author: PER CURIAM.

text:
    Renee BRASWELL, Appellant/Cross-Appellee, v. A. Glenn BRASWELL, Appellee/Cross-Appellant.
    Nos. 3D03-496, 3D03-613.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2003.
    Rehearing Denied Nov. 7, 2003.
    Silver Garvett & Henkel and Timothy D. Henkel; Hersch & Talisman, Miami, for appellant/cross-appellee.
    Caruana and Lorenzen and Dirk Loren-zen, Miami, for appellee.
    Before GERSTEN, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

We affirm the omnibus order returning the former husband’s documents to him. These financial documents and records have no inherent value and are not properly subject to seizure in a levy to discharge a judgment debtor’s obligation. See Estudios, Proyectos e Inversiones de Centro America, S.A. (EPICA) v. Swiss Bank Corp. (Overseas) S.A., 507 So.2d 1119 (Fla. 3d DCA 1987); Cerna v. Swiss Bank Corp. (Overseas) S.A., 503 So.2d 1297 (Fla. 3d DCA 1987). Moreover, the former wife was not entitled to examine the documents for discovery purposes, as there is no authority for allowing the levy process to be a substitute for appropriate discovery procedure.

We also affirm the order allowing the former husband’s safes to be opened, inventoried and inspected. As this relief was sought by both parties, there is no error in allowing the special master to conduct this procedure as outlined in the order.

Affirmed.


source: Caselaw Access Project

author: SHEVIN, Judge.

license: Public Domain

text:
    ACCEPTANCE INSURANCE COMPANY, Appellant, v. BATES, DUNNING & ASSOCIATES, INC., Appellee.
    No. 3D03-606.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing and Rehearing En Banc Denied Nov. 14, 2003.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Conner and Bruce M. Try-bus and Warren B. Kwavnick, for appellant.
    Jeffrey B. Crockett and Julianna M. Thomas, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   SHEVIN, Judge.

Acceptance Insurance Company appeals a summary judgment in a declaratory judgment action directing it to defend Bates, Dunning & Associates, Inc., [Bates], its insured, in the underlying action, Rubina v. O’Donnell, No. 01-20983-CA-11 (Fla. 11th Cir. Ct. filed Sept. 6, 2001). We reverse.

The Rubina plaintiffs, security guards employed by Rosie O’Donnell, claim that Bates intercepted their oral communications at O’Donnell’s residence without their consent. Acceptance sought a declaratory judgment as to its duty to defend Bates. Both sides filed summary judgment motions. The court granted a summary judgment in Bates’ favor.

The issue whether Acceptance had a duty to defend Bates “is resolved by examining the ‘allegations of the complaint against the insured, not by the actual facts, nor the insured’s version of the facts or the insured’s defenses. There is no obligation on an insurer to defend an action against its insured when the pleading in question shows the applicability of a policy exclusion.’ ” State Farm Fire & Cas. Co. v. Compupay, Inc., 654 So.2d 944, 945 (Fla. 3d DCA)quoting Reliance Ins. Co. v. Royal Motorcar, 534 So.2d 922, 923 (Fla. 4th DCA 1988) (citations omitted)), review denied, 662 So.2d 341 (Fla.1995). See Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977); Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So.2d 579 (Fla. 4th DCA 2000); Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So.2d 527 (Fla. 3d DCA 1996), review denied, 695 So.2d 700 (Fla.1997). Therefore, the insurer must defend if the complaint, when fairly read, alleges facts that create potential coverage under the policy. Cabezas v. Florida Farm Bureau Cas. Ins. Co., 830 So.2d 156, 158 (Fla. 3d DCA 2002), review granted, 844 So.2d 645 (Fla.2003).

We agree with Acceptance’s contention that it had no duty to defend Bates based on the policy exclusion that states:

This policy does not apply ... to any claim for injury arising out of a willful violation of a penal statute or ordinance committed by or with the knowledge of the insured.

The Rubino complaint asserted claims for violation of section 934.03, Florida Statutes, and common law invasion of privacy alleging that (1) Bates violated section 934.03, Florida Statutes, by intercepting or causing others to intercept plaintiffs’ oral communications without their consent; and, (2) Bates intentionally intruded upon plaintiffs’ seclusion by intercepting their oral communications; and, such actions were “outrageous, willful, hostile, intentional, wanton, malicious, and done in bad faith.” These claims assert facts that fall within the policy exclusion.

Section 934.03, a penal statute, provides, in pertinent part, that unless all parties to the communication have consented, any person who “[i]ntentionally intercepts ... or procures any other person to intercept any ... oral ... communication ... is guilty of a felony of the third degree.” Bates’ argument that the exclusion does not apply because the complaint does not allege a “willful” violation of penal law is without merit. The complaint allegations assert the violation of section 934.03 which requires the intentional interception of oral communications without the party’s consent. There is no difference between a willful and an intentional violation as the terms “willful” and “intentional” are synonymous in this case. Reliance Ins. Co. v. Lazzara Oil Co., 601 So.2d 1241 (Fla. 2d DCA 1992). Therefore, the policy exclusion is applicable to this count.

Bates’ reliance on Morgan Int’l Realty Inc. v. Dade Underwriters Ins. Agency, Inc., 617 So.2d 455 (Fla. 3d DCA 1993), is misplaced. Contrary to Bates’ assertion, Morgan International does not mandate a duty to defend in this case. Morgan International merely holds that an exclusion for the insured’s willful violation of a criminal statute did not vitiate an insurer’s coverage of the malicious prosecution claim. The verdict against the insured for the tort of malicious prosecution did not necessarily imply that insured violated the criminal statute as to false statements. Morgan Int’l Realty Inc., 617 So.2d at 458-59. Here, however, the complaint allegations only encompass the intentional interception of oral communications without plaintiffs’ consent.

The common law invasion of privacy count also falls within the policy exclusion. That claim is based on the same allegations as the interception claim — the violation of plaintiffs’ right of privacy by intentionally intercepting their oral communications without consent. Because the policy excludes any claim for injury “arising out of a willful violation of a penal statute,” the invasion of privacy claim fails to trigger the duty to defend as that claim arises out of the unlawful interception of the oral communication. See Western Cas. & Sur. Co. v. City of Palmyra, 650 F.Supp. 981 (E.D.Mo.1987). Accordingly, the court erred in determining that Acceptance had a duty to defend Bates in the Rubino action.

Reversed and remanded.

      . Section 934.10 provides an injured party with civil remedies for violation of section 934.03.

      . Bates’ contention that the statute may be violated by negligent use or disclosure of audio-taped materials is of no moment as the complaint does not contain such allegations. In addition, we are precluded from following Bates' suggestion and considering a good-faith defense, § 934.10(2), Fla. Stat. (2001), as we are limited to reviewing the allegations of the complaint.

      . We hold that Reliance Insurance remains persuasive despite its construction of a predecessor version of section 934.03; the applicable version substitutes the term "intentionally” for "willfully.” See Ch. 88-184, § 2, at 1019, Laws of Fla. In 1988, the legislature substantially revised chapter 934 "to conform with the federal provisions regarding the interception of wire, oral, or electronic communications.” State v. Jackson, 650 So.2d 24, 27 (Fla.1995).


author: PALMER, J.

text:
    Darrell HUNTER, Phyllis Hunter, Thomas A. Hunter, and P.T. (Pete) Hunter, Appellants, v. COUNTY OF VOLUSIA, et al., Appellee.
    No. 5D02-1891.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.

      Darrell P. Hunter, Ormond Beach, pro se.
    Phyllis M. Hunter, Ormond Beach, pro se.
    Thomas A. Hunter, Ormond Beach, pro se.
    Phineas T. Hunter, Ormond Beach, pro se.
    Gaylord A. Wood, Jr., B. Jordan Stuart and J. Christopher Woolsey of Wood & Stuart, P.A., New Smyrna Beach, for Ap-pellee.
   PALMER, J.

In this declaratory judgment action, Darrell Hunter, his wife Phyllis, his son Thomas, and his father Phineas (hereinafter collectively referred to as “the Hunters”), appeal the final order entered by the trial court ruling that they failed to establish that they were entitled to receive a homestead exemption from ad valorem taxation on various properties which they own in Volusia County. The trial court ruled that, due to the Hunters’ failure to establish an entitlement to receive exemption status, the Volusia County Property Appraiser was correct in denying their requests for homestead exemptions for the tax year 1997, in removing the homestead exemptions previously granted to the Hunters for the previous 10 years, and in imposing statutory penalties and interest related thereto. As to the issues decided by the trial court in the final judgment, we find no reversible error and therefore affirm. However, the Hunters correctly assert that the final judgment fails to definitively rule on Thomas Hunter’s claim with regard to property located on South Oleander Avenue and Phineas Hunter’s claim with regard to property located on Division Street. Accordingly, this matter is remanded with directions to the trial court to issue a ruling on the claims raised in the petition regarding the South Oleander Avenue and Division Street properties.

AFFIRMED in part, and REMANDED with instructions.

SHARP, W. and GRIFFIN, JJ„ concur.

      . See Art. VII, § 6, Fla. Const.


text:
    Robert JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2021.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Rehearing and Rehearing En Bane Denied Nov. 7, 2003.

      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Senior Assistant Attorney General, and Joseph A. Brophy, Certified Legal Intern, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

The opinion filed November 6, 2002 is withdrawn, and the following is substituted in its place.

Robert Johnson was convicted of (among other offenses) one count of battery on a law enforcement officer and was sentenced as a violent career criminal as provided by section 775.084, Florida Statutes (2001). We reverse, and remand for resentencing.

