text:
    Irvin ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1540.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 2002.
    Rehearing and Rehearing En Banc Denied Dec. 20, 2002.
    Irvin Robinson, in proper person.

      Robert A. Butterworth, Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before JORGENSON, COPE, and GODERICH, JJ.
   PER CURIAM.

Irvin Robinson appeals an order denying his petition for writ of error coram nobis, which we treat as having been filed under Florida Rule of Criminal 3.850. The petition was timely within the window created by Wood v. State, 750 So.2d 592 (Fla.1999). From a denial of his amended petition, the defendant appeals.

The defendant was convicted of sexual battery and burglary committed on July 25, 1992. He was sentenced as a habitual offender (“HO”).

In his petition, the defendant seeks to attack his plea in one of the predicate offenses, Miami Dade County Circuit Court case number 91-33678, for aiding an escape. The defendant contends that he was given affirmative misadvice by his counsel in entering this plea. He argues that he was informed that his plea could not be held against him in the future.

We need not reach the merits of the defendant’s claim. That is so because the sentencing guidelines scoresheet reflects that the defendant has seven other prior felony convictions, including aggravated battery, tampering with evidence, and several narcoties-related offenses. Under the applicable version of the habitual offender statute, any two felonies would be sufficient to qualify the defendant as a habitual offender. See § 775.084(1)(a)1., Fla. Stat. (1991); Bover v. State, 797 So.2d 1246, 1248 n. 1 (Fla.2001).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Timothy SAVAGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1472.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2002.
    Rehearing Denied Dec. 4, 2002.
   PER CURIAM.

Timothy Savage appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm in part and reverse in part.

Savage was convicted of burglary of a structure. Savage’s factual allegations concerning the circumstances surrounding the offense are as follows. Savage walked through an open gate into an area behind a plumbing supply store. No signs were posted indicating whether the area was open or closed to the public. Savage walked across the back of the lot into an area that was covered by a roof but had no walls. He picked up a toolbox. At that point, the owner of the store came out of the back of the store and asked Savage what he was doing. Savage asked him whether the toolbox was for sale. The owner told Savage that it was not for sale and directed Savage to leave. Savage then left the area.

Savage further alleged that about a half hour after he left the area, he was approached by a police officer who assured him that he was not in trouble and promised him drug treatment if he would tell him about the toolbox and his entry into the fenced area. He also contended that he was questioned about the offense after being arrested and before he was read his Miranda rights.

Savage’s first claim was that the trial court lacked jurisdiction to enter a conviction and sentence because he established his affirmative defense that the structure was open to the public. This is a direct appeal issue and not cognizable in a rule 3.850 proceeding. See Jenkins v. State, 794 So.2d 654 (Fla. 2d DCA 2001). In his motion for rehearing, which was denied by the trial court, Savage argued that the issue could not be raised on appeal because his attorney did not preserve it.

Savage’s first claim was restated in his second claim. He alleged that his trial counsel was ineffective for fading to move for a judgment of acquittal on his affirmative defense that the premises were open to the public at the close of the State’s case. The trial court denied the motion, opining that the evidence on this issue was conflicting and that the motion would have been denied.

The attachments to the order denying relief contain excerpts of testimony presented at trial. The testimony that pertained to whether the premises appeared to be open to the public was given by the owner of the property and the arresting police officer. Both testified that no signs were posted to show that the area was for employees only or that it was closed to the public. Both testified that the gate was open. The owner stated that members of the public had occasionally entered the area through the gate without permission. The owner testified that the area was not open to the public.

In 1997 the standard jury instruction on burglary was amended to add:

A person may be guilty of this offense if he or she entered into or remained in areas of the premises which he or she knew or should have known were not open to the public.

Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 90 (Fla.1997). The question of whether a certain area is open to the public is generally a jury question. See Johnson v. State, 786 So.2d 1162, 1164 (Fla.2001). However under the facts of this case, as represented by the attachments to the trial court order denying relief and Savage’s allegations, the court would have been obligated to grant a motion for judgment of acquittal had his counsel so moved. There is no evidence in the attachments to the trial court’s order that Savage or any reasonable person would conclude that the area was not open to the public. Whether additional documents in the trial court record would alter this conclusion should be determined by the trial court. Accordingly, we reverse the denial of relief on this issue and remand for further consideration.

Savage’s final claim was that his counsel was ineffective for failing to file a motion to suppress the statements he made to law enforcement based on his contention that he was coerced into answering the officer’s questions and was questioned prior to being read his Miranda rights. The trial court cited to the probable cause affidavit and the trial testimony of the arresting officer as its basis for concluding that a motion to suppress would have been fruitless. We reverse because this factual dispute, based on the limited record before this court, appears to require resolution through an evidentiary hearing. See Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987). Again, on remand the trial court must determine whether additional documents in the record obviate the need for an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, STRINGER, and SILBERMAN, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    HALL, DAVID and JOSEPH, P.A., and Darrel Wayne Wyatt, Appellant, v. James A. FISCHETTE, Esq., James A. Fischette, P. A., d/b/a Fischette, Owen, Held & McBurney, Lyman T. Fletcher, Esq., Gary Flower, Esq., and Harris, Guidi, Dunlap, Rosner & Mordecai, P. A., Appellees.
    No. 1D02-400.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2002.
    Rehearing Denied Dec. 7, 2002.
    Andrew C. Hall, Esquire and Michael L. Cotzen, Esquire, of Hall, David and Joseph, P. A., Miami, for Appellant.
    Geddes D. Anderson, Esquire, and Rutledge R. Liles, Esquire, of Liles, Gavin, Constantino & Murphy, Jacksonville; Terrance E. Schmidt, Esquire, Bledsoe, Schmidt, Moonly & Robertson, P. A., Jacksonville; Robert M. Harris, Esquire, and M. Stephen Stanfield, of Harris, Guidi, Rosner & Mordecai, P. A., Jacksonville; and Janice C. Orr, Esquire, Eustis, for Appellees.
   PER CURIAM.

Upon motion by Appellees, this case is summarily affirmed because the transcript of the November 30, 2001 hearing, which is the subject of this appeal, has not been transmitted to the court as required by its May 2, 2002 order granting leave to supplement the record with the transcript. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)(rul-ing that the “trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error”).

AFFIRMED.

DAVIS and POLSTON, JJ„ concur; BENTON, J., dissents.


author: DANAHY, PAUL W., Senior Judge.

text:
    CHICAGO TITLE INSURANCE COMPANY, Appellant, v. ALDAY-DONALSON TITLE COMPANY OF FLORIDA, INC., a Florida corporation; Alday-Donalson Title Company of Pinellas County, Inc., a Florida corporation; Alday-Donalson Title Company, Inc., a Florida corporation; Alday-Donalson Title Agencies of America, Inc.; Thomas Alday; Ronald Donalson; Stewart Title Guaranty Company, a Texas corporation; and Stewart Title Company, a Texas corporation, Appellees.
    No. 2D01-2792.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 2002.

      John H. Pelzer, W. Wyndham Geyer, Jr., and Greg H. Rosenthal of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for Appellant.
    John P. Holsonback of Fuller Holson-back Bivins & Malloy, P.A., Tampa, for Appellees Alday-Donalson Title Company of Florida, Inc.; Alday-Donalson Title Company of Pinellas County, Inc.; Alday-Donalson Title Company, Inc.; Thomas Al-day, and Ronald Donalson.
    Mark. A. Brown, Adam Tanenbaum, and Marty Solomon of Carlton Fields, P.A., Tampa, for Appellees Stewart Title Guaranty Company and Stewart Title Company.
    A.J. Musial, Jr., of A.J. Musial, Jr., P.A., Tampa, for Appellee Alday-Donalson Title Agencies of America, Inc.
   DANAHY, PAUL W., Senior Judge.

Chicago Title Insurance Company appeals the trial court’s orders disposing of all of its claims against Stewart Title Guaranty Company, Stewart Title Company (collectively “Stewart Title”), Alday-Donal-son Title Agencies of America, Inc. (Alday America), Thomas Alday, and Ronald Don-alson. We affirm in part and reverse in part.

In early 1997, Thomas Alday, Ronald Donalson, and three title insurance agencies that they owned (the 'Alday Agencies) sued Chicago Title for unfair trade practices, fraudulent inducement, breach of warranty, breach of contract, and negligent misrepresentation. These counts arose out of various business transactions between the Alday Agencies and their title insurance underwriter, Chicago Title. In addition, Alday, Donalson, and the Alday Agencies brought a declaratory judgment action seeking a judicial determination as to whether various exclusivity agreements between Alday, Donalson, the Alday Agencies, and Chicago Title were enforceable.

While that litigation proceeded, Alday approached Stewart Title and offered to sell Stewart Title all of the assets of the Alday Agencies. Alday’s offer contemplated that a new corporation would be formed to purchase these assets and that the new corporation would become an exclusive title insurance agent for Stewart Title. Stewart Title agreed to this proposal, and Alday and Donalson subsequently incorporated Alday America. Following a series of transactions, Alday America owned all of the assets of the Alday Agencies and began operating as an exclusive agent for Stewart Title. The Alday Agencies continue to exist as Florida corporations; however, they have not actively issued title insurance since Alday America began issuing title insurance policies for Stewart Title.

Upon learning of the existence of Alday America and its relationship with Stewart Title, Chicago Title filed a counterclaim against .Alday, Donalson, and the Alday Agencies in the existing litigation. Chicago Title also brought Alday America and Stewart Title into the action as additional counterclaim defendants. In its second amended counterclaim, Chicago Title sued Alday and Donalson for breach of their exclusivity agreements, breach of oral contract, fraudulent inducement, breach of their personal guaranties, and breach of fiduciary duties. Chicago Title sued Stewart Title for -tortious interference with the Alday Agencies’ exclusivity agreements, tortious interference with Alday’s and Donalson’s exclusivity agreements, tortious interference with the Alday Agencies’ contractual obligations, tortious interference with Alday’s and Donalson’s personal guaranties, conspiracy to fraudulently induce Chicago Title into entering into the exclusivity agreements, and conspiracy to breach Alday’s and Donalson’s fiduciary duties. Chicago Title sued Alday America for successor entity liability, tortious interference with Alday’s and Donalson’s exclusivity obligations, tortious interference with the Alday Agencies’ contractual obligations, tortious interference with Alday’s and Donalson’s personal guaranties, and conspiracy to breach Alday’s and Donal-son’s fiduciary duties.

