author: TORPY, J.

text:
    Jerry ANDREWS, Appellant, v. R.C.C. ENTERPRISES, INC., Appellee.
    No. 5D02-1584.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    Rehearing Denied June 9, 2003.
    Gregory T. Elliott of Elliott-Berger, P.A., St. Petersburg, for Appellant.
    Terrence J. McGuire, of Higley & Bar-field, P.A., Altamonte Springs, for Appel-lee.
   TORPY, J.

Homeowner, Jerry Andrews (Appellant), challenges an order granting summary judgment and confirming an arbitration award in a dispute with pool contractor, R.C.C. Enterprises, Inc. (Appellee). We agree that the trial court appropriately entered summary judgment because there was no material fact in dispute that would have entitled Appellant to vacate the arbitration award. We, therefore, affirm that aspect of the judgment. We reverse in part, however, because we disagree with the interpretation given to the award by the trial judge in one respect.

The trial court’s order reached four conclusions: (1) that Appellant owed Appellee $2,716.82 that was immediately due and payable; (2) that upon Appellee’s completion of the punch list items set forth in the arbitrators’ award, Appellee would be due the balance of the contract of $2,126.73; (3) that if Appellee failed to complete punch list items because Appellant refused access to the property to make the repairs, then both parties would* be excused from any further performance; and, (4) that if Appellee did not complete the punch list items for reasons other than a denial of access by Appellant, then no further performance would be due by either party. It is this fourth conclusion by the trial court that we believe constitutes error.

We construe the arbitration award to require that Appellee complete the enumerated punch list items within the time specified, if given the opportunity to do so by Appellant. In the event of non-compliance by Appellee, the award does not, however, limit Appellant’s damages to the contract balance. The award simply provides that the balance of the contract is due if the work is completed. Should Ap-pellee fail to effect the repairs m a workmanlike manner within the time period prescribed, then Appellant would be entitled to present evidence to the trial court to support a money damage award, measured by the reasonable cost of repairing the items left unrepaired by Appellee.

We remand this action, therefore, with directions that the court enter an order consistent with this opinion that requires the repairs to be completed within 30 days from the date of the order.

AFFIRMED in part; REVERSED in part and REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . Based on the representations made by Appellant at oral argument, the counterclaims brought by Appellant were abandoned. Those claims may not be resurrected on remand.


source: Caselaw Access Project

author: BROWNING, J.

license: Public Domain

text:
    SURETY, SENECA INSURANCE and Simon D. Chocron, Appellants, v. STATE of Florida, Appellee.
    No. 1D02-0512.
    District Court of Appeal of Florida, First District.
    April 10, 2003.
    Rehearing Denied June 12, 2003.

      John H. Lipinski, Miami, for Appellants.
    Richard A. Mullaney, General Counsel; and Virginia Baker Norton, Assistant General Counsel, Jacksonville, for Appellee.
   BROWNING, J.

Appellant challenges an order of the trial court finding that a bond was forfeited. We reverse and remand for further proceedings.

Appellant had accepted a bond on the accused for a Duval County offense, in the amount of $250,000, for a second-degree felony in Miami. Four days later, a Detective Barker, a city of Jacksonville law enforcement officer, called the bondsman from Jacksonville to inform him that there was an additional warrant for the accused on another second-degree felony. At Barker’s request, the bondsman flew the accused by a one-way ticket from Miami to Jacksonville, turned the accused over to Barker at the police department, and returned to Miami alone.

The bondsman did not obtain from Barker a certificate acknowledging the surrender; however, the warrant for the second charge specified that the bond amount was “none,” and the bondsman testified he was told no bond was to be set. However, at the accused’s first appearance on the second charge, the trial court set bond on the second charge at $2,503. The accused bonded out with a separate bondsman, and absconded. Later, a trial court ordered that Appellant’s bond on the first offense was forfeited, because the bail on the second charge was based on the belief that Appellant’s bond was still effective, and because there was no paperwork to prove that the accused’s surrender was effected.

We hold that the record contains ample evidence that the accused was legally surrendered despite the lack of a certificate. Appellant’s turning over the accused to Detective Barker demonstrates that Appellant did not agree to take on the extra flight risk associated with the second charge on the accused. The extra charge was a material change to the circumstances of the bond contract among the surety, the accused, and the state; that change, being made without notice to, or the consent of, the surety, absolved the surety from liability on the contract. See Cash v. State, 73 So.2d 903 (Fla.1954); Ex Parte Cribbs, 109 Fla. 286, 146 So. 912 (1933); American Bankers Ins. Co. v. Monroe County, 644 So.2d 560 (Fla. 3d DCA 1994).

Section 903.21, Florida Statutes, which states in part:

(1) A surety desiring to surrender a defendant shall deliver a copy of the bond and the defendant to the official who had custody of the defendant at the time bail was taken or to the official into whose custody the defendant would have been placed if she or he had been committed. The official shall take the defendant into custody, as on a commitment, and issue a certificate acknowledging the surrender.
(2) When a surety presents the certificate and a copy of the bond to the court having jurisdiction, the court shall order the obligors exonerated and any money or bonds deposited as bail refunded....

does not alter this result. This section sets forth a method of surrender when a surety wants to be relieved of its responsibility for future control of a defendant on bad, and does not apply when a surrender is requested by law enforcement for the surrender of a defendant on bail, as here.

REVERSED and REMANDED for proceedings consistent with this opinion.

BARFIELD and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    CITY OF DEFUNIAK SPRINGS and JLT Services, Appellants, v. Anderson STEPHENS and Florida League of Cities, Appellees.
    No. 1D02-0090.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Rehearing Denied June 12, 2003.
    Brian P. Knight, of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellants.
    Douglas F. Miller, of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola; David Sullivan, Tallahassee; and Bill McCabe, Longwood, for Appellees.
   PER CURIAM.

The parties in this workers’ compensation case apparently do not disagree with the finding of the Judge of Compensation Claims (JCC) that the claimant reached maximum medical improvement (MMI) from a physical standpoint on April 12, 2000, with a permanent impairment rating of 3%. The record indicates that the claimant was treated by Dr. Billingsley (psychiatrist) as the result of an emergency involuntary hospitalization on June 19, 2000, and that Dr. Billingsley thereafter monitored the claimant’s psychiatric condition and psychiatric medication until June 12, 2001, when he found that the claimant had reached psychiatric MMI with no work restrictions, but that he would need to stay on psychiatric medication. The record also indicates that the claimant was independently examined by two other psychiatrists in January 2001, both of whom ultimately either agreed with, or deferred to, Dr. Billingsley’s MMI opinion prior to the final hearing. Given that no other evidence was presented regarding whether the claimant has reached MMI from a psychiatric standpoint, the JCC’s finding that the claimant “has not reached psychiatric maximum medical improvement” is not supported by competent, substantial evidence.

Accordingly, the JCC’s finding that “Claimant has not reached psychiatric maximum medical improvement” is REVERSED. That portion of the order which directs the Employer/Carriers to pay the claimant “temporary total disability benefits from January 19, 2001 to date and continuing until he reaches psychiatric maximum medical improvement, or 104 weeks of temporary benefits have been paid” is also REVERSED.

The case is REMANDED to the JCC with directions that she correct the above-quoted directive in the order to award “temporary total disability benefits from January 19, 2001, to June 12, 2001,” or that she make a determination regarding psychiatric MMI that is supported by competent, substantial evidence, and correct the directive portion of the order to reflect that determination. In all other respects, the order is AFFIRMED.

BARFIELD, BROWNING, and LEWIS, JJ., concur.


text:
    Willie James MITCHUM, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3877.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Willie James Mitchum, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Willie James Mitchum [“Mitchum”], appeals the summary denial of his Rule 3.800(a) motion for jail credit. He claims that he is entitled to 141 days credit against his sentence for his pre-trial detention in Sumter County Jail. Although the court orally pronounced this credit, the written sentence did not provide for it.

The trial court denied Mitchum’s motion, on the ground that the Sumter County Jail had prepared a certificate verifying the 141 days claimed by him, and the certificate had been transmitted to the Florida Department of Corrections. The trial court indicated that a copy of the certificate would be attached to the order, but there was no such attachment. The State, in responding to this appeal, attached a copy of the certificate in which the Sheriff of Sumter County certified that Mitchum was incarcerated in jail from April 19, 2002, until his sentence on September 6, 2002, for a total of 141 days.

Although this is a purely technical point, and the trial court’s denial of the motion appears not to have prejudiced Mitchum, we are bound to reverse because it is the responsibility of the trial court to determine the amount of jail credit and to provide for it in the written sentence. See Martin v. State, 799 So.2d 343 (Fla. 5th DCA 2001). See also State v. Mancino, 714 So.2d 429 (Fla.1998); § 921.161(1), Fla. Stat. (2002) (court in imposing a sentence shall allow a defendant credit for all of the time spent in the county jail before sentence; the credit must be for a specified period of time and shall be provided for in the sentence).

REVERSED and REMANDED.

PETERSON, GRIFFIN, and SAWAYA, JJ., concur.


author: ORFINGER, J.

text:
    Francisco J. DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-840.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    Rehearing Denied June 9, 2003.

      Francisco J. Diaz, Raiford, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Francisco J. Diaz appeals the summary denial of his motion for postconviction relief. Diaz pled guilty to trafficking in 28 grams or more of heroin in violation of section 893.135(l)(c)l.c., Florida Statutes (1999), and was sentenced to the statutorily mandated twenty-five year minimum mandatory prison term. The denial of Diaz’s earlier motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 was affirmed by this court. See Diaz v. State, 818 So.2d 521 (Fla. 5th DCA 2002).

