author: STONE, J.

text:
    Kevin RABIN, Ruth Sinreich and Michael Roberts, Appellants, v. STATE of Florida DEPARTMENT OF REVENUE, Appellee.
    No. 4D03-3494.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Nov. 16, 2004.
    Eric J. Stockel and Allen H. Libow of Libow & Muskat LLP, Boca Raton, for appellants.
    Charles J. Crist, Jr., Attorney General, J. Clifton Cox, Assistant Attorney General, and Eric Taylor, Senior Assistant Attorney General, Tallahassee, for appellee.
   STONE, J.

We affirm the trial court’s order transferring venue from Broward County to Leon County.

The case was initially filed by Citrix Systems, Inc. (Citrix), a computer software company, in Broward County, challenging a notice of a proposed tax assessment. Citrix had unsuccessfully protested this assessment through administrative procedure and an administrative appeal. Subsequently, an amended complaint was filed in which the appellants, Rabin, Sinreich, and Roberts, appeared as the plaintiffs along with Citrix.

In the amended complaint, counts one through four were brought by Citrix. Three months after filing the amended complaint, Citrix voluntarily dismissed its action, leaving Appellants as the sole plaintiffs. Count five of the amended complaint was brought by Appellants. In this count, Appellants sought declaration that all sales and use tax paid by them on certain specified property was unconstitutional in violation of the First Amendment of the United States Constitution and Article I, Section 4 and Article II, Section 3, of the Florida Constitution. Appellants alleged standing as citizens who had recently paid Florida’s six percent sales tax when purchasing a computer, software for the computer, digital video disks and compact disks to use on the computer, telephone services to make the computer internet ready, and newspapers. Appellants asked that a class be certified for “all consumer sales and use taxpayers of the products and services” described in the complaint.

The Department of Revenue (DOR) filed a motion to dismiss for improper venue and/or motion to transfer venue, alleging that venue in Broward County was no longer justified and should be transferred to Leon County. The DOR did not dispute venue in Broward County prior to Citrix withdrawing because Citrix had initially filed its action to contest a final assessment of corporate income and excise taxes pursuant to section 72.011, Florida Statutes, whereas Appellants brought suit only as payors of sales taxes and did not allege that the DOR issued a final assessment or denied a refund pursuant to section 72.011, Florida Statutes.

Section 72.011(l)(a)-(b) states:

l)(a) A taxpayer may contest the legality of any assessment or denial of refund of tax, ... by filing an action in circuit court; or alternatively, the taxpayer may file a petition under the applicable provisions of chapter 120.
(b) A taxpayer may not file an action under paragraph (a) to contest an assessment or a denial of refund of any tax ... until the taxpayer complies with the applicable registration requirements contained in those statutes which apply to the tax for which the action is filed.

Section 72.011(4)(a), specifically relating to venue, states:

4)(a) Except as provided in paragraph (b), an action initiated in circuit court pursuant to subsection (1) shall be filed in the Second Judicial Circuit court in and for Leon County or in the circuit court in the county where the taxpayer resides....

Because Citrix’s action was properly filed under section 72.01 l(l)(a), Citrix could file its action in Broward County. The trial court correctly recognized that as to Appellants, there has not been any assessment of a tax or denial of a refund. In Department of Revenue v. Seminole Tribe of Florida, 720 So.2d 270 (Fla. 4th DCA 1998), this court stated that “having to pay sales tax cannot be construed as an assessment’ within the meaning of section 72.011.” Id. at 271. This court recognized that an assessment under section 72.011 “comprehends only two situations:”

(1) when the taxpayer has received an assessment of tax which the taxpayer has not paid; and (2) when the taxpayer has paid a tax, requested a refund and received a denial of refund.

Id.

Here, Appellants allege that they should not have been charged the six percent sales tax because it abridged their right to free speech and assert that applying the six percent tax to them is unconstitutional because the products they purchased involve speech and the tax infringes on their right to free speech.

We recognize that even where venue would not be proper, if the case were initiated by the remaining party or parties, venue may be retained where venue, as here, was proper when the action began. Vance v. Minton, 444 So.2d 1162 (Fla. 3d DCA 1984); Ohanessian v. Thomason, 510 So.2d 1092 (Fla. 2d DCA 1987). In MML Development Corporation v. Eagle National Bank of Miami 603 So.2d 646 (Fla. 5th DCA 1992), however, the Fifth District noted the purpose of the rule announced in Vance was to avoid disruption of trial. Id. at 647. In Vance, the motion to transfer was filed after two years of litigation, including extensive discovery proceedings. Id. The MML court recognized that the litigation in that case was not in an “advanced stage” and the appellants’ motion to transfer venue was timely. Id. at 648.

We recognize that MML may be distinguished in that the statute applied in that case provided that actions under it, relating to promissory notes, “be brought only in the county in which such notes were signed ... or one of the makers resides .... This section shall be liberally construed in favor of the makers of such notes.” Id. The court in MML stated that it “must give deference to the direction of the legislature to construe liberally the venue privilege in favor of the makers of the notes.” Id. Here, as in MML, the litigation is not in an advanced state. Although the “home venue” privilege, applicable to suits against the state, is established by common law in Florida, rather than, in MML, by a statute, the timeliness principle applied in MML applies equally to a state agency’s exercise of its privilege to be sued in Leon County.

We also reject Appellants’ assertion that the “sword wielder” exception to the home venue privilege is applicable in this case. The “sword wielder” exception is applicable:

where the official action complained of has in fact been, or is being performed, in the county wherein the suit is filed, or when the threat of such action in that county is both real and imminent.
This exception to the common law privilege of venue is limited to those cases wherein the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of a statute, rule or regulation alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the statute, rule or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved.

Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 365 (Fla.1978). We conclude that payment of sales taxes upon purchase of various items simply is not a circumstance where the “sword-wielder” exception applies.

The situation in this case is not unlike those in Florida Department of Revenue v. Hardy, 697 So.2d 954 (Fla. 5th DCA 1997), and Department of Highway Safety and Motor Vehicles v. Sarnoff, 734 So.2d 1054 (Fla. 1st DCA 1998). In Hardy, the plaintiffs sought to declare section 328.03(7), Florida Statutes (1995), unconstitutional and to obtain a refund of fees. 697 So.2d at 955. The Fifth District found that the sword wielder exception did not apply because “the Department of Revenue ... issued no notice or warrant to appellees. Indeed, no official action has been taken on the part of the state other than the filing of motions in response to appellees’ suit.” Id. at 956. In other words, in Hardy, as here, there was no affirmative action by the DOR.

Similarly, in Samoff, the plaintiffs alleged that in implementing section 325.814, Florida Statutes, which required motor vehicle inspections, the department arbitrarily imposed the full $10.00 fee, which exceeded the actual cost of administering and enforcing the program. 734 So.2d at 1055. The plaintiffs also challenged the application of the proceeds of the inspections. Id. The First District concluded that “by merely implementing the law, without taking any affirmative action to enforce a failure to comply, the Department’s activity at this point does not constitute sword wielding,’ the threat of any enforcement action being only contingent and anticipatory.” Id. at 1056. In this case, the DOR has not taken any action to enforce section 212.05, Florida Statutes, or section 212.06, Florida Statutes.

We have also considered Swinscoe v. Florida Department of Revenue, 320 So.2d 11 (Fla. 4th DCA 1975), and Cayman v. Manufacturing, Inc. v. Department of Revenue, 833 So.2d 177 (Fla. 4th DCA 2002), together with similar cases relied on by Appellants, but conclude that they are not controlling. The situations in those cases, where the sword wielder provision was found to apply, involved the state taking an affirmative action against the plaintiffs. Here, there was no affirmative action by the state and no need for Appellants to seek to shield themselves. Further, the complained of conduct is simply too general. In Dickinson v. Florida National Organization for Women, Inc., 763 So.2d 1245 (Fla. 4th DCA 2000), this court stated: “[w]here the state agency’s actions are statewide in scope, in the absence of any showing of particularized harm to the plaintiffs that will occur within the county itself separate and apart from the generalized harm suffered by all citizens by the operation or enforcement of an allegedly unconstitutional law, the home venue privilege applies.” Id. at 1248.

Therefore, the order is affirmed.

WARNER, J., and BRYAN, BEN L., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3564.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.
    Richard D. Smith, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as procedurally barred. See Den- hart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Richard Wayne JOSEPH, Appellant/Cross-Appellee, v. Melissa Whitley JOSEPH, Appellee/Cross-Appellant.
    No. 1D02-4108.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 2, 2004,
    Samuel S. Jacobson, Esquire of Bledsoe, Jacobson, Schmidt, Moonly, Roberson & Wright, Jacksonville, for Appellant/Cross-Appellee.
    James G. Roberts, Esquire of Roberts & Reiter, P.A., Jacksonville and Michael J. Korn, Esquire of Korn & Zehmer, P.A., Jacksonville, for Appellee/Cross-Appel-lant.
   PER CURIAM.

On appeal from an Amended Final Judgment of Dissolution of Marriage, the former husband points out that the trial court failed to take into account distribution of a profit-sharing account to the former wife in what was an otherwise exemplary job in equitably distributing marital assets. Accordingly, we modify the judgment to require the former wife to pay the former husband $9,000. We find no merit in the appeal otherwise, and deny the cross-appeal. As modified, the judgment is affirmed.

