source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Willie Ernest CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1966.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
    Rehearing Denied July 31, 2003.
    James Marion Moorman, Public Defender, and Eric J. Gottlieb, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Willie Ernest Clark seeks review of the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 after a hearing. Clark raised forty-five grounds of ineffective assistance of counsel in his motion, and the trial court granted a hearing on eleven of those grounds. On appeal, Clark’s counsel raises ten of the grounds addressed below. One of the issues raised by counsel requires an eviden-tiary hearing; we affirm the trial court’s denial of relief on the remaining grounds without comment.

After a jury trial, Clark was ultimately convicted of racketeering, conspiracy to commit racketeering, forgery, uttering a forged instrument, and grand theft. This court has previously summarized the underlying facts as follows:

The evidence revealed that since the late 1980’s Clark had been operating a scam whereby he recruited mostly females to assist him in stealing wallets out of women’s purses in shopping carts in Publix supermarkets.... Either Clark or one of his accomplices would divert the shopper’s attention and the other would grab the wallet. Clark would use the victims’ identifications to draft false birth certificates and social security cards for his accomplices to use to obtain false Florida identification cards. He drafted these documents in a home office that was fully equipped for such a purpose. The accomplices would then use the identification cards to withdraw money from victims’ bank accounts by executing deposit slips for forged checks which also indicated a withdrawal.

Clark v. State, 645 So.2d 575, 576 (Fla. 2d DCA 1994).

Clark argues that trial counsel was ineffective for failing to object to the lack of corroborating evidence of the second count of grand theft for which he was charged. The trial court issued a summary denial of this claim because it was raised in the direct appeal. See Clark, 645 So.2d at 577. However, the issue on direct appeal was whether the evidence was sufficient to support both of Clark’s convictions for grand theft. This court held that the issue was not preserved for review because it was not raised at trial. See id. This lack of preservation is Clark’s basis for seeking postconviction relief. Counsel’s failure to preserve an objection to the sufficiency of the evidence is a ground for postconviction relief under rule 3.850. Ellington v. State, 841 So.2d 646, 647 (Fla. 2d DCA 2003); Walker v. State, 765 So.2d 854, 855 (Fla. 5th DCA 2000).

Clark’s argument that the record reflects insufficient evidence to support the second grand theft is based on Clark’s assertion that the perpetrator of the grand theft did not' actually cash the check in question, but was attempting to cash the check when he was arrested. We cannot tell from the record whether the second grand theft was based on the cashing of a single check or not. Accordingly, we reverse and remand for an evidentiary hearing on this issue.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    Lynne M. TOEMMES, Appellant, v. Dorothy E. SITES, Appellee.
    No. 3D02-43.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Reconsideration and Rehearing Denied Aug. 27, 2003.
    A.P. Walter; and Michael R. Seward, for appellant.
    Reimer & Rosenthal, and David H. Reimer, Miami; and Michael J. Getelman, Miami, for appellee.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Lynne M. Toemmes appeals from a final judgment awarding fees, damages, and costs to Dorothy E. Sites pursuant to sections 64.081 and 57.105, Florida Statutes (2000). We affirm the award of attorney’s fees and costs in Sites’ favor, but remand for the proper allocation of fees awarded pursuant to section 57.105. The final judgment should reflect that the fees are “to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney.” See § 57.105(1), Fla. Stat. (2000).


text:
    David L. FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4410.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    David L. Felder, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks review of an order denying his rule 3.850 motion as successive. We disagree with the state’s contention that appellant’s earlier motion, styled by him as a motion for post conviction relief and reviewed at the state’s urging as a motion to correct illegal sentence, made his second motion for post conviction relief successive. The state argues that, since he failed to allege his new grounds for relief were unknown and could not have been discovered at the time of his earlier motion, the motion was properly denied. Appellant’s earlier motion, having been treated and reviewed as a 3.800(a) motion, raised claims concerning the legality of his sentencing. His present motion raises an ineffective assistance of counsel claim, a claim we feel, given the circumstances of this case, warrants review by the trial court on the merits. See Ramirez v. State, 822 So.2d 593 (Fla. 2d DCA 2002) Accordingly, we reverse and remand for further proceedings.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


author: OWEN, WILLIAM C., JR., Senior Judge. GROSS, J.,

text:
    RORABECK’S PLANTS AND PRODUCE, INC., a Florida Corporation, Appellant, v. The SCHOOL DISTRICT OF PALM BEACH COUNTY, Florida, Appellee.
    No. 4D02-3226.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Rehearing Denied Sept. 17, 2003.

      Amy Brigham Boulris and Robert C. Byrne of Brigham Moore LLP, Miami, for appellant.
    Elaine Johnson James and Donna M. Greenspan of Edwards & Angelí, LLP, West Palm Beach, for appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

Appellee, the School District of Palm Beach County (“District”), in exercising its power of eminent domain under section 1013.24, Florida Statutes (2002), obtained an order of quick take to the entire 24.88 acre tract owned by appellant, Rorabeck’s Plants And Produce, Inc. (“Rorabeck”), for use as an elementary school. On this non-final appeal from the order of taking, Ror-abeck argues that the trial court erred (1) in approving the District’s taking of the entire 24.88 acre tract when 2.5 acres thereof were “admittedly” for use by the county’s Sheriffs Department, and (2) in setting the amount of the District’s good faith deposit without including appellant’s estimated moving costs and compensation for existing site improvements. We affirm as to both issues.

Appellant’s argument on the first point goes thus: the power of eminent domain must be strictly construed against the agency asserting the power, City of Ocala v. Nye, 608 So.2d 15,17 (Fla.1992); under the doctrine of strict construction, the scope of a taking must be limited to the purposes for which the condemning authority is authorized to condemn, Silver Springs, Inc. v. Canal Auth., 252 So.2d 295 (Fla. 1st DCA 1971); the District is authorized to condemn property only for “public school purpose or use”; notwithstanding that limitation, it condemned the 2.5 acre parcel of appellant’s property for “law enforcement purposes”, i.e., for use as a police sub-station outparcel; therefore, the argument concludes, as a matter of law the court should have excluded the 2.5 acre parcel from the order of taking. We find this argument flawed because the conflicting evidence as to the District’s intended use of the 2.5 acre parcel (discussed below) presented a factual issue as to whether the District reasonably needed this parcel for school purposes. The trial court, in finding that the District had properly exercised its delegated authority, necessarily resolved that issue favorably to the District.

At the evidentiary hearing on the District’s petition, the District’s Real Estate Acquisitions Coordinator, Carol Dubinski, testified that the property would be used for a new elementary school needed to relieve a nearby, overcrowded school; that at least nine or ten other sites had been considered, but they either were not feasible options or were too small or not deep enough; that appellant’s property was a perfect site because it was 24.88 acres, which was within the range of the state educational specification for an elementary school; and that the entire 24.88 acres tract was needed for elementary school purposes, which included not only the building and facilities shown on the preliminary site plan, but also for such things as school expansion, portables and new programs implemented after the school was built. That evidence, although not uncon-tradicted, reasonably supports the trial court’s finding.

The most significant evidence favorable to appellant’s position was the District’s preliminary site plan (which it introduced into evidence) and the testimony of Ms. Dubinski in regard thereto. The preliminary site plan for the 24.88 tract showed not only the school building’s proposed footprint together with the proposed location of athletic fields, driveways, parking lots, etc., but also, in the northwest comer of the 24.88 tract, a 2.5 acre parcel which had been designated with the caption “Police Sub-station Outparcel 2.5 Acres (Confirm Development)”. Ms. Dubinski testified that the District worked with the County in a joint effort so that the Sheriffs Office could maintain a presence on the campus but only for the school children’s safety and not for the public’s benefit. Although she testified on cross examination that the 2.5 acre parcel would be given to the county for a police sub-station, she subsequently stated (with some coaching from the District’s counsel) that the District was not intending to give the property to the county, that there was no agreement with the Sheriffs Office on using the property, and that the site plan had not been finalized. While there is other testimony, both supporting and contradicting that this 2.5 acre parcel was to be used for a police sub-station, there exists in the record sufficient evidence from which the trial court, as the trier of fact, could find as it did — that the District had met its burden of proving a reasonable necessity for condemning the entire 24.88 acre tract for public school purposes and use. See, Broward County v. Ellington, 622 So.2d 1029 (Fla. 4th DCA 1993); Dep’t of Transp. v. Barbara’s Creative Jewelry, Inc., 728 So.2d 240 (Fla. 4th DCA 1998).

Appellant contends, however, that the District’s intended use of the 2.5 acre parcel was established as a matter of law because the District is bound by its preliminary site plan admitted into evidence and, therefore, it may not disavow that the 2.5 acre parcel is intended to be used for a police sub-station. For this proposition it cites Trailer Ranch, Inc., v. City of Pompano Beach, 500 So.2d 503, 506 (Fla.1986); Belvedere Development Corp. v. Department of Transportation, 476 So.2d 649, 653 (Fla.1985); Central & Southern Flood Control District v. Wye River Farms, Inc., 297 So.2d 323 (Fla. 4th DCA 1974), and Bryant v. Division of Administration, State Department of Transportation, 355 So.2d 841, 842 (Fla. 1st DCA 1978).

