text:
    Emmanuel SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1076.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2004.
    Rehearing Denied June 14, 2004.

      Emmanuel Smith, Avon Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Aviles v. State, 794 So.2d 734 (Fla. 5th DCA 2001); Mathis v. State, 738 So.2d 414 (Fla. 5th DCA), rev. denied, 751 So.2d 51 (Fla.1999).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VERZURA CONSTRUCTION, INC., etc., Appellant, v. OJITO AND ASSOCIATES, INC., etc., et al., Appellees.
    No. 3D03-2346.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Kluger, Peretz, Kaplan & Berlin, and Andrew P. Gold and Dianne 0. Fischer, Miami, for appellant.
    Daniels, Kashtan, Downs, Robertson & Magathan, and Madelyn Simon Lozano, Miami, for appellees.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

As the appellee, Ojito and Associates, Inc. [OAI], properly concedes, the trial court lacked jurisdiction to rule on its motion for summary judgment where OAI had been dropped as a party. See Sas v. Postman, 687 So.2d 54 (Fla. 3d DCA 1997). Therefore, we reverse the order granting OAI’s motion for summary judgment.

Reversed.


text:
    KEYBANK NATIONAL ASSOCIATION, Appellant, v. INTERNATIONAL FINANCE BANK, Appellee.
    No. 3D03-144.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Holland & Knight and Lucinda A. Hof-mann and Barbara M. Arco, for appellant.
    Heller & Chames; Jay M. Levy, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Keybank National Association appeals an award of attorney’s fees and costs. We reverse because we have this date reversed the underlying judgment on which the attorney’s fees and cost awards were based. See Keybank Nat’l Ass’n v. International Fin. Bank, 874 So.2d 664 (Fla. 3d DCA2004.).


author: BROWNING, J.

text:
    David RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3590.
    District Court of Appeal of Florida, First District.
    May 18, 2004.

      Nancy A. Daniels, Public Defender; and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

David Richardson (Appellant) appeals several evidentiary rulings and sentencing decisions made by the trial court. Finding prejudicial error in the court’s allowing into evidence the company director of operation’s hearsay testimony regarding the contents of purported records that were never admitted into evidence, we reverse the conviction in Count One for robbery with a firearm. We affirm Appellant’s convictions and sentences for false imprisonment and for battery. Our reversal of the conviction in Count One moots the sentencing issues.

In Count One, the information charged Appellant with the robbery of Estelle Sanders, during the course of which Appellant allegedly took approximately $50.00 in currency belonging to the Tom Thumb convenience store where the victim worked as the assistant manager, and where Appellant allegedly “carried and actually possessed a firearm, to-wit: a pistol” during the incident, contrary to sections 812.13(2)(a) and 775.087(2), Florida Statutes (2001). Count Two charged that Appellant “did unlawfully and forcibly, by threatf,] or secretly! ] confine, abduct, or imprison” Ms. Sanders “against her will, and without lawful authority, with intent to commit or facilitate the commission of a felony, to-wit: armed robbery” at the same convenience store, and during the incident “carried, displayed, used, threatened or attempted to use or possessed a weapon, to-wit: a revolver,” contrary to sections 787.01(l)(a) and 775.087, Florida Statutes (2001). Count Three charged a battery upon Ms. Sanders, and Count Four charged petit theft of United States currency of a value of less than $300.00 from the same store. The State argued a principal theory and successfully requested that a principal instruction be given to the jury.

Admissibility of Testimony Regarding Amount of Cash Taken

Ms. Sanders testified that around 6:00 A.M. on the day of the incident, she was preparing to open the Tom Thumb convenience store in Escambia County. She said the cash register had money in it, typically less than $50.00. After Ms. Sanders unlocked the doors and went behind the store counter, a man (whom she subsequently identified in a photo layout and in court as James Richardson, who is not related to Appellant) carrying a gun entered the store and ran behind the counter, startling her, while a second man (whom she subsequently identified in a photo layout and in court as Appellant) held his shirt up as if to hide his identity and locked the store’s front door. According to Ms. Sanders’ testimony, after the gun was pointed at her face, she was handcuffed, taken to a separate room in the back of the store, and was stripped of her clothes and touched inappropriately and non-consensually. The victim said that she did not know what was going on in the other parts of the store while she was being restrained and moved into the back room. Ms. Sanders testified that she did not look, she was not told, and she did not know whether the money was still in the cash register after the incident.

Another witness for the State, Ms. Robbie Cartledge, testified that she was the Director of Operations for the Tom Thumb Food Stores office in Crestview. She identified herself as the stores’ custodian of records. The witness testified that in her capacity as operations manager, she had an opportunity to analyze the dollar value of the loss. When the prosecutor asked what was the dollar amount taken from the register, defense counsel objected on the basis of “hearsay.” The court overruled the objection without discussion. Ms. Cartledge then testified that $110.00 was taken. She stated that “we” normally knew what the money count was at the beginning of the day and then looked at the money count at the day’s end. She testified that when a “situation” like the episode in question occurs, the store is closed down to determine exactly the beginning and ending amounts. After the closing of the store after the incident, the district advisor and the auditor, not Ms. Cartledge personally, checked the amount of the loss. Neither the district advisor nor the auditor testified.

The standard of review for the admissibility of evidence is abuse of discretion. See Reyner v. State, 745 So.2d 1071 (Fla. 1st DCA 1999). Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented first to the trial court. See Steinhorst v. State, 412 So.2d 332 (Fla.1982). At the trial, defense counsel objected on the ground that the testimony concerning the amount of cash taken from the store was “hearsay.” On appeal, Appellant contends that the testimony is inadmissible under the “business records” exception to the hearsay rule, section 90.803(6)(a), Florida Statutes (2001), because the purported custodian of records never testified that she was the actual custodian of the records on which the loss analysis was based, nor were the records identified, shown to be kept in the regular course of business, or offered into evidence. The State argues that because Appellant failed to raise this specific ground for objection in the trial court, it is not preserved for appellate review. See Tillman v. State, 471 So.2d 32 (Fla.1985); Filan v. State, 768 So.2d 1100 (Fla. 4th DCA 2000); Jackson v. State, 738 So.2d 382 (Fla. 4th DCA 1999). Specifically, the State contends that Appellant’s objection was neither “specific” within the meaning of section 90.104(l)(a), Florida Statutes (2001); nor “sufficiently precise,” as required by section 924.051(l)(b), Florida Statutes (2001), to be preserved. In response, Appellant correctly cites. Andrews v. State, 261 So.2d 497 (Fla.1972), for the proposition that an objection to a question on hearsay grounds is sufficient to preserve for appellate review the failure of the proponent of the testimony to lay a proper predicate. Acknowledging that this issue is properly before us pursuant to Andrews, we conclude that the trial court abused its discretion in admitting Ms. Cartledge’s testimony regarding certain purported business records that were not admitted into evidence. See Thompson v. State, 705 So.2d 1046 (Fla. 4th DCA 1998).

The facts in Thompson warrant close examination. The defendant in Thompson was charged with stealing a box of sneakers from a shipment that General Parcel Service (GPS) was transporting from a Woolworth store to a Foot Locker store. The shipment was sent via truck directly from GPS’ Orlando terminal to its Riviera Beach terminal (where ' the defendant worked), where the "freight was to be moved to smaller trucks for local delivery. A co-employee observed the defendant trying to load a box (that appeared to be from the Foot Locker shipment) into the trunk of the defendant’s own vehicle. When a supervisor asked the defendant to submit to a search of the trunk of the vehicle, the defendant refused and drove off. Subsequently, the supervisor conducted an inventory check by comparing the Foot Locker shipment to the Woolworth contract for the shipment of goods (the “bill of lading”). Before the merchandise left Orlando, the terminal verified that the shipment matched the bill of lading regarding the stated number of boxes; each box was scanned into the Orlando computer as it was loaded onto the truck for transport to Riviera Beach. The inventory audit disclosed that three boxes listed on the bill of lading were now missing. Two of the missing boxes were found in a vehicle belonging to another Riviera Beach employee of GPS who had been working with the defendant on the morning in question. The defendant was believed to have stolen the third box, which was never recovered. See id. at 1047. At the trial, the State never attempted to introduce the bill of lading into evidence. Instead, the prosecution had the GPS supervisor and another witness testify to the contents of the bill of lading. Over objection, these two witnesses were allowed to testify, respectively, that after the reported theft, the quantity of boxes designated on the bill of lading differed from the actual number of boxes in GPS’ possession, and that the missing goods’ value (as noted by Woolworth on its bill of lading) was $935.88. See id. at 1047-48.