In a series of orders, the trial court dismissed all of Chicago Title’s claims against Alday, Donalson, and Alday America with prejudice. The trial court also dismissed all of the claims against Stewart Title with prejudice except for the claim for tortious interference with the Alday Agencies’ exclusivity agreements. As to that claim, the trial court later granted final summary judgment in favor of Stewart Title. The effect of these rulings was to totally dispose of Chicago Title’s claims against Alday America and Stewart Title, thus ending the litigation as to them. The rulings also disposed of all of Chicago Title’s claims against Alday and Donalson, although Alday and Donalson remain parties to the litigation below by virtue of their claims against Chicago Title. In this appeal, Chicago Title seeks reversal of all of these orders.

As to the dismissal of Chicago Title’s claims against Alday and Donalson, we decline to review the merits of the trial court’s order because such review is premature. On November 7, 2000, the trial court entered its order dismissing all of Chicago Title’s claims against Alday and Donalson. Chicago Title timely appealed that order to this court. This court dismissed the appeal as being from a nonfi-nal, nonappealable order because Alday and Donalson were still parties to the action, and thus the trial court’s order did not constitute a final judgment or partial final judgment. This dismissal was without prejudice to Chicago Title’s pursuit of an appeal once there was a final judgment completely ending the litigation between Chicago Title and Alday and Donalson.

In this appeal, Chicago Title again attempts to have this court consider the merits of the order dismissing Alday and Donalson. However, under the law of the case doctrine, questions of law that have actually been decided on appeal must govern the case in both the trial court and the appellate court through all subsequent stages of the proceedings. Dep’t of Trcmsp. v. Juliano, 801 So.2d 101, 105 (Fla.2001); Dade County Classroom Teachers’ Ass’n v. Rubin, 238 So.2d 284, 289 (Fla.1970); Dicks ex rel. Montgomery v. Jenne, 740 So.2d 576, 577 (Fla. 4th DCA 1999). This court has already ruled that the dismissal of the counts against Alday and Donalson is not reviewable while Al-day and Donalson are still parties to the litigation below. The record shows that nothing about the case against Alday and Donalson has changed since this court previously declined to review the November 7, 2000, order. Accordingly, we do not review the dismissal of the claims against Alday and Donalson. This decision is without prejudice to Chicago Title’s right to challenge the merits of the trial court’s order dismissing these claims once the litigation involving Alday and Donalson is completed.

As to the dismissal of Chicago Title’s claims against Stewart Title, we affirm the dismissal of the conspiracy counts. We also affirm the dismissal and final summary judgment on the tortious interference counts because Chicago Title failed to allege and prove that Stewart Title caused the breach of these contracts.

In order to state a cause of action for tortious interference, a plaintiff must allege: (1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damages to the plaintiff as a result of the breach of the relationship. Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985); Sec. Title Guarantee Corp. of Baltimore v. McDill Columbus Corp., 543 So.2d 852, 854 (Fla. 2d DCA 1989). Imbedded within these elements is the requirement that the plaintiff establish that the defendant’s conduct caused or induced the breach that resulted in the plaintiffs damages. St. John’s River Water Mgmt. Dist. v. Femberg Geological Servs., Inc., 784 So.2d 500, 504 (Fla. 5th DCA 2001).

In considering the element of causation, Florida courts have held that the plaintiff must plead and prove that the defendant manifested a specific intent to interfere with the business relationship. See, e.g., Sec. Title, 543 So.2d at 855; Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105, 1107 (Fla. 4th DCA 2000). Thus, even if the defendant is aware of the existing business relationship, the defendant will not be liable for tortious interference with that relationship 'unless there is evidence that the defendant intended to procure a breach of the contract. See Martin Petroleum, 769 So.2d at 1107 (quoting Restatement (Second) of Torts § 766 cmt. n (1977)). See also Deane v. Johnston, 104 So.2d 3, 8 (Fla.1958) (“Intent in the law of torts means that the actor acts for the purpose of causing an invasion of another’s interest.... ”); Sec. Title, 543 So.2d at 855 (holding that the defendant could not be liable for tortious interference because it was an entirely passive party that manifested no intent to interfere with the relationship); Farah v.

Canada, 740 So.2d 560, 561 (Fla. 5th DCA 1999) (“[A] plaintiff must prove that a third party interfered with a contract by ‘influencing, inducing or coercing' one of the parties to ... breach the contract ....’”) (quoting West v. Troelstrup, 367 So.2d 253, 255 (Fla. 1st DCA 1979)).

In this case, Chicago Title offered no evidence and raised no issue of material fact as to whether Stewart Title intended to procure the breach of the contracts between Chicago Title and the Alday Agencies. 'Rather, the only evidence was that the Alday Agencies already intended to breach the contracts before contacting Stewart Title. There was no evidence that Stewart Title took any action that caused or induced the breach. Therefore, the trial court did not err in ruling in favor of Stewart Title on the tortious interference counts.

Finally, as to the dismissal of Chicago Title’s claims against Alday America, we affirm the dismissal of the tortious interference counts and the conspiracy count without further discussion. However, we reverse the dismissal of the count for successor entity liability because Chicago Title has properly alleged a claim for successor entity liability under either the de facto merger theory or the mere continuation theory.

A de facto merger occurs where one corporation is absorbed by another, but without compliance with the statutory requirements for a merger. To find a de facto merger there must be continuity of the selling corporation evidenced by the same management, personnel, assets and physical location; a continuity of the stockholders, accomplished by paying for the acquired corporation with shares of stock; a dissolution of the selling corporation; and assumption of the liabilities. All of the events, such as dissolution, need not occur at the same time.

Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 153-54 (Fla. 4th DCA 1994) (citations omitted). Under the mere continuation theory, liability is imposed when the successor corporation is merely a continuation or reincarnation of the predecessor under a different name. Id. at 154. The key is that there is a change in form, but not in substance. Id.

In this case, Chicago Title has properly alleged the elements for both the de facto merger theory and the mere continuation theory. While Alday America takes issue with the truth of the allegations, that is not a proper consideration at the motion to dismiss stage. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002) (“[W]hen presented with a motion to dismiss, a trial court is required to ‘treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the plaintiffs.’ ”) (quoting Hollywood Lakes Section Civic Ass’n v. City of Hollywood, 676 So.2d 500, 501 (Fla. 4th DCA 1996)); Brocato v. Health Options, Inc., 811 So.2d 827, 829 (Fla. 2d DCA 2002) (“On a motion to dismiss for failure to state a cause of action, a trial court is restricted to a consideration of the well-pleaded allegations of the complaint and must acept those allegations as true.”); Lutz Lake Fern Road Neighborhood Croups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA 2000). Therefore, the trial court erred in dismissing the successor entity liability claim against Alday America, and we reverse that portion of the order.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and NORTHCUTT, JJ., Concur.


author: JORGENSON, Judge.

text:
    METROPOLITAN DADE COUNTY, etc., Appellant, v. POTAMKIN CHEVROLET, Appellee.
    No. 3D02-436.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 2002.
    Rehearing and Rehearing En Banc Denied Dec. 20, 2002.

      Robert A. Ginsburg, Miami-Dade County Attorney, and Thomas Goldstein, Assistant County Attorney, for appellant.
    Pathman Lewis, LLP and Wayne M. Pathman and Alex Kurkin, for appellee.
    Before JORGENSON, COPE, and GODERICH, JJ.
   JORGENSON, Judge.

The County appeals from an order granting summary judgment to Potamkin Chevrolet to quiet title. For the following reasons, we reverse.

History of the Property

The property that is at the center of this controversy is adjacent to and in part over a canal that runs parallel to N.W. 57th Avenue in Miami Lakes. In the 1960s, two property owners conveyed to Dade County canal rights-of-way [“ROW’] and canal maintenance easements [“CME”] pertaining to that canal. When the deeds were conveyed, the canal was open.

In 1981, the County issued a permit to Capeletti Brothers, Inc. for the installation of a culvert — a corrugated metal pipe approximately seven feet in diameter and, in this case, 560 linear feet long. — to enclose a portion of the canal that was the subject of the easement. The installed culvert was eventually paved over with asphalt, so the property surface was undisturbed and closed, yet the canal water still flowed freely. The County’s permit contained the following conditions:

(a) No permanent structures are to be erected on the right-of-way.
(b) Only asphalt pavement will be allowed on the canal right-of-way over the proposed pipe.
(c) The use of the right-of-way will always be subordinate to the use of the canal and required maintenance. There will be no obligation on the part of the County to restore any areas which may be disrupted because of maintenance or other reasons.
(d) Proper zoning approval is required for proper use.
(e) No stormwater runoff to be discharged into the pipe or canal system.
, Class II permit required for any emergency stormwater discharge.

The permit further provided that

The Permittee shall be fully responsible for the conveyance to Dade County of the right of way and maintenance easements required for the canal or other water control facility covered by this agreement as shown on the permit drawings. The County shall have full control, jurisdiction, and use of the areas to be included in these rights of way and easement for proper purposes at all times after the date of approval of this agreement.

