounds of the motion, Mr. Williams raised illegal sentence claims that could also be raised pursuant to Florida Rule of Criminal Procedure 3.800(a) and therefore would not be barred by the two-year time limitation. The trial court erroneously failed to consider these claims. See Gill v. State, 829 So.2d 299 (Fla. 2d DCA 2002) (holding that where movant files properly pleaded postconviction claim but incorrectly styles postconviction motion in which it is raised, trial court must treat claims as if filed in properly pleaded motion). We have considered the illegal sentence claims on their merits and affirm the denial of these claims. We discuss only his claim regarding credit for time served.

Mr. Williams was resentenced in this ease pursuant to our mandate in Williams v. State, 658 So.2d 612 (Fla. 2d DCA 1995). In ground eighteen of his motion, he alleged that the trial court did not properly award him credit for the “time served on sentence prior to resentencing.” Mr. Williams failed to specify whether he was seeking prison and/or jail credit and, if jail credit, how much time he was entitled to. Furthermore, he failed to allege that any jail credit claim is reviewable from the face of the record, and the claim is therefore facially insufficient. See Joeb v. State, 822 So.2d 554 (Fla. 2d DCA 2002). Our affirmance is without prejudice to any right Mr. Williams has to file a facially sufficient motion for prison and/or jail credit pursuant to rule 3.800(a).

Affirmed without prejudice.

WHATLEY and SALCINES, JJ., Concur.


author: SALCINES, Judge.

text:
    Paul WIGGINS, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1078.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
   SALCINES, Judge.

Paul Wiggins, III, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

On May 31, 2002, this court issued an opinion in Wiggins v. State, 817 So.2d 1016, 1017 (Fla. 2d DCA 2002), in which we affirmed the denial of Wiggins’ previous jail credit claim “without prejudice to any right [he] might have to file a facially sufficient rule 3.800(a) motion ... seeking jail credit from the date a detainer was placed on him while he was serving a different prison sentence.” See Keene v. State, 816 So.2d 819 (Fla. 2d DCA 2002). At the time of this court’s opinion, Wiggins would have been entitled to relief. Wiggins subsequently filed a rule 3.800(a) motion on November 14, 2002. On January 16, 2003, the Florida Supreme Court issued an opinion in Gathers v. State, 838 So.2d 504, 508 (Fla.2003), holding that “no jail credit need be awarded by the second county for time served in the first county for the period during which the detainer or hold is lodged.” This then became the controlling law in Florida. As a result of the holding in Gathers, the circuit court correctly denied Wiggins’ motion on January 30, 2003. Accordingly, we affirm the circuit court’s denial of Wiggins’ motion.

Affirmed.

COVINGTON and KELLY, JJ, Concur.


text:
    Esteban SOTO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1609.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2003.
    Esteban Soto, Polk City, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002); see also Demps v. State, 770 So.2d 745 (Fla. 3d DCA 2000); Brown v. State, 813 So.2d 132 (Fla. 5th DCA 2002).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    Karl F. FARRULLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1889.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2003.
    Karl F. Familia, Monticello, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 921.161, Fla. Stat. (2002).

THOMPSON, C.J., PALMER and MONACO, JJ., concur.


text:
    Ronnie ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3060.
    District Court of Appeal of Florida, Second District.
    June 25, 2003.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

In this appeal of his convictions of two counts of sexual battery and two counts of lewd and lascivious battery, Ronnie Ross argues that the trial court violated the plea agreement.

Ross did not preserve this issue for our review by filing a motion to withdraw his plea in the trial court. See Fla. RApp. P. 9.140(b) (2) (A.) (ii) (b) (defendant who pleads guilty or nolo contendere may directly appeal a violation of plea agreement, if preserved by a motion to withdraw plea); Hall v. State, 765 So.2d 282 (Fla. 4th DCA 2000). We therefore affirm Ross’s convictions and sentences without prejudice for him to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

CASANUEVA and CANADY, JJ., Concur.


text:
    Michael FARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1453.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      Russell L. Cormican of Kent and Cormi-can, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Following the trial court’s denial of Michael Farley’s (“Farley”) motions to dismiss and suppress, Farley pled nolo contendere to three counts of sexual performance by a child in violation of Florida Statutes section 827.071(5) (1999). He reserved his right to appeal the denial of the motion to suppress as well as the denial of the motion to dismiss on the basis of subjective entrapment as a matter of law and substantive due process/objective entrapment. We need only address the motion to dismiss in this appeal.

Farley’s case was precipitated by an unrelated investigation in Texas. In 2000, a husband and wife were arrested in Dallas on child pornography offenses stemming from their sexually-oriented Internet business. During the related investigation, a database including a list of names, addresses, e-mail addresses, and credit card information was uncovered. There was no evidence of how or why the list was created and no evidence that anyone appearing on the list ever purchased child pornography from the business. As even the prosecution admitted, the list could have been stolen or purchased, or it could have been entirely innocent.

Texas law enforcement compiled a list of Florida names and addresses from the database and forwarded it to the Broward County Sheriffs Office LEACH Taskforce (“LEACH”). Farley’s name, address, email address, credit card number, and other personal information was included on this list. LEACH cross-checked the names on the list with a list of registered sex offenders and Farley was not listed. LEACH conducted no further inquiry into Farley’s background.

LEACH decided to conduct a reverse sting targeting individuals on the list compiled by the Texas authorities. LEACH sent a spam e-mail to every address on the list with an advertisement in excess of 300 words soliciting patrons for a fictitious business, “providers4you.com.” The e-mail indicated the business could assist adult customers in obtaining taboo, over-the-edge, extreme, intense, and hard-to-find, sexual material. The e-mail also contained repeated assurances that communications and transactions with the business would be protected from governmental interference.

Farley received the spam e-mail; he had no prior contact with LEACH, had made no request for the e-mail, and only received the e-mail because he was on the list provided by Texas law enforcement. The e-mail suggested that Farley should connect to the business’s website, which included several web pages. Some of the assertions made on these pages included that the business does not offer “normal” adult materials, that no request is too bizarre or taboo, and additional assurances of protection from governmental interference. In fact, upon reviewing the web pages, one can count no less than ten instances in which protection from governmental interference is either expressly promised or strongly intimated.