Noting that the business-records exception to the hearsay rule permits the admission of “[a] memorandum, report, record, or data compilation,” the district court further noted that section 90.803(6)(a), Florida Statutes, “does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.” Id. at 1048 (emph. in orig.). Accordingly, it was error for the trial court to present such testimony. Because the bill of lading was not introduced into evidence, the district court deemed it unnecessary to decide whether the GPS witnesses could have laid a proper foundation for its admission. See id. However, “[b]ecause the testimony concerning the bill of lading was the primary evidence of the fact of a theft and the sole evidence of the value of the missing goods,” the appellate court concluded that the erroneous admission of the testimony was not harmless beyond a reasonable doubt under section 924.051(7), Florida Statutes. Id. The conviction was reversed and remanded for a new trial. See id.

Similarly, during Appellant’s trial, Ms. Cartledge was allowed to testify, over objection, about the contents of a record (based on information from someone else) that was never introduced into evidence. A store surveillance videotape of the incident was admitted into evidence and shown to the jury. Although the grainy picture on the videotape showed Appellant behind the cashier’s counter appearing to place something into a plastic bag, Ms. Cartledge’s testimony was the primary evidence that Appellant took money from the store, and was the only evidence of the amount of the theft. Given these factual circumstances in the case, we are unable to conclude that the erroneous admission of Ms. Cartledge’s testimony was harmless beyond a reasonable doubt. Accordingly, we reverse the conviction for robbery with a firearm and remand for a new trial on that count.

Denial of Motion for JOA in Count Two

After the State rested its case, Appellant moved for a JOA on the armed kidnapping count on the grounds that the evidence showed only that the victim was handcuffed and that Appellant’s acts were merely incidental to whatever other crimes may have been committed in the course of the episode at the convenience store. The relevant statute states that “ ‘kidnapping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to,” inter alia, “[cjommit or facilitate commission of any felony” or “[i]nflict bodily harm upon or to terrorize the victim or another person.” § 787.01(l)(a)2. & 3., Fla. Stat. (2001). False imprisonment is a lesser-included offense of kidnapping. “The term ‘false imprisonment’ means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” § 787.02(l)(a), Fla. Stat. (2001). In cases like Appellant’s, where kidnapping or false imprisonment have been charged in addition to other crimes, it is appropriate to apply the test set forth in Faison v. State, 426 So.2d 963 (Fla.1983), to avoid literally construing the two statutes so as to turn any forcible felony into another criminal offense. See, e.g., Berry v. State, 668 So.2d 967, 969 (Fla.1996); Rohan v. State, 696 So.2d 901 (Fla. 4th DCA 1997). In Faison, 426 So.2d at 965, the Supreme Court of Florida adopted the following test enunciated in State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976):

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a)Must not be slight, inconsequential and merely incidental to the other crime;
(b)Must not be of the kind inherent in the nature of the other crime; and
(c)Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

All three prongs of Faison must be satisfied to sustain a conviction of kidnapping or false imprisonment. See Cathcart v. State, 643 So.2d 702, 703 (Fla. 4th DCA 1994). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, then sufficient evidence exists to sustain a conviction. See Banks v. State, 732 So.2d 1065 (Fla.1999).

In the present case, Ms. Sanders testified that the armed man pointed a gun at her in the main store area and handcuffed her hands behind her back. Appellant had followed the gunman into the store, served as the apparent lookout, and locked the front doors. As the gunman restrained the victim, took her back to the store’s freezer room, removed her clothes, and touched her inappropriately, Appellant ran in from the main store area and asked what the “noise” was. According to Ms. Sanders, the cash register drawer had a sound alarm that went off if the drawer was left open beyond a certain amount of time, as well as a silent alarm that alerted the security company and the sheriffs department. The jury watched the grainy surveillance videotape that depicted Appellant doing something in front of the cash register.

In moving for a JOA, Appellant admitted all these facts, as well as every conclusion favorable to the State that a jury might fairly and reasonably infer from the evidence. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974). Applying the first prong of the Faison test, we conclude that handcuffing the victim at gunpoint in the front part of the store and forcing her into the walk-in cooler room was not a “slight, inconsequential and merely incidental” movement or restraint. Regarding the second prong, we determine that confining the victim in the store’s freezer was not an act “inherent in the nature of the other crime,” armed robbery. Under the theory of the case presented by the State, Appellant and his cohort completed the robbery once they took money from the cash register. During the course of the offense, Ms. Sanders was alone and offered no resistance. Under these circumstances, the robbers did not have to confine the victim in order to execute the purported robbery. As to the third prong, we note that as soon as the robbers allegedly retrieved the cash from the register, they could have run away without handcuffing the victim or forcing her to go from behind the counter to the back room, where her clothing was removed and she was touched inappropriately. Confining the victim was not incidental or inherent in the armed robbery; rather, the confinement in that manner facilitated the robbers’ flight from the crime scene. Thus, the movement or confinement had “some significance independent of the other crime,” for it made it easier to commit the other offense and substantially lessened the risk of quick detection. Faison, 426 So.2d at 965; Ferguson v. State, 533 So.2d 763 (Fla.1988). The evidence belies Appellant’s contention that the victim was not immobilized because her legs and feet were not bound. Ms. Sanders testified that her movement was restricted, such that she was unable to reach the telephone, because her hands were cuffed behind her. Because a jury question was presented, it was proper for the trial court to deny the motion for JOA in Count Two.

The conviction in Count One is REVERSED and the case REMANDED for a new trial on that count. The convictions and sentences in Counts Two and Three are AFFIRMED.

BARFIELD and WEBSTER, JJ., concur.


text:
    Robert S. HAYES, Petitioner, v. Monica DAVID, Florida Parole Commission, et al., Respondents.
    No. 1D03-4121.
    District Court of Appeal of Florida, First District.
    May 18, 2004.

      Robert S. Hayes, petitioner, pro se.
    Rosa Carson, Acting General Counsel, and Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee; Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee.
   PER CURIAM.

Robert S. Hayes seeks certiorari review of an order of the circuit court denying his petition for writ of habeas corpus. In that petition, Hayes argued that he was improperly subjected to conditional release supervision upon his release from prison, and that as a result,, his return to prison based on the Florida Parole Commission’s determination that he had violated the terms of his supervision was. unlawful. We agree with Hayes that the Parole Commission acted without statutory authority when it subjected him to conditional release supervision, and that the circuit court departed from the essential requirements of law when it concluded otherwise.

Although our scope of review is narrow, certiorari will lie to correct an erroneous determination that an inmate is subject to the conditional release program. See, e.g., Jongewaard v. State, 824 So.2d 1009 (Fla. 5th DCA 2002); Gove v. Florida Parole Commission, 816 So.2d 1150 (Fla. 1st DCA 2002). As it is relevant here, section 947.1405(2)(a), Florida Statutes, provides that conditional release is required for any inmate who commits a qualifying offense “and who has served at least one prior felony commitment at a state or federal correctional institution.” It is undisputed that Hayes was serving a sentence for a qualifying offense and that he was previously convicted of a felony in Massachusetts, but as he argues, he did not serve his prior felony commitment at a state or federal correctional institution, as is required in order to be statutorily eligible for conditional release supervision.

