author: POLEN, J.

text:
    Joseph Timothy SWARTZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3612.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This case arises out of the arrest of Joseph Timothy Swartz for possession of narcotics, after a tip by a citizen informant concerning a possible burglary. We reverse the denial of Swartz’s motion to suppress.

On January 31, 2002, the Palm Beach County Sheriffs Office received a telephone tip that reported a man jumped over a fence and handed items over to a woman on the other side of the fence, who then placed the items into a car. The informant was a neighbor who believed a burglary was taking place.

Shortly thereafter, Officer Murray arrived and observed a woman in a car, both of which matched the description in the dispatcher’s report. Upon the woman’s failure to give a reasonable explanation, Murray handcuffed the woman. Without a warrant or further corroboration, Murray proceeded to jump over the fence, draw his revolver, and search the residence. Murray found Swartz toward the rear of the property, with his hands under the hood of a truck. Murray immediately ordered Swartz to the ground at gunpoint. Swartz explained, to no avail, that this was his mother’s home. Swartz was then handcuffed and placed under arrest. When Swartz was patted down, a prescription bottle containing Valium and Oxycodone was seized. After the seizure Murray finally attempted to contact the owner of the house, who verified Swartz’s story.

Swartz moved to suppress the contraband seized. Since the State specifically abandoned any reliance on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to justify the search as a temporary detention and prophylactic weapons search, premised upon a reasonably articulated or founded suspicion, the State had to argue the search was incident to a lawful arrest. The trial court denied Swartz’s motion ruling that Murray had probable cause to arrest Swartz.

The issue of whether probable cause exists is a mixed question of law and fact and is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Melendez v. Sheriff of Palm Beach County, 743 So.2d 1145 (Fla. 4th DCA 1999). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the U.S. Supreme Court adopted a “totality of the circumstances” test for determining probable cause. “Probable cause to arrest exists only when the totality of the circumstances more likely than not points to the commission of a crime.” Bellamy v. State 696 So.2d 1218, 1220 (Fla. 2d DCA 1997) (citing Doney v. State, 648 So.2d 799, 800 (Fla. 4th DCA 1994)).

Independent evidence of criminal activity on the part of the suspect is a prerequisite before a tip can justify probable cause for an arrest. While a reliable tip can form the basis for probable cause, if it is sufficiently detailed and independently verified by a law enforcement officer using evidence other than the tip itself, the tip is insufficient to validate an arrest where there is no evidence which supports the tipster’s allegation that the suspect was committing the crime of which he was accused. See Holmes v. State, 549 So.2d 1119 (Fla. 1st DCA 1989); State v. K.V., 821 So.2d 1127 (Fla. 4th DCA 2002) (holding investigatory stop ripened into probable cause to support arrest when officer relied on tip and acquired additional information justifying arrest). Moreover, in Cunningham v. State, 591 So.2d 1058, 1060 (Fla. 2d DCA 1991), the second district held

[i]t is abundantly clear from an analysis of all the cases that even after an anonymous tip is sufficiently corroborated to warrant an investigative stop, a search or an arrest of a person so detained is not authorized absent the discovery of evidence sufficient to establish in the mind of the detaining officer probable cause to believe that the detainee is engaged in criminal activity or that there are outstanding warrants for the arrest of the detainee.

In the case sub judice, Murray’s knowledge and observations provided a basis for an investigatory stop, but did not meet the standard for probable cause for an arrest. A man working underneath the hood of a truck is not inherently criminal. Furthermore, as soon as Swartz became aware of Murray’s presence, he informed Murray that the house belonged to his mother and that he was allowed to be there. This should have allayed any would-be suspicions at least until such a claim could be verified. The tip alone justified a detention only long enough to investigate, by verifying as correct, the tip’s allegation of burglary, any suspicions of the commission of any other crime, and/or Swartz’s story. Instead, Murray arrested Swartz, and then proceeded to later verify Swartz’s story, which ultimately turned out to be truthful.

“Facts constituting probable cause need not meet the standard of conclusiveness and probability required to support a conviction.” Seago v. State, 768 So.2d 498, 500 (Fla. 2d DCA 2000). Notwithstanding, to legally justify an arrest, there must have been some facts known to Murray prior to the arrest and search, that established some probability that Swartz had committed or was committing a crime while in his mother’s backyard and/or that he did not have his mother’s permission to be there. Swartz’s conduct may have given rise to a reasonable suspicion, but probable cause requires more than a mere reasonable suspicion. We conclude the record does not set forth a sufficient basis to reasonably conclude that based upon Murray’s observations, there was probable cause to believe Swartz had committed or was committing a crime. Since there was no probable cause, the search which produced the contraband was not incident to a lawful arrest. Consequently, we reverse the order of the trial court and remand the case, instructing the trial court to grant Swartz’s motion to suppress.

REVERSED AND REMANDED.

KLEIN and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brenda NESTOR, as Personal Representative of the Estate of Victor Posner, and Security Management Corporation, Petitioners, v. Kelly POSNER-GERSTENHABER, Jarrett Posner, Sean Posner, and Troy Posner, Respondents.
    Nos. 3D02-3094, 3D02-3096.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.

      Ferrell, Schultz, Carter, Zumpano & Fertel and Gregory C. Harrell, Eugene Lindsey, and Joseph Beeler, Miami; Kirkland & Ellis and Andrew B. Clubok and Stacey L. Bennett; Rumberger, Kirk & Caldwell and Joshua D. Lerner, for petitioners.
    Hunton & Williams and Eduardo W. Gonzalez, Marty Steinberg, Thomas R. Ju-lin, and Patricia Acosta, Miami, for respondents.
    Before FLETCHER, RAMIREZ, and WELLS, JJ.
   ON MOTION FOR CLARIFICATION AND CORRECTION

PER CURIAM.

We grant Brenda Nestor’s motion for clarification and correction. The opinion issued on August 13, 2003, is hereby withdrawn, and the following opinion is substituted in its place.

In this consolidated petition, Security Management Corp. (“SMC”) and Brenda Nestor, as personal representative of Victor Posner’s estate, seek a writ of certiora-ri to quash an order of the trial court which declares a confidentiality agreement between Posner and Jeffrey Breen to be null and void. The petition is denied.

Victor Posner died in 2002. Several months prior to Posner’s death, Nestor had all Posner employees sign confidentiality agreements which bar the disclosure of any information regarding Posner’s “private life, plans, businesses, finances, assets, liabilities, income, expenses and expenditures, legal matters, visitors, acquaintances, meetings, activities, state of mind, health or health care ... except to the extent required by law.” All applicable privileges belonged to Posner personally, even if the employee was employed by a related company and not Posner himself. The agreement also required employees to exert all applicable privileges and, if requested to divulge confidential information, employees were to immediately notify Posner or Posner’s attorney.

Nestor is involved in a will contest with Posner’s grandchildren, the respondents to this petition. Breen is a witness to the contested will. The grandchildren contacted Breen in order to ascertain Posner’s testamentary capacity at the time he signed the will and to determine whether the will was the result of undue influence by Nestor. Nestor arranged for Breen to meet with the grandchildren and had the meeting secretly taped. SMC then brought suit against the grandchildren for tortious interference with Breen’s confidentiality agreement.

The grandchildren moved to have the confidentiality agreements nullified so they can conduct informal discovery interviews with Breen and other Posner employees. The trial court nullified the agreement as to Breen to the extent that it bars appropriate witness interviews, but not as to any others.

Although the trial court allowed SMC to intervene as a third party beneficiary, the confidentiality agreement does not protect SMC, only “Posner and key persons in his related companies (including Melvin Colvin, Brenda Nestor, and Pos-ner’s medical personnel, accountants, attorneys, and private investigators).” SMC is therefore not a third-party beneficiary to the agreement between Posner and Breen and lacks standing to contest its validity.

Neither can Nestor, as personal representative, enforce the agreement against Breen for disclosing information about Posner because Posner’s privilege did not survive his death. Privacy rights are personal and die with the individual. See Williams v. City of Minneola, 575 So.2d 683, 689 (Fla. 5th DCA 1991), citing to Restatement (Second) of Torts § 6521 (“Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.”). Although the agreement survives the employee’s employment, there is no provision that requires confidentiality after Posner’s death.

Even if the petitioners have standing, Breen may still disclose information to the extent required by law, as stated in the agreement. The petitioners agree that Breen can disclose the information the grandchildren seek, but urge that Breen only be allowed to disclose information at a formal deposition or at trial. Contractual confidentiality agreements, however, cannot be used to adversely interfere with the ability of nonparties to pursue discovery in support of their case. See Smith v. TIB Bank of the Keys, 687 So.2d 895, 896 (Fla. 3d DCA 1997); Scott v. Nelson, 697 So.2d 1300, 1301 (Fla. 1st DCA 1997) (“[S]ettlement agreements which suppress evidence violate the greater public policy.”). Informal ex parte interviews with former employees are allowed, see H.B.A. Mgmt., Inc. v. Estate of Schwartz, 693 So.2d 541, 544-45 (Fla.1997), and ex parte interviews with current employees may be allowed as well. See NAACP v. Florida Dept. Of Corrections, 122 F.Supp.2d 1335, 1341 (M.D.Fla.2000). We thus find no need to make the grandchildren jump through legal hoops to obtain information the petitioners agree may be disclosed.