In 1981, the successor in interest to one of the original grantors of the ROWs and CMEs conveyed to Potamkin by warranty deed its interest in the fee simple title to the tract of land immediately west and adjacent to the canal right-of-way together with “any right, title and/or interest Grant- or may have (if any) to the canal right-of-way lying East of the above property.” That same year, the remaining successor in interest conveyed to Potamkin, by warranty deed, its interest in the fee simple title to the tract of land immediately west and adjacent to the canal right of way subject to the CME, together with “any right, title, and/or interest Grantor may have (if any) to the Canal R/W lying East of the above property.”

The ROW and CME properties were used by Potamkin for vehicle storage and display. In 1992, the County attempted to convey a portion of the ROW property to the Florida Department of Transportation [DOT] to widen N.W. 57th Avenue. DOT filed an ejectment action against Potamkin to remove it from the disputed property. The County intervened; DOT and Potam-kin entered into a settlement whereby Po-tamkin conveyed to DOT a portion of the ROW property. As to the remaining disputed property, the trial court ruled that Potamkin holds fee simple to the ROW and CME portions, clear of any claims of the County.

We reverse. To establish that the County had abandoned its rights to the canal, Potamkin would have had to “demonstrate that there was a ‘clear affirmative intent to abandon’ the easement.” Leibowitz v. City of Miami Beach, 592 So.2d 1213, 1214 (Fla. 3d DCA 1992) (citations omitted). “Abandonment [of an easement] is a question of intent and he who asserts it, has the burden of proving it.” Dade County v. City of North Miami Beach, 69 So.2d 780, 783 (Fla.1953).

In the decades since the ROWs and CMEs were originally conveyed, the County has held continuous uninterrupted fee simple easements to the canal. The original grantors gave the County the warranty deeds conveying rights of way and canal maintenance easements, vesting title in the property to the County, retaining only a right of reverter. The County did not abandon its rights to the canal when it issued the culvert permit; the terms of the permit could not have been more explicit. The County expressed its clear and unequivocal intent not to abandon or discontinue the canal when it conditioned the permit as follows:

The County shall have full control, jurisdiction, and use of the areas to be included in these rights of way and easement for proper purposes at all times after the date of approval of this agreement.

The County did nothing in the years after the culvert was built to indicate that it had abandoned its rights over the canal. When the grantors’ successors in interest conveyed their rights to Potamkin, Potam-kin took the property subject to the County’s easements and the rights the County had retained when it issued the culvert permit. The construction of the culvert did not extinguish the County’s easements; it did not, as Potamkin argues, extinguish the canal. Potamkin paved over the culvert, through which canal waters continue to flow, and used that paved area for its business. ' It has never paid any property taxes on the culvert area. For two decades, the County tolerated Potamkin’s use of the paved-over culvert area; Potamkin gave the County nothing in return. As counsel for the County aptly stated at oral argument, “No good deed goes unpunished.”

Furthermore, Potamkin never gave the County notice of its claim of reversion. “Appellees cannot effect a forfeiture or claim under the reversion clause without giving the grantor notice and an opportunity to comply. It is well settled that equity abhors a forfeiture. This is all the more true when the forfeiture is against the public.” Dade County v. City of North Miami Beach, 69 So.2d at 783.

Potamkin cites numerous other alleged indicia of abandonment of the canal by the County; we find no merit in any of them.

In sum, we reverse the order under review and remand this matter to the trial court for further consistent proceedings.

REVERSED.

      . Under Florida law, the County can own canal rights-of-way in fee simple. See Alachua County v. Wagner, 581 So.2d 948 (Fla. 1st DCA 1991).

      . In the order granting summary judgment to Potamkin, the trial court made no findings of fact or conclusions of law, but merely recited the legal descriptions of the property for which title was being quieted.


author: PALMER, J.

text:
    Calvin LECORN, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2845.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2002.
    Rehearing Denied Dec. 26, 2002.

      Ronald E. Fox of Ronald E. Fox, P.A., Umatilla, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Denise 0. Simpson, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Calvin Lecorn (defendant) appeals his judgment and sentence which were entered by the trial court after he pled nolo contendere to the charge of trafficking in cocaine. We affirm.

The defendant was originally charged with committing the crimes of trafficking in cocaine and conspiracy to traffic in cocaine. He filed a pretrial motion to suppress, alleging that the cocaine which formed the basis of the charges was seized as a result of an illegal, warrantless search. After conducting an evidentiary hearing, the trial court denied the motion to suppress. The defendant then entered a plea of nolo contendere to the charge of trafficking in cocaine, properly reserving his right to appeal the trial court’s ruling. The court entered judgment on the defendant’s plea and sentenced him to a mandatory minimum term of seven years imprisonment. This appeal timely followed.

The defendant first challenges the trial court’s order denying his motion to suppress. Appellate courts review the legal issues raised in suppression cases de novo; however, the courts must defer to the factual findings of the trial court and interpret the evidence, and reasonable inferences and deductions derived therefrom, in a manner most favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410 (Fla.1978); Carattini v. State, 774 So.2d 927 (Fla. 5th DCA 2001). Since, in matters concerning the suppression of evidence, the trial court sits as both trier of fact and of law, the credibility of the witnesses and the weight of the evidence presented are matters within the province of the trial court whose determinations as to factual questions must be accepted by the appellate court if the record supports that finding. State v. Garcia, 431 So.2d 651 (Fla. 3d DCA 1983).

The evidence presented at the suppression hearing revealed that Officer Lemery made a traffic stop of the defendant’s vehicle after noticing that he could not see inside the vehicle due to the darkness of the vehicle’s window tint. Lemery testified that as he approached the defendant’s car the two men inside appeared nervous and fidgety. He asked to see the defendant’s license and the defendant complied. When the defendant explained that the vehicle was a rental car and that he had not put the tint on the windows, Lemery decided to write him a warning notice for having faulty equipment rather than issue him a ticket. Lemery requested the defendant to step out of the car and walk back to where his patrol car was parked. The defendant complied. The defendant told Lemery that he was cold so Lemery offered the defendant the option of sitting in the back seat of the patrol car with the door opened. While Lemery was preparing the notice of faulty equipment, Officer Davis arrived on the scene with his canine unit. Officer Davis began to walk the dog around the defendant’s car and the dog alerted on the driver’s side of the vehicle. After the defendant denied that he was aware of anything illegal in the car, Lem-ery reached into the back seat of the patrol car to pat the defendant down. Lem-ery explained that he wanted to pat the defendant down first, before searching the car for drugs, because a lot of times people will transport narcotics and weapons at the same time.

Lemery testified that when he put his hand on top of the defendant’s pants pocket he felt something chunky, hard, and brittle. Lemery asked the defendant what the object was but the defendant failed to respond. Lemery then asked the defendant if he was carrying a gun and the defendant responded no. Officer Davis then asked the defendant if the object was cocaine and defendant responded yes. At that point, Officer Davis removed the plastic bag of cocaine from the defendant’s person.

In its order denying the defendant’s motion to suppress the trial court wrote that the vehicle stop was valid based upon a window tint violation. The court further ruled that the search of the defendant’s person was reasonable on the basis of officer safety, and that the subsequent seizure of the cocaine was lawful based upon the officer’s experience in drug interdiction. The court further found that the traffic stop was not unreasonably long based on the totality of the circumstances.

The defendant first claims that the evidence of record reveals that Officer Lemery’s failure to promptly issue the warning notice resulted in an unreasonable delay which enabled Officer Davis to arrive on the scene and to conduct the canine search of the defendant’s vehicle. Our independent review of the record fails to reveal any evidence which supports this claim.

In Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002), our court explained that:

If a driver is stopped for the commission of a traffic infraction, he or she may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation. Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001) (citing Cresswell v. State, 564 So.2d 480 (Fla.1990)); Welch v. State, 741 So.2d 1268 (Fla. 5th DCA 1999).

Id. at 887. We further explained that the time to issue a notice “should last no longer than is necessary to write the notice and, when necessary, to make the license, tag, insurance and registration checks as long as that information can be obtained within a reasonable period of time.” Id. Here, the record demonstrates that within four minutes from the time Officer Lemery asked the defendant to exit his vehicle and accompany him to the patrol car so that a warning notice for the window tint violation could be issued Officer Davis arrived on the scene. As such, the evidence of record supports the trial court’s conclusion that no unreasonably long delay occurred in this case. See Sands v. State, 753 So.2d 630 (Fla. 5th DCA), rev. denied, 773 So.2d 56 (Fla.2000)(holding that stop of vehicle was not unnecessarily prolonged in order for drug dog to arrive where drug dog arrived approximately 15 minutes after stop and officer was still writing ticket for violation when dog arrived).

The defendant next argues that suppression of the cocaine seized from his person was warranted because the officers lacked justification to conduct the pat-down search. To support this claim, the defendant argues that the dog’s alert on the defendant’s car was insufficient, by itself, to justify a search of the defendant’s person. He further argues that the pat-down search was improper because the record is devoid of any evidence which justified a reasonable belief that he was armed and dangerous. The State responds by arguing that the trial court’s ruling should be affirmed based on the law as expressed in State v. Bums, 698 So.2d 1282 (Fla. 5th DCA 1997). We agree with the State.

In Bums, this court, was presented with facts which were very similar to those presented here. The trial court granted the defendant’s motion to suppress and the State appealed, arguing that the seizure of the cocaine was predicated upon a lawful pat-down search. Upon review, the Fifth District agreed with the State:

[Ujnder our Stop and Frisk Law, a law enforcement officer must possess only a reasonable suspicion that the suspect is armed with a dangerous weapon in order to justify a stop and frisk. [State v. Webb, 398 So.2d 820, 824 (Fla.1981)]. The United States Supreme Court noted that reasonableness “depends’ on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 885, 137 L.Ed.2d 41 (1997)(quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)). While there is no bright-line rule to determine whether the scope of police conduct was reasonable, our evaluation is guided by “common sense and ordinary human experience.” United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994)(quoting United States v. King, 990 F.2d 1552 (10th Cir.1993)).
Here, the deputy certainly possessed a reasonable belief that the defendant was armed and posed a danger to his safety so as to warrant a pat-down search. In this regard, the police dog alerted to the presence of narcotics during the course of a valid traffic stop. This alert, coupled with the deputy’s experience regarding the association of weapons and drugs, eliminated the possibility that the deputy’s “interference” was arbitrary. Thus, we agree with the trial court that this was a valid pat-down search under section 901.151 and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In so ruling we recognize that, without the benefit of a frisk, the deputy would have been in a precarious situation because he would not have known whether the defendant was armed. We agree with the opinion expressed by the second district in King v. State, 696 So.2d 860 (Fla. 2d DCA 1997), that law enforcement officers should not be required to take such risks. Clearly, under circumstances such as these, a defendant’s right to personal security free from arbitrary interference is outweighed by the public’s interest in officer safety.