We find appellant’s reliance on the above cited cases to be misplaced. Each of those cases involved a partial taking which resulted in a claim for severance damages. Though each arguably stands for the proposition that a condemning authority is estopped from claiming that the property will be utilized in a manner other than that shown by its plans and specification, that principle of eminent domain law must be understood in its proper context. That principle is limited to those situations where there is a partial taking resulting in a claim for severance damages. It is designed to prevent the condemning authority from making non-binding promissory assurances at trial that it would or would not do certain things in the future, where such representations are inconsistent with the construction plans and could lead a jury to base its assessment of severance damages upon those representations rather than that which the plans depicted. See Belvedere Dev., 476 So.2d at 653. Here, because the District is taking appellant’s entire tract of land, there is no basis for severance damages and, consequently, no basis to attribute to appellee’s plans the “binding effect” urged by appellant. The appellee’s preliminary site plan could certainly be considered by the trial court for its probative value on the issue of whether the District had shown a reasonable necessity for the parcel for school purposes; however, we reject the argument that, as a matter of law, the preliminary site plan was conclusive on that issue.

Turning to Rorabeck’s second point, it contends the trial court erred in setting the amount of the District’s deposit without including estimated moving costs and compensation for site improvements, both of which, it argues, are elements of full compensation.

The amount to be deposited by the taking authority in a quick-take condemnation proceeding represents the trial court’s judgment of the amount necessary to fully compensate the property owner based on the evidence presented, subject to a final determination by a jury at trial. Fla. Water Servs. Corp. v. Utilities Comm’n, 790 So.2d 501, 504 (Fla. 5th DCA 2001), reh’g. denied. There was evidence to establish that the District made a good faith estimate of the fair market value of the property based upon its highest and best use, having obtained two appraisals of the fair market value of the site in 2001, and two more appraisals in May of 2002. Of those, $2,550,000.00 was the highest appraised value. The written appraisal by the District’s appraiser made no separate allowance for site improvements. However, as the appraiser explained, that was because he considered the property’s highest and best use to be vacant land for residential development and the incremental value of the improvements to the property was nominal, that is, they added nothing to the amount that a willing purchaser, seeking the land for its highest and best use, would offer. As to estimated moving costs, they are not a part of just compensation recoverable by a property owner when the entire parcel is taken by a public entity. State Road Dep’t v. Bramlett, 189 So.2d 481, 483-84 (Fla.1966).

The trial court findings — that the District’s estimate of value for the property was made in good faith and was based upon valid appraisals, and that the sum of $2,550,000.00, which the District was directed to deposit into the Court Registry, was equal to or greater than the estimated values of the property — are supported by the record and we see no reason to disturb them.

AFFIRMED.

WARNER, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I join in the majority opinion. As an alternative basis for affirming on the first point, I would also hold that student safety is a proper school purpose and that using school property to accommodate an on-campus presence of law enforcement is in furtherance of that purpose.


text:
    Kelly SHERMAN, as Personal Representative, etc., Appellant, v. CHARTER SPRINGS, BEHAVIORAL HEALTH, etc., et al, Appellees.
    No. 5D01-615.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.
    Rehearing Denied Sept. 3, 2003.

      Jeffrey D. Kottkamp, of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellant.
    Francis H. Sheppard, Sharon K. Duncan and Scott P. Rowe, of Rumberger, Kirk & Caldwell, Orlando, for Appellees.
   PER CURIAM.

Kelly Sherman, as personal representative of the estate of Scott Sherman, appeals a summary final judgment entered in favor of Amelia Alday, M.D. We reverse.

Thirty-six-year-old Scott Sherman [“Scott”] was admitted to Charter Springs hospital in Ocala, Florida on January 5, 1996, after expressing suicidal thoughts. He attempted to commit suicide the evening of his admission by crashing through a glass door. He succeeded in committing suicide on the morning of January 10, 1996 by hanging himself with his shoelaces. His treating psychiatrist while at Charter Springs was Dr. Amelia Alday.

Scott’s wife, Kelly, brought a wrongful death action against Charter Springs and Dr. Alday on December 31, 1997. The complaint alleged that Dr. Alday had breached the standard of care when providing psychiatric services to the decedent in that she: (1) underdiagnosed or underestimated the severity of Scott’s risk for suicide; (2) failed to diagnose Scott as a high-risk suicide patient; (3) removed Scott from arms’ length observation and placed him in “Close A” supervision while he was still at a high risk for suicide; (4) failed to assess and properly monitor Scott; (5) failed to properly monitor and assess Scott’s suicidal ideations; (6) failed to apprise staff at Charter Springs of the patient’s high-risk suicide status; (7) faded to safeguard Scott’s welfare by ordering proper monitoring and supervising; (8) failed to prescribe the proper medication; (9) failed to provide a treatment plan for Scott’s disorder; (10) failed to provide structure and support adequate for Scott’s needs; and (11) failed to complete and maintain proper suicide risk assessments.

On December 18, 2000, Dr. Alday filed a motion for summary judgment on all of plaintiffs claims on the basis that “[plaintiff is unable to prove that Scott Sherman’s death was, more likely than not, the result of any alleged negligence on the part of Dr. Alday.” The motion asserted that the plaintiffs allegations of negligence on the part of Dr. Alday fell into two general categories: that Dr. Alday negligently removed Scott from one-on-one observation and placed him on “Close A” observation, and she negligently prescribed medication. The motion alleged that plaintiffs expert was unable to testify that Dr. Alday was negligent for removing Scott from one-on-one observation. It also alleged that plaintiff was unable to prove that Scott’s death was more likely than not caused by medication decisions made by Dr. Alday. The trial court granted the summary judgment, observing at the hearing that any negligence on the part of Dr. Alday lost any causal link to Scott’s death due to an intervening cause — the negligence of Charter Springs. It was undisputed that, while Scott was under Dr. Alday’s order for “Close A” supervision (to be checked on every fifteen minutes), Charter Springs left him completely unsupervised for a period of some forty-five minutes, during which time he killed himself.

To defeat the summary judgment motion, the plaintiff relied principally on the deposition testimony of Dr. Michael C. Miller, a psychiatrist. He testified that Scott suffered from major depression with psychotic features. He opined that Dr. Alday was negligent with respect to Scott’s treatment in that she failed to adequately assess his risk for suicide, failed to establish an adequate plan for maintaining Scott’s safety in the hospital, failed to provide Scott with antidepressants or adequate treatment for his anxiety and distorted thinking, and failed to communicate adequately with Charter Springs about Scott’s condition. On appeal, counsel for Dr. Alday has effectively exposed ambiguities and inconsistencies in Dr. Miller’s deposition testimony; however, after each panel member has carefully examined the entire deposition, we are all agreed that the deposition testimony of Dr. Miller is sufficient to create triable issues concerning whether Dr. Alday breached the standard of care applicable to her treatment of Scott. Whether Dr. Miller’s testimony will convince a jury remains to be seen.

REVERSED and REMANDED.

PETERSON, GRIFFIN, JJ., and COBB, W., Senior Judge, concur.

      . On appeal, Dr. Alday does not attempt to sustain the summary judgment on the basis of "intervening cause.” She does, however, argue that it will be impossible for the plaintiff to establish that Dr. Alday’s decision to reduce Scott’s level of supervision to "Close A” was a proximate cause of his death since Charter Springs had failed to carry out the “Close A” supervision she did order.


author: COVINGTON, Judge.

text:
    John Sebring BLACKWELDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4878.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    Rehearing Denied Aug. 5, 2003.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

John Sebring Blackwelder appeals the trial court’s denial of his motion to suppress. Because the trial court erred in denying the motion, we reverse and remand for discharge.

Officer Henry Smith of the Frostproof Police Department stopped Blackwelder’s vehicle at 1:00 a.m. because Officer Smith could not see a tag on the vehicle. As Officer Smith approached the vehicle from behind, he saw a temporary tag displayed in the rear windshield. After seeing the tag, he made contact with Blackwelder, who said that he had lost his wallet. Blackwelder initially gave an incorrect name to the officer. Later, Blackwelder gave his correct name, and Officer Smith discovered that Blackwelder’s driver’s license had expired. Officer Smith arrested Blackwelder who ultimately was charged with possession of cocaine, possession of drug paraphernalia, giving false identification to law enforcement, driving without a license, and possession of methamphetamine.

Blackwelder filed a motion to suppress, which the trial court denied. Blackwelder then entered a plea to all five charges and reserved the right to appeal the denial of the dispositive motion to suppress.