The trial court based its ruling in part on Florida Rule of Civil Procedure 1.010 which states that “[t]hese rules shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” The petitioners seek a ruling which effectively would force the grandchildren to undergo unnecessary and costly discovery procedures, contrary to the goals that underlie rule 1.010. Because the trial court has broad discretion in discovery matters, see Dickinson v. Wells, 454 So.2d 758, 759 (Fla. 1st DCA 1984), and there has been no clear departure from the essential requirements of law which results in a miscarriage of justice, we deny certiorari review.


text:
    William RINDERER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2450.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      William Rinderer, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the trial court’s summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure Rule 3.800(a). In his motion, he requested the court to conform the written sentencing order to its oral pronouncement of sentence. To his motion, he attached a transcript of his sentencing hearing that revealed that the court did not orally impose a mandatory minimum term. The trial court denied the motion. We reverse and remand.

We agree that a claimed discrepancy between a written sentencing order and the court’s oral pronouncement of sentence is not cognizable in a rule 3.800(a) motion. It must be alleged in a timely motion under Florida Rule of Criminal Procedure 3.850. See Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998) citing Gardner v. State, 707 So.2d 945 (Fla. 4th DCA 1998). However, the instant motion was sworn and filed within two years of the mandate’s issuance in the direct appeal and thus complied with the requirements of rule 3.850.

The general rule is that when there is a discrepancy between the written sentence and the oral pronouncement, the oral pronouncement prevails. See, e.g., Broomfield v. State, 698 So.2d 932 (Fla. 4th DCA 1997). The State argues that there was no discrepancy between the oral pronouncement of sentence and the 'written sentencing order because the trial court orally pronounced the defendant’s sentence as a habitual violent felony offender. However, a defendant’s status as a habitual violent felony offender does not necessarily carry with it the imposition of a mandatory minimum sentence.

The trial court’s discretion to sentence a defendant as a habitual violent felony offender extends to its decision on whether to impose a mandatory minimum term. See State v. Hudson, 698 So.2d 831 (Fla.1997). Therefore, the court’s pronouncement of his sentence did not automatically indicate the imposition of a mandatory minimum term.

The defendant’s claim, although improperly labeled as a 3.800 motion, was facially sufficient and cognizable under rule 3.850. The trial court had the discretion to consider it under that rule. DeSantis v. State, 400 So.2d 525 (Fla. 5th DCA 1981). Accordingly, we reverse the order of denial and remand the case for further consideration of the motion as if filed pursuant to rule 3.850.

REVERSED and REMANDED.

WARNER, STEVENSON and MAY, JJ., concur.


author: GROSS, J.

text:
    Lanier DAVENPORT, Jerry Giles, Gary Giles and Terry Giles, Appellants, v. Peter DIMITRIJEVIC and Reels & Deals Games, Inc., Appellees.
    No. 4D02-4953.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      Jennifer G. Altman of Boies, Schiller & Flexner LLP, Miami, for appellants.
    Jesse C. Jones of Jesse C. Jones, P.A., Miami, for appellee Peter Dimitrijevic.
   GROSS, J.

This is an appeal of an order denying a motion brought under Florida Rule of Civil Procedure 1.540(b)(3) to set aside a final judgment confirming an arbitration award. We affirm, because we hold that the affidavit filed in support of the motion failed to justify the vacation of the arbitration award.

Appellee, Peter Dimitrijevic, was married to Emma Jane Giles. Emma Jane is the sister of appellants Jerry, Gary, and Terry Giles. Dimitrijevic, the Giles brothers, and appellant Lanier Davenport, were all shareholders of Reels & Deals Games, Inc., a company that developed games for placement in stores, bars, and casino rooms in Texas.

During her marriage, Emma Jane told her brothers that Dimitrijevic had a drinking problem and had hit her on more than one occasion. As a result of these claims, the appellants noticed a meeting at which they planned to relieve Dimitrijevic of his corporate responsibilities and, ultimately, to remove him as a shareholder.

Dimitrijevic responded with a lawsuit. The trial court ordered all claims to be arbitrated.

In arbitration, Dimitrijevic filed a three-count statement of claim. One of the counts against Emma Jane and the Giles brothers was for defamation. The basis of the defamation claim was statements the Giles brothers made to customers and potential customers of Reels & Deals accusing Dimitrijevic of substance abuse and domestic violence on Emma Jane. The other counts alleged breaches of contract and fiduciary duties.

Dimitrijevic contended that the Giles brothers had a “disproportionate and ju-ried response to a minor altercation” between him and his wife. In June 2000, Emma Jane and Dimitrijevic were divorced. In the final decree, Emma Jane received one-half of her husband’s stock in the corporation.

At the arbitration hearing, Dimitrijevic testified that he had never had a drinking or substance abuse problem, and that he had never been treated for alcoholism. He denied ever beating his wife, admitting only that he had slapped her, after she slapped him first, in 1999.

After the hearing, the arbitration panel found that the Giles brothers had breached their fiduciary duty to Dimitrijevic by, in ter alia, defaming him. Rejecting Emma Jane’s testimony to the contrary, the panel found that there was “no competent evidence” to support the claim that Dimitri-jevic had a drinking problem and that “none of the other Directors of Reels & Deals conducted any type of due diligence investigation to determine the sufficiency of such ‘excessive drinking’ charges made by one person only, Emma Jane” Giles. The panel determined

that the clear and convincing evidence establishes that Emma Jane [Giles], Jerry Giles, Terry Giles and Gary Giles defamed Peter Dimitrijevic by stating that he had a serious drinking problem and had violent tendencies, and by implying that he was therefore dangerous and unreliable in the performance of his job duties.

The panel concluded that the corporation “never received any complaints that Peter Dimitrijevic was drinking on his job” and that “[h]e always fulfilled all of his duties and functions competently.” The panel awarded a total of approximately $995,000.00 on Dimitrijevic’s three claims.

The circuit court confirmed the arbitration award in a final judgment entered on May 1, 2002.

On October 21, 2002, the Giles brothers and other defendants moved to set aside the judgment and vacate the arbitrator’s award on the ground of fraud. They alleged that Dimitrijevic had committed perjury when he testified before the arbitration board that he was not violent and did not have a drinking problem.

In support of their motion, they offered an affidavit of Misty Thompson, who had been Dimitrijevic’s girlfriend. The girlfriend contacted Jerry Giles on September 23, 2002, shortly after her relationship with Dimitrijevic had ended.

Thompson’s affidavit indicated that she had been in a three-year relationship with Dimitrijevic. The affidavit stated in pertinent part:

3. During the course of my relationship with Pete Dimitrijevic, I was subject, on multiple occasions, to physical violence at the hands of Pete Dimitrijevic. Pete Dimitrijevic, on a regular basis, abused alcohol and illegal substances including cocaine and marijuana. Often times Pete Dimitrijevic drinks a 12 pack or two of Corona on a daily basis along with Courvoisier, cocaine and marijuana.
4. [Approximately eight months after the panel rendered its arbitration award], Pete Dimitrijevic was arrested for domestic violence while we were in New Orleans, staying at the Astoria Crown Plaza Hotel. Pete Dimitrijevic had been drinking heavily and approached me later while laying in bed. He grabbed me with both hands and began choking me, forcing me to defend myself against him. The police were called and [a] report was filled out.
5. [Approximately nine months after the panel rendered its arbitration award], I was driving in my car with Pete Dimitrijevic in Pasadena, Texas, when he reached over and grabbed me by the hair with both hands. I was forced to defend myself. The police were called and a report was filled out (# 2002-58963).
6. Only months earlier, in June of 2001, the Clear Lakes Forest Clinic in Taylor Lake, Texas, was forced to call the police because of Pete Dimitrijevic’s [sic] violent and erratic behavior. The incident resulted from certain medical treatment received by Pete Dimitrijevic’s cat, which caused him to threaten verbally and physically the employees of the clinic. The police were call[ed].

The Giles brothers argued that the affidavit established that Dimitrijevie had perpetrated a fraud on the arbitration panel when he testified that he did not have an alcohol problem and that he was not a violent person. The trial court denied the motion without an evidentiary hearing.

We affirm, because the affidavit was insufficient to trigger an evidentiary hearing on whether Dimitrijevie perjured himself during his September and October 2001 testimony before the arbitration panel.

Florida Rule of Civil Procedure 1.540(b)(3) provides that a court may relieve a party from a final judgment for the reason of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Here, the Giles brothers’ rule 1.540(b)(3) motion sought to set aside a judgment confirming an arbitration award; the motion is therefore confined by the rules governing arbitrations.

“Review of arbitration proceedings is extremely limited.” Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. 4th DCA 1997). “A high degree of conclusiveness attaches to an arbitration award because the parties themselves have chosen to go this route in order to avoid the expense and delay of litigation.” Affiliated Mktg., Inc. v. Dyco Chems. & Coatings, Inc., 340 So.2d 1240, 1242 (Fla. 2d DCA 1976).

A court may not set aside an arbitration award except upon those grounds set forth in section 682.13(1), Florida Statutes (2002). See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989); Boyhan, 693 So.2d at 662. Section 682.13(l)(a) provides that a court “shall vacate” an arbitration award if “[t]he award was procured by corruption, fraud[,] or other undue means.”