Johnson’s current (battery) offense, spitting on a law enforcement officer, is not one of the forcible felonies enumerated in section 776.08 and does not amount to “the use or threat of use of physical force or violence” as provided by that section. Battery is a qualifying offense where the defendant struck or intentionally caused bodily harm to another person. § 784.03(l)(a)l, 2, Fla. Stat. (2001). While spitting on a law enforcement officer amounts to an unwanted touching, it does not amount to the use or threat of use of physical force or violence. Johnson’s spitting offense is not a qualifying one for sentencing as a violent career criminal.

Because Johnson does not have any current qualifying offense that would authorize application of the violent career criminal sentencing statute, we reverse and remand for a new sentencing proceeding in accordance with this opinion.

      . Imposition, of a violent career criminal sentence requires the trial court find that, in addition to three or more prior qualifying felony convictions, the defendant’s current conviction must also be a qualifying offense. See § 775.084(l)(d)(l)a-g, (2),(3), Fla. Stat. (2001).


author: SHARP, W., J.

text:
    Steven Allen SMILACK, Appellant, v. Alma Jean SMILACK n/k/a Alma Jean Slizyk, Appellee.
    No. 5D02-3886.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Rehearing Denied Nov. 5, 2003.

      Steven A. Smilack, Fort Lauderdale, pro se.
    Alma Jeanne Slizyk, New Smyrna Beach, pro se.
   SHARP, W., J.

Smilack, the former husband, appeals from an order rendered after he filed a motion to enforce a Final Judgment of Dissolution of Marriage rendered in June of 1998, because Slizyk, the former wife, failed to comply with certain provisions of the judgment. Smilack sought to enforce the payment of $10,484.00 owed him under the judgment, and he sought reimbursement for his payment of a $19,487.00 note the parties jointly owed, which the final judgment required the former wife to pay and to hold him harmless. We affirm the order, but remand for the purpose of requiring reimbursement of the note to the former husband.

The record discloses that on September 26, 1990, the former husband and wife executed a note in the face amount of $10,000, at ten percent (10%) interest payable to Marilyn Robinson. The note was due and payable two years from the date of execution. Shortly after the note was executed, this dissolution of marriage action was instituted. The note was not paid when it came due in 1992.

Slizyk owned the marital residence prior to the parties’ marriage, and in fashioning the equitable distribution scheme, the judge awarded Slizyk all of the increased equity of this residence, which occurred after the parties’ marriage. The court calculated the increase in equity to be $92,173. But the court subtracted from this award the amount the parties owed under the note to Marilyn Robinson, which was then valued at $19,487. Further, as part of the equitable distribution scheme, the final judgment awarded the former husband the sum of $10,848, plus interest, which was to be paid by the former wife “in cash within sixty (60) days of the date of this Final Judgment.”

Slizyk did not pay Smilaek the $10,848 due him, nor did she pay Robinson the principal and interest due on the note. In April of 2002, nine and one-half years after it was due, the former husband paid Robinson the note in full and Robinson assigned the note to him.

Although the trial court entered a judgment against Slizyk for the $10,484 plus interest (for a total sum of $15, 118.15) in favor of Smilaek, it denied his request to increase the final judgment amount by the sums he paid on the note, plus interest. The judge explained that Robinson was not a party to the dissolution action, and that the dissolution judge’s allocation of the note to Slizyk in the final judgment did not create a “judgment interest” for Robinson. During the hearing, the trial judge expressed uncertainty as to whether the dissolution judge had actually ordered the former wife to make payment on the note.

However, the final judgment expressly required Slizyk to pay the note, and to hold Smilaek harmless with regard to its payment. Since Smilaek has had to pay the note in full (being jointly liable on that instrument), Slizyk is as much in violation of the judgment for faffing to hold him harmless on the note as her failure to pay him the cash sum for equitable distribution.

A trial court retains jurisdiction to enforce executory provisions of a final judgment, such as the payment of a note. Work v. Provine, 632 So.2d 1119 (Fla. 1st DCA 1994); Brandt v. Brandt, 525 So.2d 1017, 1019 (Fla. 4th DCA 1988); Covin v. Covin, 403 So.2d 490, 492 (Fla. 3d DCA 1981). Further, a trial court may enforce the provisions of a final judgment through any appropriate remedy. Montanez v. Montanez, 697 So.2d 184 (Fla. 2d DCA 1997). This includes enforcement of a former spouse’s guarantee to pay under a promissory note executed by a third party. Montanez.

To enforce a prior judgment, a court may modify a final judgment to provide for reimbursement for a party’s share of marital debts, Kennedy v. Kennedy, 638 So.2d 577 (Fla. 3d DCA 1994), and to enforce payment of a lump sum equitable distribution. McAvoy v. McAvoy, 662 So.2d 744 (Fla. 5th DCA 1995). Property division awards are enforceable as a creditor against a debtor. LaRoche v. La-Roche, 662 So.2d 1018 (Fla. 5th DCA 1995); Radin v. Rodin, 593 So.2d 1231 (Fla. 3d DCA 1992); Isaacson v. Isaacson, 504 So.2d 1309 (Fla. 1st DCA 1987).

Although the judge’s observations that Robinson was not a party to the dissolution action and that the Final Judgment did not create a judgment interest for Robinson are correct, they are not, as he concluded, decisive. Nor is the fact that the former husband received an assignment of the note from Robinson. Under the principles of equitable distribution, a dissolution judge must equitably distribute the parties’ assets and liabilities pursuant to section 61.075, Florida Statutes (1997).

If no relief is given to Smilack regarding Slizyk’s obligations under the note, the result would be to defeat the equitable distribution scheme fashioned by the trial judge, because it would permit Slizyk to shift this burden to Smilack by her nonpayment. See Rothenheber v. Jessup, 360 So.2d 798 (Fla. 2d DCA 1978)(husband’s obligation to make mortgage payments for wife until house paid for not discharged as to unpaid balance of mortgage where purchaser from wife paid off existing mortgage; to permit discharge would result in modification and take away all benefit to wife). Thus we conclude that the trial court erred in failing to order reimbursement of the note to Smilack as part of the judgment seeking to enforce the original dissolution decree.

On remand, the court may re-eon-sider Smilack’s request to impose a lien for the payment of the total judgment. The judgment may be enforceable against any assets belonging to Slizyk, including inter alia funds belonging to Slizyk held in the court registry (if any) or other property. It is apparent from the history of this case that Slizyk has failed to honor her obligations created by the dissolution judgment over a long period of time, and current payment still appears unlikely.

REVERSED and REMANDED.

SAWAYA, CJ., and PALMER, J., concur.

      . This case has a lengthy procedural history, both here, below and also in the Fourth District. The petition for dissolution was filed in 1990 and the final judgment of dissolution was rendered June 1, 1998.

      . The trial court awarded the former husband $10,484 in the final judgment, plus interest, for the total sum of $15,113.15.

      . Although the order appealed does not deny relief with respect to the note, it gives none either and the transcript reflects this issue was raised and discussed at the hearing.

      . After listing the nonmarital property of the parties, which included the Riverside Drive property, the final judgment discusses the marital assets and liabilities. The final judgment provides:
      B. Equitable distribution shall be as follows:
      Petitioner is awarded:
      Increase in equity of 516 Riverside Dr., NSB $ 92,172.98
      Debt owed to Marilyn Robinson ($ 19,487)
      Respondent is awarded:
      Furniture from 3 models $ 13,579.79
      Easement on Pt. St. Lucie property unk
      Personal property consisting of Respondent’s $ 3,000 Clothes, Fax machine, tape recorder, adding Machine, jewelry

        Furniture & Appliances at 516 Riverside Drive, NSB $ 2,000
      Furniture from 7919 N.W. 50th Street $ 15,000
      Further, in order to achieve equitable distribution of the parties’ marital assets and liabilities, the Petitioner shall pay the Respondent $10,848 in cash within sixty (60) days of the date of this Final Judgment.
      C. ... Petitioner [former wife] shall hold Respondent [former husband] harmless from the debt to Marilyn Robinson, (emphasis supplied)

      . However, civil contempt power may not be used to compel a former spouse to pay his or her share of a third party debt. Montanez v. Montanez, 697 So.2d 184 (Fla. 2d DCA 1997).

      . Imposition of a lien is in the lower court’s discretion and is an appropriate remedy to secure an equitable distribution award if the court determines a valid need for this procedure exists. See Kadanec v. Kadanec, 765 So.2d 884 (Fla. 2d DCA 2000); DeSantis v. DeSantis, 714 So.2d 637, 638 (Fla. 4th DCA 1998); Rey v. Rey, 598 So.2d 141 (Fla. 5th DCA 1992); Fraga v. Fraga, 562 So.2d 851 (Fla. 3d DCA 1990); Carrison v. Carrison, 486 So.2d 1363 (Fla. 1st DCA 1986).


text:
    David L. MAY, Appellant, v. CORRECTIONS CORPORATION OF AMERICA, Appellee.
    No. 1D03-2743.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2003.
    Rehearing Denied Nov. 12, 2003.
    Appellant, pro se.
    Tiffany A. Brown of Bryant & Higby, Panama City; and Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 7, 2003, the Court has determined that the order on appeal is not appealable. See Raymond James & Associates, Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, BENTON and VAN NORTWICK, JJ„ concur.


author: SCHWARTZ, Chief Judge.

text:
    UNION AMERICAN INSURANCE COMPANY, Appellant, v. HAITIAN REFUGEE CENTER/SANT REFIJIE AYISYIN, INC., a Florida corporation, Solange St. Plite, as Personal Representative of the Estate of Donaldson Dona St. Plite, deceased, and on behalf of the survivors, to wit: Solange St. Plite, Dona St. Plite, Jr., Christie St. Plite, Donaldson St. Plite, Rebecca St. Plite, Diana St. Plite and Jennifer St. Plite, Appellees.
    No. 3D03-50.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Rehearing Denied Nov. 7, 2003.

      Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas H. Stein, Miami, for appellant.
    Freud & Schwartz and Michael J. Schwartz, Tallahassee and Stephen S. Nuell, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

Union American Insurance Company appeals from a summary declaratory judgment that it provided liability coverage to its insured, the Haitian Refugee Center, Inc., for the shooting death of the plaintiffs decedent by a member of the crowd at a street rally sponsored by the Center a mile from the Center’s insured headquarters. Because we find that the incident did not fall within the policy’s specific endorsement limiting coverage to

“bodily injury ... arising out of [t]he ownership, maintenance or use of the premises shown in the [schedule and operations necessary or incidental to those premises”

the judgment below is reversed with directions to enter judgment for the carrier.

It is undisputed, although allegedly in part because of the failure of the Center to provide adequate security at the rally, that the wrongful death involved in this case occurred at a location far removed from, and in a manner unrelated to, the Center described in the policy. Compare State Auto. & Cas. Underwriters v. Beeson, 183 Colo. 284, 516 P.2d 623 (1973)(coverage provided for negligence under identical policy for owner’s negligence in throwing keys from building injuring child nearby); American Guar. & Liab. Ins. Co. v. 1906 Co., 129 F.3d 802 (5th Cir.l997)(coverage provided for negligent policy decisions made at insured location as to business at different location). In these circumstances and applying the clear language of the policy as we are bound to do, we hold, in accordance with the authorities interpreting what amounts to a “designated premises policy” such as this one, that there is no coverage as a matter of law. Parliament Ins. Co. v. Bryant, 380 So.2d 1088, 1089 (Fla. 3d DCA 1980)(identical clause would require court to “delete not only the exclusionary (or limitation) clause but also crucial wording used in the insurance clause”), cert. denied, 388 So.2d 1110 (Fla.1980); American Guarantee, 129 F.3d at 806 (“[T]he district court correctly concluded that the endorsement excluded liability for injuries arising out of the VAS operation. John Thompson’s actions giving rise to the injuries all occurred at and were related solely to his use of the VAS studio.”). As was said in 11 Couch on Insurance 2d section 44:379 at 551-52 (1982):

A very common form of liability insurance is the one which insures the owner, occupier, or operator of real property against liability incident to his ownership or use of the premises. Such insur-anee, the purpose of which is simply to protect against liability arising from the condition or use of the building as a building must be distinguished from insurance against liability arising from the nature of the enterprise or activity conducted therein. More simply stated, a building liability policy does not cover a liability arising from the insured’s activity in the building.

Cf. Southeast Farms, Inc. v. Auto-Owners Ins. Co., 714 So.2d 509 (Fla. 5th DCA 1998)(coverage provided for off premises liability under similar policy only because insurer “surprising[ly]” conceded, contrary to our holding, that “incidental” meant incidental to the business of the insured).

The trial judge’s conclusion was based on the finding that the “event at which the decedent was killed ... was an operation necessary or incidental to the business” [e.s.] of the Center. While this may well have been true, providing coverage on this ground involves a judicial rewriting of the policy by substituting “business” for the policy word “premises.” This is a process in which we may not engage. Florida Residential Prop. & Cas. Joint Underwriting Ass’n v. Kron, 721 So.2d 825, 826 (Fla. 3d DCA 1998)(“[A] court cannot rewrite an insurance contract to extend coverage beyond what is clearly set forth in the contractual language.”). See also Bryant, supra.

Accordingly, we reverse for entry of judgment for the appellant.

Reversed and remanded.

      . Although the cover sheet of the policy refers to it as a "commercial lines policy” (a commercial general liability policy or CGL policy) the endorsement in question, which is specifically entitled, "Limitation of Coverage to Designated Premises or Project" effectively converted the policy into the equivalent of a premises or owner's, landlord’s and tenant’s (OL & T policy).

      . The result in Bryant was based both on the inapplicability of the cited language and the existence of an even more specific exclusion which is not in this policy. When, however, as in the case of Bryant, there are more than one bases for the conclusion, each represents a binding holding of the court. Paterson v. Brafman, 530 So.2d 499, 501 n. 4 (Fla. 3d DCA 1988); Clemons v. Flagler Hospital, Inc., 385 So.2d 1134, 1136 n. 3 (Fla. 5th DCA 1980).

      .It is significant, too, that, as in Bryant, the premium for the policy in this case was calculated on the basis of the square footage of the Center’s insured "premises.”


author: FLETCHER, Judge.

text:
    Rogelio CALIXTRO, Petitioner, v. Charles McCRAY, Acting Director, Dade County Department of Corrections, and the State of Florida, Respondents.
    No. 03-2319.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for respondents.
    Before GREEN, FLETCHER, and WELLS, JJ.
   FLETCHER, Judge.

Rogelio Calixtro petitions for a writ of habeas corpus, arguing that modification of his pretrial release conditions is illegal and that he is entitled to reinstatement of the original terms. We deny the petition for habeas corpus.

Calixtro was arrested and charged with a sexual battery. At first appearance, the state moved the court to set Calixtro’s bond on the basis of his prior convictions for aggravated stalking, aggravated battery, and false imprisonment. The state at that time made Calixtro’s prior record available to the court and informed the court that, should he be convicted as charged, Calixtro faced a guidelines sentencing range of 10.2 to 15 years in state prison. Over the state’s objections, the trial court set bond at $7,500.

At the subsequent arraignment, the state filed a one-count information charging Calixtro with sexual battery, along with written notice of the state’s intent to pursue enhanced sentencing penalties. The state informed the court that Calixtro qualified as an habitual felony offender, an habitual violent felony offender, a three-time violent felony offender, and a violent career criminal. The state at that time sought to have Calixtro’s bond increased to $100,000, advising the court that with the current sentencing enhancements, Calixtro could be sentenced up to forty years, with a thirty year mandatory minimum. After thorough consideration of Calixtro’s prior and current circumstances, the trial court granted the state’s motion to increase bond, setting it at $50,000.

Pursuant to Florida Rule of Criminal Procedure 3.181(d)(3), a trial court may consider, inter alia, “the nature and circumstances of the offense charged and the penalty provided by law.” [e.s.] Although the “nature and circumstances” of Calix-tro’s offense did not change between first hearing and arraignment, the penalty provided by law did. The court is bound to consider any condition deemed necessary to assure a defendant’s appearance as required, and the penalty Calixtro faced increased significantly with the state’s notice of intent to pursue enhanced sentencing. Fla. R.Crim. P. 3.131(b)(1)(F). The enhanced penalties to which Calixtro was formally subject at arraignment were not those known to the judge at first appearance. We find that this constitutes sufficient evidence of a change of circumstances to warrant upward modification of bond and pretrial release terms. See Fla. R.Crim. P. 3.131(d)(2)(state may only seek to modify bond for “good cause”); Keane v. Cochran, 614 So.2d 1186 (Fla. 4th DCA 1993)(in order to have good cause to modify bond, state must present evidence of changed circumstances not made known to first appearance judge).

Petition denied.


author: COVINGTON, Judge.

text:
    CHECKERS DRIVE-IN RESTAURANTS, INC., a Delaware Corporation, Appellant, v. TAMPA CHECKMATE FOOD SERVICES, INC., a Florida Corporation, Appellee.
    Nos. 2D02-1485, 2D02-2157.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.

      Kevin H. Graham of Shumaker, Loop & Kendrick LLP, Tampa, for Appellant.
    Tracy S. Carlin of Mills & Carlin, P.A., Jacksonville; John R. Hamilton of Foley & Lardner, Orlando; and James M. Landis of Foley & Lardner, Tampa, for Appellee.
   COVINGTON, Judge.

This is a consolidated appeal filed by Checkers Drive-In Restaurants, Inc. concerning a final judgment after remand as well as a summary final judgment entered in favor of Tampa Checkmate Food Services, Inc. Because we conclude that the trial court did not commit reversible error, we affirm the judgments.

On November 2, 1994, Checkers, an operator and franchisor of double drive-through fast food restaurants, and Tampa Checkmate, a former Checkers franchisee, executed a franchise agreement, a promissory note, a mortgage, and other documents related to the purchase and sale of a Checkers restaurant. Robert Gagne, the sole shareholder of Tampa Checkmate, also signed a personal guarantee for the note, mortgage, and franchise agreement as part of the same transaction. In June 1995 Checkers sued Tampa Checkmate, as well as Gagne, on the note and mortgage. Checkers asserted that Tampa Checkmate had defaulted on the loan as well as its franchise agreement and that both Checkmate and Gagne were indebted to Checkers for the sums owed.

Tampa Checkmate filed an answer in which it asserted a number of counterclaims. In essence, Tampa Checkmate submitted that Checkers had fraudulently induced it to enter into the agreement. Checkers alleged a number of affirmative defenses to the counterclaims, including its right to offset the amounts found due and owing.

On July 15, 1997, Tampa Checkmate filed a Chapter 11 bankruptcy petition that was converted into a Chapter 7 proceeding on December 15, 1998. Despite the pen-dency of the bankruptcy proceeding, the matter of Tampa Checkmate’s counterclaims was tried to a jury in August 1999. The jury found that Checkers had fraudulently induced Tampa Checkmate and its sole shareholder, Robert Gagne, into entering into the franchise agreement. The jury awarded total damages of $453,990. On appeal, this court affirmed in part the judgments, remanding for a recalculation of the prejudgment interest from the date of the verdict.

