author: SILBERMAN, Judge.

text:
    BREED TECHNOLOGIES, INC., Appellant, v. ALLIEDSIGNAL INC., Appellee.
    No. 2D02-5531.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.

      Donald B. Ayer, Geoffrey S. Stewart, Gregory M; Shumaker, and Edward K.M. Bilich of Jones Day, Washington, D.C. and John W. Frost, II of Frost, Tamayo, Ses-sums & Aranda, P.A., Bartow, for Appellant.
    Eugene F. Assaf, Christopher Landau, Craig S. Primis, and Brett H. McGurk of Kirkland & Ellis, Washington, D.C. and Benjamin H. Hill, III and Dennis P. Wag-goner of Hill, Ward & Henderson P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Breed Technologies, Inc., appeals the trial court’s order granting a motion to transfer venue from Polk . County, Florida. Because Polk County is a proper venue for this litigation, we reverse.

In August 1999, Breed filed suit in Polk County against AlliedSignal Inc., a foreign corporation, alleging fraud and misrepresentation. Later, Breed filed an amended complaint asserting additional theories of recovery.

AlliedSignal filed a motion to transfer venue to Hillsborough County pursuant to section 47.051, Florida Statutes (1999). It argued that, as a foreign corporation, any action against it could only “be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.” § 47.051. Al-liedSignal asserted that none of the statutory bases were met for venue to exist in Polk County and, because it had representatives in Hillsborough County, that venue had to be transferred to Hillsborough County. Breed contended that AlliedSig-nal had agents or other representatives in Polk County and, pursuant to section 47.051 and the decision in Piper Aircraft Corp. v. Schwendemann, 564 So.2d 546 (Fla. 3d DCA 1990), that Polk County was a proper venue.

The pertinent facts relating to venue are largely undisputed by the parties. Allied-Signal did not have employees, offices, entities, subsidiaries, or real estate in Polk County, and no one in Polk County was authorized to bind AlliedSignal or to accept service on its behalf. However, Al-liedSignal had contractual relationships with four businesses located in Polk County. AlliedSignal appointed two businesses as non-exclusive authorized sales and service centers for its products, and it appointed a third business as a non-exclusive authorized service center for its products (these three businesses will be referred to as the “service centers”). AlliedSignal appointed a fourth business, Cypress Aviation, Inc., as a non-exclusive authorized dealer to purchase, sell, install, and support the full line of products as published annually in the dealer price catalog.

The contracts authorized all four businesses to sell, install, and repair AlliedSig-nal products, but they were not prohibited from selling, installing, and repairing the products of others. The contracts for the service centers were substantially similar and specified that the service centers were independent contractors and not AlliedSig-nal’s agents or legal representatives. The contracts stated that the service centers were (1) required to promote the sale of AlliedSignal products; (2) responsible to solicit orders and stock products for Al-liedSignal and to participate in cooperative advertising programs arranged by Allied-Signal; (3) authorized by AlliedSignal to use its trade name and trademark in Polk County in various ways, including on signage, displays, letterheads, business cards, price lists, catalogs, advertising, telephone listings, and vehicles; and (4) required to adhere to AlliedSignal’s code of conduct, which outlined what was expected of employees and others who represented Al-liedSignal.

The dealer contract was more extensive than the service center contracts and arguably imposed greater obligations on Cypress Aviation than the service center contracts imposed on the service centers. Among other things, Cypress Aviation was required to (1) act in AlliedSignal’s “best interest, selling and supporting its products and systems in a professional and responsive manner to all user/operators”; (2) prominently identify itself as an authorized dealer; (3) own or lease and maintain facilities satisfactory to AlliedSignal; (4) maintain a current sales knowledge on product capabilities in order to competently discuss and demonstrate the products to prospective buyers; (5) employ personnel who are trained and technically qualified to install and service products to AlliedSig-nal’s satisfaction; (6) maintain an adequate inventory of spare parts and, in performing service, to use only approved parts; (7) actively promote sales of AlliedSignal products and maintain prominent displays of AlliedSignal literature; (8) meet or exceed sales quotas established by AlliedSig-nal; (9) register warranties for products installed for customers; and (10) provide warranty service by performing maintenance, repairs, and modifications in accordance with the dealer’s rating certification and by performing repairs and modifications as authorized by AlliedSignal. The contract described the relationship between AlliedSignal and Cypress Aviation as that of independent contractors, and Cypress Aviation was not authorized to bind AlliedSignal in any way.

After considering the nature of the relationships between AlliedSignal and the four Polk County businesses, the trial court concluded that the businesses were not the agents or representatives of Allied-Signal and that venue was not proper in Polk County. On appeal, the applicable standard of review requires that we review the trial court’s factual decisions “to determine whether they are supported by competent, substantial evidence or whether they are clearly’ erroneous. The trial court’s legal conclusions are reviewed de novo.” PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999) (citations omitted). Moreover, it is the plaintiffs prerogative to select the venue, and the plaintiffs selection will not be disturbed if it is one of the alternatives provided by the statute. Nissan N. Am., Inc. v. Vitale, 802 So.2d 465, 467 (Fla. 2d DCA 2001); Premier Cruise Lines, Ltd. v. Gavrilis, 554 So.2d 659, 660 (Fla. 3d DCA 1990). It is the defendant’s burden to demonstrate that the plaintiffs venue selection was improper. Eth-Wha, Inc. v. Blankenship, 483 So.2d 872, 873 (Fla. 2d DCA 1986); Piper Aircraft Corp. v. Schwendemann, 564 So.2d 546, 547 (Fla. 3d DCA 1990).

Breed urges this court to follow the rationale used by the Third District in Piper, which addressed a situation similar to the one presented here. In Piper, lawsuits had been filed in Dade County against Piper and asserted claims for individuals who were killed or injured in an aircraft crash. Piper was the manufacturer of the aircraft, and the crash occurred in Germany. When Piper challenged venue, the plaintiffs responded by establishing that Piper had contractual agreements with two separate Dade County entities. One entity sold and serviced airplane parts, and the other was a parts distributor. Piper, 564 So.2d at 547.

Piper argued that the terms “agent” and “representative,” as used in the venue statute, were synonymous and that because Piper did not have an agent in Dade County, it did not have a representative there. The trial court disagreed and concluded that the parts distributor and service center were representatives of Piper, establishing Dade County as a proper venue. Id. On appeal, the Third District agreed with the trial court and stated that there was sufficient evidence to support the denial of Piper’s motion to transfer venue. Id. at 548.

In Piper, the Third District applied principles of statutory construction and concluded that for the’ purposes of the venue statute, the terms “agent” and “representative” were not synonymous and had different meanings. Id. at 547-48. The court stated that “[t]he nature of the relationship that the plaintiff must establish as existing between Piper and its ‘representative’ for venue purposes is far different than the relationship that the plaintiff would have to demonstrate in order to hold Piper financially liable in tort for the actions of one of its ‘agents’ ” Id. at 548.

In the present case, the trial court was aware of the Piper decision and acknowledged that the facts here were very similar to the facts in Piper. However, the trial court concluded that Piper was wrongly decided and that the Third District’s interpretation of the venue statute was not the law. The trial court cited a Texas case, Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex.1998), which concluded that an automobile dealer’s presence in the county where suit was filed was insufficient to support venue in a lawsuit against an automobile manufacturer. The trial court also cited PricewaterhouseCoopers and Magical Cruise Co. v. Lohinski, 829 So.2d 925 (Fla. 3d DCA 2002), as support for its conclusion that the Piper decision was incorrect.

Breed argues that even if the trial court believed that Piper was incorrect in its analysis of the law, the trial court was obligated to follow Piper. We agree. Neither the cases that the trial court cited nor any cases that the parties cited provided authority for the trial court to disregard Piper. This court has previously stated that “a trial court in this district is obliged to follow the precedents of other district courts of appeal absent a controlling precedent of this court or the supreme court.” Chapman v. Pinellas County, 423 So.2d 578, 580 (Fla. 2d DCA 1982); see also In re N.Z.B., 779 So.2d 508, 510 (Fla. 2d DCA 2000). As a result, we agree that the trial court erred in disregarding Piper based on its view that Piper was wrongly decided and therefore not binding on it.

AlliedSignal argues that even if the trial court erred by not following Piper, the trial court’s analysis was correct and, because this court is not bound by Piper, we should reject the Piper rationale. Although the trial court cited several cases in support of its decision, the three cases that it and AlliedSignal most heavily relied on do not persuade us that Breed’s venue selection was improper or that Piper is incorrect.

In Ford Motor Co. v. Miles, 967 S.W.2d 377, 380 (Tex.1998), the court considered whether the presence of a Ford dealership in Rusk County was sufficient to support venue against Ford Motor Company, a foreign corporation with its regional headquarters and its principal place of business located in a different county. The court noted that under Texas law, “ ‘venue against a corporation may be predicated upon the presence in a county of either an agency — a more or less regular and permanent business operation — or a representative with broad powers to act for the corporation.’ ” Id. (quoting Ruiz v. Conoco, Inc., 868 S.W.2d 752, 759 (Tex.1993)). The court added that “[possession of broad power and discretion to act for the corporation is essential for both an agency and a representative.” Id. The court concluded that the presence of the dealership was insufficient for venue purposes because the dealership did not have broad power to act for Ford Motor Company. Id. at 381-82.

