text:
    Nyka O’CONNOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1170.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.

      Charlie Crist, Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, for appellee.
   GROSS, J.

Nyka O’Connor was convicted as a principal of first-degree murder and armed robbery. We reverse because certain items seized from his room thirty-six days after the homicide were improperly admitted into evidence and we do not find harmless error.

Appellant was indicted along with co-defendant Marlon Foster on the charges of first-degree murder and armed robbery. Foster was tried separately from O’Con-nor.

The homicide victim was Clifford Clarke. A police officer discovered Clarke slumped over in the driver’s seat of his car. Clarke died from a single gunshot wound to the right side of his head, behind the ear. The shot was fired by a handgun from a distance of no more than two feet. The bullet that killed Clarke was a nine millimeter Remington brand Golden Saber hollow point.

At trial, appellant’s lawyer announced his theory of defense in the opening statement: “[D]id my client knowingly participate in an armed robbery? No, he was there to commit a felony, absolutely. He was there to sell fake drugs.” Under this approach, if appellant was not a principal in the armed robbery, he was not guilty of first-áegree felony murder. See § 782.04(l)(a)2.d., Fla. Stat. (2001) (emphasis added).

The police conducted a search of appellant’s home thirty-six days after the shooting. He objected to the introduction of three items discovered there: a photo of a shotgun found in appellant’s room, a photo of a bullet proof vest, and a photo of a quotation found above appellant’s bed.

The state argued that the bullet proof vest and shotgun were probative of appellant’s motive and mental state, rebutting the defense that he was in the victim’s car only to sell fake cocaine, that he “was in the wrong place at the wrong time.” The court overruled appellant’s objections and admitted photographs of the shotgun and the bullet proof vest into evidence.

A detective testified that people often wear a bullet proof vest when they are doing a “drug armed robbery” to make sure that the drug purchaser does not shoot and harm them during the robbery. On cross-examination, the detective acknowledged that there was no evidence linking the bullet proof vest to the shooting in this case. Also, the detective conceded that in his eleven-year police career, he had encountered only two occasions where a drug robber wore a bullet proof vest. The detective agreed that the victim had been shot by a handgun, and not a shotgun like the one found in appellant’s bedroom.

Above appellant’s bed on the day of the search was a quotation:

Lord, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to hide the bodies of those people I had to kill because they pissed me off.

The state argued that the statement was relevant to rebut defense counsel’s opening statement, which portrayed appellant as a young man from Jamaica, whose intention was not to hurt or rob the victim, but only to sell him fake cocaine. The defense argued that the statement was not relevant and that there was no evidence that appellant had ever encountered the victim before. The state countered with its theory that it was appellant who had shot the victim, so the shooting was evidence that the victim had in some manner “pissed off’ appellant, thereby making the quote relevant. The trial court overruled appellant’s objection and admitted the quotation into evidence.

Appellant’s tape-recorded statement was the most significant piece of evidence linking him to the homicide. Appellant admitted that he held a quarter of a kilogram of fake cocaine for Foster, a friend he had known for several years. Appellant and Foster had numerous conversations on the day of the homicide; at one point, they held a three-way conversation with a third person to set up a cocaine deal for that evening.

According to the statement, Foster and the victim picked up appellant, who had the counterfeit cocaine. The victim was driving the car. He said that he wanted to test the cocaine at appellant’s house, to make sure it was real. Foster shot the victim, and the car spun out of control. After the car came to a stop, Foster told appellant to get the money from the victim’s pocket. Instead, it was Foster who took the money. The two men fled to appellant’s house.

O’Connor’s statement indicated that once at the house, he and Foster took off their bloody clothes and put them in a garbage bag. Foster put on some of appellant’s clothes. Foster threw the bag in a dumpster near a supermarket. Appellant did not know what Foster did with the gun. At Foster’s request, appellant drove Foster to the scene of the shooting. Foster took a wet cloth and wiped down the victim’s car, attempting to eliminate any fingerprints. To concoct an alibi, Foster had appellant call one of Foster’s friends and ask for Foster’s whereabouts.

O’Connor admitted in the statement that Foster gave him about $2,000 of the money he had taken from the victim. Appellant said that he kept two nine millimeter guns at his house for Foster, because Foster did not want his mother to know about them. Appellant admitted to keeping other items at his house for Foster: the fake cocaine wrapped in duct tape, clear plastic baggies containing fake cocaine rocks, and two bundles of cash. Appellant acknowledged that the shotgun found at his residence was his own.

During the tape-recorded statement, appellant denied shooting the victim, stating, “I ain’t know the shooting was going to happen.” He maintained that Foster had shot the victim and explained the shooting by saying: “[T]he shit would come back to [me] anyways.”

The jury found appellant guilty of first-degree murder as charged in the indictment. Also, the jury answered three interrogatory questions, that, “during the course of the crime committed,” appellant did not “actually possess a firearm,” “actually discharge a firearm,” or “actually inflict death to Clifford Clarke as a result of discharging a firearm in his possession.”

Appellant raises a number of points on appeal. We affirm all points but one. Specifically, we affirm the trial court’s finding that appellant’s tape-recorded statement was freely and voluntarily rendered and approve its admission into evidence. We affirm the trial court’s denial of appellant’s motion for judgment of acquittal. Appellant preserved none of the errors he complains of during the prosecutor’s closing argument and none of the errors amounted to fundamental error.

The major issue on this appeal is the admission into evidence of the photographs of the shotgun, the bullet proof vest, and the quoted phrase.

Evidence must be relevant in order to be admissible. See § 90.402, Fla. Stat. (2001). Relevant evidence is defined as evidence “tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2001). While all admissible evidence must be relevant, not all relevant evidence is admissible; section 90.403 mandates that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. (2001).

It is well-settled that weapons uncovered in a search of premises controlled by a defendant can be admissible in evidence. However, in these cases, some part of the evidence at trial linked the seized item to the crime charged. Thus, in Dias v. State, 812 So.2d 487, 493 (Fla. 4th DCA 2002), we held that a knife found in the defendant’s van three weeks after a stabbing was admissible because it was similar to the victim’s description of the knife used in the incident.

Similarly, in Council v. State, 691 So.2d 1192, 1194-96 (Fla. 4th DCA 1997), we upheld the admission into evidence of a gun found under the defendant’s mattress during a search three weeks after a robbery. During the robbery of a doctor’s office, the defendant had pulled a gun from his waist area and threatened employees with it, finally pressing the gun to the office manager’s temple. There were “many similarities” between the witnesses’s description of the gun used by the robber and the gun found under the mattress. Id. at 1194. We held that “[t]hese common characteristics were sufficient to establish the gun’s probative value on issues material to the case.” Id.; see also Thornton v. State, 767 So.2d 1286, 1288 (Fla. 5th DCA 2000) (holding that gun located in co-defendant’s office was properly admitted to help identify the defendant as a participant in a robbery; the witnesses’s description of the gun used in the robbery “matched the appearance” of the gun admitted in evidence).

On the other hand, where the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible. In Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA 1993), the defendant was charged with attempted murder. We concluded that the trial court erred in admitting into evidence a small semi-automatic weapon which the police found under the defendant’s bed. We reasoned that the “exhibit did not tend to prove or disprove a material fact as it had no connection whatsoever to the charged offense.” Id. at 478.

Similarly, in Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987), a defendant convicted of armed kidnapping and aggravated assault with a firearm challenged the admissibility of a gun removed from the glove compartment of a car he was driving five months after the crimes charged. Nothing in the evidence “connect[ed] the particular gun to the crimes for which [the defendant] was on trial.” Id. at 589. Concluding that the gun was not relevant to the case and therefore inadmissible, this court wrote that “it served the purpose only of conveying to the jury that [the defendant’s] having guns tended to support the testimony that he had a gun when engaged in the charged crimes.” Id.; see also Fugate v. State, 691 So.2d 53, 54 (Fla. 4th DCA 1997) (finding trial court committed error in admitting into evidence a handgun owned by the defendant which was found some distance from the crime scene of an aggravated assault, where there was no link to the charged offense); Sosa v. State, 639 So.2d 173, 174 (Fla. 3d DCA 1994) (holding that trial court erred in admitting bullets found in defendant’s vehicle where defendant was charged with firing handgun at victim’s car, since there was no link whatsoever established between the bullets and the defendant’s case).

Following Fugate, Rigdon, Huhn, and Sosa, we conclude that photographs of the shotgun, the bullet proof vest, and the quote, were not relevant to the crime charged and were improperly admitted into evidence. The murder was by a handgun with nine millimeter ammunition, not a shotgun, and nothing in the evidence connected the shotgun to the homicide. Similarly, nothing in the evidence indicated that appellant wore the bullet proof vest in the homicide. The state tried to manufacture relevance with the testimony that people who commit drug armed robberies often wear bullet proof vests. This anecdotal testimony “concerning characteristic patterns in a type of criminal activity was inadmissible.” Lawrence v. State, 766 So.2d 250, 251 (Fla. 4th DCA 2000); see also Dean v. State, 690 So.2d 720, 723-24 (Fla. 4th DCA 1997); Shelton v. State, 654 So.2d 1295, 1296 (Fla. 4th DCA 1995). Any marginal relevance in this type of testimony was substantially outweighed by the danger of unfair prejudice. See § 90.403. The state may not create relevance by resorting to testimony which is itself inadmissible as proof of guilt.