The website provided a service for customers to submit information about themselves and their preferences for matching with suppliers. Farley inputted a request for specific pictures of teenage boys. LEACH Detective Bob DeYoung (“DeY-oung”) received Farley’s request and sent a reply e-mail indicating the request had been forwarded to supplier Stephen Hall (“Hall”), DeYoung’s fictitious alter, ego. Hall then sent Farley an e-mail requesting more specific details regarding Farley’s preferences.

An escalating e-mail exchange ensued between Farley and Hall. Farley provided more details about his preferences in two e-mails. Hall asked Farley to respond with even more specificity. Farley provided more information. Only after this inquisition, in which Farley was asked to provide increasingly explicit details about his desires, was he e-mailed an order form. The form listed products featuring underage boys, all of which were invented by Hall/D eYoung.

Farley ordered three VHS cassettes to be paid C.O.D. DeYoung and LEACH arranged for a controlled delivery of the order to Farley’s residence. LEACH prepared three VHS cassettes by dubbing previously seized materials and labeling the tapes with the titles requested by Farley. A postal inspector acting as a letter carrier delivered the tapes to Farley. Farley accepted the tapes and paid cash. Twenty minutes later, he was arrested.

With these facts in mind, we turn to Farley’s assertion that the trial court erred in denying his motion to dismiss on the basis of subjective entrapment as a matter of law, and substantive due process/objective entrapment. The defense of subjective entrapment is statutorily defined in Florida. See § 777.201, Fla. Stat. (2002). The test for subjective entrapment in Florida was developed in Munoz v. State, 629 So.2d 90 (Fla.1993). Three questions must be answered under the test to establish a subjective entrapment defense: (1) whether a government agent induced the defendant to commit the crime charged; (2) whether the defendant was predisposed to commit the crime charged; and (3) whether the entrapment defense should be evaluated by the jury. Id. at 99-100.

Turning to the first question, inducement is defined as:

[A]ny government- conduct creating a substantial risk that' an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.

United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994). In Beattie v. State, 636 So.2d 744 (Fla. 2d DCA 1993), inducement was found based on events stemming from a newspaper advertisement. Id. at 745. U.S. Customs placed an advertisement for materials featuring “miniature '& young love” in a free newspaper. Id. Beattie responded to the advertisement and expressed interest in some movies. Id. An exchange of ten letters ensued, only after which did Customs arrange a meeting with Beattie to sell him a pornographic video. Id.

In the present case, Farley was subjected to various acts of inducement by LEACH. The assurances of protection from government scrutiny could certainly be labeled fraudulent representations when made by government. The similarities to Beattie are striking. Farley was also confronted with an advertisement disseminated by the government, except he, unlike Beattie, was not willingly exposed to the advertisement. Farley indicated interest in the products offered by visiting a website and declaring his preferences, and like Beattie, he was then confronted with an exchange of correspondence. Only after that exchange was Farley offered an order form, leading to his purchase and arrest.

The State maintains that this type of law enforcement conduct does not demonstrate the necessary progression from “innocent lure” to “frank offer” required for inducement and entrapment. See United States v. Gendron, 18 F.Sd 955 (1st Cir.1993). However, the facts in Farley’s case clearly refute this assertion. The progression began with a spam e-mail and escalated to the point where lurid personal details were elicited in eventual exchange for an order form. What began as a plan to possibly uncover an offender from the Texas list, became a concerted effort to lure Farley into committing a crime. Therefore, inducement is present in Farley’s case, and the Munoz analysis may proceed to its second phase.

Addressing the second question, predisposition is defined as:

[W]hether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense.

Munoz, 629 So.2d at 99. Predisposition has been found to be absent where the defendant was not known for deviant behavior prior to the brush with law enforcement at issue. Beattie, 636 So.2d at 745. Predisposition is also not present when one has no prior criminal history related to the offense at issue. Nadeau v. State, 683 So.2d 504, 506 (Fla. 4th DCA 1995).

In the present case, there is no evidence that Farley was predisposed to possess child pornography. No evidence was adduced that Farley had ever purchased such pornography nor were any other pornographic materials found in his home. Additionally, Farley had never been arrested for anything in his life, let alone a child pornography offense.

The State contends the fact that Farley ordered the videos indicates that he had a predisposition to possess child pornography. However, this view overlooks even the common connotation of the word “pre disposition.” The prefix pre-indicates that the disposition must exist before first contact with the government. See Jacobson v. United States, 503 U.S. 540, 548-549, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) (citing United States v. Whoie, 925 F.2d 1481, 1483-1484 (1991)). In the present case, pri- or to receiving the spam e-mail from the government, there is no indication that Farley had any inclination to purchase and possess child pornography. Therefore, Farley was not predisposed to commit the crime and the Munoz analysis may proceed to its final stage.

When confronting the third question, we again turn to Beattie for instruction. Beattie satisfied his burden by establishing inducement and also establishing his lack of predisposition. Beattie, 636 So.2d at 746. The State was unable to present rebuttal evidence of predisposition, so it did not carry its burden on this element. Id. Because the facts and law at hand clearly established entrapment rather than crime, the court held it was error to deny Beattie’s motion to dismiss. Id. In doing so, the court found it unnecessary to answer the final question of the Munoz test; however, in essence, the court concluded that as a matter of law, entrapment existed, and therefore the jury had nothing to consider. Id.

In Farley’s case, inducement and lack of predisposition were clear upon the face of the facts. The State presented no evidence of past deviant behavior or criminal activity on Farley’s part. Therefore, entrapment rather than crime was at hand, and as a matter of law, the trial court should have granted Farley’s motion to dismiss. After all:

When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.

Jacobson, 503 U.S. at 553, 112 S.Ct. 1535.

We now turn to the second issue to be discussed in this opinion, substantive due process/objective entrapment. The test for objective entrapment was eliminated by Florida’s shift to statutory subjective entrapment, but the courts may still review entrapment objectively under the due process clause of the Florida Constitution. Munoz, 629 So.2d at 91. Farley contends that LEACH engaged in and propagated an illegal industry and targeted its efforts at Farley without any evidence of his prior involvement or interest in child pornography in violation of his due process rights.