Diaz then filed a second rule 3.850 motion. The trial court correctly concluded that two of Diaz’s three claims for relief were procedurally barred, as they either were raised, or could have been raised, in his previous rule 3.850 motion. The trial court treated Diaz’s third claim that his sentence was illegal as a motion for relief pursuant to Florida Rule of Criminal Procedure 3.800(a). Diaz argues that because Chapter 99-188, Laws of Florida, which revised section 893.135, was determined to be unconstitutional, his sentence is illegal.

Diaz correctly observes that Chapter 99-188, which enacted changes to section 893.135, was found to be unconstitutional in violation of the single subject rule. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). Diaz is not, however, entitled to relief. In Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), this court held that the enactment of Chapter 02-210, Laws of Florida, cured Chapter 99-188’s constitutional infirmity and applied retroactively. While we recognize that our opinion in Hersey conflicts with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), which held that the curative effect of Chapter 02-210 could not be applied retroactively because retroactive application would violate the ex post facto clauses of the United States and Florida Constitution, Diaz’s claim would still lack merit because he was not adversely affected by the amendments made by Chapter 99-188. See Lindsey v. State, 839 So.2d 737 (Fla. 2d DCA 2003). Under the 1998 version of section 893.135, Diaz’s mandatory minimum sentence would have been the same. Accordingly, we affirm the trial court’s order.

AFFIRMED.

SHARP, W. and PALMER, JJ., concur.


author: PLEUS, J.

text:
    UTILITIES, INC. OF FLORIDA, Petitioner, v. Elizabeth S. CORSO, et al., Respondents.
    No. 5D03-166.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    Rehearing Denied June 6, 2003.

      Martin S. Friedman of Rose, Sundstrom & Bentley, LLP., Altamonte Springs, for Petitioner.
    Dennis Wells of Webb, Wells & Williams, P.A., Altamonte Springs, for Respondents, Elizabeth S. Corso, et al.
    Gregory G. Costas, Tallahassee, for Respondent, State of Florida, Department of Transportation.
   PLEUS, J.

Elizabeth S. Corso and others sued Utilities, Inc., alleging that Utilities, Inc., breached an agreement to provide water and wastewater service at the rates provided for in their 1961 agreement.

Utilities, Inc. seeks a writ of prohibition claiming that the circuit court has no jurisdiction over the case because the Public Service Commission (“PSC”) has exclusive jurisdiction. We find that Utilities, Inc. is correct in its assertion that the PSC has jurisdiction over the matter and that a writ of prohibition should be granted.

The relevant statute in this case is section 867.011, Florida Statutes (2001), entitled, “Jurisdiction; legislative intent.” It reads:

(1) This chapter may be cited as the “Water and Wastewater System Regulatory Law.”
(2) The Florida Public Service Commission shall have exclusive jurisdiction over each utility with respect to its authority, service, and rates.
(4) This chapter shall supersede all other laws on the same subject, and subsequent inconsistent laws shall supersede this chapter only to the extent that they do so by express reference. This chapter shall not impair or take away vested rights other than procedural rights or benefits.

In H. Miller & Sons, Inc. v. Hawkins, 373 So.2d 913 (Fla.1979), H. Miller & Sons, Inc., was a developer operating in Broward County. The respondent, Cooper City Utilities, Inc., was a private water and sewer utility located in Broward County. The utility company entered into an agreement where it was to provide sufficient water and sewer plant capacity for a projected 500-unit development.

The developer agreed to pay a per-unit charge of $250. The PSC later authorized $275 as combined water and sewer service availability charges. The utility company billed the developer accordingly. The developer paid the increase under protest. However, the PSC ruled that the developer was responsible for the increased charges. The Florida Supreme Court affirmed, holding that contracts with public utilities were made subject to the reserved authority of the state and that in exercising its ratemaking authority, the PSC must take into account existing facts which will affect future rates.

We perceive the issue here to be a dispute between the parties relating to the rates and charges for water and wastewater utility services which dispute is within the exclusive jurisdiction of the PSC. See Sandpiper Homeowners Ass’n v. Lake Yale Corp., 667 So.2d 921, 926 (Fla. 5th DCA 1996); Florida Power Corp. v. Advance Mobile Homes, Inc., 386 So.2d 897 (Fla. 5th DCA 1980).

Prohibition is the proper remedy when a circuit court has wrongly taken jurisdiction of matters which are properly the province of the PSC. See, e.g., Florida Public Serv. Comm’n v. Bryson, 569 So.2d 1253 (Fla.1990). In Bryson, the PSC petitioned for writ of prohibition against the circuit court to bar further proceedings in a suit contesting its jurisdiction over a complaint that a condominium management company overcharged a condominium unit owner for gas and electricity. The supreme court held that the circuit court lacked jurisdiction to proceed in the matter. See also Public Serv. Comm’n v. Fuller, 551 So.2d 1210 (Fla.1989); State ex rel. McKenzie v. Willis, 310 So.2d 1 (Fla.1975); Lake Worth Utils. Auth. v. Barkett, 433 So.2d 1278 (Fla. 4th DCA 1983).

Accordingly, we grant the petition for writ of prohibition.

PETERSON and SAWAYA, JJ., concur.


author: THOMPSON, C.J.

text:
    Grayling L. VEREEN, Appellant, v. ALPHA REALTY & ASSOCIATES, INC, Appellee.
    No. 5D02-131.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    Rehearing Denied June 2, 2003.
    Grayling L. Vereen, Orlando, pro se.
    Lori M.M. Huckabee and Thomas J. Slo-gar of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellee.
   THOMPSON, C.J.

Grayling L. Vereen, pro se, appeals a final summary judgment in favor of Alpha Realty & Associates, Inc.

We affirm the summary judgment because Vereen has not shown that Alpha was required to file a compulsory counterclaim in order to oppose Vereen’s claim that he was entitled to the return of his $200.00 security deposit. As the appellant, Vereen has the burden to demonstrate error. Walker v. New Smyrna Beach Police Department, 834 So.2d 277 (Fla. 5th DCA 2002).

We agree with Alpha on the second point, that Vereen abandoned his negligence claim when he failed to include it in his amended complaint. See State Farm Fire and Casualty Co. v. Higgins, 788 So.2d 992, 995 (Fla. 4th DCA) (an amended complaint that does not express an intention to save an earlier pleading supersedes the earlier pleading), rev. granted, 794 So.2d 604 (Fla.2001); Steele v. Lannon, 355 So.2d 190 n. 1 (Fla. 2d DCA 1978) (generally, an amended complaint, as opposed to an amendment to a complaint, that does not refer to the original complaint, supersedes the original complaint) (citing Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562, 562-563 (1941) (filing amended complaint abandons original complaint, which no longer serves any purpose on the record)).

AFFIRMED.

GRIFFIN, J., concurs.

SAWAYA, J., concurs in result only.


text:
    Charles L. POTTS, III, Appellant, v. Diane R. ELLIS-GREEN, Appellee.
    No. 5D02-3859.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    Rehearing Denied June 6, 2003.
    Charles L. Potts, III, New Smyrna Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

THOMPSON, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Pasco WIGGINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1050.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    Rehearing Denied June 4, 2003.
    Pasco Wiggins, Jr., Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002).

PETERSON, GRIFFIN and PALMER, JJ., concur.


author: SAWAYA, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Dustin WHITLEY, Respondent.
    No. 5D02-3640.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Rehearing Denied June 4, 2003.

      Enoch J. Whitney, General Counsel and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Petitioner.
    Eric A. Latinsky, Daytona Beach, for Respondent.
   SAWAYA, J.

The State of Florida, Department of Highway Safety and Motor Vehicles, (the Department) seeks certiorari review of the order granting Dustin Whitley’s petition for writ of certiorari that, was rendered by the circuit court in its appellate capacity. In that order, the circuit court quashed the Department’s final order suspending Whitley’s driver’s license based on his arrest for driving under the influence of alcohol (DUI). We grant the Department’s petition for writ of certiorari.

Factual and Procedural Background

In the early morning hours of February 3, 2002, a police officer saw Whitley drive “in a weaving manner from the inside lane to the outside lane,” then drive off the road and onto the grass. The officer activated the emergency lights on his patrol car to signal Whitley to pull over, but Whitley continued to drive. When the officer activated his siren, Whitley looked in his side-view mirror at the patrol car, but continued to drive, weaving from lane to lane. At one point, Whitley almost struck some construction barricades located along the road. When attempting to turn onto another road, Whitley drove off the roadway and stopped. Upon approaching Whitley, the officer noticed a strong odor of alcohol on Whitley’s breath and that Whitley’s eyes were glassy. The officer also noticed that Whitley’s speech was slurred. The officer asked Whitley to step out of his vehicle and placed Whitley under arrest for fleeing and eluding a law enforcement officer. However, the officer did not advise Whitley that he was under arrest for DUI. After informing Whitley of his Miranda rights, the officer asked Whitley why he had not stopped. Whitley replied, “[B]ecause I had too much to drink tonight and if I made it to my girlfriend’s home it would be okay.” Whitley told the officer that he had consumed three or four drinks containing vodka.

Whitley was transported to the police department and asked to perform field sobriety tests, but refused. Whitley did, however, consent to a breath test, which revealed that he had a blood alcohol level well in excess of the legal limit. Whitley was then formally charged with DUI. Whitley requested a formal review of his driver’s license suspension pursuant to section 322.2615(6), Florida Statutes (2000). In accordance with section 322.2615(7), which defines the scope of the formal hearing, the hearing officer concluded: 1) the arresting officer had probable cause to believe that Whitley was driving under the influence of alcohol; 2) Whitley was lawfully arrested and charged with a violation of section 316.193, Florida Statutes; and 3) Whitley had an unlawful alcohol level. The hearing officer suspended Whitley’s driver’s license for six months.