Finally, we disagree with the state that the sign over the defendant’s bed “had a logical tendency to rebut” the defense that appellant “was unaware that an armed robbery of the victim was to take place.” Nothing in the evidence supported the theory espoused by the state at trial to admit the sign — that appellant was the shooter. In fact, the jury specifically found otherwise. The sign is an example of a genre of humor, the “folk wisdom” found on bumper stickers or bathroom walls. See supra, note 1. It is not probative of appellant’s state of mind in this case, any more than possession of “The Godfather” DVD would demonstrate a predisposition for homicide in resolving business problems.

The final question is whether the admission of these pieces of evidence was harmless error. Under State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986), if the admission of erroneous evidence does not contribute to the guilty verdict and was harmless beyond a reasonable doubt, the verdict must stand. As later clarified by the supreme court:

[I]f one cannot say, with fair assurance, after pondering all that happened without stripping that erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Goodwin v. State, 751 So.2d 537, 539-40 (Fla.1999). We do not find harmless error in this case. Much depended on how the jury viewed appellant’s tape-recorded statement. The admission of the three disputed items could well have affected the jury’s decision.

Affirmed in part, reversed in part, and remanded for a new trial.

KLEIN and TAYLOR, JJ., concur.

      . The quotation is not to be taken literally, but is an example of black humor. The quotation is part of the “Serenity Prayer” or “Daily Affirmation” or "Prayer for the Stressed,” a version of which appears on many humor websites. See, e.g., http://www.med-ic37.net/prayer.shtml (last visited Jan. 8, 2003); http ://www. tasgreetings. com/grant-me.htm (last visited Jan. 8, 2003); http.//www.midusa.net/~russell/stressed.html (last visited Jan. 8, 2003); http://www.stilt-ner.org/humr/humresere.htm (last visited Jan. 8, 2003); http://www.joke-archives.com/poet-ry/serenity.html (last visited Jan. 8, 2003); http://www.c4vct.com/kym/humor/seren.htm (last visited Jan. 8, 2003); http://www.geodties.com/be_alternative/serenity_pra yer.html (last visited Jan. 8, 2003). To place the quotation in context, many versions of the "prayer” include the following:
      And also, help me to be careful of the toes I step on today
      As they may be connected to the ass that I may have to kiss tomorrow.
      Help me to always give 100% at work:
      12% on Monday
      23 % on Tuesday
      40% on Wednesday
      20% on Thursday
      5% on Fridays
      http://www.geocities.com/be — alternative/serenity — pra yer.html (last visited Jan. 8, 2003).
      The "Serenity Prayer” is a variation of a prayer by Reinhold Niebuhr, which was originally part of a sermon in 1943 and later used by Alcoholics Anonymous:
      God, give us grace to accept with serenity the things that cannot be changed, courage to change the things which should be changed and the wisdom to distinguish the one from the other.
      http://www.bartleby.com/63/38/4238.html (last visited Jan. 8, 2003).

      . During closing argument, the prosecutor argued this theory to the jury:
      Nyka O'Connor was the person who actually killed Clifford Clarke. I suggest to you absolutely positively that he is the shooter. No doubt about it.
      Although the state argued this theory, there was no direct evidence of the shooting. Appellant did not testify; the only evidence that came from his mouth was his tape-recorded statement accusing Foster of being the shooter. Foster did not testify.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Azerkhan R. ALIYEV, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-574.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Azer Khan Aliyev’s conviction and sentence for the offense of welfare fraud. We address two issues: whether there was fundamental error in instructing the jury, and whether Aliyev’s due process rights were violated in sentencing.

Aliyev, an immigrant from Azerbaijan, proceeded to trial on the theory that because his native language is Russian, he did not understand the requirement that he report a change in his employment status to the Department of Children and Families (DCF).

There was testimony that Phyllis Gibbs of DCF met with Aliyev in May 1999, to ascertain whether he qualified for benefits and conducted the interview in English, without need for a Russian interpreter. She discussed with Aliyev the conditions of his continued assistance from DCF and had him sign a “rights and responsibilities” form reflecting his understanding of these conditions. Aliyev told Gibbs he was unemployed. Gibbs informed him that he was required to notify DCF within ten days if his employment status changed.

The following month, he was hired as a security officer. A representative of his employer testified to Aliyev’s earnings and hours worked. Subsequently, a few months later, Aliyev was again interviewed by DCF and signed another form advising that there could be criminal penalties for giving false information or hiding information.

Without objection, the court instructed the jury that the state had to prove (1) that Aliyev knowingly failed to disclose a change in circumstances in order to obtain or continue to receive public assistance to which he was not entitled or in an amount larger than that to which he was entitled; and (2) that the aid or benefits came from a state or federally funded assistance program.

At sentencing, defense counsel explained to the court that he felt obligated to take Aliyev’s case to trial because Aliyev could be deported if convicted because the crime involves “moral turpitude.” After hearing from Aliyev’s family, the court announced:

Okay, The Court has sat through the entire trial and I’m familiar already with Mr. Aliyev. And the circumstances, and it’s a difficult position because he does score total sentence points of four points and no priors, and I understand the situation that he was in terms of his— what he perceived as his inability to plea this case out because of his circumstances with immigration.
On the other handled [sic], you know, Mr. Aliyev is in the country for a short period of time, but by some strange coincidence, he keeps finding himself in trouble. I don’t believe that his English was as bad as he states it to be to the extent that he did not understand the forms, but forget about what I think, the jury didn’t believe it. The jury found him guilty.
Even during the trial yesterday, some things that the Court was disturbed about was that Mr. Aliyev didn’t take responsibility, he still — when one of the witnesses was testifying, kept saying she never even met me to the lady that was the person from the Department of Families and Children [sic].
The court has to fashion some type of punishment for the crime based on all the circumstances. And although I do not believe in any way whatsoever that a fair sentence is five years for this case, the Court is adjudicating you, Mr. Ali-yev and the Court is sentencing you to six months Broward County Jail followed by two years of probation.

Aliyev claims that the jury instruction omitted an element of the offense as to the value of the wrongful benefits and that the trial court imposed an unfair sentence upon him in retaliation for his decision to go to trial.

In regard to the jury instruction, Aliyev did not object to the instruction and, on the facts of this case, we cannot conclude that it was fundamental error to fail to instruct the jury that the state had to prove that the value of the assistance illegally obtained was $200 or more. Failure to give a jury instruction constitutes fundamental error if it concerns an essential element of the crime and that element is disputed at trial. See State v. Delva, 575 So.2d 643 (Fla.1991). Here, however, the value of the benefits was not in dispute.

Aliyev does not question the value of the DCF assistance fraudulently obtained or that the amount was proved; instead, he contends that the state failed to prove that he knowingly misled DCF. In closing, defense counsel told the jury, “[t]his case is about one thing, one thing only. Intent.” In cross-examining DCF’s supervisor of claims, defense counsel summarized the facts by stating, “what we’re at trial here for is that [Aliyev] was compensated $823.00 too much money.” The value of the benefits was not disputed. As such, failure to instruct on this element did not “reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. at 644-45. See also F.B. v. State, 816 So.2d 699, 700 (Fla. 4th DCA 2002)(holding that state’s failure to prove value of stolen items was not fundamental error requiring reversal of defendant’s conviction for burglary and first-degree petit larceny).

With regard to the validity of the sentence imposed, clearly the trial court could not impose a harsher sentence upon Aliyev because he exercised his constitutional right to a jury trial, maintained his innocence, or failed to show remorse. E.g. Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999)(reversing sentence where court imposed 20-year sentence after defendant maintained his innocence, refusing to tell court where stolen property was); Johnson v. State, 679 So.2d 831, 832-33 (Fla. 1st DCA 1996)(reversing sentence where court stated: “I will be very candid, what I see is an absolutely indefensible case by someone who has ... put us through going through a whole trial, I guess so he could talk about it. When there was an offer on the table he decided to turn down. Now it’s time to pay the piper.”); Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979)(reversing sentence where court stated: “[t]he defendant has got to face the music once he goes to trial ... And if the appellate court doesn’t like what I am saying, they can very well reverse me, but it is not my intention to try a case and then have the defendant come in and expect to be placed on probation, Unless it is very, very odd and weird circumstances. You can call it punishment for going to trial, if you want to. I don’t look at it that way”).

Here, however, and unlike the cases cited above, the court did not factor in Ali-yev’s decision to go to trial. In fact, the court carefully worded its response to defense counsel’s comment that Aliyev might not have gone to trial had it not been for certain immigration consequences that would result from a guilty plea: “I understand ... what [Aliyev] perceived as his inability to plea this case out....”

As further distinguished from Lyons, Johnson, and Gallucci, the court’s admitted irritation with Aliyev’s failure to take responsibility appears to be less a comment on Aliyev’s assertion of innocence and more a criticism of his courtroom behavior. At one point during the testimony of a DCF specialist who said she met with Aliyev, he loudly proclaimed, “[s]he never met me.” In this context, however, it is unclear from the record that the court was referring to Aliyev’s failure to take responsibility for committing the fraud or for his attempt to interject his side of the story without taking the stand.

In any event, the court clearly did not believe that Aliyev never met with the DCF specialist or that his English was as poor as he and his family claimed. Also, given the short period of time Aliyev had been in this country, the court was unimpressed with his lack of a prior record. We find no error in the court’s assessment of the case.

The court’s comments, on their face, do not give us reason for concern. This is especially so, in light of the sentence the court imposed. Although the state requested that the court impose a state prison sentence of five years, Aliyev received a probation sentence with some county jail time.

Therefore, we cannot conclude on this record that Aliyev was punished for maintaining his innocence. Accordingly, we affirm his conviction and sentence.

GROSS, J. and STERN, KENNETH, Associate Judge, concur.