In this case, the Giles brothers were entitled to relief only if . the fraud they alleged was sufficient to set aside the arbitration award under section 682.13(l)(a). If Misty Thompson’s supporting affidavit set forth “facially sufficient grounds” for such relief, only then were the Giles brothers entitled to a hearing on their rule 1.540(b)(3) motion. See World Inv. Corp. v. Breen, 684 So.2d 221, 222 (Fla. 4th DCA 1996); see also Seal v. Brown, 801 So.2d 993, 994-95 (Fla. 1st DCA 2001); Estate of Willis v. Gaffney, 677 So.2d 949, 951 (Fla. 2d DCA 1996).

Section 682.13(l)(a) contains language almost identical to 9 U.S.C. § 10(a)(1) (2002). This court may therefore look to federal law to interpret section 682.13(l)(a). A party who alleges that an arbitration award was procured “by corruption, fraud[,] or other undue means” must (1) establish the fraud by clear and convincing evidence and demonstrate that the fraud (2) was not discoverable by the exercise of due diligence before or during the arbitration hearing and (3) was materially related to an issue in the arbitration. See, e.g., Int'l Bhd. of Teamsters, Local 519 v. United Parcel Serv., Inc., 335 F.3d 497, 503 (6th Cir.2003); Gingiss Int’l, Inc. v. Bormet, 58 F.3d 328, 333 (7th Cir.1995); Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir.1988).

The Giles brothers’ attack on the arbitration award failed on two of these grounds.

First, whether Dimitrijevic was a spouse abuser with an alcohol problem was central to the defamation claim. All parties were aware of Dimitrijevic’s denials. At the arbitration, the Giles brothers offered only one witness, Emma Jane, to counter Dimitrijevic’s testimony. The arbitrators rejected her version of the facts.

Testimony about these issues was available from anyone who knew Dimitrijevic at the time of the arbitration. Thompson was his girlfriend of three years. Neither in their motion nor in the supporting affidavit did appellants demonstrate that Thompson or other witnesses with similar knowledge were not “discoverable by due diligence” before the arbitration hearing.

As the second circuit has written, since a claim of fraud through perjury “necessarily raises issues of credibility which have already been before the arbitrators once, the party relying on it must first show that he could not have discovered it during the arbitration, else he should have invoked it as a defense at that time.” Karppinen v. Karl Kiefer Mach. Co., 187 F.2d 32, 35 (2d Cir.1951).

A claim of fraud under section 682.13(l)(a) is not an opportunity to obtain a second bite of the apple to correct a party’s deficiencies of proof at an arbitration. See Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310, 313 (7th Cir.1981) (stating that “[9 U.S.C. § 10(a)(1) ] does not allow vacation of an award for new evidence.”).

A litigant’s failure to prove a case in arbitration cannot be absolved by the discovery of evidence that could have been uncovered in time for the original hearing. This is the point of Bridgeport Rolling Mills Co. v. Brown, 314 F.2d 885 (2d Cir.1963), which involved an arbitrator’s award to reinstate an employee with back pay. The employee had been “discharged under suspicion of complicity in the theft of materials” from his employer’s plant. Id. The arbitrator found that the employer’s evidence offered against the employee “in the arbitration proceeding consisted of ‘mere rumor and gossip.’ ” Id. Alleging that the employee’s testimony at the arbitration hearing had been perjurious, the employer moved to vacate the award claiming that evidence uncovered after the arbitration conclusively established the employee’s complicity in the thefts.

The second circuit affirmed the district court’s denial of the employer’s motion to vacate; it wrote that the employee’s guilt, if proved after the arbitration, “does not require the conclusion that the arbitrator’s award, when made, was procured by fraud, for the decision of the arbitrator was based upon the failure of the employer’s proof to convince rather than on the strength of [the employee’s] alleged perjurious testimony.” Id. at 886.

The second failure of the Giles brothers’ motion involves the nature of the proof offered to demonstrate fraud.

Perjury constitutes fraud within the meaning of section 682.13(l)(a) and 9 U.S.C. § 10(a)(1). See Bonar, 835 F.2d at 1383 n. 7; Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir.1982). In cases finding a sufficient claim of such fraud, the “clear and convincing” evidence offered by the party attacking the arbitration award either involved directly contrary statements by the purported perjurer or rehable evidence of perjury from an unbiased source.

Thus, in Bonar, an expert witness testified to having certain degrees and credentials; the contrary evidence supporting a section 10(a)(1) motion were letters from “relevant university officials” and an insurance company that stated that the expert did not have the degrees or credentials he claimed. 835 F.2d at 1384. In Dogherra, a witness, admitted that his statement to union investigators was a lie. 679 F.2d at 1295. In International Brotherhood of Teamsters, a key witness recanted his testimony to the arbitrator that a fellow employee had physically assaulted him. 335 F.3d at 502.

Thompson’s affidavit did not provide this quality of evidence of Dimitrijevic’s perjury. Thompson was simply another witness who disagreed with Dimitrijevic’s opinion about his use of alcohol and propensity for spouse abuse. Her affidavit did not directly undermine Dimitrijevic’s testimony.

The three incidents specifically described in the affidavit occurred months after the arbitration hearing. The Giles brothers did not offer Dimitrijevic’s prior inconsistent statements about a material matter in the arbitration. Cf. Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239-40 (Fla. 4th DCA 1996) (rule 1.540(b)(3) case where witness gave testimony in federal court that was directly contrary to his testimony in state lawsuit). As a very recent ex-girlfriend, Thompson was hardly an unbiased source. Thompson’s new evidence did not conclusively disprove Dimitrijevic’s testimony. Rather, the “new” evidence was the type that the arbitrators would have weighed in determining credibility. Failure to consider credibility evidence is not a ground for vacation of an arbitration award. See Liang, 653 F.2d at 313.

Because Thompson’s affidavit did not clearly and concisely set out a case for fraud under section 682.13(l)(a), an evidentiary hearing was not required on the rule 1.540(b)(3) motion. Discussing a rule 1.540(b)(3) motion not involving a judgment confirming an arbitration award, we explained in Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994) that

[u]nder Florida Rule of Civil Procedure 1.540(b)(3), a court may relieve a party from a final judgment for fraud. Florida Rule of Civil Procedure 1.120(b) requires that the circumstances constituting fraud “be stated with such particularity as the circumstances may permit.” This means that a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions. To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud. In addition to specifying the fraud, the motion should explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.
... If a motion on its face does not set forth a basis for relief, then an eviden-tiary hearing is unnecessary. The time and expense of needless litigation are avoided and the policy of preserving the finality of judgments is enhanced.

(Citations omitted).

To set aside an arbitration award, section 682.13(l)(a) requires an even stronger showing of fraud than rule 1.540(b)(3). Because appellants failed to make such a showing, we affirm the trial court’s denial of relief.

AFFIRMED.

GUNTHER and KLEIN, JJ., concur.

      . This paragraph is ambiguous. The reference to "months earlier,” when read after paragraph 5 of the affidavit, leads to the con-elusion that the incident described occurred in June 2002, and that "2001” is a typographical error.

      . 9 U.S.C. § 10(a)(1) provides that a United States district court "may make an order” vacating an arbitration award "where the award was procured by corruption, fraud, or undue means.”


text:
    Dywayne Tony WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-197.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.

      Appellant pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court failed to attach portions of the record conclusively refuting appellant’s claim, we reverse.

Pursuant to a negotiated plea agreement, appellant pled guilty to two felonies and was sentenced to consecutive 10-year terms of imprisonment as an habitual violent felony offender (HVFO) on February 15, 1991. On December 21, 2000, the underlying predicate offense, a 1984 robbery conviction, was vacated by a Maryland court. Relying on the Maryland court’s opinion and order, appellant filed a rule 3.800(a) motion alleging that his sentence is illegal because the underlying predicate offense had been vacated.

If a defendant’s prior offenses do not qualify him as an habitual offender, an habitual offender sentence is illegal. Lee v. State, 731 So.2d 71, 73 (Fla. 2d DCA 1999). The fact that appellant entered into a negotiated plea agreement does not bar him from challenging the legality of his HVFO sentence. Lee, 731 So.2d at 73; Brown v. State, 609 So.2d 730, 732 (Fla. 1st DCA 1992).

A rule 3.800(a) motion may be an appropriate vehicle by which to challenge an HVFO sentence. Bover v. State, 797 So.2d 1246, 1251 (Fla.2001). However, appellant relies on extra-record facts. Therefore, the trial court should have treated his motion as a rule 3.850 motion. See, e.g., State v. Finelli, 780 So.2d 31 (Fla.2001) (indicating that a defendant may challenge an habitual offender sentence by a rule 3.850 motion if the predicate conviction is later reversed on appeal); Bozarth v. State, 789 So.2d 419, 420 (Fla. 2d DCA 2001) (holding that a rule 3.850 motion is the proper means by which to challenge an illegal sentence when the appellant relies on extra-record facts); Hall v. State, 643 So.2d 635, 636 (Fla. 1st DCA 1994) (holding that the courts have authority to treat a rule 3.800(a) motion as a rule 3.850 motion if it would be in the interest of justice to do so).

