text:
    William RUDOLF, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-786.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
   SILBERMAN, Judge.

William Rudolf appeals the trial court’s order summarily denying his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand (1) for an evidentiary hearing on his claim of ineffective assistance of counsel with respect to the State’s plea offers; and (2) for the trial court to vacate the conviction and discharge Rudolf on count four, grand theft, based on a double jeopardy violation (which Rudolf couched as an ineffective assistance claim). We affirm the denial of his ineffective assistance claim with respect to the failure to raise a voluntary intoxication defense, and we affirm the remainder of the trial court’s summary denial without discussion.

On September 9, 1999, Rudolf was convicted and sentenced for (1) grand theft motor vehicle; (2) possession of paraphernalia; (3) resisting an officer without violence; and (4) grand theft. He was sentenced to time served on the misdemeanor counts, counts two and three. The trial court imposed a five-year sentence on count one, consecutive to a five-year sentence on count four. This court issued its per curiam affirmance of Rudolfs direct appeal on July 2, 2000. Rudolf filed his amended motion for postconviction relief on July 9, 2001.

The charges arose when the victim, Robert Droud, reported that his truck was stolen from a convenience store parking lot on January 4, 1999. Count one charged the theft of the truck, and count four charged the theft of Droud’s personal property (the stereo and tools in the truck). In August 1999, the State offered five years’ probation, which Rudolf claims that defense counsel advised him to reject. He asserts that counsel advised him that she could get the charge dropped to unauthorized use of a motor vehicle and that he would get time served or at the most twenty-two months in prison; she did not advise him that he was facing a potential twelve-year term of imprisonment (five years for each third-degree felony and one year for each misdemeanor). He claims that if he had known he was facing twelve years, he would have taken the offer of five years’ probation.

On the morning of trial, the State offered five years in prison. The defense rejected the offer and stated that Rudolf only scored 38.7 points and that he would plead out to time served. The trial court explained that under the new Criminal Punishment Code it had the discretion to sentence Rudolf to probation or up to the maximum sentence of twelve years’ imprisonment. Defense counsel then asked what happened to the offer of probation. The State explained that when it made the offer a month earlier it did not know that Rudolf had previously been placed on probation for grand theft motor vehicle and that he had violated probation after two weeks by again being charged with grand theft motor vehicle. Defense counsel stated, “I guess we are [going to trial] if we can’t plead out to probation.”

The trial court ordered the State to respond to Rudolfs amended motion for postconviction relief with respect to the claims of ineffective assistance of counsel. In its response, the State pointed out that the misdemeanor offense of unauthorized temporary use of a motor vehicle was repealed in 1982, citing chapter 82-164, section 2, Laws of Florida. The State admitted that it did not know what discussions occurred between Rudolf and defense counsel. The State argued that the trial court informed Rudolf of the twelve-year maximum, that he rejected the offer of five years in prison just before the trial began, and that “there was no offer of probation on the table at the time of trial.”

To prevail on a claim of ineffective assistance of counsel, the defendant must prove “deficient performance by counsel and subsequent prejudice resulting from that deficiency.” Cottle v. State, 733 So.2d 963, 965 (Fla.1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Defense counsel can be ineffective in failing to properly advise the defendant of a plea offer. Eristma v. State, 766 So.2d 1095, 1096 (Fla. 2d DCA 2000). When the alleged ineffectiveness concerns the rejection of a plea offer, the defendant must prove: “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.” Cottle, 733 So.2d at 967; see Eristma, 766 So.2d at 1096. The prejudice to the defendant that Strickland requires “is inherent in the defendant’s inability to make an informed decision concerning whether to accept the plea offer.” Eristma, 766 So.2d at 1096 (citing Cottle, 733 So.2d at 969); see Aebi v. State, 842 So.2d 888 (Fla. 2d DCA 2003).

Here, Rudolf alleged that in August 1999 the State offered him five years of probation. He further alleged that he rejected the offer because his counsel told him that he would get time served, or at most, twenty-two months in prison, when he in fact was facing a potential twelve-year sentence. After trial, the court imposed a consecutive sentence resulting in total prison time of ten years. Thus, the offer of five years’ probation and the later offer of five years in prison were less than the sentence he received.

The State points out that it later withdrew the offer of probation. However, the Florida Supreme Court stated in Cottle that “an inherent prejudice results from a defendant’s inability, due to counsel’s neglect, to make an informed decision whether to plea bargain, which exists independently of the objective viability of the actual offer.” Cottle, 733 So.2d at 969. Consequently, Rudolf stated a sufficient claim on counsel’s failure to properly convey the plea offer to him, and we reverse the summary denial on this claim and remand for an evidentiary hearing. As to the remedy should he prevail at the evi-dentiary hearing, we suggest “a ‘good faith resumption of plea negotiations.’” Eristma, 766 So.2d at 1097 (quoting Lewis v. State, 751 So.2d 715, 718 (Fla. 5th DCA 2000)); see Feldpausch v. State, 826 So.2d 354, 357 (Fla. 2d DCA 2002) (stating that “[t]his court has no authority to require the State to reoffer its original plea offer”).

Rudolf contends that trial counsel was also ineffective for failing to move for judgment of acquittal on count four on double jeopardy grounds. This is not a proper claim for ineffective assistance because the double jeopardy violation is fundamental error. Although counsel may have been deficient in failing to assert it, the issue could have been raised on direct appeal, see Johnson v. State, 747 So.2d 1027 (Fla. 2d DCA 1999), and a double jeopardy violation is likewise cognizable as a claim in a rule 3.850 motion. See Tidwell v. State, 790 So.2d 1184 (Fla. 2d DCA 2001); Plowman v. State, 586 So.2d 454 (Fla. 2d DCA 1991). Thus, we treat Ru-dolfs claim as one asserting a double jeopardy violation as a result of the convictions for grand theft motor vehicle (count one) and grand theft (count four).

In count four the State charged grand theft based on Rudolf taking Droud’s “money or property” valued at $300 or more. At trial, the State proved that when Droud’s truck was recovered the stereo system was missing, along with some of Droud’s work tools. Droud testified that he had installed the stereo system in the truck, and he valued it at well over $300. He also testified that some work tools he referred to as “stilts” were missing and that they were worth about $250. Droud stated that some small tools such as hammers were missing, but he did not place a value on them.

The State is precluded by double jeopardy principles from obtaining convictions on both grand theft of a motor vehicle and grand theft of the contents when “there is one act of taking (of the car and its contents) with no geographic or temporal separation between two acts of taking.” Beaudry v. State, 809 So.2d 83, 84 (Fla. 5th DCA 2002); see Sirmons v. State, 634 So.2d 153 (Fla.1994); Johnson v. State, 597 So.2d 798 (Fla.1992). Beaudry was convicted of grand theft of a motor vehicle and grand theft for computer equipment that was in the vehicle at the time Beaudry stole the car. The Fifth District reversed the conviction that was based on the grand theft of the computer equipment on double jeopardy principles. Similarly, Rudolf should not have been convicted of grand theft of the tools in Droud’s truck.

We recognize that the Fourth District upheld convictions for grand theft of a motor vehicle and grand theft of clothing in the same car in McInnis v. State, 605 So.2d 153 (Fla. 4th DCA 1992). The McIn-nis court relied on State v. Getz, 435 So.2d 789 (Fla.1983). However, in Johnson, the supreme court explained that the separate convictions for grand theft of a firearm and petit theft of a calculator in Getz were proper because in that burglary of a dwelling the defendant separately took each item with the intent to take each item. In contrast, Johnson “in one swift motion” wrongfully took a handbag which contained money and a firearm; thus, the supreme court held that his convictions for both grand theft of the money and grand theft of the firearm violated double jeopardy. Johnson, 597 So.2d at 798. Here, Droud left his truck with the keys in it while he went inside a convenience store. Rudolf got in the truck and drove away. He committed one act of stealing a vehicle, with whatever contents might be in it, as did the defendant in Beaudry.

In addition, the State sought to establish the grand theft in count four based on a stereo system that was installed in the truck when the truck was stolen. Rudolf argues that the installed stereo system was a fixed part of the vehicle, like the engine, transmission, doors, windows, lights, and mirrors, and that, in fact, he could not have stolen the truck without the stereo system. He also asserted that to allow a separate grand theft conviction for the stereo system would allow the State to obtain additional grand theft convictions based upon a breakdown of parts of the vehicle that have a value of $300 or more. We agree that the claim of grand theft violates the prohibition against double jeopardy because there was only one act of taking, which was the taking of the truck. See Beaudry, 809 So.2d at 84.

Rudolfs conviction on count four is barred by double jeopardy principles, and is fundamental error which is apparent on the face of our record. Accordingly, no further hearing is necessary before the trial court, and we direct the trial court to vacate the conviction and discharge Rudolf on count four.

Rudolf also claims that counsel was ineffective for failing to raise voluntary intoxication as a defense and for failure to request the voluntary intoxication instruction. At the time the crimes occurred, January 4,1999, voluntary intoxication was a defense to the specific intent crime of grand theft. See Locklear v. State, 847 So.2d 543 (Fla. 2d DCA 2003); Spivey v. State, 680 So.2d 565 (Fla. 1st DCA 1996); Ch. 99-174, § 1, at 968, Laws of Fla. (creating section 775.051, Florida Statutes, which abrogates voluntary intoxication as a defense, effective October 1,1999).

A review of the trial transcript reflects, however, that Rudolf testified that he borrowed the truck from Droud in exchange for five pieces of rock cocaine and that Droud wanted the cocaine so that he could give it to a “trick girl” and have sex with her. Rudolf surmised that Droud later claimed his truck was stolen so that his wife would not know he was using cocaine and “playing around with some girl.” On cross-examination, Rudolf denied that he stole the truck.

