text:
    AMERICAN HOME ASSURANCE COMPANY, et al., Appellants, v. TOTAL DRYWALL & STUCCO CORP., Appellee.
    No. 3D02-3068.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., and Michael N. O’Connell and Stuart Sobel, Coral Gables, for appellants.
    Fischman, Harvey & Dutton, P.A., and F. William Harvey, Miami, for appellee.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

American Home Assurance Company [the surety] and Odebrecht Construction, Inc. [OCI] appeal from a nonfinal order denying their motion to dismiss so that the cause may be submitted to arbitration. For the reasons that follow, we reverse.

Total Drywall & Stucco Corp. [subcontractor] sued OCI, the owner, and the surety for breach of contract and other claims arising from materials and labor supplied at the site of the construction of the Ritz Carlton on Key Biscayne. The subcontractor had entered into three separate yet identical contracts with OCI, each of which contained the following clause:

Subcontractor [Total] acknowledges that the prime contract provides for arbitration as the method of dispute resolution among the Contractor (OCI) and Owner. In the event that Contractor is required to submit to such arbitration, the Subcontractor hereby agrees to submit itself to the jurisdiction of the arbitral panel. However, nothing herein shall be construed as granting Subcontractor the right to arbitration under this agreement.

OCI and the surety moved to dismiss or, in the alternative, to stay the action pending arbitration based upon ongoing arbitration between the owner and OCI. OCI requested that the subcontractor join the arbitration, as OCI had vouched the subcontractor’s claims into the arbitration, and all of the claims that the subcontractor sought to litigate would be resolved in the ongoing arbitration.

The trial court erred in denying OCI’s motion to dismiss, as the subcontractor contractually agreed to submit to arbitration. The arbitration that is already ongoing necessarily implicates all of the subcontractor’s claims against OCI as well as OCI’s possible backcharges against the subcontractor. To allow the litigation to continue flies in the face of both reason and the explicit contractual language. See Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1996) (holding that arbitration clauses are to be given “the broadest possible interpretation to accomplish the salutory purpose of resolving controversies out of court,” where dispute had its “origin or genesis in the contract.”).

Accordingly, we reverse and remand with directions to grant appellants’ motion to dismiss and compel arbitration.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Redwin Anderson WILCHCOMBE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3400.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Rehearing Denied April 16, 2003.

      Michael Hursey, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Melissa Vaughan Rubin, Frank J. Ingrassia, Assistant Attorneys General (Ft. Lauderdale), for ap-pellee.
    Before GREEN and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

A jury convicted Redwin Wilchcombe of false imprisonment with a firearm, aggravated assault with a firearm, two counts of battery, and aggravated battery with a firearm. All charges stemmed from an incident on January 21, 2000 during which Wilchcombe beat his wife at their home, pointed a loaded gun at her, confined her against her will, and threatened to kill her.

Wilchcombe was sentenced to 3 years minimum mandatory for aggravated assault with a firearm, per Section 775.087(2)(a)(1)(f), Florida Statutes (2000); a consecutive 10 years minimum mandatory for aggravated battery with a firearm, per Section 775.087(2)(a)(1)(g), Florida Statutes (2000); a consecutive 21 months for false imprisonment with a firearm (to commence after the 13 years of minimum mandatory sentences for aggravated assault with a firearm and aggravated battery with a firearm), per Section 787.02(2), Florida Statutes (2000), and 3 year sentences, both of which were suspended, on the two battery counts.

We affirm Wilchcombe’s conviction, but remand this matter to the trial court for resentencing.

The trial court exercises broad discretion in the admission of evidence, and in determining whether its probative value outweighs any prejudicial effect. See § 90.403, Fla. Stat. (2000); Dennis v. State, 817 So.2d 741 (Fla.2002); Heath v. State, 648 So.2d 660 (Fla.1994); Robertson v. State, 780 So.2d 106 (Fla. 3d DCA 2001). The trial court did not abuse its discretion by allowing the state to introduce direct evidence of the controlling nature of Wil-chcombe’s relationship with the victim, or, after defendant questioned the reasonableness of the victim’s fears and actions, allowing evidence of specific prior violent acts and threats. The trial court had previously ruled that such cross-examination would open the door to such evidence. The evidence proved material issues other than defendant’s character, such as the “well founded fear” and perceptions of the victim, particularly after defendant challenged the reasonableness of the victim’s fears and actions on cross-examination. “Evidence of any facts relevant to a material fact in issue except where the sole relevance is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.” Williams v. State, 110 So.2d 654, 663 (Fla.1959), cert. denied 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). In analogous situations, similar evidence has been deemed admissible to show motive, premeditation or intent. Dennis v. State, 817 So.2d 741, 762 (Fla.2002); Burgal v. State, 740 So.2d 82 (Fla. 3d DCA 1999); Brown v. State, 611 So.2d 540(Fla. 3d DCA 1992).

Wilchcombe further argues that the prosecutor, during closing, made improper comments as to the “uncontrovert-ed evidence” and attacks on defense counsel, requiring a new trial. Since there were no contemporaneous objections to the prosecutor’s remarks, this point is not preserved for appeal unless the prosecutor’s comments constituted “fundamental error.” McDonald v. State, 743 So.2d 501 (Fla.1999); Echevarria v. State, 783 So.2d 1236 (Fla. 5th DCA 2001); Williams v. State, 682 So.2d 631 (Fla. 3d DCA 1996). Here, on the whole, the comments made during closing were fair comments on the evidence and direct responses to defense arguments, and did not amount to “fundamental error” which tainted the validity of the trial. Jones v. State, 666 So.2d 995 (Fla. 5th DCA 1996).

Finally, Wilchcombe urges that the trial court misapplied the sentencing statutes, incorrectly believing that under Section 775.087, Florida Statutes(2000)(the 10-20-life law) it had to sentence Wilchcombe to consecutive minimum mandatory sentences on charges all arising from the same criminal episode. We agree with Wilchcombe that the trial judge was mistaken in this regard, on the basis stated in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002). See also Williams v. State 820 So.2d 1000 (Fla. 3d DCA 2002)(affirm-ing concurrent minimum mandatory sentences under Section 775.087); Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002)(remanding for trial court to exercise its discretion in deciding whether to impose consecutive sentences after original sentence was based upon misapprehension that 10-20-life law required consecutive sentences); Sehnal v. State, 826 So.2d 498 (Fla. 4th DCA 2002)(remanding to trial court for resentencing after mistaken belief that statute mandated consecutive sentences).