Although appellant’s motion was filed after the two-year period for filing a rule 3.850 motion had run, it raises a claim based on newly discovered facts, which is excepted from the two-year rule. See Fla. R.Crim. P. 3.850(b). To raise such a claim, the facts must have been (1) unknown by the defendant or his counsel at the time of sentencing, and (2) not discoverable by the defendant or his counsel by the use of due diligence. Rivera v. State, 717 So.2d 477, 483 (Fla.1998). Here, appellant was sentenced as an HVFO on February 15, 1991. The qualifying predicate conviction was not vacated by a Maryland court until December 21, 2000. Therefore, the Maryland court opinion and order are clearly newly discovered facts.

The trial court denied appellant’s claim as successive. However, the record establishes that this claim has never been decided on its merits. Thus, the claim is neither successive nor barred by the law of the case doctrine. See State v. McBride, 848 So.2d 287 (Fla.2003); Zeigler v. State, 632 So.2d 48, 51 (Fla.1993); Fla. R.Crim. P. 3.850(b); see also Nicewonder v. State, 698 So.2d 376 (Fla. 1st DCA 1997).

Appellant has raised a facially sufficient claim that appears to have merit. Unless another qualifying predicate offense exists, appellant’s sentence must be vacated. Accordingly, on remand, the trial court shall either attach portions of the record conclusively refuting appellant’s claim or hold an evidentiary hearing.

We note that appellant’s sentence appears to have been the result of a negotiated plea. Should appellant prevail on remand, the state will be entitled to withdraw from the plea agreement if the agreement was negotiated, and one of its terms was that appellant would be sentenced as an HVFO. See Wade v. State, 822 So.2d 550, 551 (Fla. 1st DCA 2002).

REVERSED and REMANDED, with directions.

KAHN, WEBSTER and VAN NORTWICK, JJ„ CONCUR.


author: NORTHCUTT, Judge.

text:
    Edwin Craig LUBKEY and Automated Vacuum Systems, Inc., Appellants, v. COMPUVAC SYSTEMS, INC., Appellee.
    No. 2D02-2871.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2003.

      David J. Sockol and Mary F. Booth, of Sockol & Associates, St. Petersburg, for Appellants.
    Andre R. Perron, of Ozark, Perron & Nelson, P.A., Bradenton, for Appellee.
   NORTHCUTT, Judge.

Edwin Lubkey and Automated Vacuum Systems (collectively AVS) challenge an award of trial and appellate attorneys’ fees to Compuvac Systems. The fee award stemmed from Compuvac’s suit against AVS for damages based on a number of theories: breach of a settlement agreement, misappropriation of trade secrets, tortious interference with a business relationship, breach of fiduciary duty, abuse of a confidential relationship, usurpation of corporate opportunities, and conversion of corporate funds and assets. Compuvac prevailed only on its claim that AVS breached the settlement agreement. See Lubkey v. CompuVac Sys., Inc., 787 So.2d 121 (Fla. 2d DCA 2001). However, the circuit court awarded Compuvac fees for all its attorneys’ time in the case. We reverse the order in part and remand for further proceedings.

As a preliminary matter, we reject AVS’s claim that the circuit court abused its discretion in permitting Compuvac to amend its pleadings to claim fees pursuant to a provision in the settlement agreement. Compuvac also sought statutory fees under its count for misappropriation of trade secrets, § 688.005, Fla. Stat. (1997), but it did not prevail on that claim. It did not allege a basis for attorneys’ fees, or seek them, under any other count of the complaint. Thus, the settlement agreement was the only basis for awarding trial-level attorneys’ fees. It provided that if the defendants, Lubkey and AVS, defaulted in their duties under the settlement agreement, Compuvac could sue for its breach and recover attorneys’ fees incurred in that endeavor.

When a party claims fees under a written agreement, the entitlement to the fees extends only to the counts based on that agreement. Clipper v. Bay Oaks Condo. Ass’n, 810 So.2d 541, 544 (Fla. 2d DCA 2002); Allen v. Laabs, 567 So.2d 53 (Fla. 2d DCA 1990). Further, the party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible. Clipper, 810 So.2d at 544; Franzen v. Lacuna Golf Ltd. P’ship, 717 So.2d 1090, 1093 (Fla. 4th DCA 1998).

At the attorneys’ fee hearing Compuvac presented an expert witness who claimed that all the issues in the complaint were interrelated. But he did not explain why; nor did he testify that he had made any attempt to allocate the time expended to the particular counts of the complaint. See Franzen, 717 So.2d at 1098. On cross-examination, the expert could not explain with any certainty how numerous entries on Compuvac’s attorneys’ time sheets related to the breach of the settlement agreement. For example, one of the time entries stated, “Research Lubkey’s criminal file in Manatee County.” Another recited, “Conference ... regarding Lubkey’s threat of disclosure to authorities regarding alleged improprieties involving Richard Vignola.” The expert could not say how these entries related to the lawsuit at all. One of Compuvac’s lawyers also testified that the claims were interrelated, but again, did not provide specifics.

Compuvac failed to meet its burden of proving either that all its attorneys’ fees were related to its count for breach of the settlement agreement or that the issues were so intertwined that the fees could not be allocated. The expert’s opinion, lacking any factual foundation, was not competent proof. See Iden v. Kasden, 609 So.2d 54 (Fla. 3d DCA 1992); see also Arkin Constr. Co. v. Simpkins, 99 So.2d 557 (Fla.1957) (observing that expert witness’s opinion based on facts or inferences not supported by evidence has no evidentiary value and that the opinion itself is not proof of the facts necessary to support the opinion). The testimony by Compuvac’s attorney, self-serving and uncorroborated by expert testimony, legally could not form the sole basis of the award. See Brake v. Murphy, 736 So.2d 745 (Fla. 3d DCA 1999). We reverse the order insofar as it awarded trial-level fees and remand with directions to hold a new fee hearing and award fees only for the services Compu-vac’s attorneys performed in prosecuting the breach of settlement agreement issue. See Salisbury v. Spielvogel, 451 So.2d 974, 975 (Fla. 4th DCA 1984).

Finally, AVS contends that Compu-vac should not have recovered attorneys’ fees for responding to the previous appeal of the final judgment in this case because the fee provision in the settlement agreement did not specifically provide for appellate fees. See Maison Grande Condo. Ass’n v. Dorten, Inc., 600 So.2d 463, 465 (Fla.1992). But when Compuvac filed its motion for fees in this court in connection with the earlier appeal, AVS did not file an objection or any other response to the motion. This court granted Compuvac’s request, with instructions that the circuit court establish the amount of the fees. AVS cannot now challenge that award when it did not preserve its argument in this court. See Green Cos. v. Kendall Racquetball Inv., Ltd., 658 So.2d 1119, 1122 (Fla. 3d DCA 1995). Therefore, this aspect of the fee award is affirmed.

Reversed in part, affirmed in part and remanded with directions.

ALTENBERND, C.J., and DAVIS, J., Concur.

      . Compuvac also prevailed on two counts against Lubkey individually, but those counts do not support an award of attorneys’ fees.

      . The court did not award some fees requested for time expended before the parties reached the settlement agreement.


author: CANADY, Judge.

text:
    Freddie JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4245.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2003.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Jones appeals his conviction for possession of cocaine. Because the trial court fundamentally erred by failing to instruct the jury that knowledge of the illicit nature of the substance possessed was an element of the offense of possession of cocaine, we reverse.

Jones faced the possession of cocaine charge based upon his possession of a crack pipe that contained cocaine residue. Jones was arrested after presenting this crack pipe to an undercover police officer in response to an inquiry by the officer as to whether Jones had anything with which to smoke crack cocaine. The offense charged against Jones allegedly occurred on November 14, 2001. Jones did not testify or present any witnesses at trial, and consequently his defense was limited to argument and cross-examination of State witnesses.

On appeal, Jones argues that he should be retried because the jury was not instructed that knowledge of the illicit nature of the substance was an element of a drug possession offense as required by Chicone v. State, 684 So.2d 736, 737 (Fla.1996), which held that “guilty knowledge is an element of possession of a controlled substance.” He contends that his lawyer’s failure to request this instruction and to object to the lack of such an instruction constituted ineffective assistance of counsel so apparent on the face of the record that it is cognizable on direct appeal. Jones also argues that the failure of the trial court to give the Chicane instruction was fundamental error. We conclude that Jones is not entitled to relief as a result of ineffective assistance of counsel but that the failure to give an illicit knowledge instruction was fundamental error.

In support of his ineffective assistance of counsel claim, Jones cites Forget v. State, 782 So.2d 410, 413 (Fla. 2d DCA 2001), which held on direct appeal that defense counsel was ineffective for failing to request a guilty knowledge instruction and that there was a “reasonable probability that the outcome of the trial would have been different but for the unsatisfactory assistance.” See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although Forget supports Jones’s contention that the representation afforded by his counsel fell below the reasonable standard of professional assistance, the facts of the instant case do not satisfy the second prong of the ineffective assistance of counsel test, which requires a reasonable probability that the jury would have reached a contrary result absent counsel’s errors. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In Forget, this court relied on questions asked of the trial court by the jury to establish that the jury was confused and might have reached a different decision if properly instructed. 782 So.2d at 413. The jury in the instant case asked no questions and showed no outward signs of confusion. Given the evidence presented and the fact that the jury undoubtedly believed the testimony of the undercover police officer, there is no reasonable probability that counsel’s failure to request the guilty knowledge instruction resulted in the guilty verdict.