The voluntary intoxication defense is used to negate the specific intent necessary to commit the crimes. See Locklear, 847 So.2d 543. Rudolfs claim, in essence, is that he was innocent because he had the specific intent to borrow the car, and he did not steal it. Thus, any failure to raise a voluntary intoxication defense does not prejudice him when he claims that he did not steal the car, the charge in count one, or the personal property in the car, the charge in count four. See Rivera v. State, 717 So.2d 477, 485 (Fla.1998). Therefore we affirm the trial court’s summary denial of this claim.

Affirmed in part, reversed in part, and remanded.

WHATLEY and SALCINES, JJ., Concur.

      . We note that the State's evidence failed to prove that the tools were worth $300 or more, as is necessary to sustain a grand theft conviction. See § 812.014(2)(c), Fla. Stat. (1999). Rudolf raised counsel's failure to move for judgment of acquittal on this basis as another ground of ineffective assistance; however, we need not consider this claim based on our disposition of the double jeopardy claim.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Rosie C. DIAZ, Appellant, v. Edward C. ROOD, Appellee.
    No. 2D02-1156.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.

      Peter J. Kelly and Gregory M. McCos-key of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Appellant.
    Steven L. Hearn and Tae Kelley Bron-ner of Steven L. Hearn, P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

Rosie C. Diaz appeals the final summary judgment entered against her in her suit to enforce a predivorce assignment received from her husband at the time, Edward C. Rood. We reverse for further review using the correct standard.

FACTUAL BACKGROUND

This ease originated in the turbulence created by a marriage that ultimately was to crash. The parties were married in 1977. The years that followed subjected the marriage to numerous challenges including financial difficulties, the husband’s infidelities, and professional problems that eventually led to the husband’s disbarment from the practice of law. In August 1994, the parties separated and the husband left the marital home. They sought marital counseling and resumed living together. This effort at reconciliation failed, and he again removed himself from the marital home. Nevertheless, marital counseling continued during this period.

During their second separation, the husband suggested to his wife that he assign her a portion of the inheritance he expected to receive from his father’s estate upon his father’s death. In 1995, the wife’s counsel drafted such an assignment and the parties executed it. In this document the husband assigned to his wife fifty percent of any future inheritance he would receive from his father’s estate. Following this, the parties reconciled, and the husband returned to live in the marital home. Despite all efforts, this reconciliation also failed, and Ms. Diaz eventually filed for dissolution. A final judgment of dissolution incorporating a marital settlement agreement that the parties had executed was entered on April 4, 1996. The marital settlement agreement made no specific reference to the earlier assignment.

In 2001, Mr. Rood’s father died, but Mr. Rood refused to give any portion of his inheritance to Ms. Diaz under the assignment. Ultimately, she filed the civil action seeking to enforce the assignment, which resulted in the final summary judgment now on appeal.

DISCUSSION

Mr. Rood challenged enforcement of the assignment primarily on the grounds that it was void for lack of consideration and that it was not fairly obtained. The final summary judgment referenced an earlier court order granting Mr. Rood’s motion for summary judgment that stated, “[Tjhis court finds that there exists no genuine issue as to any material fact regarding the absence of fair and sufficient consideration from plaintiff, Rosie C. Diaz to defendant Edward C. Rood for the purported assignment....” We reverse because we find that the trial court applied an incorrect legal standard in determining whether sufficient consideration existed to support the assignment.

The possibility that a person will inherit property from an ancestor is but an expectancy and not an interest in property. While a descendant may expect or hope to inherit, neither a present nor future interest in property actually exists in the absence of a conveyance. This does not, however, taint the assignment. The case of Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948), is often cited for the proposition that an expectancy may be assigned. In Richardson, our supreme court considered the assignability of a right of reverter retained in a warranty deed and held that the “possibility of reverter is an uncertain interest in land that may under our law be conveyed or devised, regardless of what the common law rule was.” Id. at 644. In reaching this conclusion, the court noted the historical reality that

the right of contract so rigidly canalized by the common law, has, by the constitution and statutes, been liberalized till at the present any citizen who is sui juris may enter into any contract that is not illegal, fraudulent, immoral or contrary to public policy. Under the common law a right of action, choses in action, future or contingent interests, possible and existing estates or interests, were not assignable, but all of these are now assignable by statute or in equity. In view of the law as thus reflected in this state, we see no escape from this conclusion.

Id. Although at common law Mr. Rood could not have made this assignment, now his expectancy may legally be the subject of an assignment.

Courts use a two-part analysis in determining whether an assignment of a prospective heir’s expectancy interest can be upheld. The first part of the test analyzes whether the assignment was supported by sufficient or adequate consideration; the second, whether the assignment was fairly obtained or fairly entered into. See In Re: Rosin, 248 B.R. 625, 633 (Bankr.M.D.Fla.1998). The standard the trial court set forth in its order granting Mr. Rood’s motion for summary judgment — “fair and sufficient consideration”— was incorrect as it improperly commingled the two considerations into one.

The first step requires the court to focus solely upon the element of consideration and whether consideration exists. It is clear that “a promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do.” Ashby v. Ashby, 651 So.2d 246, 247 (Fla. 4th DCA 1995) (citing Bayshore Royal Co. v. Doran Jason Co. of Tampa, Inc., 480 So.2d 651 (Fla. 2d DCA 1985)). To conclude that consideration is fair or unfair, rather than merely extant, is not the proper province of the court. The second determination — whether the assignment was fairly entered into — should focus on the facts surrounding the document’s execution. There may be allegations or proof of fraud, duress, or breach of fiduciary relationship and the like for the court to evaluate.

On remand, the court shall separately address the two parts of this inquiry in its redetermination of the parties’ respective motions for summary judgment.

Reversed and remanded for further proceedings.

FULMER and CANADY, JJ„ concur.

      . This document also recited that it was made for "good and valuable considerations,” of which receipt was acknowledged, and was not made as collateral security for any loan but was an outright sale and assignment and was "not subject to redemption or recision.”


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

text:
    Sim Fenton SUTTERBY, II, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3532.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.
    Thomas C. Greene, Sanford, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

SAWAYA, C.J. and PLEUS, J., concur.

SHARP, W., J., dissents with opinion.

SHARP, W., J.,

dissenting.

See Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000).


author: GRIFFIN, J.

text:
    C.B., Mother of S.A.C., a Child, Appellant, v. B.C., Father of S.A.C., a Child, Appellee.
    No. 5D03-76.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.
    Heather Morcroft, Legal Aid Society of the OCBA, Inc., Orlando, for Appellant.
    Kelly A. Swartz and Alicia L. Brooks of Brooks & Swartz, P.A., Orlando, for Ap-pellee.
   GRIFFIN, J.

In this unusual termination of parental rights appeal, C.B., the mother [“the mother”], appeals the 'final judgment terminating the parental rights of the biological father, B.C. Although the mother was the petitioner seeking termination of his parental rights, and the court did order termination of the father’s parental rights, the mother complains of the way in which it was done.

The underlying facts in this case are not in dispute. The child, S.A.C., was born in Longwood, Florida, on February 24, 1997. Her natural father, B.C. [“the father”], was convicted of molesting his stepdaughter, S.C.’s half-sister. The information in the father’s case showed that he was charged with having intercourse with his stepdaughter when she was twelve and thirteen years old on at least two occasions between 1999 and 2000. At the time, he was living in the home and acting as her parent. The father also confessed to molesting S.A.C., who was three or four years old at the time. He pled no contest to the charges regarding his stepdaughter in return for an agreement that the State would not file any further charges relating to either the stepdaughter or S.A.C. The father was sentenced to eleven years in prison, and is expected to be released no sooner than 2010. The father was also designated as a sexual predator.

The mother filed a petition to terminate the father’s parental rights pursuant to section 39.806(l)(d), Florida Statutes (2002), based on the acts detailed above. After the petition was filed, the father executed a voluntary surrender of his parental rights to S.A.C.

At a hearing on the petition, the mother requested that the termination order include language specifying that grounds for termination included the fact that the father was a sexual predator and had committed a sexual battery. The father objected to the inclusion of that language, claiming it was vindictive and unnecessary because there was already an order in the father’s criminal file designating him as a sexual predator. He also urged that the court was only required to find one ground to terminate, which should be the father’s voluntary relinquishment of his parental rights. The trial court ordered the mother’s counsel to submit an order based solely on the father’s voluntary surrender, which the court found was a legally adequate basis for termination of the father’s rights.

Voluntary surrender is one of the statutory grounds that will support the termination of parental rights. § 39.806(l)(a), Fla. Stat. (2002). Section 39.806(l)(a), Florida Statutes (2002), provides:

(1) The department, the guardian ad litem, or any person who has knowledge of the facts alleged or who is informed of those facts and believes that they are true may petition for the termination of parental rights under any of the following circumstances:
(a) When the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child.

Because the statute conditions voluntary surrender on acceptance by the Department of Children and Families [“DCF”], the mother urges that she stands in the shoes of DCF in a case such as this, and in that capacity had the same discretion to determine whether to accept the father’s voluntarily surrender. Because she chooses not to accept the father’s voluntary surrender, she claims that the trial court improperly terminated the father’s parental rights based on this ground. The mother similarly argues that the only proceeding before the court is the involuntary proceeding commenced by her under subsection (d) and that neither the father nor the court can convert it into a subsection (a) voluntary proceeding against her wishes.

Although section 39.806(1) is unhelpful, there are two rules of juvenile procedure that speak to a parent’s voluntary relinquishment of parental rights in the course of a termination proceeding. Florida Rule of Juvenile Procedure 8.500(g) provides:

(1) The parents of the child may consent to the petition for termination of parental rights at any time, in writing or orally, on the record.
* * *
(3) If the parents appear and enter an oral consent on the record to the termination of parental rights, the court shall determine the basis upon which a factual finding may be made and shall incorporate these findings into its order of disposition.