BENTON, PADOVANO, and HAWKES, JJ., concur.


text:
    BEVERLY ENTERPRISES-FLORIDA, INC.; Beverly Health and Rehabilitation Services, Inc.; (as to Perry Health Facility), Petitioners, v. The ESTATE OF Nancy Brown WILLIAMS, by and through Delores HUGGER, personal representative, Respondent.
    No. 1D04-2415.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Patrick W. Harland, Jr., and Kirsten K. Ullman of Ullman, Kurpiers, Bursa & Ra-gano, LLC, Tampa, for petitioners.
    Susan B. Morrison and Bennie Lazzara, Jr., of Wilkes & McHugh, P.A., Tampa, for respondent.
   PER CURIAM.

The petition for writ of prohibition is dismissed as moot.

ALLEN, BENTON and PADOVANO, JJ., concur.


text:
    Bradley LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1569.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 16, 2004.
    Bradley Leonard, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bradley Leonard appeals an order summarily denying his rule 3.850 motion for postconviction relief. We affirm without discussion as to the first and second grounds of the motion, but reverse and remand as to the third and fourth grounds.

After being placed on probation in this 1990 case, Leonard was charged with violating his probation by committing new offenses in- Rhode Island, a warrant issued, he waived extradition, and signed a written plea of violation of probation, agreeing to a sentence of seventeen years in prison with credit for five years time served. His probation was revoked and he was sentenced on December 1, 2000. Thereafter, within the time for filing a notice of appeal, defense counsel moved for correction or modification of sentence, seeking additional jail credit. The trial court denied the motion and Leonard’s direct appeal was limited to the single issue of whether the trial court abused its discretion in not awarding him credit for time served in Rhode Island after his Florida warrant was served on him. This court affirmed per curiam without opinion and the mandate issued on June 21, 2002. Leonard v. State, 819 So.2d 786 (Fla. 4th DCA 2002).

In the instant motion, Leonard claimed that, prior to his violation of probation plea hearing, his attorney advised him that if he entered the plea, he would be sentenced to 17 years — but that he would receive credit for the time previously served in Florida’s Department of Corrections, the 119 days he had served in county jail since his extradition from Rhode Island, and the time he served in Rhode Island after the “warrant/detainer” was served on him in Rhode Island on January 4, 1996, which was almost another 5 years. He was led to believe that the state had agreed to that amount of credit. At the hearing, however, the trial court would not take Leonard’s or his attorney’s word for the date when the warrant/detainer was lodged against him, crediting him with time served in Rhode Island on this case only from September 19, 2000.' However, the judge indicated she would be happy to change the sentence to increase the amount of credit if counsel provided her with documentation, within sixty days after sentencing, for an earlier date of service of the warrant. Thus, he entered his plea firmly believing he would be awarded the additional credit from January 4, 1996, to September 19, 2000. Nevertheless, when counsel filed a timely motion to correct and/or modify sentence two weeks later, attaching the relevant documents, the trial court denied the motion.

In his third ground for relief, Leonard argued that he was deprived of due process by the trial court’s breach of the plea agreement and/or breach of promise. He claimed that, in large part, he agreed to the plea based on the state’s agreement to allow him credit for the time served in Rhode Island after service of the warrant/detainer, and the trial court should have been required to credit him with it. He contended that the trial court’s reneging on its agreement to allow the credit upon his providing the documentation should entitle him to withdraw his plea.

In his fourth ground, Leonard argued that he was denied effective assistance of counsel and/or entered an involuntary plea to violation of probation because he entered his change of plea based on counsel’s advice that he would receive credit for the time served in Rhode Island after service of the warrant/detainer, but that advice turned out to be misadvice when the trial court reneged on her promise. He stated that there was a reasonable probability that he would not have entered his plea, but would have proceeded to trial, had he known he would not be credited with the nearly five years of Rhode Island time.

Leonard asked the trial court to credit him with the time served from January 4, 1996, to September 19, 2000, or, alternatively, to allow him to withdraw his plea to the violation of probation.

We agree with the state that, to the extent Leonard’s motion still sought credit for the time served in Rhode Island, he was procedurally barred; his prior motion seeking that precise credit was denied on the merits and the denial was raised and rejected on direct appeal. See Kronz v. State, 462 So.2d 450 (Fla.1985) (noting trial judge has inherent discretionary authority to grant credit for time served in other jurisdictions while awaiting transfer to Florida and thus should consider the appropriateness of an award of credit for the time served when incarcerated in another state solely because of the Florida offense for which the defendant is being sentenced).

However, the transcript of the plea colloquy does not refute Leonard’s claim that he entered his plea with the understanding that he would receive the credit. While the trial judge explained she would grant the credit only if he could show that he was “actually in custody on my warrant at that time,” she did not make it clear that he was entitled to credit only if he was in custody only on the warrant in this case. Nothing in the plea colloquy conclusively refuted the claim that he reasonably believed his documentation would be sufficient to show that he was entitled to the credit, that his decision to admit the violation of probation “rested in large part upon the state’s agreement” to allow him the Rhode Island credit and that, but for the promise of the credit, “there is a reasonable probability he would not have entered his plea, but, would have proceeded to trial.” To the extent he so believed and was so misadvised, he has stated a legally sufficient claim of involuntary plea or ineffective assistance of counsel that may be sufficient to entitle him to withdraw his plea to violation of probation. See Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000) (noting that prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is satisfied by allegation that, but for counsel’s error, there is a reasonable probability that defendant would not have entered plea but would have gone to trial).

Accordingly, we reverse the summary denial of the third and fourth grounds for relief for further proceedings.

Affirmed in part, reversed in part, and remanded.

KLEIN, GROSS and TAYLOR, JJ., concur.

      . Leonard explained that he was serving time in the Rhode Island case until September 2000, but service of the warrant/detainer in the instant case upon him on January 4, 1996, caused him to be removed from the minimum custody/work release facility where he was serving his Rhode Island sentence and to be placed instead in a close custody maximum security prison for the rest of his Rhode Island sentence.


author: POLEN, J.

text:
    WEINSTEIN DESIGN GROUP, INC., a Florida corporation, and Robert S. Weinstein, individually, Appellants, v. Cecil FIELDER, Appellee.
    No. 4D03-3750.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 16, 2004.

      Gaunt, Pratt, Radford & Methe, P.A., West Palm Beach, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for appellants.
    Daniel S. Rosenbaum and John R. Sheppard, Jr., of Becker & Poliakoff, P.A., West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final money judgment in a jury trial in favor of Appel-lee, Cecil Fielder, awarding Fielder compensatory damages of $300,000 and punitive damages of $15,000 for using Fielder’s name for commercial and/or advertising purposes without his permission. We affirm in part and reverse in part.

Appellant Weinstein Design entered into a contract with Stacey Fielder (wife of former professional baseball player Cecil Fielder) on November 6, 1996 to provide interior decorating services for the Fielders’ home. At some time in 1998, the Fielders stopped paying Weinstein’s invoices, leading to a lawsuit that eventually concluded by arbitration. In August of 1999, while the arbitration dispute was pending, Fielder brought the instant suit against Weinstein and the Weinstein Design Group (collectively Weinstein) seeking injunctive relief and damages based on Weinstein’s use of Fielder’s name for commercial purposes without his authorization, in violation of section 540.08, Florida Statutes, and for the common law tort of name misappropriation.

Pre-trial, Weinstein stipulated to the entry of a permanent injunction, prohibiting Weinstein from future use of Fielder’s name and he admitted to using Fielder’s name without his consent in violation of section 540.08, Florida Statutes, and to committing common law name, appropriation. Therefore, the main issues of fact for trial were (1) whether the article printed in Florida Design magazine about Robert Weinstein was an exception to liability under section 540.08(8); (2) whether Wein-stein was liable under section 540.08 for a set of allegedly undistributed brochures; (3) the amount of compensatory damages, if any; and (4) the amount of punitive damages, if any.

1. Weinstein’s challenges for cause

During jury selection, Weinstein challenged prospective jurors Porcelli, Da-gostino, Rendelman, and Kearns for cause, claiming they were predisposed to favor Fielder. The trial judge denied the challenges as to all four, explaining that he believed that the prospective jurors’ allegedly biased answers during voir dire merely reflected that they “felt a tinge of injustice” because they were previously read the pretrial stipulation, in which Weinstein admitted to using the name without permission. The trial judge did, however, grant the challenge as to Kearns for other reasons.

The trial judge then turned to peremptory challenges, first allowing three per side. Weinstein used his three peremptory challenges to strike the three jurors who he failed to convince the judge to excuse for cause. Weinstein then renewed his challenges for cause as to those three jurors and requested additional challenges. The trial judge eventually gave each side two more challenges but denied Wein-stein’s request for a third additional challenge, for which Weinstein stated he wished to strike prospective juror Lizardi. Lizardi was then seated on the jury. Weinstein again in renewed his motion for an additional challenge to strike Lizardi, which the trial judge denied. The trial judge then , read the jury panel’s names into the record, whereupon Weinstein stated that he did not accept the panel. Wein-stein appeals the trial judge’s denials of his challenges for cause and refusals to grant sufficient additional peremptory charges.

The first issue Weinstein raises on appeal is that the trial court abused its discretion by denying his challenges for cause as to prospective jurors. We agree, and therefore we reverse the trial court’s denial of Weinstein’s challenges for cause and remand the case with directions that the judgment entered below be vacated and a new trial conducted.

Generally, because a trial court has a unique vantage point to determine juror bias, its determination of whether a challenge for cause is proper is a mixed question of law and fact that will not be overturned on appeal in the absence of manifest error. Smith v. State, 699 So.2d 629, 635-36 (Fla.1997). The Florida Supreme Court set forth the standard for determining juror bias in Smith:

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.