Jones also claims that the trial court committed fundamental error by fading to instruct the jury on the element of illicit knowledge. The Florida Supreme Court has held that the failure to instruct on a particular element of a crime is fundamental error when that element is disputed at trial. See State v. Delva, 575 So.2d 643, 645 (Fla.1991). During Jones’s trial, his counsel presented a very limited defense and called no witnesses on Jones’s behalf. However, through cross-examination of the State’s witnesses, Jones’s counsel sought to demonstrate that the residue found on the pipe did not have the same appearance as any usable form of cocaine. His counsel also elicited testimony that the amount of cocaine contained in the residue was so minute that it could not effectively be weighed or measured. Further, Jones’s counsel contended in his closing argument that, although the residue itself was visible, it had to be tested multiple times before the police could make a positive determination that it contained cocaine.

We conclude that Jones’s counsel placed in dispute the issue of whether Jones knew the illicit nature of the substance on the pipe. Under Delva, it was fundamental error for the trial court to fail to properly instruct the jury on that disputed element of the crime charged against Jones. Since such fundamental error is not subject to harmless error analysis, Jones’s conviction must be reversed. See Reed v. State, 887 So.2d 366, 369-70 (Fla.2002) (holding that failure to give proper instruction regarding disputed element of crime charged was fundamental error requiring reversal and stating that “fundamental error is not subject to harmless error review”).

Section 893.101, Florida Statutes (2002), which was adopted by the legislature in response to Chicone, does not remedy the trial court’s failure to give a guilty knowledge instruction in this case. Under that statute, “knowledge of the illicit nature of a controlled substance is not an element” of drug offenses, but lack of such knowledge is an affirmative defense. § 893.101(1). These statutory provisions are, however, not applicable to this case because they became law on May 13, 2002, after the alleged commission of the offense by Jones on November 14, 2001. See ch.2002-258, § 1, at 1848, Laws of Fla.; Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003) (citing Thomas v. State, 844 So.2d 723, 725 (Fla. 5th DCA 2003), Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002), and Norman v. State, 826 So.2d 440, 441 (Fla. 1st DCA 2002), for the proposition that section 893.101 cannot be applied retroactively).

We therefore reverse the possession of cocaine conviction and remand for a new trial. Jones was also convicted of possession of drug paraphernalia during the same trial. We do not disturb that conviction and the sentence imposed for that offense.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.


text:
    Edward Nicholas REEDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0580.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    Nancy A. Daniels, Public Defender; John R. Alfino, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant’s revocation of community control and imposition of judgment and sentence. However, because the written order of revocation of community control does not specify the conditions of community control that were violated, we remand for the trial court to enter such an order. Lee v. State, 826 So.2d 457 (Fla. 1st DCA 2002).

AFFIRMED.

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


text:
    FLORIDA DEPARTMENT OF INSURANCE, as Receiver of Unisource Insurance Company, Appellant, v. VARIOUS SHAREHOLDERS, Charles Steiner, and Ralph Madio, Appellees.
    No. 1D02-3699.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    Laudelina McDonald of Florida Department of Insurance, Tallahassee, and Helen Ann Hauser of Dittmar & Hauser, P.A., Coconut Grove, for Appellant.
    Kenneth W. Sukhia of Fowler White Boggs Banker, P.A., Tallahassee, for Ap-pellees.
   PER CURIAM.

The receiver challenges the portion of the final order by which the trial court denied its motion for an award of attorney’s fees pursuant to section 631.154(6), Florida Statutes. In accordance with the plain language of this provision, once the receiver successfully established its claim to the funds at issue below, the trial court was without discretion to deny the receiver an award of reasonable attorney’s fees. The portion of the order by which such fees were denied is accordingly reversed and this case is remanded to the trial court for an award of attorney’s fees.

ERVIN, ALLEN and LEWIS, JJ„ Concur.


text:
    Jeffrey J. JONES, Petitioner, v. James V. CROSBY, Secretary of the Florida Dept. of Corrections, Respondent.
    No. 3D03-1706.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Jeff J. Jones, in proper person.
    Charles J. Crist, Jr., Attorney General, for respondent.

      Before COPE, FLETCHER and WELLS, JJ.
   On Rehearing Denied

PER CURIAM.

On consideration of the motion for rehearing, the court withdraws its previous opinion and substitutes the following opinion.

Jeffrey J. Jones petitions for a writ of habeas corpus, arguing that his sentence is illegal and that he is entitled to immediate release. We deny the petition.

The trial court imposed a guidelines departure sentence on petitioner-defendant Jones, consisting of consecutive sentences for second degree murder and armed robbery. He alleges that he has completed the murder sentence and is now incarcerated on the consecutive armed robbery sentence. The defendant argues that, as a matter of law, his sentences had to be imposed concurrently, not consecutively, and that he is therefore entitled to immediate release. The defendant is incorrect.

The defendant asserts that on count one he received a forty-year sentence. He alleges that this was itself an upward departure from the guidelines. The trial court imposed a fifteen-year consecutive sentence on the armed robbery count. The defendant argues that the trial court could not impose an upward departure sentence on count one, and in addition, impose a consecutive sentence on count two. The defendant is incorrect.

Subsection 9511.16(1), Florida Statutes (Supp.1988), provides in part, “A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.” (Emphasis added).

Where imposing an upward departure sentence, the trial court may sentence each count to the legal maximum, and may impose the sentences consecutively, even if the sentences arise out of the same criminal episode. See Cleveland v. State, 673 So.2d 983 (Fla. 4th DCA 1996); Crawford v. State, 666 So.2d 202 (Fla. 2d DCA 1995). The sentences imposed upon the defendant are legal, and do not create any double jeopardy violation.

Different rules apply where a trial court wishes to impose consecutive habitual offender sentences, see Hale v. State, 630 So.2d 521 (Fla.1993), or consecutive mandatory minimum sentences. See Palmer v. State, 438 So.2d 1 (Fla.1983). The cases relied on by the defendant involve habitual offender or mandatory minimum sentencing, not the issue which is now before us.

The petition for writ of habeas corpus is denied.

      . The crime date was August 19, 1988.

      . In light of this opinion the motion for rehearing and certification is denied.


text:
    Santos ORSONIO, Appellant, v. FULLER, MALLAH AND ASSOC., etc. et al., Appellee.
    No. 3D03-269.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.

      Victor M. Arias, Fort Pierce, for appellant.
    Demahy, Labrador & Drake and Kenneth R. Drake, Miami, for appellee.
    Before SCHWARTZ, C.J. and GERSTEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The appellant appeals an order dismissing plaintiffs complaint for want of prosecution.

The genesis of this case was a legal malpractice action brought by the plaintiff, Orsonio, against attorneys who represented him in a civil rights claim tried in 1993 in the federal district court in Ft. Myers. The case was tried to a jury which found against the plaintiff. On appeal, the verdict was affirmed by the United States Court of Appeals for the Eleventh Circuit.

On July 23, 1997, plaintiff filed this malpractice action against his attorneys. The last record activity occurred on November 26, 2001, when the court granted defendants leave to file an amended answer and affirmative defenses. On November 27, 2002, defendants filed a motion to dismiss for lack of prosecution. Plaintiffs attorney then filed a motion to withdraw citing irreconcilable differences, which motion was granted. The hearing scheduled on the motion to dismiss for want of prosecution was continued from December 18, 2002 until December 30, 2002, in order to permit the plaintiff Orsonio, who had neither obtained new counsel nor filed any showing of good cause to preclude dismissal, time to obtain new counsel and show good cause why the case should not be dismissed. On December 27, 2002 an appearance was filed by plaintiffs current counsel.

When the matter was heard before the trial judge on December 30, 2002, plaintiff had still not filed any showing of good cause as required by Rule 1.420(e). Plaintiffs attorney was nonetheless permitted to proffer what his client would have testified to had he been present and testifying. He was given full leave to argue despite the uncontroverted fact that there had been no record activity for a period of one year. After an extended hearing the trial judge entered an order dismissing the cause for want of prosecution pursuant to the rule, citing to Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So.2d 1098 (Fla. 4th DCA 1998).

Plaintiffs present counsel argued that his predecessor’s suspension from the Bar for failure to maintain his CLE credits was analogous to a counsel’s illness, which has been recognized in some situations as supporting a showing of a good cause basis for failure to prosecute. The trial court rejected this argument out of hand, as do we. In Modellista Senior Judge Owen wrote:

[I]t must be recognized that (1) the failure to timely prosecute is almost invariably due to the fault of the plaintiffs lawyer, and (2) making a party bear the consequence of its lawyer’s fault is central to the principle of agency. The rule does not require a distinction as to who was at fault but if it did there was plenty of fault to go around here.

Modellista at 1099-1100.

We are in agreement with the insightful wisdom of Senior Judge Owen, and, with modification, affirm the order under review.