This case is controlled by State v. Diaz, 850 So.2d 435 (Fla. 2003), in which the Florida Supreme Court affirmed this court’s opinion in Diaz v. State, 800 So.2d 326 (Fla. 2d DCA 2001). The facts of Diaz are similar to the facts of the instant case. In Diaz, an officer stopped a vehicle because the officer could not read a portion of a temporary tag. 850 So.2d at 480. As the officer approached the vehicle, the officer determined the tag was valid, but the officer continued the stop and obtained information that led to the arrest of Diaz for felony driving with a suspended license. Id.

The Florida Supreme Court held that upon determining that the tag was valid, the officer could no longer detain the driver. Id. at 480. The court stated that “once a police officer has totally satisfied the purpose for which he has initially stopped and detained the motorist, the officer no longer has any reasonable grounds or legal basis for continuing the detention of the motorist.” Id. at 480. Any continued detention constitutes an infringement of Fourth Amendment rights. Id. The only allowable personal contact an officer could make with the driver would be to explain the reason for the initial stop. Id. at 480.

Likewise in the instant case, once the officer approached Blackwelder’s vehicle and determined that Blackwelder was displaying a valid tag, he could no longer detain Blackwelder. Because the officer continued to detain Blackwelder, the trial court should have granted Blackwelder’s motion to suppress. Since the motion was dispositive, we reverse and remand for discharge on all five counts.

Reversed and remanded for discharge.

SALCINES and VILLANTI, JJ., Concur.


author: KAHN, J.

text:
    Perry V. VERLENI, Appellant, v. DEPARTMENT OF HEALTH, Board of Podiatric Medicine, Appellee.
    No. 1D02-2032.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    Rehearing Denied Sept. 2, 2003.

      Katherine E. Giddings of Katz, Kutter, Alderman, Bryant & Yon, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Ann Cocheu, Assistant Attorney General, Tallahassee; William W. Large, General Counsel, Florida Department of Health, Tallahassee; and Robert P. Smith, Counsel for the Department and the Board of Podiatric Medicine, Tallahassee, for Appel-lee.
   KAHN, J.

This appeal arises from appellant Dr. Perry V. Verleni’s administrative challenge to the scoring of Part III of the December 2000 National Board of Podiatric Medical Examiners (NBPME) licensure examination. Appellee Florida Department of Health, Board of Podiatric Medicine (Board) rejected the findings of fact in the recommended order issued by the Division of Administrative Hearings. Dr. Verleni argues that 1) the Board violated the law by rejecting the hearing officer’s use of a question-by-question analysis; 2) the Board lacked substantive jurisdiction to reject a question-by-question analysis; 3) the Board abused its discretion by interpreting the evidence to fit its desired conclusions and by recharacterizing factual findings as conclusions of law; and 4) the Board exceeded its statutory authority by rejecting findings of fact without stating with particularity why the findings were not based on competent substantial evidence. Because we reverse on points 1, 3, and 4, we find no need to address the question of substantive jurisdiction.

A candidate for licensure as a podiatrist in the State of Florida, must apply for, take, and pass the NBPME licensure examination. See § 456.013, Fla. Stat. (2000); Fla. Admin. Code R. 64B18-11.001. The Board, pursuant to statute and rule, contracts with NBPME to administer and grade the NBPME licensure examination. See § 456.017, Fla. Stat. (2000); Fla. Admin. Code R. 65B-1.008, 65B-1.011. The exam consists of 150 multiple choice questions. To pass, candidates need to achieve a scaled score of 75. On December 6, 2000, Dr. Verleni sat for Part III of the licensure examination. He failed the exam, needing one additional scaled point, or two more correct questions, to pass. Dr. Verleni timely challenged twenty-two of the forty questions he answered incorrectly.

On December 10 and 11, 2001, a section 120.57 evidentiary hearing took place before Administrative Law Judge Ella Jane Davis. On March 15, 2002, Judge Davis issued a recommended order finding defective six of the challenged questions, and recommending Dr. Verleni be given credit for those six questions and, as a result, a passing score on the exam. The Department of Health (Department) filed exceptions to the recommended order and a telephonic hearing was held before the Board on April 26, 2002. The Board, with very little discussion, voted to adopt the Department’s exceptions to the recommended order including exceptions to numerous findings of fact. The Board then found that Dr. Verleni had failed the examination.

When an agency rejects the findings of fact in a recommended order, it must state with particularity that the findings are not based on competent substantial evidence. See § 120.57(l)(i), Fla. Stat. (2000); Prysi v. Dep’t of Health, 823 So.2d 823 (Fla. 1st DCA 2002); Kibler v. Dep’t of Prof'l Reg., 418 So.2d 1081 (Fla. 4th DCA 1982). An agency fails to comply with this requirement where it simply accepts the findings set out in exceptions to the recommended order. See Prysi, 823 So.2d at 825-26; Kibler, 418 So.2d at 1082. Here, the Board voted to find, contrary to Judge Davis’ findings, that no competent substantial evidence existed to show the exam was administered and graded arbitrarily and capriciously. Rather than discuss the factual findings, the Board voted to accept, as its own findings, the exceptions set out in the Department’s exceptions to the recommended order. This was improper. See Prysi, 823 So.2d at 825-26; Kibler, 418 So.2d at 1082.

Perhaps seeking to correct its error, but misstepping further, the Board entered a written final order failing to reflect the vote entered at the hearing adopting the Department’s exceptions to the recommended order. The final order states, contrary to the Board’s vote, the “factual findings challenged by [the Department] ... are not specifically overruled.” Oral pronouncements of an agency at a duly noticed hearing control over a written order which is inconsistent with those pronouncements. Cf., e.g., Ulano v. Anderson, 626 So.2d 1112 (Fla. 3d DCA 1993) (“Reversal is required where a final judgment is inconsistent with a trial court’s oral pronouncements.”).

Beyond the normal rule requiring that a written order reflect the tribunal’s earlier pronouncements, three specific considerations lead to reversal here. First, all meetings of the Board are public meetings subject to notice requirements. See §§ 120.525(1), 286.011(1), Fla. Stat. (2000); see also Lyon v. Lake County, 765 So.2d 785 (Fla. 5th DCA 2000), review denied 790 So.2d 1105 (Fla.2001). “No resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.” § 286.011(1), Fla. Stat. (2000). Next, due process requires reasonable notice and an opportunity to be heard. See Friends of the Everglades, Inc. v. Bd. of County Comm’rs of Monroe County, 456 So.2d 904 (Fla. 1st DCA 1984). Individuals have a right to the fair administration of the rules regulating the granting of licenses. See Fraternal Order of Police, Metropolitan Dade County, Lodge No. 6 v. Dep’t of State, 392 So.2d 1296 (Fla.1981); K.M.T. v. Dep’t of Health & Rehab. Servs., 608 So.2d 865 (Fla. 1st DCA 1992). Finally, chapter 120, Florida Statutes, requires notice of any hearing which affects the substantial interests of a party. See § 120.569, Fla. Stat. (2000).

Here, the Department sent a Notice of Hearing to Dr. Verleni on March 22, 2002, stating that his case would be presented to the Board for a Final Order on April 26, 2002, and that “a failure to appear could result in a waiver of your opportunity to be heard in this matter.” Dr. Verleni attended the meeting, and his counsel was given an opportunity to be heard. By entering a written final order which conflicts with its oral pronouncement, however, the Board violated Dr. Verleni’s due process rights because he was not given the opportunity to object to or address the findings and conclusions in the written final order. See, e.g., Maddox v. State, 760 So.2d 89 (Fla.2000). Nothing in this record sheds light on the genesis of the eventual written order.

Additionally, the written final order recasts the hearing officer’s factual findings as legal conclusions. “An agency cannot circumvent the requirements of [section 120.57(1), Florida Statutes,] by characterizing findings of fact as legal conclusions.” Dep’t of Labor & Employment Sec. v. Little, 588 So.2d 281 (Fla. 1st DCA 1991); see also § 120.57(1)(Z), Fla. Stat. (2000). Accordingly, we also reverse based on the improper actions of the Board in its written final order.

The Board failed to properly reject the findings of fact in the recommended order when it adopted the Department’s exceptions without discussion, failed to set out a written final order reflecting the vote, and then, in the written final order, improperly recast the findings of fact as conclusions of law. Dr. Verleni’s motion for attorney’s fees and costs on this appeal must be granted. See § 120.595(5), Fla. Stat. (2000).

We REVERSE the final order and REMAND with instructions to enter an order finding that Dr. Perry V. Verleni be deemed to have passed the December 2000 NBPME licensure examination, Part III, and is eligible to register as a podiatrist licensed by the State of Florida.

VAN NORTWICK and BROWNING, JJ., concur.


author: SHARP, W„ J.

text:
    Deorick ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1334.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Rehearing Denied Sept. 4, 2003.

      Deorick Ellis, Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W„ J.

Ellis appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In this proceeding, Ellis asserts the trial court improperly departed from the guidelines without written reasons. We affirm.