In determining that Hayes had a “prior felony commitment” and thus was subject to conditional release, the Parole Commission relied on a 1981 Massachusetts conviction for breaking and entering. Under Massachusetts law, the offense committed by Hayes was punishable by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years. Although a state prison sentence was statutorily authorized, Hayes was sentenced to a term of two years in a house of correction, which under the statutory law of Massachusetts is a county facility. Indeed, the distinction between a sentence to state prison and one to a county house of correction is clearly recognized in Massachusetts case law. See, e.g., Commonwealth v. Gagnon, 387 Mass. 567, 441 N.E.2d 753 (1982); Sheriff of Middlesex County v. Commissioner of Correction, 383 Mass. 631, 421 N.E.2d 75 (1981).

As we read section 947.1405(2)(a), the requirement that an inmate’s prior felony commitment be to a state or federal correctional institution is unambiguous. One of the fundamental rules of statutory construction is that when the language under review is clear and unambiguous, it must be given its plain and ordinary meaning. See Holly v. Auld, 450 So.2d 217 (Fla.1984). In such a case, there is no occasion to resort to other rules of statutory construction. See McLaughlin v. State, 721 So.2d 1170 (Fla.1998).

On the basis of the foregoing, we conclude that the circuit court should have accorded section 947.1405(2)(a) its plain meaning and thus found that because Hayes had not served his prior felony commitment at a state or federal correctional institution, the Parole Commission was without statutory authority to subject him to conditional release supervision. Accordingly, we grant the petition for writ of certiorari, quash the circuit court’s order, and remand with instructions to order that Hayes be immediately released from the custody of the Department of Corrections.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Rebecca INGRAM, W. Rogers Ingram, and Sharon Ingram, Appellants, v. Edward G. WYLIE; Florida Department of Education; et al., Appellees.
    No. 1D03-2800.
    District Court of Appeal of Florida, First District.
    May 18, 2004.

      Ronald G. Meyer and Mary F. Aspros of Meyer and Brooks, P.A., Tallahassee, for Appellants.
    Charles J. Crist, Jr., Attorney General, and Pamela Lutton-Shields, Senior Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

We have before us an appeal of an order granting Appellee Department of Education’s (DOE) motion to dismiss based on the doctrine of sovereign immunity. Appellants allege that DOE negligently reissued Appellee Wylie’s teaching certificate, resulting in Wylie sexually taking advantage of Appellant Rebecca Ingram. We reverse and remand.

On appeal of the granting of a motion to dismiss, we must look solely at the allegations contained in the Amended Complaint. Appellants allege that in 1988, DOE permanently revoked Wylie’s teaching certificate based upon a finding that he impregnated a minor student while employed as a teacher in Polk County. Three years before his certificate was permanently revoked, DOE received a report that Wylie had allegedly been romantically involved with a different minor female student.

Appellants also claim that in 1994 Wylie applied for a temporary teaching certificate, which DOE granted. In 1996, he became fully certified. During the 1998-1999 school year, when Appellant Rebecca Ingram was 15 and 16 years old, she was a student in Wylie’s high school class in Pinellas County. Wylie had a sexual relationship with Rebecca when she was 16 years old.

DOE cannot be liable in tort unless a common law or statutory duty of care existed that would have applied to an individual under similar circumstances. Moore v. State, Fla. Fish and Wildlife Conservation Comm’n, 861 So.2d 1251, 1253 (Fla. 1st DCA 2003). Appellants claim in their Amended Complaint that DOE knew or should have known of Wylie’s history of inappropriate sexual relationships with minor female students, and that his teaching certificate had been permanently revoked. Consequently, according to Appellants, DOE breached its duty to protect the interests of students and parents by reissuing Wylie’s teaching certificate, thereby creating a known dangerous condition, unknown to Appellants. Further, Appellants claim that DOE breached its duty to warn Appellants or protect them from Wylie, a known danger to minor female students.

As such, Appellants claim that DOE breached a common law duty of care. In Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985), the Florida Supreme Court clarified the concept of governmental tort liability, labeling governmental functions and activities into four categories: (I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens. Id. at 919.

Under category IV, the Court held that providing professional, educational, and general services for the health and welfare of citizens “is distinguishable from the discretionary power to enforce compliance with laws passed under the police power of this state” because these services, including educational services, “are performed by private persons as well as governmental entities, and common law duties of care clearly exist.” Id. at 921. Hence, we hold that DOE had a common law duty to Appellants to protect them from Wylie.

Since a common law duty of care existed, we necessarily reach the issue of whether DOE is protected by sovereign immunity. Moore, 861 So.2d at 1253. Discretionary policy-making or planning activities of governmental entities remain immune from tort liability. However, immunity from tort liability is waived for negligent activities that are operational and for which a common law or statutory duty of care exists. Scott v. Fla. Dep’t of Transp., 752 So.2d 30, 32 (Fla. 1st DCA 2000). At issue is the reissuance of Wylie’s teaching certificate. DOE was alleged to be negligent in reissuing the teaching certificate, having previously permanently revoked Wylie’s teaching privileges. This alleged negligence was caused by the manner in which DOE’s policies were implemented and is not subject to sovereign immunity protection. Moore, 861 So.2d at 1253-1254.

We hold that DOE is not protected by sovereign immunity and, therefore, Appel-lees’ motion to dismiss was improperly granted.

REVERSED and REMANDED for further proceedings.

ERVIN and BOOTH, JJ„ and SMITH, LARRY G., Senior Judge, CONCUR.

      . This case does not involve a permitting issue under category I; instead, it involves the negligent reissuing of a teaching certificate.


text:
    Jerry GRAY, Appellant, v. D & J INDUSTRIES, INC., Appellee.
    No. 3D03-766.
    District Court of Appeal of Florida, Third District.
    May 19, 2004.
    Rehearing Denied June 23, 2004.
    Wayne Kruer, for appellant.
    Charo Bolanos Ruiz, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

The plaintiff, Jerry Gray, appeals from an adverse final judgment entered in favor of the defendant, D & J Industries, Inc. We affirm.

The plaintiff contends that the trial court erred by granting the defendant’s motion for directed verdict. We disagree.

The construction of a contract is a question of law for the courts to determine where the language used in the written contract is clear, unambiguous, and susceptible of only one interpretation. See Manner Cay Property Owners Ass’n, Inc. v. Topside Marina, Inc., 714 So.2d 1130 (Fla. 4th DCA 1998)(“It is a cardinal rule that the construction of all written instruments is a question of law and belongs to the courts, provided ‘the language used is clear, plain, certain, undisputed, unambiguous, unequivocal, and not subject to conflicting inferences.’ ”)(quoting Okeelanta Corp. v. Bygrave, 660 So.2d 743, 747 (Fla. 4th DCA 1995)). Our de novo review of the unambiguous written contract indicates that the trial court’s interpretation was accurate. Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village Corp., 805 So.2d 22 (Fla. 4th DCA 2001). Therefore, we affirm the order under review.

The remaining points raised by the appellant lack merit.

Affirmed.


text:
    Glenn SMITH, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-2694.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Rehearing Denied June 29, 2004.
    Appellant, Pro se.
    Charlie Crist, Attorney General; Sean F. Callaghan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s denial of his complaint for declaratory judgment challenging the constitutionality of the term “disorderly conduct” contained in Fla. Admin. Code R. 33-601.314, § 9-17. We affirm the trial court’s ruling because the term is not vague or overbroad. See Smith v. Fla. Dep’t of Corr., 799 So.2d 319, 319 (Fla. 1st DCA 2001) (holding that the prohibition against fighting in Fla. Admin. Code R. 33-601.314, § 2-4 was not unconstitutionally vague or overbroad); D.L.B. v. State, 707 So.2d 844, 845 (Fla. 2d DCA 1998) (holding that statute prohibiting “affray” was not impermissibly vague because ordinary people could understand the meaning of “affray”).