Where, as here, two or more enhanced sentences arise out of the same criminal episode, the sentences should run concurrently. Jackson v. State, 659 So.2d 1060 (Fla.1995); Palmer v. State, 438 So.2d 1 (Fla.1983); Tunsil v. State, 797 So.2d 651 (Fla. 3d DCA 2001); Lafleur v. State, 661 So.2d 346 (Fla. 3d DCA 1995).

Accordingly, we affirm the convictions, and remand this matter to the trial court for resentencing.


author: RAMIREZ, J.

text:
    SUNSET HARBOUR NORTH CONDO. ASSOC., Appellant, v. Sara BEDZOW, Appellee.
    No. 3D02-650.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.

      H. Hugh McConnell; Siegfried, Rivera, Lerner, De La Torre & Sobel, and James F. Harrington, for appellant.
    Greenberg Traurig, and Elliot H. Scherker, and Elliot B. Rula, for appellee.
    Before COPE, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   RAMIREZ, J.

Sunset Harbour North Condominium Association, plaintiff at the trial level, appeals the entry of summary final judgment in favor of appellee Sara Bedzow. We affirm because Sara Bedzow is not personally liable for deceptive trade practices and is not responsible for the dissemination of misleading advertisements.

Yacht Club Southeastern, Inc., a wholly owned subsidiary of Pacific International Equities, Inc., developed Sunset Harbour North condominiums. Sara Bedzow is a director and vice president of Pacific International and each of its subsidiaries. Her husband Charles Bedzow is the president. The Association brought suit against Yacht Club Southeastern and Charles and Sara Bedzow individually as officers and directors of the corporation. Count IV alleged unfair and deceptive trade practices against the developer and the Bedzows for representing that the condominium would be “state of the art” and would include certain amenities which it does not. Count V alleges that the developer and the Bedzows engaged in a pattern of racketeering by disseminating misleading advertisements.

Both sides moved for summary judgment as to the Bedzows’ liability in their individual capacity. The trial court granted summary judgment in Sara’s favor, finding that there was no evidence of her personal involvement in the marketing of Sunset Harbour North and therefore she was not personally liable.

The Association argues that the law creates a rebuttable presumption that a person receiving the benefit of any misleading advertisement is responsible for it. The Association relies upon section 817.41(4), Florida Statutes (1997), which provides as follows:

(4) There shall be a rebuttable presumption that the person named in or obtaining the benefits of any misleading advertisement or any such sale is responsible for such misleading advertisement or unlawful sale.

It is undisputed that Sara Bedzow was not named in any advertisement. Furthermore, the Association has not shown that she “obtain[ed] the benefits of any misleading advertisement.” If anyone derived a benefit from marketing the condominiums, it was the corporation, not Sara Bedzow. She benefitted only to the same extent as any shareholder which, without more, would not impose personal liability. The Association argues that the presumption alone is sufficient to create an issue of fact, thereby precluding summary judgment. See, e.g., Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965). The problem is that the Association could present no evidence that the statute creating the presumption applied to Sara Bedzow so as to pierce the corporate veil. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984); Lipsig v. Ramlawi, 760 So.2d 170, 187 (Fla. 3d DCA 2000)(absent showing that corporation was formed for an improper purpose, corporate veil will not be pierced).

Because it is undisputed that Sara Bed-zow never participated in marketing the condominiums, she could not have engaged in a pattern of racketeering by disseminating misleading advertisements. Section 772.103, Florida Statutes (2002), requires active participation in an enterprise, a much closer nexus than we find here. To be liable, Sara Bedzow must be found to have engaged in at least two incidents of criminal activity. See § 772.102(4), Fla. Stat. (2002). The criminal activity alleged in this case is the dissemination of misleading advertisements in violation of section 817.41, Florida Statutes (1997). Sara Bed-zow did not disseminate any advertisements. Thus, summary judgment in her favor was also proper as to Count V.

Affirmed.


text:
    Joselyn RAPERTO, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D02-1143.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Lizel Gonzalez, Miami, for appellant.
    Linda Ann Wells, Miami, and Sandra Piligian, for appellee.
    Before COPE, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   RAMIREZ, J.

Joselyn Raperto appeals a final order denying his application for Medicaid related benefits. Because the hearing officer improperly interpreted Florida Administrative Code Rule 65A-1.711, we reverse.

It is undisputed that Raperto is disabled and a recipient of Social Security Disability Insurance benefits and Supplemental Security Income disability benefits. The supplemental disability benefits also entitled Raperto to Medicaid related benefits. On October 4, 2000, the Florida Department of Children and Families notified Raperto that he would no longer be eligible for supplemental disability benefits after October 31, 2000 because his income exceeded the supplemental disability eligibility criteria.

Raperto appealed the Department’s termination of supplemental disability benefits, arguing that the Department terminated his benefits on the basis of an incomplete ex parte review of his eligibility for other Medicaid benefits, including the Home and Community Based Services Medicaid waiver program. On August 7, 2001, the administrative appeals hearing officer found that the Department had failed to conduct a full review of Raperto’s Medicaid eligibility as required by the Florida Administrative Code and Department policy, and ordered the Department to determine Raperto’s eligibility for Home and Community Based Services Medicaid (HCBS) waiver.

On September 5, 2001, the Department denied Raperto’s claim for HCBS and can-celled his Medicaid benefits because he did not follow through in establishing eligibility and he did not meet the medical need for HCBS. After Raperto appealed the Department’s decision, the hearing officer affirmed the denial of benefits finding that United Home Care Agency had determined that Raperto was eligible for the program, but had not enrolled him because there were no funds to provide such services for individuals less than 60 years of age.

Florida Administrative Code Rule 65A-1.711(4) provides that:

(4) To be eligible for HCBS, an individual must:
(a) Be at least 65 years of age and meet the requirements of rule subsection 65A-1.701(6) to participate in the Channeling waiver;
(b) Be determined disabled in accordance with SSI disability criteria set forth in 42 C.F.R. §§ 435.540 and 435.541 and meet the requirements of subsection 65A-1.701(22) to participate in the Project AIDS Care waiver;
(c) Be age 65 or older or disabled in accordance with SSI disability criteria set forth in 42 C.F.R. §§ 435.540 and 435.541 and meet the requirements of subsection 65A-1.701(1) to participate in the ADA/HCBS waiver program or subsection 65A-1.701(10) to participate in the Developmental Services waiver program;
(d) Be age 60 or older and meet the requirements in rule subsection 65A-1.701(3) to participate in the Assisted Living waiver;
(e) Be determined to be in medical need in accordance with Rule 59G-8.200(4)(b), F.A.C.;
(f) Be receiving HCBS as certified by a case manager in accordance with the provisions of the waivers.