This motion is successive and violates the law of the case doctrine. In a prior motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), Ellis raised the very same issue, appealed the trial court’s summary denial, and this court affirmed. See State v. McBride, 28 Fla. L. Weekly S401, 848 So.2d 287,(Fla. May 15, 2003); Smith v. State, 685 So.2d 912 (Fla. 5th DCA 1996).

We caution Ellis against filing additional successive and improper motions. Enough is enough. See Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). See also Thomas v. State, 824 So.2d 1061 (Fla. 5th DCA 2002).

AFFIRMED.

SAWAYA, C.J., and ORFINGER, J., concur.


author: POLEN, J.

text:
    D & M JUPITER, INC., Appellant, v. William FRIEDOPFER and Jupiter West, Inc., d/b/a Jupiter Industrial Associates, and William Collins, Appellees.
    No. 4D02-3506.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Rehearing Denied Sept. 18, 2003.

      John J. Shahady and Thomas R. Shaha-dy of Adorno & Yoss, P.A., Fort Lauder-dale, for appellant.
    Jeremy E. Slusher of Broad and Cassel, West Palm Beach, for appellees.
   POLEN, J.

This action arises out of the purchase of commercial property from William Frie-dopfer and Jupiter West, collectively doing business as Jupiter Industrial Associates (J.I.A.), for $1,850,000. On April 29, 1999, Michael Flora as a principal of D & M Jupiter (D & M) and his wife, as the buyers, and J.I.A., as the seller, entered into a commercial contract for the purchase of the property. Subsequent to their execution of the contract, the Floras assigned their interest therein to D & M. The dispute concerns the propensity of the property to flood. Prior to entering into the contract, J.I.A. provided the Floras a twenty-page Confidential Offering Memorandum, stating in part that “[s]ite drain requirements are met through a French drain retention storm sewer system which collects into the master drainage system of the Jupiter Commerce Park.” The bottom of each page in the relevant section of the memorandum contained the language “[t]his confidential information is deemed correct but not guaranteed.” Despite such language, the Floras claim to have relied upon the representation that the property has proper drainage. On March 12, 2001, D & M filed a two-count complaint against J.I.A. alleging a cause of action for fraud in the inducement and negligent misrepresentation. J.I.A. filed a motion for summary judgment on June 6, 2002, alleging: (1) no record evidence to support D & M’s allegations, (2) D & M’s claims are barred by the economic loss rule, and (3) D & M waived its right to bring any claims. The trial court entered final summary judgment in favor of the J.I.A., and we hereby reverse.

In determining the propriety of summary judgment, we must resolve whether there is any genuine issue as to any material fact and if the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c) (2003). Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citing Menendez v. Palms West Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)). The record is examined to consider the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any. Fla. R. Civ. P. 1.510(c). All inferences must be drawn in favor of the opposing party, Holt v. Talcott, 191 So.2d 40, 47-8 (Fla.1966), and if the evidence raises any issues of material fact, is conflicting, or permits different reasonable inferences, then summary judgment is improper. Albelo v. So. Bell, 682 So.2d 1126 (Fla. 4th DCA 1996).

As a general rule, it is a matter for the jury to determine if an intentional misrepresentation has been made by a seller to a buyer. See Walsh v. Alfidi, 448 So.2d 1084, 1086 (Fla. 1st DCA 1984). The misrepresentation which was alleged by D & M was the statement in the memorandum which read “[s]ite drain requirements are met through a French drain retention storm sewer system which collects into the master drainage system of the Jupiter Commerce Park.” Whether this is a misrepresentation or a true statement is open to interpretation and as such it is surely a material issue of fact, which should be determined by the finder of facts. Here, their representation that the “system drain requirements were met” raises a material issue sufficient to survive a motion for summary judgment. Since there are multiple issues of fact yet to be resolved, final summary judgment was unwarranted.

Furthermore, the economic loss rule does not bar recovery in this case. The Supreme Court has announced “that by recognizing that the economic loss rule may have some genuine, but limited, value in our damages law, we never intended to bar well-established common law causes of action.” Moransais v. Heathman, 744 So.2d 973 (Fla.1999). As such, the economic loss rule does not bar tort actions based on fraudulent inducement and negligent misrepresentation. The test to determine if the economic loss rule applies is to ask if the fraud alleged is in an act of performance or in a term of the bargain. Allen v. Stephan Co., 784 So.2d 456, 457 (Fla. 4th DCA 2000). When the fraud “relates to the performance of the contract the economic loss doctrine will limit the parties to their contractual remedies.” Id. However, when the “fraud occurs in the connection with misrepresentations, statements or omissions which cause the complaining party to enter into a transaction, then such fraud is fraud in the inducement and survives as an independent tort.” Id.

The economic loss rule was held not to bar a fraud claim in Allen, where the buyers of a company brought a fraud action against the sellers for failing to accurately disclose the company’s tax liability. The company rather than having no tax liabilities which it claimed, in fact owed $100,000 in unpaid taxes. The sellers moved for a directed verdict based on the theory that the economic loss rule barred the fraud claims, but the trial court denied the motion. In affirming the trial court’s ruling, this Court said that the misrepresentation was “simply made and relied upon” in inducing the transaction, and also pointed out that the sellers were not required to take any further action based on this contract term and therefore the fraud must be in a term of the bargain and not in an act of performance. Id.

By contrast, the economic loss rule was held to bar recovery in Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74 (Fla. 3d DCA 1997) and Straub Capital Corp. v. L. Frank Chopin, P.A., 724 So.2d 577 (Fla. 4th DCA 1998). In Hotels of Key Largo, the parties negotiated for continuing action on the part of the seller to provide increased reservation systems and better hotel management services. When the seller failed to deliver the benefits negotiated for, the buyer brought suit. The economic loss rule applied in Hotels of Key Largo and barred any tort recovery because the fraud was clearly in the performance of the bargain since the injury was one which flowed from the failure to perform the heart of the agreement. In Straub Capital Corp., the dispute was centered around the fraudulent failure of a landlord to timely build out and provide the contracted-for space to his tenants. Again, there was a failure to perform the heart of the agreement. We therefore find that the economic loss rule does not bar recovery in this case and the trial court erred to the extent it relied upon the economic loss rule in awarding summary judgment.

J.LA’s final ground for summary judgment is that D & M waived its right to bring a tort claim due to “as is” language in the contract. Though a party may waive any right to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by Constitution, Gilman v. Butzloff 155 Fla. 888, 22 So.2d 263, 265 (1945), such a proposition does not apply where there is an allegation of fraud.

In Oceanic Villas Inc. v. Godson, 148 Fla. 454, 4 So.2d 689 (1941), a lessee who sought to rescind a 99-year lease, alleged that the lessor procured the execution of the lease by false and fraudulent representations of fact. The lessor, on the other hand, claimed that the lessee was estopped to allege fraud because of an “as is” clause of the lease, which specifically stated that “[l]essee is guided in making this lease by its own judgment and without any influence, representation, fraud or duress of any nature on the part of the Lessors.” Id. at 690. The supreme court held that

[i]f the lease was procured by fraud and misrepresentation as to a material fact, the truth or falsity of which was known only to the lessor (and it is so alleged in the bill of complaint), and which misrepresentations, if proved, would be sufficient basis for a decree of rescission, then such fraudulent misrepresentation vitiated every part of the lease contract and the Lessee was not bound by the above quoted clause ... To hold that by the terms of the contract which is alleged to have been procured by fraud, the lessor could bind the lessee in such manner that lessee would be bound by the fraud of the lessor would be against the fundamental principles of law, equity, good morals, public policy and fair dealing. Id.

We take from that holding that where there is fraudulent inducement of a contract, the fraudulent misrepresentation vitiates every part of the contract, including any “as is” clause. However, since the initial determination of whether there was a fraudulent misrepresentation has yet to be resolved, this issue is not ripe for review.

REVERSED and REMANDED for further proceedings consistent with this opinion.

FARMER, C.J., and ANDREWS, ROBERT LANCE, Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    Maria MUNOZ and Rafael Munoz, Appellants, v. CITY OF MIAMI, a political subdivision of the State of Florida, Miami-Dade County, a political subdivision of the State of Florida, City of Miami Parking Systems, a political subdivision of the State of Florida, and City of Miami Off-street Parking Authority, a political subdivision of the State of Florida, Appellees.
    No. 3D02-1457.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    Order on Rehearing and Clarification Sept. 3, 2003.

      Beckham & Beckham and Robert J. Beckham, Jr., Miami, for appellants.
    Charles J. Crist, Jr., Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, (Ft.Lauderdale), for appel-lee Florida Department of Transportation.
    Before COPE, FLETCHER, and WELLS, JJ.
   PER CURIAM.

The plaintiffs below, Maria Munoz and Rafael Munoz, appeal an order granting attorney’s fees in favor of the defendant, Department of Transportation (DOT), pursuant to section 57.105, Florida Statutes (2008). We reverse.

