author: HAZOURI, J.

text:
    Dario THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1380.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      Howard Sohn of the Law Offices of Howard Sohn, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Dario Thomas appeals his convictions for two counts of robbery with a firearm and his sentence to thirty years in state prison. He raises four points on appeal: (1) that the trial court erred as a matter of law in allowing the state to use a peremptory challenge to a black juror without a genuine race-neutral reason; (2) that the trial court erred in allowing the admission and introduction of six unrelated and uncharged Dade County armed robberies on the basis that these six unrelated robberies were inextricably intertwined with the crimes for which he was charged; (3) that the trial court erred in denying his motion to discharge his privately retained attorney and denying him a reasonable opportunity and sufficient time to retain new counsel; and (4) that the thirty-year sentence imposed by the trial court was a vindictive sentence.

We agree that the trial court erred on points one and two, and, therefore, reverse and remand for a new trial. We find it unnecessary to address points three and four.

Material Facts

Christie Martineau and Jorge Malta were parked in her car in the driveway of Malta’s apartment complex at 11:45 P.M. on February 11, 2001, in the City of Mira-mar. As Malta opened the passenger door to get out, a black male pushed him back into the car at gunpoint. There was also a second black male on the passenger side. A third black male opened the driver’s door where Martineau was seated and demanded her money. Martineau described him as being about 5' 9" tall, medium build, wearing a grey skull cap on his head, having dark brown eyes, with the whites around his eyes yellow in color. Marti-neau was unable to identify the other two suspects. She gave the robbers her purse, necklace, and bracelet.

Malta, the passenger, described the person who approached his side of the car as wearing a red or red striped sweater and skull cap. Malta described the second suspect on the passenger side as short and wearing dreadlocks or short braids. Both had guns. Malta described the suspect on the driver’s side who was pointing a gun at Martineau as being tall, heavy set, approximately 220 pounds and wearing a black leather jacket. Malta testified that the first subject patted him down and told him to give him his money and jewelry. Malta complied and handed him his wallet. The second suspect entered the back seat of the car looking for valuables while the suspect on the driver’s side was taking and removing Martineau’s jewelry at gunpoint.

During the course of the robbery law enforcement from Miramar arrived and interrupted the robbery. Both subjects ran from the passenger side of the car to another car parked directly behind Marti-neau’s car. The third subject who was by the driver’s door pointed his gun at Malta and told him to get back in the car and act like nothing was going on. Then that suspect also ran back to the other car and fled.

Officer Esponda chased the suspects’ car and was forced to abandon the chase when his car became stuck in the mud. Other police officers from Dade County continued the pursuit and followed the vehicle into northern Dade where the vehicle stopped. The three subjects bailed out and ran. Officer Esearra testified that he saw the driver’s face as he ran and that the driver was wearing a red shirt. He identified the driver as the defendant, Dario Thomas. Another officer also described the driver as wearing a red shirt and identified Thomas.

Later that evening, Malta and Marti-neau were driven by Miramar police to a convenience store in Dade for a show-up identification where three handcuffed black males were standing together. Malta identified Jabar Fernander and Latarus Anthony as being the two men on the passenger side of the ear but did not identify Thomas. Martineau identified Thomas as the driver of the car and could not identify the other two. Prior to the show-up, Martineau was told by police that the chase had ended and the police had the suspects in custody.

Neither Malta nor Martineau made an in-court identification of Dario Thomas.

Both Jabar Fernander and Latarus Anthony were called as state’s witnesses and each acknowledged he had six felony convictions. They testified that they had a plea agreement and were getting reduced charges and sentences for their participation in the robberies. Fernander testified that he has six felony convictions, all occurring on February 11, 2001 (the same night as Thomas’s charged crime). On this night he was with Prosper Dorville, Latarus Anthony, and Dario Thomas. He met with Thomas at about 7:00 P.M. at Prosper’s home. They were all “drinking and smoking” and went out and committed six robberies in Dade County armed with revolvers. They used two cars which they stole. During the evening they “dumped” one of the vehicles and then all used the same car.

He testified Thomas participated in the robberies over a period of three hours and Thomas was the one who drove the car into Broward County. They pulled up to the victim (Martineau’s) car and demanded money from the man in the car (Malta). The man said he didn’t have any money and he gave Fernander his wallet. Fer-nander said that Anthony was searching the back seat of the car and he didn’t see what Thomas and Dorville were doing. When the police arrived Fernander and Anthony ran back to their car and Thomas and Dorville were coming back towards the car. As they drove off Thomas was driving the car. The police chased them and ran them off the road. They got close to 92nd Street near Dorville’s house, stopped the car and jumped out. Fernan-der was caught at the end of an alley.

Latarus Anthony also testified for the state. His six felony convictions were armed robberies from Dade County which occurred on February 11, 2001. He testified that he, Fernander, and Thomas stole a car. Thomas was driving them around committing robberies. They drove into Broward County and pulled up behind the victim’s (Martineau’s) car. Anthony and Fernander went to the passenger side and Dorville went to the driver’s side. Thomas walked up to the car with his gun out and told them to hurry and get the money. Someone yelled that the police were coming and they ran back to their car.

Peremptory Challenge

During jury selection, the trial court conducted the initial questioning to obtain general background information on prospective jurors. In the course of the initial questioning, it was determined that juror Javier Gasana was a married black male who had come to the United States from Africa approximately fifteen years earlier. He had been living in Pembroke Pines for seven years and was employed as a college professor at Florida International University in Miami. Gasana stated that his wife was a graduate student, that they had four children and his oldest son worked for Pizza U.S.A. Gasana advised that his hobbies were tennis and meditation and that he had never served on a jury-

After the trial court had completed the initial questioning of the prospective jurors the state and the defense were given an opportunity to conduct voir dire. The prosecution chose not to ask Gasana any additional questions but at the conclusion of voir dire, the prosecutor exercised a peremptory challenge on Gasana. The defense objected on the grounds that Gasana was black and a member of a distinct racial class and asked for a race-neutral reason for the strike. The prosecutor stated that Gasana had simply sat silent throughout the jury selection process. The defense counsel challenged the validity and genuineness of the prosecutor’s reason, stating, “I don’t think that is a race neutral reason at all. I mean if you asked him questions, he answered them. I asked him a question, he answered my question. It’s not his fault that nobody asked him anything.” The trial court then asked the prosecutor two additional times to state his race-neutral reason for the strike, and the prosecutor stated “it was simply his silence throughout the process.” The trial court then ruled that this was a race-neutral reason and stated:

Court: Okay. The problem, Mr. Co-trone [Defense counsel], is that I don’t feel that the personal feelings of the State Attorney as to using one of his peremptories on Mr. Gasana because of his demeanor or his lack of participation or lack of response based on what the particular information of Mr. Gasana, based on the Court’s observations of Mr. Gasana’s demeanor and based on the fact that it has not been a systematic striking of minorities in the panel by Mr. Patanzo [Prosecutor], I do not find it to be a pretext and find it to be a race neutral reason.

Thomas argues that the trial court erred as a matter of law in allowing the state’s use of a peremptory challenge to excuse Gasana without conducting a “genuineness” inquiry pursuant to Melbourne v. State, 679 So.2d 759 (Fla.1996). In Melbourne, the defendant was on trial for DUI manslaughter. During voir dire the defense objected to the state’s use of a peremptory challenge to strike a black venire-person, Mr. Wells, who had indicated that his wife had died of alcoholism. After the defense objected to the use of the peremptory challenge the state pointed out that the defense had stricken two black jurors whom the state had been willing to accept. The trial court found the reason to be nonracially motivated and allowed the strike. On appeal, Melbourne argued that the explanation offered by the state was insufficient. The Florida Supreme Court explained that:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.

Id. at 764 (footnotes omitted).

Thomas argues that the trial court asked the prosecutor to state a race-neutral reason, but then failed to conduct the required genuineness analysis. The state responds that the trial court did properly consider the genuineness of the state’s reasons for the strike. The state asserts that the transcript shows that although the judge did not specifically use the word “genuine,” she nevertheless found the strike to be so when she stated that she did not believe it was a pretext. The trial court stated that she agreed with the prosecutor’s observations about Gasana’s demeanor and noted that there had been no systematic striking of jurors for racial reasons.

In support of its position, the state relies on Dorsey v. State, 868 So.2d 1192 (Fla.2003). There, the question was whether a party’s observation of a juror’s nonverbal behavior could constitute a genuine, race-neutral reason for a peremptory challenge when the purported behavior was challenged by the opposing party and was not observed by the trial court, nor otherwise supported by the record. In Dorsey, the state exercised a peremptory challenge on juror George, a black woman, on grounds that she “appeared disinterested” throughout. The defense counsel objected and asked for a race-neutral reason and stated that George had appeared very attentive to him during the process. The defense counsel commented that when he had asked who was happy to be there on jury duty that she was the only person to state affirmatively that she was happy to be there. The trial court made a finding that the state’s reason was not pretextual. The trial judge stated that he had not noticed that George was disinterested but asked the prosecutor “are you telling me as Officer of the Court that that [lack of interest] was your observation of this juror and that is why you wish to have her excused?” To this, the prosecutor said, “Exactly.” The court then allowed the peremptory strike. The Florida Supreme Court reversed and ruled that the state’s strike of the prospective juror, because she appeared “disinterested,” was not supported by the record, nor confirmed by the trial judge.

The supreme court referred to an earlier decision, Wright v. State, 586 So.2d 1024 (Fla.1991), where it had held that bare looks and gestures cannot be accepted as race-neutral reasons for peremptory challenges unless observed by the trial court. In Dorsey, the court went on to explain that:

The principle that emerges from Wright and Melbourne, in tandem, is that the proponent of a strike based on nonverbal behavior may satisfy its burden of production of a race-neutral reason during the second step of the process described in Melbourne only if the behavior is observed by the trial court or otherwise has record support. Once this burden of production is satisfied, the proponent is entitled to the presumption that the reason is genuine.