PricewaterhouseCoopers LLP v. Cedar Resources Inc., 761 So.2d 1131, 1134 (Fla. 2d DCA 1999), involved a question of where the cause of action accrued, not whether the defendant had an agent or representative in the county where suit was filed. In Magical Cruise Co. v. Lohinski, 829 So.2d 925 (Fla. 3d DCA 2002), Disney Cruise Lines was sued in Dade County. It filed a motion to dismiss for improper venue and filed affidavits asserting that it had no offices or agents in Dade County. The court noted that the plaintiff failed to present affidavits or other sworn' proof to rebut Disney’s affidavits. Id. at 926-27. Apart from the failure of proof, the court stated that no authority supported the plaintiffs argument “that venue is proper in a county where an agent only travels to the county to conduct business but does not reside in, have an office in or operate out of such a county.” Id. at 928.

Although Ford Motor Co. provides some support for AlliedSignal’s position, we are persuaded that the decision interprets the term “representative” more narrowly than we believe to be correct. The other cases cited by the trial court and AlliedSignal do not address the particular situation presented here. Other than Piper, the parties have not cited and we have not located any Florida case dealing specifically with the issue of what type of representative relationship is sufficient for venue purposes. Based on the circumstances of this ease, we conclude that the Piper analysis is correct and that Breed’s choice of venue was proper.

Black’s Law Dictionary 1302 (6th ed.1990), defines “representative” as “[a] person or thing that represents, or stands for, a number or class of persons or things, or is equivalent to, another person or thing.” Black’s Law Dictionary recognizes that when one represents another in a special capacity as an agent, the term “representative” may be interchangeable with the term “agent.” However, as noted in Piper, the terms “agent” and “representative” are not synonymous. Piper, 564 So.2d at 547.

Although the dealer contract between AlliedSignal and Cypress Aviation stated that Cypress Aviation was an- independent contractor and that it could not obligate AlliedSignal in any way, descriptive labels employed in agreements are not determinative as to the actual legal relationship between the parties. See Parker v. Domino’s Pizza, Inc., 629 So.2d 1026, 1027 (Fla. 4th DCA 1993); Nazworth v. Swire Fla., Inc., 486 So.2d 637, 638 (Fla. 1st DCA 1986).

The substantial and detailed obligations imposed on Cypress Aviation pursuant to its dealer contract with AlliedSignal are significant to our decision. Cypress Aviation was required to act in AlliedSignal’s best interest; it had to prominently identify itself as AlliedSignal’s authorized dealer; its facilities had to be satisfactory to AlliedSignal; it had to retain personnel specifically trained and qualified in Allied-Signal’s products, to AlliedSignal’s satisfaction; it had to actively promote sales of AlliedSignal’s products and meet the sales quotas established by AlliedSignal; and it was required to provide warranty service by performing maintenance, repairs, and modifications as authorized by AlliedSig-nal. Based on the nature of the relationship between AlliedSignal and Cypress Aviation, we conclude that Cypress Aviation was a representative of AlliedSignal in Polk County for purposes of venue.

Concerning the service center contracts, they imposed different obligations on the service centers than the dealer contract imposed on Cypress Aviation. There was some overlap in the agreements, such as the solicitation or promotion of sales on behalf of AlliedSignal. However, because we have determined that Cypress Aviation was AlliedSignal’s representative for the purpose of establishing venue in Polk County, we need not address whether we would reach the same result if we were considering only the relationship between AlliedSignal and the service centers. We also note that we do not have before us any issue of venue based on forum non conveniens. See § 47.122, Fla. Stat. (1999). Finally, we reject without discussion Breed’s alternative argument that the cause of action accrued in Polk County.

Accordingly, because Polk County is a proper venue for this litigation, we reverse the order granting AlliedSignal’s motion to transfer venue and remand for further proceedings consistent with this opinion.

SALCINES and KELLY, JJ„ Concur.

      . We note that after suit was filed, Breed sought bankruptcy protection and a trustee was empowered to prosecute Breed's claims against AlliedSignal. In addition, AlliedSig-nal merged with Honeywell, Inc., and, as a result of the merger, AlliedSignal adopted the Honeywell name. This opinion will refer to the appellant as Breed and to the appellee as AlliedSignal. We also note that the record uses both the Honeywell and AlliedSignal names; in order to avoid confusion, this opinion will only use the name “AlliedSignal" when referring to either company.


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    Robert F. GRIFFITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1732.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
   SALCINES, Judge.

Robert F. Griffith appeals the summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Griffith alleged a claim of newly discovered evidence, but he failed to allege that he could not have discovered the evidence through the exercise of due diligence or that withdrawal of his plea is necessary to prevent a manifest injustice. See Daniel v. State, 740 So.2d 1179 (Fla. 2d DCA 1999); Alkanan v. State, 786 So.2d 1275 (Fla. 4th DCA 2001). Therefore, we affirm the trial court’s order of denial without prejudice to Griffith to file a legally sufficient motion based on newly discovered evidence within thirty days of the issuance of the mandate in this appeal. See Alkanan, 786 So.2d at 1276.

Affirmed.

FULMER and WALLACE, JJ„ Concur.


author: VILLANTI, Judge.

text:
    Brian K. GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4453.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 15, 2004.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Brian K. Gray, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Brian Gray challenges his conviction and sentence for lewd and lascivious exhibition by a person over eighteen to a child under sixteen. We affirm but remand for correction of Gray’s sentencing scoresheet.

Gray’s scoresheet includes 3.6 points for a prior Georgia offense, which the State properly concedes constituted a “noncon-viction” under Florida Rule of Criminal Procedure 3.701(d)(5)(A). While we find the inclusion of these points on the score-sheet to be error, based on the transcript of the sentencing hearing, we find the error harmless. Accordingly, we affirm Gray’s conviction and sentence but remand for correction of his sentencing scoresheet.

Affirmed but remanded for correction of the sentencing scoresheet.

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


author: PER CURIAM.

text:
    Kevin O’NEILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2312.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
   PER CURIAM.

Kevin O’Neill appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he claimed that the trial court erred by awarding him only 203 days of jail credit. We reverse and remand for further consideration.

O’Neill alleged that he is entitled to 312 days of credit which he calculated by adding 92 days served at a restitution center and 220 days served in the county jail. In its order denying O’Neill’s motion, the trial court correctly concluded that O’Neill is not entitled to credit for the 92 days he served in a restitution center. See Self v. State, 504 So.2d 810 (Fla. 2d DCA 1987); Turner v. State, 395 So.2d 1242 (Fla. 1st DCA 1981). However, the trial court failed to address O’Neill’s claim that he served 220 days in the county jail. Therefore, we reverse and remand for the trial court to reconsider O’Neill’s claim for jail credit. See Crawford v. State, 823 So.2d 832 (Fla. 2d DCA 2002). If the trial court determines that summary denial is proper, it must set forth its rationale and attach any relevant portions of the record that refute O’Neill’s claim.

Affirmed in part, reversed in part, and remanded for further proceedings.

FULMER, DAVIS, and WALLACE, JJ., Concur.


author: KELLY, Judge.

text:
    Terry FREEZE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2021.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald and Jennifer R. Haymes, Assistant Attorneys General, Tampa, for Appellee.
   KELLY, Judge.

Terry Freeze appeals from the order finding him to be a sexually violent predator and committing him to the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999), the “Jimmy Ryce Act.” We affirm the commitment order based on Westerheide v. State, 831 So.2d 93 (Fla.2002). However, because Freeze argues that the trial court erred in failing to instruct the jury that the State was required to prove that he has serious difficulty in controlling his behavior, we certify the same question certified as one of great public importance in Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003):

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

NORTHCUTT and STRINGER, JJ„ concur.


text:
    Richard SCHWEBEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5227.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Richard Schwebel appeals his judgment for grand theft and sentence of five years’ imprisonment. We affirm his judgment and sentence. Because the State concedes the written judgment contains a $25 county court cost that the trial court previously ordered stricken, we remand only for correction of this scrivener’s error.

ALTENBERND, C.J., and COVINGTON and CANADY, JJ., Concur.


text:
    Japheth Samuel PETERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2630.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
   PER CURIAM.

Japheth Peters challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Peters presented a facially sufficient claim that his plea was involuntarily entered because it was entered in reliance on the misadvice of counsel, and the attachments to the trial court’s order do not conclusively refute Peters’ claim. We reverse and remand for further proceedings.

Peters was charged by information with capital sexual battery. The State alleged that between January 31, 2000, and February 7, 2000, Peters digitally penetrated the victim’s vagina. Peters entered a negotiated plea to the lesser included offense of attempted capital sexual battery in exchange for ten years’ imprisonment followed by twelve years’ probation. The guidelines sentencing range was 78 months to 30 years in prison. In his motion, Peters claimed that his plea was involuntary because it was engendered by the erroneous advice of counsel that there was no viable defense to the charge and that, if he went to trial, he would be found guilty and receive a sentence in the range of thirty years’ imprisonment to life imprisonment. In support of this claim, Peters alleged that there was no evidence that he digitally penetrated the victim’s vagina and that digital union with the vagina is not sufficient to establish the offense of capital sexual battery. He further alleged that trial counsel erroneously informed him that digital union with the vagina constitutes the offense of attempted capital sexual battery. Peters alleged that, but for counsel’s misadvise, he would not have pleaded to the offense of attempted capital sexual battery but would instead have proceeded to trial. Peters has presented a facially sufficient claim that his plea was involuntarily entered based on the misadvise of counsel. See Rankin v. State, No. 2D01-3990, 861 So.2d 1222, 2003 WL 22927249 (Fla. 2d DCA Dec.12, 2003) (concluding that where a defendant, in a 3.850 motion, claims that his plea was involuntarily entered based on the misadvise of counsel, he .must allege that he would not have entered the plea had he been given the correct information).