AFFIRMED.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Clifford RAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D00-3492.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Ray v. State, 403 So.2d 956, 961 (Fla.1981); James v. State, 845 So.2d 996 (Fla. 5th DCA 2003).

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


text:
    Antonio T. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3736.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Antonio T. Carter, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, 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 GRIFFIN, JJ., concur.


text:
    Mark O. ELLIS, Appellant, v. Walter GUY, et al., Appellee.
    No. 5D03-2995.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    Mark 0. Ellis, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Stucchio v. Tincher, 726 So.2d 372, 374 (Fla. 5th DCA 1999); Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984).

SHARP, W„ THOMPSON and MONACO, JJ., concur.


text:
    Samuel CARSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2958.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    James B. Gibson, Public Defender, Day-tona Beach, and Scott Ragan, 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 Cuciak v. State, 410 So.2d 916 (Fla.1982); Watson v. State, 672 So.2d 70 (Fla. 4th DCA 1996).

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


text:
    Narkeith K. PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2260.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cunningham v. State, 739 So.2d 1200 (Fla. 5th DCA 1999); Booker v. State, 514 So.2d 1079, 1081 (Fla.1987).

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


text:
    Erick A. SIERRA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1949.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Chambers v. State, 29 Fla. L.W. D1043, — So.2d-, 2004 WL 895856 (Fla. 2d DCA April 28, 2004).

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    Robert R. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1878.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Pomeranz v. State, 703 So.2d 465, 471 (Fla.1997); Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999).

SAWAYA, C.J., SHARP, W„ and GRIFFIN, JJ., concur.


author: GROSS, J.

text:
    STATE of Florida, Appellant, v. Telly Lenard ANDREWS, Appellee.
    No. 4D02-4451.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellant.

      Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, and Jonathan Kaplan of Kaplan and Hutchinson, P.A., West Palm Beach, for appellee.
   GROSS, J.

The state appeals Telly Lenard Andrews’s departure sentence imposed by the circuit court after a jury trial. Andrews cross-appeals his conviction for aggravated assault on a law enforcement officer. We affirm the conviction and reverse the sentence for the imposition of the mandatory minimum sentence required by statute, with appropriate credits for time served.

This was Andrews’s second trial. In his first trial, he was charged with attempted first degree murder of a law enforcement officer, fleeing and attempting to elude a police officer, and driving while license suspended. A jury found Andrews guilty of the lesser included offense of attempted second degree murder of a law enforcement officer and guilty as charged of the other offenses.

Andrews moved for a new trial on the attempted second degree murder and fleeing charges. The trial court granted a new trial only as to the attempted murder charge. After the state appealed and Andrews cross-appealed, this court affirmed. See State v. Andrews, 820 So.2d 1016 (Fla. 4th DCA 2002), disagreed with on other grounds by Santiago v. State, 29 Fla. L. Weekly D753 (Fla. 5th DCA Mar.26, 2004). The current appeal stems from Andrews’s new trial on attempted second degree murder.

Facts at the Second Trial

Officer Ian MacVane testified that while patrolling as a passenger in Officer Russell Lichter’s police cruiser on January 6, 2000, he noticed a taillight out in Andrews’s car, a white Oldsmobile. MacVane told Lichter that they should pull the Oldsmobile over. After briefly following Andrews’s car, the officers pulled up alongside. Officer MacVane drew his gun and yelled for Andrews to pull over.

After indicating that he would pull over, Andrews sped off instead. The officers chased Andrews, lost the car for a short time, and ultimately found it in an alley. MacVane got out of the police car and told Lichter to drive around the block while he approached Andrews on foot. MacVane ran down the alley and saw Andrews’s Oldsmobile facing toward him with Andrews standing outside; the driver’s door was open and the engine was running.

When he was about ten feet away from the Oldsmobile, MacVane told Andrews to get away from the car. Instead, Andrews got back into his car, shifted into drive, and stepped on the gas.

Believing that Andrews would run him over, MacVane drew his gun and began shooting as Andrews drove. As he moved away from the car and observed it “floating at [him],” Officer MacVane continued to fire his gun.

In total, Officer MacVane fired seven shots at the Oldsmobile. Andrews was wounded by four bullets. A subsequent search of the car revealed a zip-lock bag of marijuana near the driver’s side door.

Eyewitness Tyra Drummer testified for the defense at the second trial. Drummer stated that she observed Andrews’s car going over a speed bump followed by a police car without its sirens and lights on. She knew Andrews through his girlfriend and recognized the car as his. Drummer ran down the street to see what was going on.

She saw the police car stop. MacVane jumped out and ran toward the alley with a gun in his right hand. Drummer did not hear Officer MacVane shouting anything as he ran toward Andrews’s car. However, she did hear seven shots fired. Drummer testified that at no time was Andrews’s car aimed at MacVane, nor did she see MacVane ever jump out of the way of Andrews’s car. After the Oldsmobile was out of the alley, Drummer saw Officer Lichter drive into the alley and pick up MacVane.

Both the state and Andrews introduced expert testimony concerning the angle at which Officer MacVane fired his shots.

For the state, crime scene reconstruc-tionist Greg Parkinson created diagrams which showed the trajectory patterns of each of MacVane’s bullets. Before the jury, Parkinson performed a demonstration with strings and Andrews’s car, which was located at the police station. Parkinson opined that Officer MacVane was in harm’s way when he fired the first shot at Andrews’s car and that the shot was fired from a twelve degree angle. Likewise, Parkinson believed there was a- “very real possibility” that MacVane was in harm’s way when he fired the second shot. However, when MacVane fired the remaining five shots, Parkinson testified that there was no threat of harm to Officer MacVane.

Andrews’s expert, Dennis McGuire, disagreed with Parkinson’s methodology. He thought that a laser beam would have provided greater accuracy than a string test. He also testified that Parkinson’s failure to use the bullet ricochet mark on Andrews’s car hood to determine an angle went against scientifically-accepted methods. McGuire opined that Officer MacVane could have been standing as far as eighteen to twenty feet away from Andrews’s car when he fired the first shot.

The Jury’s Verdict

The jury found Andrews guilty of the lesser-included offense of aggravated assault of a law enforcement officer with a motor vehicle, a deadly weapon. Andrews filed a post-trial motion for new trial, arrest of judgment, judgment notwithstanding the verdict, and renewed judgment of acquittal. The trial court denied Andrews’s motion, finding that there was competent substantial evidence to support a conviction for aggravated assault.

The Downward Departure Sentence

At Andrews’s sentencing hearing, the permissible range of sentence was from 29.175 months to fifteen years. The state requested the maximum sentence of fifteen years with a three-year mandatory minimum pursuant to section 784.07(2)(c), Florida Statutes (1999). Andrews argued for a downward departure and opposed the imposition of a mandatory minimum sentence.

The trial court downwardly departed by adjudicating Andrews guilty and sentencing him to time served. In a five-page sentencing order, the trial court explained its concerns:

The evidence is overwhelming that the initial attempted stop by Officers Lichter and MacVane was pretextual and, a classic example of profiling. The tail and tag lights on the Defendant’s vehicle were not defective. According to the videotape in evidence, those lights worked immediately after the stop. The officers’ testimony that the Defendant was stopped for the reason that his equipment was faulty is simply not credible.

The brandishing of a firearm by Officer MacVane and “drawing down” on the Defendant at the very outset of the attempted stop was absolutely unnecessary and was a prelude to the outrageous behavior that Officer MacVane exhibited later that evening.