Whitley sought certiorari review in the circuit court, which granted certiorari and quashed the final order of license suspension. The circuit court held that a breath test must be incidental to a DUI arrest; thus, an individual’s driving privilege may not be suspended unless the individual is first arrested for DUI and is thereafter administered the test to determine his or her blood alcohol content. To allow the State to suspend a license when the test is administered prior to the individual’s lawful arrest for DUI would, according to the circuit court’s reasoning, be contrary to the requirements of sections 316.1932 and 322.2615. The circuit court also held that the officer did not have probable cause to arrest Whitley for DUI until the breath test was administered and, therefore, Whitley was never lawfully arrested for that offense.

Hence, there are two issues for us to resolve: 1) whether the officer had probable cause to arrest Whitley for DUI prior to administration of the breath test and 2) whether the breath test must be incidental to a lawful arrest for DUI, requiring that Whitley’s arrest for DUI have preceded the test. After discussing the appropriate standard of review, we will address each issue in the order presented.

Standard of Review

When an appellate court reviews a decision rendered by a circuit court sitting in its appellate capacity, the appellate court must determine whether the circuit court afforded procedural due process to the litigants and whether the essential requirements of law were observed. Ivey v. Allstate Ins. Co., 114, So.2d 679 (Fla.2000); Florida Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000); Department of Highway Safety & Motor Vehicles v. Mowry, 794 So.2d 657 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Perry, 751 So.2d 1277 (Fla. 5th DCA 2000). A finding that the circuit court departed from the essential requirements of law essentially means that the circuit court failed to apply the correct law and that the failure resulted in a miscarriage of justice. Ivey. Having determined the appropriate standard of review, we proceed to address the issues.

Probable Cause

There is nothing in section 316.1932(l)(a)l. or section 322.2615(7)(a) that requires that a breath test be administered in order to give a law enforcement officer probable cause to arrest a person for DUI. Although neither statute defines the term “probable cause,” it has become a staple of our criminal jurisprudence and because it is so widely utilized in a variety of contexts, its meaning is not difficult to discern. Generally, probable cause sufficient to justify an arrest exists ‘“where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed.’” Department of Highway Safety & Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997) (quoting City of Jacksonville v. Alexander, 487 So.2d 1144, 1146 (Fla. 1st DCA 1986)); see also Department of Highway Safety & Motor Vehicles v. Silva, 806 So.2d 551, 554 (Fla. 2d DCA 2002); Department of Highway Safety & Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995) (quoting Alexander).

In administrative hearings held to determine whether an individual’s license should be suspended for DUI, the courts have generally held that the circumstances surrounding the incident and the officer’s general observations are sufficient to establish probable cause. Silva; Smith; Favino; see also Department of Highway Safety & Motor Vehicles v. Currier, 824 So.2d 966 (Fla. 1st DCA 2002); State, Dep’t of Highway Safety & Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001). Hence, it is not necessary to administer the breath test to establish probable cause to arrest an individual for DUI. Therefore, we will consider whether the officer had probable cause to arrest Whitley prior to administering the test.

In the instant case, the officer observed Whitley’s erratic driving and, when Whitley eventually stopped, the officer detected an odor of alcohol on Whitley’s breath and observed that his eyes were glassy and that his speech was slurred. When asked by the officer why he had not stopped, Whitley replied that he had had too much to drink. Because these facts and circumstances were sufficient for a reasonable person to reach the conclusion that Whitley operated his motor vehicle while under the influence of alcohol, we conclude that the officer had probable cause to arrest Whitley for DUI at the time of the stop, which was well in advance of the administration of the breath test. See Huebner v. State, 781 So.2d 40, 45 (Fla. 4th DCA1999) (“[Ajppellant’s erratic driving behavior provided sufficient justification for her stop and arrest.”); Smith. We must next decide whether administration of the test was incidental to a lawful arrest.

Incidental To A Lawful Arrest

The circuit court held, pursuant to section 316.1932(l)(a)l., that the administration of the breath test must be incidental to a lawful arrest for DUI and that a person’s license may not be suspended unless the person is first arrested for DUI and, thereafter, administered the breath test. The circuit court held that because Whitley was not arrested for DUI until after the breath test was administered, his license should not be suspended. In order to determine whether the trial court correctly stated and applied the law, we logically start with an analysis of section 316.1932(l)(a)l., which provides in pertinent part:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test ... for the purpose of determining the alcoholic content of his or her blood or breath ... if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.

§ 316.1932(l)(a)l., Fla. Stat. (2002).

While this statute may not be a paragon of legislative draftsmanship, it is not so inartfully drawn that we cannot make sense of it and discern the Legislature’s intent. Although the statute does not explicitly state that the person must be lawfully arrested for DUI before the breath test is administered, it does provide that the “test must be incidental to a lawful arrest.” Id. In State v. Barrett, 508 So.2d 361, 362 (Fla. 5th DCA), review denied, 511 So.2d 299 (Fla.1987), this court, applying section 316.1932(1)(a)l., held that “the legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.” We note that the statute has not been substantially changed or amended since Barrett was decided, and we are, therefore, bound by that decision. Thus, based on Barrett, “incidental to a lawful arrest” as that term is used in section 316.1932(l)(a)l. means that the arrest must precede the breath test.

However, the statute does not specifically say that the arrest must be for DUI; rather, it only provides that the person be “lawfully arrested for any offense allegedly committed while the person was driving ... while under the influence of alcoholic beverages .... ” § 316.1932(l)(a)l., Fla. Stat. (2002). The State argues that Whitley’s arrest for fleeing and eluding meets that statutory requirement. We agree. We have already concluded that the officer had probable cause at the scene of the stop to arrest Whitley for DUI based on his erratic driving, his physical appearance, the strong odor of alcohol on Whitley’s breath and the statements Whitley made to the officer. These facts and circumstances clearly indicate that Whitley was arrested for the offense of fleeing and attempting to elude which he committed while under the influence of alcohol. We therefore conclude that the breath test was incidental to a lawful arrest because it was administered well after Whitley was lawfully arrested. Hence, the dictates of section 316.1932(l)(a)l. were met.

We likewise find nothing in the provisions of section 322.2615(7) that requires an individual to be arrested for DUI as a predicate to administration of the breath test. Based on the facts and circumstances of the instant case, we conclude that all of the requirements of section 322.2615(7) were satisfied.

Conclusion

Fully cognizant of our limited scope of review, we conclude that the circuit court failed to apply the correct law to the instant case. Hence, the circuit court departed from the essential requirements of law, resulting in a miscarriage of justice. Accordingly, we grant the petition for cer-tiorari and quash the order rendered by the circuit court.

PETITION FOR CERTIORARI GRANTED; ORDER QUASHED.

GRIFFIN and PLEUS, JJ., concur.

      . We note, parenthetically, that Florida case law is replete with examples oí cases that adopt the general principle that a pre-arrest search is considered incidental to a lawful arrest if the officer had probable cause to make the arrest at the time the search was conducted. See, e.g., State v. M.A.D., 721 So.2d 412 (Fla. 3d DCA 1998); State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998); State v. Russell, 659 So.2d 465 (Fla. 3d DCA), review denied, 665 So.2d 220 (Fla.1995); Butler v. State, 634 So.2d 700 (Fla. 1st DCA 1994), quashed on other grounds, 655 So.2d 1123 (Fla.1995); State v. Boulia, 522 So.2d 528 (Fla. 2d DCA 1988); State v. Pringle, 499 So.2d 75 (Fla. 2d DCA 1986); State v. Diaz, 474 So.2d 903 (Fla. 5th DCA 1985); Wright v. State, 418 So.2d 1087 (Fla. 1st DCA 1982), petition for review denied, 426 So.2d 29 (Fla.1983); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977); see also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The question arises why this principle should not be applied to a pre-arrest breath or chemical test. Because we have decided that the arrest in the instant case actually took place before the breath test was administered, we need not resolve this issue.

      . We note that section 316.1932(l)(a)l. requires that the individual be lawfully arrested. The courts generally agree that the elements of a lawful arrest are: 1) a purpose or intention to effect an arrest; 2) an actual or constructive seizure or detention by a person having present power to control the person arrested; and 3) communication by the arresting officer to, and an understanding by, the person whose arrest is sought of the officer’s purpose and intention to effect an arrest. Kearse v. State, 662 So.2d 677, 682-83 (Fla.1995) (citing State v. Parnell, 221 So.2d 129, 131 (Fla.1969); Melton v. State, 75 So.2d 291, 294 (Fla.1954)); see also Brown v. State, 515 So.2d 211 (Fla.1987); Williams v. State, 757 So.2d 597 (Fla. 5th DCA 2000).
      As to the third factor, the officer does not have to specifically tell the detained person that he or she is under arrest; all that is required is that the officer’s conduct inform the person that he or she is under arrest. See Kearse; Giblin v. City of Coral Gables, 149 So.2d 561 (Fla.1963); State v. Rivas[-]Marmol, 679 So.2d 808, 809 (Fla. 3d DCA 1996) (citing State v. Coron, 411 So.2d 237 (Fla. 3d DCA 1982)); see also Elliot v. State, 704 So.2d 606, 611 (Fla. 4th DCA 1997) (holding that charge of resisting an arrest requires that the arrestee “be given notice by word or circumstance that he is being detained ....”). Thus, when a “defendant was informed of his Miranda rights, handcuffed, and placed inside the patrol car, he was arrested.” Poey v. State, 562 So.2d 449, 450 (Fla. 3d DCA 1990) (citation omitted); see also Kearse. However, because we have concluded that the requirements of section 316.1932(l)(a)l. were established based on Whitley's arrest for fleeing and attempting to elude, we do not need to determine whether Whitley was lawfully arrested for DUI prior to administration of the breath test.


text:
    Henry L. FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-229.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Henry L. Ferguson, Ft. Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Henry Ferguson appeals the denial of his motion to reduce or mitigate sentence pursuant to Rule 3.800(c), Florida Rule of Criminal Procedure. Appellant alleged that his sentence is illegal. The trial court’s order is affirmed without prejudice for appellant to file a legally sufficient motion to correct an illegal sentence pursuant to Rule 3.800(a), Florida Rule of Criminal Procedure.