On remand Tampa Checkmate filed a motion for summary judgment as to Checkers’ setoff and recoupment affirmative defenses. Tampa Checkmate submitted that the summary judgment motion was appropriately before the trial court. It relied on the fact that the bankruptcy court permitted the parties to proceed in either court and because the bankruptcy court had already stated its preference that the setoff and recoupment matters— including whether the doctrines of collateral estoppel or res judicata apply — be resolved in the state court. Tampa Checkmate argued that because Checkers chose not to present its affirmative defenses of setoff and recoupment to the jury, it was now estopped from doing so. In response, Checkers relied primarily on a May 23, 2001, bankruptcy court order that Checkers contends permitted Checkers to setoff and recoup the amounts remaining due on the note. Checkers also argued that because of Tampa Checkmate’s bankruptcy filing, and the resulting impact of the automatic stay, it was not given a fair opportunity to fully litigate its claims.

We begin by noting that a claim for recoupment is not barred by the bankruptcy automatic stay. Holford v. Powers, 896 F.2d 176, 179 (5th Cir.1990). Thus, if the claim at issue is considered one for recoupment, Checkers could have presented that defense in the earlier litigation without having to first seek relief from the bankruptcy automatic stay. In order to be considered a claim for recoupment, the transactions must be so closely intertwined that the debtor’s claim cannot be resolved without the creditor’s claim. In re Chapman, 265 B.R. 796, 807 (Bankr.N.D.Ill. 2001). While recoupment relates to a claim that arises out of the same transaction as the plaintiffs claim, setoff relates to a claim that arises from a transaction independent from the plaintiffs claim. In re Graves, 234 B.R. 149, 150 (Bankr.M.D.Fla.1999).

The claim before us does indeed arise out of the same contract or transaction that forms the basis of the original contract. Tampa Checkmate executed the note at the same time that it executed the franchise agreement. Checkers concedes that its loan to Tampa Checkmate was part of an “integrated transaction” which included the franchise agreement. Accordingly, we conclude that Checkers’ note-related claim was in the nature of recoupment.

It is not up to this court to speculate why Checkers chose not to expressly submit its affirmative defenses to the jury. A review of the trial record nevertheless reveals that Tampa Checkmate’s obligation on the note was squarely before the jury in its determination of the damages Checkers owed to Tampa Checkmate and Gagne. For instance, Checkers introduced the note into evidence and established how much remained due and owing on the note and personal guaranty — $1,215,547.34. In addition, Tampa Checkmate’s expert witness testified that he reduced Tampa Checkmate’s damages by the amounts Tampa Checkmate owed on the note. Finally, the jury verdict form provided the jury with the opportunity to award Checkers damages in the amount of $1,215,547.23 if they found that Checkers had not fraudulently induced Gagne into entering the unconditional guaranty.

We have reviewed the bankruptcy court’s orders of March 16, 2001, and of May 23, 2001, as well as the transcript of the May 14, 2001, bankruptcy court hearing. We do not agree with Checkers’ interpretation of these orders. A review of all three items, in toto, reveals that the bankruptcy court specifically deferred to the state court to determine whether any amounts were due under the note. As the bankruptcy court recognized, “There may be issues of collateral estoppel or res judi-cata and it seems to me that the State Court’s in the best position to make those determinations.”

Indeed, the state court did make those determinations and concluded that Checkers was estopped from proceeding on its claims. Even though the trial court’s ruling addressed both recoupment and setoff issues and we have determined that the claim is one only in recoupment and not setoff, we affirm the trial court. When faced with a decision to uphold or overturn a lower court’s judgment, an appellate court must affirm the judgment if it is legally correct regardless of the reasons given by the trial court. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

For the reasons stated herein, the summary final judgment and the amended final judgment after remand are affirmed.

SALCINES and KELLY, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    E. Dan WOLF, D.V.M., Appellant, v. JAMES G. BARRIE, P.A., Appellee.
    No. 2D03-746.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    Rehearing Denied Nov. 7, 2003.

      Mark W. Ciaravella of Mark W. Ciarav-ella, P.A., Tampa, and John G. Crivelli of John G. Crivelli, P.A., Tampa, for Appellant.
    Michael R. Carey and Randall P. Mueller of Carey, O’Malley, Whitaker & Manson, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

The circuit court entered a temporary injunction against E. Dan Wolf, restraining him from practicing veterinary ophthalmology in fifteen counties and from soliciting, contacting, or disclosing names of patients he had treated while working at James G. Barrie, P.A. We reverse the injunction.

In 1992, Wolf began practicing veterinary ophthalmology at The Animal Eye Clinic, a division of Barrie, P.A. Barrie, P.A., also operated a general veterinary practice called Sunshine Animal Hospital, at a location separate from Animal Eye Clinic. At the inception of the business relationship, Wolf signed a restrictive covenant that provided:

During the term of [Wolfs] employment, except as contemplated herein, and for a period equal to twice the length of [Wolfs] employment with [Barrie, P.A.], subject to a minimum of 12 months and a maximum of 60 months, after termination of [his] employment with [Barrie, P.A.], regardless of the reason for such termination, [Wolf] shall not, directly or indirectly, for [his] own purpose or as an independent contractor, consultant, partner of joint venturer, or as an officer, director, stockholder, agent, employee or salesman for any person, firm, partnership, corporation or other entity, or otherwise;
i) Engage or have any interest in any activity or venture which involves the practice of Veterinary Ophthalmology medicine withfin] the territory or territories (or any part thereof) of Charlotte, Citrus, Desoto, Hardee, Hernando, Hillsborough, Lake, Lee, Manatee, Orange, Osceola, Pasco, Pinellas, Polk, Sarasota, Seminole, and/or Lake County(ies) Florida; or
n) Solicit, contact or disclose the names of, or any other information relating to, any patients or prospective patients at any time sold, solicited, or contacted by them or any other representative of [Barrie, P.A.]; (A.10).

On July 12, 2002, Barrie, P.A., sold the assets of Animal Eye Clinic to Florida Veterinary Specialists. Wolf began working as an independent contractor with FVS, but did not enter into a noncompete agreement with that entity. Several months later, in October 2002, Wolf terminated his arrangement with FVS and opened his own veterinary ophthalmology practice in Hillsborough County. Sometime in November 2002, FVS and Barrie, P.A., agreed to rescind the asset purchase agreement. The next month, Barrie, P.A., filed a lawsuit against Wolf seeking to enforce the 1992 covenant and to prevent him from practicing veterinary ophthalmology. After a hearing in January 2003, the circuit court entered the temporary injunction that is the subject of this appeal.

This noncompete agreement is governed by section 542.33(2)(a), Florida Statutes (1991). See Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475 (Fla.1995) (holding that the enforceability of a covenant not to compete is controlled by the law at the time the agreement took effect). The pertinent portion of that statute provides:

One who is employed as an agent, independent contractor, or employee may agree with his employer! ] to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area so long as ... such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction. However, the court shall not enter an injunction contrary to the public health, safety, or welfare or in any case where the injunction enforces an unreasonable covenant not to compete or where there is no showing of irreparable injury.

§ 542.33(2)(a), Fla. Stat. (1991) (emphasis supplied).

As we stated in Hapney v. Central Garage, Inc., 579 So.2d 127, 131 (Fla. 2d DCA 1991),

A plain reading of section 542.33(2)(a) dispels any notion that the legislature intended to dispense with the bedrock requirement that covenants of this nature must relate to a legitimate business interest of the employer in order to restrict or impinge upon the right to pursue and earn a living guaranteed by our constitution.

The Hapney court held that the existence of a legitimate business interest of the employer that required protection was a condition precedent to the validity of a noncompete covenant. 579 So.2d at 134. Section 542.33(2)(a) requires that the employer must be engaged in the business that the covenant seeks to protect. If the employer is not in a like business, it has no legitimate interest in protecting against competition in that business. See Premier Assoc. Ltd. v. Loper, 149 Ohio App.3d 660, 778 N.E.2d 630, 636 (2002) (“an employer which abandons its business may not enforce a covenant not to compete”); Hess v. Gebhard & Co., Inc., 570 Pa. 148, 808 A.2d 912, 923 (2002) (holding that employer no longer has a protectable business interest in preventing competition when it no longer engages in the business covered by the noncompete covenant); Hayes v. Altman, 438 Pa. 451, 266 A.2d 269, 272 (1970) (“having sold his practice, [the employer] need not worry about competition”); Gibson v. Eberle, 762 P.2d 777, 779 (Colo.Ct.App.1988) (“covenantee’s right to enforce [a covenant not to compete] ends with the termination or abandonment of the business”); LaRocca v. Howard-Reed Oil Co., 277 S.W.2d 769, 772-73 (Tex.App.1955) (“the proper test to be applied is whether the interest which the covenant was designed to protect is still outstanding in the covenantee”).

When Wolf opened his new practice in October 2002, Barrie, P.A., no longer operated Animal Eye Clinic and was not in the business of veterinary ophthalmology. Thus, it had no legitimate business interest to protect from Wolfs competition. The condition precedent to the validity of the noncompete agreement did not exist. Hapney, 579 So.2d at 134.

Barrie, P.A., urges us not to adopt a strict rule that would nullify all covenants not to compete when a business ceases operation for any reason. It points out that a business might temporarily interrupt operation for a number of reasons, such as fire, product shortages, and product recalls. But those scenarios are not relevant here. Barrie, P.A., sold the assets of its veterinary ophthalmology practice. ' We offer no opinion on how a “temporary cessation of business” might affect a restrictive covenant governed by section 542.33 because that factual situation is not before us.