      . The order effectively dismisses the complaint with prejudice by including language of finality, i.e. that plaintiff shall take nothing by the action and go hence without day. We strike that portion of the order because a dismissal for want of prosecution should not be a dismissal with prejudice (although, depending upon whether the statute of limitations has run, the dismissal may have that effect).


text:
    Sandra WALL, and James Wall, her husband, Appellants, v. COSTCO WHOLESALE CORPORATION, Appellee.
    No. 3D02-2962.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Anthony J. Scremin, Miami, for appellants.
    Yernis & Bowling, and David W. Gross-man, and Christopher J. Hunt, North Miami, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Sandra Wall and James Wall (“plaintiffs”) appeal an adverse order denying their motion for new trial in a negligence action brought against Costco Wholesale Corporation (“Costco”)- We reverse.

The plaintiffs sued Costco after Sandra slipped and fell at a Costco store. According to the plaintiffs, Costco failed to maintain its premises in a reasonably safe condition by allowing water and grapes to collect on the floor. The plaintiffs alleged that Sandra slipped on the floor and suffered injuries to her left ankle, as a result of the slippery and unreasonably dangerous condition. Costco denied liability and asserted Sandra’s own comparative negligence was the proximate cause of her injuries.

Trial proceeded, and the jury returned a verdict finding Sandra 40% negligent, and Costco 60% negligent. The plaintiffs were awarded $20,500.00 in damages, offset by Sandra’s percentage of fault. The jury did not award any money on the loss of consortium claim brought by James.

Plaintiffs then filed a motion for new trial raising numerous issues. The plaintiffs claimed error in several evidentiary rulings, asserted that Costco’s counsel’s comments in closing argument were inappropriate and prejudicial, claimed the verdict was contrary to law and the manifest weight of the evidence, and argued the jury was confused in failing to award consortium damages. The trial court denied the motion for new trial, however awarded James $600.00 in consortium damages.

Of the numerous issues raised on appeal, we find reversal required by the improper comments made throughout defense counsel’s argument which deprived the plaintiffs of a fair trial. Counsel for Costco made repeated comments about Sandra being a lawyer’s wife and implied to the jury that James was attempting to hide the fact that he was a lawyer for a devious reason. Repeated references were also made about the plaintiffs’ daughter and why she had not been called as a witness. Although counsel knew the daughter was estranged from the plaintiffs and had disappeared, he suggested she did not appear in court because she would have indicated that Sandra was at fault for the accident. Comments were also made accusing the plaintiffs of committing a fraud on the court and on the jury.

Reviewing the totality of the evidence, we find the comments made were both improper and harmful, thus requiring reversal. See Johnnides v. Amoco Oil Co., Inc., 778 So.2d 443 (Fla. 3d DCA 2001). Finding reversal is required by the improper comments, we do not address the several other contentions raised by the plaintiffs in this appeal.

Reversed.


author: SCHWARTZ, Chief Judge.

text:
    Elmelinda REYES, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D03-1658, 3D03-976.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Elmelinda Reyes, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.

      Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

Because cases like Rahmings v. State, 660 So.2d 1390 (Fla.1995)(failure to appear for sentencing, standing alone, was invalid reason for upward departure sentence) and Bolden v. State, 691 So.2d 23 (Fla. 1st DCA 1997)(defendant cannot by agreement confer on court authority to impose illegal departure sentence), which involve guideline sentences, do not apply to post-October 1, 1998 offenses like this one, which are governed by the Criminal Punishment Code, the order below denying post-conviction relief is affirmed.


text:
    Thierry Michael MORNO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1089.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Thierry Michael Morno, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Thierry Michael Morno appeals an order denying his motion for jail time credit. The State concedes that it appears defendant-appellant Morno was not granted full credit for the time previously spent in jail. Accordingly we reverse the order and remand for a hearing to determine the exact amount of jail time credit the defendant should be awarded.

Reversed and remanded for a hearing.


author: FARMER, C.J.

text:
    Leo SALTERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1182.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

This is the third appearance in this court involving sentencing. After a previous reversal of the sentence by the supreme court in Salters v. State, 758 So.2d 667, 671 (Fla.2000), the case fell in front of a successor judge for de novo sentencing. The successor judge refused to read the record to familiarize himself with the case before deciding on the sentence, however, and imposed the maximum sentence allowable as a violent career criminal. On review we reversed the newly imposed sentence. Salters v. State, 802 So.2d 501 (Fla. 4th DCA 2001). Upon remand the case was returned to the same successor judge. Defendant moved to disqualify the judge. His motion stated under oath that he feared he would not receive an impartial sentence proceeding de novo because the judge had made clear earlier in the case that he intended to sentence defendant to the maximum sentence irrespective of the facts of the case. The judge denied the motion to disqualify and again imposed the maximum sentence as a career criminal.

The motion was legally sufficient and demonstrated an objectively reasonable fear of the lack of impartiality. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990) (holding that motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial); Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002) (motions to disqualify are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law); State v. Shaw, 643 So.2d 1163 (Fla. 4th DCA 1994) (fears of a party seeking disqualification of a judge must be objectively reasonable).

REVERSED.

KLEIN and SHAHOOD, JJ., concur.


author: TAYLOR, J.

text:
    Richard Dalton TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2181.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant was convicted of attempted first degree murder and attempted felony murder of Wilfredo Martinez and his nephew, Martin Martinez. He was sentenced to four consecutive life terms, with a twenty-five year mandatory sentence on each count. We reverse only appellant’s dual convictions for attempted premeditated murder and attempted felony murder because they constitute double jeopardy violations.

On the night of the incident that led to these charges, Wilfredo and Martin Martinez were fishing at Rivergate Park in Port St. Lucie. While fishing, they noticed appellant, a stranger to them, in the area. The Martinezes became apprehensive because appellant looked angry. They decided to leave. As they gathered their equipment, appellant walked past them. When appellant walked behind Martin, he started shooting. He shot Martin in the back, paralyzing both of his legs. Martin heard another pop and felt a strong sting on his upper right shoulder. Appellant held the gun on Martin and .tried to reload it. After putting another round in the chamber, he shot at Martin again, this time aiming for his face. Martin turned away, and the bullet hit his arm and ricocheted down to his leg.

Wilfredo looked back and saw the shooting. He grabbed a bucket to protect his head. Appellant then started shooting at Wilfredo. He tried to get around the bucket, aiming for Wilfredo’s. head. He also attempted to shoot Wilfredo in the side. As he continued to fire the gun, appellant shot Wilfredo in the arm, hand, and stomach. After the shootings, appellant looked from side to side, ran to his van, and left. The victims managed to get to a hospital for emergency treatment. After interviewing the victims, the police made a composite sketch of the suspect and eventually conducted a photo line up. The bullets retrieved from the victims’ bodies and the shell casings were traced to a gun found in appellant’s possession.

Appellant was charged by information with two counts of attempted first degree murder (Counts I and II) and two counts of attempted felony murder of Martin and Wilfredo Martinez (Counts III and IV). The information tracked the language of attempted felony murder under section 782.051(1), Florida Statutes (2000). Attempted felony murder under this subsection is defined as follows:

Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree ... (emphasis added).

In this case, the attempted premeditated first degree murder charges serve as the sole underlying felonies for the attempted felony murder charges. No act distinguishes the attempted premeditated murder from the attempted felony murder; the attempted murder is the predicate felony and the same act on the same victim. In other words, there is no intentional act that is not an essential element of the attempted premeditated murder as is required by section 782.051(1). Hence, appellant’s dual convictions for attempted premeditated murder and attempted felony murder constitute double jeopardy. See Gordon v. State, 780 So.2d 17, 25 (Fla.2001) (recognizing the principle that dual convictions for attempted premeditated murder and attempted felony murder are impermissible) and Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002) (holding that double jeopardy barred dual convictions for attempted second degree murder and attempted felony murder arising from the same criminal act; both crimes fell within core offense of homicide and addressed punishment for acts that could inflict death).

We affirm appellant’s convictions and sentences on Counts I and II for the crimes of attempted first degree murder, but vacate the convictions and sentences on Counts III and IV for attempted felony murder.

AFFIRMED in part; REVERSED in part.

FARMER, C.J., and GUNTHER, J., concur.

      . At trial, appellant relied on the insanity defense.


author: PER CURIAM. STEVENSON, J.,

text:
    Jamie Scott NICHOLAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4376.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal arises from the entry of a final order violating Jamie Nicholas’s probation after he was stopped for DUI. Nicholas filed a motion to suppress the stop. That motion was denied and Nicholas admitted the violation while reserving the right to appeal the suppression issue. We find that the trial court erred in denying the motion to suppress and hereby reverse the order of the trial court.

“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792 (Fla.2002). However, a defendant is entitled to a de novo review of whether the application of the law to the facts establishes an adequate basis for the trial court’s finding of probable cause. Donaldson v. State, 803 So.2d 856 (Fla. 4th DCA 2002).

At the hearing, Deputy Moore testified on behalf of the state. Moore explained that he noticed Nicholas’s vehicle because Nicholas made a left hand turn from a right hand lane. Moore explained that the roadway Nicholas was driving northbound on had two lanes, one turning lane and another lane that continued heading north. Moore was driving about two car lengths behind Nicholas when he saw Nicholas make the left hand turn, without signaling, from the right hand lane. Moore acknowledged that he observed Nicholas for a very short period of time and that Nicholas did not interfere with any traffic.