Florida Rule of Juvenile Procedure 8.520(c) says:

If the parent appears and enters a plea of admission or consent to the termination of parental rights, the court shall determine that the admission or consent is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the plea and that the parent has been advised of the right to be represented by counsel. The court shall incorporate these findings into its order of disposition, in addition to findings of fact specifying the act or acts causing the termination of parental rights.

[Emphasis added.] As we read these two rules, the mother appears to be correct that when a parent voluntarily consents to termination in the course of an involuntary proceeding, the court in its order of termination must identify “the act or acts” causing termination. Fla. R. Juv. P. 8.520(c). This rule was amended in 2000 specifically to add the “act or acts” language. Amendments to the Rules of Juvenile Procedure, 783 So.2d 138, 190-91 (Fla.2000). Under the rule, it is not sufficient for the court simply to identify the consent as the “act or acts” supporting termination. The structure of the rule as amended suggests that the court must make findings to establish the validity of the consent and identify the conduct that led to the termination. This appears to be analogous to the requirement that the criminal court, in taking a plea, ascertain its factual basis. Fla. R.Crim. P. 3.170(k).

Accordingly, we vacate the appealed order and we remand this case to the trial court to identify the “act or acts” of the father that support termination.

ORDER VACATED and REMANDED.

MONACO, J., and NICHOLS, III, . A.W., Associate Judge, concur.


author: SALCINES, Judge.

text:
    Manolo PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4131.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
   SALCINES, Judge.

Manolo Perez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Perez alleges two grounds of ineffective assistance of counsel. Because the record does not refute Perez’s claims, we have no choice but to send this matter back to the trial court for further proceedings.

In 1998 a jury convicted Perez of trafficking in methamphetamines, more than 200 grams, and the trial court sentenced him to fifteen years in prison. In his motion, Perez claims that his counsel was ineffective in failing to argue the relevant facts and law at a hearing on the motion to suppress the drugs. Perez claims that the drugs were discovered through an illegal search. The trial court denied this claim on the basis that Perez was not prejudiced by counsel’s performance because he consented to the search.

According to Perez’s motion and the trial court’s order, officers received information from a confidential informant that Perez would be in possession of drugs in the parking lot where the officers found him. Perez states that two officers approached him and said they were investigating stolen vehicles in the area. The officers asked for the keys to his truck. Perez was frisked, placed into the back seat of a patrol car, and transported back to his truck, which was approximately 1000 feet away. While Perez was still in the back seat of the patrol car, the officers asked permission to search the truck for the registration. The officers then asked to search the truck for weapons and drugs. Perez consented and the officers found half a pound of methamphetamines in Perez’s truck. If the facts alleged by Perez in his motion are true, it appears that this detention was a de facto arrest, and therefore, illegal. See Goss v. State, 744 So.2d 1167 (Fla. 2d DCA 1999).

If the State could not prove by clear and convincing evidence that Perez’s consent was not a result of the illegal detention, then the consent was involuntary. See Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992). Counsel was deficient if he or she failed to argue the facts and law at the hearing. Furthermore, Perez was prejudiced by the deficiency because the motion to suppress was denied, and the drugs were introduced at trial. Therefore, this constitutes ineffective assistance of counsel, and Perez is entitled to an evidentiary hearing unless the record can conclusively refute his claim. See Kennedy v. State, 547 So.2d 912 (Fla.1989). The record does not reveal what arguments or evidence were presented at the suppression hearing because the trial court did not attach the transcript of the hearing to its denial. Therefore, the record that we are required to review does not refute Perez’s claim.

We recognize that even if the consent was invalid, the officers may have had probable cause to stop Perez and search the vehicle based on information they received from the confidential informant. See Mitchell v. State, 787 So.2d 224 (Fla. 2d DCA 2001). Therefore, the seizure of the drugs may have been legal on that basis. Id. at 226-28. However, the trial court did not provide any specific facts about the confidential informant in its order nor did it provide any record attachments to support this conclusion. If the trial court determines this is a valid reason to deny the motion, the trial court must support its decision with record attachments.

Perez also claims that he was represented by separate trial counsel who failed to object to the admission of the drugs into evidence, thereby failing to preserve the issue for appellate review. That failure possibly could constitute ineffective assistance of counsel. Jackson v. State, 711 So.2d 1371 (Fla. 4th DCA 1998); Duperier v. State, 568 So.2d 976 (Fla. 4th DCA 1990). It appears that Perez may have been prejudiced by his counsel’s failure to preserve the issue for appellate review because the facts alleged demonstrate that the drugs were discovered pursuant to an illegal search and served as the main evidence against Perez at trial. Also, the record attached by the trial court does not refute his claim that his counsel faded to object.

Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing or attach portions of the record which conclusively refute Perez’s multiple claims.

Reversed and remanded.

NORTHCUTT and CANADY, JJ, Concur.


author: SALCINES, Judge. ALTENBERND, Chief Judge,

text:
    Robert LOVETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4859.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
   SALCINES, Judge.

Robert Lovett appeals the order which dismissed his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court dismissed the motion because an appeal was pending from an earlier order denying a previously filed motion to correct illegal sentence. Because the trial court did have jurisdiction to consider the current motion, we reverse and remand for further proceedings.

On June 13, 1996, Lovett pleaded guilty to one count of sale of cocaine and one count of possession of cocaine. Pursuant to the terms of the plea agreement, he received a fifteen-year habitual offender sentence for the sale of cocaine. Fourteen years of the sentence were suspended, the balance of one year was to be served in county jail, and upon his release from jail, Lovett was to serve five years of probation. Lovett was sentenced to time served for the possession of cocaine conviction. Subsequently, Lovett violated his probation and was sentenced on July 25,1997, to concurrent terms of fourteen years’ and five years’ imprisonment.

After his convictions and sentences were affirmed on appeal, Lovett v. State, 748 So.2d 278 (Fla. 2d DCA 1999), Lovett filed his first motion to correct illegal sentence. The first motion is not contained in the record before this court as it is not the subject of the current appeal. In a detailed order, the trial court denied the motion on April 2, 2001. Lovett did not appeal the denial of this motion.

Lovett filed a second motion to correct illegal sentence on October 11, 2001. The motion raised two claims. Lovett first asserted that his five-year sentence for the possession of cocaine conviction was illegal because originally he had been sentenced to time served. The trial court agreed with Lovett’s argument and vacated the five-year sentence. Lovett’s second argument was that the original sentence for the sale of cocaine was “a hybrid split sentence which is not authorized, because the total sentence for this particular offense exceeds the statutory maximum for the offense makfing] it illegal.” The trial court denied the second argument in this motion on June 13, 2002. A notice of appeal was filed on June 28, 2002. This court issued a per curiam affirmance of the trial court’s decision on September 25, 2002. Lovett v. State, 829 So.2d 216 (Fla. 2d DCA 2002). However, the mandate did not issue in the case until October 23, 2002.

On September 6, 2002, Lovett filed his third motion to correct illegal sentence. In that motion, which is the subject of the current appeal, Lovett claimed that the fourteen-year sentence upon the revocation of his probation violated double jeopardy and was “a reverse split sentence.” Lovett made the argument that upon the revocation of his probation, the sentence imposed by the trial court could not have exceeded the remaining term of his probation. He requested that the trial court correct his sentence to reflect a five-year prison term.

On October 2, 2002, the trial court issued an order dismissing this third motion because there was a pending appeal of Lovett’s second motion to correct illegal sentence. (The mandate issued in the case on October 23, 2002.) The trial court held that it was without jurisdiction to consider the merits of that third motion. In the order, the trial court made the following statement: “Even if this Court had jurisdiction, it would find the instant motion should be barred as successive.” The dismissal did not state that it was with prejudice and, as such, was not a ruling on the merits of the third motion. Cf. Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998) (holding trial court should have dismissed motion for postconviction relief due to lack of jurisdiction rather than deny motion because denial acted as ruling on the merits of motion).

It is true that rule 3.800(a) provides that a party may not file a motion under that subdivision during the pendency of a direct appeal from a judgment or sentence. Additionally, a trial court does not have jurisdiction to consider the merits of a newly filed motion to correct illegal sentence if a motion to correct illegal sentence which is the subject of a pending appeal has raised the same issue or if the two motions are “sufficiently related to divest the trial court of jurisdiction.” Parrish v. State, 816 So.2d 146, 146 (Fla. 1st DCA 2002); see Gaines v. State, 806 So.2d 575, 575 (Fla. 1st DCA 2002).

In the present case, the issues raised in the second motion to correct illegal sentence, which was the subject of a then pending appeal, were not the same and were not sufficiently related to those presented in the third motion to divest the trial court of jurisdiction. The trial court may ultimately deny the motion after it has considered the merits, but erred when it dismissed the motion for lack of jurisdiction. The order dismissing the motion is reversed, and the trial court is directed to consider the merits of the third motion.

Reversed and remanded for further proceedings.

SILBERMAN, J., Concurs.

ALTENBERND, C.J., Dissents with opinion.

ALTENBERND, Chief Judge,

Dissenting.

I agree that the trial court dismissed this motion for an incorrect reason. The motion, however, is facially insufficient. There simply is nothing illegal about the two sentences he is serving. As a habitual offender, the sentence for the second felony could be twice as long. Because the trial court would have been affirmed had it simply denied this motion, I would affirm the order of dismissal as an order that was right for the wrong reasons. I see no reason to cause the trial court to expend further resources on this motion, and I certainly see no reason for this court to entertain another appeal from an order denying this facially insufficient motion.


author: VILLANTI, Judge. CANADY, Judge,

text:
    RAYMOND JAMES FINANCIAL SERVICES, INC., a Florida corporation, and Richard Vandenberg, Appellants, v. Steven W. SALDUKAS and Stesal Investments, LLC, Appellees.
    No. 2D03-554.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.