      . Aliyev was previously tried and acquitted of aggravated battery before the same judge.

      . This is only part of what was owed. The total was $2,600.


author: FARMER, J.

text:
    T.A. ENTERPRISES, INC., a foreign corporation, Appellant, v. OLARTE, INC., a Florida corporation, Appellee.
    No. 4D02-697.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellant.
    Barbara J. Brush, Fort Lauderdale, for appellee.
   FARMER, J.

This Lemon Law case began with arbitration proceedings overseen by the Attorney General’s office and then, following a decision against the defending party in the arbitration, ended up in circuit court. There, the court dismissed an attempt to have the matter determined in a “trial de novo” and, in effect, enforced the arbitration decision. We reverse for further proceedings in the circuit court.

The underlying facts and circumstances are these. Olarte (Buyer) purchased a model E250 van manufactured in 2000 by Ford Motor Company. The vehicle was new, but Buyer elected to have several options added to the van in a “conversion” process performed by Eclipse Conversions. After allegedly having problems with the work done by Eclipse, and claiming that the vehicle was out of service for at least fifteen days as a result thereof, Buyer filed a demand for arbitration under Florida’s Lemon Law. An Arbitration Board (Board) convened under chapter 681 and found that Eclipse had failed to file a timely response and supply certain information as required by the arbitration notice. Eclipse contended that it filed the documents just four days before the arbitration hearing and that it was late only because one of its employees misplaced the notice of arbitration. The Board found that Eclipse had failed to show good cause for the late filing and, accordingly, refused to allow Eclipse to present any affirmative defenses as alleged in its late Answer or adduce any of the evidence disclosed in its tardy filing. Eclipse was allowed to participate in the hearing only to question witnesses and argue its position.

At the conclusion of the hearing, the Board granted the parties additional time to furnish evidence regarding the amount of the Buyer’s alleged collateral expenses. After both parties responded, Eclipse untimely, the Board entered a final written decision with findings of fact and conclusions of law. The Board found that the vehicle was a “lemon,” and required Eclipse to pay damages to Buyer, accept a return of the vehicle, and satisfy Buyer’s debt on the vehicle.

At that point, Eclipse timely filed a petition for an “appeal by trial de novo” pursuant to section 681.1095(12). As grounds for the appeal, Eclipse contended that the Board had erred:

(1) in concluding that Eclipse had not shown good cause for its default in the filing of the response and pre-hearing information and, also, in refusing to permit Eclipse to raise any affirmative defenses and present its own evidence and testimony;
(2) in finding that the various problems with the vehicle constituted substantial impairment of the vehicle’s use, value, or safety; and
(3) in finding that the vehicle was out of repair for 45 consecutive days.

Eclipse also argued that Buyer had misused the vehicle. Eclipse sought a determination that the vehicle was not defective within the meaning of the Lemon Law, and requested an award of attorney’s fees, alleging that Buyer brought its claim in bad faith.

Buyer moved to dismiss Eclipse’s petition. Buyer argued that Eclipse was attempting to raise issues that it did not raise before the Board, that it had failed to attach a copy of the Board’s decision to its petition, and that it had failed to timely send a copy of the petition to the Department of Legal Affairs. Buyer also argued that the petition lacked any justiciable issue of law or facts and that it had been filed in bad faith. Buyer prayed that the petition for review be dismissed and that it be awarded fees, costs, and treble damages allowed by the Lemon Law.

Eclipse responded with argument that Buyer’s motion improperly went beyond the four corners of its “complaint.” Eclipse also argued that it was not precluded in the circuit court’s review from raising in the de novo proceeding any issues not raised before the Board. Eclipse furnished a copy of a letter from the Attorney General which accepted the late filing of the notice without any penalty and withdrew an earlier notice of intent to seek imposition of a fine.

After a hearing, the circuit court entered an order granting Buyer’s motion to dismiss the petition. The court determined that Eclipse had failed to file a timely response to the arbitration notice, as a result of which the Board properly entered a default. Because Eclipse was nevertheless permitted to cross-examine witnesses and argue its position to the arbitrators, the court reasoned, Eclipse was precluded in the trial de novo from presenting issues not raised before the arbitrators. The court also found that Eclipse had failed to serve the Department of Legal Affairs within 7 days of the filing of the petition. The court found that Eclipse demonstrated “tardiness and disdain” for the arbitration in filing a post-hearing response. Moreover, the court found, Eclipse failed to attach a copy of the transcript of the arbitration proceedings and had acknowledged that it had no idea whether a transcript was even available. These failings, the court held, “evidence a lack of pre-filing investigation and due diligence.” The court granted the dismissal with prejudice. It reserved jurisdiction to award damages based on a bad faith fifing in court. It concluded by saying: “Plaintiff T.A. Enterprises, shall take nothing by this action and Defendant, Olarte, shall go hence without day.” Eclipse appeals the order of dismissal.

Judicial proceedings under the Lemon Law were the subject of the supreme court’s consideration in Chrysler Corp. v. Pitsirelos, 721 So.2d 710 (Fla.1998). Pitsirelos was, in turn, further illuminated by the court in Nationwide Mutual Fire Ins. v. Pinnacle Medical, Inc., 753 So.2d 55 (Fla.2000). We thus turn to Pitsirelos and Pinnacle for an understanding of the judicial role in Lemon Law cases.

The issue in Pitsirelos was the constitutionality of the Lemon Law which, it was contended, improperly required that claims under it be determined by compulsory arbitration with only limited court review. As it construed chapter 681, the court said:

“The entitlement of either the consumer or manufacturer to a trial de novo appeal proceeding in the circuit court after completion of this mandatory alternative dispute resolution procedure respects the access-to-courts provision in the Florida Constitution, due process, and separation of powers.” [f.o.]

721 So.2d at 713. The court held that in the trial de novo appeal the party appealing the arbitrator’s decision bears the burden of going forward with the evidence and the burden of ultimate persuasion “in establishing why the Arbitration Board’s decision was erroneous.” 721 So.2d at 714. The court declined to hold that the arbitrator’s decision was entitled to a presumption of correctness, saying that it would be received in evidence along with any other evidence adduced by the parties. It also held that in an award of damages under subsection 681.1095(14) is limited “solely to reimburse the consumer for expenses relating to the loss of use of the vehicle during the pendency of the trial de novo appeal proceeding.” [e.s.] 721 So.2d at 714. Thus, the consumer (Buyer) has the burden of adducing evidence of loss of use of the vehicle during the period of the judicial review.

In Pinnacle, the issue was the constitutionality of compulsory arbitration of health care provider claims under the PIP automobile insurance statutes. The provider argued that compulsory arbitration violated the provider’s right to access to the courts for redress on its claim for payment. To explain why the PIP provision for compulsory arbitration of such claims was invalid, the court said:

“In [Pitsirelos], this Court examined section 681.1095(4), part of Florida’s Motor Vehicle Warranty Enforcement Act, which requires parties in motor vehicle warranty disputes to submit to arbitration before filing an action in circuit court. Section 681.1095(13) provided for a trial de novo in the circuit court for a party who appealed the arbitration award. We determined that the entitlement of either party to a trial de novo in the circuit court after completion of the mandatory arbitration respected the parties’ access to courts. We noted, however, that a statutory requirement that the arbitration board’s decision be presumed correct in the trial de novo would raise serious concerns as to whether such a statute would violate access to courts because it would diminish the right to have the ultimate decision in a case made by a court.
“[The PIP statute] does not provide for a trial de novo in the circuit court. Section 627.736(5) states that the provisions of chapter 682, Florida’s Arbitration Code, shall apply. Under section 682.20, parties may appeal an arbitration award only in limited circumstances, and courts attach a high degree of conclusiveness to the award. The limited review and the conclusiveness attached to the arbitration award without the right of a trial de novo diminishes the right to have the ultimate decision in a case made by a court. As we noted in Pit-sirelos, this violates medical providers’ access to courts.” [c.o.]

Pinnacle, 753 So.2d at 58. In a footnote, the court added:

“The limited standard of review and the high degree of conclusiveness attached to other arbitration awards is permitted because the parties have, by agreement, substituted a tribunal of their own choosing for the forum provided by law. In the instant case, there is no voluntary agreement to arbitrate between medical providers and PIP insurers. Medical providers are forced to arbitrate by terms in an agreement entered into between an insured and an insurer, to which the assignor-insured is not subject.” [c.o.]

753 So.2d at 58. In short, the PIP compulsory arbitration scheme was unconstitutional because of the lack of meaningful judicial review.

Consequently, we understand Pitsirelos to mean that the court found the Lemon Law compulsory arbitration a valid substitute for a civil action because of the existence of meaningful judicial review. The PIP scheme was invalid because it gave the party aggrieved by the arbitration decision only the limited review given to arbitration decisions generally. The Lemon Law scheme, however, grants a form of hybrid, more intensive, judicial review. Instead of deferring to the arbitrator’s decision, as would be the ease if only ordinary appellate review were afforded, the loser in Lemon Law arbitration is given the right de novo to convince a judge that the arbitration decision is wrong. Precisely because the losing party has been given review by trial de novo, the party has the right to offer any evidence tending to demonstrate error in the outcome of the arbitration proceedings.

It is for these reasons that we think the Buyer’s argument in support of the motion to dismiss was not well taken. First, because the trial de novo is a form of review of the arbitration decision, we do not think the failure of the party losing the arbitration to comply with the Board’s procedural rules necessarily should always bar that party from offering evidence showing that the Board’s default decision, or the finding that the vehicle was defective within the meaning of the Lemon Law, were erroneous. In this instance, the decision being reviewed held that the vehicle is defective within the meaning of the Lemon Law. To hold that the default bars Eclipse from showing that the vehicle is not defective is to deny it the very review afforded by the statute.