699 So.2d at 635 (citations omitted). “Close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.” Bryant v. State, 765 So.2d 68, 71 (Fla. 4th DCA 2000).

Fielder argues that none of the jurors at issue should have been removed for cause because the trial judge read a stipulation to the jurors, in which Weinstein admitted liability for using Fielder’s name without his permission. Fielder argues that the jurors merely expressed a sense of inequity based on Weinstein’s admitted liability. In Rolling v. State, 695 So.2d 278, 285 (Fla.1997), the Florida Supreme Court held that a juror is not required to be completely devoid of knowledge of the acts or be devoid of preconceived notions:

To hold that the mere existence of any preconceived notion as to the guilt of the accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror, can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Thus, if prospective jurors can assure, the court during voir dire that they are impartial despite their extrinsic knowledge, they are qualified to serve on the jury, and a change of venue is not necessary. Although such assurances are not dis-positive, they support the presumption of a jury’s impartiality.

Fielder also argues that because the challenged jurors did not claim to have a prejudged dollar amount they would award Fielder and would need to hear testimony and evidence to establish an amount, there were no grounds to challenge them for cause.

We find Fielder’s argument unpersuasive as to the bias of the three challenged prospective jurors who expressly admitted their predisposition toward Fielder (Rendelman, Dagostino, and Por-celli) and hold that they should have been excluded for cause. These three jurors manifestly raised reasonable doubts as to their capacity to be impartial, in that each expressed a predisposition for Fielder, and an inability to be certain that the predisposition could be set aside. “A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2003). During voir dire, these three panel members confirmed that they could not set aside “the edge” they-would give to Fielder. Each of their final answers to Weinstein’s counsel’s line of questioning on that issue appears below:

[Counsel]: There’s some doubt in your mind as to whether you could be fair to both sides starting out even, correct?
[Prospective Juror Rendelman]: I would like to think that I could put it aside and just look at it on an even scale, but it is something that I would be, it would be in my mind, yes.
[Counsel]: Is there some reasonable doubt in your mind about that?
[Prospective Juror Rendelman]: Yes [Counsel]: Ms. Dagostino, how do you feel about that, are we starting out even or—
[Prospective Juror Dagostino]: I said that there would be an edge and that you would have to catch up to them, but they would go in with the edge.
[Counsel]: Mr., Porcelli, going back to you, edge versus even Steven, is one side starting out ahead of the other in your mind here?
[Prospective Juror Porcelli]: According to what I have heard so far, yeah. I believe the Plaintiff does have a little bit of an edge because of the fact it seems someone has admitted he used his name without his permission:

In Imbimbo v. State, 555 So.2d 954, 955 (Fla. 4th DCA 1990), this court reversed a denial of a challenge for cause, after a juror admitted during voir dire that she “probably” would be prejudiced but “probably” could follow the judge’s instructions. Similarly, in Jaffe v. Applebaum, 830 So.2d 136 (Fla. 4th DCA 2002), this court held that it was error not to grant a challenge for cause as to a prospective juror who admitted that plaintiff would be starting out with “a half strike” against her.

Here, the three jurors all had difficulties similar to those described above. Furthermore, no further questioning rehabilitated them in any way. This case is similar to Franco v. State, in which a “juror never stated that she could follow the law after expressing her problems with the burden of proof and presumption of innocence. There was no attempt to rehabilitate the juror. Even if she had, it would not have necessarily made her acceptable.” 777 So.2d 1138, 1139 (Fla. 4th DCA 2001). Moreover, “[w]here, as in this case, a juror expresses views on [an issue of bias], and there is no subsequent change in those views, the trial court’s superior vantage point and discretion are of little consequence.” Id.

Finally, we note that any alleged error in failing to dismiss a juror for cause may be cured by granting additional peremptory challenges. Curtis v. State, 767 So.2d 627, 628 (Fla. 3d DCA 2000). However, “it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges.” Street v. State, 592 So.2d 369, 370 (Fla. 4th DCA 1992). Therefore, “[i]f, because of an erroneous denial of a challenge for cause, a party is forced to exhaust his or her peremptory challenges and, subsequently makes a request for additional peremptory challenges which is denied ... an appellate court will reverse and grant a new trial.” Imbimbo, 555 So.2d at 955.

In the present case, when the trial court denied these challenges for cause, Weinstein had to exhaust his peremptory challenges to remove the three from the panel. The trial court thereafter granted Weinstein two additional peremptory challenges, but denied his third requested peremptory, which was necessary to compensate for the three peremptories Weinstein used to dismiss jurors that should have been dismissed for cause. Consequently, Weinstein was unable to use a peremptory to remove juror Lizardi, as he sought to do, and the case was consequently tried to a jury that Weinstein did not accept.

Because (1) the three challenged jurors expressly admitted their predisposition toward Fielder; (2) the jurors were not rehabilitated after making statements that confirmed such bias; and (3) Weinstein, in effect, had to waste a peremptory challenge to dismiss a juror who should have been dismissed for cause, we reverse the trial court’s denial of Weinstein’s challenges for cause and remand the case with directions that the judgment entered below be vacated and a new trial conducted.

2. Weinstein’s motions for judgment as a matter of law on the Florida Design magazine article and allegedly undistributed brochures

Because the other issues on appeal are likely to recur upon a new trial, we address them as well. The parties dispute which of the four printed materials containing Fielder’s name give rise to Wein-stein’s admitted liability for unauthorized use of Fielder’s name. The parties agree that Weinstein is liable for (1) The Florida Design Source Book (hereinafter Source-book ) — a trade magazine consisting solely of advertisements (“advertorials”) and (2) the company’s one-time newsletter to existing clients. However, the parties disagree over whether Weinstein is also liable for (3) the Florida Design magazine article and (4) the allegedly undistributed brochures of copies of the Florida Design article.

Weinstein’s second argument is that the trial court erred by denying Weinstein’s motions for summary judgment and directed verdict as to the Florida Design magazine article and the brochures, thus allowing the jury to consider these in their deliberations. We disagree and affirm.

The standard of review of summary judgment orders is de novo. See The Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003). “When reviewing a ruling on summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.” City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003). Similarly, when reviewing a trial court’s denial of a motion for directed verdict, an appellate court must view the evidence and all inferences in a light most favorable to the non-mov-ant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant. Anesthesiology Critical Care & Pain Management Consultants, P.A. v. Kretzer, 802 So.2d 346, 351 (Fla. 4th DCA 2001).

2.A. The two-issue rule

As a preliminary matter, Fielder argues that the “two-issue rule” precludes consideration of the trial court’s denial of a directed verdict as to the Florida Design article and the brochures. The two-issue rule was adopted by the Florida Supreme Court in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181, 1186 (Fla.1977). As this court explained in Zimmer, Inc. v. Birnbaum, 758 So.2d 714, 715 (Fla. 4th DCA 2000), the two-issue rule provides: “where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.”

The two-issue rule is inapplicable here because the rule applies—in the case of a losing defendant—only to actions brought on two theories of liability, as to which just a single basis for damages applies, not to claims in which separate damages are recoverable. The Florida Supreme Court’s holding in First Interstate Development Corp. v. Ablanedo, 511 So.2d 536, 538 (Fla.1987), supports this distinction: “the two-issue rule does not apply when two distinct claims for liability result in separate claims for damages in the same action.”

2.B. Florida Design magazine

Weinstein argues that the article published in the Florida Design magazine constitutes, as a matter of law, an exception to section 540.08, Florida Statutes, and therefore should not have been submitted to the jury for consideration. Section 540.08, entitled “Unauthorized publication of name or likeness,” provides, in pertinent part: “No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use.” The statute does not apply to:

The publication, printing, display, or use of the name or likeness of any person in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes;

§ 540.08(3)(a), Fla. Stat.

This court has given an expansive interpretation to this exception. In Loft v. Fuller, 408 So.2d 619, 622-23 (Fla. 4th DCA 1981), this court stated:

In our view, Section 540.08, by prohibiting the use of one’s name or likeness for trade, commercial or advertising purposes, is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher. Thus, the publication is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it associates the individual’s name or his personality with something else. Such is not the case here. While we agree that at least one of the purposes of the author and publisher in releasing the publication in question was to make money through sales of copies of the book and that such a publication is commercial in that sense, this in no way distinguishes this book from almost all other books, magazines or newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute.... We simply do not believe that the term “commercial,” as employed in Section 540.08, was meant to be construed to bar the use of people’s names in such a sweeping fashion. We also believe that acceptance of appellants’ view of the statute would result in a substantial confrontation between this statute and the first amendment to the United States Constitution guaranteeing freedom of the press and of speech.

In the present case, Weinstein argues that the Florida Design article should not have been considered by the jury because, as the magazine’s associate editor Galbo testified, the article was of current legitimate public interest, and was an editorial which the magazine paid a reporter to write for the magazine — as opposed to an advertisement paid for by Weinstein. Gal-bo stated, “Florida Design is a quarterly publication and when they do an editorial, it’s a story written through a designer about a home that we would feature.” Galbo also testified that this article was an editorial about Robert Weinstein’s own home, which was of interest “from the magazine’s point of view, [because] the layout of the home was special ... so the home is of interest.”