“[A] police officer can stop a driver based on a founded suspicion that the driver is under the influence, even where the driver is not committing a separate traffic offense.” Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999). In Roberts, this court determined that an officer had the reasonable suspicion necessary to pull the defendant over where the officer observed the defendant weaving significantly from side to side within the lane but not crossing over the lines.

In Department of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992), the second district explained:

The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.

Id. at 1352.

In DeShong, a sheriff followed the defendant for a period of time to check for a possible DUI offense. The sheriff observed the defendant use lane markers to position his vehicle. He then observed the defendant abruptly slow from 55 to 30 miles per hour and then accelerate rapidly for no apparent reason. The sheriff stopped the vehicle because he found the driving behavior “erratic.” The second district determined that the driving behavior was sufficient to establish a founded suspicion and to validate a DUI stop. Id. at 1352.

The opposite conclusion was reached in Donaldson, where this court found that an officer did not satisfy the “founded suspicion” requirement to effectuate a valid stop for DUI. Donaldson, 803 So.2d 856. This court distinguished Donaldson from DeShong by pointing out that the officer only observed Donaldson squealing his tires but did not observe any erratic driving over a period of time. Further, the opinion noted that there were no other cars on the road or in the parking lot that would have been endangered by the squealing tires. Thus, the opinion concluded, “there was no evidence that Appellant drove in a sufficiently unsafe manner to validate a DUI stop.” Donaldson, at 860.

The issue presented in this case is whether Nicholas’s turn from the wrong lane amounts to erratic driving. In Donaldson, the court determined that squealing tires does not amount to erratic driving while changing the speed of travel and marking the position of the vehicle via the lane markers was considered erratic driving in DeShong. See also Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) (Officer’s testimony that vehicle crossed over traffic line three times did not establish an erratic driving pattern.); Dep’t of Highway Safety and Motor Vehicles v. Nikollaj, 780 So.2d 943(Fla. 5th DCA 2001) (Defendant stopped for erratic driving after officer observed him driving his car down a concrete median approximately 25 feet, and then running a red light.).

The state relies on Roberts. In Roberts this court reasoned that the defendant’s “continuous weaving, even if only within her lane, during the time that she was being followed presented an objective basis for suspecting that she was under the influence.” Roberts, 732 So.2d 1127, 1128. However Roberts is readily distinguishable from the case at bar. Initially, we note that Roberts is procedurally distinguishable from the case at bar in that it was a denial of a petition for certiorari. “Certio-rari is not intended to provide the petitioner with a second appeal, and this court should exercise its discretion only when there has been a violation of clearly established principles of law resulting in a miscarriage of justice.” Id. (citing Combs v. State, 436 So.2d 93 (Fla.1983)). Further, we find Roberts factually unpersuasive as the opinion does not note the length of time the defendant was observed or if the erratic driving interfered with any traffic.

The facts and posture of this case are most akin to the facts of Donaldson. This court pointed out in Donaldson that the defendant had not been observed for any period of time, nor was anyone around that was endangered by the defendant’s actions. The same can be said about the case at bar. Here, Moore acknowledged that he observed Nicholas for a very short period of time and that Nicholas did not interfere with any traffic.

To conclude, we recognize that there is no statutory definition of erratic driving and it is necessarily determined on a case by case basis. However, in light of the case law on point discussed above, and the facts of this case, we hold that Nicholas’s turn did not amount to erratic driving. As a result, officer Moore did not have a founded suspicion that Nicholas was under the influence. The stop was therefore improper as was the subsequent denial of the motion to suppress. The trial court’s order is reversed.

REVERSED.

POLEN and KLEIN, JJ., concur.

STEVENSON, J., concurs specially with opinion.

STEVENSON, J.,

concurring specially.

I concur in the majority decision. I write only to emphasize that, based on the record, there was no indication that appellant’s left turn was a “traffic offense” which would have independently justified a stop of the vehicle. The arresting officer, Deputy Moore, described the turn as follows:

Q. [Defense Counsel] Okay. Would you agree with me that at some point when he made the left turn he had — his vehicle had to be in the left-turn lane?
A. [Deputy Moore] He certainly drove across that lane, correct.
Q. Okay. So he went from the northbound lane into or across as you said the left-turn lane and into the Pineapple Discount Beverage, correct?
A. He made a left turn from the right lane crossing the left-turn lane, yes.

When asked if the turn was illegal, Deputy Moore testified: “Uh, not actually that I’m aware of, no.”

Diming argument on the motion to suppress, defense counsel pressed her argument that appellant had not committed any traffic infraction by making the turn in the manner in which he did. Below, and on appeal, the State did not respond to this argument, but maintained that appellant’s driving was “erratic.” Thus, on appeal, our sole focus is whether appellant’s driving was so “erratic” as to suggest intoxication. As the majority opinion indicates, it was not.


author: ROSENBERG, ROBERT A., Associate Judge. POLEN, J.,

text:
    J.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3756.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.

      Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   ROSENBERG, ROBERT A., Associate Judge.

Appellant, J.R., timely appeals his sentence and order of restitution. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.145(b)(2).

A petition for delinquency was filed against appellant on a charge of battery which occurred on December 14, 2001. Appellant entered a plea of no contest. The victim at the sentencing hearing requested restitution to cover the cost of sneakers that were lost during or subsequent to the melee. Defense counsel objected and stated that the sneakers were not connected to the battery. The trial court overruled and ordered restitution. We reverse and remand.

The trial court erred in ordering restitution for the sneakers without evidence of causation and a significant relationship to the charge of battery.

In reviewing an order of restitution, this court must consider whether the trial court abused its discretion. Hebert v. State, 614 So.2d 493, 494 (Fla.1993). A ruling on a question of fact must be supported by competent substantial evidence. State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001).

Section 775.089(l)(a), Florida Statutes (2001), provides in part:

In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.

Section 985.231(l)(a)6, Florida Statute (2001), from the Delinquency chapter, provides:

(l)(a) The court that has jurisdiction of an adjudicated delinquent child may, by an order stating the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing:
6. As part of the probation program to be implemented by the Department of Juvenile Justice, or, in the case of a committed child, as part of the community-based sanctions ordered by the court at the disposition hearing or before the child’s release from commitment, order the child to make restitution in money, through a promissory note cosigned by the child’s parent or guardian, or in kind for any damage or loss caused by the child’s offense in a reasonable amount or manner to be determined by the court.

(Emphasis added.)

In D.M. v. State, 755 So.2d 752 (Fla. 4th DCA 2000), this court stated, citing section 985.231, that “[t]he general rule is that a juvenile may be ordered to pay restitution for damages that bear a significant relationship to the convicted offense.” Id. at 753.

More recently, in Schuette v. State, 822 So.2d 1275 (Fla.2002), the supreme court has held:

Although never explicitly stated in our prior restitution cases, it would appear that the Court has equated the “significant relationship” test with the requirement of proximate causation between the criminal act and the resulting damages because the Court has required both a “but for” causation requirement and a “significant relationship” requirement.

Id. at 1282.

Prior to the supreme court’s decision in Schuette, this court held in a juvenile case, L.H. v. State, 803 So.2d 862, 863 (Fla. 4th DCA 2002):

For restitution to be deemed reasonable, it must bear a significant relationship to the convicted offense. See J.S.H. v. State, 472 So.2d 737, 738 (Fla.1985). A factor in determining whether a significant relationship exists is whether there is a causal connection between the criminal conduct and the loss claimed by the victim. J.S. v. State, 717 So.2d 175, 176 (Fla. 4th DCA 1998).

In the instant case, the State has failed to present any evidence of a relationship between appellant’s battery upon the victim and the victim’s loss of his sneakers. Although there may have been evidence, no evidence was presented and the trial judge ordered restitution without competent substantial evidence to support the award. The State argues that because this was a battery which it describes as “an invasion of the victim’s personal space,” it was reasonably foreseeable that the appellant would pull at the victim’s shoes and clothing. However, the only evidence of what happened indicates that appellant struck the victim in the head. Section 775.089 contemplates an evidentia-ry hearing when there is a dispute as to restitution. Appellant objected below to the imposition of restitution and he was entitled to a hearing where the State would have the burden of proving a significant relationship between the offense and the loss. Accordingly, the order of restitution is hereby set aside and the cause remanded for a hearing on the restitution issue.

STONE, J., concurs.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the majority’s reversal of this restitution order. Having said that, I write separately to note this entire appeal is about $79.00. This writer’s cynicism, bolstered by 23 years of experience in dealing with the juvenile justice [sic] system, emboldens me to suggest it is $79.00 which under most circumstances would not be paid by J.R. even had we affirmed.

My point is the alarmingly disproportionate value of the legal system’s resources — notably resources of the citizens of Florida — 4 judges, 2 public defenders, 1 assistant state attorney, 1 assistant attorney general, numerous clerks and other court personnel, plus the costs of transcripts, files, etc. — which have been expended to secure this reversal. All this leads me to the unsettling, and not too rhetorical question: Is it worth it? Put another way, even knowing that J.R. can bring such an appeal, and he is technically correct, in this age of shrinking budget dollars and overworked lawyers and judges, is it entirely appropriate to bring such an issue to an appellate court? For $79.00?


author: WARNER, J.

text:
    Theresa BENNETT, Appellant, v. AMERICAN LEARNING SYSTEMS OF BOCA DELRAY, INC., a/k/a American Heritage and Christopher A. Nadeau, d/b/a Aaction Entertainment, Appellees.
    Nos. 4D02-3411, 4D02-4164, 4D02-5132.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Raehelle R. McBride and Jay T. Jam-beck of Sachs, Sax & Klein, P.A., Boca Raton, for appellant.