Id. at 1284. Applying this case law to the instant facts we conclude that the trial court properly determined that the pat-down of the defendant’s person following the dog’s alert on the defendant’s car was permissible.

Lastly, the defendant contends that suppression was warranted in this case because the scope of the instant pat-down was too broad. He claims that, since the police were aware that the object in the defendant’s pants was not a firearm, they lacked the authority to seize it. This claim of error is meritless because it is based upon an invalid premise; namely, that the record demonstrates that the police were aware that the cocaine in the defendant’s pants was not a gun at the time the cocaine was seized. The testimony submitted by the officers demonstrated that at the time that the cocaine was felt on the defendant’s person the officers were not sure what the object was. Upon questioning from defense counsel, Officer Lemery testified that there are many guns that are hard and chunky, including pager guns and roll out guns. Furthermore, once the defendant admitted to the officers that the object hidden in his waistband was cocaine, the officers possessed the legal authority to seize same as contraband. Accordingly, no improper seizure occurred in this case.

The defendant also challenges his sentence, arguing that the seven year minimum mandatory sentence imposed upon him is illegal because the authorizing legislation, the “Three Strikes Violent Felony Offender Act”, section 893.135 as amended by Chapter 99-188, Laws of Florida, violates the single subject provision of Florida’s Constitution. Recently, in Hersey v. State, 831 So.2d 679(Fla. 5th DCA 2002), we held that the enactment of Chapter 02-210 Laws of Florida, cured Chapter 99-188’s constitutional infirmity, and that said enactment applies retroactively. Accordingly, we affirm the defendant’s sentence based upon the ruling in Hersey.

Judgment and Sentence AFFIRMED.

COBB and HARRIS, JJ., concur.

      . See §§ 893.135; 893.03, Fla. Slat. (2000).


author: ALTENBERND, Judge.

text:
    ALUMINATOR TRAILERS, L.L.C., Appellant, v. LOADMASTER ALUMINUM BOAT TRAILERS, INC., Appellee.
    No. 2D02-1158.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2002.
    Rehearing Denied Dec. 31, 2002.

      Michael R. Carey and David M. Pearce of Carey, O’Malley, Whitaker & Manson, P.A., Tampa, for Appellant.
    J. Stanford Lifsey, Tampa, for Appellee.
   ALTENBERND, Judge.

Aluminator Trailers, L.L.C. (Alumina-tor), a Texas corporation, appeals the trial court’s denial of its motion to dismiss for lack of personal jurisdiction. Loadmaster Aluminum Boat Trailers, Inc. (Loadmas-ter), sued Aluminator alleging that Alumi-nator did not pay for boat trailers that Loadmaster manufactured and sold to Alu-minator in Florida for resale in Texas. Although Aluminator’s failure to pay for these trailers would arguably constitute a breach of contract in Florida, subjecting it to jurisdiction under section 48.193(l)(g), Florida Statutes (2000), case law clearly establishes that the mere purchase of goods in Florida does not establish the minimum contacts necessary to satisfy due process under the United States Constitution. See Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 518, 43 S.Ct. 170, 67 L.Ed. 372 (1923); Marsh Supermarkets, Inc. v. The Queen’s FS Corp., 696 So.2d 1207, 1208 (Fla. 3d DCA 1997) (discussing Rosenberg Bros., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372); O’Brien Glass Co. v. Miami Wall Sys., Inc., 645 So.2d 142, 144 (Fla. 3d DCA 1994). Accordingly, we must reverse the trial court’s order.

Aluminator is a Texas limited liability company that sells boat trailers in Texas. Between May 1998 and November 2000, Aluminator regularly purchased aluminum boat trailers from manufacturers in Florida, including approximately seven to fourteen trailers per week from Loadmaster. On most occasions, Loadmaster arranged for independent truck drivers to deliver the trailers to Texas. On three occasions, however, Aluminator’s corporate officers entered Florida to carry the goods to Texas. Aluminator is not registered to do business in Florida. It does not maintain offices, bank accounts, a post office box, a telephone, or mail drops in Florida. Thus, with the possible exception of this interstate commerce in boat trailers, Alumina-tor has done nothing to subject itself to the jurisdiction of a Florida court.

Loadmaster understands that before a Florida court may exercise personal jurisdiction over a foreign defendant, due process must be satisfied regardless of whether Florida’s long-arm jurisdiction statute applies. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500-01 (Fla.1989); see Burger King v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp.- v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). It also understands the well-established rule that mere purchases of goods in the forum state, even accompanied by occasional visits to the forum in connection with the purchases and even when the purchases are extensive, are not sufficient minimum contacts to satisfy the test of due process. See Marsh Supermarkets, 696 So.2d at 1207-09.

To overcome these obstacles, Load-master argues that three additional contacts between the parties in this case justify the exercise of personal jurisdiction. First, Loadmaster suggests that the outcome should be different because payment for the boat trailers was due in Florida. Obviously, Loadmaster could have maintained possession of these trailers in Florida until paid or could have arranged for cash on delivery. It did not. The fact that the payment for the trailers was ultimately to be made in Florida after the trailers were delivered does not justify Florida’s exercise of jurisdiction. See Christus St. Joseph’s Health Sys. v. Witt Biomedical Corp., 805 So.2d 1050, 1054 (Fla. 5th DCA 2002).

Second, Loadmaster points out that it modified the trailers it built for Alumina-tor by affixing a small decal that bore Aluminator’s corporate logo, phone number, and the words, “Aluminator by Load-master.” Aluminator did not, however, actively supervise the placement of the decals. Loadmaster placed similar logos on trailers for other customers. Loadmas-ter’s willingness to customize its product in this limited manner to satisfy a customer in Texas does not represent Alumina-tor’s reaching into Florida to avail itself of Florida’s benefits. See Marsh Supermarkets, 696 So.2d at 1209.

Finally, the parties negotiated the terms of an agreement for Aluminator to become Loadmaster’s exclusive dealer in Texas, but they never executed the agreement. Although negotiations and contemplated future consequences are evidence of minimum contacts, Burger King, 471 U.S. at 479, 105 S.Ct. 2174, due process in this case is not satisfied because the dealership agreement was not executed or carried out in any form. Moreover, the unexecuted document contained a Texas choice-of-law provision, and no documents with a Florida choice-of-law provision or forum selection clause were exchanged. Cf. Santaro Indus., Inc. v. Gencor Indus., Inc., 766 So.2d 1194, 1195 (Fla. 5th DCA 2000) (finding minimum contacts when foreign corporation negotiated purchase agreement containing Florida choice-of-law provision, purchased goods without executing agreement, and received invoices providing that disputes would be resolved under Florida law).

We reverse the order under review with directions that the trial court dismiss the action without prejudice to any right Load-master might have to refile in Texas or some other appropriate jurisdiction.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., concur.


author: KLEIN, J.

text:
    NATIONWIDE LIFT TRUCKS, INC., a Florida corporation, Appellant, v. Rudy SMITH and Fior Daliza Smith, Appellees.
    No. 4D01-3932.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2002.

      Clarke, Silverglate, Campbell, Williams & Montgomery, Miami, and Mark Hicks and Dinah S. Stein of Hicks, Anderson & Kneale, P.A., Miami, for appellant.
    Todd R. Falzone of Sheldon J. Schlesinger, P.A., Ft. Lauderdale and Edna L. Caruso and Barbara J. Compiani of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellees.
   KLEIN, J.

Appellee plaintiff lost his foot in an accident involving a forklift owned by appellant Nationwide, and leased to plaintiffs employer. In plaintiffs’ suit against Nationwide for negligent maintenance, the trial court struck Nationwide’s defenses for failing to preserve the braking mechanism alleged to have caused the accident. We affirm the judgment.

The accident occurred when plaintiff was getting on the forklift and it suddenly went into motion, trapping plaintiffs foot. Two months after the accident Nationwide, which leased the forklift to plaintiffs employer, wrote the employer requesting permission to remove the forklift in order to preserve it as evidence. The letter stated that “no destructive testing will be allowed on this truck without a court order.”

Nationwide then took possession of the forklift. Three years after the accident Nationwide informed plaintiffs that the forklift was still in a state of preservation and offered plaintiffs the opportunity to inspect it before it was put back into operation. When plaintiffs’ expert inspected the forklift a month later, Nationwide produced a box of brake parts, explaining that they had been removed from the forklift a year earlier. It turned out that the parts furnished plaintiffs’ expert were not the parts which had been removed, and that Nationwide had been unable to find the parts it had removed.

After an evidentiary hearing to determine if sanctions should be imposed, the trial court found that just prior to the accident the braking system had been repaired, that the brake pin had been altered, and that Nationwide’s removal of the parts “destructively altered the operating system” and “absolutely prevented” the plaintiffs from presenting a case. More specifically, the braking mechanism may have been improperly reassembled after being repaired prior to the accident and the disassembly of it after the accident made it impossible to ascertain if that was the case. After a trial on damages only the jury awarded plaintiffs $5,925,370. Nationwide argues that the sanction was too harsh because the trial court made no finding that Nationwide’s conduct was willful.