Weinstein asserts that the editor of a magazine is best situated to determine what items are of current legitimate interest to the members of the public who are likely purchasers of the magazine — or the magazine will not attract purchasers. He argues that Galbo’s testimony was unre-butted and was the only record evidence on this issue, which he claims should have compelled the trial court to hold that the magazine falls within the statutory exception to section 540.08 because (1) the article was of current legitimate interest; (2) the magazine published the article as an editorial; and (3) it was not an advertisement paid for by Weinstein.

On the other hand, Fielder argues that whether the Florida Magazine article is exempt under section 540.08(3) was properly a factual issue for the jury. Fielder argues that multiple instances of undisputed testimony at trial could have allowed the jury to conclude that the Florida Design magazine article was being used for advertising purposes: (1) Maxine Adler, Weinstein’s publicist, testified that it was her intention to get Weinstein profiled in as many articles in as many different publications as possible, to generate business for Weinstein; (2) Weinstein sought publication of the article, submitted the photographs used in the article, and was given a copy of the article pre-publication for approval; and (3) use of Fielder’s name in the article came about exclusively through information supplied by Weinstein, not from any independent research by the article’s author. Fielder contends, therefore, that a fair inference to be drawn from the Florida Design article is that the article was published to advertise Weinstein and his services. Additionally, the fact that Weinstein paid about five thousand dollars to produce one thousand brochures of the article for distributing to prospective clients does indicate that the article itself may have had some advertising value.

While it is a close call, we hold that the standard for reversal under Anesthesiology Critical Care, 802 So.2d at 351, is not met here. In deciding whether section 540.08 is applicable to the Florida Design article, we examine the evidence in the light most favorable to Fielder, the non-moving party. Even considering this court’s expansive application of the exception in section 540.08(3), we cannot say that the record would support the holding that “no proper view of the evidence could sustain a verdict in favor of the non-mov-ant.” Id. Therefore, based on the evidence presented at trial, we affirm the trial court’s denials of Weinstein’s motions for summary judgment and directed verdict as to the Florida Design magazine article.

2.C. The brochures

Weinstein also argues that the allegedly undistributed brochures should not have been submitted to the jury for consideration. It is undisputed that the brochures constitute advertisement. Wein-stein argues, however, that the brochures provide no legal basis for liability because the record shows that Weinstein (1) brought the box of brochures to the court room; (2) testified that he had hand-counted them (as could Fielder if he wished); (3) testified that he had 982 out of 1000; (4) testified that he had given the remaining 18 to attorneys in both this litigation and in the arbitration matter and that his staff had taken some; (5) testified that he did not disseminate the brochures; and (6) testified that he was not aware of any brochures that were ever published to the public.

On the other hand, Fielder contends that the brochures nevertheless provide liability under section 540.08 because the language of the statute provides that “No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising pur-pose_”• § 540.08, Fla. Stat. (emphasis added). It is undisputed that Weinstein did print the brochures for advertising purposes. Therefore, we hold that, while Weinstein’s evidence that the brochures were never distributed is relevant to the jury’s determination of damages resulting from printing the brochures, the trial court correctly denied Weinstein’s summary judgment and directed verdict motions as to the brochures, allowing the jury to consider them in determining any damage award.

3. Punitive damage claim

The parties disagree as to whether the trial judge correctly allowed a punitive damages claim to be submitted to the jury. During trial, Weinstein admitted to (1) using Fielder’s name for advertising purposes for approximately two years; (2) knowing he needed Fielder’s consent prior to using his name in advertisements; and (3) not receiving Cecil Fielder’s consent to use his name for commercial purposes.

The parties also disagree as to whether Stacy Fielder had given Weinstein oral permission. While Weinstein testified that she gave him oral permission, Stacey Fielder testified that she never gave him such permission. Weinstein also testified that he believed Stacey Fielder had the authority to give him permission to use Cecil Fielder’s name and that he did not know that the statute required written authorization for a third party to give permission on behalf of the person whose name is to be used. Finally, it is undisputed that, when Weinstein learned of Fielder’s objections, he never used Fielder’s name again.

Weinstein argues that the trial court erred by denying his motion for directed verdict on the punitive damages claim, thus submitting the punitive damages claim to the jury. We agree.

Section 540.08(2), Florida Statutes, provides, in part,

In the event the consent required in subsection (1) is not obtained, the person whose ... photograph, or other likeness is so used ... may bring an action to enjoin such unauthorized publication, printing, display or other public use, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.

(Emphasis added.) However, the statute does not clarify for the court the standard for determining when instructions regarding punitive damages are appropriate. This court recently summarized the principles governing appellate review regarding whether evidence was sufficient to permit submission of a punitive damage claim to the jury in Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002):

We therefore reiterate our observations in White urging restraint upon the courts in ensuring that the defendant’s behavior represents more than even gross negligence prior to allowing the imposition of punitive damages, in order to ensure that the damages serve their proper function. While we remain hesitant to have trial courts routinely remove the question from the jury’s consideration, we note that a directed verdict may properly be granted unless the evidence establishes that the behavior in question involves the following type of misconduct:
The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.”

Id. at 31. Applying this standard in Air Ambulance Professionals, this court reversed the trial court’s denial of a directed verdict on a punitive damages claim because there was no evidence “of an illicit scheme to put [plaintiff] out of business. Likewise, there was no evidence of fraud or malice ..., of any other type of behavior which would justify punitive damages.” Id. at 31.

In Genesis Publications, Inc. v. Goss, 437 So.2d 169 (Fla. 3rd DCA 1983), an invasion of privacy action arising from the publication by a magazine publisher of a nude photograph of the plaintiff in an advertisement without her permission, the court held that punitive damages were inappropriate. Id. at 171. The defendant argued at trial that it had relied on advertising agencies to obtain the necessary permission for use of the photographs, pursuant to industry practice. Finding insufficient evidence to support punitive damages, the court reversed the trial court’s decision to allow the jury to consider punitive damages. Id. at 170. The court held that the record evidence was sufficient to sustain a finding of intentional conduct by publisher, but not a wanton disregard of plaintiffs rights. Id. “The terms ‘recklessness, wantonness and willfulness,’ when used to justify punitive damages implies a knowledge and present consciousness not simply that a statute or right will be violated but that injury will result.” Id. at 170-71.

On the other hand, in Sun International Bahamas, Ltd. v. Wagner, 758 So.2d 1190 (Fla. 3d DCA 2000), the court found that, because the defendant knew that its contract to use the plaintiffs likeness in advertisements had expired and did so anyway, punitive damages were appropriate. Id. at 1191-92. The court distinguished Genesis Publications “because there is substantia] evidence in the record that, unlike the defendant in Genesis, [defendant] had direct knowledge ... that it had no permission to use [plaintiffj’s photographs.”

In the present case, there is no evidence of intentional, malicious misconduct, undertaken with knowledge that injury to Fielder would result. In fact, Weinstein testified that he believed that he had permission from Stacey Fielder and that the association of Fielder’s home with Wein-stein’s firm would benefit Fielder — “[fit’s very prestigious.”

We do not find the Sun International holding to be persuasive in this case. This court has made it clear that punitive damages are reserved for particular types of behavior which go beyond mere intentional acts. See, e.g., Air Ambulance Professionals, 809 So.2d at 30. (“Record evidence may support an intentional tort, but not necessarily an award of punitive damages.”) Furthermore, “[p]u-nitive damages are in a sense explicitly based on juror emotion, in that one function of the award is to express society’s collective outrage at unacceptable behavior _punish and deter.” Id. at 30-31. We hold that, even when viewing the record evidence in the light most favorable to Fielder, the non-movant, the evidence is insufficient to meet the high standards set forth above that this court has applied in “limiting punitive damages to truly culpable behavior.” Id. at 30. Therefore, we reverse the denial of a directed verdict on the punitive damages claim and remand with instructions to vacate the punitive damages award and to grant Weinstein’s motion for directed verdict as to punitive damages.

4. Compensatory damages claim

Finally, Weinstein argues on appeal that the trial court’s refusal to deny his motions for remittitur and a new trial based on the jury verdict of $300,000 in compensatory damages for the statutory claim were error because such award was excessive. We disagree and affirm.

Fielder’s damage expert, Cliff Courtney, testified at trial: “Based on my experience dealing with celebrities, baseball players, and the world of advertising endorsements, I would guess at least a million dollars for this type of usage.” He later stated, “I think based on my experience, my opinion is at least a million dollars. I think that’s in the deposition, five hundred thousand to a million.” Courtney explained that the two main considerations in his valuation were “first of all, what is Cecil’s name worth and only Cecil can decide that ultimately and no one else deserves the right to decide that” and “also what potentially could he have lost in terms of potential for future endorsements.” Courtney also testified that he believed Fielder is a unique commodity.

On the other hand, Weinstein argues that Courtney’s testimony is unsupported because evidence from Fielder’s testimony and tax returns showed that the most Fielder had ever been paid was $250,000 for a Reebok contract of over five years. Fielder’s tax returns show that uses of his name for endorsements actually yielded an average of $7500 per endorsement.

Annette Galbo, the corporate representative of Florida Design, testified regarding the Source Book and Florida Design magazine. She stated that the Source Book is published twice a year, although she was unaware of its circulation figures. Galbo testified that Florida Design magazine has an approximate circulation of 200,-000 per issue and is read in 57 countries. She also testified that readers keep Florida Design magazine for some time after publication, and she believed the same was true of the Source Book.

On the other hand, Weinstein’s expert Daniel Muggio testified that the value to Weinstein of using Fielder’s name was “maybe five to ten thousand dollars.” He testified that Fielder’s past endorsement contracts were mostly for five to ten thousand dollars.