There are several examples of law enforcement conduct that rises to the level of offending due process. In State v. Williams, 623 So.2d 462 (Fla.1993), the Florida Supreme Court held that law enforcement manufacture of crack cocaine for use in a reverse sting operation near a school violated due process. Id. at 463. The court found this conduct to be outrageous, partially because crack cocaine is addictive and deadly. Id. at 466. Additionally, in State v. Glosson, 462 So.2d 1082 (Fla.1985), the court found a contingent fee arrangement for the testimony of an informant a violation of due process, because it “seemed to manufacture, rather than detect, crime.” Id. at 1084 (citing Williamson v. United States, 311 F.2d 441 (5th Cir.1962)).

Law enforcement conduct in Farley’s case is very similar to that in the cited cases. LEACH manufactured copies of videos featuring child pornography. Although child pornography may not be deadly like crack cocaine, child pornography may encourage and memorialize traumatic sex crimes. Additionally, Farley was not involved in an existing criminal undertaking in need of detection by law enforcement; rather, LEACH sought to manufacture crime based on a list of names and addresses of unknown origin.

The State maintains that all similarities aside, law enforcement conduct in Farley’s case simply does not rise to the level of offending due process. The State cites standards, such as the following from United States v. Limon-Casas, 96 F.3d 779 (5th Cir.1996), in support of this proposition:

We need only remind that at the least the conduct of the government must be outrageous and prejudicial to the ability of a defendant to receive a fair trial.

Id. at 783. However, Florida courts have repeatedly found that cases stemming from manufactured crime similar to that present in Farley’s case do achieve the requisite level of outrageousness. For example, this Court wrote the following in the case of a loansharking sting:

Where the government supplies all of the instrumentalities of a crime, controls all of its aspects, and teaches the intended target how to commit the crime for purposes of arresting him, as the trial court found here, there is no crime at all without government involvement. No legitimate objective of government is accomplished by prosecuting a crime so totally and completely orchestrated by the government. We conclude that this activity violates due process.

State v. Finno, 643 So.2d 1166, 1169 (Fla. 4th DCA 1994).

What cements Farley’s case as one that violates due process, is not only the manufacture of crime, but the fact that such crime was manufactured under cover of a promise of protection from government interference. Thus, we conclude that the trial court erred by denying his motion to dismiss based on substantive due process/objective entrapment.

In conclusion, Farley established defenses of subjective entrapment as a matter of law and substantive due process/objective entrapment, and therefore, the trial court erred in denying Farley’s motion to dismiss. As a result, we reverse Farley’s conviction and sentence and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

POLEN, C.J., GUNTHER and TAYLOR, JJ., concur.


author: TOBIN, VICTOR, Associate Judge.

text:
    Edmund J. NOVOTNY, Jr., Appellant, v. The ESTATE OF Lillian S. DANTONE, Appellee.
    No. 4D02-3364.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      Edmund J. Novotny, Jr., Atlanta, GA, pro se.
    Kenneth R. Mikos and Scott H. Lebow-itz of Kenneth R. Mikos, P.A., Fort Laud-erdale, for appellee.
   TOBIN, VICTOR, Associate Judge.

This appeal arises from the trial court’s denial of appellant’s motion for summary judgment and granting of appellee’s motion for summary judgment. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030. We are compelled to reverse the lower court’s summary judgment in favor of appellee and affirm the order denying appellant’s motion for summary judgment, as the record before us reveals that there are material issues of fact and conflicts in the evidence.

The following recitation of the facts of this case was presented by each of the parties in their respective motions for summary judgment. Edmund J. Novotny (“Novotny”), an attorney in the state of Georgia, was hired by Lillian Dantone (“Dantone”) to organize her estate and move her back to the state of Florida. A retainer agreement was signed by Dantone on September 23, 1996. Novotny assisted Dantone in moving out of an assisted living facility in Georgia and back into her previous residence in Florida. Novotny paid a number of costs incurred in relocating Dantone to Florida, including Dantone’s travel and health care expenses.

Sometime during Dantone’s relocation to Florida, Novotny informed Dantone that her daughter, Sarah Zacone (“Zacone”), intended to initiate guardianship proceedings over her if she attempted to move back to Florida. True to her word, Zacone filed a petition to determine the capacity of Dantone and sought appointment as her temporary guardian. Novotny did not represent Dantone during the guardianship proceeding.

A special master was appointed. On February 24, 1997, the special master reported that Dantone was an 81 year old woman who, within the past two years, had declined into a state of paranoia, confusion, and self neglect. Based upon these findings, the special master concluded that Dantone had lost the ability to contract. The lower court adopted the special master’s findings and conclusions, and in its final order found that since Dantone had executed a valid trust to handle her property while she was competent, all that was required was a guardian of the person.

Subsequent to the lower court’s ruling, in October 1997 Novotny submitted a claim to Dantone and the trustee seeking payment in the amount of $16,097.61 for services rendered to and expenses incurred on behalf of Dantone. Zacone objected to payment of the claim, and the trustee petitioned the court for instructions concerning payment of Novotny’s claim. The matter was referred to a special master who issued a report recommending that the invoices not be paid until Novotny properly petitioned the lower court for approval of payment. However, before Novotny could petition the lower court, Dantone died.

Almost two years after the special master’s report advising Novotny to petition the lower court for an order approving his claim for payment, Novotny sought payment for his claim from the estate which the estate promptly rejected. Thereafter, Novotny filed a complaint against the estate for counts of breach of contract, open account, and quantum meruit.

The parties each filed a motion for summary judgment. On July 17, 2002 the trial court entered a final summary judgment in favor of the Estate the effect of which was to deny Novotny’s claim. This appeal timely follows.

It is axiomatic that a party moving for summary judgment must conclusively establish the absence of any genuine issue of material fact and that the court must draw all inferences from those facts in favor of the non-moving party. Bruckner v. City of Danta Beach, 823 So.2d 167 (Fla. 4th DCA 2002)(Roby, A.J., Warner & Farmer, JJ.) (citing Menendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)). Furthermore, if the evidence raises an issue of material fact, is conflicting, or permits reasonably different inferences, then the evidence should be submitted to the trier of fact. Id. Our standard of review is de novo.

Applying these well established principles of law to the instant case, we are compelled to reverse the lower court’s summary judgment in favor of appellee as the record before us reveals that there are issues of material fact and conflicts in the evidence.