      Bruce W. Barnes of Bruce W. Barnes, P.A., Clearwater, for Appellants.
    Christopher T. Vernon and Benjamin C. Iseman of Treiser, Collins & Vernon, Naples, for Appellees.
   VILLANTI, Judge.

Raymond James Financial Services, Inc. and Richard VandenBerg (collectively “Raymond James”) challenge the trial court’s ruling denying their motion to compel arbitration. We affirm but write to address the issue of whether a showing of prejudice is required before the right to arbitration may be waived.

Sometime before 1999, Steven Saldukas formed an entity known as Stesal Investments Limited Partnership (Stesal Limited Partnership). On August 6, 1999, Stesal Limited Partnership opened an account with Raymond James, and Saldukas transferred a personal Roth IRA account to Raymond James. Saldukas later opened another IRA account with Raymond James.

On February 21, 2002, Saldukas and a different entity, Stesal Investments, LLC (Stesal LLC), filed an arbitration claim against Raymond James with the New York Stock Exchange (N.Y.SE). The claim arose out of allegedly improper investment transactions in Raymond James accounts owned by Saldukas and Stesal LLC. In the statement of claim, Saldukas asserted that Stesal LLC, which was one of the parties making the claim, was formerly known as Stesal Limited Partnership.

After the statement of claim was filed with the NYSE, Raymond James’ counsel sent a letter to Saldukas’ counsel disputing Saldukas’ and Stesal LLC’s right to arbitration and stating in part that there was no agreement to arbitrate this claim. Subsequently, Raymond James filed a motion to dismiss the NYSE arbitration proceeding, admitting that Stesal Limited Partnership had an account with Raymond James but asserting that Raymond James did not have an arbitration agreement with either Saldukas or Stesal LLC and that therefore neither Saldukas nor Stesal LLC had standing to seek arbitration. In the motion, Raymond James asked the NYSE to dismiss the claim “with prejudice” because “the claim or controversy is not a proper subject matter for arbitration.” In a letter sent to Saldukas’ counsel with a copy of the motion to dismiss the NYSE proceeding, counsel for Raymond James stated:

[Raymond James] feels strongly that it has no obligation to arbitrate this case. If the New York Stock Exchange does not grant the motion to dismiss, [Raymond James] will file a lawsuit to enjoin the arbitration.

After receiving this correspondence, Sal-dukas and Stesal LLC filed suit against Raymond James and VandenBerg in state court on various grounds. In the complaint, Stesal LLC alleged that it was the successor by merger to Stesal Limited Partnership. In response to the complaint, Raymond James filed a motion to dismiss, asserting that Stesal LLC had no standing to bring the action because it was not properly registered to conduct business under the laws of Florida and because it was not a customer of Raymond James. Raymond James attached various documents to its motion to dismiss that purportedly showed that Stesal LLC was not properly registered in Florida. Raymond James agreed in its motion that it had an obligation to arbitrate with Stesal Limited Partnership, but it noted that Stesal Limited Partnership was not a party to the NYSE arbitration proceeding or the suit.

After hearing argument on the motion to dismiss, the trial court denied the motion and ordered Raymond James to file a responsive pleading within ten days. As its responsive pleading, Raymond James filed a motion to stay litigation and compel arbitration. In that motion, Raymond James argued that the parties should be ordered to arbitration even though Raymond James continued to assert that Stesal LLC had no standing to bring an arbitration claim. In addition, Raymond James argued for the first time that the question of whether Stesal LLC was a proper party to the arbitration agreement should be determined by the arbitrators. In opposition to this motion, Saldukas and Stesal LLC argued that Raymond James had waived its right to arbitrate by initially refusing to arbitrate the claim, by repeatedly asserting that Saldukas and Stesal LLC had no right to arbitrate, and by threatening a lawsuit to enjoin arbitration should Saldukas and Stesal LLC persist with the NYSE arbitration proceeding. After hearing these arguments, the trial court denied Raymond James’ motion to compel arbitration. Raymond James now appeals this order, arguing that Saldukas and Stesal LLC should be compelled to arbitrate because Raymond James did not waive its right to arbitrate and because Saldukas and Stesal LLC did not prove that they were prejudiced by any of Raymond James’ actions.

The parties agree that when a court is considering a motion to compel arbitration, the court must consider three issues: (1) whether there is a valid arbitration agreement; (2) whether there are ar-bitrable issues; and (3) whether there has been a waiver of the right to arbitrate. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Pulte Home Corp. v. Smith, 823 So.2d 305, 308-09 (Fla. 2d DCA 2002). The question of whether there has been a waiver of the right to arbitrate is one of fact, and the trial court’s decision will be reversed only if there is no competent, substantial evidence to support its ruling. Merrill Lynch Pierce Fenner & Smith, Inc. v. Adams, 791 So.2d 25, 26 (Fla. 2d DCA 2001). However, any doubts concerning whether a waiver has occurred should be resolved in favor of arbitration. Prudential Sec., Inc. v. Katz, 807 So.2d 173, 174 (Fla. 3d DCA 2002).

In this appeal, Raymond James asserts that the only issue is whether it waived its right to arbitrate. However, when Saldukas and Sestal LLC filed their arbitration claim, Raymond James repeatedly asserted that there was no agreement to arbitrate the claim and actively sought to have the arbitration proceeding dismissed with prejudice. Clearly, the trial court had the authority to agree with Raymond James’ initial argument that there was no valid arbitration agreement between the parties. Moreover, Raymond James’ repeated presuit assertions that Saldukas and Stesal LLC had no right to arbitration and its threat to file a lawsuit to enjoin the NYSE arbitration proceeding were actions inconsistent with any alleged contractual right to arbitrate the claim at issue. The evidence of these actions, standing alone, is sufficient to support a finding that Raymond James waived its right to arbitrate these claims.

In an effort to avoid the consequences of its earlier actions, Raymond James argues that it simply “preserved its right to challenge the standing of Saldukas and Stesal LLC, to even avail themselves of the arbitration process.” This statement is flatly contradicted by Raymond James’ actions in seeking to have the arbitration proceeding dismissed and in threatening to file suit to enjoin the arbitration. If Raymond James was truly trying to simply preserve this right, it could have raised the standing issue in its answer to the arbitration claim and asked the arbitration panel to determine standing before proceeding to the merits of the case. Instead, Raymond James actively sought to avoid having the arbitrators consider either the standing issue or the merits of the case. Having unequivocally refused to arbitrate the claim with Saldukas and Stesal LLC, Raymond James cannot now assert that the court is an improper forum in which to resolve this dispute.

In the alternative, Raymond James argues that even if its conduct constituted a waiver of the right to arbitrate, Saldukas and Sestal LLC should nevertheless be compelled to arbitrate because they failed to prove that they were prejudiced by Raymond James’ actions. We disagree because Saldukas and Stesal LLC are not required to establish prejudice in order for the court to find a waiver.

In Donald & Co. Securities, Inc. v. Mid-Florida Community Services, Inc., 620 So.2d 192, 194 (Fla. 2d DCA 1993), this court held that it is not necessary to show prejudice in order to establish waiver of the right to arbitrate. In so ruling, this court noted:

Florida courts are bound only by the United States Supreme Court in interpreting acts of Congress. International Association of Bridge, Structural & Ornamental Ironworkers, AFL-CIO v. Blount International, Ltd., 519 So.2d 1009, 1012 (Fla. 2d DCA 1987), rev. denied, 531 So.2d 168 (Fla.1988)[,] cert. denied, 488 U.S. 1005, 109 S.Ct. 786, 102 L.Ed.2d 111 (1989). The Supreme Court has not ruled on this issue and at least one Circuit Court of Appeals has held that waiver may be found absent a showing of prejudice. National Foundation for Cancer Research v. A.G. Edwards & Sons, 821 F.2d 772, 777 (D.C.Cir.1987); see also Rosen v. Shearson Lehman Brothers, Inc., 534 So.2d 1185, 1187 (Fla. 3d DCA), rev. denied, 544 So.2d 200 (Fla.1989).
In the absence of a binding federal ruling on this issue, we are free to apply the law of Florida. Rosen, 534 So.2d at 1186.

Donald & Co., 620 So.2d at 193-94. Because the United States Supreme Court had not interpreted the Federal Arbitration Act to require a showing of prejudice before the right to arbitration could be waived, this court applied Florida law and held that no showing of prejudice was required. Id. at 194. The Fourth and Fifth Districts have agreed with this court that no showing of prejudice is necessary in order to establish a waiver of the right to arbitrate. See, e.g., Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 397 (Fla. 5th DCA 2003); Owens & Minor Med., Inc. v. Innovative Mktg. & Distrib. Servs., Inc., 711 So.2d 176, 177 (Fla. 4th DCA 1998).

Subsequently, the Third District in Lane v. Sarfati 691 So.2d 5 (Fla. 3d DCA 1997), disagreed with this court’s reasoning on the issue of prejudice. In Lane, the Third District certified conflict with Donald & Co., receded from its own prior precedent in Rosen v. Shearson Lehman Brothers, Inc., 534 So.2d 1185 (Fla. 3d DCA 1988), and held that “a showing of prejudice is indispensable to a conclusion that the maintenance of a position inconsistent with arbitration waives that remedy.” Lane, 691 So.2d at 5. In a footnote, the court stated that the Eleventh Circuit’s decision in S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507 (11th Cir.1990), dispelled a prior uncertainty in federal law on this issue and required a showing of prejudice in order to support a finding of waiver. Lane, 691 So.2d at 5 n. 1. The First District has since agreed with the Third District on this issue. See Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238, 28 Fla. L. Weekly D1359 (Fla. 1st DCA June 9, 2003); Eden Owners Ass’n v. Eden III, Inc., 840 So.2d 419, 420 (Fla. 1st DCA 2003).