On appeal, the Department concedes that an individual does not have to meet all six of the criteria, but only one of the six. Likewise, it is undisputed that Raperto qualifies under subsection (4)(c) because he is disabled. The hearing officer, however, determined that Raperto was ineligible because he did not satisfy the requirements of subsection (4)(f). The hearing officer never considered the fact that Ra-perto was eligible under subsection (4)(c).

Rule 65A-1.711 implements section 409.903, Florida Statutes (2001), entitled “Mandatory payments for eligible persons.” Under section 409.903(2), Raperto qualifies as a low income person “considered to be permanently and totally disabled.” Thus, Raperto is eligible for HCBS. The Department does not dispute that Raperto is permanently and totally disabled as he has end-stage renal disease and undergoes dialysis three days a week. We therefore reverse the decision of the hearing officer.


author: NESBITT, Senior Judge.

text:
    SUSAN FIXEL, INC., Appellant, v. ROSENTHAL & ROSENTHAL, INC., Appellee.
    No. 3D02-1139.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.

      Adorno & Yoss and Samantha N. Tes-ser, Fort Lauderdale, for appellant.
    Ferrell, Schultz, Carter, Zumpano & Fertel and Alan Fertel, Miami, and H. Eugene Lindsey, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

Appellant Susan Fixel, Inc. (“Fixel”), a Florida corporation engaged in the business of wholesaling clothes, filed a Third Amended Complaint which included, in Counts II-V, claims against its factor Appellee Rosenthal & Rosenthal, Inc. (“Rosenthal”), for breach of fiduciary duty, fraud in the inducement, fraudulent misrepresentation and negligent misrepresentation. Upon Rosenthal’s motion to dismiss, the trial court dismissed all of the claims for failure to state a cause of action, found that there was no fiduciary duty between Rosenthal and Fixel, and, noting it was the Third Amended Complaint, ruled the dismissals were with prejudice. The trial court gave Fixel leave “to attempt to state a cause of action sounding in contract” against Rosenthal. We reverse.

A motion to dismiss tests whether the plaintiff has stated a cause of action. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmov-ing party.

Bell v. Indian River Mem. Hosp., 778 So.2d 1030, 1032 (citations omitted). See also Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002); Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla.1985); Orlando Sports Stadium, Inc. v. State, 262 So.2d 881, 883 (Fla.1972); Alvarez v. E & A Produce, 708 So.2d 997, 999 (Fla. 3d DCA 1998). Consideration of potential affirmative defenses or speculation about the sufficiency of evidence which plaintiff will likely produce on the merits is wholly irrelevant and immaterial to deciding such a motion. Barbado v. Green & Murphy, P.A., 758 So.2d 1173 (Fla. 4th DCA 2000); Abrams v. General Ins. Co., 460 So.2d 572 (Fla. 3d DCA 1984); Parkway Gen. Hosp., Inc. v. Allstate, Ins. Co., 393 So.2d 1171 (Fla. 3d DCA 1981).

Casting the allegations of the Third Amended Complaint in a light most favorable to Fixel, and accepting them as true, the claims against Rosenthal are based upon the following facts:

In 1997, Fixel and Rosenthal entered into a Factoring Agreement, under which Rosenthal purchased Fixel’s receivables based upon a credit-risk evaluation and Fixel drew funds according to an agreed advance rate. Fixel and Rosenthal also entered into a letter agreement, pursuant to which Rosenthal agreed to make inventory advances to Fixel up to $150,000.00, secured by a security interest in Fixel’s inventory. The parties established an ongoing relationship in which Rosenthal knew that Fixel placed trust and confidence in Rosenthal, and that, separate from the relationship established by the terms of the parties’ contracts, Rosenthal assumed a role of superiority and exerted influence over Fixel, which relied upon Rosenthal for its counsel and guidance with regard to its business dealings.

During this time period, Rosenthal also was the factor of C & L Textile Corporation (“C & L”), a clothing manufacturer. By virtue of its relationship with C & L, Rosenthal knew that C & L was experiencing deep financial difficulties, rendering it difficult for C & L to support and maintain its existing business. Nevertheless, Ro-senthal, for its own financial benefit, wanted to create a relationship between Fixel and C & L, even though Rosenthal knew that such an agreement was not in Fixel’s best interest. Rosenthal, exerting extensive control, pressured Fixel to enter into a contract with C & L by threatening to call in Fixel’s inventory loan and terminate its factoring relationship with Fixel, which on short notice would have immediately put Fixel out of business. This pressure was combined with repeated false representations from certain of Rosenthal’s employees and representatives throughout September and October, 1998 concerning C & L’s financial status and ability to handle Fixel’s business, including representations that:

a. “They [C & L] have an open checkbook with us [Rosenthal];”
b. Fixel would be getting a financially secure partner with C & L;
c. “C & L had the financial wherewithal” to produce and ship Fixel’s inventory; and
d. “C & L could do whatever Fixel needed them to do financially.”

Rosenthal undertook activities beyond the performance of its contractual duties in advising and guiding Fixel. In October of 1998, relying upon Rosenthal’s false representations (which Fixel alleges was reasonable in light of its relationship of trust and confidence with Rosenthal), and in response to the pressure Rosenthal exerted, Fixel entered into a written agreement with C & L (the “C & L Agreement”), pursuant to which C & L was to be responsible for Fixel’s production and shipping. Meanwhile, Rosenthal and C & L structured a financial arrangement between themselves, without the prior knowledge or consent of Fixel, pursuant to which Rosenthal and C & L would benefit economically from C & L’s new business relationship with Fixel. Without Fixel’s consent, Rosenthal deducted 15% of the money it was advancing to C & L for shipments and applied this against money allegedly owed by Fixel to Rosenthal. Again, without Fixel’s consent, C & L would then deduct the 15% from the money owed to Fixel from the shipped orders.

C & L did not, in fact, have the credit worthiness or cash resources, or the “open checkbook” with Rosenthal, needed to provide the goods and services which it agreed to provide for Fixel, which caused damages to Fixel. Rosenthal induced and coerced Fixel to enter into the C & L Agreement for Rosenthal’s own economic benefit to the detriment of Fixel. Rosen-thal used its inside superior knowledge as C & L’s factor, its relationship of trust, influence and superiority over Fixel, and Fixel’s rebanee upon Rosenthal’s counsel and guidance, to orchestrate the C & L Agreement.

Rosenthal argues that Fixel’s claims for breach of fiduciary duty, fraud in the inducement, fraudulent misrepresentation and negligent misrepresentation are insufficient as a matter of law because its relationship with Fixel is governed by the parties’ contracts. Rosenthal further asserts Fixel’s claims can only be asserted as breach of contract claims, that the economic loss rule precludes the various tort claims, and that there is, as a matter of law, no fiduciary duty between Rosenthal and Fixel.