GUNTHER, KLEIN and SHAHOOD, JJ., concur.


author: SHAHOOD, J.

text:
    Theresa L. CHEEKS, as Personal Representative of the Estate of Jeffrey Williams, deceased and Theresa L. Cheeks, as Personal Representative of the Estate of Travonda Monique Williams, a deceased minor, Appellant, v. Joseph E. DORSEY, M.D., South Florida Substantive Abuse, Ind., A Florida corporation and Pompano Treatment Center, Inc., a Florida corporation, Appellees.
    No. 4D02-491.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Rehearing Denied June 27, 2003.

      Lauri Waldman Ross and Theresa L. Girten of Lauri Waldman Ross, P.A., and Scott Leeds of Leeds & Colby, Miami, for Appellants.
    Atlee W. Wampler, III, and Larry L. Cook of Wampler, Buchanan, Walker, Cha-brow & Banciella, P.A., Miami, for appellee Pompano Treatment Center, Inc., a Florida corporation.
   SHAHOOD, J.

Appellant, Theresa L. Cheeks, is the personal representative of the estate of her fiancé, Jeffrey Williams, and her daughter, Travonda Williams, both of whom were killed on March 11, 1994 in a car accident caused by Richard Reutlinger (Reutlinger), a methadone patient of Pompano Treatment Center (Pompano). Cheeks filed a Complaint for Damages against Joseph E. Dorsey, M.D., owner of Pompano, South Florida Substance Abuse, Inc. (South Florida) and Pompano. Dr. Dorsey and South Florida were granted summary judgments early in the lawsuit. No appeals were taken with respect to those defendants and they are not parties to this appeal.

The thrust of appellant’s complaint was that Reutlinger was known to regularly abuse prescription and non-prescription drugs, that he did so on the evening of March 10, 1994 and in the early morning hours of March 11, 1994, and that, despite the fact that Reutlinger was impaired, Pompano administered the usual dose of methadone that morning without first testing Reutlinger’s blood or urine to determine whether it contained drugs which might negatively interact with methadone. As a result, Reutlinger was too impaired to operate a motor vehicle and the methadone-induced impairment was the proximate cause of the ensuing accident. Appellant further alleged that Pompano knew or should have known that Reutlinger regularly abused drugs and that those drugs combined with methadone would create a “dangerous level of impairment.”

Appellant alleged, specifically, that the clinic breached its duty by (availing to properly conduct a drug screen urinalysis on Reutlinger; (b)failing to institute and follow policy and procedure for patient management while providing methadone treatment to Reutlinger; and (c)failing to perform proper screening of Reutlinger on March 11, 1994 which would have alerted staff to his impaired condition and led the staff not to administer methadone. Appellant alleged that Pompano’s breach of these duties constituted negligence, departed from the standard of care, and was the direct and proximate cause of the death of the decedents.

In its motion for summary judgment, Pompano did not deny that Reutlinger caused the accident which killed the decedents or that, approximately one hour before the accident, he had received his daily dose of methadone at the clinic. The clinic did, however, deny that it was negligent in administering the methadone to Reutlinger on the day of the accident.

Pompano asserted, among other things, that it could not reasonably be held liable to third parties, unidentified members of the driving public at large, who were injured by the addict’s abuse of the methadone; therefore, it owed no duty to appellant’s decedents who were unforeseen third parties. Pompano denied that the clinic’s actions fell below the standard of care.

In support of its position, Pompano submitted the affidavits of several of its staff members. Each stated that he or she knew Reutlinger well, saw him or interacted with him on the day in question and found him to be normal or not impaired or alert with no slurred speech and no smell of alcohol.

The affidavits submitted by Pompano were in direct conflict with the depositions submitted by appellant. Reutlinger’s roommate stated that Reutlinger was doing drugs on the evening of March 10th and appeared to still be impaired the following morning when he left to go to the clinic.

A friend of Reutlinger’s who is also a patient at the clinic, Scott Gale (Gale), stated that he and Reutlinger had been doing cocaine and other drugs together for approximately five to seven years. On the morning of the accident, Gale saw Reut-linger and noticed that his eyes were very red. Reutlinger received his methadone dose anyway and Gale remembered discussing it with the nurse at the clinic. According to Gale, approximately fifteen minutes later, Reutlinger was disoriented and upset as if he had been doing cocaine or amphetamines.

Dr. Dorsey, owner of the methadone clinic, agreed that it would be a deviation from the prevailing standard of care to administer methadone to a patient who is known to be high. He stated that it is the policy of the clinic to discharge such patients without medicating them.

The state trooper who responded to the scene of the accident observed Reutlinger and noted that his pupils were dilated even while looking directly into the sun and he appeared to be “spaced out.” This gave the trooper the impression that Reutlinger was impaired. Toxicology reports confirmed that Reutlinger had high levels of cocaine, Valium, methadone, and codeine in his system. In criminal proceedings, Reutlinger pled guilty to two counts of DUI manslaughter and was sentenced to fifteen years in state prison.

After hearing arguments, the trial court granted Pompano’s motion for summary judgment, ruling that Pompano did not owe a duty to the decedents, and entered a Final Summary Judgment in favor of Pompano. This appeal follows.

Summary judgment should not be granted if there are genuine issues of material fact. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). The standard of review of a trial court’s ruling on a motion for summary judgment is de novo. See Mashni v. LaSalle Partners Mgmt. Ltd., 842 So.2d 1035 (Fla. 4th DCA 2003).

In negligence cases, summary judgments should be cautiously granted. Moore, 475 So.2d at 668. The duty of care in a negligence action is a question of law; proximate causation is a question of fact. See McCain v. Fla. Power Corp., 593 So.2d 500, 501 (Fla.1992). The question of foreseeability is relevant to both the element of duty and the element of proximate causation. The Florida Supreme Court in McCain explained the following in determining liability:

The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. See Kaisner [v. Kolb], 543 So.2d [732][at] 735 [Fla. 1989] (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)). The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open. As is obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for negligence because proximate causation cannot be proven.

Id. at 503(footnote omitted); Napoli v. Buchbinder, 685 So.2d 46, 47 (Fla. 4th DCA 1996). “The proper way of determining whether a duty existed is to decide whether the defendant’s actions created a foreseeable zone of risk, not by whether the specific injury suffered was foreseeable by the defendant.” See Fla. Power & Light Co. v. Periera, 705 So.2d 1359, 1361 (Fla.1998).

In Fitzer v. Forlaw, 435 So.2d 839 (Fla. 4th DCA 1983), quashed by, 456 So.2d 432 (Fla.1984), this court considered the issue of whether “a cause of action can be stated in favor of a third party upon an allegation of prescribing pills to a known drug addict.” Id. at 839. In other words, the court considered whether the third party was within the foreseeable zone of risk, such that a duty could be imposed on the doctor. In that case, Fitzer was killed when struck by an automobile driven by a patient allegedly under the influence of Quaaludes which had been prescribed by his doctor. Id. Her estate filed a wrongful death suit against the doctor alleging that he knew or should have known that the patient was a drug addict. Id. The trial court granted the doctor’s motion to dismiss the complaint. Id. This court reversed holding, “if a doctor prescribes Quaaludes to a known drug addict, it is foreseeable that the addict may drive an automobile under the influence and cause injury to innocent third parties.” Id. at 839-40.

The supreme court reversed our Fitzer opinion, holding that there is nothing inherently negligent about prescribing drugs to a drug addict; thus, prescribing a controlled substance, alone, is not enough to render a physician hable to third parties. See Forlaw v. Fitzer, 456 So.2d 432, 434 (Fla.1984). Rather, in order to impose liability, it must be shown that the doctor acted in bad faith or beyond the scope of his practice in prescribing the drug. Id. at 435.

Eleven years later, the supreme court issued Pate v. Threlkel, 661 So.2d 278 (Fla.1995). In that case, the adult child of a patient who had been diagnosed with a genetically transferable disease brought a medical malpractice action against her mother’s doctor alleging that he was negligent in failing to warn the patient that her condition was genetically transferrable and her children should be tested. Id. at 278. The court concluded, “when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician’s duty runs to those third parties.” Id. at 282.

In Werner v. Varner, Stafford & Seaman, P.A., 659 So.2d 1308 (Fla. 4th DCA 1995), this court applied Pate to preclude a suit against a doctor by a motorist who was injured when the doctor’s patient, an epileptic, collided with the motorist after taking an anti-epileptic medication and experiencing a seizure. The complaint alleged that the doctor was negligent in failing to warn his patient that he should not drive while under the influence of the medication. This court framed the issue as “whether a physician owes a duty to persons not within the physician/patient relationship,” and held as follows:

We are not unmindful of the foreign cases cited by the Werners which have held physicians liable in like or similar circumstances to those presented in the case under review. See Duvall v. Goldin, 139 Mich.App. 342, 362 N.W.2d 275 (1984); Freese v. Lemon [Lemmon], 210 N.W.2d 576 (Iowa 1973); Myers v. Quesenberry, 144 Cal.App.3d 888, 193 Cal.Rptr. 733 (1983); Gooden v. Tips, 651 S.W.2d 364 (Tex.Ct.App.1983). However, we must follow the recent supreme court pronouncement in Pate. Although Pate seemingly relaxes the no privity/no liability rule, it cannot operate to save the Werners’ amended complaint. In Pate, the supreme court specifically limited the physician’s duty to known and identifiable third parties as the patient and plaintiff were mother and child. In the instant case, the Werners were neither known nor identifiable to Dr. Bez-ner and were merely members of the driving public at large.

Id. at 1310-1311.