We must also address the effect of the rescission of the asset sale from Barrie, P.A., to FVS. Certainly those two entities could voluntarily undo their contract and place themselves back in the position they occupied on the date of the sale. See Pino v. Union Bankers Ins. Co., 627 So.2d 535, 536 (Fla. 3d DCA 1993); Restatement (Second) of Contracts § 283. But their agreement to rescind could not affect Wolf. Cf. Holley v. May, 75 So.2d 696, 697 (Fla.1954) (holding that rescission based on mutual mistake of fact cannot be claimed against a third-party bona fide grantee without notice). Wolf was not a party to the rescinded contract, nor did the contract convey any rights to his services. Barrie, P.A., acknowledges it did not assign Wolfs noncompete covenant to FVS as part of the sale transaction. Legally it could not do so. See Corporate Express Office Prods., Inc. v. Phillips, 847 So.2d 406, 413 (Fla.2003) (interpreting section 542.33, Florida Statutes (1985), and holding that when a sale of assets includes a noncompete agreement the purchaser can only enforce the terms of such an agreement with the employee’s consent).

The unwinding of the contract between Barrie, P.A., and FVS did not resurrect Barrie, P.A.’s agreement with Wolf. Wolfs relationship with Barrie, P.A., terminated when Barrie, P.A., sold its assets to FVS and went out of the veterinary ophthalmology business. That termination could not be unilaterally undone. Cf. Frumkes v. Beasley-Reed Broad. of Miami, Inc., 533 So.2d 942, 943 (Fla. 3d DCA 1988) (explaining that once an employee resigns, an employer cannot later fire that employee in order to gain the benefit of a restrictive covenant that applied only when the employee was terminated).

Barrie, P.A., cannot enforce the 1992 restrictive covenant against Wolf. We dissolve the temporary injunction with the filing of this opinion. Wolf raised many other issues in this appeal, but we need not discuss them because the covenant is unenforceable. We do not prohibit the filing of a motion for rehearing, but such a motion will not delay the dissolution of the injunction.

STRINGER and CANADY, JJ., concur.

      . The injunction did not apply to Lee County because Wolf practiced there for many years with Barrie, P.A.'s knowledge.

        . Hapney was disapproved in Gupton, 656 So.2d at 476, to the extent that it held the 1990 amendments to section 542.33(2)(a) should be applied retroactively. The statute at issue in this case is the 1991 version of section 542.33(2)(a). Thus, to the extent that Hapney discusses the 1990 amendments, they are applicable here.

      . The present Florida statute addressing covenants not to compete states that
      In determining the enforceability of a restrictive covenant, a court:
      2. May consider as a defense the fact that the person seeking enforcement no longer continues in business in the area or line of business that is the subject of the action to enforce the restrictive covenant only if such discontinuance of business is not the result of a violation of the restriction.
      § 542.335 (g), Fla. Stat. (2002). This case, however, does not arise under that version of the statute. In 1992, when Wolf and Barrie, P.A., entered their agreement, a "continuing business” was a condition to the validity of the covenant.

      . We reiterate that the present Florida statute, section 542.335, provides that the fact that the employer no longer continues in the business is a defense to enforcement. The out-of-state cases cited in this opinion may not be relevant to that issue.


author: VILLANTI, Judge.

text:
    In the Interest of D.N. and K.N., children. Department of Children and Family Services and Sally Davies, as the guardian ad litem, Appellants, v. D.N., Appellee.
    No. 2D03-844.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.
    Rehearing Denied Nov. 3, 2003.

      William Byrne Isaacs, Port Charlotte, and Andrea M. Lang, Fort Myers, for Appellant Department of Children and Family Services.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant Sally Davies.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellee.
   VILLANTI, Judge.

The Department of Children and Family Services and Sally Davies, the guardian ad litem (collectively “the Department”), appeal from the trial court’s order requiring that two children, D.N. and K.N., be returned to the custody of their father, D.N., in Hawaii. Because there is a valid order from the Hawaii court giving D.N. legal custody of the two children, we affirm. We write to point out that it is the Department’s refusal to respect controlling statutory authority that prevented the proper resolution of this case for over eighteen months.

As of January 2001, D.N., his wife, S.N., and the two children were living in Hawaii. For reasons not apparent from our record, on January 29, 2001, D.N. obtained a temporary restraining order requiring S.N. to vacate the family home and have no contact with D.N. or the two children. On March 13, 2001, the Hawaii court entered a “Family Court Order for Protection” that continued many of the terms of the temporary restraining order. The Order for Protection also gave D.N. both legal and physical custody of the two children and provided for supervised visitation between S.N. and the two children. In addition, the Order for Protection required S.N. to “return the minor children of the parties, [D.N. and K.N.], to the care and custody of the Petitioner in the State of Hawaii forthwith.” The Order for Protection is in effect by its own terms until January 28, 2004.

Between the entry of the temporary restraining order on January 29, 2001, and the entry of the Order for Protection on March 13, 2001, S.N. took the two children and left Hawaii. In August 2001, S.N. was arrested in Florida, and the Department sheltered the two children. On October 10, 2001, the Department filed a petition for dependency of the two children against S.N. only. The Department has never filed a petition for dependency of the two children against D.N.

On October 12, 2001, D.N. filed a motion seeking to have the two children returned to him in Hawaii based on the Hawaii custody order. In support of this motion, D.N. referred the court to the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 61.1302-1348, Fla. Stat. (2001), which controls disputes between states concerning child custody orders. D.N. specifically cited section 61.1314, which states in pertinent part:

A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

The Department apparently contested D.N.’s motion, and despite the clear statutory directive requiring the Florida court to defer to the Hawaii custody order, the trial court denied D.N.’s motion to have the two children returned to him.

After the trial court denied D.N.’s motion, the Department filed a ease plan purporting to assign D.N. tasks to complete in order to be reunited with his children. Despite the fact that the Department had never sought to have the children declared dependent as to D.N. and the fact that the court had never declared the children dependent, the trial court approved the case plan.

During the remainder of 2001 and all of 2002, D.N. continued to seek to have the Hawaii custody order enforced. Finally, on January 14, 2003, the trial court held an evidentiary hearing concerning returning the two children to D.N. At that hearing, the Department raised no issues concerning compliance with the Interstate Compact on the Placement of Children (ICPC), section 409.401, Florida Statutes (2001). It did, however, continue to express its concerns that D.N. was an inappropriate caregiver, and it insisted that the two children should remain in the Department’s care. At the close of the hearing, the trial court ordered that the two children be returned to D.N., but the court cited no statutory authority for its decision. The Department’s motion for rehearing was denied.

Not to be dissuaded from its view of the matter, the Department then refused to transport the children to Hawaii. When D.N.’s attorney filed a motion to enforce the trial court’s order and offered to take the children to Hawaii herself, the Department raised the issue of compliance with the ICPC. At the hearing on D.N.’s motion to enforce, the Department argued that the Hawaii ICPC compact administrator had not approved the placement of the children with D.N. The trial court noted that the Department had not raised this issue before, stating:

I really don’t like this piecemeal stuff. The last time we were in here on this matter Ms. Dramko [D.N.’s attorney] submitted a letter to the Court from Hawaii basically saying it was okay. Now we’ve got another letter saying that it’s not okay.
I am not for breaking up somebody’s family, I am not for participating in what I consider to be what is equivalent to a kidnapping of these children from their father and brought to this part of the country. You know, it seems like the department has made hostages of these children and they don’t want to give them back. Why? There’s no real reason that’s been posed.
Misdemeanor convictions are not enough as far as I’m concerned to keep a child away [from] his father or her father. That is not enough.
Deliver the children to their attorney.

The Department then filed this appeal from the trial court’s order. The Department’s motion for stay filed in the trial court was denied, as was its motion for stay filed in this court. Therefore, it appears that the children were finally reunited with their father in April 2003.

The Department is charged by the legislature with providing for the care, safety, and protection of children. § 39.001(l)(a), Fla. Stat. (2001). While pursuing this objective, the Department is to “intrude as little as possible into the life of the family, be focused on clearly defined objectives, and take the most parsimonious path to remedy a family’s problems.” § 39.001(l)(b)(S). In addition, as the Department often reminds this court, the Department is to “ensure that permanent placement with the biological or adoptive family is achieved as soon as possible for every child in foster care and that no child remains in foster care longer than 1 year.” § 39.001(l)(h). Despite these clear directives and objectives, the Department in this case has done everything within its power to prevent the reunification of D.N. with his children for almost eighteen months, including misleading the trial court, and attempting to mislead this court, about the controlling law.

Resolution of this case is controlled by the provisions of the UCCJA and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (2001). The overriding purpose of both the UC-CJA and the PKPA is

“to prevent interstate competition and conflicts” about custody disputes among various jurisdictions of the American Union. Padgett v. Pettis, 445 So.2d 633, 635 (Fla. 1st DCA), cause dismissed, 450 So.2d 487 (Fla.1984). The UCCJA, in other words, was designed to bring order out of the chaos that once marked interstate custody disputes when the courts of different states claimed authority to issue contradictory custody orders. This intent must be the polestar by which these enactments must be interpreted ... and it is the obligation of the Florida courts to honor this intent even if it seems contrary to the literal language of the statute.