In Doe v. Evans, 814 So.2d 370 (Fla.2002), a fiduciary relationship was characterized as follows:

If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief.

814 So.2d at 374, quoting Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 421 (Fla.1927). See also Dale v. Jennings, 90 Fla. 234, 107 So. 175 (1925); First Nat Bank and Trust Co. v. Pack, 789 So.2d 411 (Fla. 4th DCA 2001); Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994), rev. denied 654 So.2d 918 (Fla.1995). Fiduciary relationships may be implied in law and such relationships are “premised upon the specific factual situation surrounding the transaction and the relationship of the parties.” Id. at 518; Doe v. Evans, supra, at 374. See also Hooper v. Barnett Bank of West Florida, 474 So.2d 1253 (Fla. 1st DCA 1985), decision approved, 498 So.2d 923 (Fla.1986).

Depending upon the specific factual circumstances, courts have found the existence of fiduciary relationships between borrowers and lenders. Barnett Bank v. Hooper, 498 So.2d 923 (Fla.1986); First Nat. Bank and Trust Co. v. Pack, supra; Capital Bank v. MVB, Inc., supra at 519 (and numerous authorities cited therein). Such relationships have been found “where the bank knows or has reason to know that the customer is placing trust and confidence in the bank and is relying on the bank so to counsel and inform him.” Capital Bank v. MVB, Inc., supra at 519, quoting Klein v. First Edina Nat’l Bank, 293 Minn. 418, 196 N.W.2d 619 (1972) Additionally, “special circumstances” may impose a fiduciary duty where the lender takes on extra services for a customer, receives any greater economic benefit than from a typical transaction, or exercises extensive control. Capital Bank v. MVB, Inc., supra at 519, citing Tokarz v. Frontier Fed. Sav. & Loan Ass’n, 33 Wash.App. 456, 656 P.2d 1089 (1982).

Fixel asserts a similar claim for breach of fiduciary duty against Rosenthal, its factor, claiming Rosenthal knew Fixel placed trust and confidence in Rosenthal and relied upon Rosenthal for its advice and counsel, and that Rosenthal took on “extra services” in its orchestration of the C & L Agreement and exercising extensive control over Fixel. Fixel alleges Rosen-thal breached the fiduciary duty which arose between them by: (a) coercing Fixel into entering a business relationship with C & L to benefit Rosenthal’s own financial interests to the detriment of Fixel; (b) repeatedly misrepresenting C & L’s financial ability to produce and ship Fixel’s inventory; (c) not acting in Fixel’s best interest and not disclosing accurate financial information regarding C & L; (d) benefitting from the C & L Agreement; and (e) taking unfair advantage of Fixel. Such a claim is not precluded as a matter of law. See, e.g., Dresses for Less, Inc. v. CIT Group/Commercial Serv., Inc., 2002 WL 31164482 (S.D.N.Y.)(fiduciary duty claim against factor stated a cause of action); Resnick v. Resnick, 722 F.Supp. 27 (S.D.N.Y.1989)(same). See also Restatement (Second) of Agency § 14N, cmt. a (1958) (listing “factors” as among those independent contractors who are “fiduciaries”). Because of the factually intensive nature of an implied fiduciary duty inquiry, such claims are better addressed by a summary judgment motion, or at trial, than on a motion to dismiss. Dresses for Less, Inc. v. CIT Group/Commercial Serv., Inc., supra, *16-17. See, e.g., Bonnie & Company Fashions, Inc. v. Bankers Trust Co., 945 F.Supp. 693, 712 (S.D.N.Y.1996)(on summary judgment motion, evidence submitted was insufficient to establish extra-contractual fiduciary duty between borrower and bank/factor).

Fixel alleges that Rosenthal’s false material representations were made to induce Fixel to enter into the C & L Agreement, that Fixel reasonably relied upon the representations in entering into the C & L Agreement, and, as a result, was damaged. To state a claim for fraud in the inducement, a plaintiff must allege (1) a misrepresentation of a material fact; (2) knowledge by the person making the statement that the representation is false; (3) intent by the person making the statement that the representation would induce another to rely and act on it; and (4) that the plaintiff suffered injury in justifiable reliance on the representation. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 497 (Fla. 4th DCA 2001); Palumbo v. Moore, 777 So.2d 1177, 1179 (Fla. 5th DCA 2001); W.R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So.2d 297, 304 (Fla. 1st DCA 1999); Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1055 (Fla. 4th DCA 1999); Kutner v. Kalish, 173 So.2d 763 (Fla. 3d DCA 1965).

If the fraud occurs in connection with misrepresentations, statements or omissions which cause a party to enter into a transaction, then such fraud is fraud in the inducement and survives as an independent tort.

Allen v. Stephan Co., 784 So.2d 456, 457 (Fla. 4th DCA 2000). We conclude that Fixel adequately alleged a cause of action for fraud in the inducement.

Similarly, the elements of a fraud claim are (1) a false statement concerning a specific material fact; (2) the maker’s knowledge that the representation is false; (3) an intention that the representation induce another’s reliance; and (4) consequent injury by the other party acting in reliance upon the representation. Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002); Ward v. Atlantic Sec. Bank, 777 So.2d 1144, 1146 (Fla. 3d DCA 2001). We conclude that Fixel adequately alleged a cause of action for fraudulent misrepresentation.

Alternatively, based on the alleged fiduciary relationship, Fixel alleges that Rosenthal had a duty to Fixel to use due care in disclosing financial information about C & L, that it failed to do so, and that Fixel justifiably and detrimentally relied upon the false information negligently supplied by Rosenthal. Fixel’s allegations adequately state a cause of action for negligent misrepresentation. Gilchrist Timber Co. v. ITT Rayonier, 696 So.2d 334 (Fla.1997)

The various tort claims as alleged by Fixel are distinct and independent from the contractual relationships between the parties, and, as such, are not barred by the economic loss rule. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla.1996)(fraudulent inducement is not barred by economic loss rule); Allen v. Stephan Co., 784 So.2d 456 (Fla. 4th DCA 2000)(economic loss rule does not bar tort actions for negligent misrepresentation and fraudulent inducement); Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263 (Fla. 3d DCA 2000)(eeonomic loss rule does not abolish cause of action for breach of fiduciary duty, even if there is an underlying contract); Clayton v. State Farm Mut. Auto. Ins. Co., 729 So.2d 1012 (Fla. 3d DCA 1999)(torts independent of contractual breach, such as fraudulent inducement, not barred by economic loss rule). See also Moransais v. Heathman, 744 So.2d 973 (Fla.1999); PK Ventures, Inc. v. Raymond James & Assocs., Inc., 690 So.2d 1296 (Fla.1997).