      John J. Shahady of Adorno & Yoss, P.A., Fort .Lauderdale, for appellee American Learning Systems of Boca Delray, Inc.
   WARNER, J.

Appellant filed an appeal from a judgment in favor of appellee, based upon a jury verdict awarding appellant no damages for slander. The appellee cross-appeals the court’s denial of attorney’s fees pursuant to an offer of judgment. The court determined that the offer was invalid because it failed to state whether it included attorney’s fees and punitive damages. We affirm the appeal on all issues raised. We reverse as to the cross-appeal, holding that where there was no claim for attorney’s fees or punitive damages raised in the pleadings, the court erred in striking the claim.

Appellant filed a complaint alleging breach of contract, fraudulent inducement, and slander based upon the termination of her teaching position with appellee. The complaint contained no allegations requesting attorney’s fees nor suggesting an entitlement thereto. In addition, at no time did appellant seek punitive damages. Appellee served appellant with an offer of judgment which stated:

Pursuant to Florida Statutes 768.79 and Fla. R. Civ. P. 1.442, defendant, AMERICAN LEARNING SYSTEMS OF BOCA DELRAY, INC., a/k/a AMERICAN HERITAGE by and through its undersigned counsel, Offers Judgment against it and in favor of the plaintiff, THERESA BENNETT on all Counts of its complaint in the total amount of $500.00, inclusive of costs and prejudgment interest.

Because the verdict did not exceed the offer, appellee moved to assess attorney’s fees. While the court concluded that the offer was made in good faith, it found the offer invalid because the appellee had “failed to identify the amount of proposed settlement for punitive damages, if any, and failed to state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim.” Finding that the rule and statutory requirements must be strictly construed, the court determined that the offer failed to comply with the specific requirements of the rule and thus denied the motion for attorney’s fees.

Section 768.79(1), Florida Statutes (2002), creates a substantive right to attorney’s fees where a plaintiff refuses to accept an offer of judgment from the defendant and the ensuing jury verdict does not exceed the offer by at least twenty-five percent. Florida Rule of Civil Procedure 1.442 was adopted to provide the procedure for implementing this substantive right. With respect to the making of the offer, section 768.79(2) provides:

The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:
(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.
The offer shall be construed as including all damages which may be awarded in a final judgment.

In implementing this section, Rule 1.442(c)(2) provides:

A proposal shall:
(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080(f).

What is immediately apparent is that the statute does not require the offer to include whether it contains attorney’s fees, while the rule does. Both the statute and the rule require that the offer state the amount offered to settle a claim for punitive damages. When the supreme court adopted the amended rule requiring an offer to state whether it included attorney’s fees, it explained that these provisions were procedural in nature and thus within the province of the court to adopt. In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 105-06 (Fla.1996).

We have no trouble in concluding that this offer complied with the rule, because the complaint contained no allegations to support punitive damages or attorney’s fees, nor a request for the same. As to punitive damages, the second district in Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002), held that an offer was not invalid for failure to state what amount, if any, was proposed to settle a punitive damages claim where no claim was made in the pleadings. The court relied on the “if any” language of the rule which it construed to mean that a claim for punitive damages must be pled before an offer would be required to state an amount for punitive damages. See id. “In the absence of such a claim, the rule does not require a party to include needless ‘not applicable’ language in the proposal.” Id.

While the provision with respect to attorney’s fees does not use the “if any” language, we conclude that it is also a needless surplusage to include “not applicable” as to attorney’s fees in the offer of judgment where no claim for attorney’s fees has been pled. The Supreme Court held in Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991), that a claim for attorney’s fees under either statute or contract must be pled. No recovery of attorney’s fees may occur absent a pleading requesting them. See id. at 837-38. It would make no sense to require a defendant to state in its offer of judgment that the offer does not include attorney’s fees, when plaintiff did not claim an entitlement to them and could not recover them because of failure to plead. Moreover, in this case not only did appellant fail to plead attorney’s fees, no contractual provision granted her attorney’s fees, nor were statutory attorney’s fees authorized pursuant to any of her causes of action.

Finally, appellee made the offer to settle all counts of the complaint, inclusive of costs and interest. That language is sufficiently broad to include any claim for attorney’s fees had one been made in the pleadings. See McMahan v. Toto, 311 F.3d 1077, 1082 (11th Cir.2002). The purpose of the rule is to provide an efficient mechanism to convey an offer of settlement to the opposing party free from ambiguities so that the recipient can fully evaluate its terms and conditions. See Nichols v. State Farm Mut., 851 So.2d 742, 746 (Fla. 5th DCA 2003). Here, there was no ambiguity in the proposal for settlement.

For the foregoing reasons, we reverse the order denying attorney’s fees and direct the trial court to determine the amount of attorney’s fees due pursuant to the offer of settlement.

SHAHOOD and HAZOURI, JJ., concur.


text:
    Jeffrey TRAPKIN, a/k/a Michael Collins, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2562.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Jeffrey Trapkin, a/k/a Michael Collins, Gainesville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges the trial court’s denial of his Rule of Criminal Procedure 3.800(a) motion for jail credit. This is appellant’s renewed motion which followed this court’s affirmance without prejudice. See Trapkin v. State, 830 So.2d 172 (Fla. 4th DCA 2002).

We find appellant’s renewed motion to be legally sufficient, and reverse and remand to the trial court for a determination on the merits. If the record conclusively refutes the claim, then the trial court should attach those portions of the record supporting denial. See Collins v. State, 805 So.2d 73, 74 (Fla. 4th DCA 2002). If the record available to the trial court, which includes the jail records referenced, establishes that appellant is entitled to the credit he requests, the court shall award him the jail credit. See Phillips v. State, 839 So.2d 893, 894 (Fla. 4th DCA 2003).

WARNER, STEVENSON and SHAHOOD, JJ., concur.


text:
    Benjamin P. THOMAS and Alison Thomas, Petitioners, v. THE CHASE MANHATTAN BANK, as Trustee, Respondent.
    No. 4D03-3407.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.

      James A. Bonfiglio of Law Offices of James A. Bonfiglio, P.A., Boynton Beach, for appellants.
    No response required for respondent.
   GROSS, J.

By their petition for writ of prohibition, Benjamin and Alison Thomas seek review of an order denying their motion to disqualify the trial judge. We deny the petition because the underlying motion for disqualification was untimely.

The purported grounds for disqualification are certain paragraphs contained in the summary final judgment of foreclosure. These paragraphs describe the Thomases’ failure to timely respond to the plaintiffs request for admissions. The paragraph of the order most critical of the Thomases’ attorney provides:

Defendant’s failure to respond to the Requests for Admissions, Request for Production and Interrogatories for over 6 months is unacceptable. [The Thom-ases’ lawyer’s] explanation that he had temporary help and failed to properly calendar the responses to the requests does not constitute excusable neglect. Furthermore, said explanation was not supported by affidavit or any evidence so the Court was unable to determine [if] said excuses were even true. It is the responsibility of the advocate to adhere with the rules of court, especially for an attorney who has been awarded attorneys fees in excess of $400.00 per hour....

The trial court denied the motion for disqualification as legally insufficient as a matter of law.

We deny the petition because it was untimely. Florida Rule of Judicial Administration 2.160(e) provides that a motion for disqualification must be filed within a reasonable time not to exceed ten days after the discovery of the facts that would require disqualification. Failure to file a motion for disqualification within the ten-day period requires that a subsequent petition for writ of prohibition be denied. See T/F Sys. Inc. v. Malt, 814 So.2d 511, 513 (Fla. 4th DCA 2002); Foley v. Fleet, 644 So.2d 551, 552 (Fla. 4th DCA 1994). Mere service of the motion within the ten-day period does not comply with the rule. See HIP Health Plan of Fla., Inc. v. Griffin, 757 So.2d 1272, 1273 (Fla. 4th DCA 2000).

We note that on the merits, the trial judge correctly determined that the motion was legally insufficient. See Barwick v. State, 660 So.2d 685, 692 (Fla.1995) (holding that “[t]he fact that a trial judge makes an adverse ruling is not a sufficient basis for establishing prejudice”); Jackson v. State, 599 So.2d 103, 107 (Fla.1992) (holding that “[t]he fact that a judge has previously made adverse rulings is not an adequate ground for recusal”).

Even more extreme expressions of judicial criticism of counsel than are evident in this case do not justify disqualification. As we wrote in Birotte v. State, 795 So.2d 112, 113 (Fla. 4th DCA 2001), a case involving judicial criticism of an attorney more severe than any statement in this case:

A judge’s exercise of judicial responsibility to take corrective action, including the reporting of perceived attorney misconduct to the Florida Bar, is not a ground to support judicial disqualification. Further, a judge’s expression of dissatisfaction with counsel’s unprofessional behavior does not give rise to a reasonable fear of bias or prejudice.

(Citations omitted).

The petition for writ of prohibition is denied.

TAYLOR and HAZOURI, JJ., concur.