Muggio testified that the Florida Design magazine is circulated predominately in Florida and is only published in English. He also testified that the magazine “is skewfed] towards more female head of houses” and that “[fjrom being involved in aspects of marketing, I would say men would be more likely to know a baseball figure.”

Orders on motions for remitti-tur are reviewed for abuse of discretion. See, e.g., Hernandez v. Gisonni, 657 So.2d 33 (Fla. 4th DCA 1995). Remittitur cannot be granted unless the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice. See Barbholf v. Baker, 71 So.2d 480, 484 (Fla.1954):

We have repeatedly held that we will not reverse a case for a new trial on the ground that the verdict is excessive, unless it appears upon a consideration of all the testimony that the verdict was so much greater than it should have been as to shock the judicial conscience. We have also held that the burden is upon the appellant to establish the fact that the verdict is wholly unsupported by the evidence or was the result of passion, prejudice or other improper motive.

Section 540.08(2) provides that “damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.”

At trial, each side put on damage experts, whose testimonies created a significant disparity in the royalty value of Fielder’s name for Weinstein’s uses, as discussed above. Weinstein argues that Courtney’s testimony estimating a wide-ranging “five hundred thousand to a million” is incompetent as evidence of damages. However, Weinstein did not seek at trial to strike Courtney’s testimony as speculative. Weinstein asserts that the jury’s verdict should have corresponded with evidence provided by Fielder’s tax returns that his average endorsement contract was about $7,500 and that the most Fielder had ever been paid for the use of his name was $250,000 for a five-year Reebok contract.

As this court held in Gordon v. Smith, 615 So.2d 843, 844 (Fla. 4th DCA 1993):

It is axiomatic that a finder of fact may judge the persuasiveness and credibility of an expert’s testimony and apply his own knowledge and experience when weighing opinion evidence. When that expert has been hired and called to testify by one of the adversaries to a contested proceeding, there is nothing unreasonable or improper with the fact finder declining to accept the testimony of such an expert.

In the present case, the jury heard testimony from the experts not only on the value of Fielder’s name but, significantly, in context of Weinstein’s present argument about the unsupported nature of Courtney’s testimony, the jurors also heard testimony on the considerations which went into the experts’ valuations. The jury, when presented with expert testimony with competing opinions on the amount of damages, was free to accept or reject all or part of the testimony as it saw fit. See id. The jury returned a verdict of damages between the ranges proposed by the two experts, and actually closer to the testimony of Weinstein’s expert than Fielder’s expert. However, since we have ordered a new trial the issue of remittitur is moot.

Accordingly, for these reasons we reverse the denial of Weinstein’s challenges for cause and remand for new trial, affirm the denial of Weinstein’s motions for summary judgment and directed verdict on the Florida Design magazine article and allegedly undistributed brochures, reverse the punitive damage award, and the denial of remittitur for the compensatory damage award is moot.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL.

MAY, J., and GOLD, MARC H., Associate Judge, concur.

      . Although the question of whether Stacey Fielder gave Weinstein oral permission to use Cecil Fielder’s name is irrelevant to liability under section 540.08, Florida Statutes (which would require permission by Cecil Fielder), it is arguably relevant to the contested issue on appeal of whether the issue of punitive damages should have gone to the jury.

      . The statute allows either oral or written, permission from the person whose name is used, but in a case where a third party gives consent on behalf of the person whose name is to be used, the statute requires a written authorization from the person whose name is used to the consenting third party. § 540.08(l)(b), Fla. Stat.


text:
    Richard Alfred WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3935.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Richard Alfred Washington, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ALLEN, VAN NORTWICK and BROWNING, JJ„ concur.


author: BROWNING, J.

text:
    OSCEOLA COUNTY SCHOOL BOARD and Florida School Board Insurance Trust, Appellants, v. Dawn ARACE, Appellee.
    No. 1D03-3177.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.

      Danni Lynn Germano, and Sarah P. Reiner of Broussard, Cullen & Degailler, P.A., Orlando, for Appellants.
    Dennis J. Hunter of the Law Office of Dennis J. Hunter, Orlando, for Appellee.
   BROWNING, J.

This workers’ compensation appeal presents a question of first impression: the definition of the phrase “initial provision of benefits” in section 440.20(4), Florida Statutes (2000). From the plain meaning of the wording, we conclude that the phrase refers to the first examination or treatment by an authorized treatment provider.

Appellants seek review of an order of the Judge of Compensation Claims (JCC) finding compensability and awarding evaluation of Appellee/Claimant by an allergist. Appellants raise two arguments on appeal: that their denial of compensation was timely under section 440.20(4), Florida Statutes (2000); and that the record does not contain competent, substantial evidence to support the trial court’s finding that the industrial accident is the major contributing cause of Claimant’s injury. Because the second argument was not preserved for appeal by argument below, we address only the first argument. Because we disagree with the trial court that Appellants’ denial of compensability was untimely, we reverse.

Section 440.20(4) provides that if a workers’ compensation carrier is uncertain of compensability, it can

admit or deny compensability within 120 days after the initial provision of compensation or benefits.... A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.

§ 440.20(4), Fla. Stat. (2000). The phrase “initial provision of benefits” is not explicitly defined in this version of the statutes. However, the meaning of the statute can be determined by examination of the plain meaning of the wording. See Holly v. Auld, 450 So.2d 217 (Fla.1984).

The use of the disjunctive “or” makes clear that the words “compensation” and “benefits” refer to two distinct entities. It is clear that payment of compensation refers to the payment of temporary or permanent, partial or total, disability benefits because section 440.20(l)(a) states that “the carrier shall pay compensation directly to the employee as required by ss. 440.14, 440.15, and 440.16 ...,” and those statutes refer to the payment of disability or death benefits as calculated from the average weekly wage. Accordingly, the term “benefits” as used in section 440.20 must mean something other than payment of disability benefits.

We conclude that the “initial provision of benefits” occurs on the date a claimant visits an authorized physician. Authorization makes a doctor’s visit, and payment for that visit, possible, but it does not obligate the employer and carrier to pay for that visit until the visit takes place. Further, such a visit could produce the first available information useful to the employer and carrier to determine whether the injury is compensable, which is one of the reasons for the 120-day period. Therefore, the first authorized doctor’s visit by a claimant is the “initial provision of benefits,” beginning the 120-day pay-and-investigate period mentioned in section 440.20(4), Florida Statutes (2000).

In the instant case, Appellants denied the claim for compensation within 120 days after the claimant’s first authorized doctor’s visit, which was within the statutory pay-and-investigate period. Because Appellants’ denial of compensability was timely, we REVERSE the JCC’s order and REMAND for proceedings consistent with this opinion.

ALLEN and VAN NORTWICK, JJ., concur.

      . The phrase has been defined in the statutes only since October 1, 2001. Ch.2001-91, § 17, at 777-78, Laws of Fla.


text:
    Betty BRADLEY, Rosemarie Brown, Chuck Dierdorf, Elizabeth Dillon, Frank and Myrtle Hockaday, James Marshall, Phil and Marjorie Regan, Ray Selvey, Rene Slaughter, Oz Weisner, Richard Bradley, Lynn Slaughter, and Vicki Todd Claudia Witkowski, Appellants, v. Angie FERRER, Appellee.
    No. 1D04-3628.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.
    Stephen G. Murty, Ocala, for Appellants.
    Mizell Campbell, Jr., of Three Rivers Legal Services, Gainesville, for Appellee.
   PER CURIAM.

Having considered the appellants’ response to this Court’s order dated August 20, 2004, the appeal is hereby DISMISSED. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); Russo v. Ford Motor Co., 847 So.2d 572 (Fla. 1st DCA 2003).

ERVIN, BOOTH and KAHN, JJ., CONCUR.


text:
    A.R. HOLLAND, INC., Appellant, v. WENDCO CORPORATION, Lodgesouth, Inc., and Richard R. McAlpin, Appellees.
    No. 1D03-5198.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.
    Rehearing Denied Nov. 3, 2004.

      Thomas M. Brady, Pensacola, for Appellant.
    Robert A. Emmanuel and H. Wesley Reeder, of Emmanuel, Sheppard & Con-don, Pensacola, for Appellees.
   PER CURIAM.

Appellant A.R. Holland, Inc. is a Burger King restaurant franchisee who built and operates a Burger King restaurant located on the north side of U.S. Highway 98 West near its intersection with Fairfield Drive in Escambia County, Florida. In 1989, Holland purchased the subject real property location from Seller, McAlpin Properties, Inc., a Florida corporation, pursuant to a written Purchase and Sales Agreement. Paragraph 15 of the Purchase and Sales Agreement contained the following covenant:

As a material inducement for the Purchaser to enter into this Agreement the Seller covenants that no property presently owned or hereafter acquired by the Seller within fifteen hundred (1,500) feet to the described property shall be sold or leased for use or occupancy for a business activity primarily used as a fast food restaurant whose primary menu item is hamburger or hamburger combinations similar to that being conducted by Purchaser. This covenant on the part of the seller shall survive the closing of this transaction and be for a period of twenty (20) years.

The parties to this appeal stipulated before trial that this covenant did not run with the land.

Later, the Seller, McAlpin Properties, Inc. merged into Appellee Lodgesouth, Inc., a Florida corporation. Lodgesouth, as successor of the Seller, became responsible for the covenant. On February 23, 2000, Lodgesouth conveyed property to Wendco Corporation, a Wendy’s restaurant franchisee. The property sold to Wendco is located approximately 655 feet from Holland’s Burger King restaurant location on Highway 98.