We see three problems with the Third District’s decision in Lane. First, this court is not bound by decisions of the Eleventh Circuit on issues of federal law. Rather, this court is bound only by the United States Supreme Court on issues of the interpretation of a federal statute. See Donald & Co., 620 So.2d at 193-94. Thus, the Eleventh Circuit’s decisions do not constitute binding precedent on the issue of whether a showing of prejudice is required.

Second, contrary to the Third District’s statement in Lane, the Eleventh Circuit’s decision in S & H Contractors did not “dispel prior uncertainty” on this issue within the federal courts. Rather, like the Florida courts of appeal, the federal courts of appeal are split on this issue. Compare S & H Contractors, 906 F.2d at 1514 (holding that a defaulting party’s actions cannot amount to waiver absent prejudice); Fraser v. Merrill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250, 251-52 (4th Cir.1987) (same); Fisher v. A. G. Becker Paribas, Inc., 791 F.2d 691, 693 (9th Cir. 1986) (same); and Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985) (same); with St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir.1992) (holding that when it is clear that a party has foregone its contractual right to arbitrate, a court may find waiver without a showing of prejudice); Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C.Cir.1987) (same). Until this split among the federal circuit courts is settled by the United States Supreme Court, there is no binding federal precedent on the issue of whether a showing of prejudice is required before waiver may be found.

Third, we find the reasoning of those cases holding that prejudice is not a required element of waiver to be more persuasive. The goal of Congress in enacting the Federal Arbitration Act was to place arbitration agreements “ ‘upon the same footing as other contracts, where [they] belong! ].’ ” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (quoting H.R.Rep. No. 68-96, at 1 (1924)). Thus, the policy embodied in the Federal Arbitration Act is one favoring enforcement of contracts, not one favoring arbitration over litigation. Id. at 221, 105 S.Ct. 1238. However, the cases holding that prejudice is indispensable to a finding of waiver are premised on

an alleged “strong federal policy favoring enforcement of arbitration agreements.” See, e.g., Fisher, 791 F.2d at 694. Because the actual intended federal policy, as expressed by Congress, is enforcement of contracts, not enforcement of arbitration agreements, the cases requiring a finding of prejudice are focused on the wrong goal. When considered in light of the intended goal of enforcing contracts, it is clear that because a party may waive its contractual rights by simply taking actions inconsistent with those rights, a waiver of the contractual right to arbitrate may arise through a party’s inconsistent conduct even in the absence of prejudice. Cf. Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 681 (Fla.1973) (holding that a party may waive its contractual rights by taking action inconsistent with those rights); Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 2 (Fla. 2d DCA 1992) (holding that a showing of prejudice is not required when the waiver is based on a party’s acts that are inconsistent with its contractual rights). Thus, a finding of prejudice is not required in order to establish a waiver of a contractual right to arbitrate. At most, prejudice is just one potential consideration in the waiver analysis, not the sine qua non.

For these reasons, we follow our own precedent in Bared and Donald & Co. and hold that no showing of prejudice was required in order to find that Raymond James waived its right to arbitration in this case. Therefore, we affirm the trial court’s order denying Raymond James’ motion to stay litigation and compel arbitration. We also certify conflict with Lane v. Sarfati, 691 So.2d 5 (Fla. 3d DCA 1997), and Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238, 28 Fla. L. Weekly D1359 (Fla. 1st DCA June 9, 2003), on the issue of whether a party seeking to establish a waiver of the right to arbitration must prove prejudice.

Finally, Raymond James contends that even if it is subject to litigation, Vanden-Berg should not be because he was not a party to the NYSE arbitration proceeding and therefore could not have waived his right to arbitrate. This issue was never raised in the trial court, and this court will not review issues raised for the first time on appeal. Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981); Mendelson v. Great Western Bank, 712 So.2d 1194, 1197 (Fla. 2d DCA 1998). Therefore, we decline to address this issue.

Affirmed and conflict certified.

COVINGTON, J., Concurs.

CANADY, J., Concurs specially.

CANADY, Judge,

Specially concurring.

I fully concur with the conclusion expressed in the majority opinion that the disposition of this case is governed by the precedent established by this court in Donald & Co. I am not convinced, however, that the rule established in that case that waiver of a right to arbitrate may take place without a showing of some prejudice to the adverse party is the rule that we should adopt if the issue were a matter of first impression in this district. Although there is a division among the federal circuits on this issue, the weight of authority — as shown by the cases the majority opinion cites — supports the view that some showing of prejudice is necessary to establish that a right to arbitrate has been waived. See also Carroll E. Neesemann & Maren E. Nelson, The Law of Securities Arbitration, in 1196 Practis-ing L. Inst./Corp. L. & Prac. Course Handbook Series 829, 879 (2000) (stating that in securities litigation “[cjourts generally apply a strict test to claims of waiver” of a right to arbitration and “generally require a showing of prejudice to the opposing party”). I am concerned that allowing a party to an arbitration agreement to avoid arbitration due to the adverse party’s nonprejudicial conduct may unnecessarily undermine the arbitration process.


author: KELLY, Judge.

text:
    Manuel GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1496.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
   KELLY, Judge.

Manuel Gonzalez challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the attachments to the trial court’s order do not refute Gonzalez’s claim that his counsel was ineffective for failing to object to comments made by the prosecutor during closing arguments, we reverse.

Gonzalez was convicted of four counts of sexual battery on a victim less than twelve and two counts of lewd/lascivious act on a child. He received concurrent life terms on the sexual battery counts and seventy-three months’ incarceration on the lewd/lascivious counts, concurrent with each other and consecutive to the sexual battery sentences. On July 23, 2001, Gonzalez filed a rule 3.850 motion alleging several grounds of ineffective assistance of counsel. The trial court summarily denied his motion on June 21, 2002. This court affirmed the order without comment, but reversed and remanded for the trial court to address an allegation made by Gonzalez that was not addressed in the order. See Gonzalez v. State, 829 So.2d 323 (Fla. 2d DCA 2002).

On remand, the trial court was to address the following issue:

Whether counsel was ineffective for failing to object to the prosecutor’s improper and prejudicial statements in closing argument.

A claim that counsel was ineffective for failing to object to remarks in a prosecutor’s closing argument is cognizable in a motion for postconvietion relief. See Eure v. State, 764 So.2d 798, 801 (Fla. 2d DCA 2000); Ross v. State, 726 So.2d 317, 318 (Fla. 2d DCA 1998).

Before trial, the State obtained an order in limine directing the defense and all of its witnesses to refrain from mentioning that the victims had allegedly been sexually molested by another man prior to the charged offenses. Then, during closing arguments, the prosecutor made numerous and very specific comments that implied that the victims would not have had any knowledge regarding sexual acts but for the acts perpetrated against them by Gonzalez. Gonzalez claimed that his counsel was ineffective for not objecting to these comments by the prosecutor. In Gonzalez, this court stated that, from the record on appeal, the arguments made by the prosecutor appeared improper. Id. at 324. The case was remanded for the trial court to determine if the failure to object was prejudicial to Gonzalez.

In its order, the trial court attached a portion of defense counsel’s closing argument. Counsel stated that the victims may have learned about sex from a magazine or a movie or someone may have taught them about “the birds and the bees.” The trial court stated in its order that, since defense counsel argued in her closing argument that the victims’ knowledge may have come irom another source, Gonzalez failed to show how he was prejudiced by counsel’s failure to object to the prosecutor’s statements. This is not enough to refute Gonzalez’s claim. In his closing argument, the prosecutor mentioned that one of the victims “described ejaculate; she was able to describe how it tasted; she was able to describe how it looked” and that she could not have known that if she were not telling the truth about being molested by Gonzalez. Defense counsel’s statements that the victims could have learned about sex from a magazine or movie would not have been enough to counteract these graphic statements by the prosecutor.

In its order, the trial court also made a blanket statement that, after reviewing the entire transcript, it did not find that but for counsel’s failure to object, the outcome of the trial would have been different. The trial court did not include any attachments to back up this statement, nor did it refer to any specific parts of the transcript. See Fla. R.Crim. P. 3.850(d).

Because the attachments to the trial court’s order fail to refute Gonzalez’s claims regarding trial counsel’s failure to object to the improper closing argument, we reverse for an evidentiary hearing. See Perry v. State, 787 So.2d 67 (Fla. 2d DCA 2001).

Reversed and remanded.

NORTHCUTT and CANADY, JJ„ Concur.


author: PLEUS, J.

text:
    Gary Dale BURTON, Appellant, v. Michelle R. BURTON, Appellee.
    No. 5D02-3014.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.
    Stephen M. Brewer, Titusville, for Appellant.
    James R. Dressier, Cocoa Beach, for Appellee.
   PLEUS, J.

The former husband appeals from an order enforcing final judgment/judgment for the former wife, raising two issues. We find merit only as to the second issue.

The trial court correctly ordered the former husband to pay $22,945.58 occasioned by his failure to timely pay the $64,950.00 equitable distribution award from his IRA account. The former husband’s argument that the former wife became owner of the IRA upon recording of the final judgment of dissolution and must suffer any losses sustained by the account occurring after that date is entirely without merit.

The final judgment of dissolution did not award the IRA to the former wife, but rather awarded the former wife the sum of $64,950.00 which was payable from said account. Whether the account value increased or decreased prior to payment of said sum, the former wife was entitled to $64,950.00. The final judgment of dissolution did not vest legal title in the IRA to the former wife because the court did not award the account to her. Under the terms of the dissolution decree, legal title to the IRA remained at all times in the former husband.