Although there is conflicting evidence as to the charge of Aggravated Assault on the police officer-and the jury as fact-finder resolved that issue — there is no dispute that the officer fired his weapon at the Defendant twice before the automobile passed the officer and five additional times after the automobile passed. Four of the officer’s bullets struck the Defendant. This incident took place in a residential neighborhood. Even if the fact-finder were to totally ignore the testimony of Tyra Drummond [sic], the eyewitness, and accept totally the testimony of Officer MacVane, that evidence would not justify Officer MacVane’s shooting at Defendant’s vehicle. A bullet will not stop an oncoming ear; it may disable it or the driver and cause the driver to lose control but the vehicle will continue moving. As an aside, it should be mentioned that later examination of Defendant’s vehicle revealed a child’s car seat and a child’s stuffed animal. The Defendant had four small children at the time of this incident. I shudder to think what tragedy might have resulted had Defendant’s vehicle been occupied by any of his children.

With regard to the marijuana which was located in Defendant’s impounded vehicle several days following the incident — in plain view — the evidence is strong that it was planted.

From all the evidence presented, the Court is persuaded that it was Officer MacVane and not the Defendant who was the aggressor that evening. It is evident to this Court that the Defendant fled the police officers that evening not because he had marijuana in his car-he fled because he feared for his life and had events played out as intended by Officer MacVane, there would have been no need for a trial; Telly Andrews would be dead. It is for that reason that this Court departs downward in its sentencing of the Defendant.

The state appeals the trial court’s downward departure sentence below the minimum mandatory sentence of three years required by section 784.07(2)(e). It contends that Chapter 99-188, the statute that added the mandatory minimum sentence language to section 784.07, does not violate the single subject rule and this court should follow the holding and rationale of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA) (en banc), review granted, 854 So.2d 659 (Fla.2003), rather than Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

During the pendency of this appeal, this court decided Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003), where we agreed with Franklin and certified conflict with Taylor,

In Herandez-Molina, we addressed the constitutionality of Chapter 99-188, Laws of Florida. In Taylor, the second district found that Chapter 99-188 violated the single subject rule because two of the thirteen sections contained in Chapter 99-188 were not logically connected with the other provisions. See Taylor, 818 So.2d at 549-50.

One year later, the third district held that Chapter 99-188 did not violate the single subject rule, in that each provision of the statute was related to the others and to the purpose of the act as a whole. See Franklin, 836 So.2d at 1113.

This court followed the reasoning of Franklin, and held:

After considering the presumption of constitutionality of a statute on single subject grounds, and that a statute should not be invalidated on single subject grounds unless its invalidity appears beyond a reasonable doubt, we agree with the third district’s analysis and conclude that the questioned provisions are sufficiently connected to the subject and effectuate the purpose of the legislation such that we cannot say it violates the single subject requirement beyond a reasonable doubt.

Hemandez-Molina^ 860' So.2d at 489 (emphasis in original) (citation omitted).

At the time Andrews was sentenced, the trial court was required to follow Taylor, because that was the only appellate opinion addressing the constitutional deficiency of the session law creating the mandatory minimum sentence of section 784.07(2)(c). In light of Hemandez-Molina, Andrews’s sentence must be vacated and the case remanded to the trial court for re-sentencing consistent with section 784.07(2)(c). See Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000).

Andrews’s Cross-Appeal Failure to File Amended Information for Second Trial

Andrews argues on cross-appeal that the jury’s verdict should be reversed because the state failed to file an amended information prior to the commencement of the new trial. We hold that an amended information was not required.

In Fridovich v. State, 562 So.2d 328 (Fla.1990), the supreme court wrote thát it was unnecessary for the state to file an amended information under circumstances similar to this case.

In Fridovich, the defendant was charged with first degree murder, but was convicted of the lesser-included offense of manslaughter. Id. at 329. This court reversed the manslaughter conviction and remanded for a new trial. Id. Upon remand, the state re-filed an information which charged the defendant with the same crime as he was convicted of in the first trial. Id.

In discussing the legal effect of the state’s refiling of the information, the supreme court emphasized:

There is no rule or other authority which'requires the state to file a new information upon remand for a new trial in these circumstances. Pursuant to the mandate of the district court, the state need file only a motion to set the case for trial with the trial court. The trial judge is then obligated to instruct the jury on the crime with which the defendant is charged and to set forth the charge in accordance with Florida Standard Jury Instruction (Criminal) 1.01. The state is not required to file a new charging document setting forth the lesser included offense on which the defendant will be tried. There is no question that a new- charging document would be helpful to the state, the defendant, the judge, and the jury and that it would lessen the possibility of the jury’s knowing that the defendant was originally charged with first-degree murder. However, a new charging document was neither necessary nor jurisdictional in this case. The trial court had jurisdiction to try the offense of manslaughter without the refiled information and the state was not in any way changing the offense to be tried or abandoning the charge of manslaughter for this incident.

Id. (emphasis added).

The quoted language from Fridovich resolves Andrews’s first issue. At the first trial, Andrews was convicted of attempted second degree murder of a law enforcement officer with a motor vehicle, a deadly weapon, a lesser-included offense of attempted first degree murder. This court reversed the conviction and remanded for a new trial. Although the state proceeded without filing a new information, the trial went forward on the charge of attempted second degree murder. Under Fridovich, the state was not obligated to file a new information before Andrews’s new trial for attempted second degree murder.

Having been through the first trial and an appeal, Andrews was adequately on notice of the charge against him in the new trial. Moreover, the last information filed in the case contained the elements of aggravated assault, the charge of which Andrews was convicted.

The Marijuana Found in Andrews’s Car

Andrews next contends that it was error to admit the marijuana found in his car under the Williams Rule; because it was hotly contested that the marijuana was planted, Andrews argues that the evidence was unfairly prejudicial.

The Williams Rule is codified at section 90.404(2)(a), and provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2002). Where the purpose of introducing Williams Rule evidence is to prove motive, there is no requirement that the nature or facts surrounding the other crimes, wrongs, or acts be similar to the charged offense. See Finney v. State, 660 So.2d 674, 681-82 (Fla.1995). However, such evidence should not be admitted where its probative value is substantially outweighed by undue prejudice. See Hodges v. State, — So.2d -,-, 2003 WL 21402484, 28 Fla. L. Weekly S475, S480 (Fla. June 19, 2003). When Williams Rule evidence is admitted, “the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered.” Robertson v. State, 829 So.2d 901, 908 (Fla.2002).

In this case, Andrews timely renewed his motion to exclude evidence of marijuana found in his car several days after the car was impounded. The trial court reserved ruling on the issue so that it could see the context of how the state would utilize the evidence.

Richard Smith, a fingerprint examiner, testified that the car was searched three days after it was impounded. Inside the car, located in the driver’s door pocket area, was a zip-lock bag of marijuana.

The trial court admitted the evidence over objection and gave the jury the following Williams Rule instruction:

Exhibit Fifty Eight for the State, ladies and gentlemen, is a piece of evidence that may have to do with other crimes allegedly committed by the Defendant. But this piece of evidence, this green bag of marijuana, is not to be considered by you as evidence of other crimes because he is charged with only one crime, and that is Attempted Second Degree Murder on a Law Enforcement Officer with the use of an automobile. But this evidence, Exhibit Fifty-Eight, is to be received by you for the limited purpose of proving motive on the part of the Defendant for any activities of the Defendant at the scene of this incident. And you shall consider this exhibit only as it relates to that issue of motive to leave the scene.

On cross-examination, Smith testified that although there were blood stains on the driver’s door and seat, he found no stains on the zip-lock bag of marijuana. Nor did Smith observe the zip-lock bag through the broken-out driver’s window on the night of the incident. Andrews’s fingerprints were not found on the zip-lock bag.