Mrs. Munoz claimed to have tripped on a piece of metal protruding from the sidewalk on a Miami street. She and her husband sued a number of government entities including DOT, for the injuries sustained. DOT denied responsibility from the start, and eventually submitted an affidavit to that effect. However Mrs. Munoz did not voluntarily dismiss DOT from the lawsuit until the day after the deposition of DOT’S representative, only hours before DOT’S motion for summary judgment was to be heard. Thereafter, DOT sought and was awarded some $6,046.00 in section 57.105 fees.

We agree with the appellants that with no government agency admitting its responsibility to maintain the sidewalk at issue, the decision to bring DOT into, and to keep DOT in, the case did not justify the award of 57.105 fees. See Forcier v. City of St. Petersburg, 732 So.2d 35, 36 (Fla. 2d DCA 1999)(observing that a city’s affidavit denying liability was insufficient to resolve issue as a matter of law, and concluding “[ujnless both governmental entities can stipulate that one of them is responsible to maintain this portion of the sidewalk, it will be necessary for both entities to be joined in the lawsuit. Otherwise, [plaintiff] could fall again — this time in the gap between the conflicting judgments entered in two separate lawsuits”); see also Read v. Taylor, 832 So.2d 219, 222-23 (Fla. 4th DCA 2002); Vasquez v. Provincial South, Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001)(the purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities).

Accordingly, the order under review is reversed.

ON REHEARING AND MOTION FOR CLARIFICATION

PER CURIAM.

Appellee Department of Transportation’s motion for rehearing and clarification of this court’s opinion of July 23, 2003 is granted. That opinion observes: “DOT sought and was awarded some $6,046.00 in section 57.105 fees.” The $6,046.00 figure actually represents $5,250.00 in 57.105 fees and $796.00 in “recoverable costs.” Thus, this court’s opinion reversing the award of 57.105 fees should have reflected the $5,250.00 amount.

As to costs, pursuant to Florida Rule of Civil Procedure 1.420(d), which provides in part “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action,” the plaintiffs were ordered to pay defendant DOT’S costs. On appeal, neither party attempted to dissect or differentiate any element of the cost award, nor was it argued why that award or any part of it should not stand. Thus, the cost award should remain in place.

Accordingly, the order of this court is corrected to reflect that the trial court’s award of $5,250.00 in 57.105 fees is reversed, the balance of the order on appeal affirmed. Appellants’ request for appellate attorney’s fees is denied.


text:
    GAINSCO a/s/o Fred Stringfellow, Appellant, v. ECS/CHOICEPOINT SERVICES, INC., Appellee.
    No. 1D02-1308.
    District Court of Appeal of Florida, First District.
    July 28, 2003.
    Rehearing Denied Aug. 29, 2003.

      Timothy M. Hartley of Harbsmeier, De-zayas & Appel, LLP, Ft. Lauderdale, for Appellant.
    Ana Maria Marin and Carolyn A. Pick-ard of Murray, Marin & Herman, P.A., Miami, for Appellee.
   PER CURIAM.

Appellant Gainsco (General Agents Insurance Company of America, Inc.), seeks reversal of a final summary judgment entered in favor of appellee, ECS/ChoicePoint Services, Inc. (hereafter ChoicePoint), on Gainsco’s claim against ChoicePoint for recovery of insurance proceeds paid by Gainsco to its insured, Fred Stringfellow, due to a fire loss. We conclude that the trial court’s ruling below was based upon a misinterpretation of the effect of section 627.409(1), Florida Statutes, and that there are disputed issues of material fact that preclude summary judgment for appellee. Accordingly, we reverse.

The underlying facts, briefly, are that appellant employed appellee to conduct an inspection and to verify coverage and in-surability of property owned by String-fellow, who was the insured under a policy recently issued by appellant through its agent. After the destruction of the insured property by fire, appellant paid the insured $400,000 to cover the loss, and filed a complaint for reimbursement against appellee based upon allegations that appellee negligently inspected the wrong property, and consequently failed to report that the insured premises included a nightclub known as “Village Traffic,” serving alcoholic beverages. Appellant further alleged that such a nightclub business was a prohibited risk for which coverage would not be provided under appellant’s underwriting guidelines, and that appellant relied upon the erroneous inspection report in maintaining coverage under the policy.

In entering the summary judgment below the trial court determined that because the property owner failed to list the nightclub as one of the businesses occupying the insured building the case is governed by section 627.409(1), Florida Statutes. Finding that appellant would not have issued the policy if the nightclub had been listed in the application, the court concluded that appellant could have avoided payment under the policy by invoking the insured’s omission or misrepresentation as an absolute defense under section 627.409(1). Having failed to avail itself of this defense, the court reasoned, appellant’s payment to its insured was deemed voluntary, and could not be recovered from appellee.

It is apparent that the trial court misapprehended the effect of the statute in light of the facts as thus far disclosed by the record before the court, and case law from this court. While this statute provides, in pertinent part, that a misrepresentation or omission “may prevent recovery” under a policy where material to the acceptance of the risk, or if the insured would not have provided coverage or issued the policy on the same terms, it is clear under case law from this court, cited below, that it is necessary to also consider the policy to determine whether the policy provisions alter the standard for avoidance of coverage based upon misrepresentation or omission. We find that although both the policy, and the above mentioned statute, declare that a policy is voidable if procured by fraud, the policy here voids coverage for a material misrepresentation or omission only if the insured “intentionally” conceals or misrepresents a material fact in procuring the insurance, whereas the statute voids a policy for misrepresentation or omission without regard to whether the same was intentional.

There is no finding by the trial court and nothing in the record before the court that directly or indirectly indicates the existence of fraud or intentional misrepresentation by the insured. On the other hand, appellant presented evidence by deposition and affidavit of its underwriting vice-president to the effect that a listing of the nightclub by business name only (as other business establishments on the premises were listed on the insurance application), without description of the activities carried on by the business, would not have led appellant to determine that “Village Traffic” was a prohibited risk. The same witness also maintained that under the company’s established procedures, after an inspection report is received (as in this case), the company no longer relies upon the policy application, but rather relies on the inspection report to determine whether to insure the property, or to cancel a policy already issued.

A summary judgment is appropriate only when it is conclusively shown that there is no disputed issue as to any material fact; and in applying this standard the court must draw every possible inference against the moving party. See e.g., Green v. CSX Transportation, 626 So.2d 974 (Fla. 1st DCA 1993). And although section 627.409(1) might otherwise be invoked as above noted to avoid coverage based upon an intentional misrepresentation which falls within the statute, see Bleasdell v. Underwriters Guarantee Insurance, 707 So.2d 411 (Fla. 1st DCA 1998), the insurance policy is to be given effect, rather than the statute, when it alters the standard for coverage. That is, the parties may “contract-out” or alter the statutory terms by their agreement (so long as it does not contravene public policy), and thereby preclude application of the statutory standard for avoiding coverage. See Kieser v. Old Line Life Insurance, 712 So.2d 1261 (Fla. 1st DCA 1998); Strickland Imports v. Underwriters at Lloyds, London, 668 So.2d 251 (Fla. 1st DCA 1996). As the court emphasized in Strickland, when the insurance policy voids the contract only in case of “intentional” misrepresentation (which is the case here), then the policy provision controls over the statute. To the same effect is our supreme court’s holding in Green v. Life & Health of America, 704 So.2d 1386 (Fla.1998), as noted in Kieser, supra, at 1263. We reject the notion that the rule established by the cited cases giving primary effect to policy provisions is distinguishable, as maintained below, based upon whether or not the application for insurance is based upon “information and belief.” As noted in Quick v. National Indemnity, 231 So.2d 22 (Fla. 4th DCA 1970), the policy and the application together constitute the contract of insurance.

For the reasons stated, we find that it was error to enter the summary final judgment appealed. The order of final judgment is REVERSED and the case is remanded for further proceedings.

VAN NORTWICK and POLSTON, JJ., and SMITH, LARRY G., Senior Judge, CONCUR.


text:
    Tyrone J. SKEENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1086.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
   PER CURIAM.

Tyrone J. Skeens appeals the trial court’s dismissal for untimefiness of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the trial court to consider Skeens’ motion on the merits.

In 1996, Skeens was convicted by a jury of one count of sexual battery and one count of lewd and lascivious act upon a child under sixteen. He was sentenced to fifteen years in prison on each count to run concurrently. Skeens appealed and this court in Skeens v. State, 733 So.2d 1094, 1096 (Fla. 2d DCA 1999) (Skeens I), affirmed the sexual battery conviction, reversed the lewd and lascivious conviction, and remanded for resentencing.

In 1999, Skeens was resentenced under the 1995 sentencing guidelines to thirteen years in prison for the sexual battery. Skeens again appealed and this court in Skeens v. State, 779 So.2d 418 (Fla. 2d DCA 2000) (Skeens II), remanded the case back to the sentencing court for reconsideration in fight of Heggs v. State, 759 So.2d 620 (Fla.2000).