Yurgel v. Yurgel, 572 So.2d 1327, 1329-30 (Fla.1990). Under both the UCCJA and the PKPA, the Florida court had absolutely no authority to entertain the Department’s efforts to ignore or modify the Hawaii custody order. Section 61.1304(1) states that the purposes of the UCCJA are, among other things, to avoid jurisdictional conflict with other states in matters of child custody, to assure that litigation concerning custody takes place in the state with the closest connections to the children, to avoid reliti-gation of custody decisions of other states, and to facilitate the enforcement of custody orders of other states. In order to give effect to these purposes, a Florida court must defer to another state’s custody order if, when the petition was filed in Florida, a similar proceeding was pending in a court of another state exercising jurisdiction under the UCCJA. § 61.1328; Chaddick v. Monopoli, 714 So.2d 1007, 1009 (Fla.1998). Moreover, Florida courts are forbidden to modify another state’s custody order unless the court rendering that order no longer has jurisdiction or has expressly declined to exercise that jurisdiction. § 61.133. See also Yurgel, 572 So.2d at 1329. Florida courts have repeatedly held that deference to the court entering the initial custody order is the rule, not the exception. See, e.g., Chaddick, 714 So.2d at 1010 (refusing to entertain jurisdiction under the UCCJA to modify custody when Virginia had previously entered a valid custody order and had not declined jurisdiction); Yurgel, 572 So.2d at 1332 (holding that New York had no jurisdiction under the UCCJA to modify a Florida custody order when Florida retained continuing jurisdiction and had not declined to exercise that jurisdiction); Bello v. Kruzel, 732 So.2d 1113, 1116 (Fla. 4th DCA 1999) (holding that the New York court had no jurisdiction under the UC-CJA to modify a Florida custody order when Florida retained continuing jurisdiction and had not declined to exercise that jurisdiction).

In this case, the Hawaii court entered a valid custody order on January 29, 2001, and again on March 13, 2001, in a custody proceeding. See § 61.1306(3) (defining a “custody proceeding” for purposes of the UCCJA as including any action in which custody is one of several issues to be determined). Hawaii has adopted the UC-CJA as part of its statutory scheme, and its actions were taken pursuant to the jurisdictional requirements of the UCCJA. Haw.Rev.Stat. § 583A-101 et seq. (2001). Further, it is apparent from the record that Hawaii was the “home state” of the two children when the Hawaii custody order was entered. § 61.1306(5) (defining “home state” as the state in which the child has lived with his or her parents for the six months immediately preceding the time involved in entering the order at issue). Thus, Hawaii clearly had jurisdiction under the UCCJA to enter its order giving custody of the two children to D.N. Because Hawaii never lost jurisdiction or declined to exercise jurisdiction over this matter, the trial court in this case was required to enforce the Hawaii custody order pursuant to the UCCJA. See § 61.1328.

Moreover, the trial court was also required to enforce the Hawaii custody order pursuant to the PKPA. Under the PKPA, “every State shall enforce according to its terms, and shall not modify except as provided by subsections (f), (g), and (h) of this section, any child custody determination or visitation determination made consistently with the provisions of this section by a court of another State.” 28 U.S.C. § 1738A(a). Essentially, the PKPA preempts state law on the question of modifying another state’s child custody order. Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988); Yurgel, 572 So.2d at 1329; In re Henry, 326 Or. 166, 951 P.2d 135 (1997). Thus, the first inquiry is whether the Hawaii court entered its custody order consistently with the PKPA. The second is whether the Florida court could validly modify that order.

Under the PKPA, a custody order is entered consistently with the provisions of the act if:

(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State[.]

28 U.S.C. § 1738A(c). It is clear from the record that Hawaii was the home state of the two children when the order was entered giving D.N. temporary legal custody of them. Therefore, the Hawaii custody order was entered consistently with the provisions of the PKPA.

Having determined that the Hawaii custody order was a valid exercise of the Hawaii court’s jurisdiction, we turn to the question of whether the Florida court had the right to modify that order. A reading / of the PKPA shows that it did not. Section 1738A(c)(2)(C) allows a Florida court to make an initial child custody determination if the child is physically present in Florida and it is necessary in an emergency to protect the child because he or she has been subject to mistreatment. However, here, an initial custody determination had already been made by the Hawaii court in January 2001 and March 2001. The Florida court could modify that initial custody determination only if “the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” 28 U.S.C. § 1738A(f)(2).

Here, pursuant to the PKPA, Hawaii had continuing jurisdiction to enforce its existing custody order because D.N. remained a resident of Hawaii. 28 U.S.C. § 1738A(d) (holding that the jurisdiction of the State that made the child custody determination continues as long as that State remains the residence of the child or of any parent). There is absolutely nothing in the record to show that Hawaii declined to exercise jurisdiction. Rather, the clear terms of the Order for Protection show that Hawaii intended to continue to exercise jurisdiction until January 28, 2004. Accordingly, the Florida court had no authority to modify the Hawaii custody order by entertaining the Department’s petition to place the children in foster care or to put them up for adoption. Rather, the Florida court should have enforced the Hawaii custody order in October 2001 and returned the children to D.N. at that time. Had the Department simply conceded, as it should have, that D.N.’s October 2001 motion pursuant to the UCCJA was well taken, the two children would have been returned to their father eighteen months sooner.

Only one reported Florida decision has addressed the interplay between the UC-CJA, the PKPA, and a dependency petition. In Johnson v. Denton, 542 So.2d 447, 448 (Fla. 5th DCA 1989), a 1985 Arkansas divorce decree gave Denton, the mother, custody of the parties’ daughter but prohibited her from removing their daughter from Arkansas. Denton subsequently moved with her daughter to Florida without advising either the court or the father, Johnson. In March 1987, the Department filed a petition for dependency in Florida alleging that Denton had abused and neglected her daughter. The child was originally placed with her grandmother, but the placement was subsequently changed to foster care. When Johnson learned that his daughter was in foster care, he sought a modification of custody in the Arkansas court. The Arkansas court entered an order modifying custody and placing the daughter in Johnson’s custody. Despite this order, the Department refused to return the child to him in Arkansas, and the trial court refused to order the transfer. Id. at 449.

The Fifth District noted that the PKPA prohibited the Florida court from modifying the Arkansas custody order because Arkansas had continuing jurisdiction under 28 U.S.C. § 1738A(d), and it had not declined to exercise that jurisdiction. Id. at 449 n. 1. The Fifth District also noted that the Arkansas court had not lost jurisdiction simply because the child was no longer present in the State and had not been for over six months. Rather, the court noted that since the child had lived in Arkansas for over three and one-half years before being removed to Florida by Denton in violation of a court order and because Johnson continued to reside in Arkansas, Arkansas had continuing jurisdiction based on the child’s significant contacts with the state. Under these circumstances, the Fifth District held:

The trial court should have declined to exercise jurisdiction over HRS’s petition for dependency. While the trial court could have issued a temporary order maintaining custody in HRS’s care for a short period of time in the best interests of the child, see Nussbaumer v. Nussbaumer, 442 So.2d 1094 (Fla. 5th DCA 1983), the court erred in adjudicating the child dependent and placing the child in the custody of HRS without first requiring the petitioner to comply with the requirements of the UCCJA and then considering whether it should exercise jurisdiction under the provisions of that act. Because Arkansas had jurisdiction to enter the temporary order changing custody from the mother to the father, this custody order should now be enforced pursuant to section 61.1332, which requires the state to enforce custody decrees of other states....

Id. at 449-50. See also In re Christopher C., Case No. B147213, 2002 WL 80290 (Cal.Ct.App. Jan.22, 2002) (holding that when the California Department of Children and Family Services filed a petition for dependency after an Alabama court had entered an order giving Christopher’s father custody of him, the California court could have validly issued an interim custody order pending the court’s determination of whether the Alabama custody order was entered in compliance with the UCCJA, but nothing more).

Here, as in Johnson, the Florida court had the authority to issue a temporary order keeping the two children in shelter care until their return to Hawaii could be arranged. However, the Florida court should not have purported to exercise any further jurisdiction over the two children in contravention of the UCCJA and the PKPA. Under the clear reasoning of Johnson, by which the trial court was bound in the absence of other authority, the trial court acted properly in ultimately enforcing the Hawaii custody order.

While not saying so directly, the Department appears to believe that the ICPC, rather than the UCCJA and the PKPA, controls the resolution of this case. Simply put, this is not so. The purpose of the ICPC is to facilitate cooperation between states in the placement and monitoring of dependent children. § 409.401, Fla. Stat. (2001); Dep’t of Children & Families v. Benway, 745 So.2d 437, 438 (Fla. 5th DCA 1999). The ICPC is primarily procedural, and it governs the relations between states when decisions are made as to where to place a dependent child. Benway, 745 So.2d at 438; J.D.S. v. Franks, 182 Ariz. 81, 893 P.2d 732, 740 (1995) (en banc). Essentially, the ICPC compact administrator in the “sending state” recommends a placement and provides the “receiving state” with information concerning the proposed placement. § 409.401, art. III, Fla. Stat. (2001). The ICPC compact administrator in the “receiving state” then determines whether, in his or her opinion, the placement is appropriate. Id.

Nowhere does the ICPC purport to allow the ICPC compact administrator in either the “sending state” or the “receiving state” to ignore or contradict preexisting court orders concerning the custody and placement of children. Further, at least one court has noted that it would be “counterproductive to interpret the ICPC as negating the jurisdictional provisions of the UCCJA.” J.D.S., 893 P.2d at 745. In this case, the Hawaii court determined the appropriate placement for the two children in January 2001. Regardless of whether the Florida or Hawaii ICPC administrators agreed with the Hawaii court’s placement decision, they were required to obey that court order, and the Florida court was required to enforce it.