The sentencing order stated that the evidence was “strong that [the marijuana] was planted.” However, whether the marijuana was planted was an issue for the jury to consider in evaluating the probative value of the evidence. Andrews’s possession of marijuana was a conceivable motive for his attempt to evade the police officers. The trial court’s limiting instruction properly directed the jury’s attention to the probative value of the marijuana, if any. The trial court did not abuse its discretion in deciding that the probative value of the evidence was not substantially outweighed by any undue prejudice. See § 90.403, Fla. Stat. (2002); Couzo v. State, 830 So.2d 177, 181 (Fla. 4th DCA 2002).

On the remaining points on appeal, we find no error in the admission of the expert testimony and agree with the trial court that competent substantial evidence supported the aggravated assault charge.

The conviction is affirmed and the case is remanded to the circuit court for resen-tencing.

Affirmed in part, reversed in part, and remanded.

WARNER and KLEIN, JJ., concur.

      . The facts elicited at the first trial are set forth in our earlier opinion, State v. Andrews, 820 So.2d 1016, 1018-21 (Fla. 4th DCA 2002).

      . At the first trial, both the state and the defense called Drummer as a witness.

      . Additionally, the first district is aligned with both this court and the third district, in holding that Chapter 99-188 does not violate the single-subject rule. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003). However, the fifth district has joined the second district in holding to the contrary. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), receded from on other grounds by Jones v. State, 872 So.2d 938 (Fla. 5th DCA Mar.26, 2004) (en banc).

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


author: FARMER, C.J.

text:
    Noreen Foley DJOKIC and Jeanette Teufel, Appellants, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, STATE OF FLORIDA, Appellee.
    No. 4D02-3685.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Elaine L. Thompson, Lake Worth, for appellants.
    Gail Scott Hill, Tallahassee, for appellee.
   FARMER, C.J.

Two licensees, one as a real estate broker and the other as a real estate sales person, both of whom had worked for a registered employer, appeal the Florida Real Estate Commission’s (FREC’s) finding of guilt in a license discipline proceeding and the imposition of fines. Because we conclude that the finding of guilt is unsupported by the evidence and statute, we reverse.

Essentially the facts are simple. After the broker and sales person were terminated by their employing firm, they were authorized to attend the closing on a contract they had handled for the firm. Shortly before the closing, another former employee of the same firm warned them that the owner of the firm would not pay them their full share of the commission because of their termination.

Accordingly, after the closing successfully completed, they called the firm to see if they could exchange the full commission check delivered at the closing for checks in the amount of the share of each. The firm declined to do so. They immediately sought the advice of counsel, who directed them to deliver the closing check to him and he would handle the matter on their behalf. Their attorney promptly notified the firm and proffered delivery of the closing check in exchange for commission checks for the two. All this was accomplished within the week after the closing.

The Division of Real Estate (DRE) brought these license discipline charges against them. The administrative complaint principally charged the licensees with violations of section 475.25(l)(d)l. [the section (l)(d) charge], as well as section 475.25(l)(k) [the section (l)(k) charge] for their failure to deliver the closing check directly to their former employer immediately following the closing. See §§ 475.25(l)(d)l.; (k), Fla. Stat. (2003). After a formal adversary hearing, an administrative law judge (AL J) filed findings of fact, conclusions of law, and a recommended order. Essentially he exonerated the licensees of the section (l)(k) charge but found them guilty of the section (l)(d) charge. DRE filed exceptions to the recommended order, arguing for a finding of guilt as to the section (l)(k) charge as well. FREC agreed with the exceptions and found the licensees guilty on both grounds. We reverse as to both.

First, as to FREC’s rejection of the ALJ’s findings in regard to the section (l)(k) violation, there is competent evidence to support the ALJ’s findings of fact. FREC cannot avoid this evidence by merely reciting that it has read the entire record and saying that there is no competent evidence to support a finding, when there clearly is. Indeed some of the findings are based on the credibility of witnesses, a matter uniquely within the sole competence of the ALJ and not of FREC. See Gross v. Dep’t of Health, 819 So.2d 997 (Fla. 5th DCA 2002) (when determining whether to reject or modify findings of fact in an administrative law judge’s recommended order, agency is not permitted to weigh evidence, judge credibility of witnesses or interpret evidence to fit its ultimate conclusions). The recommended conclusions as to the section (l)(k) charge follow logically from the ALJ’s findings of fact. We therefore find that the record does not support FREC’s attempt to resurrect the section (l)(k) charge from the formal hearing’s waste bin.

And so we turn to the remaining charge on which FREC based its discipline, the section (l)(d) charge. The statute here authorizes discipline when the licensee:

“has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft ... or thing of value, including a share of a real estate commission if a civil judgment relating to the practice of the licensee’s profession has been obtained against the licensee and said judgment has not been satisfied in accordance with the terms of the judgment within a reasonable time.... ”

§ 475.25(l)(d)l., Fla. Stat. (2003).

We follow, of course, the well established rule that penal statutes — which this surely ⅛ — -are construed in favor of the licensee and against the regulatory authority. See Munch v. Dep’t of Prof'l Regulation, Div. of Real Estate, 592 So.2d 1136 (Fla. 1st DCA 1992) (section 475.25 is penal in nature and must be construed strictly in favor of one against whom penalty would be imposed). It is also estab: lished that section (l)(d)l. is directed only to escrow funds and does not apply to the failure to deliver contested commission fees. See Golub v. Dep’t of Prof'l Regulation, 450 So.2d 229 (Fla. 5th DCA 1984); Fleischman v. Dep’t of Prof'l Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983), (stat ute governing discipline of real estate licensees is confined to unjustified refusals of a licensee to account for or return property received in trust or escrow by the licensee in his professional capacity).

Indeed under functionally indistinguishable facts, we explained:

“Chapter 475, was enacted for the purpose of protecting the public in dealings with real estate agents. The role of the judiciary is usurped if the commission is permitted to decide charges which ‘are predicated upon factual matters pertaining solely to the internal business affairs of a real estate agency’. The administrative processes of the commission should be directed at the ‘dishonest and unscrupulous operator, one who cheats, swindles or defrauds the General public in handling real estate transactions’.... The relationship between a real estate broker and his sales personnel is contractual in nature. Enforcement of rights thereunder, absent fraud, concealment or dishonest acts, should be by a court of proper jurisdiction rather than by an administrative agency. The instant case involves an internal dispute between broker and saleswoman over payment of an earned commission. [FREC] did not find any dishonest conduct .... ” [c.o.]

Cannon v. Fla. Real Estate Comm’n, 221 So.2d 240, 241-42 (Fla. 4th DCA 1969). The dispute in this case is between the licensees and their employing firm as to the proper share of the commission. It is in the nature of an alleged breach of an employment contract. Section 474.25 was not intended to be used to regulate such disputes, in the absence of fraud or a breach of fiduciary duties in regard to escrow deposits or the like, none of which exist here.

REVERSED.

GUNTHER, J., and KRATHEN, DAVID H., Associate Judge, concur.


author: STONE, J.

text:
    ANTHONY JAMES DEVELOPMENT, INC., Appellant, v. BALBOA STREET BEACH CLUB, INC., Appellee.
    No. 4D02-958.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Andrew Merlo of Andrew Merlo, P.A., Boca Raton, for appellant.
    Adrienne Maidenbaum of Feinberg & Maidenbaum, Hollywood, for appellee.
   STONE, J.

Anthony James Development, Inc. (“Buyer”) appeals a final judgment ordering the specific performance of a real estate purchase contract. We reverse based on the trial court’s erroneous interpretation of various provisions of the contract.

The applicable provisions of the March 19,1999 contract with Balboa Street Beach Club, Inc. (“Seller”) include the following addendums:

The parties further understand that the buyer shall make a diligent effort to obtain approval for residential development, and shall submit application for same within 60 days from the date hereof, from all applicable governmental departments and that the scheduled closing date and all of [Buyer’s] obligations under the [sic] this agreement shall be contingent upon obtaining all necessary approvals for development, and closing shall take place on or about 30 days following [Buyer’s] written receipt of said approvals.
[Buyer] understands that [Seller] has applied for a permit to construct a seawall on the subject property, and [Buyer] agrees to proceed with construction of the seawall in the event that said permit is obtained prior to closing.
[Buyer] agrees that in the event that the necessary governmental approvals have not been obtained or denied six months after the required application have been submitted, [Buyer] will pay 50% of [Seller’s] monthly carrying costs, not to exceed $2,500.00.