Dorsey v. State, 868 So.2d at 1199.

Relying on Dorsey, the state now asserts that in the instant case the trial court concurred with the state’s observation that Gasana was not involved in the jury selection process. The judge stated that “based on the court’s observation of Gasa-na’s demeanor and based on the fact that it has not been a systematic striking of minorities in the panel by Mr. Patanzo, I do not find it to be a pretext and find it to be a race neutral reason.” We agree that Dorsey controls but disagree that it supports the state’s position. The nonverbal behavior cited by the state as a race-neutral reason for peremptorily challenging Gasana has no record support and is not confirmed by observations of the trial court.

Our review of the transcript of voir dire reflects that initially, the trial judge asked potential jurors to answer a list of questions. Gasana answered them as indicated above. The only other time Gasana spoke was when another member of the venire stated that he would want to hear the defendant testify and give his side of the story. The defense then asked if anyone agreed with that idea. Gasana raised his hand (along with several other jurors). The defense attorney then discussed the burden of proof with them but did not specifically question Gasana. The record further reflects that the state thereafter did not ask any specific questions of Gasa-na, nor did the state ask any general questions of the panel that would require Gasa-na to respond.

In responding to the trial court’s request for a race-neutral reason for striking Gasa-na, the state did not mention Gasana’s demeanor. The prosecutor did not assert that Gasana appeared “disinterested” or that Gasana had by body language or gestures indicated hostility towards the state. The trial judge likewise made no such observation. The mere fact that the trial judge stated that she observed Gasana’s demeanor with no further explanation does not meet the test required by Dorsey. Observation of silence in the face of no inquiry as confirmation of nonverbal behavior is a non sequitur. Without more, it cannot be a genuine race-neutral basis for excluding Gasana from the jury. We are therefore compelled to reverse and remand for a new trial.

Inextricably Intertwined Crime Evidence

During the presentation of its case-in-chief and without any prior notice to defense counsel, the prosecution sought to admit and introduce evidence of six separate, unrelated and uncharged armed robberies allegedly committed by Dario Thomas, Jabar Fernander, Latarus Anthony and Prosper Dorville in Miami, Dade County, Florida, in the three hours preceding the commission of the Malta and Mar-tineau robbery in Miramar, Florida.

The prosecutor specifically advised the trial court that these robberies constituted “inextricably intertwined evidence” under State v. Cohens, 701 So.2d 362 (Fla. 2d DCA 1997), and were introduced for the sole purpose of establishing and proving Thomas’s motive and intent in committing the charged robbery in Broward County.

The trial court, over defense counsel’s objection, ruled that this evidence was “inextricably intertwined” with the underlying offense and accordingly the jury heard from the two former Co-Defendants, Ja-bar Fernander and Latarus Anthony, that Fernander, Anthony, Prosper Dorville and Thomas, after “partying, drinking and smoking,” committed a series of six armed robberies in Dade County in the three hours preceding the Malta and Martineau robbery in Miramar.

Citing Cohens, the state argues that the trial court did not abuse its discretion in allowing in the evidence of the other crimes because the evidence was admissible under section 90.402, Florida Statutes (2003), as relevant evidence in order to show that Thomas intended to rob the victims, Malta and Martineau.

In Cohens a codefendant, Butler, and Cohens were charged with the shooting death of a clerk at a gas station. The state sought to introduce evidence that Cohens and Butler attempted to rob the Flowers Bakery half an hour earlier. The state argued the evidence was either Williams rule evidence under section 90.404(2), Florida Statutes (2003), or was inextricably intertwined. The trial court precluded the introduction of the evidence and the state appealed. The second district reversed the trial court.

Cohens had made a statement to police and admitted his involvement in the Flowers attempted robbery but claimed that he had declined to participate when Butler had said he was going to attempt another robbery. A third man had testified that Cohens told him that Cohens dropped Butler off at the gas station and had said he was not going to take part in the robbery. Cohens had allegedly stated that he had then gone to his cousin’s house and parked his ear and walked back to the gas station and observed the robbery and saw Butler shooting the clerk. Cohens purportedly ran back to his car and “guessed” that Butler followed Mm. A group of schoolchildren were outside the gas station and one of the children testified that he recognized Cohens and had seen him and another man inside the store and both had guns. The second district ruled that the evidence of the earlier robbery attempt was not Williams rule or similar fact evidence; however, the court ruled that it was inextricably intertwined evidence. The court discussed Damren v. State, 696 So.2d 709 (Fla.1997), to support its decision.

In Damren, the defendant and an accomplice had gone to mining grounds and burglarized a maintenance barn. During the course of the burglary they had been interrupted by a technician whom Damren bludgeoned to death. At Damren’s first degree murder trial the court allowed in evidence that several weeks earlier Dam-ren had gone to the mine and stolen a generator. The supreme court held that the evidence was not similar fact evidence, but was nevertheless admissible because it was “integrally connected” to the crimes at issue. The defendant claimed to have been too drunk to form the intent to participate in the robbery; however, the court ruled that the earlier crime had been admissible because it supported the state’s theory that the defendant possessed the specific intent to burglarize the mine.

Applying Damren, the Cohem court noted that Cohens’s intent was at issue. The court ruled that because of the integral connection between the attempted robbery at the Flowers Bakery and the shooting at the gas station, the earlier incident could be used to prove that Cohens had the specific intent to commit a robbery at the second location. The court also stated that it established Cohens’s motive for being present at the gas station. Because Butler blamed Cohens for the failure of the earlier attempted robbery the men reversed roles in the second station holdup. Thus, the attempted robbery was necessary to explain Cohens’s presence at the murder scene and his role. As to motive, the earlier attempted robbery could show that Cohens’s presence at the gas station was merely a second attempt to achieve a previously frustrated goal.

We find Cohens inapplicable because introduction of the six unrelated and uncharged armed robberies was not necessary to prove motive or intent for the crimes charged in the instant case and, therefore, not “inextricably intertwined evidence.”

In order for these six uncharged crimes to be admissible as inextricably intertwined evidence, they must be admissible under section 90.402. To be admissible under section 90.402, the evidence must be a relevant and inseparable part of the act which is in issue and it must be necessary to admit the evidence to adequately describe the crime charged. See Griffin v. State, 639 So.2d 966, 967 (Fla.1994).

In Griffin the defendant had stolen a car after burglarizing a hotel room in which he found the keys and, while using the stolen vehicle to commit additional crimes, shot and killed a police officer. He argued on appeal that evidence of the burglary of the hotel room in which he obtained the car keys should not have been admitted in the trial in which he was charged with murder, theft of the stolen car, and other crimes. The court held that, although the defendant was not on trial for burglary of the hotel room in which he obtained the keys to steal the car, the evidence was admissible. The court stated: “The manner in which the car keys were taken was inextricably intertwined with the theft of the automobile, one of the charges before the jury. The testimony was necessary to establish the entire context out of which the crime arose.” Id. at 969. See also Shively v. State, 752 So.2d 84, 85 (Fla. 5th DCA 2000) (evidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as inextricably intertwined with the underlying offense because, without this evidence, the state would be unreasonably hampered in the presentation of its case).

The admission of these six Dade County armed robberies was not necessary to describe the underlying offense and without this evidence the State would not have been unreasonably hampered in the presentation of its case. The prosecution was clearly capable of presenting its case in a manner so as not to encompass or even address the Dade County armed robberies, but by simply focusing on the crime charged and Thomas’s alleged involvement and participation.

Finally, the state argues that even if the admission of the six Dade County crimes was error, it was harmless in this case. For support of its assertion of harmless error, the state notes that both Malta and Martineau testified on the details of the instant robbery; the un-rebut-ted testimony of co-defendants Fernander and Anthony established Thomas’s participation in the instant robbery; the testimony of law enforcement officers involved in the pursuit showed that Thomas ran from the same car which sped away from the scene of the Broward County robbery. We disagree that this was harmless error.

Our court’s decision in Griner v. State, 662 So.2d 758 (Fla. 4th DCA 1995), supports the exclusion of the six Dade County crimes and requires a reversal and new trial. In Griner, two robberies were committed within a distance of approximately two blocks and occurred within a period of approximately twenty-two minutes. After the evidence was admitted at trial as Williams rule evidence, the state on appeal recognized that the evidence did not constitute similar fact evidence and argued to this Court that it was properly admissible as “inextricably intertwined” and/or “inseparable crime” evidence under Griffin v. State, supra.

In rejecting the state’s contention on appeal and finding that the admission of this evidence could not be excused or condoned as harmless error, we held:

In the present case the facts of the first event were not “inextricably intertwined” with, or “necessary to adequately describe” the second event. The most we can say about the relationship between these two events is that one occurred very soon after the other, which is not sufficient to make the evidence regarding the first incident admissible under Griffin, particularly when we weigh the danger of unfair prejudice to defendant against the relevancy of the evidence (citations omitted). Nor can we say that the admission of this evidence was harmless beyond a reasonable doubt underrate v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Griner, 662 So.2d at 759.

Likewise, the admission of six unrelated robberies in Dade County three hours pri- or to the crime at issue here can hardly be considered harmless beyond a reasonable doubt.

REVERSED AND REMANDED FOR A NEW TRIAL.

FARMER, C.J., and STEVENSON, J., concur.

      . The trial court did not delineate what she meant by "demeanor” but equated it with Gasana’s "lack of participation or lack of response.”

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Section 90.402 states that ''[a]ll relevant evidence is admissible, except as provided by law.”


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    Gil RUBERTE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Siemens Building Technologies, Appellees.
    No. 3D03-2259.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.