We conclude, moreover, that the Board erred in entering a default against Eclipse under the circumstances. Eclipse demonstrated that any neglect in timely responding to the arbitration notice was excusable. Therefore, the trial court erred in giving the default any effect by denying Eclipse the right to offer evidence in a trial de novo.

We reject appellant’s argument that because this is a trial de novo the rules of civil procedure necessarily govern in all matters, and that the trial court therefore erred in considering matters outside its complaint. The civil action contemplated by chapter 681 is a proceeding to review the correctness of the arbitration decision in a trial de novo. This statute does not require the losing party in arbitration to plead a cause of action entitling it to review, in the same way that the plaintiff in an ordinary civil action must plead a cause of action entitling it to relief. Instead, the Lemon Law merely requires the party losing the arbitration to file a petition “stating the action requested and the grounds relied on for review.” § 681.1095(12).

In Pitsirelos, the supreme court emphasized that the hybrid form of more intense judicial review afforded in Lemon Law cases is constitutional only because it is by trial de novo. The party losing the arbitration should be allowed to offer evidence showing that the arbitration decision as to the vehicle’s alleged defect is erroneous. Thus this very review process contemplates that the appealing party has the right to offer evidence in support of its position. Eclipse should have been permitted to show that the vehicle was not defective.

In sum, we conclude that it was error to dismiss the petition for review by trial de novo. On remand, Eclipse should be given an opportunity to offer evidence purporting to show that the arbitration decision was erroneous, and Buyer of course should be allowed to present any contrary evidence.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUNTHER, J., and STREITFELD, JEFFREY E., Associate Judge, concur.

      . At the beginning of the arbitration hearing, Ford Motor Company asked to be dismissed from the proceedings, claiming that Buyer’s complaints all related to work done to the vehicle in the aftermarket by appellant rather than by Ford as manufacturing defects. That request was apparently granted, and Buyer makes no contention that the dismissal of Ford was in error. "Eclipse Conversions” is apparently a trade name used by appellant. In this opinion, the term "Eclipse” is intended to refer to appellant.

      . According to the arbitration decision, the defects involved scratched rims and side view mirrors, loose exterior door trim panels, exterior paint defects, peeling bumper strips, intermittent operation of the television set, defective radio (pops while turned off), and a defective visor screen used in reversing the vehicle.

      . See Ch. 681, Fla. Stat. (20,01), esp. § 681.109(1), (2), and (3).

      . See § 681.109(8), Fla. Stat. (2001) ("The department shall have the authority to adopt reasonable rules to carry out the provisions of this section.”).

      . § 681.1095(12), Fla. Stat. (2001) ("An appeal of a decision by the board to the circuit court by a consumer or manufacturer shall be by trial de novo. In a written petition to appeal a decision by the board, the appealing party must state the action requested and the grounds relied upon for appeal. Within 30 days of final disposition of the appeal, the appealing party shall furnish the department with notice of such disposition and, upon request, shall furnish the department with a copy of the order or judgment of the court.” [e.s.] ).

      . See § 681.106, Fla. Stat. (2001) ("Any claim by a consumer which is found by the court to have been filed in bad faith or solely for the purpose of harassment, or in complete absence of a justiciable issue of either law or fact raised by the consumer, shall result in the consumer being liable for all costs and reasonable attorney's fees incurred by the manufacturer, or its agent, as a direct result of the bad faith claim.”).

      . See § 681.1095(13), (14), Fla. Stat. (2001).

      . With regard to Buyer’s contention that the petition for review by trial de novo should have been dismissed on account of the failure to attach a copy of the Board's decision to the petition, and that Eclipse failed to timely send a copy of the petition to the Department of Legal Affairs, we find both grounds insufficient to deny the losing party in arbitration its right of judicial review.


author: GROSS, J.

text:
    Dorothy MAGWOOD, as Personal Representative of the Estate of Anderson Lee Tate, Jr., Appellant, v. Anderson Lee TATE, Sr., and Elijah White, Appellees.
    No. 4D01-3785.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Jennifer S. Carroll and John M. Porter of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, and Ronald L. Ca-son of Law Offices of Ronald L. Cason, Fort Pierce for appellant.
    Deborah A. Sawyer, Fort Pierce, for appellee Anderson Lee Tate, Sr.
   GROSS, J.

The issue in this case is whether the law will find unjust enrichment to create a-contract implied in law that visits the sins of the parents upon their child. We hold that no contract implied in law arises and reverse the final judgment.

This case grew out of the relationship between Virginia Barrett and Anderson Lee Tate, Sr. (“Tate, Sr.”). Barrett met Tate, Sr. around 1969. He was sixteen and she was about the same age. At the time they met, she already had a child. Barrett and Tate, Sr. lived together from 1969 to 1978. They never married. By 1972, the couple had two daughters, La-wanna and Ayanna.

Anderson Lee Tate, Jr. (“Tate, Jr.”) was born on August 15, 1974. Barrett told Tate, Sr. that he was the father of the boy. Tate, Sr.’s name was listed as the father on the birth certifícate. After the boy was born, Tate, Sr. left his job as a migrant worker and began a truck driving job. He participated in Tate, Jr.’s care by diapering him, cleaning him, dressing him, and taking him places.

Barrett and Tate, Sr. separated. In 1979, Barrett filed for public assistance; her application named Elijah White as Tate, Jr.’s father. In connection with the welfare proceeding, White was adjudicated as Tate, Jr.’s father and ordered to pay child support of $25 per month. Tate, Sr. was unaware of these proceedings or that White had been ordered to pay child support.

In 1981 or 1982, Tate, Sr. resumed his previous job as a migrant worker. He traveled to other states for three to six months a year. When he was home in Fort Pierce, Barrett’s children, including Tate, Jr., visited him and he often gave them $10 to $50. He also bought the children clothes, bicycles, and tricycles.

Tate, Jr. died on December 3, 1996. Tate, Sr. was named as Tate, Jr.’s father on the death certificate, in the funeral program, and in the obituary.

As a result of a settlement of a wrongful death lawsuit, Tate, Jr.’s estate recovered $1,822,499.00. Under the terms of the settlement, 70% of the funds were awarded to the estate and Tate, Jr.’s minor son, 15% to the mother, and 15% to the father. A DNA blood test excluded Tate, Sr. as Tate, Jr.’s biological father. Tate, Jr.’s birth and death certificates were amended to reflect that Elijah White was the biological father.

Tate, Sr. filed suit against Barrett, White, and Dorothy Magwood, as personal representative of the estate of Tate, Jr. The basis of the claim against the estate was “reimbursement under the theory of unjust enrichment” for “support, services, the value of comfort, affection, and enjoyment of life, given to decedent” Tate, Jr. until his death. After a trial, a jury awarded $130,000 in damages against the estate.

The issue here is whether Tate, Sr. recovered on a valid cause of action against the estate.

Tate, Sr.’s claim for “reimbursement under the theory of unjust enrichment” was one for a contract implied in law, also known as.a quasi contract. As we wrote in Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997):

A contract implied in law, or quasi contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

(Citations omitted).

“[C]onsiderations of equity and morality play a large part in the process of finding a promise by inference of fact as well as in constructing a quasi contract without any such inference at all.” 1 ARthuR Linton Corbin, Corbin on Contracts § 1.20(a) (Joseph M. Perillo ed., 1993). These considerations come to bear in analyzing the fourth element of a contract implied in law, whether it is “inequitable for the defendant to retain” a benefit received “without paying fair value for it.”

To evaluate Tate, Sr.’s claim against the estate it is essential to understand that the estate stands in the shoes of Tate, Jr. In Sullivan v. Sessions, 80 So.2d 706, 707 (Fla.1955), the supreme court held that a personal representative of an estate stands in the shoes of the decedent, so a person has no greater rights against the estate than the person would have had against the decedent during his lifetime. Thus, Tate, Sr.’s claim here is no different than a father’s claim against a living child to recover for child support paid under a mistaken belief that he owed a father’s duty to the child.

Here, there is no cause of action for a contract implied in law because it is inequitable to force the child to reimburse the mistaken father. The child was under no obligation to support himself. Tate, Sr. discharged the duty of the biological father, Elijah White, not that of the child. It was not the fault of the child that he was born into the midst of a family where his paternity was so uncertain.

Until Tate, Jr. was about five years old, Tate, Sr. lived in the home as part of the family unit with Barrett and her three other children, two of which were fathered by Tate, Sr. It cannot be said that Tate, Jr. ever accepted benefits under circumstances where justice requires him to make repayment. See McLane v. Musick, 792 So.2d 702, 705 (Fla. 5th DCA 2001) (holding that law will not create contract implied in fact for services rendered by and for members of the same family or relatives who live together). We cannot hold Tate, Jr. liable for things that happened when he was a child between the adults who were charged with taking care of him. See Restatement of Restitution § 62 (1988). That the estate is now flush with cash does not create an obligation to reimburse Tate, Sr.; the circumstances giving rise to the wrongful death settlement were unrelated to the conduct upon which Tate, Sr. bases his cause of action.

Our research has disclosed no case holding a child responsible to a mistaken parent under these circumstances. Courts are not inclined to allow contracts implied in law for the recovery of child support paid under mistake, even against parties who created the situation that gave rise to the lawsuit.