Pompano urges us to apply Pate and Werner and affirm the summary final judgment on the basis that the decedents in this case were merely unidentifiable third parties, “members of the driving public at large” and, thus, Pompano owed them no duty. We disagree with that analysis, however, finding that it overlooks the distinctions between the facts in this case and those in Pate and Werner and ignores the law established by the supreme court in Fitzer. We agree that the decedents in this case were not identifiable third parties, but the analysis does not stop there. As the court instructed in Fitzer, a duty may still be imposed if there is a showing that the doctor either acted in bad faith or beyond the scope of his practice in administering the methadone.

This ease is unlike a mere failure to warn case where the doctor prescribes a medication which might have certain effects under certain circumstances at some future time. In those situations, whether the patient takes the medication and then drives is beyond the doctor’s control. In fact, whether the patient consumes the medication at all is beyond the doctor’s control. Thus, imposition of a duty to unidentifiable third parties under those circumstances would create a zone of risk which would be impossible to define.

On the other hand, this case presents a situation in which the variables are, or should be, known to the doctor or health care provider at the time the drug is administered, and the effects are immediate. When one administers a drug which, when combined with other drugs or alcohol, may severely impair the patient, the doctor’s failure to take the proper precautions (i.e., verify whether the patient is already under the influence of another drug) is an affirmative act which creates the risk that unidentifiable third parties might be injured. Under these circumstances, there is, most certainly, a duty to unidentifiable third parties who may be injured as a result.

In this case, there is a factual question, based on the evidence presented, as to whether Reutlinger was impaired. If appellant were ultimately able to prove Reutlinger’s impairment at the time the methadone was administered to him, that showing would, according to Fitzer, give rise to liability to third parties based on bad faith or conduct outside the scope of the doctor’s or clinic’s practice. Under these circumstances, it could certainly be anticipated that a patient in such a condition would immediately drive away from the clinic and have an accident in which unknown third parties would be injured.

Several of these issues present factual questions, not appropriately disposed of by way of summary judgment. Thus, we reverse the final judgment and remand for further proceedings.

REVERSED AND REMANDED.

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


text:
    OASIS OUTSOURCING, INC., Appellant, v. Bill MANESS, Appellee.
    No. 4D02-4166.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Murray Hudson and Andrew Fulton, IV of Ward, Damon & Posner, P.A., West Palm Beach, for appellant.
    Gina E. Caruso and Karen A. Brimmer of Hinshaw & Culbertson, Ft. Lauderdale, for appellee.
   PER CURIAM.

We affirm the order determining that there was no personal jurisdiction over appellee. Oasis Staffing, Inc. v. Lindeman, 840 So.2d 342 (Fla. 4th DCA 2003).

POLEN, C.J., KLEIN and GROSS, JJ., concur.


author: STRINGER, Judge.

text:
    Paul HARDY and Leo Salvatori, Appellants, v. Katherine Fernandez RUNDLE, State Attorney for the Eleventh Circuit, Appellee.
    No. 2D02-3926.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    Rehearing Denied June 16, 2003.
    Howard M. Srebnick of Black, Srebnick & Kornspan, PA, Miami; and Scott A. Srebnick, Miami, for Appellant Paul Hardy.
    Richard L. Richey of William L. Richey, P.A., Miami; and H. Eugene Lindsey and Beatrice A. Butchko of Ferrell Schultz Carter Zipnpano & Fertel, P.A., Miami, for Appellant Leo Salvatori.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Paul Hardy and Leo Salvatori seek review of the final judgment dismissing their complaint for writ of quo warranto. The complaint sought to prevent a special prosecutor from prosecuting count fourteen of a criminal information which charged Hardy and Salvatori with money laundering. We conclude that the executive order issued by the governor giving the special prosecutor the authority to prosecute certain matters did not encompass the claim for money laundering asserted in count fourteen. Accordingly, we reverse.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.


text:
    Dale Benefield STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0362.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Rehearing Denied June 12, 2003.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, and Trisha. E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Dale Benefield Stewart, appeals his conviction of sexual battery. Appellant argues that because no “manifest necessity” occasioned the declaration of a mistrial, his retrial was barred by the double jeopardy clauses of the state and federal constitutions. We agree and, accordingly, reverse.

The case initially went to trial on October 18, 2001. During the testimony of the first witness, the trial judge was advised of an anthrax scare in the Holmes County Tax Collector’s office located in the courthouse. The record indicates that the trial judge was advised by the sheriffs department that someone came into that office and paid with money that had a white powdery substance on it. The trial judge noted that officials did not know what the white powdery substance was and that the test to make that determination would take at least 12 hours. The judge also noted that a sample of the substance would have to be delivered to Jacksonville for the test to be conducted. The judge stated that his initial reaction was to quarantine the courthouse, and he had done so.

After a discussion with the health department, the judge determined that the courthouse would be closed and not reopened until receipt of a laboratory report regarding the nature of the substance. The judge stated that he was concerned about continuing the trial because he would have to inform the jury regarding the circumstances and it could be such a serious distraction to jurors that it may not be appropriate to continue the trial. The prosecutor agreed with the trial judge’s concerns and said the only options were to declare a mistrial or in some way try to bring the jury back another day. Defense counsel then spoke with appellant. Appellant stated that he understood that if the judge did what he was contemplating, they would have to go through another jury selection and start the trial over. Appellant stated that he felt it was adverse or detrimental to his interest for the judge to do that at that point. Defense counsel suggested that they have lunch brought to the jurors, go ahead and finish the trial, and tell the jurors to go home and wash their clothes after the trial.

The trial judge then stated that he had another problem. Dr. Lisa Bailey, a material witness, had indicated to him that she would be very reluctant to come to the courthouse and that she had been advised not to come to the courthouse because of the possibility of exposure to herself and the possibility that she could expose others in her work as a health professional. The trial judge stated that there was a question as to whether or not she would even respond to the subpoena if the trial continued. The trial judge also noted that he would be concerned about granting a continuance because the matter would have to be continued for 30-60 days, and there could be a problem with the jurors being exposed to information about the case even if they were instructed not to communicate with anyone regarding the case. The trial judge decided, given the “unusual set of circumstances,” to declare a mistrial.

A second jury was empaneled and appellant was tried again on December 12, 2001. He was found not guilty on three counts, but guilty as charged on one count of sexual battery in violation of section 794.011, Florida Statutes. Appellant was sentenced to 80 years’ imprisonment.

As this Court has previously recognized,

The scope of the double jeopardy clause of the Florida Constitution is the same as that of the federal protection. It has long been held that the government may bring a second prosecution where a mistrial has been occasioned by manifest necessity.... “Manifest necessity” is a term which has not been given a bright line definition because of the variety of situations that arise in the course of trying eases. Where the reason for the mistrial relates to the unavailability of a critical prosecution witness or where the prosecution is attempting to use superior resources to harass the defendant, strict scrutiny is appropriate. On the other extreme, where the jury is deadlocked, great deference will be given to a conclusion that a mistrial is necessary. Where the factual situation falls in between the described extremes, a trial court’s exercise of “sound discretion” is entitled to deference.

Cohens v. Elwell, 600 So.2d 1224, 1225 (Fla. 1st DCA 1992) (citations omitted). In addition, the double jeopardy provision of the Florida Constitution “requires a trial judge to consider and reject all possible alternatives before declaring a mistrial over the objection of the defendant.” Thomason v. State, 620 So.2d 1234, 1239 (Fla.1993).

In the present case, the record indicates there was no consideration of possible alternatives such as conducting the trial in a location other than the courthouse. The record also indicates there was no communication with the jurors regarding whether they would be available to continue to serve at a later date, after a continuance, and no consideration of possible means of avoiding exposure to any communications or information regarding the case. As in Cohens, the trial judge did not actively explore his other options before discharging the jury.

The potential problem with the state witness also does not establish manifest necessity in this case. “There is little doubt that the unavailability of a critical state witness can create a ‘manifest necessity’ which will allow a mistrial without prohibiting retrial. Nevertheless, in such situations the trial court is well advised to make an inquiry and create a record as to the nature of the witness’ testimony, reason for the witness’ unavailability, and if and when the witness will become available.” Cohens, 600 So.2d at 1226. The record on appeal does not reveal the nature of the witness’s testimony. Although the reason for the witness’s potential unavailability is clear, the trial judge indicated only that there was a question as to whether the witness would appear.

We sympathize with the situation in which the trial judge found himself, recognizing the events that were taking place in our nation at the time. However, we are unable to say that what occurred was sufficient to establish manifest necessity for declaration of a mistrial. Accordingly, we reverse the conviction and direct the trial court to discharge appellant.

BARFIELD, BROWNING and LEWIS, JJ„ CONCUR.


author: CASANUEVA, Judge.

text:
    Friedrich WAGNER, Appellant, v. Detlef UTHOFF, M.D., Appellee.
    No. 2D02-3051.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
    Rehearing Denied June 16, 2003.

      Thomas C. Saunders of Thomas C. Saunders, P.A., Lakeland, for Appellant.
    Andrea Teves and Joseph A. Geary of Peterson & Myers, Lakeland, for Appellee.
   CASANUEVA, Judge.

In 1997 Friedrich Wagner sued Dr. Det-lef Uthoff for damages resulting from an alleged breach of an oral agreement and fraud in the inducement of an oral agreement. After much discovery and numerous pretrial motions, it became clear that Mr. Wagner was a resident of Germany and had never posted a nonresident plaintiffs costs bond pursuant to section 57.011, Florida Statutes (1997). Based on this failure, the trial court dismissed the complaint with prejudice and Mr. Wagner appealed. We reverse finding an abuse of the trial court’s discretion. Waxman v. Schwarz, 458 So.2d 72 (Fla. 3d DCA 1984).