In 2000, Skeens was resentenced under the 1994 sentencing guidelines to nine years in prison for the sexual battery. He did not appeal this sentence. On October 21, 2002, Skeens filed a rule 3.850 motion which the trial court dismissed as untimely. The trial court ruled that the sexual battery conviction became final upon the issuance of this court’s mandate for Skeens I in 1999. The trial court also ruled that the sexual battery conviction could no longer be challenged by a rule 3.850 motion filed in 2002.

However, this court in Snipes v. State, 843 So.2d 1043, 1044 (Fla. 2d DCA 2003), has recently held that the two-year time limitation of rule 3.850(b) cannot begin to run until the direct appeal process has concluded. We note that the Snipes opinion was not available to the trial court when it made its rulings in this case.

For Skeens, since his conviction was affirmed by his initial direct appeal (Skeens I) and he did not appeal the sentence imposed after his second direct appeal (Skeens II), the direct appeal process ended and his judgment and sentence became final on December 13, 2000, when the time expired for the filing of a direct appeal from his second resentencing. See McGee v. State, 684 So.2d 241, 242 (Fla. 2d DCA 1996) (holding that a judgment and sentence which are not appealed become final when “the thirty-day period for taking an appeal has expired”).

Accordingly, Skeens had until December 13, 2002, to file a timely rule 3.850 motion. See Fla. R.Crim. P. 3.850(b). Skeens filed his motion with the circuit court on October 21, 2002. Skeens’ rule 3.850 motion was timely. The order of the trial court dismissing Skeens’ rule 3.850 motion as untimely is reversed and this case is remanded for the trial court to consider the motion on its merits.

Reversed and remanded.

SALCINES, STRINGER, and COVINGTON, JJ., concur.


author: TAYLOR, J.

text:
    CITY OF HALLANDALE BEACH, Appellant, v. Vernon SMITH and Calvin Franklin as Trustees of the Hallandale Church of God, an unincorporated church, Appellees.
    No. 4D02-1791.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Mark Goldstein, City Attorney, Hallan-dale Beach, for appellant.
    Allan M. Rubin and Suzanne M. Driscoll of Shutts & Bowen, L.L.P., Fort Lauder-dale, and Alan E. Deserio, Brandon, for appellees.
   TAYLOR, J.

The City of Hallandale Beach (City) sought to acquire vacant land owned by the Hallandale Church of God (Church) to expand its existing public works facility. The trial court dismissed its eminent domain petition for failure to comply with various provisions of Chapter 180, Florida Statutes. We reverse, because, in condemning property within its boundaries, the City was not required to utilize or comply with Chapter 180.

The City’s eminent domain petition cited authority under Chapters 73, 74, and 166, Florida Statutes, Art. VIII, Sec. 2(b) of the Florida Constitution, and Hallandale Beach Resolution 2001-13. It attached a copy of the resolution to the petition. The Church argued, however, that the petition was jurisdictionally defective for failing to attach the proper resolutions required by Chapter 180. In response, the City maintained that compliance with Chapter 180 was necessary only when a municipality sought to acquire land outside its boundaries.

Section 166.411, Florida Statutes, codifies a municipality’s power of eminent domain. It lists the appropriate uses and purposes for which a municipality may exercise its right and power of acquiring land by eminent domain. Subsection (2) allows this power to be used “[o]ver railroads, traction and streetcar lines, telephone and telegraph lines, all public and private streets and highways, drainage districts, bridge districts, school districts, or any other public or private lands whatsoever necessary to enable the accomplishment of purposes listed in s. 180.06.” § 166.411(2). Those having the right to exercise the power of eminent domain may do so by filing a petition in the circuit court of the county where the property is situated. § 73.021, Fla. Stat.

The parties do not dispute that the City’s proposed acquisition to expand its public works facility to accommodate a planned water treatment plant falls within the statutorily authorized public purposes. Rather, they disagree about the applicability of certain Chapter 180 provisions, which require resolutions and opportunities for the public to be heard on certain issues concerning a utility’s construction. Section 180.02, Florida Statutes, provides in relevant part:

(1) For the accomplishment of the purposes of this chapter, any municipality may execute its corporate powers within its corporate limits.
(2) Any municipality may extend and execute all of its corporate powers applicable for the accomplishment of the purposes of this chapter outside of its corporate limits, as hereinafter provided and as may be desirable or necessary for the promotion of the public health, safety and welfare or for the accomplishment of the purposes of this chapter; provided, however, that said corporate powers shall not extend or apply within the corporate limits of another municipality.
(3) In the event any municipality desires to avail itself of the provisions or benefits of this chapter, it is lawful for such municipality to create a zone or area by ordinance and to prescribe reasonable regulations requiring all persons or corporations living or doing business within said area to connect, when available, with any sewerage system or alternative water supply system ... provided, however, in the creation of said zone the municipality shall not include any area within the limits of any other incorporated city or village, nor shall such area or zone extend for more than 5 miles from the corporate limits of said municipality.

In the event that a party proposes to exercise the powers granted by Chapter 180, a resolution or ordinance must be passed by the legislative body of the municipality “reciting the utility to be constructed or extended and its purpose, the proposed territory to be included, what mortgage revenue certificates or debentures if any are to be issued to finance the project, the cost thereof, and such other provisions as may be deemed necessary.” § 180.03(1), Fla. Stat. A second ordinance or resolution is then required in order to authorize construction or extension of the utility. § 180.04, Fla. Stat.

In its order denying the City’s motion for reconsideration of the dismissal of its petition, the trial court ruled that Chapter 180 clearly applies to condemnation proceedings both within and outside a city’s limits. However, a careful reading of section 180.02 demonstrates otherwise. Subsection (1) states that any municipality may execute its corporate powers within its corporate limits in order to accomplish the purposes of Chapter 180. Subsection (2) states that a municipality may exercise its powers outside of its corporate limits “as hereinafter provided.” Chapter 180 then goes on to explain how a municipality may go about exercising those powers. It thus appears that the purpose of Chapter 180 is to allow a municipality to exercise its powers regarding public works when outside its corporate limits. Section 180.02 makes the distinction between exercising authority inside and outside of a city’s limits. Here, because the City is not seeking to condemn property outside of its limits, there is no need to resort to or comply with the provisions of Chapter 180.

The Church argued, and the trial court ruled, that City of Ocala v. Red Oak Farm, Inc., 636 So.2d 81 (Fla. 5th DCA 1994), applies to this case. In Red Oak Farm, although the city passed a resolution authorizing the city attorney to file a condemnation proceeding, it “failed to attach a copy of a resolution setting forth a zone or area and prescribing reasonable regulations concerning its intent to construct a utility in the zoned territory because the land sought to be condemned [was] outside the city limits.” Id. at 82. Red Oak Farm moved to dismiss the petition for failing to comply with the requirements of Chapter 180. The trial court dismissed the petition and the city appealed. The fifth district affirmed the trial court’s ruling, stating:

We hold that Chapter 180 is applicable and does allow the City to exercise its authority to construct an electrical utility outside the city limits. However, in order to take a property owner’s land by eminent domain, the statutory provisions of a petition in eminent domain, as defined by section 73.021 ... must be strictly complied with for a valid condemnation. A defective petition will not allow a landowner’s property to be taken. Because the petition did not have the proper resolutions attached and did not comply with Chapter 180, we affirm the trial court.

Id. at 83 (citations omitted).

Based upon this language, the trial court agreed with the Church that Chapter 180 applies to proceedings both within and outside a city’s corporate limits. However, we read Red Oak Farm to hold that because the city was proceeding outside of its limits, it was required to utilize Chapter 180. Because the city did not adhere to Chapter 180, the petition in eminent domain was defective. The present case is distinguishable. Here, the City was condemning property inside its city limits. Therefore, it was not required to adopt resolutions pursuant to sections 180.03 and 180.04, but instead, was permitted to acquire the Church pursuant to its home rule powers to condemn property located within its boundaries absent an express prohibition. See City of Ocala v. Nye, 608 So.2d 15, 17 (Fla.l992)(“The ‘Municipal Home Rule Powers Act,’ enacted by the legislature in 1973, states that as provided by the Florida Constitution municipalities ‘may exercise any power for municipal purposes, except when expressly prohibited by law.’ ”).

Furthermore, section 180.21, Florida Statutes, states that “[t]he authority and powers granted by [Chapter 180] to municipalities shall be in addition to but not in limitation of any of the powers heretofore or hereafter granted to municipalities now existing or hereafter created.” Acts which recite that the powers granted are additional or supplemental may be used in addition to other laws on the same subject; however, they may be rejected by the public entity and another applicable law used in its place. See Speer v. Olson, 367 So.2d 207, 213 (Fla.1978).

Because we find that the City was not required to comply with Chapter 180 when condemning property within its corporate limits, we reverse the trial court’s order dismissing the Petition and remand this case to the trial court for further proceedings.

REVERSED and REMANDED.