In Day v. Heller, 264 Neb. 934, 653 N.W.2d 475 (2002), a man sued a mother for her misrepresentation of his biological fatherhood of a child born during their marriage. After the couple divorced, DNA testing conclusively established that the man was not the biological father of the child. Id. at 477. One count of the man’s suit against the mother was for as-sumpsit, a contract implied in law, based on unjust enrichment. Id. The supreme court of Nebraska held that this cause of action was against public policy:

As we read his petition, [the man’s] fraud and assumpsit claims are for [the mother’s] misrepresentation that led [the man] to make investments of time, emotion, and money in [the child] that he would not have made had he known that [the child] was not his biological son. In effect, [the man] is saying, “He is not my son; I want my money back.” [The man’s] fraud and assumpsit causes of action focus on the burdens of the parent-child relationship.... We do not believe that having a close and loving relationship “imposed” on one because of a misrepresentation of biological fatherhood is the type of “harm” that the law should attempt to remedy.

Id. at 479. If public policy precludes a suit against the mother who misled the would-be father into paying child support, it obviously prevents a suit against the child.

Smith v. Ohio Department of Human Services, 103 Ohio App.3d 149, 658 N.E.2d 1100 (1995), involved a suit by a man who was misled by a woman into admitting paternity for a child. Because the mother received public assistance, child support payments were collected by the Ohio Department of Human Services (“ODHS”). After genetic testing excluded the man as the father of the child, he brought suit against ODHS seeking restitution for the child support collected from him. The Ohio court held that the man was not entitled to restitution, in part because ODHS had committed no wrongdoing in following the dictates of a paternity judgment. As the court observed, “the hard truth is that the unjust impoverishment which [the man] has suffered does not necessarily correspond to any unjust enrichment on the part of the state.” Id. at 1101. Like ODHS in Smith, Tate, Jr. did not cause Tate, Sr.’s mistaken payments.

For these reasons, we reverse the final judgment and remand to the trial court with instructions to enter judgment in favor of Magwood.

SHAHOOD, J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . The estate preserved this issue for appellate review. It raised the defense of failure to state a cause of action in an omnibus pleading, including a motion to dismiss and affirmative defenses filed on December 15, 1999.
        See Fla. R. Civ. P. 1.140(h)(2). The issue was again broached in a motion and amended motion for summary judgment.


author: STONE, J. DAVIDSON, LISA,

text:
    Francisco R. PERALTA, Appellant, v. Christine L. PERALTA, Appellee.
    No. 4D01-2780.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Francisco R. Perlata, Plantation, pro se.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   STONE, J.

Both parties challenge the final judgment of dissolution. With respect to the husband’s claims and the trial court’s award of alimony, child support, and other expenses to be paid by the husband, and as to the court’s equitable distribution, the record reflects no reversible error or abuse of discretion and we affirm. We reverse, however, as to the wife’s cross-claim for attorney’s fees. We address only that issue.

The husband had been a vice president of Nortel, but by the time of this action, his earning ability was reduced from the $500,000 range to an imputed earning ability of at least $140,000 per year. The court found that the wife is currently capable of earning $15,000 per year in part-time employment.

Relevant portions of the trial court’s judgment provided that the marital estate be equally divided, except that the husband was assigned some financial responsibility for his expert/accountant’s excessive bill. The court recognized that other than monies received by virtue of equitable distribution of alimony, the wife has no independent source of income, except for part-time employment. The husband, on the other hand, currently was receiving $222,000.00 per year for another six months under his severance contract with Nortel, and has the ability to earn “at least ” an additional $140,000.00 per year.

The court recognized that during the course of this litigation, the husband had freely spent joint monies and liquidated the marital estate without the consent of the wife, notwithstanding that the wife and her counsel requested the opportunity to participate in decision-making with respect to the marital estate. The husband steadfastly refused to include the wife in any decision-making with respect to the marital property. The court specifically noted that the husband had dissipated part of the marital estate by “needless and unnecessary” expenditures for his accountant/expert.

There was evidence that $387,000.00 was spent in combined litigation fees and costs in this case and that some of those expenditures were unnecessary. Of this sum, only $104,000 was associated with legal and accounting expenses incurred by the wife.

Recognizing that it was inequitable to “saddle Wife with all of the financial responsibility of Husband’s accountant,” the court determined that at least $100,000.00 was excessively spent by the husband on his accountant, dissipating the marital estate by at least that amount. As a result, the wife was awarded an additional $50,000.00 to compensate her for the marital waste.

The court made an equitable distribution award of $458,000.00 to each party, the wife’s share consisting of $225,000 plus the equity in the marital home. The court further ordered that “each side shall bear his/her attorneys’ fees, costs and accounting expenses” (exclusive of the $50,000 accounting fee adjustment).

We recognize that the trial court has broad discretion as to the award of attorney’s fees in dissolution cases. See Driscoll v. Driscoll, 763 So.2d 1189 (Fla. 4th DCA 2000). Here, attorney’s fees for both parties were paid by the husband out of the parties’ marital account. The wife argues that she should not be punished because her attorneys were cheaper and more efficient than the husband’s.

It is clear that the court intended to equitably distribute the parties’ assets so that both sides were in equal financial positions and, at the same time, cause each to be responsible for their own attorney’s fees.

There is no indication in the judgment or record why, having found each to be entitled to an equal distribution, the court failed to allocate a disproportionate share of the equitable distribution to the wife based on the husband’s unequal attorney’s fee expenditures out of the marital funds.

The record reflects that approximately $283,000.00 came from the marital estate for the husband’s accountant and lawyers. Of this sum, $155,000.00 was spent on his accountant, leaving a balance of approximately $128,000.00 that was apparently spent on his attorneys. The record also reflects that $64,000.00 was paid to the wife’s attorneys. It, therefore, appears that in order to enforce the trial court’s order that each side bear their own attorney’s fees, the wife is entitled to a credit for the disproportionate share of marital assets paid to the husband’s attorneys.

If the funds used for the attorney’s fee had been split equally by the parties, each side would have had around $96,000.00 available from the marital estate to spend on attorneys. There is no basis in the record or judgment for penalizing the wife in this regard. Therefore, the wife should receive an additional adjustment so that her share of the marital estate is not reduced as a result of the husband’s higher attorney’s fees. To hold otherwise would render meaningless the provision that each be responsible for their own fees.

We remand for further proceedings and modification consistent with this judgment.

POLEN, C.J., concurs.

DAVIDSON, LISA, Associate Judge, concurs specially with opinion.

DAVIDSON, LISA,

concurring specially.

I would reverse the trial court’s ruling as to the Wife’s cross-claim for attorney’s fees and costs pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla.1997). The parties spent a combined total of $387,000.00 on attorney’s fees and accounting costs. The trial court awarded the Wife an additional $50,000.00 in equitable distribution to compensate her for the marital waste due to the excessive amount the Husband spent on his accountant. The remaining amount expended by the parties for attorney’s fees and accounting fees was $287,000.00. These expenditures reduced the marital estate by twenty-five percent, and the Husband was responsible for spending two-thirds of that amount. The evidence is clear that the Husband “over-litigated” this case and that the Wife was forced to utilize her attorneys and accountants to defend against the Husband’s frivolous litigation tactics. I would remand this case to the trial court for a determination of the amount of attorney’s fees and accounting costs that the Wife expended to defend the Husband’s unwarranted litigation. In addition, I would direct the trial judge to examine the Husband’s expenditures on attorney’s fees to determine by how much he unnecessarily dissipated the marital estate. It is difficult to believe that under the facts of this case that the Wife’s reasonable attorney’s fees were $64,000.00 and the Husband’s reasonable attorney’s fees were almost double that amount. The Husband should compensate the Wife for her attorney’s fees and accounting fees that were expended due to his unnecessary litigiousness and for his own attorney’s fees which unnecessarily reduced the marital estate. To do otherwise would unjustly reward the Husband financially and penalize the Wife.

I would also note that the majority opinion recognizes that during the course of this litigation, the Husband made decisions regarding the marital estate including spending joint monies and liquidating assets of the estate without the consent or input from the Wife. Often this occurs in dissolution proceedings before the parties can have a temporary relief hearing and obtain a court order to prevent such unilateral decision-making by one or both parties. This points out the value of standing orders in each jurisdiction prohibiting either party from selling, donating, pledging, encumbering, or otherwise disposing of any marital property without prior consent of the other spouse or court order, except for use of cash, checking accounts, or other sources of funds customarily used to pay ongoing living expenses, debt, or other marital obligations of the parties.


author: DAVIS, Judge.

text:
    Jerry Lee SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5052.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
   DAVIS, Judge.

Jerry Lee Scott appeals the trial court’s order denying his motion to correct an illegal sentence. Scott argues that his prison releasee reoffender sentence is illegal, basing that argument on our decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). The trial court denied his motion, finding that the subsequent reenactment of the statutory amendments invalidated by Taylor applied retroactively to validate Scott’s sentence.

We affirm without discussing the trial court’s reasoning. Taylor only invalidated the proposed amendments to section 775.082, Florida Statutes (1999), not the entire statute. The provisions of the Prison Releasee Reoffender Punishment Act existing prior to the attempted amendments in 1999 were not invalidated by Taylor, and a sentence imposed pursuant to those provisions is legal. Accordingly, to be entitled to relief, Scott must allege that his sentence comes within the provisions of the amendments. See Sigafoos v. State, 825 So.2d 529 (Fla. 2d DCA 2002). Since Scott has not alleged nor demonstrated that his sentence is illegal under the 1999 amendments, his motion was properly denied.

Affirmed.

FULMER and COVINGTON, JJ., concur.


author: BLUE, Chief Judge.

text:
    David P. SEPULVEDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3162.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
   BLUE, Chief Judge.