The matters raised by Rosenthal in opposition to Fixel’s claims, including that it was contractually permitted to deduct certain monies flowing between Fixel and C & L, are in the nature of defenses or issues which may be addressed by way of summary judgment, depending on the development of the factual record. We do not opine about whether Fixel will be able to present evidence to support its allegations, or whether the relationship and dealings between Fixel and Rosenthal gave rise to a fiduciary duty. We simply hold that the dismissal of these claims for failure to state causes of action was erroneous.

We reverse the order of dismissal, and remand this matter to the trial court for further proceedings consistent with this opinion.

      . Black’s Law Dictionary (7th ed.1999), defines a factor, in part, as one who buys accounts receivable at a discount.

      . Fixel has also sued C & L for breach of contract.

      . We reject Rosenthal’s contention that Fixel was precluded from asserting a claim for breach of fiduciary duty in the Third Amended Complaint because it failed to do so in the Second Amended Complaint. Given the liberal amendment policy embodied by Rule 1.190 Fla. R. Civ. P., and the absence of any prejudice to Rosenthal or abuse of the amendment privilege by Fixel, allowing the claim to be asserted in the Third Amended Complaint was appropriate. Hall v. Wojechowski, 312 So.2d 204 (Fla. 4th DCA 1975); Penn Cork and Closures, Inc. v. Piggyback Shippers Ass’n of Florida, Inc., 281 So.2d 46 (Fla. 3d DCA 1973).


text:
    Serafin Garcia ARMAS and Representaciones Dole, C.A., Appellants, v. PRUDENTIAL SECURITIES, INC., Appellee.
    No. 3D02-2214.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.

      Sullivan Rivero & Chase, and Andres Rivero, and David R. Chase, and Jorge A. Mestre, for appellants.
    Boose Casey Ciklin Lubitz Martens McBane & O’Connell, and Ronald E. Cres-cenzo (West Palm Beach), for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, JJ„ and NESBITT, Senior Judge.
   PER CURIAM.

Serafín Garcia Armas (“Garcia”) appeals the trial court’s order denying his motion to compel arbitration. We reverse.

Garcia opened an account with Prudential Securities (“Prudential”) in the name of SMJ Corporation (“SMJ”). A large margin deficit occurred in the account due to extensive trading activity; Prudential requested that Garcia deposit additional funds into the account to cover the deficit. To satisfy the outstanding balance, Garcia deposited a check in the amount of $1.1 million dollars into the SMJ account. The check was made payable to Prudential and drawn upon Ocean Bank from an account held by Representaciones Dole, C.A. (“Dole”). Garcia is an officer of both corporations, Dole and SMJ. Ocean Bank refused to honor the check resulting in a debit balance of $701,276.44, in the SMJ Prudential account.

Prudential claimed that the check was improperly dishonored and initiated two proceedings. First, it filed an arbitration proceeding against SMJ and Garcia with the New York Stock Exchange. Second, it filed the underlying action, a four count complaint in state court against Garcia and Dole, alleging a bad check claim against Dole, a civil theft claim against Garcia, an unjust enrichment claim against Garcia and a piercing the corporate veil claim. Garcia and Dole responded by filing a motion to dismiss the complaint and sought to transfer the case to the pending arbitration proceedings between SMJ and Prudential. The trial court denied the motion finding that the arbitration provision did not bind Dole because Dole was not a signatory to the account. We disagree.

The arbitration agreement was entered into and signed by SMJ, Garcia and Prudential. Dole was not a signatory to the arbitration agreement. However, there are several exceptions that permit non-signatories to enforce arbitration agreements. One exception provides that arbitration provisions containing the language, “arising out of or related to,” in certain instances can be construed to include non-signatories. See Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, Inc., 776 So.2d 940 (Fla. 3d DCA 2000); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980).

The arbitration clause in the present case provides in pertinent part:

Unless enforceable under applicable law, any controversy arising out of or relating to Client’s Program Assets, to transactions with Client, for Client or to this Agreement or the breach thereof, shall be settled by arbitration pursuant to the Federal Arbitration Act and in accordance with the rules, then in effect, of the NASD or the Board of Directors of the New York Stock Exchange, Inc. as the client may elect.

This agreement contains the “arising out of or related to” language. The claims against Dole also stem from the same controversy as the claims against SMJ and Garcia in the pending arbitration. Thus we find the breadth and scope of the arbitration agreement is broad enough to include Dole.

Non-signatories can also compel arbitration based on the equitable estoppel doctrine. See MS Dealer Service Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999). Equitable estoppel is warranted when the signatory to the contract containing the arbitration clause raises allegations of concerted conduct by both the non-signatory and one or more of the signatories to the contract. MS Dealer Service Corp., 177 F.3d at 947. Here, Prudential’s claims against all three parties arise from Garcia submitting a check from Dole’s account to make payment to SMJ’s Prudential account. Prudential’s claims against Dole arise out of the same factual allegations of concerted conduct by both the non-signatory, Dole and the signatories, SMJ and Garcia and equitable estoppel is warranted.

Equitable estoppel is also warranted when each of the signatory’s claims against a non-signatory make reference to or presume the existence of a written agreement. MS Dealer Service Corp., 177 F.3d at 947. Prudential’s claims against Dole are based on the underlying contractual obligation between SMJ, Garcia and Prudential. Therefore, Prudential is equitably estopped from avoiding arbitration with Dole when the claims stem from the same contractual obligation as Prudential is relying on to compel arbitration with SMJ and Garcia. See In re Humana Inc. Managed Care Litig., 285 F.3d 971 (11th Cir.2002)(purpose of the equitable estoppel doctrine is to prevent a plaintiff from relying on a contract when it works to his advantage and repudiating it when it works to his disadvantage by requiring arbitration).

In conclusion, we find that the arbitration agreement is broad enough to include Dole and Prudential is equitably estopped from avoiding arbitration with Dole. Accordingly, we reverse and remand to the trial court with instructions to grant the motion to compel arbitration.

Reversed and remanded.

      . The arbitration proceeding included four counts: civil theft against SMJ and Garcia; breach of contract against Garcia; unjust en-richmenl against SMJ and Garcia; and piercing the corporate veil.


text:
    The STATE of Florida, Appellant, v. Michael PAULK, Appellee.
    No. 3D02-2755.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.

      Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
    Before GERSTEN, GODERICH, and RAMIREZ, JJ.
   RAMIREZ, J.

The State of Florida appeals from a downward departure sentencing order. For the following reasons, we reverse and remand.