The trial court denied the claim finding that even though “the victim’s statement wavered, ■ evidence existed to support the elements of capital sexual battery.” The trial court’s reasoning is erroneous. Although the victim’s statement indicated that Peters may have committed the offense of capital sexual battery, Peters claimed that his plea was involuntarily entered because counsel erroneously advised him, among other things, that there was no viable defense to the charges of capital sexual battery/attempted capital sexual battery and that he therefore should accept the State’s offer to plead to attempted capital sexual battery. The attachments to the trial court’s order show that there was a viable defense to the offenses of capital sexual battery and attempted capital sexual battery.

Under our current statute, sexual battery can occur when the defendant’s mouth has ‘union’ with the victim’s ‘sexual organ,’ but the’ defendant’s finger must actually ‘penetrate’ the vagina. If the defendant’s finger does not penetrate the vagina, but only touches the vulva, the crime would appear to be a lewd and lascivious act.

Richards v. State, 738 So.2d 415, 416 (Fla. 2d DCA 1999). The Richards court held that “penetration requires some entry into the relevant part, however slight.” 738 So.2d at 418. The Richards court stated that, even if it were to concede that two definitions of vagina existed, it was “constrained to use the narrower, [We&sfer’s New World College Dictionary ] definition of vagina.” 738 So.2d at 419. “Webster’s New World College Dictionary ,.. defines vagina as: ‘in female mammals, the canal between the vulva and the uterus.’ See Webster’s New World College Dictionary 1472 (3d ed.1996).” Id.

In the present case, the attachments to the trial court’s order contained sworn statements that both Peters and the victim gave to the police. The victim gave the following statements:

Q. He, and he put his hand down uh ... and you said that he touched you. Was it on top of your skin or inside your private part?
A. Inside my (inaudible)
Q. Inside. And what part of his hand went inside your private part?
A. It was his fingers.
Q. Did they go inside of you?
A. No just like around.
Q. You know that if his, if his fingers were inside of you....
A. Yeah
Q. Was he moving them at that time or was it all staying still?
A. Kind of moving and kind of staying still.
Did he put his finger inside of you? O’
No. <!

Peters, in his statement to the police, admitted that he “opened [the victim] up” and rubbed her clitoris. He also stated: “And ... I know ... I don’t remember if I ... I didn’t penetrate her (inaudible).”

At best, the victim equivocated on whether Peters’ fingers went inside her “private part.” She certainly did not indicate that Peters’ finger or fingers penetrated her vagina, i.e., the canal between her vulva and her uterus. Webster’s New World College Dictionary defines clitoris as “a small sensitive erectile organ at the upper end of the vulva.” See Webster’s New World College Dictionary, 262 (3d ed.1996). If Peters’ illegal act was confined to opening the labia majora of the victim and rubbing her clitoris, then he did not commit the offense of capital sexual battery, but rather he committed a lewd and lascivious act. Thus, it would appear, from the attachments to the trial court’s order, that there was a viable defense to the charge of capital sexual battery.

“To establish an attempt to commit a specific crime, the State must prove a specific intent to commit that crime and an overt act toward the commission of the crime.” Neal v. State, 854 So.2d 666, 670 (Fla. 2d DCA 2003). To establish that Peters attempted to commit the charged offense of capital sexual battery, the State would have to prove that Peters intended to penetrate the canal between the victim’s vulva and her uterus with his finger or fingers and that he committed an overt act towards committing the crime. Based on the attachments to the trial court’s order, Peters could have presented a viable defense to the charge of attempted capital sexual battery on the basis that he had no specific intent to digitally penetrate the victim’s vagina and that he took no overt act towards doing so. Without any statements from Peters that he intended to digitally penetrate the victim’s vagina, it would be difficult for the State to prove an attempt in this case separate, from the actual commission of the charged offense.

Peters also alleged that counsel informed him that digital union with the vagina constituted the offense of attempted capital sexual battery. As this court explained in Richards, there is a difference between digital union with the vagina and digital penetration of the vagina. Aside from the fact that the attachments to the trial court’s order provide scant, if any, evidence of digital union with the vagina, digital union with the vagina does not constitute the offense of attempted capital sexual battery unless the State can prove that a defendant had the specific intent to penetrate the vagina.

Peters presented a facially sufficient claim that his plea was involuntarily entered based on the misadvise of counsel. The trial court erred when it summarily denied the claim based on the attachments to the trial court’s order. We reverse the order of the trial court and remand to the trial court to reconsider Peters’ claim in light of our opinion. If the trial court again summarily denies the claim, it shall attach those portions of the record which conclusively refute the claim. Otherwise, the trial court shall conduct an evidentiary hearing.

Reversed and remanded.

FULMER, CASANUEVA, and SILBERMAN, JJ., Concur. ,

      . A conviction for capital sexual battery carries a mandatory sentence of life imprisonment. See §§ 794.01 l(2)(a), 775.082(1), Fla. Stat. (1999). Attempted capital sexual battery is a first-degree felony punishable by up to thirty years in prison. See §§ 794.01 l(2)(a), 777.04(4)(b), 775.082(3)(b) Fla. Stat. (1999).

      . In his motion, Peters also presented a claim that counsel was ineffective for failing to investigate the case and for misadvising him regarding the elements of capital sexual battery and attempted capital sexual battery. However, this claim is subsumed by the claim that his plea was involuntarily entered, and we see no need to separately address it.

        .Richards was interpreting the definition of sexual battery under the 1991 statutes. The definition of sexual battery remains the same in the 1999 statutes.

      . Defined in Webster’s New World College Dictionary as “the outer folds of the skin of the vulva, one on either side.” Webster’s New World College Dictionary, 752 (3 ed.1996).

      . Peters, if he could do so truthfully, could have established that he only rubbed the victim's clitoris and did not penetrate or attempt to penetrate the victim’s vagina by so testifying at trial. Furthermore, if the State introduced his statements to the police into evidence at trial, they would also tend to establish that there was no digital penetration or attempted digital penetration of the vagina.


author: STRINGER, Judge.

text:
    SARASOTA COUNTY, a political subdivision of the State of Florida, Appellant, v. Fannie CURRY; Harvey G. Jandreau; Beverly I. Jandreau; Nationsbank f/k/a NCNB National Bank of Florida; South Trust Bank of Florida; Jeffrey W. Owen; Terri S. Owen; Sarasota County Board of County Commissioners; William J. Wisniewski; Margaret Wisniewski; John Kotkiewicz, Jr.; Margaret E. Kotkiewicz; Irene Barber, Faye Fortune; Larry Carpenter; Kaye Carpenter; Homeside Lending, Inc. f/k/a Barnett Mortgage Company f/k/a First Florida Bank, N.A.; Eleanor Ochotnicky; Lloyd P. Miller; Michael Kazimir; Julia D. Kazimir; Florida Power and Light Company; James Halleck Hoeland; Oscar A. Johnson, Jr., successor trustee; Lloyd P. Miller, trustee, Appellees.
    No. 2D03-2015.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.

      Jorge L. Fernandez, County Attorney, and Elizabeth M. Woodford, Assistant County Attorney, Sarasota, for Appellant.
    Michael A. Connolly of Taylor, Lawless and Singer, P.A., Sarasota, for Appellee Fannie Curry.
    No Appearance for Appellees Harvey G. Jandreau; Beverly I. Jandreau; Nations-bank f/k/a NCNB National Bank of Florida; South Trust Bank of Florida; Jeffrey W. Owen; Terri S. Owen; Sarasota County Board of County Commissioners; William J. Wisniewski; Margaret Wisniewski; John Kotkiewicz, Jr.; Margaret E. Kot-kiewicz; Irene Barber; Faye Fortune; Larry Carpenter; Kaye Carpenter; Homeside Lending, Inc. f/k/a Barnett Mortgage Company f/k/a First Florida Bank, N.A.; Eleanor Ochotnicky; Lloyd P. Miller; Michael Kazimir; Julia D. Kazi-mir; Florida Power and Light Company; James Halleek Hoeland; Oscar A. Johnson, Jr., successor trustee; Lloyd P. Miller, trustee.
   STRINGER, Judge.

Sarasota County seeks review of an award of attorney’s fees to Fannie Curry in this eminent domain action. Because the trial court abused its discretion in awarding the fees based on section 73.092(1), Florida Statutes (1995), we reverse.

In July 1996, Sarasota County brought an eminent domain proceeding to acquire numerous properties for a public project known as Albee Road Improvement. This appeal deals only with parcel 117A, the ownership of which is not ascertainable. Sarasota County named two potential landowners, Johnson and Miller, and a third potential landowner, Curry, intervened. Each of the three potential landowners retained separate counsel.

These three potential landowners all claimed an interest in the proceeds for parcel 117A, and each agreed to receive one-third of the good faith estimate of $20,550 that Sarasota County had deposited in the court registry in May 1997. In August 2002, Sarasota County served a joint offer of judgment of $30,025 on all three potential landowners, and all three potential landowners jointly accepted the offer.

A stipulated final judgment entered on October 7, 2002, jointly awarded all three potential landowners $30,025, which was $9475 in excess of the good faith estimate. The parties apportioned the excess amount among themselves. Johnson received a total of $14,691.66, and Curry and Miller each received a total of $7666.67.

Following entry of the stipulated final judgment, each of the three potential landowners filed separate motions for attorney’s fees and costs. The only fee at issue is that of attorney Connolly for his representation of Curry. The court awarded Curry attorney’s fees of $9900 pursuant to section 73.092(1).

Section 73.092(1) provides, “[T]he court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client.” In cases when the condemning authority does not make a written offer before the defendant hires an attorney, “benefits” are defined as the difference between the final judgment and the first written offer after an attorney is hired. § 73.092(l)(a). Attorney’s fees based on benefits up to $250,000 equal thirty-three percent of the benefits. § 73.092(l)(c)(l). Section 73.092(1) does not provide for the consideration of any factor other than the benefits to the client in awarding attorney’s fees. Dep’t of Transp. v. LaBelle Phoenix Corp., 696 So.2d 947, 948 (Fla. 2d DCA 1997).