Affirmed without prejudice to any right appellant might have to seek postconviction relief under the holding of Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002).

ALTENBERND and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    Jonas NIVOSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5017.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      James P. D’Angelo, Delray Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Appellant, Jonas Nivose, appeals from a circuit court order denying the assistance he requested in a letter to the judge, arguably seeking to withdraw his guilty plea. It appears that appellant may have a valid basis to withdraw his plea as involuntary because he did not understand the deportation consequences of the plea. However, the letter was not sworn and did not include the contents required by rule 3.850(c) so that it could properly be considered a rule 3.850 motion. Accordingly, we affirm the trial court’s denial of relief, without prejudice to appellant’s filing a timely, sworn, and facially sufficient rule 3.850 motion containing the contents required by rule 3.850(c). See, e.g., Brawn v. State, 661 So.2d 95 (Fla. 4th DCA 1995).

FARMER, GROSS and TAYLOR, JJ., concur.


text:
    Nestor DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3430.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Nestor Diaz, Jasper, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Upon the State’s proper confession of error, we reverse the trial court’s order denying defendant credit for time served in Broward County Jail and remand with directions to correct defendant’s sentence to reflect 54 additional days of credit for time served.

REVERSED and REMANDED with directions.

FARMER, STEVENSON and MAY, JJ., concur.


text:
    M.C.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1343.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the court’s disposition order in this juvenile delinquency case. However, we remand the commitment order to the court to set the maximum length of commitment, which “is limited to the maximum adult term or to the date of the juvenile’s nineteenth birthday, whichever occurs first.” M.C.P. v. State, 732 So.2d 339, 340 (Fla. 1st DCA 1998) (citations omitted).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Alonzo COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2604.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Alonzo Cooper, Arcadia, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Alonzo Cooper appeals the summary denial of his Rule 3.850 motion for postcon-viction relief raising multiple claims of ineffective assistance of counsel. We have reviewed Cooper’s claims and determined that summary denial was improper on one of them.

Cooper alleges that trial counsel conceded his guilt to charged offenses without his consent. The record reveals trial counsel conceded Cooper’s involvement in the charged criminal acts in opening argument and failed to subject the state’s case to meaningful adversarial testing. A presumption of ineffectiveness arises in this situation unless Cooper consented to counsel’s strategy. See Nixon v. Singletary, 758 So.2d 618 (Fla.2000), cert. denied, 531 U.S. 980, 121 S.Ct. 429, 148 L.Ed.2d 437 (2000); Smallwood v. State, 809 So.2d 56 (Fla. 5th DCA 2002); United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

The record attachments provided by the trial court do not conclusively refute Cooper’s claim. See McLin v. State, 827 So.2d 948 (Fla.2002). Therefore, we reverse and remand for the trial court to conduct an evidentiary hearing or attach portions of the record conclusively refuting Cooper’s claim that he did not consent to counsel’s strategy.

REVERSED AND REMANDED.

KLEIN, SHAHOOD and HAZOURI, JJ., concur.


text:
    Eluterio ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3538.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Eluterio Ortiz, appeals his conviction on the charge of attempted first degree murder, raising two points on appeal. We affirm as to both issues raised.

In his first issue, appellant argues that the trial court abused its discretion in substituting an alternate juror for a juror selected to serve on the panel who had been sleeping during the proceedings.

The trial court has broad discretion with regard to the course of the trial and the conduct of the jurors. See Orosz v. State, 389 So.2d 1199, 1200 (Fla. 1st DCA 1980). Accordingly, whether to remove a sleeping juror and substitute him or her with an alternate is within the discretion of the trial court. Id.; accord Bullis v. State, 734 So.2d 463 (Fla. 5th DCA 1999). In Orosz, the First District concluded that any error in removing a sleeping juror was harmless because the juror “was replaced by a duly selected alternate who had been present during the entire proceedings and appellant has not shown that he was prejudiced by the substitution.” 389 So.2d at 1200; see also Burgal v. State, 740 So.2d 82, 83-84 (Fla. 3d DCA 1999). With almost identical facts in this case, we follow Orosz.

We also affirm the second issue raised by appellant, the constitutionality of the Criminal Punishment Code. See Hall v. State, 823 So.2d 757 (Fla.2002).

AFFIRMED.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


author: STEVENSON, J.

text:
    Ronna MARTINO and Raymond Martino, her husband, Appellants, v. WAL-MART STORES, INC., an Arkansas corporation, Appellee.
    No. 4D01-2693.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.

      Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., and Steven W. Halvorson of Schuler & Halvorson, P.A., West Palm Beach, for appellants.
    Brent F. Bradley of Kinsey, Troxel, Johnson & Walborsky, P.A., and Jeffrey P. Gill of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for appellee.
   STEVENSON, J.

While shopping at a Wal-Mart store, Ronna Martino was allegedly injured when her shopping cart collapsed. This appeal stems from the entry of a directed verdict in favor of Wal-Mart Stores, Inc., on the Martinos’ negligence claims and dismissal of the Martinos’ spoliation of evidence claim. We reverse the directed verdict on the negligence claims, but affirm the dismissal of the spoliation of evidence claim.

The Proceedings Below

Ronna and Raymond Martino filed suit against Wal-Mart Stores, Inc., alleging that Ronna Martino was injured on March 1, 1997, while at a Wal-Mart on State Road 7 in Royal Palm Beach. According to the complaint, Mrs. Martino was in the check-out line and a cashier asked her to lift up a bag of water softener salt so that the cashier could scan the price code. Mrs. Martino placed the bag of salt on top of the shopping cart, but the cart collapsed, injuring her hand. Initially, the Martinos claimed only that Wal-Mart was negligent in its inspection and maintenance of the store’s shopping carts (the “negligent maintenance” theory) and in failing to properly train store employees regarding appropriate procedures for scanning and customer handling of heavy items (the “negligent mode of operation” theory). When Wal-Mart could produce neither the shopping cart nor. a security video that may have recorded the accident, the Mar-tinos added a claim against Wal-Mart for spoliation of evidence.

The Dismissal of the Spoliation Claim

In their second amended complaint, the Martinos attempted to state a distinct cause of action for spoliation of evidence (count III) predicated upon allegations that Wal-Mart’s loss of and/or failure to preserve the shopping cart and video tape impaired the Martinos’ ability to prevail in the negligence claims stated in count I. Prior to trial, Wal-Mart sought dismissal of the spoliation claim, arguing that one of the elements of a cause of action for spoliation of evidence is a legal or contractual duty to preserve the evidence and that Wal-Mart owed no such duty to the Marti-nos. The trial court granted Wal-Mart’s motion and dismissed the spoliation of evidence claim.

The spoliation of evidence count of the complaint alleged that: (1) on the same day that Mrs. Martino was injured, she informed Wal-Mart’s assistant manager of the accident and that an incident report was prepared; (2) she requested that the manager retrieve and preserve the security video that may have recorded the incident; (3) when Mrs. Martino returned to the store after receiving medical treatment, she observed the cart in the parking lot where she had left it and advised the assistant manager of this fact; and (4) just two days after the incident, Wal-Mart’s risk management service took her statement. The Martinos contend that these facts were sufficient to put Wal-Mart on notice that litigation was likely and that such notice created a duty to preserve the items.

This district first recognized a cause of action for spoliation of evidence in St. Mary’s Hospital, Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996)(on rehearing). There, during surgery, a child received an increased amount of anesthesia, suffered cardiac arrest, and, ultimately, died. The child’s parents brought a negligence action against the hospital, the surgeon, and the surgeon’s professional association. The plaintiffs reached a settlement with the surgeon and the surgeon’s professional association, leaving only the negligence claim against St. Mary’s. During discovery, it was learned that the anesthesia machine used during the surgery had been disassembled by the machine’s manufacturer. When the child’s parents discovered the machine’s condition, they added a claim against St. Mary’s for the negligent or intentional destruction of the machine, alleging that St. Mary’s knew of the parents’ potential claim against the manufacturer, that the hospital had a duty to preserve the machine, and that their failure to preserve the machine had significantly impaired the parents’ ability to prove their cause of action against the manufacturer.

In St. Mary’s Hospital, Inc., the court adopted the elements of a spoliation claim set forth in Continental Insurance Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990):

(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.

Wal-Mart argues that the dismissal was correct because, in order to state a claim for spoliation of evidence, the “duty” to preserve the item in question must be shown by contract, agreement, statute or administrative regulation. See, e.g., Builder’s Square, Inc. v. Shaw, 755 So.2d 721, 723-24 (Fla. 4th DCA 1999)(finding that worker’s compensation statute imposed on employer a duty to preserve evidence), review denied, 751 So.2d 1250 (Fla.2000); Brown v. City of Delray Beach, 652 So.2d 1150, 1153 (Fla. 4th DCA 1995)(finding that duty to preserve could arise as result of officer’s repeated promises); Cont’l Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990)(finding that duty to preserve arose as result of agreement); Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984)(finding a duty to preserve as result of administrative regulations). But see Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4th DCA 2001)(implicitly recognizing a retail establishment’s duty to preserve evidence a broken bottle—in the absence of any contract, statute or administrative regulation), review denied, 817 So.2d 849 (Fla.2002).

Irrespective of the duty issue, we find that the Martinos’ spoliation of evidence claim suffers from a fundamental flaw. Here, the Martinos allege that Wal-Mart’s failure to preserve evidence has impaired their ability to prevail in the very negligence claim they have brought against Wal-Mart. These facts raise an issue that this district has never squarely addressed' — whether an independent cause of action for spoliation of evidence is proper when the defendant in the spoliation claim is also the defendant in the underlying claim allegedly impaired by the loss or destruction of the evidence.