      Amlong & Amlong, P.A., and William R. Amlong, and Jennifer Daley (Ft. Lauder-dale), for appellant.
    John D. Maher (Tallahassee), for appel-lee.
    Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ.
   GREEN, J.

Gil Ruberte appeals an order of the Florida Unemployment Appeals Commission (“Commission”) disqualifying him from receiving unemployment benefits based upon its conclusion that he was fired for misconduct connected to his employment. Because we find that the factual findings made by the referee and adopted by the Commission, as well as the undisputed record evidence, do not support the conclusion that Ruberte engaged in misconduct connected with his employment, we reverse.

The relevant and material facts of this case are basically undisputed. Ruberte and a fellow employee, Kurt Hair, had each been employed by Siemens Building Technologies (“Siemens”) and its predecessors for well over ten years. Siemens is a service and construction company whose principal line of business is building temperature controls and fire and security systems for, commercial and industrial buildings. Ruberte was employed as a sales engineer and Hair as an account executive salesman.

Siemens terminated Ruberte and Hair on' February 28, 2003, on the grounds that they had engaged in activities that violated the company’s policies against , conflicts of interests. Siemens and/or its predecessors required each employee to sign an agreement that provided, in pertinent part, that neither an employee nor any family member of said employee shall directly or indirectly have an ownership interest in an entity doing business with the employer, or serve any role in a company that is the competition of, or the customer of, the employer.

Siemens claimed that both Ruberte and Hair had violated this provision because they had activated their general contractor’s licenses and formed a corporation with one of Siemens’ frequently-used subcontractors for the purpose of acquiring and repairing single-family residences as a “hobby, weekend business.” At the time of their termination, this corporation was awaiting final approval of its Articles of Incorporation from the State of Florida in order to commence business.

After their termination, Ruberte and Hair filed their respective applications for unemployment benefits. Both were determined to be disqualified from receiving benefits because they had been discharged for engaging in activity that was a conflict of interest with their employer. Each of them then appealed this initial determination to the Agency for Workforce Innovation appeals office. Although the Commission was made aware of the fact that the issues and evidence on both of these appeals were substantially the same, the two cases were not consolidated and two different referees were assigned to preside over these appeals.

The appeals referee in Hair’s appeal reversed the claim’s adjudication determination that Hair was ineligible to receive unemployment benefits due to misconduct. The referee found, among other things, that the fact that Hair, Ruberte and their employer’s subcontractor had formed a corporation with the intent to buy and repair residential homes in the future was insufficient to establish that Hair was in competition with his employer’s business, which provided services for primarily commercial and industrial customers. The employer did not appeal this determination; the Commission subsequently affirmed the referee’s determination, and Hair received his unemployment benefits.

The appeals referee in Ruberte’s case, on the other hand, found, on substantially similar evidence, that Ruberte was disqualified from receiving benefits. The referee in Ruberte’s appeal concluded, among other things, that the employer prohibited any type of outside employment by its employees and that Ruberte’s formation of a corporation with Hair and the employer’s subcontractor was not in the employer’s best interests. The referee further found that this corporation would be in competition with the employer’s business. Accordingly, the referee affirmed the claims adjustor’s denial of benefits to Ruberte.

Ruberte appealed this determination to the Commission and argued that he should not be disqualified from receipt of unemployment compensation benefits when a co-worker who was discharged under similar circumstances was not similarly disqualified. The Commission rejected the referee’s finding that the employer prohibited any type of outside employment by its employees and that Ruberte had an interest in a company that does business with the employer, as not supported by competent evidence. Notwithstanding its rejections of these findings the Commission affirmed Ruberte’s disqualification for unemployment benefits. The Commission concluded that Ruberte had violated his employer’s policies by forming the corporation with a co-worker, and one of the employer’s sub-contractors, in contravention of the employer’s rules prohibiting employees from doing business with the employer and maintaining personal relationships with such entities. The Commission further concluded that a different referee’s holding based upon a different record had no bearing on the outcome of this case.

Ruberte took the instant appeal and raises two points. First, Ruberte argues that the Commission erred in declining to give any weight or deference to its earlier decision regarding Hair, who was terminated for precisely the same reason as he, but was awarded unemployment benefits. He next argues that the Commission erred in its determination that he had engaged in acts of misconduct based upon the undisputed material evidence. We elect to address his second argument based upon our conclusion that the undisputed record evidence does not support the Commission’s determination that Ruberte is disqualified from receiving unemployment benefits.

The legislature has defined misconduct in the context of unemployment compensation law as follows:

MISCONDUCT — “Misconduct” in-
cludes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

§ 443.036(29), Fla. Stat. (2001). Given the fact that the denial of unemployment benefits presents serious consequences to the employees, courts are to liberally construe this statute in favor of the employee when defining misconduct. See Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000) (“In defining misconduct, courts are required to liberally construe the statute in favor of the employee.”).

In this case, the Commission concluded that the claimant had engaged in an act of misconduct by violating his employer’s conflict of interest policy. That policy provided in pertinent part that:

No employee shall, however, engage in activities which adversely affect the employee’s ability to perform the employee’s responsibilities to the company or which would make the employee’s interests contrary to the best interests of the company.
Unless prior written permission is received from the President and CEO, neither an employee nor any member of his or her family shall directly or indirectly:
3. Have an ownership interest in any entity doing business with the company or competing with the company ...
4. Serve as an officer, director, employee or consultant to any entity or person who is a competitor of , the company or which does or is seeking to do business with the company.

The unrefuted record evidence, as well as the Commission’s own conclusions, do not support the finding that the claimant violated this policy. By its expressed terms, the policy precludes employees, without prior permission, from having an interest in entities that do business with the employer, seek to do business with the employer, or compete with the employer. First of all, at the time of the claimant’s discharge, the corporation formed by him, his colleague and the subcontractor, was inactive and awaiting approval of its articles of incorporation. More importantly, however, this corporation was formed for the purpose of acquiring and repairing “fixer upper” residential homes for resale purposes. That was not and is not the business of the employer. The claimant’s company therefore would have no need either to do business with the employer or compete with the employer for customers.

Moreover, the Commission’s conclusion that the claimant violated the employer’s conflict of interest policy by becoming an officer and director of a business that was affiliated with one of the employer’s frequently used contractors is simply incorrect. According to provision 4 of the policy, an employee cannot serve as an officer or director of any entity that does or is seeking to do business with the employer. The claimant in this case would have violated this provision only if he would have become an officer, director, employee, or consultant in the electrical subcontractor’s business since that was the entity which does business with the employer.

That, however, is not what transpired here. The claimant and the employer’s subcontractor formed a separate entity to render a service that is wholly unrelated to the employer’s business. Thus, the employer did not sustain its burden of proof that the claimant was discharged from his employment due to misconduct. See Tallahassee Hous. Auth. v. Unemployment Appeals Comm'n, 483 So.2d 413 (Fla.1986) (finding that employer must present substantial competent evidence to prove misconduct).

For this reason, we reverse the final order of the Commission that denied the claimant his unemployment benefits. In so doing, it is unnecessary for us to address the claimant’s remaining argument on appeal regarding the Commission’s disparate treatment of claimant’s and Hair’s appeals from the denial of benefits. We do, however, seize upon this opportunity to remind the Commission once again of its need to consolidate cases and appeals involving similar facts and issues to avoid the “Alice-in-Wonderland” results obtained in this case and the case involving Hair. See Davis v. Unemployment Appeals Comm’n, 472 So.2d 800, 802 (Fla. 3d DCA 1985).

Reversed and remanded.


author: PER CURIAM. PER CURIAM.

text:
    Montgomery Blair SIBLEY, Appellant, v. Barbara SIBLEY, Appellee.
    No. 3D03-2083.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Order Granting Rehearing in Part Dec. 8, 2004.

      Montgomery Blair Sibley, in proper person.
    Jay M. Levy; Bette E. Quiat, Miami, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Montgomery Blair Sibley (the former husband) appeals two post-judgment orders entered after dissolution of marriage. Final judgment in the dissolution action was entered in 1994 and there have been numerous post-judgment proceedings since that time. In this proceeding, the former husband appeals orders compelling payment of attorney’s fees and tuition. We affirm those orders.

The former wife requests an order precluding the former husband, an attorney, from representing himself in further appeals in this court. We grant the request.

I.

The former husband appeals an order entered on July 1, 2003 (“the July 1 order”) which required the former husband to pay the former wife, Barbara Sibley, $33,119.70 in attorney’s fees within sixty days. This order enforced earlier attorney’s fee awards which had already been entered against the former husband in pri- or proceedings.

On this appeal, the former husband argues that one of the underlying attorney’s fee orders was entered in error and that the trial court erred in enforcing it. This argument is without merit.

The underlying attorney’s fee order which the former husband is trying to attack was entered on March 4, 2003 (“the March 4 order”). The former husband appealed the March 4 order to this court, arguing procedural error. This court affirmed without opinion. Sibley v. Sibley, 866 So.2d 1223 (Fla. 3d DCA 2003) (table), cert. denied, — U.S.-, 124 S.Ct. 2909, 159 L.Ed.2d 813 (2004). Since the former husband already appealed the March 4 order and this court already affirmed it, common sense and principles of res judica-ta dictate that the former husband cannot now mount a second appeal of the March 4 order.

The former husband argues that a successive attack on the March 4 order is allowed as a result of the Florida Supreme Court’s decision in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001). The former husband misunderstands the import of that decision. The Juliano case explains the law of the case doctrine, where there has been an interlocutory appeal followed by a later appeal from a final judgment. See id. at 106.

The Juliano decision does not apply here. The March 4 order was a final order awarding attorney’s fees and it was appealed as a final order. The March 4 order is res judicata.

This court has explained that res judica-ta applies where, as here, there have been multiple final orders in post-dissolution proceedings.