In this case,- the award of attorney’s fees appears to be based on “benefits” calculated as the difference between the unapportioned stipulated final, judgment and an offer of zero. The good faith estimate does not, constitute a “written offer” under section 73.092(1). Pierpont v. Lee County, 710 So.2d 958, 960 (Fla.1998). The trial court declined to consider the offer of judgment as a “written offer” under section 73.092(1) because it was made so late in the proceedings. We review an award of attorney’s fees under section 73.092 for an abuse of discretion. Amerada Hess Corp. v. Dep’t of Transp., 788 So.2d 276, 277 (Fla. 4th DCA 2000).

While we share the court’s frustration with the late timing of Sarasota County’s offer of judgment, the offer of judgment clearly constitutes a “written offer” for purposes of section 73.092(1). Sarasota County argues that, if the offer of judgment constitutes a “written offer,” Curry is not entitled to attorney’s fees under section 73.092(1) because the “benefits,” or the difference between the stipulated final judgment and the offer of judgment, are $0. However, the benefits are $0 only as to all three potential landowners taken together. The record reflects that Curry actually received $7666.67 from the stipulated final judgment, but the record does not reflect how much of the $30,025 offer was intended for Curry. The benefits to Curry are thus impossible to ascertain, and the court abused its discretion in awarding Curry attorney’s fees based on benefits under section 73.092(1). Instead, the court should have based its attorney’s fee award on section 73.092(2). See Dep’t of Transp. v. Smithbilt Indus., Inc., 715 So.2d 963, 966-67 (Fla. 2d DCA 1998).

Section 73.092(2) provides factors for an attorney’s fee consideration “[i]n assessing attorney’s fees incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for.” A plain language reading of that subsection suggests that it would be inapplicable in this case because the underlying action was not a “supplemental proceeding.” See also LaBelle Phoenix Corp., 696 So.2d at 948 (holding that an eminent domain action that ended with a stipulated final judgment was not a “supplemental proceeding”). However, in Smithbilt, this court suggested that subsection (2) “should govern awards of attorneys’ fees in all eminent domain proceedings in which the condemning authority fails to make a written offer to settle the claim or which otherwise cannot be resolved using the benefits analysis in section (1).” 715 So.2d at 966-67. This is so because section 73.092 contains a “gap” by failing to provide a method for calculating attorney’s fees in cases in which the benefits analysis is not applicable and the proceeding is not a supplemental one. Id. at 966. Application of subsection (2) in those proceedings is necessary to give effect to the legislature’s intent that the landowner receive attorney’s fees under section 73.092 based on the landowner’s constitutional right to full compensation in eminent domain proceedings. Id.; see also City of N. Miami Beach v. Reed, 28 Fla. L. Weekly D2219, - So.2d -, 2003 WL 22187977 (Fla. 3d DCA Sept.24, 2003) (holding that section 73.092(2) should be applied to determine an attorney’s fee award in eminent domain proceedings when no offer is made by the condemning authority, thus making subsection (1) inapplicable).

Because it was impossible to measure the benefits to Curry in the underlying proceeding, the trial court abused its discretion in applying section 73.092(1), and we reverse and remand for reconsideration of attorney’s fees under section 73.092(2). On remand, Curry is not limited to the amount of fees requested in her motion for attorney’s fees.

Reversed and remanded.

SALCINES and WALLACE, JJ., concur.

      . The condemning authority's declaration of taking must include a "good faith estimate” of the value of the property based on a valid appraisal. § 74.031, Fla. Stat. (1995). If the court decides that the condemning authority is entitled to possession of the land before final judgment, it will order the condemning authority to deposit a sum not less than the good faith estimate of value into the court registry. § 74.051.

      . Even if the benefits were zero, it would be an abuse of discretion to apply subsection (1) when it would work to deny attorney's fees in contravention of the landowners' constitutional right-to full compensation. See, e.g., Pierpont v. Lee County, 710 So.2d 958, 961 n. 2 (Fla.1998) (noting that section 73.092 could be unconstitutional as applied if "the condemning authority could thwart an award of attorney’s fees by making its first offer of real value during the trial”); Teeter v. Dep’t of Transp., 713 So.2d 1090, 1092 (Fla. 5th DCA 1998) (Sharp, J., concurring specially) (stating that subsections (1) and (2) "seem to conflict with Florida constitutional requirements that a condemnee owner be justly compensated in taking cases, including attorneys fees”).

      . In 1999, the legislature added a statutory provision extending presuit negotiation requirements to all condemning authorities which appears to alleviate our concerns regarding the constitutional application of section 73.092. See ch. 99-385, § 57, Laws of Fla.; § 73.015, Fla. Stat. (1999).


author: THREADGILL, EDWARD F., Senior Judge.

text:
    C.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-192.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    James Marion Moorman, Public Defender, and- William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

C.W., a minor, appeals an adjudication of delinquency as an accessory after the fact to burglary and grand theft, alleging that the trial court could not find him guilty of that offense when he had been charged only with being a principal to the burglary and grand theft. The State correctly concedes error. -

A petition for delinquency was filed charging C.W. with burglary of a structure and grand theft. At trial, the State sought to have C.W. adjudicated delinquent on the theory that he was a principal to these offenses. Neither the State nor the defense suggested that it would be appropriate to find that C.W. was an accessory after the fact. However, following closing argument, the trial court found that C.W. was not guilty of the charged offenses but was an accessory after the fact to them. C.W.’s counsel later moved for rehearing, pointing out that C.W. had been convicted of an offense for which he had not been charged. The motion for rehearing was denied.

The Florida Supreme Court established in Ray v. State, 403 So.2d 956 (Fla.1981), that it is error to convict a defendant of a crime for which he has not been charged and which is not a lesser-included offense of a charged crime, although it also held that such error is not always fundamental. In the instant case, we need not consider the issue of fundamental error because we conclude that the motion for rehearing was sufficient to preserve this issue following a bench trial. See Nesbitt v. State, 819 So.2d 993, 994 n. 1 (Fla. 5th DCA 2002) (suggesting that bench trials limit the opportunity to object to “the trier of fact’s consideration of inappropriate lesser offenses not charged by the charging documents!,]” presumably referring to the absence of jury instructions and a verdict form). It is also noteworthy that the trial was concluded very shortly after the trial court announced its finding of guilt.

The dispositive issue in this case is whether the charge of being an accessory after the fact to burglary or grand theft was a lesser-included offense of those crimes. We conclude that the charge of being an accessory after the fact was not a lesser-included offense of the charges pleaded in the petition for delinquency. First, we note that a charge that a defendant is an accessory after the fact requires an allegation that the defendant rendered some form of assistance to an offender with the intent “that the offender avoids or escapes detection, arrest, trial[,] or punishment.” § 777.03, Fla. Stat. (2002). The petition for delinquency filed in this case, which recites only the required elements of burglary and grand theft, does not allege that C.W. offered any form of assistance to another or that he had the requisite intent. See D.L. v. State, 491 So.2d 1243, 1244 (Fla. 2d DCA 1986) (noting that an accusatory pleading can support a conviction only if it alleges “all of the necessary elements” of the offense for which a conviction was obtained). Additionally, we note that the Florida Supreme Court has characterized the crime of being an accessory after the fact as being “mutually exclusive” to the crime of being a principal to the same underlying offense. Staten v. State, 519 So.2d 622, 625 (Fla.1988).

Because C.W. was not charged with being an accessory after the fact, his conviction for that offense cannot stand. D.L., 491 So.2d at 1244. We therefore reverse his conviction and remand for discharge.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.


author: WHATLEY, Judge.

text:
    Leo Robert SCHOFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2406.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
   WHATLEY, Judge.

Leo Robert Schofield appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.

In 1988 Schofield was convicted of first-degree murder and sentenced to life in prison for the murder of his wife, Michelle. He filed a rule 3.853 motion seeking DNA testing of fingernail scrapings taken from his wife’s body as well as hair found on her body and in her ear. He alleged that the evidence was collected after the murder and that DNA testing has not been conducted oh the evidence. Maintaining his innocence, he claimed that identity- was a genuinely disputed issue at trial and that DNA testing of the evidence would exonerate him.

The trial court, finding that Schofield’s motion was facially sufficient, ordered the State tó show cause why an evidentiary hearing should not be granted. The State responded that DNA testing of the fingernail scrapings and hair would not exonerate Schofield and that DNA testing of the fingernail scrapings would be inconclusive due to the náturé of the evidence. The trial court agreed with the State’s response and incorporated it by reference in its denial of Schofield’s motion.

We believe that Schofield alleged a facially sufficient motion for DNA testing under rule 3.853(b). Specifically, Schofield sufficiently alleged that he would be exonerated by DNA testing of evidence as required by rule 3.853(b)(3). In his motion, Schofield alleged that he was convicted based on circumstantial evidence alone. He further claimed that defensive wounds on Michelle’s body indicated that she had been involved in a physical struggle. Schofield argued that .DNA testing of the hair and fingernail scrapings would show that a different person was in Michelle’s car and involved in the struggle with her. If DNA testing confirms Schofield’s allegations, the results would create a reasonable probability that Schofield would be acquitted because reasonable doubt would exist that Schofield committed the murder. See Riley v. State, 851 So.2d 811, 812 (Fla. 2d DCA 2003); Knigkten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).