At the hearing where the court orally-announced the terms of the dissolution decree, counsel recognized that insofar as the IRA is concerned, the account holder would require both parties to execute a document instructing transfer of the $64,950. The former husband asserts that the dissolution decree did not order him to take any action to direct a transfer of the funds to the former wife. While this is true, the decree clearly awards the sum to the former wife as part of the equitable distribution of the marital assets and the court expressly reserved “jurisdiction to enter such orders which may be necessary to implement.” The former husband had legal title to the account and as such should have directed transmittal of the $64,950.00 to the former wife in accordance with the dissolution decree. Having failed to voluntarily transfer the fixed sum to the former wife in a timely manner, the former husband was taking the risk that if his IRA investment plummeted in value below $64,950.00 (as it did following the events of September 11, 2001), he would have to make up the resulting deficiency. The former husband cannot complain that the trial court did what it had indicated it would do, enter an order implementing the terms of dissolution decree. The former husband is seeking to be rescued from what turned out to be a poor decision on his part.

As to the second point, the former husband claims the final judgment/judgment for petitioner improperly assessed interest and the former wife concedes that it was error for the court to award interest of $537.49. The final judgment -should be corrected to find that the principal balance remaining due the former wife is $22,945.58 with interest at nine percent per annum from May 13, 2002, the date the former husband transferred the $49,725.28 in the IRA account to the former wife.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR ENTRY OF CORRECTED FINAL ORDER.

SAWAYA, C.J., and SHARP, W., J., concur.

      . The trial court awarded interest at ten percent per annum on the $64,950.00 from March 6, 2001, the date of the dissolution decree, until the date of the transfer which occurred on May 13, 2002. Interest for this period totaled $7,720.86. The wife received the partial payment of $49,725.28 and applied $7,720.86 of this to interest and the balance of $42,004.42 to principal, leaving the unpaid principal balance due of $22,945.58.


author: VILLANTI, Judge.

text:
    Sandy Yvette NORTON, a/k/a Tequila Smith, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1727.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
   VILLANTI, Judge.

Sandy Yvette Norton, a/k/a Tequila Smith, challenges the summary denial of her postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Norton alleges four grounds for relief, three of which we affirm without comment. Because the trial court did not refute ground one of her motion, we reverse.

Norton waived her right to a jury trial and was convicted by the court of robbery. In ground one of her motion, Norton alleged that her counsel advised her to “let the judge sentence you, because if you go with a jury, the jury will hang you.” Norton further alleged that she would not have waived her right to a jury trial had counsel not given her that advice. This is a facially sufficient claim for postconviction relief. See Chacon v. State, 735 So.2d 569 (Fla. 2d DCA 1999).

In its order, the trial court failed to refute Norton’s claim. The trial court stated that “the Court, not the jury, was going to sentence the Defendant whether she decided to be tried by the jury or by the Court. When a postconviction motion is filed by a pro se prisoner, the trial court should not scrutinize it for technical niceties. See Andrews v. State, 160 So.2d 726 (Fla. 3d DCA 1964). Here, the trial court took Norton too literally and failed to address the actual claim she made. By focusing on her use of the word “sentence” instead of the underlying claim, the trial court failed to address Norton’s claim that she would not have waived her right to a jury trial had counsel not told her that the jury would “hang” her.

Because the trial court failed to refute Norton’s claims in ground one of her motion, we reverse and remand for the trial court to attach portions of the record that refute her claim or to hold an evidentiary hearing.

Reversed and remanded.

NORTHCUTT and CANADY, JJ., concur.


author: TORPY, J.

text:
    Donald WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3813.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

The sole issue in this appeal is whether Appellant was properly designated as a sexual predator, after he pled guilty to one count of lewd or lascivious molestation and one count of lewd or lascivious exhibition, wherein the victim was Appellant’s minor child. We affirm.

Appellant contends that the sexual predator designation does not apply to him because of an ambiguity in the statute. The Florida Sexual Predators Act provides that an offender shall be designated a sexual predator, upon conviction, if:

1. The felony is:
a. A capital, life, or first-degree felony violation, or any attempt thereof, of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim’s parent, or of chapter 794, s. 800.04, or s. 847.0145, or a violation of similar law of another jurisdiction; or
b. Any felony violation, or any attempt thereof, of s. 787.01, s. 787.02, or s. 787.025, where the victim is a minor and the defendant is not the victim’s parent; chapter 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s. 800.04; s. 825.1025(2)(b); s. 827.071; or s. 847.0145; or a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 787.01, s. 787.02, or s. 787.025, where the victim is a minor and the defendant is not the victim’s parent; s. 794.011(2), (3), (4), (5), or (8); s. 794.05; s. 796.03; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; or s. 847.0145, or a violation of a similar law of another jurisdiction.

§ 775.21(4)(a)(l), Fla. Stat. (2002). (emphasis supplied).

Appellant contends that the statute does not apply to him because he is the parent of the victim. Appellant cites the emphasized language and argues that the statute is, at a minimum, ambiguous. We disagree. Appellant was convicted of violating section 800.04(5)(a)(b), Florida Statutes, and section 800.04(7)(a)(b), Florida Statutes. The limitation to which Appellant refers does not apply to these offenses. Rather, it only applies when the defendant is convicted of violating sections 787.01, 787.02 or 787.025 of the Florida Statutes, which relate to kidnaping, false imprisonment and luring of a child, respectively.

AFFIRMED.

SAWAYA, C.J., and PALMER, J., concur.


author: WALLACE, Judge.

text:
    Jose ESCOBEDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1121.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2003.
   WALLACE, Judge.

Jose Escobedo challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the fifteen-year mandatory minimum term included in his thirty-year prison sentence and remand for the trial court to strike the mandatory minimum term.

Escobedo was charged by information for drug trafficking offenses committed in November 1998. Count one alleged trafficking in more than 400 grams of cocaine. Count two alleged conspiracy to traffic in cocaine by selling or delivering “more than 28 grams of cocaine or any mixture containing cocaine.” On May 27, 1999, a jury found Escobedo not guilty of count one and guilty of count two. He was sentenced to thirty years in prison under the Criminal Punishment Code, including a fifteen-year mandatory minimum term under the drug trafficking statute. In his rule 3.800(a) motion, Escobedo claimed that his sentence was illegal because the jury never found him guilty of conspiracy to traffic in a specific quantity of cocaine. After reviewing the record, we agree.

The jury found Escobedo guilty of violating section 893.135(5), Florida Statutes (1997). This section provides in part that “[a]ny person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by subsection (1) commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act.” When the jury found Escobedo guilty of conspiracy to traffic in cocaine, he was then punishable as if he had actually committed the offense of trafficking in cocaine. At sentencing, the trial court sentenced Escobedo as if he had actually committed the offense of trafficking in cocaine of 400 grams or more, which is punishable by a mandatory minimum of fifteen years in prison. § 893.135(l)(b)(l)(c). However, the jury found Escobedo guilty of count two “as charged.” Count two charged Es-cobedo with conspiracy to traffic in cocaine by selling or delivering “more than 28 grams.” This offense is a first-degree felony punishable according to the Criminal Punishment Code. § 893.135(l)(b)(l)(a), Fla. Stat. (1997) (as amended by chapter 97-194, section 23, at 3709-10, Laws of Florida). Escobedo cannot be punished as if he had trafficked in more than 400 grams of cocaine when the jury did not find him guilty of conspiring to traffic in that amount. “Imposition of a mandatory minimum sentence under section 893.135 is improper when a jury does not determine the specific quantity of cocaine involved.” State v. Estevez, 753 So.2d 1, 4 (Fla.1999).

Because the jury did not find Escobedo guilty of conspiracy to traffic in a specific quantity of cocaine, the mandatory minimum term he received was improper. However, this impropriety does not disturb the remainder of his sentence. We therefore affirm the trial court’s denial of Escobedo’s rule 3.800(a) motion to the extent he challenged his thirty-year sentence under the Criminal Punishment Code for conspiracy to traffic in cocaine. We reverse in part and remand to the trial court only to strike the mandatory minimum term. Escobedo need not be present for this correction of sentence. See Trumbower v. State, 849 So.2d 1183, 2003 WL 21697326 (Fla. 2d DCA July 23, 2003) (directing that the defendant did not need to be present for resentencing when the only change required on remand was to remove a three-year mandatory minimum term that had been included in a ten-year sentence).

Affirmed in part; reversed in part; and remanded.

NORTHCUTT and CANADY, JJ., concur.


author: BROWNING, J.

text:
    REPUBLIC SERVICES OF FLORIDA, L.P., f/k/a Southland Waste Systems of Jax., Inc., Appellant, v. Judith POUCHER, Appellee.
    No. 1D02-2657.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.

      Richard A. Sherman, of Richard A. Sherman, P.A., Ft. Lauderdale; and Dale Hightower, of Hightower & Weiser, P.A., Miami, for Appellant.
    Hugh Cotney, of Hugh Cotney, P.A.; and C. Holt Sihith, Jacksonville, for Appel-lee.
   BROWNING, J.

Republic Services of South Florida, L.P. (Republic Services), the defendant in the lower tribunal, appeals an order granting in part a motion for additur filed by the appellee/plaintiff, Judith Poucher. Republic Services contends that the trial court erred as a matter of law in finding the jury’s verdict inconsistent; and in granting the motion for additur in the amount of $20,000.00 for future medical expenses and in the amount of $963.97 for past medical expenses. Concluding that the granting of the motion for additur constitutes a clear abuse of discretion, we reverse the order and remand with instructions to the trial court to reinstate the jury’s verdict.

Poucher filed a negligence action against Republic Services alleging that she had suffered serious, permanent personal injuries on August 3, 1999, when an employee of Republic Services (then known as Southland Waste Systems of Jax., Inc.), without a warning, tossed aside (at shoulder height) an empty recycling bin, which struck Poucher on the right chin and jaw as she proceeded around the driver’s side of the stationary recycling truck during a neighborhood walk. Poucher claimed that the blow had stunned her and caused tremendous pain on the right side of her face and a buzzing sound in her left ear. It is undisputed that Republic Services had a safety rule prohibiting throwing or tossing recycling bins into yards, and the defense conceded some degree of negligence. However, Republic Services denied that the recycling bin incident caused Poucher’s injuries. The driver of the recycling truck, Robert Hutchinson, testified that after Poucher was struck by the bin, he inquired about her condition, and Poucher said she was fine and indicated the driver did not need to call his supervisor.