[I]t does not matter that the issue-pre-clusive effect of the earlier adjudication is asserted later in the same case, rather than in separate, subsequent litigation. Probably because res judicata principles in general apply only to final, appealable determinations, see 33 Fla. Jur.2d Judgments & Decrees § 173 (1994), and successive final judgments in the same case are at least unusual, see Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315 (Fla. 3d DCA 1987), it is true that the principle is often broadly and imprecisely stated as applying in subsequent “suits” or “actions.” See 32 Fla. Jur.2d Judgments and Decrees § Í40. Nevertheless, when there is indeed a final earlier adjudication, its “effect ... as res judicata is not confined in its operation to subsequent independent' proceedings, but also applies to all collateral proceedings in the same action.”

Utterback v. Starkey, 669 So.2d 304, 305 (Fla. 3d DCA 1996) (footnotes and citations omitted).

The former husband argues that it would work a manifest injustice for this court to enforce the March 4 order. The Florida Supreme Court “has long recognized that res judicata will not be invoked where it would defeat the ends of justice.” State v. McBride, 848 So.2d 287, 291 (Fla.2003) (citations omitted).

The former husband argues that it would be a manifest injustice to enforce the March 4 order because the prior panel which affirmed the March 4 order did not write an opinion explaining the panel’s reasoning. In the former husband’s view, the prior panel was mistaken and should have written an opinion to explain the ruling. This is not a legally sufficient showing of manifest injustice. The district courts of appeal are allowed to issue affirmances without opinion. See R.J. Reynolds Tobacco Co. v. Kenyon, 882 So.2d 986 (Fla.2004).

■ The former husband argues that the claimed procedural errors in the entry of the March 4 order render the March 4 order void. The former husband moved for relief from judgment under Florida Rule of Civil Procedure 1.540, with respect to the March 4 order and relief was denied by the successor judge, Judge Wilson. That order is one of the orders on appeal herein. However, the former husband has not demonstrated any error in the order denying Rule 1.540 relief.

II.

The former husband next appeals a July 17, 2003 order compelling him to reimburse tuition expenses for two of the parties’ children.

Under the parties’ marital settlement agreement, the former husband is responsible for payment of educational expenses through college. See Sibley v. Sibley, 816 So.2d 136 (Fla. 3d DCA 2002).

The children are also beneficiaries of trusts set up for their benefit. A guardian ad litem currently serves as the trustee of those trusts. When the former husband has failed to pay tuition, the trusts have made those payments. However, where that has happened, the trustee has requested that the trusts be reimbursed.

In February 2003 the former wife filed a motion entitled “Emergency Motion to Permit Payment of Deposit for Minor Child, Montgomery Blair Sibley, Jr., at Palmer Trinity [School] and Summer School Tuition for Margaret Harper Sibley and Emergency Motion for Contempt for Failure to Pay Life Insurance Premium” (“the Emergency Motion”).

After conducting hearings on March 10 and April 7, 2003, the trial court granted the tuition-related requests. The trustee was authorized to pay the tuition amounts. That part of the order is not challenged on this appeal.

The July 17 order also required former husband to reimburse two of the trusts, in the amounts of $18,130 and $7,207.50, respectively.

The former husband argues that the trial court should not have heard the motion because at that time of the hearing the former husband’s seventh motion to disqualify the trial judge was pending.

We reject the former husband’s argument, as the point has been waived. The former husband correctly argues that when a motion for disqualification or recu-sal is pending, it is the court’s duty to rule on that motion before ruling on anything else. See Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000). Further, it is not necessary for the movant to request a hearing. See id.

However, disqualification motions cannot be used for “gotcha” litigation tactics. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3d DCA 1979). In this case, the former husband and his counsel personally attended the hearing on the Emergency Motion. Nowhere in the transcript did they object that the hearing could not proceed until the court ruled on the pending motion for disqualification.

A party cannot go to a hearing knowing that he has filed a motion for disqualification, make no mention of the pending motion, participate in the hearing, and then after receiving an unfavorable ruling, argue that the court must start over because there was a pending motion for disqualification.

“The well-settled proposition is that the law ‘does not favor the substitution of a Judge or Justice in a cause after decision which essentially carries a benefit to the successful party.’ ” Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (quoting Ball v. Yates, 158 Fla. 521, 29 So.2d 729, 735 (1946)). In Lawson

the seller waited, having knowledge of the alleged ground for recusal from the second day of trial, until well after final judgment, which was adverse to him. By doing nothing to affirmatively promote or protect the issue of the possible recusal, the seller can be said to have sat on his rocking chair, watching the trial meander by. It is now too late and he has shown no good cause for delay.

Lawson, 547 So.2d at 1281; see also Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986) (“A motion for recusal is considered untimely when delayed until after the moving party has suffered an adverse ruling unless good cause for the delay is shown.”)

The former husband relies on Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000), but that case is not on point. In Fuster-Escalona there was never a hearing on the motion for disqualification. That case addressed how to treat a disqualification motion for purposes of the rule regarding dismissal for lack of prosecution. Id. at 1064-65. It did not involve a situation like the one now before us, where a party participated in a hearing without objecting that there was a pending disqualification motion.

The former husband relies on the thirty-day rule established by Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003), but reliance on that case is misplaced. In Tableau the Florida Supreme Court announced that a motion for disqualification must be ruled on by a trial court within thirty days. Id. at 303. If there is no ruling within thirty days, then disqualification is automatic. See id. at 301. The former husband argues that his seventh motion for disqualification was pending for more than thirty days and therefore Judge Lando should have been disqualified. However, the thirty-day rule of Tableau is prospective only, and came into effect only for motions for disqualification filed on or after August 20, 2003. See City of Hollywood v. Witt, 868 So.2d 1214, 1218 n. 6 (Fla. 4th DCA 2004). The seventh motion for disqualification had been filed prior to that date. Thus, the thirty-day rule is inapplicable to the former husband’s seventh motion for disqualification.

III.

The former husband next argues that the July 17 order erroneously holds him in contempt when no motion for contempt was made. The former husband is incorrect. He was not held in contempt.

The former wife filed the Emergency Motion described previously. The court authorized (a) the guardian ad litem, as trustee, to pay the educational expenses for the two children; (b) ordered the former husband to reimburse the two trusts $18,130 and $7,207.50, respectively; and (c) reserved jurisdiction on the issues of contempt and attorney’s fees for a subsequent hearing.

The reservation of jurisdiction on the issue of contempt apparently refers to the former wife’s second request in her motion, which was never reached by the trial court: her request to hold the former husband in contempt for failure to pay a life insurance premium.

The former husband complains that he was not provided a copy of the proposed order prior to its entry. Assuming that is so, that is not a basis for reversal. This order was preceded by at least two similar orders directing the former husband to reimburse educational expenses for earlier time periods. It was clear from the court’s remarks at the April 7 hearing that the court intended to pattern the July 17 order after the orders entered previously, and the court did so.

IV.

The former husband argues that the trial court erred by refusing to approve a statement of proceedings under Florida Rule of Appellate Procedure 9.200(b)(4). During the pendency of this appeal, the former husband prepared a proposed statement of the proceedings for the hearing which took place on August 27, 2002. This is the hearing which resulted in the order of March 4, 2003 awarding attorney’s fees to the former wife. The guardian ad litem objected to the proposed statement of proceedings.

The trial court declined to approve the statement of proceedings. The former husband moved to compel Judge Lando (who conducted the August 27, 2002 hearing) to settle the statement of proceedings. See Fla. R.App. P. 9.200(b)(4). This court treated the former husband’s motion to compel as a petition for writ of mandamus and, after receiving a response, denied it. The former husband has renewed the point in his brief.

As explained earlier in this opinion, the March 4, 2003 order has become final and is not subject to collateral attack in this appeal. The time to have submitted a statement of proceedings for the August 27, 2002 hearing would have been in connection with the earlier appeal of the March 4, 2003 order, not the present appeal.

V.

The former wife has filed a Motion for Sanctions in which she seeks to preclude the husband from any further self-representation in this court without being represented by counsel. The former wife contends that the husbands appeals have repeatedly been shown to be without merit and have constituted an abuse of the legal process. Upon consideration of the motion, the former husband’s response filed January 5, 2004, and after review of this courts files, we agree.

The Florida Supreme Court has said:

Abuse of the legal system is a serious matter, one that requires this Court to exercise its inherent authority to prevent. As we held in Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998): “This Court has a responsibility to ensure every citizen’s access to courts. To further that end, this Court has prevented abusive litigants from continuously filing frivolous petitions, thus enabling the Court to devote its finite resources to those who have not abused the system.”
Although rare, we have not hesitated to sanction petitioners who abuse the legal process by requiring them to be represented by counsel in future actions. In Jackson v. Florida Department of Corrections, 790 So.2d 398 (Fla.2001), the sanction of requiring a member of The Florida Bar to sign all of petitioner’s filings tyith this Court and dismissing all other pending cases was imposed on a litigious inmate who repeatedly filed frivolous lawsuits that disrupted the Court’s proceedings. In Martin v. State, 747 So.2d 386, 389 (Fla.2000), the sanction was imposed against a petitioner who, like Lussy, repeatedly filed lawsuits that included personal attacks on judges, were “abusive,” “malicious,” “insulting,” and demeaning to the judiciary. In Attwood v. Singletary, 661 So.2d 1216 (Fla.1995), the petitioner was sanctioned for filing numerous frivolous petitions, including one that was filed shortly after the Court’s order to show cause was issued.
Like the individual in Attwood, Lussy has abused the processes of this Court with his constant filings. Accordingly, a limitation on Lussy’s ability to file would further the constitutional right of access because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others. See generally In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (finding that “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources”).