Appellee Michael Paulk was charged with the sale of cocaine, in violation of section 893.13(1)(a)1, Florida Statutes (2002). Over the State’s objection, the trial court offered Paulk a plea of 364 days in a drug treatment program (“TASC”) with early termination upon completion of TASC, followed by 18 months probation. The sentencing scoresheet reflects that the lowest permissible prison sentence was 55.65 months. The trial court did not clearly state any reason for the departure, but did ask Paulk if he had a substance abuse problem for which he wanted help.

Paulk’s substance abuse or addiction “does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines.” Fla. Stat. § 921.0016(5) (2002). See also State v. Ford, 739 So.2d 629 (Fla. 3d DCA 1999).

Paulk argues that the State did not properly preserve the issue for appeal. The following exchange took place immediately after the discussion of Paulk’s substance abuse problem and his desire for help:

MS. CASO [ASA]: For the record, the State objects task [sic]. You are not sentencing Mr. Paulk as an HO.
THE COURT: I am not sentencing Mr. Paulk as an HO.
MS. CASO: The State is objecting to the plea offer.
THE COURT: Noted.

(emphasis added).

As in Ford, we conclude that the State’s objection was sufficient to preserve the issue for appellate review. The State objected “to the plea offer,” which not only included the component of no habitualization, but also a sentencing departure as clearly reflected in the Sentence Computation directly above the judge’s signature in the Criminal Punishment Code Scoresheet prepared in this case. Additionally, it appears that the plea offer was discussed off the record and the State was reiterating “for the record” its objection to a TASC sentence. Unlike State v. Henriquez, 717 So.2d 1087 (Fla. 3d DCA 1998), where the State did not object to the departure sentence nor advise the court that downward departure reasons were necessary, the State here objected to the plea offer.

On remand, the trial court shall permit Paulk to withdraw his plea, or sentence him within the sentencing guidelines.

Reversed and remanded with directions.


author: GREEN, J.

text:
    Naywin MAUNG, Appellant, v. NATIONAL STAMPING, LLC, Appellee.
    No. 3D02-1942.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Richard A. Kupfer (West Palm Beach), for appellant.

      Welbaum, Guernsey, Hingston, Green-leaf & Gregory, L.L.P., and Robert J. Black, Coral Gables, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   GREEN, J.

Naywin Maung, defendant below, appeals a partial final summary judgment entered on a count brought pursuant to the civil worthless check • statute, section 68.065, Florida Statutes (1999), filed against him. We reverse.

National Stamping, L.L.C. (“National Stamping”), plaintiff below, is a wholesale distributor of cigarette products. Maung owns a retail outlet in Fort Pierce, Florida. The parties agreed that Maung would exclusively sell and distribute a certain brand of cigarettes in the Central Florida, Fort Pierce and Port St. Lucie areas. Maung purchased several thousand cartons of four different types of that brand of cigarettes from National Stamping for a total of $40,250. Maung paid for the cigarettes with two checks; one for $20,000 and one for $20,250. In this action, Maung claims that after he paid National Stamping, he discovered that some of the cartons of cigarettes were counterfeit. For that reason, he stopped payment on the check issued to National Stamping for $20,250, and returned the merchandise he deemed to be counterfeit.

National Stamping then filed the instant four-count complaint against Maung for: (1) treble damages under the civil worthless check statute; (2) breach of contract; (3) conversion; and (4) fraud. Maung answered the complaint and affirmatively alleged that some of the merchandise was counterfeit, and that he had paid for all of the merchandise that was not counterfeit. National Stamping filed no reply to this affirmative defense.

In fact, the next pleading filed in this cause was National Stamping’s motion for summary judgment on the worthless check count. In support of this motion, was an affidavit averring in relevant part that National Stamping had sold Maung merchandise with a value of $40,250, and that Maung had stopped payment on the check for $20,250 and had otherwise failed to pay this amount. Neither the motion nor the affidavit addressed Maung’s affirmative defense that the subject merchandise was counterfeit. Maung did not file any opposing affidavit or sworn statement in opposition to this motion.

The trial court granted the motion and entered partial final summary judgment in favor of National Stamping in the amount of $81,000 pursuant to the treble damages provision of the worthless check statute. See § 68.065(1), Fla. Stat. (1999). Maung appeals and urges that the trial court erred in granting this summary judgment where there was a disputed issue of material fact as to whether he received adequate consideration (i.e. the benefit of his bargain) from National Stamping so as to justify his stopped payment of the check. We agree and reverse.

Initially, we note that the civil worthless check statute provides a cause of action for treble damages against the maker of a check who stops payment on the check with intent to defraud and who thereafter fails to pay the amount owing. That statute provides in pertinent part that:

In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee ... where the maker or drawer stops payment on the check, draft, or order of payment with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days following a written demand therefore, ... the maker or drawer shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing....

§ 68.065(1), Fla. Stat.

From the plain reading of the statute, therefore, the maker is liable only if payment has been stopped on a check with an intent to defraud, and the maker thereafter fails to pay the amount owing in cash within 30 days following a written demand. In this case, although National Stamping filed a separate fraud count against Maung, it never alleged in the complaint or attempted to establish in the motion for summary judgment that Maung had stopped payment on the check with an intent to defraud. Therefore, setting aside Maung’s affirmative defense for the moment, National Stamping never established its entitlement to judgment as a matter of law under section 68.065(1), and the summary judgment was error. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Williams v. City of Lake City, 62 So.2d 732, 733 (Fla.1953) (summary judgment is proper only if there are no material issues of fact and the moving party can establish its entitlement to judgment as a matter of law).

The entry of summary judgment in this case was also inappropriate because Maung raised an affirmative defense which was never negated by affidavit or sworn evidence by National Stamping. The law is clear that where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment. Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Fort Lauderdale, 338 So.2d 905, 906 (Fla. 3d DCA 1976); see also Fasano v. Hicks, 667 So.2d 1033, 1034 (Fla. 2d DCA 1996) (finding that in absence of some proof contradicting or opposing affirmative defense, entry of summary judgment is improper). In this case, although National Stamping averred by affidavit that the merchandise delivered to Maung had a value of $40,250, it never averred that this merchandise was in fact that which was contracted for by Maung. Therefore, this uncontested averment was of no moment to the resolution of this dispute between the parties.

Thus, for the foregoing reasons, the entry of partial final summary judgment was error, and we reverse and remand for further proceedings.

Reversed and remanded.