The trial court relied on the State’s assertion that DNA testing would not exonerate Schofield, but it failed to attach any portions of the trial record or conduct an evidentiary hearing to determine this issue. Therefore, this court can rely only on the allegations made by Schofield and the State. See Riley, 851 So.2d at 812-13. Neither this court nor the trial court can consider the discrepancies between Scho-field’s and the State’s allegations without considering the trial transcript or conducting an evidentiary hearing. See id. at 813. Accordingly, we reverse and remand for further proceedings. On remand, if the trial court determines that the trial transcript or other record documents conclusively demonstrate that identity is not an issue or that Schofield would not be exonerated, the documents must be included in the record for appellate review. See id. at 813. If the record does not refute Scho-field’s claim, the trial court must conduct an evidentiary hearing. See id. at 813.

We also note that the trial court erred in relying on the State’s bare assertion that DNA testing of the evidence would be inconclusive. The State is not qualified to make such a factual determination. In addition, rule 3.853 is silent as to whether a claim for DNA testing may be denied if DNA testing of the evidence would be inconclusive. Rule 3.853 does not require a movant to allege that previously untested evidence would be conclusive, and it does not provide conclusiveness as a factor to be considered in determining whether a movant is entitled to DNA testing. Therefore, we conclude that the trial court should not have denied the motion on such a basis.

Reversed and remanded.

COVINGTON and VILLANTI, JJ., Concur.


text:
    Ed ROST, Appellant, v. Marvin BOWLING, Appellee.
    No. 2D03-271.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.

      Richard G. Groff of Dye, Deitrich, Prather, Petruff & St. Paul, P.L., Braden-ton, for Appellant.
    Stanley R. Swartz of Law Office of Stanley R. Swartz, Bradenton, for Appellee.
   SILBERMAN, Judge.

Ed Rost, the landlord, appeals a final judgment awarding damages to Marvin Bowling, the tenant, for wrongful eviction. Because the evidence does not support the award of damages to the tenant for the loss of his business, we reverse the final judgment in part. We affirm the trial court’s conclusion that the tenant owes to the landlord $4400 in unpaid rent.

In June 1998 the tenant rented commercial property from the landlord and operated an automotive repair business on the leased premises. In November 1998, after the tenant fell behind in paying rent, the landlord barred the tenant from the premises without notice or initiating eviction proceedings. The tenant filed suit and asserted several causes of action against the landlord, and the landlord responded with a counterclaim. The parties stipulated to the dismissal of several of the claims, and they proceeded to a nonjury trial on the tenant’s claims for wrongful eviction and conversion and the landlord’s counterclaim for unpaid rent.

The evidence reflects that the landlord barred the tenant from the premises. After about two weeks, he allowed the tenant to enter the premises to remove some tools and equipment. The tenant acknowledged that he removed certain items, but the landlord did not permit him to remove items that the landlord believed were owned by another person. The landlord testified that John Fedora, the tenant’s purported business partner, removed items that Fedora claimed as his own property. There was also testimony that some items were missing from the leased premises, and the trial court noted that the evidence was in conflict “as to ownership and value of the alleged missing items.” The trial court also stated that the tenant was unable to conduct an automotive repair business without his tools and equipment.

The trial court found that the tenant owed the landlord $4400 in unpaid rent; that as a result of the unlawful lockout by the landlord, the tenant “lost the ability to conduct an automotive repair business”; and that the tenant’s business was worth $50,000. Significantly, however, the trial court concluded that the tenant did not prove his claims for conversion or punitive damages. The trial court entered a final judgment in favor of the tenant in the net amount of $45,600.

The landlord argues that the evidence does not support the trial court’s conclusion that the tenant lost the ability to conduct his business as a result of the wrongful eviction and, therefore, that the trial court erred in awarding to the tenant the value of the business. Additionally, the landlord argues that the value of the tenant’s business was not the proper measure of damages to be awarded for the wrongful eviction. Based on the evidence that was presented, we agree that the award to the tenant must be reversed.

In a claim for wrongful eviction, a tenant may recover general damages consisting of the difference between the market value of the leasehold and the rent payable, as well as lost profits that can be determined with a reasonable degree of certainty. Ardell v. Milner, 166 So.2d 714, 716 (Fla. 3 DCA 1964); Young v. Cobbs, 83 So.2d 417, 419 (Fla.1955). In addition, a tenant may be able to recover damages “for losses that are the natural, direct, and necessary consequences of the breach when they are capable of being estimated by reliable data, and are such as should reasonably have been contemplated by the parties.” Moses v. Autuono, 56 Fla. 499, 47 So. 925, 927 (1908) (involving a claim against the landlord for damages for breach of a contract to lease land and tenements). Although Moses did not involve a wrongful eviction, plaintiffs in wrongful eviction actions have been permitted to recover special damages such as the cost of improvements to the leased property or the cost of renting substitute property. See Young, 83 So.2d at 419; Iglesia Bautista De “Renovacion Cristiana” v. Tamiami Baptist Church of Miami, Inc., 678 So.2d 1, 2 (Fla. 3d DCA 1996).

Here, the tenant acknowledged that he located another building where he could conduct his business. However, he asserted that he lost the ability to conduct his business at any location because the landlord converted his tools and equipment and wrongfully evicted him by locking him out of the leased premises. The trial court specifically rejected the tenant’s conversion claim, and that determination has not been challenged on appeal. Therefore, in order to affirm the award of damages, the record would have to demonstrate that the tenant’s loss of his ability to conduct an automotive repair business was a natural, direct, and necessary consequence of the landlord’s locking him out of the leased premises and denying him access to his tools and equipment for two weeks. See Moses, 47 So. at 927.

The key to the tenant’s claim that he could not conduct his business elsewhere was the conversion claim, which he lost. The tenant did not otherwise present evidence that the landlord’s conduct resulted in the total destruction of his business. The record further reflects that the tenant only sought to prove the value of his business, and he did not present evidence of other potentially recoverable damages such as lost profits, the difference between the market value of the leasehold and the rent, the cost of renting substitute property, or the cost and feasibility of obtaining replacement tools and equipment due to the lockout.

Accordingly, we reverse the final judgment and the award of damages to the tenant. Because the parties do not challenge the trial court’s finding that the tenant owes $4400 in unpaid rent to the landlord, we affirm that finding and remand for entry of a final judgment in favor of the landlord in the amount of $4400.

Affirmed in part, reversed in part, and remanded.

WHATLEY and STRINGER, JJ., Concur.

      . We note that because the tenant sought recovery for the entire value of his business and did not present evidence of other potentially recoverable damages, we are unable to remand this matter for the trial court to reconsider the award of damages or for entry of a reduced judgment in favor of the tenant.


author: HAWKES, J.

text:
    METRIC ENGINEERING, INC., Appellant, v. Ernest SMALL, individually etc., et al, Appellee.
    No. 1D03-3261.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.

      Michael D. West, Jaken E. Roane; Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for Appellant.
    B. Shannon Saunders; Cochran, Cherry, Givens, Smith, Lane & Taylor, P.C., Do-than, Alabama, for Appellee.
   HAWKES, J.

A mother and her two young children were killed in a construction zone when the car she was driving crossed the center line into oncoming traffic. Her husband, Ernest Small, obtained an order compelling discovery of photographs and measurements of the accident scene taken by Metric Engineering shortly after the accident. Metric Engineering seeks certiorari review of that order, arguing that the photographs and measurements are protected attorney work product and not discoverable. We grant the writ and quash the order.

Factual information or materials pertaining to the client’s case and prepared or gathered in connection with the client’s case, may qualify as protected attorney work product. See State v. Rabin, 495 So.2d 257 (Fla. 3rd DCA 1986); see also Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689 (Fla. 1st DCA 2001). The material does not need to actually be gathered by the attorney to be work product, but must be gathered in anticipation of litigation. See Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla. 4th DCA 1999). Discovery of this information or material can only be permitted if “the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(3).

After Metric Engineering objected to Small’s request for production of Metric’s photographs and measurements, Small filed a motion to compel. No sworn testimony or other evidence was taken at the subsequent hearing. The trial court made its ruling compelling discovery based on counsel’s ■ assertion that the photographs and measurements taken by the Florida Highway Patrol in their homicide report, and the photographs and measurements taken by another contractor, all of which were previously provided to Small, were inconsistent with each other, and that ■this inconsistency created a “need” for Metric’s photographs and measurements. Counsel’s bare assertions, unsupported by any evidence, are inadequate to show the “need” and “undue hardship” required for production of work product documents, and cannot justify compelled discovery. See Procter & Gamble Co., 462 So.2d at 1195; see also CSX Transp., Inc. v. Carpenter, 725 So.2d 434 (Fla. 2nd DCA 1999). To show “need,” a party must present testimony or evidence demonstrating the material requested is critical to the theory of the requestor’s case, or to some significant aspect of the case. Once the trial court knows the requestor’s theory as to why the items are needed and how the material could potentially help the requesting party’s case, the trial court should then conduct an in camera review. During this review, the trial court can evaluate whether the contested materials provide the requisite evidentiary value alleged by the requesting party, and determine whether the requested materials are substantially similar to materials already available. In most situations, mere inconsistency alone does not establish the requisite need.

In quashing this order we direct the trial court to hold an evidentiary hearing to allow Small an opportunity to.present his theory of need for the requested material, and to establish • an undue hardship exists in obtaining the information any other way. If Small establishes an evidentia-ry foundation for the materials, the trial court should then review the materials in camera to determine whether the material requested conforms with the theory presented. See generally, Fla. E. Coast Ry., L.L.C. v. Jones, 847 So.2d 1118 (Fla. 1st DCA 2003) (quashing order compelling discovery; noting trial court should have conducted in camera hearing to determine whether deposition questions elicited information protected by work product privilege).