In June 1999, the Department of Environmental Protection (“Department”) issued Seller a permit for construction of a seawall; however, it required the seawall be built approximately twenty feet inland from the location initially requested. Further, an organization of homeowners and environmental advocates seeking to prevent the construction of the seawall filed a petition with Department for formal review. As a result, Department delayed construction of the seawall until all pending appeals had been fully adjudicated. Seller preserved all rights to appeal the placement of the seawall by filing numerous requests for extensions of time.

Buyer contends Seller interfered with Buyer’s “ability to obtain the appropriate approvals” by failing to resolve the placement of the seawall and, thus, requested the court enjoin Seller from seeking any further extensions of time. Seller counterclaimed, alleging that Buyer breached the contract by failing to make a “diligent effort” to obtain approvals for residential development. Seller asked the trial court to specifically enforce the agreement and ordered Buyer to immediately close on the property.

In its final judgment, following a non-jury trial, the trial court found that the location of the seawall must be resolved before Buyer could submit plans to the appropriate government agencies. Specifically, the trial court determined Buyer did not commit a breach; rather, failure to secure the location of the seawall tolled the time for Buyer to perform its obligations pursuant to the contract. The trial court further concluded that the meaning of the term “diligent effort” was reasonably ascertainable and Buyer made a “diligent effort” to obtain approval for residential development. Therefore, the court found the most equitable solution was to “put [Buyer] in [Seller’s] shoes and close the property ‘as is.’ ” The final judgment allowed Buyer ten days to either “accept the property in its current condition ... or reject this proposal and get its money back.”

The trial court’s conclusion as to Buyer’s good faith and diligent efforts is supported by the evidence. The record reflects that Buyer contacted a group specializing in various architectural, mechanical, and electrical services to design the beachfront residential development. Buyer also employed an architect to prepare drawings of the proposed residential structures and submitted a sufficient application for a building permit. Buyer submitted a preliminary site plan review and received comments on his development proposal from the city. Further, there is no indication that Buyer acted in bad faith or was deficient in its actions.

To the contrary, the trial court’s finding, that Buyer should take the land “as is,” is not supported by the record. Although Buyer agreed to accept the seawall in either location approved by Department, Buyer did not waive the provision regarding closing after obtaining the necessary written governmental approvals. Further, while the contract clearly and unambiguously stated that closing shall occur thirty days after Seller has “written receipt” of necessary approvals for residential development from the applicable government agencies, the record does not indicate that Buyer or Seller had yet received such approval.

The purpose of specific performance is to compel a party to do what it agreed to do pursuant to a contract. See Treasure Coast Motor Sales, Inc. v. Heaton, 848 So.2d 386, 387 (Fla. 4th DCA 2003).

By holding that Buyer must accept the property “as is,” without obtaining the approvals, the trial court went beyond the contract in ordering specific performance. Clearly, by the contract terms and absent a breach, Buyer was only obligated to pay one-half of the carrying costs, to build the seawall when the permitting issues were resolved, and to pay the costs incurred while defending the seawall appeal or contesting the location of the seawall.

We, therefore, reverse and remand for modification consistent with this opinion.

KLEIN and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Connie NEINER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1896.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of possession of Diazepam (Valium), after it was discovered in her purse. We reverse for a new trial because the court erred in excluding evidence relevant to her defense that she had a prescription for the drug.

After appellant was arrested for DUI and transported to the breath alcohol testing facility, an employee at the facility doing an inventory of her purse discovered a plastic baggie containing ten solid Valium pills and seven pieces. Appellant gave a statement to the effect that she had obtained the Valium through a prescription in 1993. The appellant had provided the state with a 1996 Walgreens prescription; however, the strength of the Valium in that prescription was different from that of the Valium in her purse.

As part of defendant’s case, and in response to the state’s introduction of her statement that she had a prescription in 1993, appellant called a former manager of a Walgreens store to testify that company policy required Walgreens to destroy prescription records after five years. The trial court excluded this, evidence on the ground that the witness was not a business records custodian qualified to testify under section 90.803(7), Florida Statutes, as to the “absence of entry in records of regularly conducted activity.” Appellant was not, however, attempting to show absence under this statute of “a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter.” Rather, appellant wished to show why Walgreens’ records would not corroborate her'defense that she had a prescription.

The witness proffered that he became employed as a manager by Walgreens in 1996 or 1997, and at that time there was a corporate policy requiring prescription records to be destroyed after five years. If Walgreens had filled a prescription for appellant in 1993, he explained, it would not be available because of that policy.

The state does not argue that the trial court’s reasoning in excluding this evidence was correct, but contends that it was not relevant, and there was no abuse of discretion. Although some evidentiary rulings are reviewed under that standard, Jenkins v. State, 719 So.2d 1012 (Fla. 4th DCA 1998), “the question of what is relevant to show a reasonable doubt may present different considerations than the question of what is relevant to show the commission of the crime itself.” Vannier v. State, 714 So.2d 470, 472 (Fla. 4th DCA 1998). “Where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Rivera v. State, 561 So.2d 536, 539 (Fla.1990). Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“[flew rights are more fundamental than that of an accused to present witnesses in his own defense.”).

Appellant’s entire defense in this case was that she obtained the Valium through a prescription from Walgreens. If she had been able to produce the prescription she would not have been charged, let alone found guilty. The fact that Walgreens would have destroyed any record of this prescription was relevant to her defense in that it explained why she could not produce a copy of the prescription. The state’s argument that Walgreens’s policy was not relevant is undermined by the fact that the state, in closing argument, pointed out that the appellant did not produce a prescription. Reversed.

WARNER and GROSS, JJ., concur.


author: ERVIN, J.

text:
    Teresa FOLDS, Appellant, v. J.A. JONES CONSTRUCTION COMPANY f/k/a Metric Constructors, Inc., Tampa Service Company, Inc. d/b/a Pacesetters Personnel Service, and John Doe, Appellees.
    No. 1D03-2188.
    District Court of Appeal of Florida, First District.
    June 3, 2004.

      Christopher M. Vlaehos and Troy A. Rafferty of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A., Pensacola, for Appellant.
    Joseph A. Wilson of Wilson, Harrell, Smith, Boles & Farrington, P.A., Pensacola, for Appellee Tampa Service Company, Inc. d/b/a Pacesetters Personnel Service.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Ap-pellee J.A. Jones Construction Company ⅛⅞/a Metric Constructors, Inc.
   ERVIN, J.

This is an appeal from two separate final summary judgments entered in a premises liability action in favor of-appellees, J.A. Jones Construction Co. and Pacesetters Personnel Service, -on the ground that they were immune from tort liability by reason of the bar of workers’ compensation for injuries suffered by appellant, Teresa Folds, at the job site. We affirm.

Folds was assigned by her employer, Complete Clean All, a temporary employment agency, to assist the general contractor, J.A.' Jones Construction Co., by providing janitorial and cleanup services at the construction site of an apartment complex in Pensacola, Florida. While so engaged, Folds was injured when she was struck on the head by a box thrown from an upper balcony of the apartment complex by an unidentified employee of Pacesetters Personnel Service, a help-supply services company. After obtaining workers’ compensation benefits from Complete Clean All, she brought a personal injury action against J.A. Jones, Pacesetters, and the latter’s employee, John Doe. She first contends the lower court erroneously concluded J.A. Jones was entitled to summary judgment, because it was her statutory employer and therefore immune from liability under section 440.10(l)(b), Florida Statutes (Supp.1998), which provides, in pertinent part:

In case a contractor sublets any part ... of his or her contract work to a subcontractor ..., all of the employees of such contractor and subcontractor ... shall be deemed to be employed in one and the same business ...; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of the subcontractor who has secured such payment.