Cases in which evidence has been destroyed, either inadvertently or intentionally, are discovery violations involving the application of Florida Rule of Civil Procedure 1.380, under which sanctions are reviewed for abuse of discretion. Fed. Ins. Co. v. Allister Mfg. Co., 622 So.2d 1348 (Fla. 4th DCA 1993).

In arguing that the sanction imposed was too harsh because there was no finding of willful misconduct, Nationwide relies on New Hampshire Insurance Co. v. Royal Insurance Co., 559 So.2d 102, 103 (Fla. 4th DCA 1990) in which we stated that:

[T]he ultimate sanction of dismissal should always be viewed as a remedy of last resort and only in cases where the conduct of the party evidences deliberate and willful failure to submit to discovery.

We went on to state, however, that:

If appellant has destroyed relevant and material information by destroying the file, and that information is so essential to the appellee’s defense that it cannot proceed without it, then the striking of appellant’s pleadings may be warranted. See DePuy, Inc. v. Eches, 427 So.2d 306. (Fla. 3d DCA 1983).

Our rebanee on DePuy is significant because in DePuy, in which the defendant lost a crucial part of a prosthesis inadvertently, the court affirmed the striking of defendant’s answer stating:

Whether the prosthesis was destroyed in bad faith or accidentally is irrelevant in the present case. The evidence is unavailable for the plaintiffs’ use and they have demonstrated an inability to proceed without it.

DePuy, 427 So.2d at 308.

The appropriateness of sanctions for failing to preserve evidence depends on: (1) willfulness or bad faith of the responsible party, (2) the extent of prejudice suffered by the other party, and (3) what is required to cure the prejudice. Harrell v. Maybeiry, 754 So.2d 742 (Fla. 2d DCA 2000) and cases cited. In the present case the trial court found, applying these criteria, that plaintiffs were unable to proceed without the altered or lost evidence and, indeed, Nationwide has not suggested a credible lesser sanction which could have been fair to the plaintiffs. Under these circumstances the court did not abuse its discretion, even though the destruction of evidence may have resulted from negligence rather than an intent to obstruct justice.

We have considered the other issues raised by appellant and find them to be without merit. Affirmed.

FARMER, J., and LEVIN, STEVEN, J., Associate Judge, concur.


author: NESBITT, Senior Judge.

text:
    Robert Alvarez RUDOLPH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2476.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.
    Clarification Denied Dec. 18, 2002.

      Schwartz & Wax and Barry M..Wax; Andrew M. Teschner, for appellant.
    Richard E. Doran, Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

The appellant, Robert Alvarez Rudolph, an attorney who was representing a defendant in a criminal case, appeals an order adjudicating him guilty of direct criminal contempt. We affirm.

After numerous warnings both before and during the summation of a four month criminal trial, following an objected-to remark by Rudolph, the trial court issued a verbal order to show cause for direct criminal contempt. After the trial of the underlying case, a contempt hearing was held. At that hearing it was established that prior to summation, the lower court had distributed a form order to the attorneys in the case, advising, in part:

6) Counsel shall avoid using derogatory terms when referring to the defendant, a witness, or opposing counsel and shall not make any disparaging comments about counsel’s occupation or performance in court....

Rudolph was making a summation on behalf of his client, discussing the tape-recorded evidence and testimony of a State’s witness, when he stated in part:

Power is dangerous and maybe there should be a limit to the power that attorneys have and maybe there should be a limit to the deals attorneys can make and maybe power corrupts....

The prosecutor objected and a sidebar conference was held. The court sustained the objection, observing:

... in the context of your discussions with this jury about power and things like that to help link it to being corrupt, basically is a derogatory comment on the prosecution and the lawyers in this case. At the end of this case you and I are going to have a discussion as to why you should not have to show why it is you should be held in contempt of court for violating the Court’s order.

At the trial on the show cause order, Rudolph’s motion to dismiss was denied. Ultimately, the court found him guilty, but withheld adjudication and fined him $500.00. The court stayed imposition of sentence pending appeal.

Criminal contempt may be based on an act calculated to embarrass, hinder or obstruct the trial court in the administration of justice or which is calculated to lessen the court’s authority or dignity. See Thompson v. State, 618 So.2d 781 (Fla. 5th DCA 1993). As observed in Thomas v. State, 752 So.2d 679, 684-86 (Fla. 1st DCA 2000):

Rule 3.830, Florida Rules of Criminal Procedure, does not define criminal contempt. Case law establishes that a party may be held in direct criminal contempt for the violation of an order of the court or for an act which is facially contemptuous. See Lawrence v. Lawrence, 384 So.2d 279 (Fla. 4th DCA 1980). Thus, the definition of criminal contempt is not restricted to a violation of an order per se.

Here, the trial judge had given clear warning of what was expected of counsel. Thereafter, Rudolph was warned by the trial judge that he was violating court instructions and would answer for those violations at the conclusion of the case. A trial court’s decision to sanction an attorney for trial misconduct is reviewed under an abuse of discretion standard. See Michaels v. State, 773 So.2d 1230 (Fla. 3d DCA 2000); AMs v. State, 764 So.2d 859, 860 (Fla. 3d DCA 2000); Carnival Corp. v. Beverly, 744 So.2d 489(Fla. 1st DCA 1999); see also Fla. R.Crim. P. 3.830.

Having thoroughly reviewed the transcript, we conclude that the trial judge did not abuse his discretion. While it is perfectly permissible for trial attorneys to point out perceived discrepancies in the evidence introduced at trial and opposing counsel’s characterization of the same, it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury in the process. See Owens-Coming Fiberglas Corp. v. Crane, 683 So.2d 552, 554 (Fla. 3d DCA 1996). Moreover, we find incredible the lawyer’s claim that he did not know the exact words he used were improper or would amount to a violation of the court’s instructions. As the Rules of Professional Conduct of the Florida Bar, Rule 4-8.4(d) provides: “[a] lawyer shall not ... engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against ... other lawyers on any basis.... ”

Accordingly, the order under review is affirmed.

      . The Order of Contempt held Rudolph in direct criminal contempt for "personalizing derogatory remarks to or about opposing counsel” and “discuss[ing], in front of the jury, matters that were prohibited.”

      . In its written judgment the court also held Rudolph in contempt for mentioning excluded facts.

      . See Thomas, 752 So.2d at 686, citing Gary D. Fox, Objectionable Closing Arguments: Causes and Solutions, 70 Fla. B.J. 43 (December 1996):
      Trial judges can help reduce the incidence of [problematic] closing arguments ... by including as a part of every order setting a case for trial an unambiguous statement that lawyers who try cases before them will be expected to know and follow the law of closing arguments. At case management or pretrial conferences, the trial judge should reiterate these expectations. Another reminder should be given at the charge conference, shortly before the argument is to take place. The court should encourage attorneys to seek pre-argument rulings on proposed statements or arguments which fall into the gray areas.

      .Florida Rule of Criminal Procedure 3.830 provides:
      A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.


text:
    ATLANTIC EXPRESS CORP., Appellant, v. Rudolph STAMP, Appellee.
    No. 3D01-1421.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.
    Rehearing Denied Dec. 27, 2002.

      Fowler White Burnett and June G. Hoffman and Steven E. Stark and Allan R. Kelley, Miami, for appellant.
    Huggett & Watford; Elizabeth K. Russo and Charmain Williams, Miami, for appel-lee.
    Before COPE, LEVY, and FLETCHER, JJ.
   PER CURIAM.

Appellant, Atlantic Express Corporation (Atlantic Express), appeals from an Order denying its Proffer of Evidence as to Payment of Annuity and Motion for Order Granting SeNOff. We reverse.

On June 13, 1999, Appellee Rudolph Stamp was rendered a quadriplegic in an accident while working on a vessel as a seaman for Appellant Atlantic Express. On or about June 25, 1999, Stamp brought an action against Atlantic Express asserting a Jones Act negligence claim for personal injuries, an unseaworthiness claim, and a claim for maintenance and cure. On April 5, 2001, the jury returned a $5,803,250.00 verdict in favor of Stamp, which included an award of $2.7 million for future medical, hospital, and life care expenses.

During the trial, Atlantic Express filed a Proffer of Evidence as to Payment of Annuity and Motion for Order Granting Set-Off in which it alleged that it purchased an annuity for the benefit of Stamp which would pay him $10,000.00 per month for the remainder of his life. According to the Motion, “[t]he intent of the annuity was to assure the availability of funds for Mr. Stamp’s necessary health care and comfort for the past and into the future for the remainder of his life,” and to “alleviate the concerns of Mr. Stamps [sic] family regarding the availability of necessary funds to properly provide for Mr. Stamp’s health and comfort.” Atlantic Express contended that, under the Federal collateral source rule, it was entitled to a set-off against any award for future medical care. We agree.

In evaluating whether a benefit derives from a collateral source, a court should determine whether the benefit was in the nature of a fringe benefit or whether the benefit reflects a tortfeasor’s effort to anticipate potential legal liability. See Davis v. Odeco, Inc., 18 F.3d 1237, 1244 (5th Cir.1994). The factors that a court should consider are (1) whether the employee contributes to the plan, (2) whether the benefit plan stems from a collective bargaining agreement, (3) whether the plan covers both work-related and non work-related injuries, (4) whether payments under the plan correlate with the employee’s length of service, and (5) whether the plan contains specific language requiring that benefits received under the plan be set-off against a judgment adverse to the tortfeasor. See Davis, 18 F.3d at 1244 (citations omitted). Based on the facts and the foregoing factors, we conclude that the purchase of the annuity was an effort by Atlantic Express to anticipate potential legal liability. Therefore, Atlantic Express is entitled to a set-off for the actual cost of the annuity of $540,520.00. Accordingly, we reverse and remand with directions to the trial court to grant Atlantic Express’ Motion, and to set-off $540,520.00 from the Final Judgment.