PETITION FOR WRIT GRANTED; ORDER QUASHED; REMANDED FOR FURTHER PROCEEDINGS.

BROWNING, and POLSTON, JJ., concur.


author: WOLF, C.J.

text:
    Lamar W. MOORE, Appellant, v. STATE of Florida, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION f/k/a Department of Environmental Protection, Division of Law Enforcement (f/k/a Florida Marine Patrol), Appellee.
    No. 1D03-0698.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.

      Ronald A. Mowrey and Donna S. Big-gins, of Mowrey & Biggins, P.A., Tallahassee, for appellant.
    Charlie Crist, Attorney General; Denis Dean, Special Counsel, Tallahassee, for ap-pellee.
   WOLF, C.J.

Appellant, Lamar Moore, seeks review of an order granting the Fish and Wildlife Conservation Commission’s (FWC) motion for directed verdict at the close of plaintiffs evidence on two counts of negligence and negligent supervision and training. The only reason for the trial court’s order was its finding that no common law duty of care existed. We affirm without further discussion the directed verdict with regard to the negligent supervision and training claim, but conclude that the trial court erred as a matter of law in its determination to direct a verdict for the FWC as to the negligence claim.

On December 7, 1998, Lamar Moore, plaintiff below, was fishing off Port St. Joe with three other fishermen. While fishing in knee high water, a FWC officer approached, requested the fishermen to provide their fishing licenses and identification, and directed them to retrieve their fishing nets. While the officer checked licenses and the fishermen were retrieving their nets, appellant was stung on the left ankle by a stingray. The stingray barb pierced his ankle. Plaintiff offered evidence that one of the fishermen repeatedly asked the officer to take appellant ashore, but the officer refused to do so until the evidence was collected. Appellant eventually was transported ashore aboard the officer’s vessel. Once on shore, appellant received medical care. Appellant was later admitted to the hospital for a serious infection and spent three days in the hospital.

Duty of care is a question of law and as such our review is de novo. Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235, 236 (Fla. 1st DCA 2000). When reviewing an order for directed verdict, we like the trial court are required to evaluate the evidence in the light most favorable to the nonmoving party, and every reasonable inference must be found in the non-moving party’s favor. See Scott v. TPI Rests., Inc., 798 So.2d 907 (Fla. 5th DCA 2001).

A state agency cannot be liable in tort unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances. Henderson v. Bowden, 737 So.2d 532 (Fla.1999). Appellant argues that the FWC officer owed him a duty of care, citing Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). In Kaisner, the plaintiffs vehicle was struck by another vehicle after two police officers had pulled plaintiff over for an expired inspection sticker. Id. at 732. There, the Florida Supreme Court held that the plaintiff was sufficiently restrained of liberty to be in the “custody” or control of the police, and as a result the officers owed him a duty of care arising under the common law of Florida. Id. at 734.

In Kaisner, the Florida Supreme Court concluded that “custody” should not be narrowly construed:

The term ‘custody’ is defined as the detainer of a man’s person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. We thus conclude that “custody” need not consist of the formal act of an arrest, but can include any detention.

Id. at 734 (emphasis in original; citation omitted).

We find that there was testimony establishing that Moore was essentially “pulled over” and detained during his encounter with the FWC officer. Although the fishermen may not have technically been in custody for arrest purposes, appellant’s detainment can be viewed as “custody” as defined in Kaisner. Similar to the plaintiff in Kaisner, Moore and the other fishermen testified that they did not feel that they were free to leave. In fact, the officer still had their licenses and identifications. As in Kaisner, the only way appellant could have escaped the threat of further injury (the infection) would have been to disobey the officer’s instruction to remain until the nets were recovered, thus subjecting himself to immediate arrest and criminal charges. Thus, once appellant had been restrained of his liberty, he was in the “foreseeable zone of risk” described in Kaisner. Therefore a duty of care was owed to the appellant.

Once it is determined that a government defendant otherwise owes a duty of care to the plaintiff, the question of the applicability of sovereign immunity is raised. Henderson, 737 So.2d at 535. Discretionary policy-making or planning activities of governmental entities are immune from tort liability, although immunity from tort liability is waived for negligent activities that are operational and for which a common law duty of care exists. See Scott v. Dep’t of Transp., 752 So.2d 30 (Fla. 1st DCA 2000). Appellant’s argument is centered on the manner in which the FWC’s policies were implemented. This is an operational function and not subject to the sovereign immunity protections.

We also note that the trial court erred in excluding FWC’s General Order 02 from evidence. The trial court found General Order 02 to be inadmissible on relevancy grounds. The general order in question provides guidance for law enforcement personnel if a fellow officer or suspect is injured during an arrest; thus, General Order 02 is relevant as it specifically deals with a person who was injured while in custody, such as appellant. See, e.g., Lockwood v. Baptist Reg’l Health Servs., Inc., 541 So.2d 731 (Fla. 1st DCA 1989) (holding that a hospital’s internal policy manuals describing a hospital’s routine practice were relevant to patient’s allegation of negligence in the hospital’s application and maintenance of a traction device). On remand, the trial court should allow General Order 02 into evidence unless otherwise inadmissible under section 90.403, Florida Statutes.

Because we find, as a matter of law, that the FWC owed appellant a legal duty, we reverse and remand for a new trial on the count of negligence.

Reversed in part, affirmed in part.

ERVIN and PADOVANO, JJ„ concur.

      . FWC conceded at oral argument that it did have a duty of care, which was the only basis for the trial court directing the verdict. We reject appellee's contention that the trial court could have directed a verdict on the issues of breach and proximate cause because there was sufficient evidence to present the matter to the jury for their consideration.

      . Kaisner is also instructive on determining whether the officer's actions were operational and subject to tort liability, or discretionary in nature, and thus immune from liability. There, the Florida Supreme Court stated,
      Intervention of the courts in this case will not entangle them in fundamental questions of public policy or planning. It merely will require the courts to determine if the officers should have acted in a manner more consistent with the safety of the individuals involved.

        Kaisner, 543 So.2d at 737-38.


text:
    Josue RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3823.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2003.
    Josué Rodriguez, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jackson v. State, 847 So.2d 1038 (Fla. 5th DCA 2003); Dillon v. State, 841 So.2d 587 (Fla. 2d DCA 2003).

SHARP, W., THOMPSON and ORFINGER, JJ., concur.


text:
    Moustafa AHMED, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2102.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2003.

      James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Wilfred C. BUNBURY, Appellant, v. HOMESIDE LENDING, INC., Appellee.
    No. 5D03-1464.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2003.
    Latrice Basden-Clarke, Miramar, for Appellant.
    Susan Minor of Shapiro & Fishman LLP, Aventura, for Appellee.
   PER CURIAM.

AFFIRMED. See Provident National Bank v. Thunderbird Associates, 364 So.2d 790 (Fla. 1st DCA 1978); Tymber Skan Properties Ltd. v. Lutheran Mutual Life Ins. Co., 358 So.2d 1370 (Fla. 2d DCA 1978).

GRIFFIN, PLEUS and ORFINGER, JJ., concur.


text:
    Nakaya WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1441.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Nakaya Walker, Malone, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

PETERSON, GRIFFIN and MONACO, JJ., concur.


text:
    WEST MELBOURNE HEALTH CARE CENTER, Appellant, v. Phyllis W. DURHAM, etc., et al., Appellees.
    No. 5D02-3862.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2003.
    Christopher B. Hopkins and Michael P. Reitzell of Cole, Scott & Kissane, P.A., West Palm Beach, for Appellant.
    Steven R. Maher and Melissa H. Powers, of Maher, Guiley & Maher, P.A., Winter Park, for Appellees.
   PER CURIAM.

See Northport Health Services v. Estate of Raidoja, 851 So.2d 234 (Fla. 5th DCA 2003).

AFFIRMED.

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


author: MAY, J.

text:
    ELIZA STEPHENSON MEYER, Appellant, v. ROBERT C. THOMPSON, as Personal Representative of the Estate of John W. Davidson, Appellee.
    Nos. 4D01-400, 4D02-1032, 4D02-1035, 4D02-1053.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.

      John Beranek of Ausley & McMullen, Tallahassee, and Frederick M. Dahlmeier of Cromwell & Dahlmeier, North Palm Beach, for appellant.
    Ronald E. Crescenzo of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Con-nell, West Palm Beach, for appellee.
   MAY, J.

Litigation concerning the purchase of a duplex that had extensive termite damage brings this case to the court in multiple consolidated appeals. The purchaser appeals a final judgment and an order denying an additur. The seller cross-appeals. Three issues are raised: (1) the court’s denial of the motion for additur; (2) the instructions and verdict form that allowed the jury to consider comparative negligence; and on cross appeal, (3) the method by which the court considered the set-off issue. We reverse on the comparative negligence issue and affirm in all other respects.

In 1992, the seller and purchaser entered into a contract for sale of a 67-year old wooden duplex in Palm Beach. In January 2003, after discovering extensive termite and dry rot damage during the remodeling of the duplex, the purchaser filed a complaint against the seller alleging fraudulent concealment, breach of express warranty, and violation of the building code.

The seller asserted comparative negligence as an affirmative defense. Despite numerous attempts to have the defense stricken, the issue remained for consideration at trial. Over the purchaser’s objection, the court instructed the jury on comparative negligence and permitted the jury to consider the percentage of fault to be attributed to the seller, the purchaser, the real estate brokers, and the inspection company. The jury determined damages in the amount of $200,000, and equally apportioned fault amongst the purchaser, seller, and the brokers. The purchaser filed a motion for additur and for new trial. The seller moved for entry of a final judgment. Ultimately, the trial court entered an amended final judgment for one-third of the $200,000 awarded by the jury, plus interest, for a total of $132,230.26.