The California Supreme Court recently wrestled with this question in Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998), and concluded that the answer is “no.” In Cedars-Sinai, a medical malpractice suit was brought against the hospital and others after an infant suffered oxygen deprivation, during birth. The defendant hospital was unable to locate some of the records, including the fetal monitoring strip that recorded the infant’s heartbeat during labor. As a result, a claim was added for intentional spoliation of evidence. Noting that some of the state’s lower courts had recognized an independent cause of action for spoliation of evidence, see Willard v. Caterpillar, Inc., 40 Cal.App.4th 892, 48 Cal.Rptr.2d 607 (1995), and Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984), the California Supreme Court accepted review for the express purpose of deciding whether the state should recognize a tort remedy for the intentional destruction of evidence by one who is a party to the underlying action—a so-called “first party spoliator.” See Cedars-Sinai, 74 Cal.Rptr.2d 248, 954 P.2d at 513.

While the court condemned the destruction of evidence, it believed that this was not reason enough to create tort liability for the conduct. The court noted that, historically, California’s courts favored remedying litigation-related conduct with sanctions, including the presumption that evidence destroyed by a party would have been unfavorable to that party, monetary fines, contempt, exclusion of evidence, striking of pleadings, and even entry of default judgments — all authorized by California’s rules of civil procedure. The court then cited the California Bar’s disciplinary sanctions for attorneys who participate in the spoliation of evidence and the penal laws making it a crime to destroy evidence. Having addressed the adequacy of the remedies already in place to address the wrong, the court turned its attention to the pitfalls in adopting an independent cause of action in the first party spoliator context. Paramount among the court’s concerns were the speculative nature of the harm and damages, and the potential for abuse. “ ‘A new cause of action could accrue each time a plaintiff loses a lawsuit, for in most cases there is likely to be some piece of potential evidence that is not available at the time of trial.’ ” Id. at 519 (quoting Comment, Spoliation of Evidence: A Troubling New Tort, 37 U. Kan. L.Rev. 563, 592 (1989)).

The California Supreme Court is not alone in its concerns. A number of jurisdictions have refused to recognize an independent cause of action for spoliation where the spoliator is the defendant in the underlying litigation, finding that remedies like sanctions and adverse evidentiary presumptions are adequate to address the problem. See, e.g., Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 493 (Alaska 1995); Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000); Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247 (Del.Super.Ct.1998); Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997); Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, 768 (1985); Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11, 17 (1999); Trevino v. Ortega, 969 S.W.2d 950 (Tex.1998).

There are, of course, courts that have arrived at the contrary conclusion, finding that an independent cause of action for spoliation of evidence will lie even where the spoliator is a defendant to the underlying litigation. One of our sister courts falls into this latter group. In Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), the first Florida case to recognize a cause of action for spoliation of evidence, the spoliator was a defendant in the underlying action. There, Dave Bondu underwent by-pass surgery. During the administration of anesthesia, Bondu suffered cardiac arrest and died. Bondu’s wife sued the hospital, the Florida Patients’ Compensation Fund, and the anesthesiologists. In count VIII of her complaint, Mrs. Bondu alleged that the hospital was negligent per se for failing to provide her with requested medical records as required by statute and that such failure had frustrated her ability to prove her case. In count IX, she alleged that the hospital had intentionally interfered with her cause of action in that it “purposely and intentionally lost and/or destroyed” anesthesiology records. Id. at 1310. Counts VIII and IX were dismissed for failure to state a cause of action. The Third District reversed, finding that Mrs. Bondu’s claim that the hospital’s failure to keep and maintain records had rendered her unable to prove her malpractice claim against the hospital and others was cognizable.

As authority for adopting the cause of action, the Third District cited the California cases of Williams v. California, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 (1983), and Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984) [later overruled by Cedars-Sinai ]. The panel recognized that in those cases the spoliator was not a defendant in the underlying litigation, but reasoned that “[i]f, as in Williams and Smith, an action for failure to preserve evidence or destruction of evidence lies against a party who has no connection to the lost prospective litigation, then, a fortiori, an action should lie against a defendant which, as here, stands to benefit by the fact that the prospect of successful litigation against it has disappeared along with the crucial evidence.” Bondu, 473 So.2d at 1312.

Despite the decision in Bondu, having now squarely confronted the issue, we side with those courts that have held that an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same. Many of the reasons advanced by the California Supreme Court in Cedars-Sinai have equal application in Florida. For example, here, too, the rules governing attorneys prohibit the obstruction of a party’s access to evidence and the destruction, concealment or alteration of evidence. See R. Regulating Fla. Bar 4-3.4. And, in Florida, any number of sanctions and negative consequences are available against parties to litigation. Chief among these sanctions are the adverse evi-dentiary inferences and adverse presumptions found in the case law. See Pub. Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987); Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So.2d 346 (Fla. 4th DCA 2001); Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701, 703 (Fla. 4th DCA 1995); N.H. Ins. Co. v. Royal Ins. Co., 559 So.2d 102, 103 (Fla. 4th DCA 1990). Like these many other jurisdictions, we believe that the adverse inferences and the myriad of other available sanctions adequately remedy the wrong suffered by the plaintiff as the result of the loss of the evidence. Consequently, we hold that where the spo-liator is also the defendant in the underlying cause of action, the plaintiff cannot maintain a cause of action against that defendant for spoliation of the evidence. As the result of our holding, we certify conflict with Bondu.

The “Negligent Maintenance” Theory

At the outset of trial, the Martinos’ attorney recognized that, without the shopping cart, his clients would be unable to prove that Ronna Martino’s injuries resulted from the negligent maintenance of the shopping cart. The Martinos’ counsel, however, argued that Wal-Mart’s failure to produce the shopping cart and video tape had two possible consequences. First, citing Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701 (Fla. 4th DCA 1995), and New Hampshire Insurance Co. v. Royal Insurance Co., 559 So.2d 102 (Fla. 4th DCA 1990), counsel asserted that the failure to produce the cart created an inference that evidence regarding the cart’s condition would have been unfavorable to Wal-Mart, asking for a jury instruction of like effect. ■ Second, citing Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987), counsel argued that Wal-Mart’s failure to produce the cart served to shift the burden of proof, creating a rebuttable presumption of negligence. The trial court rejected both arguments, finding that entitlement to both forms of relief required that Wal-Mart have a duty to preserve the evidence and this issue was decided adversely to the 'Martinos when the spoliation of evidence claim was dismissed for lack of such a duty. In fact, the judge went so far as to state that he would instruct the jury to draw no inferences from the absence of the cart. At the close of the Martinos’ case, the trial court declined to reconsider his ruling and directed a verdict in favor of Wal-Mart on the negligent maintenance theory.

On appeal, the Martinos do not challenge the court’s refusal to give either the requested adverse inference instruction or the burden of proof shifting presumption of negligence instruction formulated in Valcin. Rather, the Martinos argue that the entry of the directed verdict was improper in view of the cases which allow for an adverse inference, unfavorable to the party failing to produce evidence, to be taken where there is destruction or unexplained disappearance of crucial evidence. See Amlan, Inc., 651 So.2d at 703; N.H. Ins. Co., 559 So.2d at 103. Indeed, these principles formed the basis for the Valcin decision, but as appellants recognize, the presumption of negligence instruction in Valcin was predicated on the health care provider’s failure to maintain required medical records. See Valcin, 507 So.2d at 600.

We agree with appellants that a proper consideration of the “adverse inferences” which may arise when a party fails to produce pertinent evidence within its control required that the negligent maintenance claim in this case be presented to the jury. Unlike the presumption of negligence which may arise under Valcin, the adverse inference concept is not based on a strict legal “duty” to preserve evidence. Rather, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence. Cf. N.H. Ins. Co., 559 So.2d at 103 (stating that “where a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it”). Mrs. Martino testified that she “pointed out” where her cart was in the parking lot and requested that the assistant manager save both the cart and the video tape. If Mrs. Martino’s testimony were believed, the jury could have inferred that the condition of the cart and the actions depicted on the video would have been unfavorable to Wal-Mart. See Valcin; Amlan, Inc.; N.H. Ins. Co. This “adverse inference” may have led the jury to find that Mrs. Marti-no’s claim was valid. Thus, the Martinos’ are entitled to a new trial on their claim that Wal-Mart negligently maintained its shopping carts.

The “Negligent Mode of Operation” Theory

The supreme court’s decision in Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (1948), was one of the first to recognize a “method or mode of operation” theory of negligence, which did not require proof of actual or constructive knowledge on the part of the defendant. In Wells, however, the plaintiff suffered injuries while at a dog track and the decision was predicated, in part, on the nature of the business establishment. Consequently, after Wells, the question that arose was whether such a theory of liability applied to more traditional places of business. At the time that this case was tried, there were decisions from both this district and the First District that a plaintiff could not pursue a negligent “mode of operation” theory to establish liability in a foreign substance, supermarket slip and fall case. See Soriano v. B & B Cash Grocery Stores, Inc., 757 So.2d 514, 516-17 (Fla. 4th DCA 1999); Rowe v. Winn-Dixie Stores, Inc., 714 So.2d 1180 (Fla. 1st DCA 1998). Wal-Mart argued that these cases served to bar the Martinos’ negligent “mode of operation” theory of liability. The trial court accepted this argument and entered the directed verdict that the Mar-tinos now challenge.