SHAHOOD, J., and FLEET, J., LEONARD, Associate Judge, concur.


author: DAVIS, J.

text:
    Darryl WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1823.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Nancy A. Daniels, Public Defender; M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

In this appeal from a conviction of burglary of a dwelling, the appellant asserts that the trial court did not have the discretion to instruct the jury, over defense objection, that it could infer a guilty conscience from the appellant’s unexplained possession of recently stolen items. In support, the appellant relies on this Court’s statement in Weddell v. State, 780 So.2d 824, 324 (Fla. 1st DCA), rev. granted, 796 So.2d 539 (Fla.2001), rev. dismissed, 813 So.2d 67 (Fla.2002), that “we can think of no valid policy reason why a trial judge should be permitted to comment on evidence of possession of recently stolen property as opposed to any other evidence adduced at trial.”

Although in Weddell we both certified the question as being of great public importance and expressed, in dicta, our continued concern over the reading of this instruction, we did not hold that such instruction was impermissible. In fact, we could not so hold in light of the Florida Supreme Court’s specific ruling to the contrary in State v. Young, 217 So.2d 567, 571 (Fla.1968), cert. denied 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969). See Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973).

In State v. Young, the Supreme Court reasoned that evidence of any incriminating circumstance such as flight, concealment, resistance to a lawful arrest, etc., could be considered by the jury as tending to show guilt if evidence thereof was allowed to go to the jury unexplained. 217 So.2d at 571. Following this reasoning, the Supreme Court held that an instruction on inferences arising from proof of unexplained possession of recently stolen items did not violate a defendant’s right to remain silent or impermissibly shift the burden of proof. See id. Therefore, until such time as the Supreme Court revisits this issue, the law in Florida remains that such instruction is permissible. Id. Thus, the trial court’s reading thereof was not an abuse of discretion, and the appellant’s conviction is affirmed.

While State v. Young remains the law on inferences arising from unexplained possession of recently stolen items, the Supreme Court’s position on what constitutes an impermissible comment on the evidence has changed since that case was decided. For example, in Whitfield v. State, 452 So.2d 548, 549 (Fla.1984), the Supreme Court held that a trial court could not inform a jury that it could infer guilty conscience from the fact that a defendant refused to submit to fingerprinting without impermissibly commenting on the evidence. 452 So.2d at 549. In reaching this conclusion, the Whitfield Court warned that a trial court should “scrupulously avoid commenting on the evidence in a case,” and that, especially in criminal cases, “the trial court should take great care not to intimate to the jury the court’s opinion as to the weight, character, or credibility of any evidence adduced.” 452 So.2d at 549(emphasis added).

Whitfield’s warnings notwithstanding, the Supreme Court found no error at that time in a trial court’s reading of the then-standard instruction that inconsistent exculpatory statements could be used to affirmatively show consciousness of guilt and unlawful intent. See Johnson v. State, 465 So.2d 499 (Fla.), cert. denied, 474 U.S. 865, 106 S.Ct. 186, 88 L.Ed.2d 155 (1985). Only ten years later, however, the Supreme Court overruled Johnson on its own motion, concluding that the instruction should no longer be given because it did in fact constitute a judicial comment on the evidence. See In re Instructions in Criminal Cases, 652 So.2d 814, 814-15 (Fla.1995).

Further, as was pointed out by then-judge Pariente in her dissent in Washburn v. State, 683 So.2d 533 (Fla. 4th DCA 1996), the Supreme Court specifically compared evidence of flight to evidence of unexplained possession of recently stolen items in State v. Young, and found that a guilty conscience could be inferred from either. 217 So.2d at 571. The Supreme Court, however, diverged from that finding in 1992, holding that the flight instruction could no longer be given because it also constitutes comment on the evidence. See Fenelon v. State, 594 So.2d 292, 294 (Fla.1992).

We once again state that we can think of no valid policy reason why a judge should be allowed to comment on evidence of unexplained possession of recently stolen items any more than the judge is allowed to comment on other evidence adduced at trial. Because this issue is continually recurring, and because the ease law that has emerged since State v. Young evidences a significant divergence from the reasoning supporting the holding therein, we again certify as a question of great public importance:

IS THE FLORIDA STANDARD JURY INSTRUCTION ON “POSSESSION OF PROPERTY RECENTLY STOLEN” AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

AFFIRMED; QUESTION CERTIFIED.

KAHN and WEBSTER, JJ., CONCUR.

      . Whitfield v. State, 452 So.2d 548, 549 (Fla.1984), has been interpreted by the Fifth District as also precluding an instruction on inferences arising from a D.U.I. defendant's refusal to submit to a breathalyzer. See Edwards v. State, 603 So.2d 89, 91 (Fla. 5th DCA 1992).

      . For these purposes, it does not matter whether the challenged instruction was drafted by the judge or lifted directly from the standard jury instructions. See, e.g., Barfield v. State, 613 So.2d 507, 507 (Fla. 1st DCA 1993).


author: OWEN, WILLIAM C., JR., Senior Judge.

text:
    CONSOLIDATED RESOURCES HEALTHCARE FUND I, LTD., d/b/a Lakeside Health Center, Appellant, v. Deborah FENELUS, as Personal Representative of the Estate of Ruth Spruill, deceased, Appellee.
    No. 4D03-563.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.

      Scott M. Fischer and Christopher B. Hopkins of Cole, Scott & Kissane, P.A., West Palm Beach, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, L.L.P., and Craig M. Goldenfarb of Law Offices of Craig Goldenfarb, West Palm Beach, for appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

On this non-final appeal from an order denying appellant’s motion to compel arbitration, the issue is the validity of a nursing home admission agreement which contained an arbitration clause. The trial court found the agreement invalid because it had not been signed by a representative of the nursing home and was “boiler plate.” We reverse.

Appellee, as personal representative of the estate of her mother, Ruth Spruill (the decedent), filed a negligence and wrongful death action against appellant, the operator of the nursing home in which the decedent lived during her last three years. Essentially, the complaint alleged appellant failed to provide the decedent adequate health care, protective services, and support services, causing the decedent various health problems which eventually led to her death.

Appellant filed a motion to compel arbitration based on an “agreement for care” (the agreement) which the decedent’s son, Eugene Spruill (Eugene), executed on her behalf as her health care surrogate in connection with the decedent’s admission to the nursing home. The agreement, the relevant portions of which were attached to the motion, required the nursing home, among other things, to “[fjurnish room, meals as required by the resident, nursing care, personal care, or custodial care, as may be required for the well-being of the resident.” Of particular significance to this case, it also provided, in Paragraph 12, as follows:

12. OPTIONAL ARBITRATION CLAUSE (If the parties to this Agreement do not wish to include the following arbitration provision, please indicate so by marking an “X” through this clause. Both parties shall also initial that “X” to signify their agreement to refuse arbitration.) Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code found at Chapter 682, Florida Statutes, and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

The provision was not “X”ed through or initialed.

Although the court held two “evidentia-ry” hearings on the motion, the only evidence consisted of Eugene’s deposition and a deposition of Susan Taylor (Taylor), Director of Admissions and Marketing for the nursing home. The relevant facts developed by the depositions are neither complex nor disputed on material matters. As fifty year old Eugene, himself in poor health, watched his once active seventy-two year old mother begin to mentally decline, he concluded he could no longer care for her by himself. He and his mother then decided that she should move into appellant’s nursing facility. Mrs. Spruill was admitted into the nursing home on December 2, 1997, but because Eugene had to work that day he, as her health care surrogate, did not sign the admission paperwork until two days later. The admission packet, which Taylor gave him to read and to sign, contained at least five items, including the agreement. Eugene testified he had a college education and had taught school for eleven years, but that he did not read the documents nor did he ask Taylor to explain them, since he believed he was signing forms simply to admit his mother into the nursing home. Taylor testified she also signed the various documents and that she did so in her capacity as a nursing home representative. The problem here, however, and central to the trial court’s ruling, is that Taylor, instead of signing the agreement on the line designated for the nursing home representative’s signature, signed on the line designated “witness” to the right of Eugene’s signature. When questioned about this, she testified that it was her practice to do so when someone other than the resident himself or herself signed the agreement; otherwise, if the resident signed, then she would ordinarily sign on the line for the nursing home representative.

In its order denying the motion, the court stated its grounds: that no valid contract existed because the nursing home representative signed the agreement only as a witness and not in her capacity as the nursing home representative; that this case is distinguishable from the case on which appellant relied, Integrated Health Services of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338 (Fla. 3d DCA 2002), because in that case there was no place for the nursing home representative to sign, whereas in this case there was; and, furthermore, that a valid contract did not exist because the subject contract was a “boiler plate contract.”

At the outset, the parties dispute the standard of review, appellant contending that the de novo standard applies as the issue is one of law, while appellee contends that the abuse of discretion standard applies because the trial court, in making its findings, considered the evidence surrounding the execution of the agreement. The trial court undoubtedly did consider the evidence in making its finding that Taylor signed the agreement solely as a witness and not as a representative of the nursing home. The issue here, however, is not whether we accord deference to the trial- court’s factual finding but whether the finding will sustain the court’s legal conclusion based thereon, i.e., that the agreement containing the arbitration clause is thereby rendered invalid. Our review on that issue is de novo.