After yeoman’s efforts to clarify Mr. Wagner’s residency status, Dr. Uthoffs counsel, on April 3, 2002, and pursuant to the statute, filed a notice of intent to dismiss for failure to post the nonresident plaintiffs costs bond. Twenty days later, the time allowed under the statute, the required bond had not been posted and no objection had been filed on the grounds that Mr. Wagner was not a nonresident plaintiff. So, on that twentieth day, April 23, 2002, Dr. Uthoffs counsel filed a motion to dismiss. Without hearing, the trial court rendered a final order of dismissal on April 25, 2003, the twenty-second day after notice of intent to dismiss was filed, which was, coincidentally, the same day that Mr. Wagner filed a sufficient cash bond with the clerk of court pursuant to the statute. A subsequent timely motion for rehearing was filed pointing out, inter alia, that the required bond was now posted. Rehearing was denied and this appeal ensued.

Of all Mr. Wagner’s many arguments on appeal, we find merit in only one, that he was entitled to the five-day grace period given to litigants pursuant to Florida Rule of Civil Procedure 1.090(e), when papers are served by mail. Mr. Wagner argues that because he was served with Dr. Uthoffs notice of intent by mail, his response time included the twenty-day period prescribed by the statute, plus the extra five days allowed under rule 1.090(e). Therefore, he had until the twenty-fifth day after the fifing of Dr. Uthoffs notice of intent to dismiss, or until April 28, 2003, to file the bond or object to it, before facing certain dismissal. He maintains that the bond, filed on the twenty-second day, was timely. We agree.

As the Fourth District has explained, not every response by a party will be considered timely when that party avails himself of the rule’s five-day grace period for mailing. In Leithauser v. Harrison, 206 So.2d 222, 224 (Fla. 4th DCA 1968), the Fourth District found that whether the subsequent act is “mandatory or permissive, done by requirement or of right,” rule 1.090(e) clearly anticipated that the party’s subsequent act be responsive to the prior notice or paper. In Leithauser, the appellate court was evaluating a party’s response after the fifing of an order of the circuit court, clearly a “notice or paper” as contemplated by the rule. If the subsequent act is responsive to the prior notice, paper, or order, it will be considered timely if filed within the rule’s grace period, but otherwise not. The “subsequent act” in Leithauser was found nonre-sponsive and, therefore, not entitled to the extra days of the rule’s grace period, three days at that time, to save the case from being dismissed for lack of prosecution. In contrast to the situation in Leithauser, we find Mr. Wagner’s action in fifing the cash bond with the clerk within the rule’s grace period a permissive and, more important, a . responsive “subsequent act.” The trial court should have accepted the cash bond as timely filed when Mr. Wagner’s counsel showed, in his timely motion for rehearing, that he had filed the bond within the grace period.

Reversed and remanded for further proceedings.

DAVIS and CANADY, JJ„ Concur.

      . Section 57.011, Florida Statutes (1997), provides as follows:
      Costs; security by nonresidents.—
      When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorneys bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against the attorney.

      . Florida Rule of Civil Procedure 1.090(e) provides:
      Additional Time after Service by Mail.
      When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

      . Our reversal shall not be construed in any manner upon remand as a comment on the merits of the case.


author: FARMER, J.

text:
    Jonathan CHUA, M.D., and Florida Eye Microsurgical Institute, Inc., Appellants, v. Vola HILBERT, Appellee.
    No. 4D02-1562.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 27, 2003.

      Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, for appellants.
    Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Wallace B. McCall of Wallace B. McCall, P.A., Jupiter, for appellee.
   FARMER, J.

In this medical malpractice case, the jury awarded substantial damages to the patient from her eye surgeon. On appeal the surgeon argues error in the trial court’s admission of surprise testimony by the patient’s expert witness as to whether the surgeon was negligent; in making the surgeon responsible for further injuries occurring during an attempt to correct his failed surgical procedure; and in permitting the patient’s expert to testify as to the informed consent claim. We affirm on all issues.

As to the surprise testimony regarding the surgeon’s negligence in performing the procedure, we begin by noting that the patient went to trial on multiple theories of liability with regard to his performance of a procedure known as a YAG Laser Cap-sulotomy. Patient’s three, separate causes of action were whether surgeon: (1) negligently performed the procedure; (2) negligently failed to monitor intraocular pressure and provide appropriate treatment in connection with the procedure; and (3) failed to obtain an informed consent to perform the procedure. The case was submitted to the jury on a general verdict as to liability. The first issue on appeal addresses only the second theory of liability, the failure to monitor his patient after surgery and to provide any treatment necessitated by events in the post operative period.

Patient therefore argues that surgeon’s first issue is foreclosed by the two-issue rule. In Florida Patient’s Compensation Fund v. Sitomer, 524 So.2d 671 (Fla. 4th DCA 1988), quashed on other grounds, 550 So.2d 461 (Fla.1989), we upheld the application of the two-issue rule to separate theories of liability that are identical to those involved in the present suit. As here, Sitomer was a medical malpractice action involving more than a single theory of liability: (1) that the doctor was negligent in his medical care arid treatment of plaintiff and (2) that the doctor failed to obtain a properly informed consent. 524 So.2d at 671. We found that the defendants could not show error in the trial court’s failure to give their proposed jury instruction on the informed consent theory because both theories went to the jury under a general verdict as to liability and the jury found in favor of plaintiff. Id.

Sitomer thus requires the application of the two-issue rule to the present case. Here we face the identical situation — i.e., any error in regard to the negligent performance of the surgery had no connection with the informed consent theory of liability. The jury’s general verdict on liability does not specify which, if fewer than all, of the three theories were found proved by the evidence and law.

It is true that the informed consent claim was pleaded under the same heading as the negligent performance issues. As we held in Sitomer, however, lack of informed consent is really a separate theory of liability and is different from an alternative theory of negligent performance of a surgical procedure. 524 So.2d at 675 (“['T]hough the instruction given by the court on implied consent may be inadequate, Smith and the Fund cannot avail themselves of such error because two theories of negligence went to the jury in this case and the jury found liability against Smith on both charges i.e., negligence in his medical care and treatment and negligence in obtaining Sitomer’s informed consent.”); see also Gouveia v. Phillips, 823 So.2d 215 (Fla. 4th DCA 2002) (discussing difference between medical negligence claim and alternative claim based on lack of informed consent). Thus for purposes of the two-issue rule, under Sitomer we face not a single theory of liability but three separate and distinct claims.

Thus, this case is distinguishable from First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Barth v. Khubani, 748 So.2d 260, 261-62 (Fla.1999), and Tomlian v. Grenitz, 782 So.2d 905 (Fla. 4th DCA 2001). These decisions involve a single theory of liability as to which the error, if any, was connected to only one of multiple elements of the single theory in suit. In Tomlian, we held that Barth and Ablanedo made clear that the two-issue rule did not apply to single theory claims, even if multiple elements of that claim were in dispute.

In Tomlian, the parents brought a medical malpractice action on behalf of their son who was born with cerebral palsy. The two issues before the jury were: (1) whether there was negligence during the delivery; and (2) whether that negligence was the cause of the injury. 782 So.2d at 906. In Tomlian negligence was the only theory of liability, and we found the two-issue rule inapplicable. Tomlian does not support surgeon’s argument that the two-issue rule is inapplicable in this multiple theory of liability case. Because surgeon is unable to show error in the jury’s general determination of liability in the face of three alternative theories, as to which only one is involved in this argument, there is no error shown in the trial court’s refusal to bar the expert from testifying as to an opinion at trial different than he gave during pretrial deposition.

We deal only briefly with the remaining issues. The record supports the trial court’s determination that any negligence in the subsequent surgery to correct the problems existing after surgeon performed the YAG Laser Capsulotomy constituted an intervening cause for which the original tortfeasor may be liable. There was evidence that the second surgery was a reasonably foreseeable consequence of the first surgery. It is not necessary that the exact harm suffered by the plaintiff be foreseeable. Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520 (Fla.1980). An intervening cause is foreseeable if “the harm that occurred was within the scope of danger attributable to the defendant’s negligent conduct.” Townsend v. Westside Dodge, Inc., 642 So.2d 49, 50 (Fla. 1st DCA 1994), review denied, 651 So.2d 1197 (Fla.1995). In this case, the record supports the court’s conclusion that the second procedure was within the scope of danger attributable to surgeon’s negligence.

Finally, we conclude that surgeon has shown no error as to the testimony of patient’s expert on the lack of informed consent. The expert testified that he performs YAG Laser Capsulotomies on a regular basis, but because that procedure has an increased likelihood of dislo-eating plate haptic lenses, he refers those particular cases to the cataract surgeons where he practices. The expert further testified, however, that he would not defer to those surgeons to advise patients of the inherent risks of such surgery because, as a retina specialist, he has seen such results and is qualified to advise the patient regarding them. In any event, because the expert regularly performs YAG Laser Capsulotomies, he satisfied the statutory requirement that he perform “similar treatments or procedures.” Moreover, surgeon’s own testimony that patients should be warned of surgical complications, including the possibility of lens dislocation, and that he did not warn the patient of such dislocation in this case, was sufficient to support a verdict based on an uninformed consent.

Because surgeon has not made any error clearly appear, it follows that the final judgment is—

AFFIRMED.

POLEN, C.J., and MAY, J., concur.

      . The principle allowing a general verdict to stand in the face of a trial error affecting only one of two or more issues is known as the "two-issue rule.” Barth v. Khubani, 748 So.2d 260, 261-62 (Fla.1999); First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Colonial Stores Inc., v. Scarbrough, 355 So.2d 1181 (Fla.1977).


text:
    LEGION INSURANCE COMPANY, Appellant, v. Frances MOORE, Personal Representative, Estate of James L. Moore; and Milton Spector, Inc., Appellees.
    No. 4D01-1640.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 27, 2003.

      John Beranek and Jann Johnson Bellamy of Ausley & McMullen, Tallahassee, and Edward Nicklaus of Nicklaus, Hyatt & Pena, P.A., Coral Gables, for appellant.
    Henry J. Graham, Robert Scott Cox and David H. Burns of Cox & Burns, P.A., Tallahassee, for appellee Frances Moore.
   FARMER, J.