After a bench trial, the trial court entered its final judgment, ruling that the appellees were not liable to Holland because Holland did not prove by a preponderance of the evidence that a breach of the covenant had occurred. In the proceeding below, it was Holland’s burden to prove that (1) a contract existed, (2) the contract was breached, and (3) damages flowed from that breach. See Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977). Although we agree with Holland that there is not competent substantial evidence to support the trial court’s finding that it failed to prove breach of the covenant, we affirm because Holland’s claim for damages was speculative. See Cedar Hills Props. Corp. v. E. Fed. Corp., 575 So.2d 673, 678 (Fla. 1st DCA 1991) . (ruling that where the evidence indicates a number of reasons for losses, the claimant is required to show that the breach was a “substantial factor” in causing the damages); Kaklamanos v. Allstate Ins. Co., 796 So.2d 555, 560 (Fla. 1st DCA 2001) (ruling that damages sustaining an action for breach of contract must not be based upon speculation).

AFFIRMED.

DAVIS, LEWIS and POLSTON, JJ., CONCUR.

      . Lodgesouth argues on appeal that its merger with McAlpin Properties extinguished the personal covenant. While both parties introduced testimony about the covenant and merger, neither party introduced the actual merger agreement into evidence. In any case, Lodgesouth admitted that it was responsible for the covenant even after the merger by failing to deny Holland’s allegation in the complaint that Lodgesouth became responsible for the covenant after its merger with McAlpin Properties. See Fla. R. Civ. P. 1.110(e).

      . Holland's claim for damages was speculative because it failed to take into consideration any cause of lost profits other than the Wendy's opening on property Lodgesouth sold to Wendco. The record indicates that there were other factors that attributed to Holland’s losses, including road construction, national marketing problems, and internal operating issues. Moreover, Wendco intended to place a Wendy’s restaurant on other nearby unrestricted property even if this property sale had not occurred.


text:
    Johnny C. BEARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2202.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.

      Bennett H. Brummer, Public Defender and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS, H., JR., Senior Judge.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion filed on March 31, 2004, and substitute the following in its stead.

In August 2001, Officer Denise Bern-hard detained Johnny Beard because he matched a description given in a citizen’s complaint. Officer Bernhard asked Beard his name and where he was going. Beard gave several different names and claimed he had no identification. Beard’s agitated manner, clenched fists, and uncooperative behavior prompted Officer Bernhard, who was working alone, to call for back-up. Officer Franklin Adams soon arrived on the scene. Beard, still agitated and refusing to sit down, continued to give false names to the police. Eventually, Beard gave his true name, which appeared in a police database showing that a civil writ of attachment had been filed against him.

Given the outstanding writ of attachment and Beard’s similarity to the complainant’s description, Officer Bernhard took out her handcuffs. Beard flailed his arms and said he didn’t want to go. He then lunged at Officer Bernhard, causing her to move backward. Both officers tried to handcuff Beard, who was struggling and kicking. Finally, Officer Bernhard managed to handcuff Beard’s left arm. She tried to clamp the other end of the handcuff to a chain-link fence in back of Beard, but was unsuccessful. The officer called for additional emergency back-up. Beard then fell forward, causing both officers Bernhard and Adams to fall to the ground with him. Officer Bernhard required stitches to her knee, and Officer Adams incurred a sprained wrist, and a rotator cuff injury. Beard continued to struggle until he was subdued by several additional officers.

Beard was charged by information with one count of resisting arrest with violence towards “Officer D. Bernhard and/or Officer F. Adams” and separate counts of battery against each officer. Beard’s counsel deposed Officer Adams, but neither party called him to testify at trial. Officer Bern-hard and two other police officers testified during the course of the trial. Beard conceded that he had resisted arrest, but denied that he had resisted with violence. During closing argument, Beard’s counsel argued that the state had not met its burden of proof with regard to the battery of Officer Adams because the officer had not testified. The State objected, citing Haliburton v. State, 561 So.2d 248 (Fla.1990). The judge sustained the objection and instructed the jury to disregard defense counsel’s remark regarding the officer’s absence. Beard was acquitted of both battery charges but found guilty of resisting arrest with violence. The sole issue on appeal is whether the trial court abused its discretion in disallowing, defense counsel’s comment regarding Officer Adams’s absence. Finding that the trial court did not abuse its discretion, we affirm.

Defense counsel’s argument regarding Officer Adams’s absence, was directed solely to the battery charge involving Officer Adams. Beard was acquitted of this charge. Thus, even if the trial court had abused its discretion in disallowing defense counsel’s comments, this “error” is irrelevant to the conviction and sentence appealed from here, and therefore moot.

Moreover, Beard was charged dis-junctively with resisting arrest by “Officer D. Bernhard and/or Officer F. Adams[.]” The testimony of Officer Bernhard produced competent substantial evidence, the sufficiency of which has not been challenged, upon which a jury could believe that Beard was guilty of this offense.

Accordingly, we affirm.

      . Defense counsel stated, in closing: "[0]ne of the counts that they want you to find Mr. Beard guilty of is battery on Officer Adams. That he intentionally touched and hit Officer Adams. How can you find that they proved that beyond a reasonable doubt when Officer Adams wasn't even here.”


author: TAYLOR, J.

text:
    Clifford BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3075.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Clifford Burns appeals the judgment and sentence entered after his no contest plea to robbery and aggravated assault with a firearm. He contends that the trial court committed fundamental error by failing to hold a competency hearing prior to accepting his plea. We disagree and affirm.

Almost a year before the defendant’s plea hearing, as part of proceedings relating to the defendant’s motion to suppress his confession, two experts examined the defendant and concluded that he was mildly retarded but competent to proceed to trial. At the beginning of the plea hearing, defense counsel advised the trial court that the defendant had a very low IQ and asked the court to proceed slowly with the plea colloquy. When the trial court asked defense counsel whether the defendant’s IQ presented a competency issue, the following occurred:

The Court: Mr. Akins [Defense Counsel], as part of the IQ level is there an issue of competency or issue that we need to take?
Mr. Akins [Defense Counsel]: No sir, that’s already been — that’s already been litigated.
Mr. Amos [Prosecutor]: We’ve already had a full hearing in front of Judge Makemson prior to the Motion to Suppress regarding this issue or actually part of the Motion to Suppress which we litigated all of those.
The Court: Okay.
Mr. Akins [Defense Counsel]: And in my opinion—
The Court: Nothing’s changed since then, right. I mean nothing added has happened or anything.
Mr. Akins [Defense Counsel]: In my opinion, Your Honor, I represented him both at the original time the case was evaluated for a competency and in my opinion I don’t believe — I believe, in fact, he’s a little bit better than he was at that time. So I don’t believe it’s an issue.

Following a lengthy plea proceeding, the defendant pled no contest to the felony offenses without reserving any issue for appeal. After sentencing, he did not file a motion to withdraw his plea. He now argues on appeal that the trial court committed fundamental error by accepting his pleas without sua sponte ordering a hearing to determine his competency to enter a plea.

Generally, to obtain appellate review of a plea of guilty or no contest, the defendant must have specifically reserved dispositive issues for appeal or filed a motion to withdraw the plea in the trial court. See State v. Thompson, 785 So.2d 482, 485 (Fla.1999); Robinson v. State, 373 So.2d 898 (Fla.1979); Liebman v. State, 853 So.2d 514 (Fla. 4th DCA 2003), review denied, 865 So.2d 480 (Fla.2004); Harriel v. State, 710 So.2d 102, 106 (Fla. 4th DCA 1998)(en banc).

As we recently stated in Liebman:

Appeals following a plea of guilty or no contest are governed by Florida Rule of Appellate Procedure 9.140(b)(2)(A), which provides that, following a plea, a defendant may appeal only those dispos-itive issues specifically reserved or, if no issues were reserved, the lower court’s lack of subject matter, jurisdiction; a violation of the plea agreement, if preserved by motion to withdraw the plea; an involuntary plea, if preserved by motion to withdraw the plea; and a sentencing error, if preserved.

Id. at 515; see also State v. T. G., 800 So.2d 204, 206 (Fla.2001)(“ ‘If the record raises issues concerning the voluntary or intelligent character of the plea, that issue should first be presented .to the trial court in accordance with the law and standards pertaining to a motion to withdraw a plea.’ ”)(quoting Robinson, 373 So.2d at 902).

In this case, the defendant did not reserve the right to appeal the competency issue when he entered his no contest plea. More important, he could not have reserved the right to appeal this issue because an order determining him competent would not have been a dispositive order. See Fuller v. State, 748 So.2d 292, 294 (Fla. 4th DCA 1999)(holding that a defendant’s competency is not a legally disposi-tive issue; thus, the appellate court lacks jurisdiction to consider an appeal from such issue).

However, the defendant could have preserved the competency issue by first presenting it to the trial court in a timely motion to withdraw his plea. A defendant’s competency at the time of entering a guilty or no contest plea is an issue bearing upon the voluntary and intelligent character of the defendant’s plea. See Trawick v. State, 473 So.2d 1235 (Fla. 1985); Trujillo-Pentate v. State, 609 So.2d 72, 73 (Fla. 1st DCA 1992), quashed on other grounds, 620 So.2d 1231 (Fla.1993). An issue relating to the voluntary and intelligent nature of the plea falls within the limited class of issues which a defendant may raise on appeal from a guilty or no contest plea without having specifically reserved the right to do so. See Strong v. State, 555 So.2d 950, 951 (Fla. 1st DCA 1990)(citing Robinson). However, before raising such an issue on appeal, the defendant must first file with the trial court a motion to withdraw the plea. See Lieb-man. The defendant in this case failed to do so and is thus precluded from obtaining appellate review of the judgment entered on his no contest plea.