We disagree that this case is distinguishable from Lopez-Silvero in any meaningful respect. In that case, as in this one, a suit was brought against a nursing home alleging improper care and the nursing home sought to compel arbitration pursuant to its admission contract. The Third District reversed the trial court’s denial of the motion, concluding that even though the nursing home did not sign the contract at all, the contract was still binding:

A contract is binding, despite the fact that one party did not sign the contract, where both parties have performed under the contract. See Gateway Cable T.V., Inc. v. Vikoa Contraction [sic] Corp., 253 So.2d 461 (Fla. 1st DCA 1971). As noted in Gateway Cable T.V., Inc. v. Vikoa Contraction [sic] Corp., 253 So.2d at 463, “A contract may be binding on a party despite the absence of a party’s signature. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways, for example, by the acts or conduct of the parties.” See also Sosa v. Shearform Mfg., 784 So.2d 609 (Fla. 5th DCA 2001) (parties may be bound to the provisions of an unsigned contract if they acted as though the provisions of the contract were in force.)
Here, both the resident and IHS acted as if they had a valid contract. IHS performed under the contract by admitting the resident and providing him with nursing home care for over two months. Moreover, IHS signed five other docu-merits relating to the resident’s admission, which were incorporated by reference in the admission contract. Clearly IHS assented to the terms of the admission contract, including its arbitration clause.

Id. at 339. The court reversed and remanded with instructions to grant the motion. Id.

The fact that the contract in the Lopez-Silvero case had no place for the nursing home to sign, ‘whereas the contract in the instant case did, is a distinction without a difference. The Lopez-Silvero case turned on assent by performance, not the presence or absence of a space for a signature. Here, appellant’s assent to the contract has been demonstrated by its actions indicating assent, including its performance of the contract for a period of more than three years. See, Lopez-Silvero. It is clear appellant meant to be bound by the contract which it asked Eugene to sign on his mother’s behalf. Thus, we hold the trial court erred in concluding that, merely because the document contained no signature purporting to be that of the nursing home representative, no valid contract arose.

Appellee argues that notwithstanding the nursing home’s performance, there was not a meeting of the minds with respect to the agreement to arbitrate. Although Eugene testified he did not understand that the agreement contained an arbitration provision, that was simply because, as he also testified, he did not read it. He did not testify that he was forced or coerced to sign it, nor that he was not given an opportunity to read it. In fact, Eugene testified that he signed the agreement willingly. Taylor testified that she allowed Eugene to read the package of documents of which the agreement was a part, and was available to answer his questions; Eugene did not ask any. A party normally is bound by a contract that the party signs unless the party can demonstrate that he or she was prevented from reading it or induced by the other party to refrain from reading it. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347 (Fla.1977) (“No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.”).

The trial court also found the agreement to be invalid because it was a “boiler plate contract”. Taken literally, such a finding would be of no consequence, since the mere fact that a contract includes boiler plate language is not sufficient to invalidate it. However, we believe, as ap-pellee has suggested in her brief, the trial court intended its use of “boiler plate” as shorthand for a finding that the arbitration clause was unconscionable. Thus considered, the finding should not be given the cursory dismissal its literal reading would permit for, as appellee correctly argues, unconscionable contracts will not be enforced by the courts, see, Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999), rev. denied, 763 So.2d 1044 (Fla.2000), a case which the parties argued before the trial court.

In the Powertel case, the court explained that a determination of uncon-scionability required a finding that the contract is both procedurally and substantively unconscionable. Procedural uncon-scionability relates to the manner in which the contract was entered, including issues such as relative bargaining power and the parties’ ability to understand the disputed terms, while substantive unconscionability refers to the fairness of the terms of the agreement itself. The court in Powertel found both requirements met with respect to the arbitration clause added to the cellular telephone contract in question, where the clause was added unilaterally when the telephone company sent it to customers as an insert in the monthly bill and they could not reject the clause and continue to use the plan, in connection with which they had purchased equipment and obtained telephone numbers that worked only with that company’s service. The clause was substantively unconscionable in that it limited the company’s liability to actual damages, removed its exposure to a class action, and forced customers to waive important statutory remedies.

In this case, appellee argues the court recognized that Eugene was an older man — however, he was only fifty years old at the time, and there was no evidence that he was lacking in capacity — without business experience and that he had little bargaining power since his mother had already been admitted to the nursing home, its lawyers had drafted the agreement, and its terms were never explained to him. However, as we have discussed above, Eugene conceded he willingly signed the agreement, Taylor testified he had the opportunity to read it and ask questions before signing it, and the arbitration clause not only did not appear in small print, but it was titled in boldface and could have been refused by “X”ing it out. We hold that appellee did not demonstrate procedural unconscionability by the mere act of appellant’s including the arbitration clause in question (and an optional one at that) within the paperwork that Eugene had to sign to admit his mother to the nursing home.

With respect to the substantive prong, appellee argues that the clause would not have been substantively unconscionable had Eugene been given the choice of affirmatively giving up his right to trial, but instead he was deprived of a fundamental right unless he affirmatively indicated otherwise. However, as appellant argues, an arbitration clause need not even be optional in order to be valid; that was just additional evidence that it was fair. We hold there has been no showing of uncon-scionability sufficient to invalidate the arbitration clause in question.

Finally, appellee argues that the trial court was correct to deny the motion to compel arbitration because there was no agreement that tort claims would be subject to arbitration. Compare Seifert v. U.S. Home Corp., 750 So.2d 633, 642 (Fla.1999) (holding that wrongful death claim against house builder was not subject to arbitration agreement in contract for sale and purchase of house, as the dispute — the builder’s alleged lack of due care in not designing the home to prevent the air conditioner from pulling in carbon monoxide from the garage and its breach of duty to warn of a known dangerous condition — did not have a significant relationship to the contract, even though the dispute would not have arisen but for the contract). We find the instant case clearly distinguishable. Here, the agreement containing the arbitration clause obligated appellant to provide appropriate care to the decedent, and the dispute alleges that appellant failed to provide appropriate care. It certainly appears to us that there is a strong nexus between the dispute giving rise to the lawsuit and the contract containing the arbitration clause. That the claim sounds in negligence (failure to exercise reasonable care) rather than breach of contract (failure to fulfill a contractual obligation) does not ipso facto sever an otherwise significant relationship between the contractual obligation and the matter in dispute. The trial court found the dispute to be arbitrable and we do as well.

REVERSED.

WARNER and POLEN, JJ., concur.

      . Since this evidence was by written deposition, the trial court did not have the benefit of viewing the deponent; nonetheless, the trial court expressed the view that she had signed only as a witness to Eugene's signature and not as a representative of the nursing home.

      . We think it highly unlikely that, after performance for that period, appellant would be heard to disavow any obligation under the contract on the grounds that no nursing home representative had signed on its behalf.

      . It is not clear what would have happened if Eugene had opted out of the arbitration clause and the nursing home refused to add its own "X”; perhaps the decedent’s admission to the nursing home would have been rejected, but there was no testimony to that effect.

      . While this was not one of the bases on which the trial court denied the motion, neither this court nor the appellee is precluded from sustaining a legally correct judgment by arguments supported by the record. See, Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999).


author: FULMER, Judge.

text:
    Robert D. FORDHAM, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D03-1102, 2D03-2801.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2003.
   FULMER, Judge.

In these consolidated appeals, Robert Fordham challenges the summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850 on September 30, 2002, and the summary dismissal of his second motion for postconviction relief filed on January 27, 2003. Both motions raised the same jail credit issue framed as an ineffective assistance of counsel claim. We affirm one order and reverse the other order.

The trial court denied Fordham’s first motion because it failed to meet the pleading requirements of rule 3.850(c). In its order, the trial court advised Fordham that rule 3.987 provides a model form for use in motions for postconviction relief. We agree with the trial court’s determination that Fordham’s motion lacked the requisite allegations and, therefore, affirm the trial court’s order denying Fordham’s first motion. See Schofield v. State, 641 So.2d 172 (Fla. 1st DCA 1994).

Following the advice of the trial court, Fordham utilized the form provided in rule 3.987 and filed a second motion seeking the same relief sought in the first motion. The trial court dismissed the second motion as facially insufficient because it failed to “state the reason the claim in the present motion was not raised in the former motion” as required by rule 3.850(c)(4). The trial court overlooked the fact that the claim raised in the second motion was, in fact, the same claim raised in the first motion. And, Fordham’s second motion was not successive because the trial court had not ruled on the merits of the first motion. See Wright v. State, 741 So.2d 1146 (Fla. 2d DCA 1999). Therefore, we reverse the trial court’s order dismissing Fordham’s second motion and remand for the trial court to consider the motion on its merits.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND, C.J., and VILLANTI, J., Concur.