      . In response to the motion for summary judgment, Maung did serve an answer wherein he denied that the cigarettes sold to him had a value of $40,250 due to the fact that some of them were counterfeit. He admitted that he had stopped payment on the subject but denied that he had done so without just cause.


text:
    George McBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1492.
    District Court of Appeal of Florida, First District.
    April 3, 2003.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our independent examination of the entire record, we agree that no reversible error occurred. We affirm Appellant’s revocation of probation and imposition of judgment and sentence. However, the written order of revocation of probation does not state which conditions of supervision Appellant violated, nor does the written order state the sentence imposed upon revocation. Therefore, we remand for the trial court to enter such an order, consistent with its oral pronouncement. See, e.g., Williams v. State, 832 So.2d 883 (Fla. 1st DCA 2002); Oliver v. State, 819 So.2d 816 (Fla. 1st DCA 2002).

AFFIRMED.

BOOTH, BENTON and POLSTON, JJ., concur.


author: THOMPSON, C.J.

text:
    STATE of Florida, Appellant, v. Rosalvo LALOR, Jr., Appellee.
    No. 5D01-3552.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   THOMPSON, C.J.

The state appeals a judgment of acquittal. We reverse the judgment and remand for a new trial.

Rosalvo Lalor was charged with sexual battery on an incapacitated person, and the jury found him guilty of the lesser included crime of sexual battery. The victim testified that she invited Lalor to her apartment after she had consumed a substantial amount of alcohol. According to her testimony, she had fallen asleep and awoke to find Lalor having non-consensual intercourse with her. The essence of La-lor’s testimony was that although the victim did not expressly consent, her favorable physical responses suggested consent to the massage he gave her and later to the intercourse. Some of Lalor’s testimony was supported by a witness who had been with the victim and Lalor earlier in the evening.

The court denied Lalor’s motion and renewed motion for judgment of acquittal, stating that the case was a “classic swearing match.” After Lalor moved for arrest of judgment and new trial, however, the court entered the judgment of acquittal based on the court’s determination that Lalor’s testimony was credible and that the victim’s testimony, while not insincere, was undercut by her inability to remember large portions of the evening in question. The court stated: “It is absolutely clear to me, from the evidence presented that the defendant honestly believed he had consent to have sexual contact with the victim.” Further, the court thought the jury would have found Lalor not guilty if it had been instructed differently.

After summarizing the evidence presented at trial, the court stated:

On these facts, there is certainly some evidence presented which was sufficient to support the jury’s verdict. It appears to me, however, that the verdict was against the weight of the evidence. Despite the jury’s apparent misgivings, they returned a verdict of guilt on the lesser included offense of sexual battery. It appears to me they felt they had no choice based upon the instructions, and the definition of consent. The testimony and record have left me with serious doubts, however, about whether a sexual battery was in fact committed in this matter. Having weighed the evidence, and the credibility of witnesses, this court certainly has the power, upon discretionary review, to grant a new trial if the verdict is against the weight of the evidence. Upon further review of the evidence and trial testimony, it is my fervent belief that the evidence presented was insufficient for conviction. Specifically, I accept the defendant’s testimony in virtually all respects. Indeed, it seldom contradicts the victim’s. She does not remember large portions of the evening, and is unable to refute his testimony. It is undisputed, that no conversation regarding consent occurred between the two until the moment at which she told him to stop, allegedly after the second sexual encounter. I believe the victim’s testimony to be sincere; it is her memory which causes me to harbor grave reservations about the defendant’s guilt.

(Citations omitted; emphasis in original). Finally, the order states: “The verdict is contrary to the weight of the evidence. Therefore, a Judgment of Acquittal Notwithstanding the Verdict is granted.”

This case is controlled by Tibbs v. State, 397 So.2d 1120 (Fla.1981), which was applied in State v. Smyly, 646 So.2d 238 (Fla. 4th DCA 1994). In Smyly, the defendant had an alibi, the victim did not think the defendant’s hair was like that of the person who snatched her purse, and an eyewitness identification of the defendant was compromised because the defendant did not match the physical description given by this witness and because the photo lineup was problematic. The Smyly court reversed the judgment of acquittal and remanded for a new trial because the evidence was sufficient to defeat a motion for judgment of acquittal.

The court stated:

In Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), the court distinguished between the sufficiency of the evidence, on the one hand, and the weight and credibility of the evidence, on the other. Trial and appellate courts are equally capable of making the legal judgment whether the evidence is legally sufficient to allow the state’s case to go to the jury and support a verdict. Id. Legal sufficiency means that the state has adduced a bundle of evidence that, if believed by the jury, would constitute proof beyond a reasonable doubt on every element of the offense charged. Id. The failure to produce legally sufficient evidence exonerates the defendant and requires his dismissal. Id.
The weight and credibility of the evidence are different. Id. Initially the inquiry is directed to the jury to weigh the legally sufficient evidence and assess its credibility. Id. When the jury returns a verdict of guilty on legally sufficient evidence, however, the judge’s role is not yet over. The trial judge may be asked under rule 3.600(a)(2) to assess the verdict in light of the weight and credibility of the evidence. Id. In this regard, the trial judge sits as the seventh juror with a veto over the unanimous vote of the other six. Tibbs, 397 So.2d at 1123. If the trial judge determines that the verdict of guilty is against the weight of the evidence, that is not a determination that the evidence was legally insufficient so as to require an acquittal. Rather it represents the trial judge’s disagreement with the jury’s weighing of the evidence and allows the judge to order a new trial. Tibbs, 397 So.2d at 1123; see also Kelley v. State, 637 So.2d 972 (Fla. 1st DCA 1994).

Id. at 241 (footnotes omitted). Because the evidence was sufficient to defeat a motion for judgment of acquittal, the court reversed and remanded for a new trial.

The purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence presented by the state. Donovan v. State, 821 So.2d 1099 (Fla. 5th DCA 2002). In moving for a judgment of acquittal, a defendant admits all facts and evidence adduced at trial, and all reasonable inferences that may be drawn from such evidence must be viewed in a fight most favorable to the state. Id. (citing Beasley v. State, 774 So.2d 649 (Fla.2000)). In the instant case, the state presented the victim’s testimony that she had been sexually battered by Lalor. She testified that she went to sleep and woke up to find Lalor having noncon-sensual intercourse with her. Because this testimony was legally sufficient, the trial court erred in entering a judgment of acquittal. Furthermore, the court should not have based the judgment on Lalor’s apparent candor or the victim’s failure to recall. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974) (“The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal”). Accordingly, the judgment is reversed and the cause is remanded for a new trial. See Smyly, 646 So.2d at 242.

REVERSED and REMANDED for new trial.

SAWAYA and ORFINGER, JJ., concur.

      . Cf., Bullington v. State, 616 So.2d 1036, 1038 (Fla. 3d DCA 1993) (holding that consent to sexual activity may be actual or implied).


text:
    Leonard BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1524.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Nancy Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 1999).