An insurance carrier seeks review of an order striking its claim for a declaratory judgment as to coverage under an uninsured motorist (UM) insurance policy. To determine whether the carrier is liable for damages under the UM provision, it is necessary to resolve how the accident occurred in which claimant’s decedent perished. Was it a “single vehicle” accident, or was it caused by a “phantom vehicle?” We find no error in the trial judge’s determinations with respect to the declaratory judgment action.

On a rainy night in Florida, James Moore was driving a truck owned by his employer, Milton Spector, Inc. (Employer), while on business. The truck left the roadway and rolled over, killing Moore. No other vehicles were found at the scene of the accident. A witness traveling about a mile and a half behind Moore did not see any impact or collision but saw a speeding car in the vicinity at the time of the accident. When Moore’s truck rolled over, the witness saw multiple sets of tail lights. There are no other known eyewitnesses.

Legion issued a policy of insurance to Employer covering the truck and driver and providing UM coverage. The UM coverage applied to accidents caused by unidentified hit-and-run vehicles, but not to “single-vehicle” accidents caused by an insured:

“ ‘Uninsured motor vehicle’ means a land motor vehicle or trailer ... that is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must ... cause an ‘accident’ resulting in ‘bodily injury’ to you or any ‘family member’ without hitting you, [or] a covered ... vehicle you ... are ‘occupying.’
“If there is no physical contact with the hit-and-run vehicle, the facts of the ‘accident’ must be proved. We will only accept competent evidence other than the testimony of a person making claims under this or any similar coverage.”

Moore’s widow (claimant) made a claim to Legion for benefit's under the policy’s UM coverage. After Legion denied the claim, it then filed an action for declaratory relief, naming Employer and claimant. The carrier asserted that the accident was not covered by the UM provision because it was a single-vehicle accident caused by the insured, with insufficient evidence that it was caused by another vehicle.

Claimant answered and alleged that the accident was caused by an unknown and unidentified vehicle, the speeding car described by the eyewitness, which it argued thus fell within the UM provision. She included in her Answer a claim for benefits under the UM policy. She also moved to strike Legion’s declaratory judgment action as against her, arguing that it could not be used to try a disputed factual issue as to how the accident was caused. The trial judge agreed and struck the declaratory judgment action as to her.

At that point, Legion petitioned this court for a writ of certiorari, arguing that the trial judge’s order striking its declaratory judgment claim was either an appeal-able final order, or a nonfinal order and was a departure from the essential requirements of law that would cause Legion irreparable harm. We dismissed the petition without opinion. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (if petitioner fails to make prima facie showing of irreparable harm in petition for certiorari review of nonfinal order, District Court of Appeal lacks jurisdiction and will enter order dismissing petition).

Legion returned to the trial court and moved to bifurcate the issue of policy coverage from the issue of damages. Legion argued that an initial trial of the policy coverage issue would be simple and avoid unnecessary expenditure of judicial time if the issue was resolved in Legion’s favor. The trial judge denied the motion, explaining that trying the two issues separately would not save much judicial time. Claimant thereupon moved to realign the parties in conformity with her pending counterclaim, now that the declaratory judgment action had been stricken as against her. The trial judge granted the motion and designated her as the plaintiff and Legion as the defendant in the remaining UM action.

Employer then moved to dismiss the declaratory judgment action, which was still pending against it. It argued that because it was not making an uninsured motorist claim under the policy, it was not a “necessary and indispensable party” but only a “proper party” and should not be joined in a declaratory judgment action. It also argued because the declaratory judgment action had been stricken and the parties realigned, it was no longer a party to the suit. Legion responded that Employer was a necessary party as it was the named insured under the policy. The trial judge granted Employer’s motion.

In the course of pretrial discovery, claimant notified Legion that she intended to call an expert accident re-constructionist to testify at trial. The expert concluded that the probable cause of Moore’s accident was a speeding car that cut in front of his truck suddenly, causing him to steer sharply to the left and thereby spin out of control and roll over. His conclusion was based upon his study of the accident reports made by law enforcement officials, measurements of the tire marks at the accident scene, examination of photographs from the scene of the accident, and the eyewitness’s statement that he saw an unidentified car speeding in the area at the time of the accident.

Legion filed a motion to exclude the expert from testifying at trial, arguing that his opinion was based on hearsay evidence. After hearing testimony and argument, the trial judge denied the motion, ruling that the expert would be allowed to testify at trial. It is at this point that Legion again sought review in this court by the present proceedings. Legion seeks review of the orders striking the entire declaratory judgment action, as well as the other orders realigning the parties, dismissing the Employer, and allowing the expert to testify at trial.

The only orders even arguably within our jurisdiction at this time are the orders ending the declaratory judgment action as to both the claimant and the Employer. Essentially the trial court concluded that because it would be necessary to determine the critical factual issue underlying this accident, a declaratory judgment action would not be provident. It therefore terminated the Chapter 86 action as to all parties.

As the court implied in Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996), the final disposition of a declaratory judgment action seeking to settle the rights and liabilities of the parties in an insurance coverage dispute is a final order. We, too, have held that the dismissal of declaratory judgment actions is reviewable as a dismissal for failure to state a cause of action. Laganella v. Boca Grove Golf & Tennis Club, Inc., 690 So.2d 705 (Fla. 4th DCA 1997); Royal Selections, Inc. v. Fla. Dep’t of Revenue, 687 So.2d 893 (Fla. 4th DCA 1997).

Similarly, in Britamco Underwriters Inc. v. Central Jersey Investments Inc., 632 So.2d 138 (Fla. 4th DCA 1994), we held that even an abatement of a declaratory judgment action to determine insurance coverage could be reviewable by cer-tiorari. We explained:

“Generally, an insurance carrier should be entitled to ah expeditious resolution of coverage where there are no significant, countervailing considerations. A prompt determination of coverage potentially benefits the insured, the insurer and the injured party. If coverage is promptly determined, an insurance carrier is able to make an intelligent judgment on whether to settle the claim. If the insurer is precluded from having a good faith issue of coverage expeditiously determined, this interferes with early settlement of claims. The plaintiff certainly benefits from a resolution of coverage in favor of the insured. On the other hand, if coverage does not exist, the plaintiff may choose to cut losses by not continuing to litigate against a defendant who lacks insurance coverage.
“In the past it has generally been recognized as prudent, insurance company practice to have coverage resolved as promptly as possible.... Insurers almost routinely defend under a reservation of rights, when there is a coverage question, which we encourage. The decision to defend under a reservation of rights, however, should not preclude the insurer from resolving the coverage issue in a separate declaratory judgment action.”

632 So.2d at 141. In this case, the trial court has not abated the declaratory judgment action but has instead terminated it as to all parties. We find that decision reviewable under Canal as a final order.

We point out that the necessity to determine a factual dispute does not alone defeat an action for a declaratory judgment. As we recently held in State Farm Fire & Casualty Co. v. Higgins, 788 So.2d 992, 999 (Fla. 4th DCA), review granted, 794 So.2d 604 (Fla.2001), “the more recent trend in the case law is to accord broader scope to the declaratory judgment act in reaching fact issues.”

Declaratory judgment actions afford an important remedy in regard to insurance coverage questions, especially as to claims made by third parties against someone covered by the policy. Where a question of coverage is raised in that circumstance, there is a delicate problem between the insured and the carrier relating to the defense of the suit by the third party. It is important then that the question of coverage be expeditiously determined, if possible, so that the parties under the contract of insurance may achieve the benefit of their bargain of contractual rights and obligations, which might be lost otherwise. See Canal Ins., 666 So.2d at 892 (“we acknowledge that it would be in the best interests of all the parties for coverage issues to be resolved as soon as possible.”).

In this case, however, we face not a third party but a first party claim by one of the contracting parties directly against the other party under the policy of insur-anee. The essential disputed fact underlying their UM claim is whether the accident was caused by a hit-and-run driver. We assume, without deciding, that the Estate will be able to make out a prima facie case with the evidence of the eyewitness and the accident reconstruction expert. The trial court’s dismissal of the declaratory judgment claim thus represents a conclusion simply that there is evidence for claimant to make out a prima facie case for UM coverage; hence the carrier has not shown as a matter of law that no UM coverage would be available under any set of facts that could be proved by claimant.

Unlike the circumstances arising with third party claims in which the issue of a defense of a suit against the insured is at stake, here we face nothing more than a mine-run, disputed UM claim as to which the issue is whether the nature of the accident places the claim within such coverage. In this sense the claim in suit is not functionally different from those cases in which the carrier disputes the UM claim by contending that its insured (rather than a third party) was the cause of the accident, or that the claimant’s injuries were not caused by the accident. In these circumstances, the carrier cannot avoid a jury trial by simply filing a declaratory judgment action first in which the judge alone is to determine the disputed fact.

In short, there is a logical basis for the court’s determination that a declaratory judgment action would not serve any useful purpose under the circumstances of this case and might impair or defeat rights of the parties. Because Legion has failed to show any error as to the orders striking the declaratory judgment action, we therefore affirm on that issue. We lack jurisdiction to review the other orders, and so we return the case to the trial court for further proceedings.

STONE and WARNER, JJ., concur.

      . The deceased driver and his Estate stand in the shoes of the Employer as a "Named Insured” entitled to claim the UM benefits of the policy, if they can prove the factual basis for their claim.