The purchaser argues that the trial court erred by allowing the jury to consider the comparative negligence issue. We agree and reverse. We have reviewed this issue de novo as it includes a pure question of law. Armstrong v. Harris, 773 So.2d 7 (Fla.2000).

In pleading his cause of action, the purchaser relied upon the theory of fraudulent concealment set forth in Johnson v. Davis, 480 So.2d 626 (Fla.1985), and breach of an express warranty. In Johnson, the Supreme Court of Florida held “that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.” Id. at 629. Wisely, the purchaser avoided pleading a claim for negligent misrepresentation.

The seller argues, however, that the “duty” imposed in Johnson evolves from the duty found in negligence claims and therefore comparative negligence should apply. Indeed, this court has noted that the “duty” to disclose established in Johnson is derived from the law of negligence. See Billian v. Mobil Corp., 710 So.2d 984 (Fla. 4th DCA 1998) (noting that the sellers’ state of mind is irrelevant to a claim of non-disclosure or concealment). However, our acknowledgment of that concept does not convert the purchaser’s claim of fraudulent concealment into a negligent misrepresentation claim.

Section 768.81(4)(a), Florida Statutes (2002) defines comparative fault and sets forth when the issue should be considered as follows:

This section applies to negligence cases. For purposes of this section, “negligence” includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. In determining whether a case falls within the term “negligence cases,” the court shall look to the substance of the action and not the conelu-sory terms used by the parties.

The facts in this case undisputedly revealed conduct far beyond that of negligence. The seller admitted knowledge of the termite and dry rot damage and had gone to great lengths to actively cover it up to avoid detection by a prospective purchaser. Thus, not only were there no allegations of negligence, the substance of this cause of action did not fall within the term “negligence.” This rendered the affirmative defense of comparative negligence inapplicable.

Because the trial court instructed the jury on comparative negligence and allowed the jury to apportion fault, we reverse. The trial court is directed to vacate the amended final judgment and enter a new judgment for the plaintiff in the amount of $200,000, the full amount determined by the jury, and to recalculate the interest based on this figure.

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

      . The purchaser settled separate litigation with various real estate brokers. The seller asked the jury to consider the liability of the brokers under Fabre v. Mann, 623 So.2d 1182 (Fla.1993), receded from in part on other grounds, Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). This court resolved the set-off of the broker's settlement, based on a preservation issue, in Thompson v. Meyer, 825 So.2d 404 (Fla. 4th DCA 2002) (unpublished table decision).

      . Numerous post-trial proceedings took place. The case history is confusing and irrelevant to the issue upon which we base our holding and therefore has not been included.


author: STONE, J.

text:
    COMMERCIAL SERVICE OF PERRY, INC., an Iowa Corporation, Appellant/cross-appellee, v. Patsy L. CAMPBELL also known as Patsy Campbell, a single woman, Eastern Savings Bank, and General Motors Acceptance Corporation, Appellees, v. Patsy L. Campbell also known as Patsy Campbell, a single woman, Cross-appellant.
    Nos. 4D02-1595, 4D02-1610.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.

      Steven L. Perry of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for appellant/cross-appellee.
    Robert Lee Dennis, Okeechobee, for Ap-pellee/cross-appellant-Patsy L. Campbell.
   STONE, J.

In consolidated cases, Commercial Services appeals a final order awarding attorney’s fees to Patsy L. Campbell, following the dismissal of three mortgage foreclosure proceedings, each involving the same parcel of real property. Campbell cross-appeals the adequacy of the attorney’s fees award.

The attorney’s fees award is part of an award of “costs,” pursuant to Florida Rule of Civil Procedure 1.420, following a dismissal for failure to prosecute. Initially, the first two foreclosure actions were voluntarily dismissed and the third was dismissed for failure to prosecute.

Campbell asserts that she is entitled to attorney’s fees as part of the award of costs based on certain provisions in notes and mortgages that were executed in the late 1970s. The notes and mortgages do not provide for payment of the mortgagor’s attorney’s fees, but only for fees that are incurred by the mortgagee. Further, the notes and mortgages were entered into in 1978, prior to the 1988 amendment to chapter 57, Florida Statutes, which provides for reciprocal treatment where there is a contract provision for one party to pay the other’s attorney’s fees. Because the notes and mortgages pre-date the reciprocal fees statute, that authority is not applicable here.

The trial court’s award is founded on its application of Wilson v. Rose Printing Co., 624 So.2d 257 (Fla.1993), where attorney’s fees were awarded as costs after the plaintiffs voluntary dismissal. There, an agreement provided that the prevailing party would be entitled to recover costs, including reasonable attorney’s fees.

In its order, the trial court explained that the foreclosure action involved two notes, one secured by a first mortgage and one by a second. The trial court pointed out that the first mortgage provided that if a suit was brought to collect on the note, “the Note holder shall be entitled to collect all reasonable costs and expenses of suit, including, but not limited to reasonable fees.” The court also concluded that the mortgage and notes reflected the parties’ intent to treat reasonable attorney’s fees as part of the taxable costs to be paid by the mortgagor if a suit was brought to collect the first note or if the note holder had accelerated payment of the second note.

Although the court recognized that the notes and mortgage pre-dated the effective date of section 57.105, the trial court determined that cases from both the Florida Supreme Court and this court provide that costs are recoverable under rule 1.420. See Wilson, 624 So.2d at 257, 258; see also Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So.2d 1114, 1119 (Fla. 4th DCA 1997).

Recognizing that neither of these cases involved an agreement which was similar to the agreement in the present case, where “the parties treated attorneys’ fees as taxable costs, but not payable by the party from which the fees were sought,” in awarding attorney’s fees, the trial court noted that in Sholkojf, this court quoted Wilson, as follows:

In Wilson, the supreme court made it evident that, in awards of costs under rule 1.420(d), “[w]e look to the agreement merely to define costs, not to determine the circumstances under which costs may be awarded.” 624 So.2d at 258. Rule 1.420(d) provides the matter for which the costs may be assessed, and the agreement here provides the definition of costs as including attorney’s fees. Therefore it is unnecessary to resort to the agreement for anything more than the definition of costs. As the parties have made clear in that agreement that costs includes fees, the trial court did not err in including attorney’s fees in the award of costs.

693 So.2d at 1118.

Based on its reading of Sholkojf and Wilson, the trial court concluded:

Although the agreements between the parties in the case at bar do not provide for payment of costs by the mortgagor, they do define “costs” to include attorney’s fees. Therefore, the Court concludes that pursuant to Florida Rule of Civil Procedure 1.420(d), as construed by Wilson and Sholkojf, the “costs” to be assessed in this action include Defendant CAMPBELL’S reasonable attorney’s fees in Case No. 87-298-CA, which was dismissed for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e).

The term “costs” is not generally construed to include attorney’s fees absent an express contractual provision that defines expenses to include fees except when a statute or contractual agreement defines costs to include attorney’s fees. Rose Printing Co. v. Wilson, 602 So.2d 600, 603 (Fla. 1st DCA 1992).

We have considered the cases upon which Campbell relies, but deem them distinguishable in that, although the cases explain that attorney’s fees may be recoverable as “costs” under rule 1.420, such fees were recoverable pursuant to an underlying contract or statute. In the present case, because the underlying mortgage contract does not provide for fees, she cannot recover them under rule 1.420.

Wilson does not support the proposition that there need not be any underlying contractual obligation to pay fees. Here, there is no contractual agreement for a reciprocal award of attorney’s fees. The parties to this note and mortgage did not intend that the attorney’s fees be awarded to anyone other than the note holder, Commercial Services.

This court has previously recognized that such one-sided contractual provisions are valid. See Petrulli v. Castellano, 412 So.2d 432, 433 (Fla. 4th DCA 1982). See also Personnel One, Inc. v. John Sommerer & Co., P.A., 564 So.2d 1217, 1218 (Fla. 3d DCA 1990)(holding where contract provides that the creditor, alone, would be entitled to fees if it prevailed, the contract did not entitle the debtor to fees after it prevailed where the contract pre-dated the amendment to section 57.105).

Therefore, the order awarding fees is reversed and we remand for entry of an amended costs order without an award for attorney’s fees.

KLEIN and TAYLOR, JJ., concur.

      . This proceeding was initially filed as a petition for writ of certiorari, but we treat it as a final appeal, applying Caufield v. Cantele, 837 So.2d 371 (Fla.2002).

      . Chapter 88-160, Laws of Florida, effective October 1, 1988, provides:
      If a contract contains a provision allowing attorney's fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.


text:
    Antwan JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-294.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.

      Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Jones appeals his conviction and sentence of sexual battery on a child under twelve years old. He asserts that the trial court erred by designating him a prison releasee reoffender pursuant to section 775.082(9)(a)(3), Florida Statutes. He contends doing so was in error because he was convicted of a “capital” offense rather than a life felony. Jones also argues that the mandatory life sentence without parole in a case of sexual battery is a violation of the state and federal constitutional prohibitions against cruel and unusual punishment. We affirm.

Section 794.011, Florida Statutes, provides that “[a] person 18 years of age or older who commits sexual battery upon a person less than 12 years of age commits a capital felony.” Capital felonies are punishable under section 775.082, Florida Statutes, which provides for punishment by death or life imprisonment without parole.

Under section 775.082(9), Florida Statutes, however, a defendant who qualifies as a prison releasee reoffender must be sentenced in accordance with the Prison Re-leasee Reoffender Act (“Act”). Under the Act, for a felony “punishable by life,” a defendant is subject to a mandatory sentence of life imprisonment.