The issues raised in the cross-motions for summary judgment were: (i) whether Dantone had the capacity to enter into the alleged contract with Novotny; (ii) whether the estate was responsible for Novot-ny’s claim which arose prior to the establishment of the guardianship of the person and the creation of the estate; and (iii) whether Novotny waived his claim.

As to the first issue, the capacity of a party to enter into the contract is a material issue of fact. See generally Forrest v. J.L. Young and Co., 198 So.2d 364 (Fla. 4th DCA 1967); Hemker v. Abdul, 716 So.2d 817 (Fla. 2d DCA 1998).

The record before us clearly establishes that there is a dispute over the validity of the contract based on Dantone’s capacity to enter into the contract. Our conclusion is supported by the estate’s affirmative defense that Dantone lacked the capacity to enter into a contract with Novotny. Furthermore, we find nothing in the record indicating that the conflict was resolved by undisputed material fact in motions for summary judgment or a finding by the lower court based on competent evidence,

As to the second issue, while the record before us is unclear, we assume that the trial court concluded, as a matter of law, that the estate was not responsible for Novotny’s claim which arose prior to the establishment of the guardianship of the person and the subsequent estate. We find the lower court’s ruling contrary to the law. Midland National Bank v. Cornerica Trust Co., 616 So.2d 1081, 1084 (Fla. 4th DCA 1998); In Stabinski v. Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash, P.A., 439 So.2d 330 (Fla. 3d DCA 1983)(holding that an estate may be charged attorney’s fees where services rendered were for the benefit and protection of the guardian). “Finally, the trustee argues that the fees were improperly charged against the trust assets rather than the guardianship. Although section 744.521, Florida Statutes (1981) and Florida Rule of Probate and Guardianship 5.680(c), construed together, direct a guardian to withhold from distribution sufficient assets to defray the costs of winding up the guardianship, this does not preclude an award from being collected out of the trust. After all, the funds of. a guardianship are nothing more than trust funds. Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980). As long as the award represents legitimate expenses incurred in winding up the estate, it must be borne by the ward from any entity over which the court has jurisdiction.” Id. at 332.

Lastly, appellee argues that the lower court correctly granted summary judgment because Novotny waived his claim by failing to file the petition when originally directed to do so by the court having jurisdiction over the trust and guardianship. Although there may be instances where summary judgment may be properly entered in cases where waiver is raised as an affirmative defense, generally questions of waiver involve fact issues which, more often than not, make it inappropriate for summary judgment. Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002).

Turning to the record before us, it is apparent that the appellee sought to avoid liability for the claim by raising the affirmative defense of waiver. In doing so, appellee raised material issues of fact which were not resolved by the purported undisputed material facts argued in the parties’ respective motions for summary judgment or by the trial court.

Accordingly, we reverse summary judgment rendered in favor of the Estate and affirm the order denying Novotny summary judgment.

GUNTHER and TAYLOR, JJ., concur.


author: STRINGER, Judge.

text:
    Gerald Wayne MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2921.
    District Court of Appeal of Florida, Second District.
    June 25, 2003.
   STRINGER, Judge.

Gerald Wayne Miller challenges the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Miller raised three grounds in his motion. The trial court denied the first and third grounds and dismissed the second ground without prejudice to Miller’s filing a facially sufficient claim. We affirm without comment the denial of the first ground of Miller’s motion, and we also affirm the trial court’s ruling in regard to the second and third grounds.

Miller pleaded to trafficking in oxyco-done, sale of clonazepam, and possession of clonazepam. For the charge of trafficking in oxycodone, the trial court sentenced him to a total of seven years’ imprisonment and also imposed a $100,000 fine pursuant to section 893.135(l)(c)(l) (b), Florida Statutes (1997-2001).

In ground two of his motion, Miller alleged that counsel was ineffective for failing to move to dismiss the charge of possession of clonazepam after Miller informed his trial counsel that he had a prescription for the drug. The facts supporting this claim are contained in the memorandum of law attached to the 3.850 motion. However, the memorandum was not properly sworn to, and the trial court correctly refused to consider it. See Oramas v. State, 615 So.2d 853 (Fla. 2d DCA 1993) (holding that a rule 3.850 motion is facially insufficient where it is based on facts contained in an unsworn memorandum of law); Braun v. State, 789 So.2d 1250 (Fla. 4th DCA 2001) (holding that an oath in which the defendant swears the statements contained in the rule 3.850 motion are true “to the best of my knowledge and belief’ is an inadequate oath for purposes of rule 3.850). Accordingly, we affirm the trial court’s dismissal of ground two of Miller’s motion without prejudice to any right Miller might have to present his claim in a properly sworn rule 3.850 motion. See Oramas, 615 So.2d 853.

In ground three, Miller alleged that the $100,000 fine for trafficking in oxycodone was illegally imposed. Miller based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). In Taylor, this court held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying Miller’s motion, the trial court found: “As of April 29, 2002, the Florida Legislature has cured the single subject rule violation by re-enacting the provisions originally contained in Chapter 99-188. The reenactment was retroactive to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively since this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Nevertheless, we affirm that portion of the trial court’s order denying Miller’s claim that the $100,000 fine was illegally imposed because the imposition of the fine was mandatory pursuant to section 893.135(l)(c)(l)(b), Florida Statutes (1997), which was in existence prior to the passage of chapter 99-188. See Bush v. State, 823 So.2d 833 (Fla. 2d DCA 2002) (holding that the validly enacted statutes in effect prior to the enactment of chapter 99-188 control sentencing). In ground three, Miller also alleged that the fine was illegal because it was not part of the plea bargain. Miller did not seek to withdraw his plea on the ground that it was involuntarily entered, and we affirm the denial of this claim.

Affirmed.

CASANUEVA and SILBERMAN, JJ., concur.

      . Miller did not provide the date of the offense in his motion.


author: NORTHCUTT, Judge.

text:
    Joey Wayne BRIDGES, Appellant, v. Dora Faye BRIDGES, Appellee.
    No. 2D01-832.
    District Court of Appeal of Florida, Second District.
    June 25, 2003.