Lussy v. Fourth District Court of Appeal, 828 So.2d 1026, 1027 (Fla.2002); see Slizyk v. Smilack, 734 So.2d 1166 (Fla. 5th DCA 1999); Platel v. Maguire, Voorhis & Wells, P.A., 436 So.2d 303 (Fla. 5th DCA 1983); Shotkin v. Cohen, 163 So.2d 330 (Fla. 3d DCA 1964); see also Safir v. United States Lines, Inc., 792 F.2d 19 (2d Cir.1986).

In Safir the court stated:

[I]n determining whether or not to restrict a litigant’s future access to the courts, [a court] should consider the following factors: (1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplica-tive lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g. does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.

792 F.2d at 24.

The fact that the former husband is an attorney does not insulate him from this analysis. On a proper showing, an attorney may be barred from self-representation. See Slizyk, 734 So.2d at 1167.

The parties were divorced in 1994. Several years later, post judgment disputes arose, leading to litigation of increasing intensity. The former husband was eventually incarcerated for civil contempt for failing to pay child support. See Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), review denied, 854 So.2d 660 (Fla.2003), cert. denied, 124 S.Ct. 1074, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004). In correspondence between the former husband and the former wife, the former husband stated, “And if you want to attempt to squeeze me until I am dry, we will litigate until I am disbarred and bankrupt if necessary for you leave me no other choice.”

The former husband, an attorney, has initiated twenty-five appellate proceedings in this court in which he has represented himself, and has filed two more in which he was represented by counsel. These are listed in the Appendix to this opinion. The former husband prevailed in an early appeal to this court. See Sibley v. Sibley, 710 So.2d 1017 (Fla. 3d DCA 1998). However, the former husband’s subsequent pro se proceedings in this court have been found to have no merit. As is shown by this appeal, the former husband has repeatedly tried to re-litigate matters decided in earlier proceedings, without any legitimate basis to do so.

In addition, the former husband has filed at least twelve actions in federal court against judges who have been assigned to his cases, the court system, and the former wife. In Sibley v. Wilson, No. 04-21000-CIV-MORENO, the federal court cata-logued the former husband’s federal litigation history as follows:

The Plaintiffs divorce case from ex-wife Barbara Sibley ... has been ongoing since 1994. The case appears to have been bitter, as evidenced by Plaintiffs numerous filings of separate actions related to issues in the divorce proceeding, including:
1. Sibley v. Judge Maxine Cohen Lando
United States District Court, Southern District of Florida
Case No. 01-2940-CIV-UNGARO-BENAGES
Summary: allegations of constitutional violations by judge
Outcome: dismissed on basis of Younger abstention [aff'd, 37 Fed. Appx. 979 (11th Cir.2002) ].
2. Sibley v. Judges David Gersten, Juan Ramirez, and Joseph Nesbitt
United States District Court, Southern District of Florida
Case No. OO-3665-CIV-MORENO
Summary: allegations of constitutional violations by judges
Outcome: dismissed on basis of judicial immunity, lack of subject-matter jurisdiction [aff'd, 252 F.3d 443 (11th Cir.), cert. denied, 534 U.S. 827, 122 S.Ct. 67, 151 L.Ed.2d 34 (2001) ].
3. Sibley v. Mark Martinez
United States District Court, Southern District of Florida
Case No. 02-22931-CIV-HI-GHSMITH
Summary: allegations of constitutional violations by Clerk’s filing process
Outcome: dismissed for lack of constitutional violation.
4. Sibley v. Judges Alan Schwartz, David Gersten, Mario Goderich, Gerald Cope, Robert Shevin, Maxine Cohen Lando, Victoria Platzer, and Barbara Sibley
United States District Court, Southern District of Florida
Case No. 01-2746-CIV-KING
Summary: allegations of constitutional violations by judges
Outcome: dismissed on basis of Younger abstention, lack of subject-matter jurisdiction. Rule 11 sanctions imposed against Plaintiff [aff'd, 45 Fed. Appx. 878 (11th Cir. 2002) ].
5. Sibley v. Sibley
United States District Court, Southern District of Florida
Case No. 01-2770-CIV-HUCK
Summary: allegations of interference with parent-child relationship by ex-wife
Outcome: dismissed on basis of lack of subject-matter jurisdiction [aff'd, 34 Fed. Appx. 969 (11th Cir.2002) ].
6. Sibley v. Sibley
United States District Court, Southern District of Florida
Case No. 01-1349-CIV-GOLD
Summary: removal of divorce action from Judge Lando’s court
Outcome: remanded on basis of lack of subject-matter jurisdiction.
7. Sibley v. Spears
United States District Court, Southern District of Florida
Case No. 02-22106-CIV-JORDAN
Summary: petition for habeas corpus regarding contempt orders
Outcome: dismissed for lack of subject-matter jurisdiction.
8. Sibley v. Judge Maxine Cohen Lando
United States District Court, Southern District of Florida
Case No. 03-20942-CIV-HUCK
Summary: allegations of violations of right of access to the courts
Outcome: dismissed on basis of Rooker-Feldman and Younger abstentions [aff'd, 99 Fed. Appx. 886 (11th Cir.2004) ].
9. Sibley v. Florida Supreme Court, Harry Lee Anstead, Third District Court of Appeal, and Eleventh Judicial Circuit Court of Dade County
United States District Court, Southern District of Florida
Case No. 03-21199-CIV-LENARD
Summary: allegations of equal protection violations in decisions by Florida courts
Outcome: dismissed sua sponte for lack of subject-matter jurisdiction.
10. Sibley v. Maxine Cohen Lando
United States District Court, Southern District of Florida
Case No. 03-21885-CIV-HUCK
Summary: allegations of equal protection violations in divorce proceedings
Outcome: dismissed on basis of Rooker-Feldman and Younger abstentions [aff'd, 97 Fed. Appx. 907 (11th Cir.), cert. denied, — U.S. -, 124 S.Ct. 2885, 159 L.Ed.2d 779 (2004) ].
The Plaintiff has also filed a lawsuit against his wife in federal court in Delaware which was dismissed for lack of subject matter jurisdiction (Case No. 8:00-cv-02997-JFM), and has filed a number of appeals and/or petitions before Florida state courts as well.

Sibley v. Wilson, No. 04-21000-CIV-MORENO, slip op. at 2-3 (S.D.Fla. July 7, 2004).

In dismissing Sibley v. Wilson, Judge Moreno said that it is “the court’s recognized right and duty, in both Federal and Florida state courts, to protect their jurisdiction from vexatious litigants and abuse of the judicial system.” Id. at 6 (citations omitted). We agree.

The former husband has served as an unending source of vexatious and meritless litigation. This has caused needless consumption of resources by the court system and needless expense to the former wife. Awards of attorney’s fees have not served as a deterrent, as the former husband has not paid them.

We conclude that the standards of Lus-sy are met. We have considered the criteria set forth in the Safir decision and conclude that those are met as well. We therefore prohibit the former husband from further self-representation in this court.

We direct the clerk of this court to reject any further filings in this court on the former husband’s behalf unless signed by a member of the Florida Bar (other than the former husband). Any other cases that are pending in this court in which the former husband is representing himself will be dismissed unless a notice of appearance signed by a member in good standing of the Florida Bar (other than the former husband) is filed in each case within thirty days of this opinion becoming final. See bu,ssy, 828 So.2d at 1028.

VI.

For the stated reasons, the orders now under review are affirmed. The former wife’s motion for sanctions is granted. The former husband is precluded from further self-representation in this court.

Affirmed; sanctions granted.

APPENDIX

(Sibley v. Sibley Case No. 3D03-2083)

A. Completed proceedings in which the former husband has represented himself:

1) Sibley v. Sibley, 866 So.2d 1223 (Fla. 3d DCA 2003) cert. denied, — U.S. -, 124 S.Ct. 2909, 159 L.Ed.2d 813 (2004);
2) Sibley v. Sibley, No. 03-1392 (Fla. 3d DCA Aug. 6, 2003);
3) Law Offices of Rodriguez & Sibley v. Sibley, No. 03-3090 (Fla. 3d DCA Dec. 12, 2003);
4) Sibley v. Sibley, 835 So.2d 1140 (Fla. 3d DCA 2002) (01-3496);
5) Sibley v. Sibley, 833 So.2d 143 (Fla. 3d DCA 2002), reh’g denied, 835 So.2d 1140(Fla. 3d DCA 2002);
6) Sibley v. Sibley, 831 So.2d 193 (Fla. 3d DCA 2002) (02-2764);
7) Sibley v. Sibley, 831 So.2d 193 (Fla. 3d DCA 2002) (02-2190), reh’g denied, 835 So.2d 1141 (Fla. 3d DCA 2002);
8) Sibley v. Sibley, 831 So.2d 192 (Fla. 3d DCA 2002) (02-412);
9) Sibley v. Sibley, 823 So.2d 785 (Fla. 3d DCA 2002);
10) Sibley v. Sibley, 816 So.2d 136 (Fla. 3d DCA 2002);
11) Sibley v. Sibley, 815 So.2d 673 (Fla. 3d DCA 2002), rev. denied, 833 So.2d 774 (Fla.2002);
12) Sibley v. Sibley, 814 So.2d 1054 (Fla. 3d DCA 2002);
13) Sibley v. Sibley, 803 So.2d 738 (Fla. 3d DCA 2001);
14) Sibley v. Sibley, 795 So.2d 71 (Fla. 3d DCA 2001);
15) Sibley v. Sibley, 793 So.2d 959 (Fla. 3d DCA 2001);
16) Sibley v. Sibley, 791 So.2d 481 (Fla. 3d DCA 2001);
17) Sibley v. Sibley, 771 So.2d 1175 (Fla. 3d DCA 2000);
18) Sibley v. Sibley, 751 So.2d 586 (Fla. 3d DCA 2000);
19) Sibley v. Sibley, 733 So.2d 529 (Fla. 3d DCA 1999);
20) Sibley v. Sibley, 732 So.2d 1079 (Fla. 3d DCA 1999);
21) Sibley v. Sibley, 725 So.2d 1273 (Fla. 3d DCA 1999);
22) Sibley v. Sibley, 710 So.2d 1017 (Fla. 3d DCA 1998).