Reversed and remanded with directions.


author: POLEN, C.J.

text:
    Lanearis TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1710.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2002.
    Rehearing Denied Jan. 14, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, C.J.

We find all of Taylor’s challenges on appeal of his burglary conviction and sentence unpersuasive. However, we note his scoresheet improperly scored a theft charge of which he had been acquitted. This error was harmless as to Taylor’s sentence where the sentencing judge, who had also presided over the trial, was aware Taylor had in fact been acquitted of the theft charge, and its inclusion on the score-sheet had no affect on his guidelines sentence. Still, Taylor is entitled to have his scoresheet corrected. See Poole v. State, 777 So.2d 1186 (Fla. 5th DCA 2001). This matter is therefore remanded to the trial court so that it may remove the theft charge from Taylor’s scoresheet. This case is solely remanded for correction of the scoresheet issue. A full re-sentencing is not mandated and Taylor need not be present for this administerial matter.

REMANDED for correction.

FARMER and TAYLOR, JJ., concur.


text:
    BEACH HIGHER POWER CORP., Appellant, v. Kenneth REKANT, Appellee.
    No. 3D01-1735.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.
    Rehearing Denied Dec. 18, 2002.

      Charles L. Neustein, Miami Beach, for appellant.
    Kenneth Rekant, in proper person.
    Before SCHWARTZ, C.J., and RAMIREZ, J„ and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

In this action, Beach Higher Power Corp. (referred to herein as “BHP”), plaintiff below, appeals a summary judgment in favor of attorney, Kenneth Rekant, granted on the basis of the two year statute of limitations for professional malpractice contained in section 95.11(4)(a), Florida Statutes (2001). We reverse.

On the amended complaint and moving papers, it appears that BHP sought Re-kant’s participation in the consolidation of three notes in the amounts of $60,000, $300,000 and $150,000. Consolidation was necessary in order for BHP to secure other financing. The $60,000 note was owned Rekant’s wife, and the remaining notes were owned either by Rekant’s relatives or friends. The notes all contained a provision for the highest legal rate of interest in the event of default, which was 18%. In the $510,000 consolidated note, the same provision made the applicable rate of interest on default 25%. When the principal of BHP remonstrated because of the 25% rate, Rekant told him not to worry, and that none of the payees would ever expect more than the previously applicable default rate. The principal signed on behalf of the corporation, and some eight months later, with BHP in default, the 25% interest rate was demanded. Ultimately, BHP satisfied the obligation in full, including the 25% default interest rate.

Thereafter, BHP brought this action against Rekant alleging breach of fiduciary duty and fraud, arguing that Rekant had been acting essentially on behalf of himself and his relatives or friends. Rekant maintained that he had not been acting as BHP’s counsel during the matter at issue, but rather that he had been acting on the payees’ behalf. Rekant filed a motion for more definite statement and a determination of the applicability of section 95.11(4)(a). After a hearing on the matter, the court initially entered an order concluding that the actions alleged were not limited to the nature of malpractice and therefore the two year statute on malpractice was not applicable. Rekant filed an answer to the amended complaint still denying he acted as the attorney for BHP, and again asserting that he represented the payees of the note.

Ultimately, however, Rekant filed a stipulation wherein for the first time he alleged his representation of both BHP and the payees, in the creation of the consolidated note. BHP then filed a motion for summary judgment and motion for punitive damages asserting that Rekant had a conflict of interest, by virtue of his own stipulation. Furthermore, BHP maintained that Rekant had acted in his own pecuniary interest with regard to the transaction, and pointed to the undisputed fact that the lenders were Rekant’s friends and family.

Rekant filed a motion for summary judgment claiming benefit of the two year statute of limitations regarding professional malpractice. He attached to his motion for summary judgment a letter to a law firm participating in the underlying transactions wherein he stated:

I have suggested to Judah [Judah Burs-tyn corporate principal] that his attorney and he need to issue a statement that confirms the obligation herein is a single note in excess of $500,000, (if such is in fact the honest opinion of the attorney and Judah).

Consequently, it appears without contradiction that during most of the time at issue, Rekant maintained that he was not acting as attorney for BHP. Nonetheless, the court ultimately entered an order dismissing BHP’s amended complaint with prejudice based on the two year statute of limitations found in section 95.11(4)(a).

Plainly, under the facts of the case, attorney Rekant cannot claim the benefit of the shorter limitation period. In Mizrahi v. Valdes-Fauli, Cobb & Petrey, P.A., 671 So.2d 805 (Fla. 3d DCA 1996), the attorneys in a land sale transaction had been acting solely as escrow agents. This court concluded that the vocation of escrow agent did not qualify as a profession under the statute of limitations for professional malpractice, and thus the four-year statute of limitations, rather than the two-year professional malpractice limitations period, applied to a land purchaser’s action for fraud and breach of a fiduciary duty, brought against the escrow agents, who happened to also be attorneys.

In the instant case, after BHP filed suit, for almost two years, Rekant maintained that he had not been acting as BHP’s counsel at the time of the loan consolidation. Rekant himself admits another attorney drafted the consolidation note and acted as BHP’s counsel. Moreover, even in his ultimate stipulation, Re-kant clearly stated that when the loan documents were executed, he was representing his family’s interests.

.In sum, considering the undisputed facts before us, we can easily observe that Re-kant could not be considered BHP’s attorney for the purposes of the instant suit, and accordingly, the two year limitations period did not control. On remand, it will be for the trial judge to consider the merits of each of the claims made against Rekant, however we readily observe that an attorney can not avoid the consequences of his actions merely on the basis of his profession.

Reversed and remanded.

      . Section 95.11 provides:
      Actions other than for recovery of real property shall be commenced as follows:
      (4) Within two years.—
      (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

      . While not determinative of the matter at hand, we believe it is worth reminding lawyers that had Rekant been acting as BHP’s counsel, the facts as alleged would most likely have been considered a violation of the rules of professional conduct. See Rules Regulating Fla. Bar, rule 4-1.7. (Prohibiting a lawyer from representing a client if the representation of that client will be directly adverse to the interests of another client, unless the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client, and each client consents after consultation.)
      The rules, however, do not play into our consideration in the instant case, because the rules themselves clearly provide that they are not to be applied for the purpose of determining the existence of an attorney client relationship, or for the purpose of determining liability. The Preamble to the Rules of Professional Conduct provide in part: "for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these rules determine whether a client-lawyer relationship exists.” Also, as provided in the Preamble: "[violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.” See Lane v. Sarfati, 676 So.2d 475, 475 (Fla. 3d DCA 1996)(Gersten, J., concurring).
      Moreover, the inappropriateness of the alleged actions is also reflected in the general admonition that "one cannot serve two masters.” The Florida Bar v. Consolidated Business & Legal Forms, Inc., 386 So.2d 797, 801 (Fla.1980).

      . Rekant cites to O’Shea v. Phillips, 746 So.2d 1105, 1108 (Fla. 4th DCA 1999). In O’Shea, the Fourth District concluded that pre suit statutory requirements relevant to the rendering of medical care or services would be applicable to plaintiffs claims of negligent failure of a clinic to properly supervise its physician employee and its negligent retention of him. We find O’Shea to be wholly distinguishable from the question sub judice, and in no way in conflict with the analysis outlined herein.

      . This analysis, of course, disposes of Re-kant's cross appeal of the denial of his claim for fees under 57.105.


text:
    Joel P. HEILMANN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1873.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2002.
    Rehearing Denied Dec. 26, 2002.
    Joel P. Heilmann II, Sanderson, Pro Se.

      Richard E. Doran, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Joel P. Heilmann seeks review of the denial of his petition for writ of habeas corpus filed in the circuit court. Heilmann raises issues which were or could have been raised in the direct appeal of his conviction, and, therefore cannot be raised in a habeas corpus petition. See Teffeteller v. Dugger, 734 So.2d 1009, 1016 (Fla.1999). Additionally, the issues now asserted were raised in his two prior postconviction proceedings. Accordingly, Heilmann’s petition is successive. See Johnson v. Single-tary, 695 So.2d 263, 265-66 (Fla.1996).

AFFIRMED.

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


author: SAWAYA, J. SHARP, W., J.,

text:
    Wilton DEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1199.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2002.
    Rehearing Denied Dec. 26, 2002.
    Milton Hirseh of Hirsch & Markus, LLP, Miami, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Wilton Dedge appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion in which he sought to have his convictions and sentences vacated based on newly discovered evidence, to wit: DNA test results. We affirm without prejudice to Dedge filing a proper motion under Florida Rule of Criminal Procedure 3.853.

In 1984, Dedge was tried and convicted of burglary, two counts of sexual battery and aggravated assault. Dedge’s convictions were affirmed on appeal in Dedge v. State, 479 So.2d 882 (Fla. 5th DCA 1985). In 1997, more than ten years after his convictions were final, Dedge filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 seeking DNA testing. The trial court denied that motion as time-barred, and this court per curiam affirmed. See Dedge v. State, 723 So.2d 322 (Fla. 5th DCA 1998).

However, Dedge then filed a motion for release of evidence for DNA testing, ostensibly for the purpose of supporting Dedge’s application for executive clemency, not for the purpose of overturning his conviction. The trial court granted the motion and, when the test results were received, Dedge filed the current rule 3.850 motion, arguing that the results of the DNA tests constituted newly discovered evidence and categorically established that he was not guilty. Nonetheless, the trial court again denied the motion as time-barred, relying on Zeigler v. State, 654 So.2d 1162 (Fla.1995), in which the Florida Supreme Court held that a similar motion was time-barred and successive.