      William C. Hamm, Jr., Lakeland, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

In May 2000, the circuit court entered a final judgment dissolving the marriage of Mr. and Mrs. Bridges. Then in December 2000, on Mrs. Bridges’s motion to enforce the judgment, the court awarded her money damages in lieu of personal property she had received in the dissolution judgment. Mr. Bridges challenges that December order in this appeal. We reverse because the circuit court had no jurisdiction to enter it.

The dissolution judgment awarded the marital home and its contents to Mrs. Bridges. In June 2000, she filed a motion for contempt, contending that Mr. Bridges had removed certain items from the home that belonged to her under the terms of the judgment. He moved to dismiss the contempt motion on the ground that contempt was not a proper remedy to enforce an award of personal property. The circuit court agreed and dismissed the motion. Mrs. Bridges then filed a motion to enforce the final judgment, again alleging that Mr. Bridges had taken her property. After hearing some evidence about the allegedly missing items, the court entered a money judgment against Mr. Bridges for the value of the property, $12,000.

Usually a court has no jurisdiction to modify property rights after those rights have been adjudicated in a final judgment of dissolution. Mason v. Mason, 371 So.2d 226, 227 (Fla. 2d DCA 1979). Although the dissolution judgment in this case contained a reservation of jurisdiction for its enforcement, this general reservation did not empower the court to, in essence, change the wife’s award of tangible personal property into an award of money damages. See Harman v. Harman, 523 So.2d 187,188 (Fla. 2d DCA 1988) (holding a general reservation of jurisdiction did not preserve the court’s jurisdiction to alter the property rights determined in the final judgment of dissolution). Therefore, we reverse the order awarding money damages to Mrs. Bridges.

Because our reversal is grounded on lack of jurisdiction, the December 2000 order has effectively been expunged. Marshall & Spencer Co. v. People’s Bank of Jacksonville, 88 Fla. 190, 101 So. 358, 359 (1924). Therefore, we need not address Mr. Bridges’s contentions that he did not receive due process and that the court’s valuation of the personal property was not supported by the evidence. Further, the order will have no res judicata effect or law of the case implications in any other lawsuit Mrs. Bridges may wish to file. See Polk County v. Sofka, 730 So.2d 389, 393 (Fla. 2d DCA 1999).

Reversed.

WHATLEY and STRINGER, JJ., Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Delmar HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1463.
    District Court of Appeal of Florida, Second District.
    June 25, 2003.
    James Marion Moorman, Public Defender, Bartow, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   THREADGILL, EDWARD F., Senior Judge.

Delmar Hampton challenges the trial court’s denial of his motion to withdraw his no contest plea. Hampton was originally charged with sexual battery, possession of marijuana, and possession of paraphernalia. He was permitted to plead no contest to lesser included offenses and was sentenced to a total of eight years’ probation. We reverse and remand for further proceedings.

Hampton filed his motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(0, which allows a defendant who has pleaded guilty or nolo contendere to appeal an involuntary plea if preserved by a motion to withdraw plea. Although Hampton raises two issues on appeal, one is dispositive. Hampton argues that the trial court’s refusal to appoint counsel to assist him in preparation of his motion to withdraw plea denied him his Sixth Amendment right to counsel. We agree. A motion to withdraw plea is a critical stage of a criminal proceeding at which an indigent defendant is entitled to court-appointed counsel. Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999).

The court denied Hampton’s motion without providing him assistance of counsel or an evidentiary hearing. This was per se reversible error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Citing Cunningham v. State, 677 So.2d 929 (Fla. 4th DCA 1996), the State argues that Hampton was not entitled to counsel because Hampton merely had a conflict with his counsel. However, as the court observes in Padgett, 743 So.2d at 73-74, Cunningham is factually distinguishable. In Cunningham, there was no factual dispute regarding counsel’s allegedly coercive behavior that occurred in private and off the record. By contrast, Hampton alleged in his pro se motion to withdraw plea that his trial counsel had “lied to” and “deceived” him, inducing him to enter the plea. This type of conflict requires the appointment of counsel. See Padgett, 743 So.2d at 73-74.

We affirm the judgment and sentence and reverse the trial court’s denial of Hampton’s motion to withdraw his plea. On remand the trial court shall conduct an evidentiary hearing on the motion and provide Hampton with conflict-free counsel.

Affirmed in part, reversed in part, and remanded.

FULMER and CASANUEVA, JJ., Concur.


text:
    Albert GOBLE, Appellant/Cross-Appellee, v. Mark E. FROHMAN, Appellee/Cross-Appellant.
    No. 2D02-1887.
    District Court of Appeal of Florida, Second District.
    June 25, 2003.

      Amy S. Farrior, Raymond T. Elligett, Jr., and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa; and Timothy F. Prugh of Prugh, Holliday & Deem, P.L., Tampa, for Appellant/Cross-Appel-lee; ■
    Rebecca O’Dell Townsend and Daniel P. Mitchell of Gray, Harris & Robinson, P.A., Tampa, for Appellee/Cross-Appellant.
    Jeremy S. Sloane of Rice Rose & Snell, Daytona Beach, for Amicus Curiae Florida Defense Lawyers’ Association.
   STRINGER, Judge.

Albert Goble, plaintiff below, appeals the trial court’s order granting a setoff in favor of Mark E. Frohman, defendant below. The trial court reduced the jury verdict for past medical expenses to the amount Go-ble’s medical providers had agreed to accept under their contract with Goble’s health maintenance organization (HMO). We conclude that the setoff was proper and affirm. Because this decision will impact the billing practices of HMOs and medical providers, we also certify a question of great public importance to the Florida Supreme Court. On cross-appeal, Frohman argues that the trial court erred in excluding collateral source evidence. We affirm on cross-appeal as well.

While Goble was riding a motorcycle, he was hit by Frohman’s vehicle and severely injured in the accident. Goble subscribed to Aetna U.S. Healthcare, an HMO. Go-ble’s medical providers billed $574,554.31 for his medical treatment relating to this accident, and the jury awarded this amount as past medical expenses. Pursuant to fee schedules in contracts between Aetna and the medical providers, Aetna paid $145,970.76 for the medical treatment and Goble paid $15,000 in co-payments. The difference between the amounts billed and the amounts paid, or $413,583.55 (referred to hereafter as “the contractual discount”), was written off by the medical providers, who have no right to seek reimbursement from Goble or any third parties. See § 641.315(3), Fla. Stat. (1999).