B. Pending appellate proceedings in which the former husband represents himself:

23) Sibley v. Sibley, Case No. 3D04-294;
24) Sibley v. Sibley, Consolidated Case No. 3D04-1260/3D04-803;
25) Sibley v. Sibley, Case No. 3D04-1466.

C. Completed appellate proceedings in which the former husband was represented by counsel:

26) Sibley v. Spears, 837 So.2d 988 (Fla. 3d DCA 2002) cert denied, 540 U.S. 1016, 124 S.Ct. 567, 157 L.Ed.2d 429 (2003);
27) Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), review dismissed, 854 So.2d 660(Fla.2003), cert. denied, — U.S.-, 124 S.Ct. 2909, 159 L.Ed.2d 813 (2004).

Before COPE, GERSTEN and GREEN, JJ.

On Motion for Rehearing

PER CURIAM.

We grant the motion for rehearing in one respect, and deny the remainder of the motion.

The former husband argues that under the terms of this court’s opinion dated November 3, he is precluded from filing a pro se motion to invoke the discretionary review jurisdiction of the Florida Supreme Court. That is so because this court’s opinion directs “the clerk of this court to reject any further filings in this court on the former husband’s behalf unless signed by a member of the Florida Bar (other than the former husband).” Opinion at 988.

This court has permitted the former husband to file a pro se motion for rehearing and rehearing en banc in this case. Consistent with that procedure, we modify our opinion of November 3, 2004 to permit the filing of a pro se notice to invoke discretionary jurisdiction of the Florida Supreme Court, should the former husband choose to do so.

The former husband maintains that this court should not have quoted his correspondence to his former wife, arguing that the quoted correspondence is not in the record of this appeal. That point is without merit. We clearly stated in our opinion of November 3 that for purposes of part V of the opinion, this court reviewed its files in all of the former husband’s prior appellate proceedings. The quoted letter is found in Sibley v. Sibley, No. 3D02-3171, 833 So.2d 847 (Fla. 3d DCA 2002), Appendix to Appellee’s Answer Brief.

We deny rehearing on the remaining points without further discussion.

Rehearing granted in part, denied in part.

      . The order was signed on March 4 and filed on March 6, 2003. The former wife refers to it as the March 4, 2003 order and the former husband refers to it as the March 6, 2003 order. We will use the March 4, 2003 date.

      . In requesting reimbursement, the guardian ad litem (as trustee) reasons that where the former husband has undertaken responsibility to pay the educational expenses, the children’s trusts should not be diminished for that purpose.

      . For the same reason, the thirty-day rule does not apply to the former husband's subsequent motion to disqualify Judge Lando filed June 12, 2003. Further, even if that were not so, we would reject the former husband’s argument on authority of Fischer v. Knuck, 497 So.2d 240 (Fla.1986). The Fischer decision states, "When a judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing.” 497 So.2d at 243 (citations omitted). The July 17 order accuratefy reflects the oral ruling at the April 7 hearing.

      . There is a scrivener's error in the title of the July 17 order. The order states that it is an "Order Granting Former Wife's Ore Tenus and Emergency Motion for Contempt for Failure to Pay Educational Expenses ....” As the motion did not request the remedy of contempt for failure to pay educational expenses, the title of the order is incorrect to that extent. The body of the order, however, is correct and accurately reflects the trial court’s ruling. The former husband may request that the trial court correct the title of the order.

      . The former wife requested oral argument of the motion and we granted the request.


author: WARNER, J.

text:
    PALM BEACH MOTOR CARS LIMITED, INC., Appellant, v. Roxanne JEFFRIES, Appellee.
    No. 4D03-4326.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      Hinda Klein and Jeffrey A. Blaker of Conroy, Simberg, Ganon, Krevans & Abel, P.A., West Palm Beach, for appellant.
    Raymond G. Ingalsbe of Raymond G. Ingalsbe, P.A., Palm Beach Gardens, for appellee.
   WARNER, J.

Palm Beach Motor Cars appeals the trial court’s order denying its motion to compel arbitration. The trial court found the arbitration provision both procedurally and substantively unconscionable. Because we agree that elements of both are present, we affirm.

Roxanne Jeffries sued Motor Cars for fraud, deceptive and unfair trade practices, and civil theft after the used Jaguar convertible she purchased from the dealership began to exhibit severe mechanical defects. Motor Cars filed a motion to compel arbitration in accordance with the sales contract. The arbitration clause was contained on the second page of a two-page purchase agreement (printed on both sides of one sheet of paper) entitled “Buyer’s Order Form.” The first page listed information about the buyer and the car and a breakdown of the purchase price. At the bottom of the form in the smallest type present on the page, much smaller than the rest of the type, is the following language:

The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning same has been made or entered into, or will be recognized. I hereby certify that no credit has been extended to me for the purchase of this motor vehicle except as appears in writing on the face of this agreement. I have read the matter printed on the back hereof and agree to it as a part of this order the same as if it were printed above my signature. I certify that I am of legal age, and hereby acknowledge receipt of a copy of this order.

Included in the last paragraph on the back of the form is an agreement to binding arbitration of all disputes that the purchaser has with Motor Cars. However, the paragraph states that Motor Cars is not required to arbitrate any disputes with respect to collection of amounts due under the contract or any effort by Motor Cars to recover possession of any vehicle sold or leased under the contract. Beneath this paragraph is a space for the buyer to place his or her initials. This space was left blank on the parties’ purchase agreement.

At a hearing on the motion to compel, Jeffries testified that she had signed about a dozen papers associated with the purchase and was directed where to sign on each page. She did not read all the documents entirely but had an understanding that each purported to be what its title indicated. The only portions of the purchase agreement that she read or discussed with Motor Cars employees related to financial disclosures. She did not realize that there was a back side to the purchase agreement, and she never turned the form over.

Depositions of the sales manager of Motor Cars and the salesman involved in this sale were submitted. Each testified that they did not know about arbitration, nor is arbitration ever mentioned to the customer. They do not turn over the purchase agreement to show customers that there is a reverse side to the document. Thus, the back side is not initialed by the purchaser.

In denying the motion to compel arbitration, the court found that the clause was procedurally unconscionable because the print alerting the purchaser to additional terms on the back of the agreement, including the arbitration clause, was the smallest print on the page and so small as not to bring its attention to the reader. The court believed Jeffries when she testified that she was not even aware of the terms on the back of the purchase agreement. Her testimony was substantiated by the Motor Cars employees’ testimony that they would not have alerted Jeffries to the terms on the back page of the agreement.

The court found the arbitration clause substantively unconscionable because it precludes the possibility that Motor Cars would ever be exposed to punitive damages and insulates it from liability under state consumer laws. The court also found that the arbitration clause was unilateral because it required Jeffries to arbitrate all her claims but did not require Motor Cars to arbitrate all its claims.

Florida courts may decline to enforce an arbitration agreement on the ground that it is unconscionable. Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). In order to invalidate an arbitration clause, the court must find that it is both procedurally and substantively unconscionable. Stewart Agency, Inc. v. Robinson, 855 So.2d 726, 727 (Fla. 4th DCA 2003). “Procedural unconscionability relates to the manner in which the contract was entered and involves such issues as ‘the relative bargaining power of the parties and their ability to know and understand the disputed contract terms.’” Id. at 727-28 (quoting Powertel, 743 So.2d at 574). “Substantive unconscionability focuses on the actual agreement and whether the terms are unreasonable and unfair.” Id. at 728 (citations omitted).

Motor Cars challenges the trial court’s determination that the arbitration clause is substantively unconscionable. We agree that the court erred in concluding the clause limited the remedies available to Jeffries, excluded punitive damages, or prevented her from seeking equitable relief from the arbitrators, as the arbitration provision did not include any such limitations. See id. There also was no evidence supporting the court’s determination that arbitration would involve substantial costs. See id. (finding there was insufficient evidence to support trial court’s conclusion that arbitration clause was unconscionable due to its cost where the record did not contain evidence that arbitration would have been prohibitively expensive for plaintiff). However, the court also relied on that portion of the arbitration clause that bound Jeffries to arbitrate all her disputes, while Motor Cars was not required to arbitrate all its claims. Where one party is bound to arbitration of its claims but the other is not, there can be substantive unconscionability. See BellSouth Mobility LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002). Therefore, some substantive unconscionability was present in the arbitration agreement in this contract.

Motor Cars does not argue the absence of procedural unconscionability except to say that there was none. The facts of this case, however, belie its position. Here, the only reference to the terms on the back of the agreement, where the arbitration provision is printed, appear in the smallest type on the page and are barely readable. Motor Cars employees admitted that they did not alert Jeffries to the provisions on the back of the agreement and did not have her initial the back, even though there was a place provided for the buyer’s initials. Had they required her initials where designated, it would have called her attention to the terms on the back page. While it was not necessary to call her attention to all of the individual terms of the agreement, the organization of the contract provisions; the exceptionally small size of the type of the provision alerting the customer to the terms on the back of the agreement; the lack of initials on the back page of the agreement; and the customary practice of the employees in not calling attention to the provisions on the back of the form all provide evidence that Motor Cars actively discouraged and/or prevented the purchaser from knowing and understanding the disputed contract terms. See Powertel, 743 So.2d at 574.

We conclude that both procedural and substantive unconscionability were present in the contract and its execution respecting the arbitration clause, and the court did not err by denying the motion to compel arbitration.

Affirmed.

STONE, J., and BRYAN, BEN L., JR., Associate Judge, concur.


author: PER CURIAM.

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    Robert J. BLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1184.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Robert J. Block, Chattahoochee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney Generál, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our previously issued opinion in this case and substitute the following.