Years before the recycling bin incident, Poucher was diagnosed as having an injury to her temporomandibular joint (TMJ). At the trial, Poucher’s attorney argued that the recycling bin incident had caused a permanent injury that aggravated Poucher’s TMJ condition, narrowed her mouth opening, required her to use a Therabite device (to stretch the mouth), and resulted in constant pain comparable to a toothache. On May 30, 2001, i.e., after the recycling bin incident but before the trial, Poucher felt sick, fainted in the bathroom, and landed on her face while not wearing her bite guard, bruising her jaw and sustaining bite marks on her lips and inside her mouth. The defense contended that any worsening of Poucher’s condition after the recycling bin incident is entirely or primarily the result of her progressively worsening, pre-existing TMJ condition or her fall.

Poucher was in her early 50s at the time of the trial. She has a Ph.D. and taught freshman English at the community college. She claimed $1,927.97 in past medical expenses. Given the mortality tables suggesting her life expectancy was 27 more years, she sought an award of $15,-000.00-$40,000.00 for future medical expenses. Her counsel asserted Poucher’s claim of $10,000.00-$20,000.00 for past pain and suffering and at least $100,000.00 for future pain and suffering.

The jury returned a verdict finding that Republic Services’ negligence was the legal cause of Poucher’s damages and that Poucher was not comparatively negligent. For past medical expenses, the jury awarded $964.00, or one-half the amount claimed. The jury awarded zero for future medical expenses. The jury awarded $1,000.00 and $3,000.00, respectively, for past and future pain and suffering, which could include disability, physical impairment, disfigurement, mental anguish, inconvenience, or loss of capacity for enjoyment of life. The trial court entered a final judgment in accordance with the verdict.

Poucher filed a motion for additur and a motion for new trial as to damages only. She alleged that the award for past medical expenses and the zero award for future medical expenses are contrary to the evidence. She argued that the awards for past and future pain and suffering and other non-economic damages are grossly inadequate and are totally inconsistent with the jury’s finding Republic Services hable. While acknowledging her pre-exist-ing TMJ condition, Poucher asserted that her pain increased and became constant and permanent, that her impairment rating was 10% of the body as a whole, and that her mouth opening was permanently limited to no more than 33 mm. (compared to a normal mouth opening of 40-50 mm. for someone Poucher’s age) after the recycling bin incident.

Republic Services filed a response contending that as Poucher’s TMJ had progressively worsened and had not been aggravated by the recycling bin incident, the verdict is reasonable because the jury attributed most of Poucher’s problems and her need for treatment and medication to causes other than being struck by the recycling bin; and because the jury considered the problems resulting from the recycling bin incident to be only temporary. Republic Services opposed Poucher’s motions to tax costs and for a new trial on damages. No objection to the verdict as being inconsistent was made before the jury was discharged. After a motion hearing, the trial court granted an additur of $20,000.00 for future medical damages and an additional $963.97 for past medical damages (which, with the jury’s award, totaled the $1,927.97 claimed for past medical expenses). An additur was denied as to past and future non-economic damages such as pain and suffering. The court found an inconsistency in the jury’s verdict allowing an award for future pain and suffering but awarding zero for future medical expenses. The motion to tax costs was granted.

Issue of Inconsistent Verdict

“A verdict is clothed with a presumption of regularity and is not to be disturbed if supported by the evidence.” Sweet Paper Sales Corp. v. Feldman, 603 So.2d 109, 110 (Fla. 3d DCA 1992) (on motion for clarification). The Fourth District Court has characterized an inconsistent verdict as follows:

Where the findings of a jury’s verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court’s judgment based thereupon is erroneous.

Crawford v. Dimicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968). As the alleged error is one of law, it is subject to a de novo standard of review. Republic Services argues, first, that there is no inconsistency in the verdict, for the evidence supports a reasonable conclusion that although Pouch-er might experience some future pain and suffering, etc., resulting from the recycling bin incident, her future need for medical treatment or medical expenses, if any, will arise solely from other causes. Cf. Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998) (finding no inconsistency in jury’s verdict, where insured plaintiffs permanent injury and award of future medical expenses did not entitle her to future non-economic damages from uninsured motorist carrier; jury reasonably could have concluded such palliative care was reasonable but that future pain and suffering either was not proven by greater weight of evidence or was not compensable because continuing complaints of pain arose from reasons unrelated to accident). Second, Republic Services asserts that any such claim was waived because it was not raised before the jury was discharged and it is not “of a fundamental nature.” N. Am. Catamaran Racing Ass’n, Inc. v. McCollister, 480 So.2d 669, 671 (Fla. 5th DCA 1985). Cf. Sweet Paper Sales, 603 So.2d at 110 (finding that plaintiffs failure to object before jury’s discharge to verdict on ground of inconsistency, ie., an issue not of constitutional or fundamental character, constituted waiver of issue for appellate review); and Moorman v. Am. Safety Equip., 594 So.2d 795 (Fla. 4th DCA) (finding, despite claim that error was fundamental, that issue of alleged inconsistent jury verdict was waived by seat belt manufacturer in products liability action, where no objection was made before jury was discharged), rev. den., 606 So.2d 1164 (Fla.1992). Republic Services is correct in both respects.

Granting an Additur

The parties agree that the standard of review of an order granting additur is “clear abuse of discretion.” Basel v. McFarland & Sons, Inc., 815 So.2d 687, 696 (Fla. 5th DCA 2002); Aurbach v. Gallina, 721 So.2d 756 (Fla. 4th DCA 1998). Section 768.74(1), Florida Statutes (1999), states:

(1) In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.

Subsection (2) of the same statute provides that “[i]f the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.” Subsection (5) provides that in determining whether an award is inadequate given the facts and circumstances presented to the jury, and in determining the amount of the award’s inadequacy, the trial court is to consider the following criteria, inter alia:

(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

“Section 768.74 did not alter the ‘longstanding principles’ governing a trial court’s deference to a jury’s assessment of damages.” Aurbach, 721 So.2d at 758, quoting Poole v. Veterans Auto Sales & Leasing Co., Inc., 668 So.2d 189, 191 (Fla.1996). In determining whether addi-tur is an appropriate remedy, the trial court cannot “sit as a seventh juror with veto power.” Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970); Aurbach, 721 So.2d at 758.

The trial court’s written order did not set forth the basis for granting an additur. At the post-trial hearing on the motion, however, the judge announced that he had read Easkold v. Rhodes, 614 So.2d 495 (Fla.1993), which he interpreted as holding that a doctor’s testimony is binding on the jury in the absence of impeachment or conflicting testimony or an incomplete history given to the examining doctor. The judge then stated his intent to grant the additur. Having reviewed the language in Easkold and its progeny, we believe the trial court construed the rule of Easkold too narrowly and contrary to Florida law. A jury is free to reject even uncontradicted expert witness testimony. Id. at 497; Shaw v. Puleo, 159 So.2d 641 (Fla.1964); United States Fidelity & Guar. Co. v. Perez, 622 So.2d 486 (Fla. 3d DCA 1993); State Farm Mut. Auto. Ins. Co. v. Garcia, 621 So.2d 475 (Fla. 4th DCA 1993); Wynn v. Muffs, 617 So.2d 794 (Fla. 1st DCA 1993). Likewise, a jury is entitled to weigh the credibility of a medical expert and a lay witness, to reject the expert testimony and base its verdict solely on conflicting lay testimony, or to reject the plaintiffs claim entirely. Weygant v. Fort Myers Lincoln Mercury, Inc., 640 So.2d 1092 (Fla.1994); McCown v. Estate of Seidell, 831 So.2d 218 (Fla. 5th DCA 2002); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998); Evans v. State, 603 So.2d 15 (Fla. 5th DCA 1992); Laberge v. Vancleave, 534 So.2d 1176 (Fla. 5th DCA 1988). After carefully reviewing the record, we conclude that the jury could have reached its verdict in a manner consistent with the evidence adduced. Under these circumstances, we are compelled to reverse. See Airstar, Inc. v. Gubbins, 668 So.2d 311 (Fla. 4th DCA 1996) (reversing additur where competent substantial evidence supported jury’s verdict finding motorist did not sustain permanent injury in auto accident).

The recycling bin incident occurred in August 1999. Dr. Gaskins, who practiced general dentistry, testified that he had been Poucher’s dentist since 1991 and had treated her ongoing TMJ condition since 1995. He opined that most of Poucher’s TMJ damage appeared to be muscular, not joint-related, and that she experienced both good and bad days. Evidence was adduced that stress could cause Poucher’s TMJ symptoms to flare up, and that her teaching activities (e.g., grading students’ papers) and a hysterectomy (shortly before the recycling bin incident) were among the sources of stress in her life. Poucher has a longstanding history of nocturnal bruxing (teeth grinding) and clinching, which can cause TMJ problems and spasms. She had similar complaints of muscle spasms before and after the recycling bin incident. Although Poucher had reported only periodic pain during flareups before the recycling bin incident, the reports of constant pain afterwards were based solely on her subjective complaints, and stress tended to increase her pain. On the date of the recycling bin incident, her mouth opening (maximum) was limited to 26 mm., and she had a swollen face. Nine weeks later, her maximum mouth opening was 31-32 mm., but in late June 2000, it was only 25 mm. Dr. Gaskins and Dr. Hartley (an oral and maxillofacial surgeon who treated Poucher) testified that when dental texts state that 53-58 mm. is the average mouth opening range for a woman of Poucher’s age, the average would not include someone with a TMJ condition. These two witnesses agreed it is possible that someone with TMJ could have a limited mouth opening of 30-mm. Indeed, it is possible that Poucher had a 30 mm. mouth opening before the recycling bin incident. If that is so, then, according to Dr. Gaskins, her current mouth opening of 30 mm. is normal for her and would not indicate a permanent injury from the recycling bin incident. Significantly, Poucher’s mouth opening was never measured prior to the recycling bin incident.