None of the cases cited by the Department hold otherwise. While the Department argues that the ICPC applies to transfers of children even when the placement is with a biological parent, none of the cases relied upon by the Department involved a “receiving parent” who had a valid custody order from his or her home state placing custody of the children with that parent. Rather, in every case cited by the Department, the “receiving parent” was seeking an initial award of custody. See H.P. v. Dep’t of Children & Families, 838 So.2d 588 (Fla. 5th DCA 2003) (requiring compliance with the ICPC when the only court order in existence awarded custody to the father and the mother was seeking custody after the children were declared dependent); Benway, 745 So.2d at 437 (requiring compliance with the ICPC when natural father sought custody and there was no custody order placing children with father); Dep’t of Econ. Sec. v. Leonardo, 200 Ariz. 74, 22 P.3d 513 (Ct.App.2001) (requiring compliance with ICPC after children were declared dependent as to father, who had custody under a Texas custody order, when mother sought custody). Further, the Department has made no attempt to distinguish the Fifth District’s Johnson case, which dealt with facts virtually identical to the ones presented here.

In the absence of some authority indicating that the procedural requirements of the ICPC trump the enforcement mandates of the UCCJA and the PKPA, the Department cannot show that the trial court acted improperly in enforcing the Hawaii custody order and returning the two children to D.N. Moreover, because the Department has never filed a petition seeking to declare the two children dependent as to D.N. and because the Florida courts would have no jurisdiction to entertain such a petition in light of the Hawaii custody order, on remand the case must be dismissed as to the two children, D.N. and K.N., and as against the father, D.N.

Finally, we note that the Department has come under increased public scrutiny during the past year concerning the way that it has handled, or mishandled, certain cases. Given that scrutiny, we fail to understand why the Department chose to focus its efforts in this case on keeping the two children from a father who clearly wants them and who has a valid court order awarding him custody. Further, we fail to understand why the Department chose not to bring the controlling provisions of the UCCJA and the PKPA to either the trial court’s or this court’s attention. In making these choices, the Department strayed from its legislatively mandated objectives, and its attorneys strayed from their duty to bring controlling authority to the court’s attention. We trust that this opinion will assist the Department in refocusing its efforts onto those cases in which its assistance is truly needed.

Affirmed and remanded with instructions to dismiss the case as to the children, D.N. and K.N., and their father, D.N.

WHATLEY and SALCINES, JJ., Concur.

      . An older child was also placed in D.N.'s legal and physical custody by the Order for Protection; however, that child was not involved in these proceedings.

      . S.N.’s older daughter by a different father was also sheltered. This daughter is not involved in this action.


author: PER CURIAM. SHARP, W.,

text:
    Michael KAILING, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2660.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.
    Rehearing Denied Nov. 7, 2003.
    Michael Failing, Avon Park, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA, C.J., and TORPY, J., concur.

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

SHARP, W.,

concurring and concurring specially.

I concur with the majority that this case should be affirmed, but I would add that it should be affirmed without prejudice to raise the issues in a Rule 3.850 motion. See Paul v. State, 830 So.2d 953 (Fla. 5th DCA2002).

      . Fla. R.Crim. P. 3.850.


text:
    Kemrick Lee TRAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3676.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.
    Rehearing Denied Nov. 14, 2003.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant, and Appellant, pro se.
    Charles J. Crist, Jr., Attorney General, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon review of appellant’s Anders brief, we affirm the revocation of probation, but remand for entry of an amended order of revocation of probation that conforms with the court’s oral pronouncement. The written revocation order states that appellant violated condition 5 of his probation as set out in the amended affidavit of violation of probation. The amended affidavit lists four violations, yet the prosecutor opted to proceed only on the battery charge, and the court only found a violation based upon appellant’s commission of a battery. The case is therefore remanded to the trial court for entry of an amended order. Appellant need not be present. See Cozart v. State, 823 So.2d 234 (Fla. 1st DCA2002).

AFFIRMED in part and REMANDED.

ERVIN, ALLEN and LEWIS, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: CANADY, Judge.

text:
    Ricky A. HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1628.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2003.
   CANADY, Judge.

Ricky Hunter challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because pages are missing from his motion, rendering it unreadable, we affirm without prejudice to Hunter’s filing another motion. Hunter may file a new motion within thirty days from the date of the mandate in this case and it shall not be considered successive or untimely.

Affirmed without prejudice.

FULMER and VILLANTI, JJ.,' Concur.


author: POLSTON, J.

text:
    STATE of Florida, Appellant, v. William C. BULGIN, Appellee. State of Florida, Appellant, v. Kinjal H. Patel, Appellee. State of Florida, Appellant, v. Brandon P. Pelky, Appellee.
    Nos. 1D02-3934, 1D02-5003, 1D02-5004.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2003.
    Rehearing Denied Nov. 17, 2003.
    Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    Frederick M. Conrad, Esquire, Tallahassee, and Matthew K. Foster, Esquire and Edward T. Bauer, Esquire, Brooks, Le-Boeuf, Bennett & Foster, Tallahassee for Appellees.
   POLSTON, J.

The appellees/defendants were all arrested on December 15, 2000 for the sale of a controlled substance. The three agreed to cooperate with law enforcement in a continuing drug investigation and were released. On or about December 20, 2000, the defendants, accompanied by their attorneys, agreed to provide substantial assistance to law enforcement by conducting controlled drug buys. The law-enforcement officials agreed that no charges would be filed until their assistance was complete. These agreements satisfied the defendants’ concern that formal charges and court appearances would jeopardize their covert assistance. The defendants did not sign speedy trial waivers and there was no discussion of the issue. After differing levels of cooperation with law enforcement, the defendants were arrested and charged. The defendants filed motions for discharge based on the speedy trial rule, Fla. R.Crim. P. 3.191, which were granted by the trial courts. The State argues that the speedy trial rule is not applicable because the defendants caused the delay. We agree and therefore reverse.

The defendants’ trials did not commence within the time periods established by the speedy trial rule. Therefore, according to Fla. R.Crim. P. 3.191(j), a motion for discharge should be granted by the court, unless it is shown that:

(1) a time extension has been ordered under subdivision (i) and that extension has not expired;
(2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
(3) the accused was unavailable for trial under subdivision (k); or
(4) the demand referred to in subdivision (g) is invalid.

(Emphasis added). Here, the failure to hold trials for the defendants within the speedy trial rule was attributable to the defendants’ cooperation agreements because the agreements postponed the charges and court proceedings until their assistance was complete. Therefore, the exception to the speedy trial rule applies, and the trial courts should have denied the motions for discharge. Cf. Collins v. State, 489 So.2d 133 (Fla. 1st DCA 1986)(affirming the trial court’s denial of a motion for discharge based on the speedy trial rule because the delay in proceeding was caused by the defendant’s announcement of an intent to enter a plea of guilty or nolo contendere, although he was not brought to the court for plea purposes until the deadline expired); State v. Rosenfeld, 467 So.2d 731, 733 (Fla. 3d DCA 1985)(reversing a discharge based on the speedy trial rule, the court ruled that “[t]he defendant cannot defeat the state’s opportunity to charge her by negotiating a plea and then obtaining a favorable ruling, after the speedy trial time has passed, on a motion to withdraw the plea which is filed shortly before the speedy trial time has run”); Geiger v. State, 532 So.2d 1298, 1301 (Fla. 2d DCA 1988)(same).

The defendants cite Williams v. State, 757 So.2d 597 (Fla. 5th DCA 2000) as controlling authority. In Williams, the defendant was arrested for selling cocaine and later agreed with police to assist in drug enforcement operations as an informant. Id. at 598. “The police then effected what the state attorney termed an ‘unarrest.’ ” Id. After the defendant’s cooperation, the police arrested him again for the same sale of cocaine. Id. The Fifth District Court of Appeal held that the initial arrest starts the running of the speedy trial time and that, for purposes of the rule, there is no such thing as an “unarrest.” Id. We agree with that holding, but that is not the case presented here. The defendants were not subject to any procedures labeled as an “unarrest,” and the exception under the speedy trial rule upon which we base our ruling, Fla. R.Crim. P. 3.191(j)(2), was not decided in Williams.

REVERSED and REMANDED for further proceedings.

KAHN and WEBSTER, JJ., concur.

      . Other cases cited by the defendants, State v. Agee, 622 So.2d 473, 475 (Fla.l993)(holding that the State could not refile charges once it had entered a nolle prosequi and the speedy trial period had run) and State v. Williams, 791 So.2d 1088, 1091 (Fla.2001)(holding that the state could not file charges based on the same conduct after the speedy trial period had expired), are not applicable because they did not involve delays attributable to the defendant. Therefore, the exception to the speedy trial rule at issue here, Fla. R.Crim. P. 3.191(j)(2), was not applicable.


text:
    Mark BETTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4659.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Rehearing Denied Nov. 25, 2003.
    Mark Betterson, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Spriggs v. State, 615 So.2d 828, 832 (Fla. 4th DCA1993).

FARMER, C.J., STONE and TAYLOR, JJ., concur.


author: STEVENSON, J.

text:
    Ian McINTOSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1416.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Rehearing Denied Nov. 25, 2003.

      Michael P. Maher, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Having been tried and convicted of robbery with a firearm and attempted second degree murder with a firearm, Ian McIntosh appeals. Among other things, McIntosh claims that the trial court’s ruling permitting the State to introduce evidence of two firearms not connected to the crimes for which he was on trial requires reversal. We agree.

A ski mask, a glove, two rolls of duct tape, two walkie talkies, a 9 mm Sig Sauer, a .38 revolver, and a .357 magnum were found in the black duffle bag that police recovered from under the porch of McIntosh’s sister’s home. The incontrovertible evidence at trial was that the weapon utilized in the commission of the crimes was a 9 mm Sig Sauer. Despite this, the State was permitted to place evidence of the .357 and the .38 before the jury. Since the 9 mm was unquestionably the weapon used by the perpetrator and there was no evidence that these other two firearms were in any way tied to the crimes, the admission of the .38 and the .357 was error. See O’Connor v. State, 835 So.2d 1226, 1231 (Fla. 4th DCA 2003)(hold-ing that “where the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible”); Huhn v. State, 511 So.2d 583, 588 (Fla. 4th DCA 1987).