Robert Block appeals the summary denial of his motion for DNA testing, filed pursuant to Florida Rule of Criminal Procedure 3.853. For the reasons stated below, we hereby affirm in part, and reverse in part, and remand for a limited eviden-tiary hearing.

Block was convicted on charges of armed burglary, aggravated battery, and resisting arrest without violence. The battery was aggravated due to an allegation that Block used a knife found at the scene of the crime to stab the victim. Block contends the victim’s injury was due to her contact with broken glass from a window and not due to a stab from the knife. As such, Block believes DNA testing of the knife blade would prove the knife was not used to injure the victim, thereby exonerating Block of aggravated battery and reducing his conviction to simple battery.

In order for Block to be entitled to relief under rule 3.853, he must show “how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced.” Fla. R.Crim. P. 3.853(b)(3). Such motions have the purpose of challenging convictions where there is a “credible concern that an injustice may have occurred and DNA testing may resolve the issue.” In re Amendment to Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So.2d 633, 636 (Fla.2001) (Anstead, J., concurring).

Block contends he has met his burden by showing how his armed burglary and aggravated battery convictions would be unsupported by evidence if the knife was not used to injure the victim. We believe Block is correct, insofar as his aggravated battery conviction, but not as to his armed burglary conviction. If the DNA testing shows the knife did not cause the injury to the victim, Block may be able to use this evidence to reduce his aggravated battery conviction to simple battery.

The State and lower tribunal misconstrue Block’s argument, mistakenly believing Block is arguing somebody else stabbed the victim with the knife. If this were indeed Block’s argument, his motion would be legally insufficient as DNA testing could not shed any light on this issue. However, Block is claiming that the victim’s injury was caused by her contact with broken glass and that nobody stabbed the victim. Thus, Block contends he could not be guilty of aggravated battery. DNA testing could reveal whether the victim’s blood was present on the knife, thus shedding light on this defense theory.

Since Block has stated a legally sufficient claim for relief as it relates to DNA testing of the knife blade, Block is entitled to relief. This relief relates solely to his conviction for aggravated battery, thus Block is entitled to a limited evidentiary hearing. See Collins v. State, 869 So.2d 723 (Fla. 4th DCA 2004). The summary denial of all the other issues raised by Block is affirmed. See Fla. R.Crim. P. 3.853(a) (“This rule provides procedures of obtaining DNA (deoxyribonucleic acid) testing under section 925.11, Florida Statutes.”).

GUNTHER, KLEIN and SHAHOOD, JJ., concur.


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    Carl P. HIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-546.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      O.J. Odunna of O.J. Odunna, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Carl Higgins appeals the summary denial of his rule 3.850 motion for post-conviction relief.

Higgins filed a timely 3.850 motion raising nine claims. Before the court denied the motion, Higgins filed an amended motion raising two additional claims. The trial court’s order did not address claims 10 and 11. On appeal, this court reversed and remanded for an evidentiary hearing or record attachments that conclusively refuted grounds 1, 3, 4, and 8. Higgins v. State, 810 So.2d 1044 (Fla. 4th DCA 2002). Because the trial court had not ruled on claims 10 and 11, they were not addressed by this court in the original appeal.

On remand, the state argued the original claims were legally insufficient. The state’s response also addressed claims 10 and 11. The court summarily denied all of the claims. On appeal, this court remanded for the trial court to conduct an eviden-tiary hearing or to provide record attachments conclusively refuting claims 4 and 11. Higgins v. State, 855 So.2d 716 (Fla. 4th DCA 2003).

On remand the trial court again summarily denied these claims and Higgins appeals.

In claim 4, he argued that his trial attorney provided ineffective assistance by not objecting to a photographic lineup which showed him in jail clothes or requesting a curative instruction to direct the jury to disregard the nature of the mug shots. A detective testified at trial that the photograph was not taken at the time of Higgins’s arrest. As a result, the jury was aware that he had a prior criminal record. He maintains that even if the photographic lineup was admissible, a curative instruction was needed to dissipate the prejudice resulting from the mug shot and the officer’s testimony. See Williams v. State, 438 So.2d 152, 153 (Fla. 3d DCA 1983) (recognizing that simply because an officer showed the victim a photograph of the defendant, a jury would not necessarily infer that the defendant had been arrested or had trouble with the police and any prejudice could be cured by a jury instruction).

The state argues counsel was not deficient because the photographic lineup was not unduly prejudicial and given the state of the law it is unlikely an objection would have been sustained. In support of its arguments, the state cites Fuster v. State, 480 So.2d 173 (Fla. 3d DCA 1985) (finding photographs and a videotaped line up were not unduly prejudicial in that case and any error in their admission was harmless in light of the victim’s identification and the curative instruction given during the jury’s deliberations). In Fuster, the Third District observed:

Photographs in police possession are properly admissible if they do not in themselves or by means of other testimony suggest a prior arrest of the accused. Police possession of such photographs alone does not necessarily convey to the jury that a defendant has committed prior offenses or has previously been in trouble with the police, particularly where a curative instruction is requested and given.

Id. at 174-175 (internal citations omitted).

In this case, the detective’s testimony suggested a prior arrest, the photograph depicts defendant in jail clothes, and no curative instruction was requested or given.

Higgins has stated a legally sufficient claim of ineffective assistance of counsel, and although this issue has been remanded twice, the attached records do not conclusively refute his claim.

In claim 11, Higgins alleged that he was prejudiced by counsel’s failure to object when the jury erroneously received a copy of the original information. In the original information, count II charged Higgins with possession of a firearm by a convicted felon. The court granted a pretrial motion to sever this count from the remaining charges. In his rule 3.850 motion, Higgins argued that it was fundamental error to allow the jury to see this charge. See Banos v. State, 521 So.2d 302 (Fla. 3d DCA 1988). Higgins did not testify at trial. As a result, absent this alleged error, the jury would not have known that he was a convicted felon.

Statements in the trial transcript suggest that an amended information was prepared. However, in denying this claim, the trial court did not provide a copy of the amended information, and the attached records do not otherwise conclusively refute Higgins’s claim that the jury mistakenly received the original information.

Accordingly, we reverse and remand for an evidentiary hearing on claims 4 and 11.

GUNTHER, POLEN and STEVENSON, JJ., concur.


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    Larry LEATHERWOOD, Appellant, v. CARDSERVICE INTERNATIONAL, INC., Appellee.
    No. 4D03-4714.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Larry Leatherwood, Pompano Beach, pro se.
    No brief filed on behalf of appellee.
   WARNER, J.

The trial court dismissed for improper venue appellant Larry Leatherwood’s complaint alleging credit slander and fraud. The court based its dismissal on a term in a contract between appellee, Cardservice International, and No More to Big Oil, Inc., a corporation owned by Leatherwood. It concluded that Leatherwood was bound by the venue provision of the contract. Because no evidence was produced to support the trial court’s ruling, we reverse.

Leatherwood, a Florida resident, is president of No More to Big Oil, Inc., a Florida corporation. On behalf of No More, Leatherwood entered into a contract over the internet with Cardservice, a California corporation, by which Cardservice was to process credit transactions on behalf of No More.

At some point, Leatherwood cancelled the contract, and Cardservice attempted to collect unpaid monies from Leatherwood personally. It alleged that Leatherwood was personally liable for the debts of No More as he personally guaranteed the merchant’s obligations contained in the contract. Eventually, Cardservice reported him to a collection agency. Leather-wood paid the debt and then filed suit against Cardservice in which he alleged that No More paid Cardservice by direct billing. Despite having no personal liability for No More’s debts, Cardservice fraudulently induced Leatherwood to pay No More’s debts. When the debts were not paid, Cardservice reported false information to the credit bureaus regarding Leatherwood personally. Leatherwood demanded damages for injury to his credit reputation.

Cardservice filed a motion to dismiss, alleging improper venue based upon a provision in the contract which stated:

This agreement shall be construed in accordance with, and governed by, California law as applied to contracts that are executed and performed entirely in California. The parties agree that any suit, action, or proceeding arising out of or relating to this Agreement, or the interpretation, performance or breach of this Agreement, shall be instituted in any court of the State of California located in Los Angeles County. Each party irrevocably submits to the jurisdiction of those courts and waives all objections to jurisdiction or venue that it may have under the laws of the State of California or otherwise in those courts in any suit, action, or proceeding. The parties expressly stipulate, consent to and agree that the specific geographic location as the place of performance of this Agreement, in its entirety, shall be within the county of Los Angeles in the State of California. By this special contract, the exclusive venue for any action between them shall be within the county of Los Angeles in the State of California.

At the hearing, Cardservice explained that the contract, which had not been attached to the complaint, was entered into by Leatherwood when he clicked on the “I accept” button online. It alleged Leather-wood personally guaranteed the contract and was therefore personally liable for any debts. Leatherwood admitted that No More had accepted goods and services from Cardservice, but denied that he guaranteed the contract as he had not personally signed anything. The court granted the motion to dismiss, finding that Florida was an improper venue and the case should be refiled in California.

The Second District explained the applicable legal principles that govern this venue dispute in Loiaconi v. Gulf Stream Seafood, Inc., 830 So.2d 908, 909-10 (Fla. 2d DCA 2002):

The right to initially select venue belongs to the plaintiff. Velez v. Mell D. Leonard & Assocs., Inc., 838 So.2d 896, 897 (Fla. 2d DCA 1976). It is the defendant’s burden to plead and prove that venue is improper. Id. That burden is not met where a defendant files an un-sworn motion and does not present affidavits or other sworn proof in support of the motion. Davis v. Fla. Power Corp., 492 So.2d 829, 829-30 (Fla. 2d DCA 1986); Magee v. Liberty Mut. Ins. Co., 366 So.2d 827 (Fla. 4th DCA 1979). Moreover, while a trial court has broad discretion in dealing with matters of venue, the party challenging venue must provide a sufficient factual basis for the exercise of that discretion. Groome v. Abrams, 448 So.2d 82, 83 (Fla. 4th DCA 1984).