It is clear that while a capital felony is one that is punishable by death, sexual battery is not punishable by death and is, therefore, no longer a capital crime in fact. See Batie v. State, 534 So.2d 694 (Fla.1988); Buford v. State, 403 So.2d 943, 951 (Fla.1981).

In Batie, the supreme court recognized that sexual battery upon a child eleven years or younger may still be classified as a “capital” crime if the legislature intended to classify it as such for specific reasons. Id. The Batie court found that “it was the intent of the legislature and this Court to deny postconviction bail to a person convicted of sexual battery upon a child of the age of eleven years or younger” and, for purposes of rule 3.691, sexual battery upon a child would qualify as a capital felony. Id. at 695.

More recently, in Huffman v. State, 813 So.2d 10 (Fla.2000), a defendant, who was convicted of capital sexual battery and sentenced to life imprisonment, sought post-conviction relief over twenty years after his conviction. While Florida Rule of Criminal Procedure 3.850 provides that such a motion must be filed no more than two years after final judgment in a non-capital case, the Huffman court recognized that “even if a felony is classified in the Florida Statutes as a capital offense, it is not ‘capital’ under case law unless it is subject to the death penalty.” Id. at 12. The court concluded that sexual battery of a child qualifies as a non-capital offense for purposes of the post-conviction time limits under rule 3.850. Id.

Here, there is no reason not to treat the statutory “capital” offense as “non-capital” for the purpose of applying section 775.082(9)(a). The legislative intent of the Act is to deter prison releasees from committing further serious crimes. It is inconceivable that the legislature did not intend capital sexual battery, as a “felony punishable by life,” to fall within the scope of the Act. Therefore, the trial court validly imposed sentence under section 775.082(9)(a).

We also reject Jones’ contention that his mandatory life sentence violates the federal and state constitutional prohibitions against cruel and unusual punishment. Merely because Jones’ sentence to life, without possibility of parole, is mandatory and severe, it does not follow that there is a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Phillips v. State, 807 So.2d 713 (Fla. 2d DCA 2002); Gibson v. State, 721 So.2d 363 (Fla. 2d DCA 1998). In Gibson, the court applied the “proportionality analysis” considered in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Under Solem, a proportionality analysis includes consideration of

(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Id. at 278,103 S.Ct. 3001.

Here, the gravity of the offense is undeniable as the victim was eleven years old. Further, even prior to the legislature’s elimination of the possibility of parole in 1995, Florida courts still found it was not cruel or unusual to impose a life sentence for the sexual battery of a child with a minimum of twenty-five years imprisonment prior to eligibility for parole. See Banks v. State, 342 So.2d 469 (Fla.1976). Therefore, it cannot be said that the legislature’s imposition of a mandatory life sentence without the possibility of parole for this offense is out of sync with Florida’s historic treatment of sexual battery of a child.

Although Jones asserts that, of the fifty states, only Louisiana requires a mandatory life sentence for capital sexual battery, many states impose a broad range of extensive punishment for sexual battery involving a child under a particular age. For example, in Texas, the penalty ranges from five years to 99 years, while in Mississippi and Rhode Island, a sentence ranges from twenty years to life imprisonment. See § 12.32(a), Tex. Penal Code; § 97 — 3—65(3)(c), Miss.Code; § 11-37-8.2 R.I. Gen. Laws. Accordingly, the treatment of the crime of capital sexual battery in other jurisdictions is not “so out of line as to render our legislature’s selected punishment unconstitutional.” Gibson, 721 So.2d at 369.

As to all other issues raised, we also find no reversible error or abuse of discretion.

KLEIN and TAYLOR, JJ., concur.

      . Because neither party addresses how the practical outcome would differ had Jones been sentenced to life imprisonment without tire possibility of parole as a capital felon, pursuant to section 794.011, rather than as a prison releasee reoffender, we decline to comment on any such distinction between the statutes.


text:
    TOP DOLLAR PAWN TOO, INC., and Advance Auto Body & Sales, Inc., Appellants, v. Carl KING, Appellee.
    No. 4D02-2963.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Norman Zimmerman of Zimmerman, Zimmerman & Micelli, P.A., Pompano Beach, for appellants.
    John E. Carter and Thomas A. Robes of Carter & Thomas, LLP, Boca Raton, for appellee.
   MAY, J.

Two defendants, Advance Auto Body & Sales, Inc. and Top Dollar Pawn Too, Inc., appeal the denial of their Amended Motion to Vacate, Dissolve and Set Aside a Temporary Injunction, Default Judgment and Final Judgment. They argue that the plaintiffs failure to properly serve them with the Complaint and Petition for Temporary Injunction and/or Temporary Restraining Order required the trial court to vacate the default judgment and temporary injunction. Secondarily, they argue that the trial court erred in entering an injunction because the plaintiff failed to establish irreparable harm. As to Advance, we agree that the plaintiff failed to properly serve the verified complaint and therefore reverse that part of the order. We find no error in the court’s ruling concerning the service on Top Dollar. We affirm in all other respects.

In July 2001, the plaintiff brought his 1960, model 62, 2-door convertible to a repair shop. He alleged that the repair shop breached its duty by entrusting the car to an unreliable third party and/or by failing to compensate the third party for repairs performed on the car. The “unreliable third party” is Advance.

Advance acquired title to the car by purchasing it at an auction after the plaintiff allegedly failed to pay the repair shop. Top Dollar was attempting to sell the car on behalf of Advance. When the plaintiff learned that Advance and Top Dollar were in possession of the vehicle, he filed the. verified complaint.

Both Advance and Top Dollar are corporations organized and doing business-under the laws of the State of Florida. Their principal place of business is in Broward County, Florida. Norman Zimmerman is the registered agent for Advance. Henry A. Peterson is the registered agent for Top Dollar.

The verified return of service on Advance stated that service was made upon “SHEILA GOLDMAN, as OFFICE MANAGER, AUTHORIZED' TO. ACCEPT ON BEHALF OF MR. ZIMMERMAN.” The verified return of service on Top Dollar indicated that Henry A. Peterson, Registered Agent for Top Dollar, was served. Neither Advance nor Top Dollar responded to the complaint.

On February 2, 2002, the trial court entered an ex parte temporary restraining order against Advance and Top Dollar. On March 25, 2002, the plaintiff obtained defaults against both of them. The trial court then entered a final judgment, quieting title to the car against Advance, Top Dollar, and the repair shop. The trial court found the plaintiff to be the sole owner of the car. The court authorized the sheriff to give possession of the car to the plaintiff and assessed joint and several liability for costs against Advance and Top Dollar.

On May 10, 2002,- Advance and Top Dollar served an amended motion to vacate. Following an evidentiary hearing, the trial court denied the amended motion. It is from this order that the defendants appeal.

Three principles control the outcome of this. case. First, the standard of review for an order denying a motion to vacate a default judgment is abuse of discretion. George v. Raddiffe, 753 So.2d 573 (Fla. 4th DCA 2000) (on rehearing). Second, statutes concerning service of process are to be strictly construed. York Communications, Inc. v. Furst Group, Inc., 724 So.2d 678 (Fla. 4th DCA 1999). Third, service on a domestic corporation may be effectuated only by complying with section 48.081, Florida Statutes (2002).

Section 48.081(3) provides that “process may be served on the agent designated by the corporation under s. 48.091. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s place of business.” § 48.081(3), Fla. Stat. (2002).

The verified return of service for Top Dollar indicated that Henry A. Peterson, registered agent, had been served. Since this service is in accordance with sections 48.081 and 48.091, the court did not abuse its discretion when it denied Top Dollar’s amended motion to vacate.

However, the verified return of service for Advance indicated that service was made on Sheila Goldman, an employee of the registered agent, Zimmerman. Section 48.081 does not provide for service upon an employee or agent of the registered agent. See York Communications, Inc., 724 So.2d at 679. Because the plaintiff failed to perfect service on Advance, the trial court abused its discretion when it failed to vacate the default against that entity. Consequently, the judgment and temporary injunction as to Advance must also be vacated.

We find no merit in the second issue raised concerning whether the plaintiff established irreparable harm to warrant the issuance of the ex parte temporary restraining order against Top Dollar. As this court held in Schiller v. Miller, 621 So.2d 481 (Fla. 4th DCA 1993), a trial court’s findings when supported by the evidence will not be disturbed absent an abuse of discretion. We find no abuse of discretion in the court’s findings on this issue. Thus, we hold there is no error in the issuance of the temporary restraining order as to Top Dollar. The case is reversed in part, affirmed in part, and remanded to the trial court for further proceedings consistent with this opinion.

GUNTHER and WARNER, JJ., concur.

      . Section 48.091, Florida Statutes (2002), establishes the responsibility of Florida corporations to designate a registered agent and specifies the requirements for the office of a registered agent.


text:
    Quinn CROSBY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-4965, 4D02-4966.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Rehearing Denied Jan. 23, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
    WARNER, GROSS and HAZOURI, JJ., concur.
   PER CURIAM.

Affirmed. See Palma v. State, 830 So.2d 201 (Fla. 5th DCA 2002).


text:
    James C. MERRILL, III, Appellant, v. Roxie MERRILL, etc., et al., Appellees.
    No. 3D03-2026.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Hall, David and Joseph; and Andrew Hall, Miami; and Julian H. Kreeger, Miami, for appellant.
    Mark A. Kamilar, Coconut Grove, for appellees.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Vargas v. Vargas, 771 So.2d 594, 595 (Fla. 3d DCA 2000)(a trial court has wide discretion to either grant, deny, dissolve, or modify a temporary injunction, and an appellate court will not reverse the issuance of the injunction absent an abuse of discretion).