The State contends that any error was harmless, relying on Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981). Herman is distinguishable. There, the panel reasoned that the admission of a shotgun that was not shown to be the weapon used in the shooting was harmless because it is not illegal to own a shotgun and “[tjhere are no adverse connotations, such as there might be in the case of ownership of a Saturday night special or a zip gun, which would give rise to prejudicial inferences on the part of the jury.” Id. at 229. “Adverse connotations” similar to those referenced in Herman are present here, particularly given the number of weapons found and where they were found, i.e., not in a locked box or case in the home, but in a duffle bag under a porch and with the weapon used in the crimes. In the end, we cannot find that there is no reasonable possibility that the error affected the jury’s verdict. See Kennedy v. State, 853 So.2d 571, 573 (Fla. 4th DCA 2003)(“The harmless error test ‘places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.’ ”)(quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). We reverse the convictions and remand for a new trial.

POLEN and KLEIN, JJ., concur.


author: PLEUS, J.

text:
    Nancy I. SPEARS, Appellant, v. DEPT. OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-771.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellant.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P.A., Miami, for Appel-lee.
   PLEUS, J.

Nancy Spears appeals from an immediate final order issued by the Department of Agriculture and Consumer Services advising her that her citrus trees would be destroyed because the trees are infected with citrus canker or are exposed to citrus canker by being located within 1900 feet of diseased trees.

Spears challenges the constitutionality of section 581.184, Florida Statutes, governing citrus canker eradication. She asserts that the statute is unconstitutional as violating her rights to procedural due process, that the science underlying the enactment is flawed and thus the statute violates her right to substantive due process, and that the enactment fails to adequately assure just compensation.

These challenges were rejected in Florida Dep’t of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), rev. granted, 842 So.2d 844 (Fla.2003). Recently, in Kirchgessner v. Florida Dep’t of Agriculture and Consumer Services, 849 So.2d 410 (Fla. 5th DCA 2003), this court rejected similar challenges on the authority of Haire.

Accordingly, we affirm.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.


author: KLEIN, J.

text:
    David FIDDEMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2667.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Rehearing Denied Nov. 26, 2003.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of second degree murder after his girlfriend was found stabbed to death. The trial court allowed the state to prove that he had assaulted her four months prior to her murder on the theory that the defense had opened the door by questioning the thoroughness of the state’s investigation of the murder. We reverse for a new trial.

The victim was found dead in the bathroom of an apartment with multiple stab wounds and a slit throat. Appellant, who had been her on-and-off boyfriend, had been seen going into her apartment around the time that the murder had occurred, and there was sufficient evidence, including the victim’s blood on appellant’s shoes, to convict him of her murder.

Prior to trial, the court granted the defense’s motion in limine, with the state’s agreement, to prohibit the state from mentioning a physically violent dispute between appellant and the victim four months earlier in which he had hit her in the mouth and may have broken her ribs.

During trial, however, the state asserted that the defense opened the door to the assault when it asked a detective if, in investigating the murder, he had found a restraining order that the victim had taken out against her former husband, Wilmer Jones, after he had attacked her with a knife. The detective was not aware of the ten year old restraining order. The trial court ruled that the defense’s questioning the thoroughness of the police investigation, which did not discover this restraining order, opened the door to admitting the assault occurring four months before the crime, which the state’s investigation had uncovered.

The “opening the door” theory of admitting otherwise inadmissible evidence was explained in Bozeman v. State, 698 So.2d 629, 680-81 (Fla. 4th DCA 1997):

To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled. The “opening the door” concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination, [citations omitted.]

Robertson v. State, 829 So.2d 901, 913 (Fla.2002) (quoting Bozeman).

As noted in Robertson, in order to open the door, the defense must offer misleading testimony, or make a specific factual assertion which the state should be able to correct so that the jury will not be misled.

The fact of the ten year old domestic violence incident was not misleading, and did not, in and of itself, open the door to appellant’s prior assault on the victim. As to the defense strategy in questioning the thoroughness of the detective’s investigation, this could open the door to additional information that the detective had uncovered, Dennis v. State, 817 So.2d 741 (Fla.2002); but it would not extend to the prior assault in this case. It is important to remember that the state did not assert in the trial court, nor has it asserted in this court, that the prior assault was relevant for any reason other than the defense having opened the door. The rationale on which it was admitted was solely to demonstrate the thoroughness of the police investigation. If we were to hold it admissible -under that theory, it would mean that any prior crime a defendant had committed, no matter how horrendous, would be admissible if discovered by the detective in his investigation.

When a collateral crime is improperly admitted in evidence, it is highly inflammatory and presumptively harmful. Robertson, 829 So.2d at 914. We cannot agree with the state that it was harmless.

We also agree with appellant that the detective should not have been allowed to render his opinion as to why he found no blood on appellant’s bicycle. Thorp v. State, 111 So.2d 385 (Fla.2000) (generally a lay witness may not testify in the form of opinion).

Reversed for a new trial.

POLEN and STEVENSON, JJ., concur.

      . It has been held that evidence of a violent relationship or prior assault can be relevant to establish motive, intent, or premeditation; however, those reasons for admitting the pri- or assault in the present case have not been argued below or here. See Dennis (motive); Burgal v. State, 740 So.2d 82 (Fla. 3d DCA 1999) (motive, intent, and premeditation); Brown v. State, 611 So.2d 540 (Fla. 3d DCA 1992) (motive, intent, and premeditation); King v. State, 436 So.2d 50 (Fla.1983) (premeditation and identification of the defendant, who was attempting to imply that the victim's husband was the killer).


author: HAZOURI, J.

text:
    Demetrius FAIR, Petitioner, v. James CROSBY, Secretary, Department of Corrections, Respondent.
    No. 4D03-1655.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Rehearing Denied Nov. 25, 2003.
    Demetrius Fair, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondent.
   HAZOURI, J.

Demetrius Fair filed a petition alleging ineffective assistance of appellate counsel. We grant the petition but deny petitioner’s request that this court order a new trial, concluding instead that petitioner is entitled to a belated appeal because appellate counsel was ineffective in failing to raise in his original direct appeal the issue of whether the trial court’s jury instruction regarding self-defense constituted fundamental error.

Petitioner was charged with a single count, second degree murder, and was found guilty of the lesser included offense of manslaughter. His defense was self-defense; evidence was presented to support the argument that petitioner had reason to believe the victim was attempting to murder him or to commit aggravated battery, burglary of petitioner’s conveyance with a battery, or robbery against him.

At trial, defense counsel did not object when the trial court gave the following instruction, based on section 776.041(1), Florida Statutes (1999)

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
Demetrius Fair was attempting to commit, committing or escaping after the commission of robbery.

However, this type of instruction normally is given when the accused “is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.” Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002) (emphasis added). To instruct the jury that the defendant is not entitled to use force if he was committing, attempting to commit, or escaping after committing the crime charged is circular, confusing to the jury, and basically negates the defense. Id. at 1266. Because petitioner was charged with only one forcible felony, as to which he asserted the defense of self-defense, this instruction should not have been given.

Although petitioner’s trial counsel failed to preserve this issue for appeal, this court has held that an error in a jury instruction that negates the defendant’s defense can be fundamental and thus reviewable in the absence of an objection at trial. See, e.g., Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001); Jones v. State, 656 So.2d 489 (Fla. 4th DCA 1995). Appellate counsel may be found to have rendered ineffective assistance for failing to raise an issue that could be considered fundamental error. See, e.g., Lowe v. State, 681 So.2d 916 (Fla. 4th DCA 1996) (granting new appeal where appellate counsel failed to raise the issue that trial court’s preliminary instruction on reasonable doubt constituted fundamental error). The possibility that such an instruction may have confused the jury sufficiently so as to negate petitioner’s defense of self-defense is such that we believe the issue should have been raised in the context of petitioner’s direct appeal. The fundamental nature of the error can be gleaned only from a review of the full record on appeal.

Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered February 21, 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

SHAHOOD and MAY, JJ., concur.

      . Regarding the defense of self-defense, section 776.041 provides in pertinent part as follows:
      The justification described in the preceding sections of this chapter is not available to a person who:
      (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.]

      . At the charge conference, the parties agreed that the court would give this instruction, but there was no reference to "robbery”: “However, the use of force likely to cause death or great bodily harm is not justifiable if you find: Demetrius Fair was attempting to commit, committing or escaping after the commission of murder in the second degree.” (Emphasis added). It is unclear why the trial court substituted "robbery” for "murder in the second degree” (the crime charged) when it actually gave the instruction.

      .Petitioner was never charged with committing robbery. However, we do not find this fact affects petitioner’s entitlement to a new appeal. The jury may have taken this instruction to mean that petitioner was not justified in the use of force if he was escaping after the victim attempted to commit robbery.


text:
    Robert M. HARVEY, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-802.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Robert M. Harvey appeals a final order issued by the Florida Department of Agriculture and Consumer Services, advising him that his citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    Felixberto C. GARCIA, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-813.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.

      Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Felixberto C. Garcia appeals a final order issued by the Florida Department of Agriculture and Consumer Services, advising him that his citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    Paul and Diane PETRAC, Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-810.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Paul and Diane Petrae appeal a final order issued by the Florida Department of Agriculture and Consumer Services, advising them that their citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.