The defendant argues, however, that the trial court’s failure to sua sponte order a competency hearing constitutes fundamental error that can be raised for the first time on appeal. We reject this position. As the supreme court explained in T. G., to adopt this view would effectively eliminate the requirement of first moving for a plea withdrawal in the trial court. See 800 So.2d at 206 (citing Robinson’s rationale for requiring defendants to attack the validity of guilty pleas in the trial court before challenging the plea on direct appeal). T.G. observed that:

[Wjithout a timely filing of a motion to withdraw plea,, “there would be no record relating to the claim and there would be no ruling or decision to review in appellate court.” Rhodes v. State, 704 So.2d 1080, 1082 (Fla. 1st DCA 1997); see also Duhart v. State, 548 So.2d 302, 303 (Fla. 5th DCA 1989)(noting that the preservation requirement “more precisely frames the issue, arguments, and factual record and thereby facilitates appellate review”).

Id. at 210.

In T. G., the supreme court held that the preservation rule in Robinson also applies to juvenile appeals. There, however, after finding fundamental error in the trial court’s failure to provide counsel to a juvenile entering a no contest plea, the supreme court allowed reversal despite the juvenile’s failure to file a motion to withdraw his plea. In doing so, the court explained that it,was recognizing this “narrowly drawn, and extremely limited” exception to the Robinson preservation requirer ment because of its “unique concern for juveniles who enter pleas without the benefit of counsel.” 800 So.2d at 213. It emphasized and re-affirmed the principle that in most other cases involving a challenge to the voluntariness of a plea, the procedure in Robinson must be followed. See id. '

. In this case, the defendant urges us to disregard his noncompliance with Robinson and find fundamental error 'in the trial court’s failure to order a competency hearing. He correctly argues that a defendant has a due process right to á determination of competency to proceed to trial whenever it appears reasonably necessary. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Florida Rule of Criminal Procedure 3.210(b) implements this right and requires the trial court to order a competency hearing on its own motion whenever it has reasonable grounds to believe that the defendant is not competent to proceed. See Lane v. State, 388 So.2d 1022, 1025 (Fla.1980). A trial court’s failure to order a competency hearing on its own motion when it has a reasonable ground to believe that the defendant is not mentally competent to proceed constitutes an abuse of discretion. See Robertson v. State, 699 So.2d 1343 (Fla.1997), receded from on other grounds by Delgado v. State, 776 So.2d 233 (Fla.2000); Fowler v. State, 255 So.2d 513 (Fla.1971).

Although a trial court’s failure to order a competency hearing on its own motion when it reasonably appears necessary constitutes an abuse of discretion, we do not deem such error “fundamental” so as to obviate the need for filing a motion to withdraw in the trial court before attacking the voluntariness of the plea on appeal. An asserted violation of rule 3.210(b) raises an issue concerning the voluntary or intelligent character of a defendant’s plea that must first be presented to the trial court in accordance with Robinson and Liebman.

Accordingly, we affirm the judgment and sentence without prejudice to the defendant’s right to seek appropriate post-conviction relief in the trial court.

GUNTHER and STEVENSON, JJ., concur.

      . Even if we were to pass on the merits of this case, we would be hard pressed to find an abuse of discretion where defense counsel advised the court that the defendant's competency was not an issue and assured the court that the defendant’s ability to understand the proceedings had actually improved since the earlier court proceedings when he was found competent to proceed.


text:
    Louis TEMPLEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3730.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2004.
    Louis Templeman, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, C.J., BARFIELD and WEBSTER, JJ., concur.


author:
BENTON, J.
      ERVIN, J.,

text:
    Kenneth JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1066.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2004.
    Rehearing Denied in Part and Granted in Part Oct. 11, 2004.

      Nancy A. Daniels, Public Defender, and John R. Alfino, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On consideration of appellant’s motion for rehearing, we withdraw our prior opinion and substitute the following.

Kenneth Jenkins appeals three of four sentences imposed in consequence of convictions arising out of two separate criminal episodes. He contends that the trial court erred by imposing ten-year sentences for convictions on Counts I, battery of a law enforcement officer, and IV, resisting an officer with violence, because the sentences exceed the statutory maximum for third-degree felonies; by imposing a consecutive sentence for the conviction on Count III, fleeing or attempting to elude arrest, because, he alleges, all four convictions arose from what was really a single criminal episode; and, finally, by imposing a sentence under the Prison Releasee Reoffender Punishment Act for the conviction on Count I, because battery of a law enforcement officer is not, he contends, a qualifying offense. We affirm the sentence for Count III, but reverse the sentences for Counts I and IV.

On Jenkins’s motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b), the trial court struck the habitual felony offender designation for the sentences earlier imposed on the Count I and IV convictions, but did not reduce the ten-year habitual felony offender sentences to the five-year statutory máximums that apply, absent habitualization. Because both resisting an officer under section 843.01, Florida Statutes (2002), and battery of a law enforcement officer under section 784.07(2)(b), Florida Statutes (2002), are third-degree felonies subject to maximum sentences of five years under section 775.082(9)(a)(3)(d), Florida Statutes (2002), we reverse the ten-year sentences imposed for those offenses and remand for resentencing.

We affirm the consecutive habitual felony offender sentence for Count III, because Jenkins’s act of fleeing or attempting to elude two officers who were in their patrol vehicles with sirens and lights activated, in violation of section 316.1935(2), Florida Statutes (2002), occurred in a different location and at a different time than the other three offenses, which arose from Jenkins’s earlier conduct toward an officer who was on bicycle patrol. See Hale v. State, 630 So.2d 521, 524 (Fla.1993); Murray v. State, 491 So.2d 1120, 1124 (Fla.1986); Parker v. State, 633 So.2d 72, 74 (Fla. 1st DCA 1994).

Finally, we reject appellant’s contention that the Prison Releasee Reoffen-der Punishment Act does not apply to the battery of a law enforcement officer which was proven in this case. See Branch v. State, 790 So.2d 437, 439 (Fla. 1st DCA 2000) (“The appellant meets the criteria for classification as a prison releasee reof-fender, for within three years of his 1996 release from a D.O.C. state correctional facility, he committed battery on a law enforcement officer, a qualifying offense that falls within the ambit of statutory subsection (8)(a)(l)(o), which includes ‘[a]ny felony that involves the use or threat of physical force or violence against an individual.’ ”). Although acquitted of using an automobile as a deadly weapon on Count I, Mr. Jenkins was convicted on that count of “intentionally touching or striking Victor Pacheco against his will,” and he was also found guilty, on another count tried simultaneously, of “driv[ing] his vehicle directly toward Officer Pacheco which created a well-founded fear in Victor Pacheco that violence was imminent.” See generally Lane v. State, 867 So.2d 539, 541 (Fla. 1st DCA 2004) (considering simultaneous verdict on related count in upholding conviction). In the present case, whatever the rule when the jury fails to find even threatened violence, appellant’s “battery on a law enforcement officer is a qualifying offense for prison releasee reof-fender sentencing. See Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000).” Brown v. State, 789 So.2d 366, 367 (Fla. 2d DCA 2001).

In sum, we affirm the sentence imposed for fleeing or attempting to elude arrest, but reverse the sentences imposed for battery of a law enforcement officer and for resisting an officer with violence, and remand for resentencing.

LEWIS, J., concurs; ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I concur with the majority’s affirmance of the consecutive sentence for the conviction on Count III, and with its reversal of the ten-year sentences for Counts I and IV. I dissent, however, from the majority’s decision to remand Count I, battery of a law-enforcement officer (LEO), for resen-tencing under the Prison Releasee Reof-fender (PRR) Act. I would reverse and remand with directions to vacate the PRR designation, because the state failed to establish that it was a qualifying offense under the PRR Act.

This is a case of first impression. In a number of cases, appellate courts have stated in dicta that battery of an LEO qualifies for PRR sentencing under the catch-all provision of the PRR statute, section 775.082(9)(a)(l)(o), which, rather than identifying a specific crime, authorizes a PRR sentence for “[a]ny felony that involves the use or threat of physical force or violence against an individual.” See Branch v. State, 790 So.2d 437 (Fla. 1st DCA 2000); Brown v. State, 789 So.2d 366 (Fla. 2d DCA 2001); Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000) (en banc). See also Robinson v. State, 751 So.2d 737 (Fla. 1st DCA 2000), approved in part, 793 So.2d 891 (Fla.2001). None of the above cases, however, has addressed the-issue now before us.

Jenkins’ conviction for battery of an LEO was based upon evidence showing that he drove his vehicle toward Officer Victor Pacheco, who was dismounting his bicycle while attempting to flag Jenkins down, that Jenkins’ vehicle struck the bicycle, which in turn was propelled onto Officer Pacheco, causing a slight abrasion to his leg. Jenkins contends that under section 784.03, Florida Statutes (2002), battery may consist merely of an unwanted touching and does not necessarily involve either the use or threat of physical force or violence, as required by the catch-all provision of the PRR statute. In the alternative, Jenkins claims that battery can be a qualifying offense only if the jury finds an intent to harm; I agree with both arguments.'