Dr. Hartley testified that the TMJ is responsible for moving the jaw forward and acts as a hinge. A TMJ injury can be either to the joint or to the muscle. He opined that it is not unusual for a patient who has a soft bite guard and hard bite guard to have a limited mouth opening. In August 2000, Poucher’s mouth opening was 30 mm., which is wider than the measurement in the original examination. She complained of left angle pain and muscle tightness, especially when under stress. Dr. Hartley testified that many patients release stress through the facial muscles; clinching or grinding the teeth causes already sore muscles to tighten. Dr. Hart-ley opined that Poucher’s injury is more muscle-related. He noted having received a report that in May 2001, Poucher passed out and fell on her face, striking her jaw on the floor while not wearing a mouth guard and causing bite marks and bruising. Dr. Hartley and Dr. Gaskins both testified that the fall could have jammed Poucher’s jaw and, thus, aggravated or contributed to her TMJ condition. Pouch-er suffered from pain and soreness on the left side of her jaw before and after the recycling bin incident. Poucher testified that she was able to work full-time, to drive a ear, and to go out to dinner and to movies, but she had to do certain things (like chewing) differently after the recycling bin incident.

In 1995, Dr. Gaskins prescribed a soft bite guard (similar to a football player’s mouthpiece) to treat Poucher’s left-sided muscle soreness (from clinching and grinding of the teeth at night) and to treat her flare-ups and left-sided TMJ. The witness thought the grinding of teeth was related to work stress. He agreed there is nothing in his medical records indicating that Poucher’s muscle spasms worsened after the recycling bin incident. Because the soft bite guard was not accurately treating Poucher’s left-sided mouth muscle spasms or the tightening in her neck and shoulders, it became necessary in 1996 for her to wear a harder acrylic bite guard with a “ramp.” That switch from a soft appliance to a hard one is evidence that Poucher’s TMJ condition was progressive and worsening. Since 2000, Poucher’s bite guards have been adjusted periodically, sometimes monthly or seasonally.

Many of the same treatments were prescribed to Poucher before and after the recycling bin incident. Her doctors recommended a soft diet, small portions of food, anti-inflammatory medications, and a bite guard. They discouraged singing and excessive talking. After the recycling bin incident, Poucher needed more frequent adjustments to her bite guard, her dentist had to use smaller instruments (typically used with children) to perform the procedures, and her dental appointments lasted longer. The 10% permanent impairment rating given to Poucher by Dr. Hartley is based on her limited mouth opening. Her mouth opening was never measured before the recycling bin incident. If Poucher’s limited mouth opening pre-existed the recycling bin incident, then the 10% impairment rating could have been based on Poucher’s total condition and could have included any combination of her progressive TMJ condition, the injury from the recycling bin incident, and the injury from her fall. Poucher and both of her medical providers testified that she did not intend to undergo certain available non-surgical stretching procedures or surgery to treat her TMJ condition.

In summary, the jury’s zero award for future medical expenses is legally consistent with the evidence indicating that Poucher had been treated for a TMJ condition for 10 years; that her TMJ condition was progressively worsening; that the condition had required extensive medical treatment and would continue to necessitate treatment in the future; and that any future costs of medical treatment would be the result of either her TMJ condition or her fall, and not the result of the recycling bin incident. See Barberena v. Gonzalez, 706 So.2d 60 (Fla. 3d DCA 1998) (finding that personal-injury plaintiffs were not entitled to additur and/or new trial on ground that jury found permanent injury but refused to award future medical expenses or future pain and suffering, where need for award of future medical expenses and pain and suffering was disputed by parties’ experts). In other words, the jury could have concluded that Poucher either was never seriously injured during the recycling bin incident or had completely recovered from any injuries sustained then. Additionally, the jury’s award of one-half of Poucher’s claim for past medical damages is legally consistent with the evidence supporting a reasonable conclusion that only one-half of her past medical expenses arose from her recycling bin incident injuries. For purposes of our review of the order granting an additur, it is legally irrelevant that other expert and lay evidence, if believed by the jury, could support a different award.

Given the evidence supporting the jury’s verdict, we find it was error to set aside the verdict in part and enter an additur. We REVERSE the order granting additur and REMAND with instructions to reinstate the jury’s verdict.

KAHN and VAN NORTWICK, JJ„ concur.

      . The notice of appeal styled the appellant Republic Services of Florida, L.P., whereas the initial and reply briefs state the name as Republic Services of South Florida, L.P.


author: PER CURIAM.

text:
    Kevin D. DIGGINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1292.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Richard Keith Alan, II, West Palm Beach, for petitioner.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. Shelnutt v. Citrus County, 660 So.2d 393 (Fla. 5th DCA 1995).

BENTON, PADOVANO and BROWNING, JJ., concur.


text:
    Alexander BROOKS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D01-4782, 1D01-4873.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.

      Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In these consolidated appeals, appellant, Alexander Brooks, challenges the revocation of his probation and the trial court’s order denying his motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). On appeal, appellant contends that the trial court abused its discretion in revoking his probation. Appellant also contends that the trial court improperly sentenced him pursuant to the 1995 sentencing guidelines for his five underlying offenses. Because the trial court did not abuse its discretion in revoking appellant’s probation, we affirm the trial court’s revocation order without further discussion. As to the trial court’s denial of appellant’s rule 3.800(b)(2) motion, we reverse the sentences in case numbers 97-05, 97-16, 97-70, 97-98 and remand for resentencing in accordance with Heggs v. State, 759 So.2d 620 (Fla.2000).

Following its revocation of appellant’s probation, the trial court sentenced appellant to 113.4 months’ imprisonment on an arson offense in case number 98-117, 113.4 months’ imprisonment on an aggravated battery of a pregnant person offense in case number 97-70, 113.4 months’ imprisonment on a dealing in stolen property offense in case number 97-98, and sixty months’ imprisonment on each offense of driving with a suspended license in case numbers 97-05 and 97-16, with each of the sentences to run concurrently. The latter four offenses each occurred between October 1, 1995, and May 24, 1997, the Heggs window period as set forth in Trapp v. State, 760 So.2d 924, 928 (Fla.2000). During the pendency of these appeals, appellant attempted to supplement the record with the scoresheets utilized during the sentencing hearing to no avail. Appellant also filed a rule 3.800(b)(2) motion with the trial court, requesting that the court either locate or reconstruct the scoresheets and resentence him in accordance with Heggs. Due to the trial court’s untimeliness in ruling upon the motion, the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B). These appeals followed.

All defendants are entitled to be sentenced under a correctly scored and calculated scoresheet. Fortner v. State, 830 So.2d 174, 175 (Fla. 2d DCA 2002). In the instant case, because the offenses in case numbers 97-05, 97-16, 97-70, and 97-98 occurred after October 1, 1995, and prior to May 24, 1997, appellant has standing to challenge the trial court’s sentencing of these offenses. See Heggs, 759 So.2d at 630 (holding the 1995 sentencing guidelines invalid due to a single subject violation); see also Trapp, 760 So.2d at 928 (holding that a defendant may challenge a sentence imposed upon him or her under the 1995 sentencing guidelines if the relevant criminal offense occurred on or after October 1, 1995, and prior to May 24, 1997).

From a complete review of the record in the instant case, it is unclear as to whether the trial court utilized a proper sentencing guidelines scoresheet for the four offenses at issue. Although the record on appeal contains scoresheets that were used to previously sentence appellant, two of those scoresheets contain the unconstitutional 1995 sentencing guidelines. It is quite possible that the trial court utilized these improper scoresheets in imposing the sentences at issue.

Furthermore, based upon this Court’s independent calculation using the proper 1994 sentencing guidelines, it appears as if appellant’s sentences for the offenses in case numbers 97-70 and 97-98 could not have been imposed even under the proper guidelines. See Hummel v. State, 782 So.2d 450, 451 (Fla. 1st DCA 2001) (holding that, if a person’s sentence imposed under an erroneous scoresheet could have been imposed under a corrected scoresheet without a departure, then that person is not entitled to resentenc-ing). Moreover, based upon the transcript of the sentencing hearing, the trial court seemingly utilized more than one score-sheet in sentencing appellant with regard to the four offenses at issue, notwithstanding the fact that each offense was subject to the 1994 sentencing guidelines. See State v. Miller, 743 So.2d 141,141 (Fla. 4th DCA 1999) (holding that the trial court should have used one scoresheet for the offenses pending before the court at the time of sentencing because the two offenses fell under the same version of the sentencing guidelines); see also Fla. R.Crim. P. 3.703(d)(2). As such, it is not clear that the failure to file the pertinent scoresheet constituted harmless error. See Hayes v. State, 667 So.2d 454, 454 (Fla. 2d DCA 1996) (reversing and remanding for resentencing as it was not clear that the failure to file the scoresheet was harmless error). Accordingly, we reverse the sentences in case numbers 97-05, 97-16, 97-70, and 97-98 and remand for resentencing within the 1994 sentencing guidelines pursuant to Heggs.

AFFIRMED in part; REVERSED and REMANDED in part.

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

      . Because the trial court failed to file an order within sixty days from the filing of appellant's motion, the motion is deemed denied.

        See Fla. R.Crim. P. 3.800(b)(1)(B); see also O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003) (citation omitted).

      . We find no error in the trial court's sentence as to the arson offense.