Following the trial of this case, the supreme court decided Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 332 (Fla.2001), which overruled both Rowe and Soriano and recognized the “continued viability” of such “mode of operation” theory of liability. In its answer brief, Wal-Mart concedes that the supreme court’s decision in Owens would allow the Martinos “to proceed under a negligent mode of operation theory,” but argues that this was not the law prior to Owens and that the supreme court expressly limited the effect of its opinion to “all cases commenced after the decision becomes final and those cases already commenced, but in which trial has not yet begun.” Id. at 331. The Martinos acknowledge that the Owens decision does not apply to their case. They contend, however, that this is not dispositive of the issue as theirs is not a foreign substance, supermarket slip and fall case and the law prior to Owens, and at the time the trial court entered the directed verdict, permitted them to pursue a negligent mode of operation theory of liability. We find merit in the Martinos’ position. Well before the Owens decision, outside of the context of foreign substance, supermarket slip and fall cases, Florida’s courts have applied a “mode of operation” theory of liability to premises liability cases. See, e.g., Brisson v. W.T. Grant Co., 79 So.2d 771 (Fla.1955); Fontana v. Wilson World Maingate Condo., 717 So.2d 199 (Fla. 5th DCA 1998). Since, contrary to the trial court’s ruling, the law did permit the Martinos to pursue their “mode of operation” theory of negligence, we reverse the directed verdict in favor of Wal-Mart on this issue and remand for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED.

WARNER and HAZOURI, JJ., concur.

      . We reject appellants’ argument that our opinion in Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4th DCA), review denied, 805 So.2d 810 (Fla.2001), can be read as recognizing an independent cause of action for spoliation where the spoliator is a defendant in the underlying action. While this was a "fact” of the litigation, it was not a contested legal issue resolved by the court.

      . We note, however, that while counsel is free to make arguments concerning the adverse inference created by Wal-Mart’s failure to produce the shopping cart and videotape, a jury instruction on this matter is not appropriate. See Jordan ex rel. Shealey v. Masters, 821 So.2d 342, 346-48 (Fla. 4th DCA 2002).


author: KLEIN, J.

text:
    Deborah ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1906.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee.
    STEVENSON and TAYLOR, JJ., concur.
   KLEIN, J.

Appellant was convicted of second degree murder as a result of shooting and killing her former husband. We find no errors as to the conviction,' but conclude that the trial court erred in using a domestic violence multiplier when imposing her sentence.

The multiplier was imposed under section 921.0024, Florida Statutes (1999), which provides for multiplying sentencing points by 1.5 if domestic violence is committed in the “presence” of a child who is a family household member. In this case it was undisputed that the shooting occurred in the mother’s bedroom while the children were in another bedroom. The children came into the mother’s bedroom right after the shooting.

The most comprehensive discussion of “presence” is found in State v. Werner, 609 So.2d 585, 586 (Fla.1992), in which the defendant had admitted to his wife that he had masturbated while he and his thirteen month old daughter were in the bathroom.

The issue in Werner was whether the state had to prove, in a trial for committing a lewd or lascivious act in the presence of a child, that the act was perceived by the child. Our supreme court concluded, after discussing a number of definitions of “presence,” that the word “encompasses sensory awareness as well as physical proximity.” The court observed that even if the term “presence” was ambiguous, it would have to be construed most favorably to the accused and held that the element of presence was not established.

We agree with appellant that, because the children were in a different room in the house when the victim was shot, this crime was not committed in the children’s presence. Finding no other errors, we affirm the conviction, but remand for correction of the sentence.

STEVENSON and TAYLOR, JJ, concur.


text:
    Donald Harvey SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5279.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    James Marion Moorman, Public Defender, Bartow, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and William I. Munsey, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Donald Smith challenges the trial court’s denial of his motion to withdraw plea. Although an apparent conflict developed between Smith and his trial counsel at the hearing on the motion, the trial court failed to offer Smith the assistance of a separate attorney. We reverse.

The preferred course to follow once a defendant files a motion to withdraw plea alleging misrepresentation, coercion or duress by defense counsel, or once a conflict of interest arises between the defendant and defense counsel at the motion hearing is for the trial court to appoint or allow the defendant to retain independent counsel solely for the purpose of representation on the motion to withdraw plea.

Holifield v. State, 717 So.2d 69, 69 (Fla. 1st DCA 1998) (emphasis added).

Once the conflict became apparent, Smith was without representation. See Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999) (“[A]s the hearing unfolded, Padgett was for all intents and purposes unrepresented. Once it became clear at the hearing that appellant and his counsel had indeed taken adversarial positions ... appellant was entitled to the appointment of conflict-free counsel”).

Accordingly, we reverse and remand for a new evidentiary hearing with instructions for the trial court to appoint conflict-free counsel.

Reversed and remanded.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: COVINGTON, Judge.

text:
    Bobby Lewis COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5700.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   COVINGTON, Judge.

Bobby Lewis Cooper challenges the fifteen-year concurrent sentences he received for violation of probation as to three counts of forgery. Each of the violations was a third-degree felony punishable by up to five years’ imprisonment. He contends the trial court improperly sentenced him to fifteen years’ imprisonment on each count. Cooper raises no other issues in this appeal.

The record shows that the trial court sentenced Cooper to fifteen years concurrent on each of the three third-degree felonies. Since Cooper was sentenced under the 1988 sentencing guidelines his sentences could not exceed the statutory máx-imums. See § 921.001(5), Fla. Stat. (Supp. 1988). Thus, the trial court erred by imposing the fifteen-year sentences. We reverse and remand for the trial court to resentence Cooper to sentences that do not exceed the statutory máximums.

Reversed and remanded for resentenc-ing.

WHATLEY and NORTHCUTT, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Marilyn M. MASTERMAN, Appellant, v. Gary G. MASTERMAN, Appellee.
    No. 2D01-5301.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Gregg M. Horowitz, Sarasota, for Appellant.
    No appearance for Appellee.
   CASANUEVA, Judge.

In this postdissolution matter, Marilyn M. Masterman (the former wife) appeals from an order denying her motion to enforce a settlement agreement that was incorporated into her 1979 Massachusetts divorce judgment. In her motion the former wife alleged that Gary G. Masterman (the former husband) had failed to abide by the terms of their agreement. Specifically, he allowed a life insurance policy that named the former wife as beneficiary of a $25,000 lump-sum death benefit to lapse. After a hearing, the circuit court denied the former wife’s motion on the ground that the former husband is now uninsurable and therefore is incapable of retaining similar or equal insurance coverage. With reluctance, we affirm.

The former wife alleged in her affidavit in support of the motion to enforce the settlement agreement that the former husband’s failure to maintain payments on the policy was deliberate. Because the hearing was not transcribed and because the husband has not made an appearance in this appeal, we cannot evaluate the veracity of that statement, which the circuit court did not address in its order. Nevertheless, it makes no difference to our analysis whether or not the husband’s failure was deliberate.

Our decision to affirm is based upon the language of the stipulation incorporated into the parties’ divorce decree. The clause relating to life insurance appears as a wholly separate term of their contract and expresses no purpose “to protect an award of alimony” as contemplated by section 61.08(3), Florida Statutes (2001). Accordingly, the trial court had no power to enforce compliance with that clause by use of its contempt powers.

Because the record in this case is limited, we cannot discern whether or not the former wife might have a viable action for breach of contract against the former husband. Therefore, our affirmance in this case is without prejudice to her right, if any, to bring such an action when and if all of its elements accrue.

Affirmed.

NORTHCUTT, J„ and DANAHY, PAUL W., Senior Judge, Concur.


text:
    M.R.L., Jr. In the Interest of A.F.L. f/k/a A.F.W., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-3006.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.

      M.R.L., Jr., pro se, for Appellant.
    Josefina Tamayo, General Counsel; Donna Houghton Thames, Assistant General Counsel, Department of Children & Families, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, M.R.L., Jr., is currently serving a twenty-year sentence in a Florida prison. He appeals the denial of his request for modification of visitation of his minor child. The trial court denied appellant’s request without a hearing and without making any findings as to the effects on the child of visiting the appellant in prison. See § 61.13(2)(b) 2, Fla. Stat. (2000). Based upon the concession by the Department of Children and Families, we determine that appellant is entitled to a hearing on his request for visitation and may appear telephonically. See, e.g., Mattingley v. Mattingley, 789 So.2d 1191, 1193 (Fla. 4th DCA 2001); Ramos v. Steven, 816 So.2d 1253, 1254 (Fla. 5th DCA 2002).

We vacate the order and remand to the trial court for further proceedings.

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


text:
    Michael G. HARRIS and wife Tammy L. Harris, Appellants, v. Veronica A. KELLY, Appellee.
    No. 1D02-1250.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Michael G. Harris and Tammy L. Harris, pro se, appellants.
    Terry McDavid, Lake City, for appellee.
   PER CURIAM.

Pursuant to appellee’s confession of error, the summary final judgment is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

KAHN, BENTON and LEWIS, JJ., concur.


text:
    David B. TODD, Appellant, v. TALQUIN ELECTRIC COOPERATIVE, INC., Appellee.
    No. 1D02-716.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    R. Vinson Barrett of Law Firm of Eu-banks & Barrett, Tallahassee, for Appellant-
    Wm. Stephen Black, II, and Steven E. Oole of Fuller, Johnson & Farrell, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges a final summary judgment entered in favor of the appellee in this personal injury action. Because we conclude that reasonable persons could differ as to whether the appel-lee’s negligence was a legal cause of the appellant’s injuries, the judgment is reversed and this case is remanded. See Jones v. Florida Power & Light Co., 552 So.2d 284 (Fla. 4th DCA 1989).

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