Section 784.03 provides, in pertinent part:

(l)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

In my opinion, battery under subsection (l)(a)(l) cannot be considered a qualifying offense, because the statutory definition prohibits acts that do not necessarily involve physical force or violence, while an offense under subsection (l)(a)(2) does necessarily involve physical force or violence, and thus can qualify for PRR sentencing. Before a trial court may impose a PRR sentence based upon subsection (l)(a)(2), however, the jury must have specifically found that the defendant violated that subsection. In this case, the jury found Jenkins guilty of battery under a general verdict that did not distinguish between subsections (a)(1) and (a)(2).

I. Battery undér Section 784-03(1)(a)(1)

Because the statutory elements of battery under subsection (l)(a)(l) do not require proof that the offensive touching involved “physical force or violence,” it cannot be a qualifying offense for PRR sentencing. In Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001) (on mot. for reh’g), the trial court sentenced Hudson as a violent career criminal to 40 years in prison with a 30-year mandatory minimum, . pursuant to section 775.084(l)(c)(l)(a), Florida Statutes (Supp. 1998), which authorizes enhancement if a defendant is convicted of committing a forcible felony, as defined in section 776.08, Florida Statutes, which includes any felony involving “the use or threat of physical force or violence against any individual,” identical to the catch-all PRR provision at issue herein. Hudson was convicted of throwing a deadly missile into a hotel lobby, in violation of section 790.19, Florida Statutes (1997), which prohibits shooting or throwing a deadly missile into a structure, whether occupied or unoccupied. Because violation of the statute did not necessarily involve physical force or violence against an individual, the Third District concluded that it could never be a qualifying offense under the violent-career-criminal statute, even if there had been a jury finding that the hotel was occupied, because qualifying offenses must be based upon their statutory definitions.

The Hudson court cited Perkins v. State, 576 So.2d 1310 (Fla.1991), wherein the supreme court was asked to decide whether Perkins could raise the defense of self-defense, because he was charged with killing a man with whom he had negotiated a drug deal, and section 776.041(1), Florida Statutes, precludes a claim of self-defense if a defendant uses deadly force while committing a forcible felony. The court decided that drug trafficking is not necessarily an offense “that involves the use or threat of physical force or violence against any individual,” regardless of the evidence in the case, and regardless of the fact that there is a “ ‘propensity for violence inherent in narcotics trafficking.’ ” Id. at 1313 (quoting State v. Perkins, 558 So.2d 537, 538 (Fla. 3d DCA 1990)). This is because the dictionary definition of the term “involve,” as used in the catch-all provision for forcible .felonies, means “to contain within itself, to make necessary as a condition or result,” and thus,

in the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08.

Id. The court held that violence is not an essential component of drug trafficking, and thus, it was not a forcible felony; therefore, Perkins was not barred from raising the defense of self-defense.

Under the Perkins reasoning, the identical language in the PRR Act means that the elements of a qualifying third-degree felony must encompass the use or threat of physical force or violence. Because unwanted touching under section 784.03(l)(a)(l) may not necessarily be a violent act, it cannot be a qualifying offense for PRR sentencing.

II. Battery under Section 78I.03(l)(a)(2)

On the other hand, battery by intentionally causing bodily harm to an individual necessarily involves the use of physical force or violence; hence, a violation of section 784.03(l)(a)(2) is a qualifying conviction under the PRR catch-all provision. The jury must make this determination, in adherence to case law requiring a jury to determine any fact that provides a foundation for imposition of a minimum-mandatory sentence. For example, in State v. Estevez, 753 So.2d 1 (Fla.1999), the defendant was charged by information with trafficking in cocaine in excess of 400 grams. The minimum-mandatory sentence for trafficking depends upon the amount of cocaine involved. Section 893.135, Florida Statutes (1995), mandated a 15-year minimum sentence for trafficking in excess of 400 grams. The verdict form contained several categories to enable the jury to determine the amount, but the jury returned a verdict finding Estevez guilty “as charged in the information,” and failed to identify the amount involved. The trial court accepted the verdict, over objection, and sentenced Estevez to the 15-year mandatory minimum. The Third District reversed, holding that the verdict form must contain a finding that the defendant committed an offense warranting the minimum-mandatory sentence. Id. at 2-3. The supreme court approved the decision, concluding that the trial court could not impose such sentence under the trafficking statute unless the jury had determined the specific quantity of cocaine involved, “even in cases where the evidence [of the amount] is uncontroverted.” Id. at 7. The court analogized such evidence to cases requiring a specific jury finding that a defendant use a firearm or weapon in the commission of an offense before a trial court may enhance the sentence or apply a mandatory minimum under section 775.087, Florida Statutes. See, e.g., State v. Hargrove, 694 So.2d 729 (Fla.1997) (holding that even when it is undisputed that the defendant used a firearm, the jury must specifically find such use before the trial court can impose a minimum-mandatory sentence). This preserves the jury’s inherent power to pardon a defendant by convicting for a lesser-included offense. Estevez, 753 So.2d at 4-5.

This court followed the Estevez principle in Weems v. State, 795 So.2d 122 (Fla. 1st DCA 2001). Weems was convicted of burglary of a dwelling, and the trial court sentenced him as a PRR. The 1997 PRR Act provided that a conviction for burglary of “an occupied structure or dwelling” was a qualifying offense. It was undisputed that the dwelling was occupied at the time of Weems’ burglary. The jury, however, merely found Weems guilty as charged of burglary of a dwelling. The burglary statute itself made a distinction between occupied and unoccupied dwellings, but the verdict form did not ask the jury to make a specific finding of occupancy. Based on these facts, Weems concluded: “Therefore, because the jury did not find that the dwelling was occupied, the appellant’s conviction does not fall into the enumerated offenses in the PRR [Act].” Id. at 126. The court thereupon vacated Weems’ PRR sentence and remanded for resentencing.

In the case at bar, if the state had asked the jury to find that Jenkins committed battery on an LEO by intentionally causing bodily harm to the officer, and if the jury had so found, the trial court could have imposed the PRR mandatory minimum, based upon Jenkins’ “use or threat of physical force or violence.” The state, however, charged Jenkins in the amended information with “intentionally touching or striking Victor Pacheco” with his car, which is the language of section 784.03(l)(a)(l), rather than (l)(a)(2). Although the prosecutor contended in closing argument that Jenkins “intentionally and deliberately” rammed his car into Officer Pacheco, and thus committed aggravated battery under section 784.045, Florida Statutes (2002), he also argued that Jenkins “intentionally touched or struck Victor Pacheco against his will,” and that when Jenkins’ ear hit Officer Pacheco’s bicycle, “that is the intentional touching against Officer Pacheco’s will,” which is, again, the language provided in section 784.03(l)(a)(l). On the verdict form, the jury, while acquitting Jenkins of aggravated battery, found him guilty of the lesser-included offense of battery, by checking the following: “We, the Jury, find the Defendant guilty of Battery on a Law Enforcement Officer.” There were no subcategories of battery provided on the forms to the jury; therefore, at sentencing, the trial court, in my judgment, was not permitted to assume that Jenkins’ conduct violated section 784.0S(l)(a)(2), rather than (l)(a)(l). “ ‘Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury’s function to be the finder of fact with regard to matters concerning the criminal episode.’ ” Weems, 795 So.2d at 125 (quoting State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (emphasis added)).

I would reverse appellant’s sentence as a PRR on Count I, and remand for resen-tencing with directions that such designation be vacated.

      . The Third District concluded that an offensive touching of an LEO did not involve the use of physical force or violence, but it based this conclusion upon the evidence in the case, rather than the statutory elements of the offense, in Johnson v. State, 858 So.2d 1071 (Fla. 3d DCA 2003) (on mot. for reh’g) (holding that Johnson’s conviction for battery by spitting on an LEO was not a qualifying offense under the violent-career-criminal provision, section 775.084(l)(d)(l)(a), Florida Statutes (2001), because even though spitting is an unwanted touching, and thus a battery under section 784.03(l)(a)(l), spitting is not a forcible felony involving "the use or threat of use of physical force or violence” under section 776.08).


text:
    Tyrone K. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3138.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Tyrone K. Brown, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Garon N. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-637.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Garon N. Taylor, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    John POSEY, Appellant, v. James M. D’AMICO and Elisabeth D’Amico, Appellees.
    No. 5D04-1538.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    John Posey, Spring Hill, pro se.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Dawkins v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003); Kolb v. Florida Fruit & Vegetable Assoc., Inc., 718 So.2d 957 (Fla. 5th DCA 1998).

PLEUS, ORFINGER and TORPY, JJ., concur.


text:
    Derick Styron JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2957.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    Derick Styron Jones, Milton, pro se.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Mathis v. State, 720 So.2d 1116 (Fla. 5th DCA 1998).

PETERSON, PLEUS and MONACO, JJ., concur.


text:
    Anthony AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3070.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    Anthony J. Akins, Bristol, pro se.

      No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Waits v. State, 877 So.2d 784 (Fla. 5th DCA 2004).

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


text:
    James M. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3093.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    James M. Moore, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 921.002(g), Fla. Stat.

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


text:
    Bryan Lee BERKA, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3122.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.
    Bryan Lee Berka, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 921.0024(2), Fla. Stat. (Supp.1998); Fla. R.Crim. P. 3.704(a)(25).

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


text:
    Richard A. MORLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3125.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2004.

      Richard A. Morley, Daytona Beach, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 780 So.2d 216 (Fla. 5th DCA 2001).

PETERSON, THOMPSON and PLEUS, JJ., concur.