      . We also note that in the UM provision the carrier agreed that it would accept "competent” evidence, so long as the hit-and-run claim was not solely dependent on the testimony of the claimant as to how it occurred. We express no opinion as to whether this provision would itself be enforceable against the carrier by summary proceeding in the trial court.


text:
    Jasper BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3308.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 23, 2003.
    Jasper Brown, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court summarily denied appellant’s motion for postconviction relief from his conviction for second degree murder in which he raised eight claims. We affirm all issues and address the claim that his lawyer was ineffective for refusing to allow him to testify. The state adequately refuted this claim by citing to that portion of the record where the court confirmed the defendant waived his right on the record. Specifically, the court informed the defendant that he had the absolute right to testify and that it was not counsel’s decision, but ultimately, the appellant’s decision to make. Appellant alleges that counsel did not want appellant to testify to facts contrary to the defense that the incident was an accident. However, he alleges no affirmative misadvice nor counsel’s threat to withdraw if he did testify, as in Wilson v. State, 647 So.2d 185, 186 (Fla. 1st DCA 1994). Thus, his allegations failed to state a colorable ground for relief based upon ineffective assistance of counsel.

Affirmed.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Tracy L. SIMS, Appellant, v. Eddie E. SIMS, Appellee.
    No. 4D02-1030.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 24, 2003.
    Joseph R. Fields, Jr. of Prince & Fields, P.L., West Palm Beach, for appellant.
    Ann Porath, Wellington, for appellee.
   FARMER, J.

We reverse a final judgment of dissolution of marriage because of the failure of the trial judge to adjudicate and dispose of the issue concerning the husband’s failure to pay temporary spousal and child support accruing before trial.

Nonpayment of temporary child support and alimony during the pendency of a dissolution action should be addressed at the final hearing so that the trial court may fix the amount of any prejudgment arrearage and, if necessary, make an appropriate adjustment in the distribution of assets and liabilities in the final judgment. Scott v. Scott, 643 So.2d 1124, 1127 (Fla. 4th DCA 1994). If provision for payment of a temporary support arrearage is not incorporated in the final judgment, we have held that the court may not enforce such an arrearage in post-judgment proceedings. Roth v. Roth, 658 So.2d 1225, 1226 (Fla. 4th DCA 1995) (final judgment in dissolution of marriage proceeding failed to preserve wife’s right to temporary support arrearage that husband had accumulated at time of final hearing, warranting reversal; even though final judgment acknowledged outstanding obligation and in no way abolished it, the final judgment contained no language requiring payment of outstanding obligation); see also Scott, 643 So.2d at 1127; Bird v. Bird, 385 So.2d 1090 (Fla. 4th DCA 1980).

We remand in order for the trial court to dispose of this issue, as to which it shall also be necessary to determine the date from which such temporary support should have been paid.

REVERSED.

HAZOURI and MAY, JJ., concur.

      . Although the final judgment of dissolution of marriage made reference to unpaid temporary support predating the final judgment, it failed to make any disposition of that issue, saying instead:
      "Any unpaid amounts of either temporary spousal or temporary child support pursuant to the 'Order on the Wife's Motion for Temporary Relief' dated December 21, 1999, shall remain outstanding until paid, and the Court reserves jurisdiction to enforce same.”


text:
    John F. CURRY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2351.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Rehearing Denied June 13, 2003.
    John F. Curry, Jr., Daytona Beach, pro se.
    No Appearance for Appellee.
   THOMPSON, C.J.

John F. Curry, Jr. appeals the trial court’s order denying his petition for writ of habeas corpus. We affirm.

Curry filed a petition for writ of habeas corpus in the Seventh Judicial Circuit, where he is incarcerated, contending that his sentence exceeded the statutory maximum. The trial court denied his petition noting that the proper method was for Curry to file a 3.800 motion to correct sentencing in the Sixth Judicial Circuit, where his conviction and sentence was imposed.

The trial court correctly asserted that Curry should have filed a 3.800 motion instead of a habeas petition. See Patterson v. State, 664 So.2d 31, 32 (Fla. 4th DCA 1995) (rule 3 motions completely supersede habeas corpus motions as the means of collateral attack of a judgment and sentence). The proper venue for such a motion is where the conviction and sentence were imposed. Bryant v. State, 780 So.2d 978 (Fla. 5th DCA 2001). Furthermore, Curry has cited no case law requiring the trial court to transfer a petitioner’s case to the proper venue, and we have found no legal authority imposing a duty on the trial court to transfer a case such as the instant case. See Bryant, 780 So.2d at 979 (affirming the trial court’s denial of the habeas corpus petition and agreeing with the trial court that Bryant was collaterally attacking his judgment and sentence, and the method was to file a timely 3.850 motion in the proper venue where sentence had been imposed); see also Brown v. Wainwright, 383 So.2d 754 (Fla. 4th DCA 1980) (“the order denying the petition for writ of habeas corpus indicating that appellant should file a motion for post conviction relief was correct and we affirm”).

The trial court’s order denying the petition for writ of habeas corpus is affirmed.

AFFIRMED.

PALMER and TORPY, JJ., concur.


text:
    KFORCE, INC., f/k/a Romac International, Inc., successor by merger to Romac Associates of Fort Lauderdale, Inc., a Florida corporation, Appellant, v. Kerin MICKENBERG, f/k/a Kerin B. Lake, Appellee.
    No. 4D02-4649.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Stanley H. Eleff, Marie Tomassi, and Edward B. Carlstedt of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, Professional Association, Tampa, for appellant.
    Michael W. Ullman and Laurie A. Thompson of Ullman, Ullman & Vazquez, P.A., Boca Raton, for appellee.
   PER CURIAM.

Kforce, Inc. appeals a non-final order denying its request for temporary injunction against Kerin Mickenberg which sought to enforce a covenant not to compete.

When she went to work for Kforce in 1995, Mickenberg signed a covenant not to compete. She left Kforce in 2002 and began to work for a competitor. At the hearing on the temporary injunction, Kforce proved that Mickenberg had contacted its customers by e-mail. The emails demonstrated Mickenberg’s attempt to circumvent the terms of the noncompet-ition agreement. For example, two emails informed clients that Mickenberg was trying to “remain low key” to avoid any “conflict of interest” issues. Other comments were that she was willing “to work with [the client] behind the scenes for a little while” and to contact her if she could be of any assistance.

These e-mails amounted to a direct solicitation of Kforee’s customers. Under section 542.33(2)(a), Florida Statutes (1995), “solicitation of existing customers shall be presumed to be an irreparable injury.” At the hearing, Kforee demonstrated entitlement to a temporary injunction. We reverse the order of the circuit court and remand with directions to enter a temporary injunction enforcing the noncompetition agreement.

KLEIN, SHAHOOD and GROSS, JJ., concur.


text:
    Anthony LONG, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1210.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2003.
    Anthony Long, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hawn v. State, 840 So.2d 352 (Fla. 5th DCA 2003); Buchanan v. State, 781 So.2d 449 (Fla. 5th DCA 2001).

SHARP, W., GRIFFIN and MONACO, JJ., concur.


author: FULMER, Judge.

text:
    Hazel BATTLES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-27.
    District Court of Appeal of Florida, Second District.
    May 28, 2003.
   FULMER, Judge.

Hazel Battles appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Battles alleged that his habitual violent felony offender minimum mandatory sentence is illegal as a result of our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), which held chapter 99-188, Laws of Florida, unconstitutional in violation of the single subject rule. Battles claimed that chapter 99-188 allowed the sentencing court to impose a minimum mandatory sentence. The trial court denied this claim, stating that the legislature cured the single subject violation by retroactively reenacting chapter 99-188.

In Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court held that the legislature’s retroactive reenactment of chapter 99-188 was invalid. Therefore, Battles would be entitled to relief under Taylor if his sentence was affected by the amendments in chapter 99-188. The minimum mandatory sentencing provisions for habitual violent felony offenders were already present in section 775.084, Florida Statutes, when the legislature adopted chapter 99-188, and they were not affected by the amendments in chapter 99-188. See § 775.084(4)(b), Fla. Stat. (1997); ch. 99-188, § 3, at 1049. Therefore, Battles is not entitled to relief on this basis.

However, chapter 99-188 did amend the habitual violent felony offender statute to include defendants who have committed a felony while serving, or within five years of serving, a court-ordered or lawfully imposed supervision that is the result of a conviction for an enumerated felony. See ch. 99-188, § 3, at 1043. Battles may be entitled to relief if he qualified as a habitual violent felony offender under this amendment. Therefore, we affirm without prejudice to any right Battles may have to file a facially sufficient rule 3.800(a) motion seeking relief on this basis.

Affirmed.

STRINGER and CANADY, JJ„ concur.


author: KLEIN, J.

text:
    William CLONINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-648.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Rehearing Denied June 30, 2003.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of aggravated assault with a deadly weapon. He argues that the beer bottle which he used was not a deadly weapon. We affirm.

The victim, who was a friend of appellant, testified that after they had been drinking appellant attacked her and, among other things, hit her in the head with a beer bottle which caused her to lose consciousness. The blow resulted in her having a large lump on her head.

Appellant argues that this case is distinguishable from cases in which the deadly weapon was a broken beer bottle, such as T.B. v. State, 669 So.2d 1085 (Fla. 4th DCA 1996), because the bottle in this case was not broken. A deadly weapon, however, is any instrument likely to cause great bodily harm because of the way it is used during the crime. D.C. v. State, 567 So.2d 998 (Fla. 1st DCA 1990). We conclude that whether the victim’s injury in this case constituted great bodily harm was a question of fact for the jury. Coronado v. State, 654 So.2d 1267 (Fla. 2d DCA 1995)(whether a stick which was used to beat the victim was a deadly weapon was a jury question).

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

POLEN, C.J., and GROSS, J., concur.


text:
    Pamela EDGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3171.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Pamela Edge, Fort Lauderdale, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand this case for an evidentiary hearing or for the attachment of portions of the record which conclusively show that appellant is entitled to no relief in relation to the claim that counsel affirmatively misled her of the maximum length of her sentence if she declined to accept any plea bargains and proceeded to trial. See Cottle v. State, 733 So.2d 963, 967 (Fla.1999). The attachment on which the state relies to refute this claim does not do so.

WARNER, SHAHOOD and GROSS, JJ., concur.