A motion by the defendant to dismiss or transfer on the ground of improper venue raises issues of fact and must be resolved by an evidentiary hearing, unless the face of the complaint demonstrates venue is improper. Kinetiks.Com, Inc. v. Sweeney, 789 So.2d 1221, 1223 (Fla. 1st DCA 2001). Here, Leatherwood’s complaint alleged that he had no personal liability of any sort regarding the agreement between No More and Cardservice, and no evidence was offered at the hearing on the motion to dismiss for improper venue. The contracts submitted to the court did not resolve this issue. Therefore, the court erred in dismissing the case for improper venue without an evidentiary hearing to resolve disputed issues of fact.

Moreover, Leatherwood’s cause of action did not involve matters relating to the agreement “or the interpretation, performance or breach of [the] Agreement.” Instead, the cause of action alleged actions taken by Cardservice against Leatherwood personally to slander his credit reputation and fraudulently force him to pay No More’s debts. According to the complaint, No More and Cardservice were the parties to the agreement and bound by the terms of the agreement. Leatherwood was not listed as a party.

While Cardservice suggested Leather-wood was a third party beneficiary of the agreement, nothing in the complaint or even in the agreement attached to the motion to dismiss would support this contention. Nothing in the record shows that Leatherwood personally received a benefit under the contract so as to be bound as a third party beneficiary. Cardservice also suggested that Leatherwood personally guaranteed the contract, but it presented no evidence to substantiate that claim.

For these reasons, we reverse the dismissal of the complaint for improper venue and remand for further proceedings. An evidentiary hearing is required on the motion to dismiss for improper venue.

STONE, J., and BRYAN, BEN L., JR., Associate Judge, concur.


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    Eric RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2157.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and WELLS, JJ.
   PER CURIAM.

Eric Richardson appeals an order denying his motion to correct illegal sentence. We affirm.

We concur with the trial court that there was no double jeopardy violation. The amendment on remand from Richardson v. State, 818 So.2d 679 (Fla. 3d DCA 2002) made no difference because the court did not employ subsection 775.087(1), Florida Statutes (1999), to reclassify the offense of attempted second degree murder to a higher level of felony. Further, even if the court had relied on subsection 775.087(1)— which it did not — the change in terminology from “weapon” to “deadly weapon” does not make any substantive difference in the application of the statute. Finally, this was a favorable plea bargain in which the parties mutually agreed on the sentence, as well as the offense, to which the defendant pled guilty. That being so, had there been any double jeopardy issue, the claim would have been waived. See Novaton v. State, 634 So.2d 607 (Fla.1994).

The defendant’s pro se motion labors under the misconception that at his original trial he was acquitted of the use of a knife in connection with the attempted second degree murder. That is not so. A proper interpretation of the verdict form is that in the original trial he was convicted of the offense as charged. This court reversed for a new trial on the attempted second degree murder charge on account of an error in the jury instructions, 818 So.2d at 680, after which the parties entered into the plea bargain.

The trial court was also correct in rejecting the defendant’s claim that he does not qualify as habitual a violent felony offender. The record demonstrates that he does qualify.

Affirmed.

       The defendant was also convicted of false imprisonment at the original trial. That conviction and sentence were not disturbed on appeal. Thus, it was agreed at the subsequent plea colloquy on the attempted second degree murder charge that no resentencing would be required on the false imprisonment charge.


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    FINE LINE CONSTRUCTION & ELECTRIC, INC., Appellant, v. AMCOMP PREFERRED INS. COMPANY, Appellee.
    No. 4D03-4896.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Carri S. Leininger of Williams, Leininger & Crosby, P.A., West Palm Beach, for appellant.
    Jeffrey A. Mowers and Cindy J. Mish-con of Pyszka, Blackmon, Levy, Mowers & Kelley, Miami Lakes, for appellee.
   PER CURIAM.

See Colony Ins. Co. v. G & E Tires and Serv. Inc., 777 So.2d 1034 (Fla. 1st DCA 2000).

KLEIN, STEVENSON and MAY, JJ., concur.


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    Scott MULVANEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1880.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Scott Mulvaney, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Scott Mulvaney appeals a final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings on one of Mulva-ney’s claims.

In point four, Mulvaney alleged that trial counsel provided ineffective assistance because he did not investigate and call a potential witness to testify at trial. Mul-vaney was convicted of several offenses, including crimes stemming from his status as the driver of his vehicle. Mulvaney alleges that the witness would have admitted that he was the driver of Mulvaney’s vehicle on the date of the offenses.

The state argued that the claim was legally insufficient as Mulvaney did not allege that the witness was available to testify, that his testimony would have been favorable, or the nature of his testimony. Cunningham v. State, 748 So.2d 328 (Fla. 4th DCA 1999). We agree that Mulvaney has failed to allege the witness’s availability.

During the pendency of this appeal the Florida Supreme Court decided Nelson v. State, 875 So.2d 579, 582 (Fla.2004). Nelson holds that a proper claim challenging counsel’s failure to call a witness requires that the movant allege: the identity of the witness, the substance of the witness’s testimony, an explanation as to how the omission of this evidence prejudiced the outcome, and that the witness was available to testify. Nelson requires the trial court to permit leave to amend when a defendant’s motion is lacking a key allegation. Id. We reverse and remand to permit such amendment as outlined by Nelson. Thereafter, the trial court can revisit the legal sufficiency of the claim. See Barthel v. State, 882 So.2d 1054 (Fla. 2d DCA, 2004).

GUNTHER, STONE and POLEN, JJ., concur.


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    Debrah L. BOYD, Petitioner, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Respondent.
    Nos. 4D04-2248, 4D04-2449.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Jean Kneale and Brett C. Powell of Hicks & Kneale, P.A., and Roger L. Blackburn and Francine D. Holbrook of the Law Office of Francine D. Holbrook, Miami, for petitioner.
    Stephen T. Maher, John E. Meagher and Jonathan M. Fordin of Shutts & Bowen, LLP, Miami, for respondent.
   PER CURIAM.

Debrah Boyd petitions this court for a writ of mandamus or a writ of certiorari to compel the circuit court to rule on a pending motion to dispense with arbitration and set the case for jury trial or to appoint a replacement arbitration panel. According to the motion, the original appointed arbitration panel refused to accept the statutory maximum $200 per day rate of compensation and withdrew. The motion asks the court to either appoint a new arbitration panel or enter an order dispensing with arbitration and setting the case for trial. Petitioner is entitled to a ruling on the motion. Mandamus will lie to compel a court to perform a purely ministerial duty, such as taking action upon a pending motion. See Moore v. Kaplan, 640 So.2d 199 (Fla. 4th DCA 1994); Kramp v. Fagan, 568 So.2d 479 (Fla. 1st DCA 1990). We grant the petition for writ of mandamus in part and direct the trial court to enter a ruling on the motion. We withhold issuance of the writ, being confident the trial court will promptly rule on the motion.

Boyd also seeks review of the denial of her motion to disqualify the trial judge. The petition for writ of prohibition is denied.

WARNER, STEVENSON and TAYLOR, JJ., concur.


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    Robert J. DUGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3325.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Robert J. Dugan, Jasper, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert Dugan timely appeals the dismissal of his rule 3.850 motion. The circuit court dismissed the 3.850 motion for lack of jurisdiction because the appeal of a rule 3.800(a) motion was pending in this court. Dugan’s 3.850 motion raised several claims of ineffective assistance of trial counsel, but none of the claims raised any issues related to his sentence.

The state concedes that the circuit court erred in dismissing the motion.

As this court observed in Hines v. State, 714 So.2d 605, 606 (Fla. 4th DCA), rev. dismissed, 727 So.2d 906 (1998), “an appeal of a post-conviction relief matter does not deprive the trial court of jurisdiction where, as here, the issues raised in the two cases are unrelated.” See also Smith v. State, 858 So.2d 386 (Fla. 3d DCA 2003) (a pending appeal of a 3.850 motion did not deprive the trial court of jurisdiction to consider a 3.800 motion raising unrelated grounds); Bates v. State, 704 So.2d 562 (Fla. 1st DCA 1997) (holding the trial court did not lose jurisdiction to rule on a 3.850 motion while a 3.800 appeal raising an unrelated issue was pending in the district court).

Accordingly, the circuit court’s order is reversed and this case is remanded for the court to consider Dugan’s 3.850 motion on the merits.

REVERSED AND REMANDED.

KLEIN, GROSS and HAZOURI, JJ., concur.


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    George GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2380.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    David M. Lamos of Law Offices of David M. Lamos, Fort Pierce, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to allege due diligence in reference to newly discovered evidence. See Alkanan v. State, 786 So.2d 1275 (Fla. 4th DCA 2001).

POLEN, GROSS and HAZOURI, JJ., concur.


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    Jeandis ESTIME, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2215.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      Andrean Eaton, Hollywood, for appellant.
    No appearance required for appellee.
   PER CURIAM.

The trial court denied Jeandis Estime’s untimely Rule 3.850 motion for postconviction relief. Estime appeals and, in his Initial Brief, raises arguments why his motion should have been considered timely. The motion below did not allege any exception to the time limitation of the rule. Fla. R.Crim. P. 3.850(b).

The trial court properly denied the motion as untimely. The claims in the Initial Brief that the motion should be considered timely raise factual issues which are not properly determined for the first time in this appeal.

Accordingly, the court’s order is affirmed without prejudice for Estime to file a sworn postconviction motion in the trial court that alleges exceptions to the time limitation set forth by Florida Rule of Criminal Procedure 3.850(b).

GROSS, TAYLOR and HAZOURI, JJ., concur.