(Emphasis added.)

Folds points out that the subcontract between J.A. Jones and Complete Clean All required Clean All and not J.A. Jones to provide workers’ compensation insurance for the employees of Clean All; therefore, as a matter of law, she could not be considered the statutory employee of the general contractor. Folds misreads section 440.10(l)(b). The final phrase therein does not remove workers’ compensation immunity from a general contractor that does not itself provide coverage to a subcontractor’s employees. It means simply that the contractor must be responsible for securing such coverage.

J.A. Jones complied with its legal obligation by requiring the subcontractor to furnish workers’ compensation insurance to its employees while engaged in the work at the construction site. See Miami-Dade County v. Acosta, 757 So.2d 539 (Fla. 3d DCA 2000) (holding that Miami-Dade County was immune from liability, because it ensured that its subcontractor, who employed the plaintiff, had provided workers’ compensation coverage to its employees); Broward County v. Rodrigues, 686 So.2d 774 (Fla. 4th DCA 1997) (holding that the county was immune from liability as the statutory employer of the subcontractor, who employed the plaintiff, because the subcontractor was required by its contract with the county to provide its employees with workers’ compensation coverage).

Appellant next argues the lower court erred in granting summary judgment to Pacesetters on the theory that its employee, John Doe, was a borrowed servant of the general contractor, because, she contends, genuine fact issues remained as to the nature of the work done and the control that J.A. Jones asserted over day laborers such as Doe. Folds overlooks the fact that section 440.11(2), Florida Statutes (1997), effectually creates a rebuttable presumption that a special employer using the services of a temporary employment agency, such as Pacesetters, becomes the statutory employer of the borrowed servant. Subsection (2) provides:

The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.

Before the creation of subsection (2), added by chapter 89-284, section 8, Laws of Florida, the only presumption accorded was that the assigned worker continued in the employment of the leasing agency, a presumption that could only be overcome by a clear demonstration that the new temporary employer had been substituted for the former. See Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98, 101 (Fla. 1971) (quoting 1A Larson, Law of Workmen’s Compensation, § 48.10 (1967)).

The current version of Larson’s treatise notes the distinction between the types of services the general employer furnishes to the special employer, and refers to the majority rule recognizing that if the general employer simply arranges for labor without heavy equipment, the transferred worker then becomes the employee of the special employer. See Arthur Larson & Lex K. Larson, 3 Larson’s Workers’ Compensation Law, § 67.05[3] (2003). Such rule applies particularly to the furnishing of labor services. Id. Finally, Larson observes that the entire question of which of the two, the general or special employer, should be considered the employer of the temporarily assigned worker at the time of injury has been addressed in some jurisdictions by statute, and he specifically notes section 440.11(2), which he characterizes as “mandating] that employees from ‘help supply companies’ shall be treated as employees of the employer to whom they have been sent to work.” Id. at n. 24.1.

Florida case law similarly recognizes that the statute extends workers’ compensation immunity from tort liability to special employers that hire workers from temporary employment agencies. See Watson v. Job Corp., 840 So.2d 367 (Fla. 3d DCA), cert. denied, — U.S. -, 124 S.Ct. 546, 157 L.Ed.2d 419 (2003); Caramico v. Artcraft Indus., Inc., 727 So.2d 348 (Fla. 5th DCA 1999); Maxson Constr. Co., Inc. v. Welch, 720 So.2d 588 (Fla.2d 1998).

In our judgment, once J.A. Jones presented evidence that it had hired day laborers from Pacesetters and placed them under its control, a statutory presumption arose that such workers, including John Doe, were its borrowed servants. The burden of producing evidence was thereupon placed upon Folds to show the contrary. None was presented. As consequence, the lower court properly entered summary judgment for Pacesetters under the theory that John Doe was under the control of J.A. Jones, which became Doe’s statutory employer, and thus Pacesetters could not be responsible for his actions.

Folds’ alternative argument is that if J.A. Jones is correctly considered to be her statutory employer, J.A. Jones’ actions in supervising Doe, which resulted in her injuries, were tantamount to gross negligence; therefore, the trial court erroneously entered summary judgment for J.A. Jones. We cannot agree. Three exceptions are recognized to the bar of immunity provided in section 440.11. First, an injured employee may sue the employer for an intentional tort, which is defined as conduct that shows a deliberate intent to injure, or that is substantially certain to result in injury or death to the employee. Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). Second, an injured employee may sue a managerial-level employee, such as a partner, officer or director, or supervisor, for acts constituting culpable negligence, which is defined as reckless indifference or grossly careless disregard of human life. § 440.11(1), Fla. Stat. (1997); Eller v. Shova, 630 So.2d 537 (Fla.1993). Third, an injured employee may sue a fellow worker for conduct that rises to the level of gross negligence, which is an act or omission that a reasonable, prudent person would know is likely to result in injury to another. Id.

Initially, we note that Folds’ complaint failed to allege the commission of an intentional tort, but instead merely alleged simple negligence. In her amended complaint, she expressly alleged that J.A. Jones and Pacesetters negligently maintained the construction site in that John Doe had thrown materials off the second-floor balcony without regard for others working on the property. The rule is firmly established that summary judgment will be affirmed if the allegations of the complaint and the evidence show only that the employer was negligent or grossly negligent, but fail to show an intentional tort. Lawton v. Alpine Engineered Prods., Inc., 498 So.2d 879 (Fla.1986).

Despite the pleading insufficiency, Folds relies on evidence relating to what she describes as the gross negligence of J.A. Jones’ project superintendent in failing to properly supervise day laborers such as Doe in the disposal of construction debris from the apartment premises. Folds, however, did not bring an action against the managerial employee, and even if she had, she would have been required to show culpable, not gross, negligence.

Finally, Folds claims that her expert provided evidence that raised a genuine issue of material fact, because he stated in his affidavit that J.A. Jones had violated 29 CFR 1926.252(a), by not ensuring disposal of debris through an enclosed chute, as required by the regulation. An argument similar to that raised by Folds has previously been rejected. The supreme court has expressly stated that “failure to provide a safe work place or to follow OSHA guidelines does not constitute an intentional tort.” Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986) (affirming dismissal of complaint that failed to state a cause of action for intentional tort, because the complaint failed to allege that the employer’s acts raised the virtual certainty that the employee would be injured).

The summary judgments entered are in all respects AFFIRMED.

WOLF, C.J., and VAN NORTWICK, J., CONCUR.

      . Plaintiff Folds designated the employee in her complaint and other pleadings with the pseudonym, "John Doe.”

      . John Doe is not a party in this appeal.

      . It appears that this type of presumption is one affecting the burden of proof. See § 90.302(2), Fla. Stat, and Charles W. Eh-rhardt, Florida Evidence § 302.2 (2003 ed.).

      . Clearly the statutory presumption discussed infra, making the employee of a help-supply services company the borrowed servant of the special employer, does not apply to the employee of a general employer that leases to a temporary employer heavy equipment and a servant to operate it, because, ordinarily, control and maintenance of the machinery remains with the general employer. See Venezia v. Egan, 671 So.2d 175 (Fla. 5th DCA 1996). In such cases, the presumption of continued employment of the temporary worker with the general employer applies. Id.

      . Presumably, the presumption that a temporary employee, assigned to a special employer, became its borrowed servant could be overcome by evidence disclosing contractual terms precluding an employment arrangement, as in Thornton v. Paktank Florida, Inc., 409 So.2d 31 (Fla. 2d DCA 1981), stating that the temporary employee could not be considered the assigned entity’s employee.