After Dedge’s DNA test results were received, but before he filed the current rule 3.850 motion, the Florida Supreme Court enacted Florida Rule of Criminal Procedure 3.853, which allows postconviction motions for DNA testing and provides that a rule 3.850 motion which is based solely on the results of court-ordered DNA testing obtained under rule 3.853 is to be treated as raising a claim of newly discovered evidence. Fla. R.Crim. P. 3.853(d)(2). Rule 3.853 supersedes Zeigler. See Amendment to Florida Rules of Criminal Procedure 3.853, 807 So.2d 633, 636 n. 1 (Fla.2001) (Anstead, J., concurring in part and dissenting in part) (noting that rule 3.853 and Chapter 2001-97, Laws of Florida, on which the rule is based, supersede the court’s earlier decision in Zeigler). Accordingly, the trial court’s reliance on Zeigler was misplaced. Furthermore, the law of the case doctrine is inapplicable in the instant case because there has been intervening legislative action and intervening decisions of higher courts since the denial of Dedge’s prior rule 3.850 motion. See, e.g., McBride v. State, 810 So.2d 1019, 1022 n. 3 (Fla. 5th DCA 2002); Dicks ex rel. Montgomery v. Jenne, 740 So.2d 576, 578 (Fla. 4th DCA 1999).

Nonetheless, as the State points out, Dedge’s motion for DNA testing did not comply with the requirements of rule 3.853 and therefore the provision extending the time limit for filing a rule 3.850 motion raising DNA test results ordered pursuant to the rule does not apply. Thus, we affirm the trial court’s denial of Dedge’s rule 3.850 motion, without prejudice to Dedge to file a rule 3.853 motion which contains the required information. See Fla. R.Crim. P. 3.853(b).

AFFIRMED WITHOUT PREJUDICE.

PALMER, J., concurs.

SHARP, W., J., concurs and concurs specially, with opinion.

SHARP, W., J.,

concurring and concurring specially.

Finally, the Legislature has provided a limited remedy for convicted persons to seek to exonerate themselves by resort to DNA evidence, section 925.11, which the courts have not done. Dedge v. State, 723 So.2d 322 (Fla. 5th DCA 1998) (Sharp, W, dissenting). See also Amendment to Florida Rules of Criminal Procedure Creating Rule 8.858, 807 So.2d 633 (Fla.2001) (An-stead, concurring in part and dissenting in part).

The legislative remedy is limited in time: a two year window from the date this statute was enacted on October 1, 2001, for persons convicted prior to the date of the statute. § 925.11(l)(b)l. A person seeking this remedy must file a timely petition with the required allegations and information. § 925.11; Rule 3.853. Compliance is essential, since at this point, arguments based on due process and fundamental fairness have not succeeded in this state.

It is also crucial that the movant strictly follow the substantive requirements of Florida Rule of Criminal Procedure 3.853. If this rule is not strictly complied with, the motion will be denied, as occurred in this case. See also Coombs v. State, 824 So.2d 958 (Fla. 3d DCA 2002); Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001) Specifically, a Rule 3.853 motion must be under oath and must include the following:

(1) a statement of the facts relied on, including a description of the physical evidence containing DNA to be tested, and, if known, the present or last known location of the evidence, and how it was originally obtained;
(2) a statement that the evidence was not previous tested for DNA, or
a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;
(3) a statement that the movant is innocent, and a statement how the DNA testing requested will exonerate the movant of the crime for which he was sentenced, or
a statement how the DNA testing will mitigate the sentence;
(4) a statement that identification of the movant is a genuinely disputed issue, and why it is an issue, or
an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.

      . Our case is clearly distinguishable from Knighten v. State, 829 So.2d 249 (Fla. 2d DCA 2002), because in Knighten, the defendant had filed a motion pursuant to rule 3.853, while in our case, Dedge has not filed a rule 3.853 motion and we are giving him leave to do so.

      . § 925.ll(l)(b)l, provides:
      Within 2 years following the date that the judgment and sentence in the case becomes final if direct appeal is taken, within 2 years following the date that the conviction is affirmed on direct appeal if a direct appeal is taken, within 2 years following the date that collateral counsel is appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case, or by October 1, 2003, whichever occurs later ....


author: HARRIS, J.

text:
    Brian K. GLASS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-111.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2002.
    Rehearing Denied Dec. 26, 2002.

      James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Lamya Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, J.

Glass was arrested when he refused to leave a drinking establishment after receiving a warning. On the way to jail, he kicked the window out of the police cruiser. He was initially charged with felony criminal mischief (having had one or more such violation previously) and trespass after warning, a misdemeanor. At this point, the circuit court had jurisdiction. However, just before trial, the State filed its fourth (and final) information charging only two misdemeanors, simple criminal mischief and trespass after warning. The circuit court, now without jurisdiction, proceeded to try Glass and he was convicted of felony criminal mischief (now not charged) and the misdemeanor trespass. Because the circuit court lacked jurisdiction based on the information which established the charges at the time of trial, we reverse.

The State claims that there was no error because the court conducted a bifurcated hearing pursuant to State v. Harbaugh, 754 So.2d 691 (Fla.2000). While Har-baugh does stand for the proposition that a bifurcated trial is necessary to try a defendant for a felony based on previous misdemeanor convictions, still the information before the court must charge such offense. Because there was no such charge before this court at the time of trial, the court lacked jurisdiction to conduct any trial, bifurcated or not.

REVERSED.

THOMPSON, C.J., and SAWAYA, J., concur.


author: THOMPSON, C.J.

text:
    D.S., Mother of S.S., S.S., S.S., etc, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D02-38.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2002.
    Rehearing Denied Dec. 26, 2002.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    James A. Sawyer, Jr., Senior Attorney, Dept, of Children and Families, Kissim-mee, for Appellee.
    Timothy A. Straus of Moyer, Straus & Patel, P.A., Altamonte Springs, for Appel-lee Father.
   THOMPSON, C.J.

D.S. the mother, appeals the trial court’s orders in this dependency case. The Department of Children and Family Services (“Department”) petitioned for an order of dependency alleging among other things that the mother neglected the children by failing to secure suitable housing. It further alleged that the father had abandoned the children. The trial court found that the children were not dependent with respect to the father, but that they were dependent with respect to the mother. The mother conceded dependency at the adjudicatory hearing, but appeals the trial court’s determination that the children had not been abandoned by the father, its order that three of the couple’s children be placed with the father in California, and its order that the mother obtain counseling.

At the adjudicatory hearing, the court heard testimony about the father’s efforts to remain in contact with the children, the mother’s apparent efforts to thwart that contact, the father’s efforts to gain employment, and the father’s (less than stellar) efforts to support the children. Based on that testimony, we conclude that the evidence supports the trial court’s determination, and that it cannot be said that as a matter of law, the father abandoned the children. See In re M.F., 770 So.2d 1189, 1192 (Fla.2000) (“A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record”).

The court properly placed the younger children with the father. Section 39.521(3)(b), Florida Statutes, requires placement with a non-offending parent in the absence of a showing that the child would be endangered thereby:

If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental or emotional health of the child.

This court held in M.M. v. Department of Children and Families, 777 So.2d 1209 (Fla. 5th DCA 2001), that the best interest standard does not apply under this section, and that in the absence of evidence of endangerment, the non-offending parent is entitled to custody. Furthermore, the trial court found it would be better if the children lived with the father than in separate locations with non-relatives.

At the disposition hearing, the mother’s counsel objected to the fact that the father provided his own “home study,” stating, “I don’t think that’s the way the statute really intends this to be done.” On appeal, the mother contends that the home study must be conducted by the Department. Even if the statute contemplates a professional home study, we think the mother, who does not contend that there is anything spurious about the home study and who had ample prior opportunity to object to the home study, waived this issue by failing to raise it until the disposition hearing. Cf., Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991).

Finally, we see no abuse of discretion in approving that part of the case plan that requires the mother to obtain counseling. The record supports the trial court’s finding that the mother’s situation was not solely a result of lack of finances.

AFFIRMED.

GRIFFIN and SAWAYA, JJ„ concur.


author: KELLY, Judge.

text:
    Tommy A. TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D99-4781.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2002.
    Rehearing Denied Dec. 24, 2002.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Tommy Tucker appeals from his conviction and sentence for burglary of a dwelling. We find merit only in Tucker’s arguments that the trial court erred in imposing certain costs on him and that the written sentence contains a scrivener’s error. Tucker preserved these sentencing errors by filing a motion under Florida Rule of Criminal Procedure 3.800(b).

First, Tucker argues that the trial court erred in imposing $601.25 in costs of prosecution because the costs were not documented. When costs of prosecution are imposed, the State must provide documentation for the costs, and the defendant must be given notice and an opportunity to be heard. Mickler v. State, 682 So.2d 607 (Fla. 2d DCA 1996). At sentencing, the prosecutor requested the costs on the record but never produced the supporting documentation at the time the costs were actually imposed. The prosecutor again failed to provide documentation at the rule 3.800(b) hearing.

The procedure employed by the State in this case does not meet the procedural requirements of section 938.27, Florida Statutes (1997) (formerly section 939.01, Florida Statutes), which states: “The burden of demonstrating the amount of costs incurred is on the state attorney.” § 938.27(6). Accordingly, we strike the costs of prosecution. On remand, the State may again seek to recover its costs of prosecution if it can produce the required documentation. Welch v. State, 724 So.2d 651 (Fla. 2d DCA 1999).

Tucker next argues that the trial court erred in ordering him to pay a $25 cost pursuant to Administrative Order 3.1. The administrative order, which the trial court attached to its order on the rule 3.800(b) motion, cites to section 939.01(8), Florida , Statutes (now numbered as 938.27(8)); however, that section does not authorize the imposition of any costs. Section 939.01(8) states: “The court may order the clerk of the court to collect and dispense cost payments in any case.” Therefore, we strike the $25 cost as unauthorized. See Williams v. State, 596 So.2d 758 (Fla. 2d DCA 1992) (striking a fee assessed pursuant to a county court administrative order because it was not specifically authorized by statute).