Posttrial, the court granted Frohman’s motion for setoff under section 768.76, Florida Statutes (1999). In pertinent part, this statute provides:

768.76 Collateral sources of indemnity.—
(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists....
(2) For purposes of this section:
(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:
3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

Under the common-law rule, both the introduction of evidence of collateral benefits and the setoff of any collateral source benefits were prohibited. Sheffield v. Superior Ins. Co., 800 So.2d 197, 200 n. 3 (Fla.2001). The common-law rule has been altered in this state by section 768.76. Id. The Florida Supreme Court has held that section 768.76 must be narrowly construed as an alteration of the common law. Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 293 (Fla.2000). While we recognize we are bound by this precedent, we suggest that section 768.76 should be liberally construed because the statute is also remedial in nature. See Irven v. Dep’t of Health & Rehabilitative Servs., 790 So.2d 403, 406 (Fla.2001) (holding that statutes that are both alterations of the common law and remedial in nature should be liberally construed to give effect to the legislature’s express intent).

Section 768.76 was enacted in 1986 as part of the Tort Reform and Insurance Act. Ch. 86-160, §§ 1, 55, Laws of Fla. The legislature has offered the following explanation of the Act’s underlying policy considerations:

The Legislature finds and declares that a solution to the current crisis in liability insurance has created an overpowering public necessity for a comprehensive combination of reforms to both the tort system and the insurance regulatory system. This act is a remedial measure and is intended to cure the current crisis and to prevent the recurrence of such a crisis. It is the purpose of this act to ensure the widest possible availability of liability insurance at reasonable rates, to ensure a stable market for liability insurers, to ensure that injured persons recover reasonable damages and to encourage the settlement of civil actions prior to trial.

Ch. 86-160, § 2 (emphasis added). Thus, while section 768.76 constitutes an alteration of the common law, it is clearly remedial in nature, and it should be liberally construed to give effect to the legislature’s express intent.

We question the supreme court’s reliance on Rollins v. Pizzarelli, 761 So.2d 294, 300 (Fla.2000), to apply a narrow construction of section 768.76 in Rudnick. See 761 So.2d at 293. Rollins involved the construction of section 627.736(3), Florida Statutes (Supp.1996), which precluded the recovery of damages “for which personal injury protection benefits are paid or payable” from collateral sources and required the jury to be so instructed. The Rollins court did not construe section 768.76. Because it does not appear that section 627.736(3) is also remedial in nature, it was proper to narrowly construe that section. However, the remedial nature of section 768.76 requires a liberal construction under Irven.

Regardless, even a narrow construction of section 768.76 requires a holding that the trial court properly set off the contractual discount. In section 768.76, the legislature defined a certain category of collateral source benefits that are subject to setoff. The statute defines the collateral sources subject to setoff as “payments made to the claimant, or made on the claimant’s behalf.” § 768.76(2)(a). The issue for our determination is whether the contractual discount constitutes a “payment made” on Goble’s behalf pursuant to his health insurance.

“Payment” is defined by Webster’s as “the act of paying or giving compensation,” “the discharge of a debt or an obligation,” “something given to discharge a debt or obligation or to fulfill a promise.” Webster's Third New International Dictionary 1669 (1986). It has also been defined as “[pjerformance of an obligation, usu. by the delivery of money. Performance may occur by delivery and acceptance of things other than money, but there is a payment only if money or other valuable things are given and accepted in partial or full discharge of an obligation.” Blade's Law Dictionary 1150 (7th ed.1999).

Thus, it is clear that a payment is more than the act of remitting money. In this case, the contractual discount constitutes a “payment made” on Goble’s behalf because remittance of the discounted amount discharged Goble’s obligation to his medical providers for treatment. As we have already noted, the medical providers are prohibited from seeking reimbursement from Goble or any third parties for the contractual discount.

D’Angelo v. Fitzmaurice, 832 So.2d 135 (Fla. 2d DCA 2002), review granted, (Fla. May 15, 2003), as relied upon by Goble, is inapposite. In that case, prior to trial, the plaintiff settled with a defendant hospital for the forgiveness of an outstanding hospital bill and cash. Id. at 136. The court rejected the defendant’s request for a set-off of the settlement amounts under section 768.76. Id. at 136 n. 2. Goble argues that the forgiveness of a hospital bill is analogous to the contractual discount in this case. However, under section 768.76(2)(a), a settlement agreement with a codefendant hospital is not a “collateral source” of indemnity. Thus, section 768.76 would not apply in D’Angelo.

The allowance of a setoff for a contractual discount is also consistent with the legislature’s express intent to fully compensate the injured party while simultaneously reducing the litigation costs that arise when insurers are required to pay damages beyond what the injured party actually incurred. See ch. 86-160, § 2. The injured party is fully compensated by an award that equals the amounts the injured party paid to the medical provider plus the amounts paid by his insurer, which will ultimately be subrogated by the insurer. See §§ 641.31(8), 768.76(4), Fla. Stat. (1999). Awarding an injured party damages that include a contractual discount, which in this case is in excess of $400,000, results in a windfall to the injured party for damages that have not been incurred. The allowance of such a windfall completely undermines the purpose of the Act by requiring insurers to pay damages based on a billing fiction, especially when the insurers will be sure to pass the cost for these phantom damages on to Floridians. Accordingly, we affirm the trial court’s order granting a setoff in favor of Froh-man.

On cross-appeal, Frohman argues that the trial court erred in excluding evidence of the contractual discounts. “The collateral source rule functions as both a rule of damages and a rule of evidence.” Gormley v. GTE Prods. Corp., 587 So.2d 455, 457 (Fla.1991). The evidentiary rule prohibits the admission of evidence regarding collateral sources in the liability trial because it “misleads the jury on the issue of liability.” Id. at 458. To challenge the reasonableness or necessity of the medical bills, Frohman could have introduced evidence on the value of or need for the medical treatment. As stated in Gormley, “there generally will be other evidence having more probative value and involving less likelihood of prejudice than the victim’s receipt of insurance-type benefits.” Id. (quoting Williams v. Pincombe, 309 So.2d 10, 11 (Fla. 4th DCA 1975)). Furthermore, as this court has previously held, evidence of contractual discounts received by managed care providers is insufficient, standing alone, to prove that nondiscounted medical bills were unreasonable: Hillsborough County Hosp. Auth. v. Fernandez, 664 So.2d 1071 (Fla. 2d DCA 1995). Therefore, we affirm the exclusion of evidence at trial regarding collateral source benefits.

Because this case presents an issue of great public importance, we certify to the Florida Supreme Court the following question:

UNDER SECTION 768.76, FLORIDA STATUTES (1999), IS IT APPROPRIATE TO SETOFF AGAINST THE DAMAGES PORTION OF AN AWARD THE AMOUNTS OF REASONABLE AND NECESSARY MEDICAL BILLS THAT WERE WRITTEN OFF BY MEDICAL PROVIDERS PURSUANT TO THEIR CONTRACTS WITH A HEALTH MAINTENANCE ORGANIZATION?

Affirmed; question certified.

NORTHCUTT, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

      . Aetna, however, has a subrogation or reimbursement right for the amounts paid on Go-ble's behalf minus a pro rata share of Goble’s costs and attorney's fees. See §§ 641.31(8), 768.76(4), Fla. Stat. (1999).

      . Although section 768.76 is not cited in the opinion, it was cited in briefs the appellant filed with this court.


text:
    Lisa Ann TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4884.
    District Court of Appeal of Florida, First District.
    June 26, 2003.

      David M. Robbins and Susan Z. Cohen, of Epstein and Robbins, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying her postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute the appellant’s claim that her conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to her, we reverse. We affirm all other issues raised in the appellant’s motion without discussion.

The appellant pled guilty to DUI manslaughter and was sentenced to seven years’ imprisonment followed by eight years’ probation. The appellant alleged that the state failed to reveal several pieces of evidence that would have been favorable to the appellant in violation of Brady v. Maryland, 378 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order to establish a Brady violation, the appellant must show that (1) the evidence was favorable to the appellant, either exculpatory or for impeachment purposes, (2) the state suppressed the evidence, either willfully or inadvertently, and (3) the appellant was prejudiced by the suppression of the evidence. State v. Huggins, 788 So.2d 238, 242 (Fla.2001); see also Randall v. State, 604 So.2d 36 (Fla. 1st DCA 1992). In the context of a trial, an appellant must allege that the suppression of evidence undermines the confidence in the jury’s verdict. Huggins, 788 So.2d at 243-244. In the context of a plea, an appellant must allege that he would not have entered a plea and proceeded to trial, but for the state’s suppression of the favorable evidence. See Brazeail v. State, 821 So.2d 364 (Fla. 1st DCA 2002) (holding that where an appellant alleges that his plea was not knowingly and voluntarily entered, prejudice exists “because a defendant has been deprived of his constitutional right to a trial.”).

In the instant case, the appellant alleged that the state failed to reveal the results of the blood test from the other driver involved in the accident which would have shown that the driver had alcohol and drugs in her system and the statements by a witness to the Florida Highway Patrol that indicated the driver of the other car was intoxicated, driving erratically, and talking on a cell phone at the time of the offense. (R. at 2, 3.) The appellant alleges that she was prejudiced by the state’s action because she would not have entered a plea if she had known about the additional evidence. (R. at 6.) These allegations are sufficient to state a facially sufficient claim of a Brady violation.

Because the trial court never addressed the alleged Brady violation and there is nothing in the record to conclusively refute the appellant’s claim that these violations occurred, we reverse the trial court’s summary denial of the appellant’s claim. We otherwise affirm the trial court’s order, and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that the appellant is entitled to no relief or to conduct an evidentiary hearing on the claim.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

ERVIN, WOLF, and BENTON, JJ., concur.


text:
    H & M PARTNERSHIP, INC. d/b/a 1 Source Wire & Cable, Appellant, v. Trudy H. RHINEHART and Karen A. Guidry, Appellees.
    No. 1D03-0008.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    Michael P. Dickey of Barron, Redding, Hughes, Fite, Fensom, Sanborn & Kiehn, P.A., Panama City, for Appellant.
    Rebecca Southwell Daffin, Panama City, for Appellees.
   PER CURIAM.

AFFIRMED. See McRae v. J.D./M.D., Inc., 511 So.2d 540 (Fla.1987).

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


text:
    Jeffery THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0640.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    Louis O. Frost, Jr., Public Defender, and David A. Taylor, Assistant Public Defender, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence imposed on December 12, 2002, in the Duval County Circuit Court case number 2001-9570-CF-A, 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). If petitioner qualifies for the appointment of counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    Gary C. LINDROS, Appellant, v. Lee F. BACKUS and Cicily Backus, his wife, and Marjorie Backus, Appellees.
    No. 1D02-822.
    District Court of Appeal of Florida, First District.
    June 26, 2003.

      Robert Skeels, Esquire, Jacksonville; Michael J. Korn, Korn & Zehmer, P.A., Jacksonville, for Appellant.
    J. Michael Lindell, Esquire, and Karen E. Wendzel, Esquire, of Lindell & Kelli-son, P.A., Jackonville, for Appellees.
   PER CURIAM.

Appellant Gary C. Lindros brought an action for specific performance of a contract for the purchase of an oceanfront condominium. At the conclusion of Appellant’s case in chief, the trial court granted Appellees’ motion for dismissal on the basis that “the plaintiffs proofs failed to satisfy the requirements of the Statute of Frauds, § 725.01, Florida Statutes, in that the plaintiff failed to show that the defendants signed the documents alleged to constitute such a contract, or the plaintiff failed to show that defendants’ names were signed thereto by a person authorized to sign their names for them.” We agree with Appellant that the trial court erred as a matter of law, and therefore reverse.

We hold that the aggregated documents in the record, including an extension agreement signed by Appellant and Appel-lee Marjorie Backus after a power of attorney was executed authorizing her to sell the condominium, satisfy the requirements of section 725.01, Florida Statutes. See Heffernan v. Keith, 127 So.2d 903 (Fla. 3d DCA 1961)(holding that a telegram, together with other documents, constituted a sufficient memorandum to satisfy the statute of frauds for the sale of land).

REVERSED and REMANDED for further proceedings.