Finally, Tucker argues, and the State concedes, that the reference to a twenty-five-year mandatory minimum sentence in his judgment and sentence is a scrivener’s error. We agree. On remand, the trial court should enter a corrected judgment and sentence.

We affirm Tucker’s judgment and fifteen-year sentence, strike the costs of prosecution and the unauthorized administrative cost, and remand for entry of a corrected judgment and sentence.

Affirmed; remanded with instructions.

PARKER and SALCINES, JJ., Concur.


text:
    AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. BAKER COUNTY MEDICAL SERVICES, INC., Appellee.
    No. 1D01-3132.
    District Court of Appeal of Florida, First District.
    Nov. 18, 2002.

      Robert A. Butterworth, Attorney General, and Jason Vail, Assistant Attorney General, Tallahassee, for Appellant.
    John D. Buchanan, Jr., and Laura Beth Faragasso, Henry, Buchanan, Hudson, Sú-ber & Carter, P.A., Tallahassee, for Appel-lee.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellee’s Motion for Rehearing is granted. This court’s opinion dated August 6, 2002 is withdrawn and the opinion below is substituted therefor.

The Agency for Health Care Administration (AHCA) appeals an order in which the trial judge found that AHCA had breached its Medicaid provider agreement with Baker Community Medical Services, Inc. (Baker). We reverse.

Baker operates a small community hospital in Baker County. Since June 1994, Baker has had a Medicaid provider agreement, which means it is entitled to reimbursement for providing covered medical services to Medicaid-eligible individuals. As part of its operation, Baker provides emergency outpatient treatment. Some of its emergency outpatients are Medicaid-eligible enrollees of health maintenance organizations (HMOs) and managed care plans. These Medicaid HMOs are under contract with AHCA to provide Medicaid services, including emergency services, to their enrollees. Baker’s provider agreement with AHCA provides that Baker agrees to accept Medicaid reimbursement as full payment for emergency outpatient services. The Medicaid HMOs, however, reimburse Baker for emergency outpatient services provided to Medicaid HMO enroll-ees pursuant to the provisions of sections 409.9128(5) and 641.513(6), Florida Statutes.

In November of 1999, Baker filed an action in circuit court against AHCA. The crux of the issue before the trial court was the manner in which the Medicaid HMOs reimburse Baker for emergency outpatient services provided to the HMO enrollees. Baker alleged in its complaint that the Medicaid HMOs reimburse Baker on a line item by line item basis, causing Baker to sustain non-recoverable losses in emergency room revenues. Baker argued that it is only when AHCA allows the HMOs to create a hybrid reimbursement rate by picking apart each claim on a line item by line item basis that the mandated Medicaid rate is not paid to Baker. Baker argued that the statutory reimbursement options must be applied on a per claim basis rather than a line item basis. Baker sought declaratory and injunctive relief, alleging that the operation of sections 409.9128(5) and 641.513(6) constituted a taking, an impairment of contract, a violation of its rights to equal protection, a deviation from federal laws governing Medicaid reimbursement, and a breach of contract. Baker asserted a right to be paid, as the Medicaid provider under its Medicaid provider agreement, its “Medicaid rate” for all services provided to Medicaid-eligible en-rollees of Medicaid HMOs as outpatients in its emergency room.

The trial judge found in favor of Baker on the question of liability. In his written order, the trial judge found:

1. [AHCA] has breached [Baker’s] Medicaid provider agreement by failing to pay [Baker] its full Medicaid outpatient rate for emergency treatment provided to enrollees of managed care plans and health maintenance organizations with whom the defendant contracts to provide Medicaid-funded services to qualified, eligible enrollees.
2. Based on this breach of the agreement, the plaintiff is entitled to damages.

The trial judge made no findings on the amount of damages. Instead, because the parties agreed to the procedure, the trial judge ordered the parties to mediate the damages issue, which they did, agreeing on a figure of $38,915.07. Based on that stipulation, the trial judge entered final judgment for Baker.

We find nothing in the statute or rules that indicates that the interpretation of relevant statutes and rules by AHCA is incorrect or unreasonable. The Florida Legislature has directed AHCA to purchase health care goods and services for Medicaid recipients in the most cost-effective manner consistent with the delivery of quality medical care and has encouraged AHCA to develop HMO and prepaid health plans to provide care to Medicaid recipients. § 409.9122(8)(a), Fla. Stat. (2001). The Legislature has directed that contracts with Medicaid HMOs be paid in a “fixed, prepaid amount negotiated, or competitively bid pursuant to s. 287.057, by the agency and prospectively paid to the provider monthly for each Medicaid recipient enrolled.” § 409.908(4), Fla. Stat. (2001).

When Medicaid services are provided through a contract with an HMO, federal law requires emergency care coverage. States, however, are given the option of paying for such services or requiring the HMO to cover them. 42 U.S.C. § 1396b(m)(2)(A)(vii). Florida has opted to require the HMO to provide emergency services. § 409.9128, Fla. Stat. (2001); Fla. Admin. Code R. 59G-8.100(15)(a). When a state requires an HMO to provide emergency care as a cover service, federal law prohibits the state from paying another provider for services that are supposed to be provided by a Medicaid HMO. 42 C.F.R. § 484.57.

Medicaid HMOs are clearly denominated as Medicaid providers. §§ 409.901(16); 409.907; 409.912, Fla. • Stat. (2001). Florida Administrative Code Rule 59G-8.100(18)(a), provides that the fee paid by AHCA for each Medicaid recipient enrolled in a Medicaid HMO “constitutes payment in full by the Agency on behalf of an enrollee for all covered services provided to an enrollee.” The deter-

mination by AHCA that Baker is not the Medicaid provider for enrollees of a Medicaid HMO appears to be a reasonable interpretation of the applicable statutes and rules. Accordingly, the trial judge erred in concluding that AHCA breached the Medicaid provider agreement by not ensuring that Baker received its “Medicaid rate” for emergency outpatient services provided to Medicaid HMO enrollees. See, e.g., Doyle v. Dep’t of Bus. Reg., 794 So.2d 686 (Fla. 1st DCA 2001). The order on appeal is REVERSED.

ERVIN, BARFIELD, and VAN. NORTWICK, JJ., CONCUR.

      . Section 409.9128(5), Florida Statutes, provides:
      Reimbursement for services provided to an enrollee of a managed care plan under this section by a provider who does not have a contract with the managed care plan shall be the lesser of:
      (a) The provider's charges;
      (b) The usual and customary provider charges for similar services in the community where the services were provided;
      (c) The charge mutually agreed to by the entity and the provider within 60 days after submittal of the claim; or
      (d)The Medicaid rate.
      Section 641.513(6), Florida Statutes, provides:
      Reimbursement for services under this section provided to subscribers who are Medicaid recipients by a provider for whom no contract exists between the provider and the health maintenance organization shall be the lesser of:
      (a) The provider's charges;
      (b) The usual and customary provider charges for similar services in the community where the services were provided;

        (c) The charge mutually agreed to by the entity and the provider within 60 days after submittal of the claim; or
      (d) The Medicaid rate.
      Although these two statutory provisions were enacted in 1996, subsequent to the date the Medicaid agreement was entered into by Baker and AHCA, Baker does not dispute that these provisions are applicable based on the provision in the agreement that Baker “agrees to comply with the rules, policies, and procedures required by the agency for this program.” Baker does not have any contracts with any Medicaid HMOs to treat en-rollees receiving services in its emergency room.

      . The following hypothetical example was provided by Baker in its Answer Brief:
      $ 50 50 50 50 MRI X-Ray Bandages Medicines $1,175 $200 $150 Line Item Hospital Medicaid HMO Services Charges Reimbursement Rate Payment 4s. m üi üi O O O O S tO 2 ^ CO <N

      . All individuals who present at a hospital’s emergency room must be screened for emergency medical conditions and either stabilized or transferred to another medical facility in the event the determination is made that an emergency condition exists. 42 U.S.C. § 1395dd(a); § 395.1041, Fla. Stat. (2001). Accordingly, Baker does not have the option of refusing to provide emergency services to enrollees of Medicaid HMOs.


text:
    Steven A. COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2239.
    District Court of Appeal of Florida, First District.
    Nov. 18, 2002.
    Rehearing Denied Dec. 20, 2002.
    Appellant, pro se.
    Robert A. Butterworth, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order denying his motion for post-conviction relief. For the reasons that follow, we treat his motion as one pursuant to Florida Rule of Criminal Procedure 3.800(a), and reverse for further proceedings.

This is the second time that appellant has been before this court seeking relief from an order denying post-conviction relief. On the prior occasion, appellant had filed a claim asserting entitlement to relief pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). The trial court held that appellant was not entitled to relief because he was sentenced pursuant to negotiated pleas. This court affirmed without opinion. Collier v. State, 795 So.2d 61 (Fla. 1st DCA 2001) (table).

In the motion which was the subject of the order now before us, appellant recited that history, and then asserted that his concurrent sentences of 14 years in prison to be followed by 5 years probation for offenses which were all second and third degree felonies were illegal because they exceeded the statutory máximums for those offenses. The trial court treated the motion as one pursuant to Florida Rule of Criminal Procedure 3.850, and denied it as untimely and successive. Treating the motion as one pursuant to rule 3.800(a), however, it is neither untimely nor successive. Accordingly, we reverse and remand. On remand, the trial court is directed to determine whether the record reflects that appellant is entitled to relief because his sentences, imposed pursuant to negotiated pleas, exceed the statutory máximums. Should it conclude that it does not, it may again deny the motion, attaching relevant portions of the record to its order. Should it conclude that appellant is entitled to relief on his claim, it shall vacate the offending sentences and impose new, legal, sentences.

REVERSED and REMANDED, with directions.

WEBSTER, DAVIS and VAN NORTWICK, JJ., CONCUR.