WEBSTER, PADOVANO and POLSTON, JJ., concur.


text:
    Darrell Lavalle DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0452.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    William Mallory Kent of the Law Offices of William Mallory Kent, Jacksonville, for Petitioner.
    Charlie Crist, Attorney General, and James W. Rogers, Sr. Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Darrell Lavalle Davis seeks a belated appeal of the order rendered on or about August 5, 2002, denying Davis’ motion for postconviction relief in Duval County Circuit Court case number 96-5225-CF-B. According to Davis, he was not timely served with a copy of the order. In response to an order to show cause, the state has conceded that Davis is entitled to a belated appeal. Accordingly, Davis’ 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, WOLF and DAVIS, JJ, concur.


author: PETERSON, J.

text:
    Sirmontay FORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2031.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Sirmontay Ford was found guilty by jury verdict of robbery with a firearm. Ford contends that the trial judge’s failure to give' a complete instruction on the issue of his alibi requires a new trial. We agree, vacate the judgment of conviction and remand for a new trial.

The victim testified that he was walking home from his girlfriend’s apartment around midnight when a person exited a white four-door Pontiac with dark tinted widows. That person was wearing all black clothing, had dread locks and a bandana on his head that covered his forehead. Nevertheless, the victim testified that he recognized the person from his eyes, eyebrows and dread locks as being “Monty”, the Appellant, Sirmontay Ford, from the victim’s first period class in school.

The person identified by the victim as Ford was joinéd by another who also exited the Pontiac. Each allegedly placed a gun to the sides of the victim’s head and robbed him of his necklace, hat and “do-rag” that he wore on his head.. The assailants then ran to the car and left. The victim ran to his apartment. Before calling the police, the victim and his mother drove around the local streets looking for the assailants’ car. They saw a car that the victim believed was involved in the robbery, followed it and noted the tag number. The incident was then reported to a police officer including the identification of “Monty” as one of the assailants. Later, the victim identified Ford from a photographic line-up.

The police successfully located the owner of the car bearing the license tag noted by the victim, but found no evidence that the car was used in the robbery. Three weeks after the robbery, the police spoke with Ford about the robbery. Ford waived his Miranda rights, agreed to answer questions, denied committing the robbery, did not recall where he was on the night of the incident, and could not supply the names of any witness that could corroborate his whereabouts at the time of the robbery.

During the jury trial, Ford testified that he knew the victim from school, was at home at the time of the alleged robbery and presented the testimony of two other witnesses: the owner of the car matching the tag number provided to the police by the victim, and Ford’s mother.

The vehicle’s owner testified that he worked until 9:00 PM the night of the robbery, was at a Wal-Mart shopping at the time of the alleged robbery, that his car was not used in the alleged robbery and that he did not know Ford. Ford’s mother testified that when she returned home from work at around 11:45 p.m. on the night of the alleged robbery, her son was in his room and never left the house that night.

Florida’s standard criminal jury instruction 3.04(a) provides:

Alibi
Am issue in this case is whether defendant was present when the crime allegedly was committed.
Note to judge When the defendant is charged only as a principal not present at the commission of the crime, the following instruction may not be applicable.
If you have a reasonable doubt that the defendant was present at the scene of the alleged crime, it is your duty to find the defendant not guilty.

Despite a contemporaneous objection by Ford at the charging conference, the trial court read only the first sentence of the standard jury instruction to the jury and did not read the second sentence (“If you have a reasonable doubt ... ”). The trial court reasoned that:

There’s additional optional language that says, if you have a reasonable doubt that the defendant was present at the scene of the alleged crime, it is your duty to find the defendant not guilty. I don’t think that’s applicable in this case because Mr. Sirmontay Ford is not alleged to have been a principal who was not present at the commission of the crime.

Ford correctly contends that the trial court misunderstood that it is precisely because he was not alleged to have been a principal who was not present at the commission of the crime that the second paragraph explaining reasonable doubt should have been read. The “Note to judge” renders the second sentence of the standard jury instruction inapplicable when the “defendant is charged only as a principal not present at the scene of an alleged crime.” (emphasis added). Because Ford was charged as a principal present at the commission of the crime, the “Note to judge” does not apply here and the second sentence of the jury instruction should have been read to the jury.

Ford claims further that by failing to read the alibi instruction in its entirety, the trial court improperly shifted the burden of proof to the defense and, in addition, failed to inform the jury of the law necessary in order for the jury to determine the issue of alibi. “[A] trial court must instruct the jury on the law applicable to alibi if there is evidence to support such an instruction.” Rostano v. State, 678 So.2d 1371, 1373 (Fla. 4th DCA 1996); See also Ramsaran v. State, 664 So.2d 1106 (Fla. 4th DCA 1996). The Rostano opinion cites with approval Gray v. United States, 549 A.2d 347 (D.C.1988), in which a defendant’s conviction was reversed when the trial court improperly denied his request for an alibi instruction. Rostano, 678 So.2d at 1373. In Gray, the defendant also testified he was not at the precise place where the alleged crime took place. Gray, 549 A.2d. at 350. Here, not only did Ford testify that he was at home at the time of the alleged robbery, he offered the testimony of his mother in an attempt to confirm his presence, and testimony by the owner of the vehicle having the tag number noted by the victim that he did not know Ford and Ford was not using his car at the time of the robbery. Sufficient evidence was introduced to entitle Ford to a complete alibi instruction and we do not regard the omitted portion as harmless error.

“Whenever the trial court improperly denies an alibi instruction, there is a strong presumption of prejudice to the defendant.” Rostano, 678 So.2d at 1373, citing Henderson v. United States, 619 A.2d 16 (D.C.1992). Although the trial court also instructed the jury with the standard definitional jury instructions on the presumption of innocence, burden of proof and reasonable doubt, none were tied directly to Ford’s alibi defense.

We conclude that the trial court misinterpreted the “Note to judge” in the alibi instruction and failed to instruct the jury with the second sentence. Although the court did instruct the jury on burden of proof and reasonable doubt, it is our view that Ford was prejudiced by the failure to read the second sentence, without which, the first sentence is not instructional.

The judgment is vacated and the matter remanded for a new trial.

JUDGMENT VACATED; REMANDED

SHARP, W. and PALMER, JJ., concur.