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


text:
    Keith J. ICE, Appellant, v. Denise H. ICE, Appellee.
    Nos. 1D01-3184, 1D02-1051.
    District Court of Appeal of Florida, First District.
    April 8, 2003.

      Michael W. Jones, Esq., Gainesville, for Appellant.
    Peter C.K. Enwall, Esq., Gainesville, for Appellee.
   PER CURIAM.

The former husband appeals the trial court’s equitable distribution, alimony, and attorney’s fee awards in the Final Judgment of Dissolution of Marriage. The former wife cross-appeals the trial court’s imputation of income to her in the amount of $25,000. We reverse and remand with instructions.

The final judgment in this case fails to identify all of the parties’ marital liabilities, contrary to the requirements of section 61.075(3)(c), Florida Statutes (1997). Pursuant to section 61.075(3)(c), a trial court must identify the marital liabilities and designate which spouse shall be responsible for each. Here, the trial court, for purposes of equitable distribution, valued the family corporation at $103,000, based upon the former wife’s expert’s testimony. This $103,000 valuation included as a corporate asset the $78,681 shareholders’ loan, which the parties had taken out from the corporation while the marriage was still intact. However, while the trial court valued the corporation at $103,000, it failed to identify the loan as a marital liability and designate which spouse would be responsible for such. The failure to identify the nature and value of the marital liabilities constitutes reversible error and renders this Court powerless to engage in meaningful appellate review. See Holmes v. Holmes, 709 So.2d 166, 168 (Fla. 5th DCA 1998) (holding that the failure to make sufficient findings regarding the value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made); see also Sayegh v. Sayegh, 777 So.2d 1007, 1008 (Fla. 2d DCA 2000).

Accordingly, we reverse the equitable distribution and remand to the trial court to make the necessary findings in accordance with section 61.075(3)(c). See Cook v. Cook, 714 So.2d 1158, 1158 (Fla. 5th DCA 1998); Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998). Because the trial court is at liberty to adjust the overall equitable distribution, alimony, and attorney’s fee awards, we decline to address appellant’s other arguments on appeal. As to the issue on cross-appeal, we conclude that the trial court erred in imputing a $25,000 salary to appellee. See Stewart v. Rich, 664 So.2d 1145, 1146 (Fla. 4th DCA 1995) (holding that notwithstanding the fact that the former wife had earned a law degree, the trial court erred in imputing income to the former wife, as her degree had not translated into actual employment and income at the time of the final hearing, and as the former wife had absolutely no history of earnings and no track record).

REVERSED and REMANDED with instructions.

BOOTH, WEBSTER and LEWIS, JJ., CONCUR.


text:
    Tonya Melissa MORGAN, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D02-1503.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Richard E. Johnson and Lisa C. Lambert of the Law Offices of Richard E. Johnson, Tallahassee, for Appellant.
    Geri Atkinson-Hazelton and John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

The appeals referee chose to believe the employer’s version of events, which showed the employer appropriately addressed the sexual harassment upon learning of it and offered a procedure in the event of future occurrences. Because the order sufficiently explains the referee’s resolution of conflicting evidence and there is competent, substantial evidence to support the referee’s finding that appellant voluntarily left her employment without good cause attributable to the employer, the order denying unemployment benefits is

AFFIRMED.

ERVIN, DAVIS and BENTON, concur.


text:
    Andres SANTOVENIA (deceased), and Ofelia Santovenia, Appellants, v. DISPATCH SERVICES and Helmsman Management Services, Inc., Appellees.
    No. 1D02-1560.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Barry A. Pemsler, Esquire, Pemsler & Grindal, P.A., Coral Gables; Jay M. Levy, Esquire, Jay M. Levy, P.A., Miami, for Appellants.
    H. George Kagan, Esquire, Miller, Ka-gan, Rodriguez and Silver, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

The order of the Judge of Compensation Claims dismissing the petition for lack of jurisdiction is affirmed without prejudice to appellant to first proceed to the appropriate circuit court to resolve the parties’ dispute over the lien agreement. IMC Agrico MP, Inc. v. Faulk, 783 So.2d 321 (Fla. 1st DCA 2001).

AFFIRMED.

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


text:
    R.B.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2390.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Richard E. Doran and Robert R. Wheeler, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

As the state concedes, the juvenile disposition orders being appealed do not contain all of the information required by Florida Rule of Juvenile Procedure 8.115(c)(2). We affirm the appealed orders as to the findings that the appellant violated his probation and as to the disposition imposed in connection with those violations, but we remand the case for the entry of amended orders which conform with rule 8.115(c)(2).

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


author: WOLF, J.

text:
    Virginia KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3994.
    District Court of Appeal of Florida, First District.
    April 8, 2003.

      Nancy A. Daniels, Public Defender; Gary D. Wimsett, Jr., Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, J.

Appellant, Virginia Kelly, challenges her conviction and sentence for second degree murder. Appellant raises four issues on appeal, two of which have merit and require reversal: 1) We determine the trial court abused its discretion when it refused to allow the defense to recross examine a witness who provided critical information for the first time on redirect examination, and 2) we determine the trial court also abused its discretion in denying a mistrial based upon prosecutorial misconduct during closing argument.

Charges were brought against appellant as a result of the shooting death of her husband, Ronald Kelly. The shooting occurred in the party’s bedroom. The only other person in the house at the time of the shooting was appellant’s son, Levi Brown. On the night of the shooting, Levi Brown could tell his mother was quite angry with Ronald Kelly because he was late coming home. She said she was “going to Mil him [Ronald Kelly],” but Levi Brown did not think she actually meant it literally. He saw his mother get a gun and test-fire it outside. Virginia Kelly had been drinMng. After firing the test shot, she left to go look for Ronald Kelly. About twenty minutes later, Virginia Kelly returned and began pacing around the apartment. Ronald Kelly came to the apartment in a rage. Levi Brown testified that “[Ronald Kelly] slammed the front door open with like a wham bam and said where the [expletive deleted] is your mother and all this other rude obnoxious stuff.” Ronald Kelly took the phone and went outside to make a call. When he came back, he threw the phone down on the couch, went back to the master bedroom, and told Virginia Kelly that she had to leave. Regarding the actual shooting, Levi Brown testified as follows:

At this point [Ronald Kelly] was doing something with his dresser out of the top drawer and my mother was inside the closet and he was doing something in the top drawer and pulled it out and he swiftly, you know, pulled back and was turning toward my mother like he was going to lunge at her, and my mother grabbed the gun off the top of the dresser and shot him twice.

After the first shot, he heard Ronald Kelly say, “I am dead Ginger. It’s over. Don’t shoot again.” Levi Brown testified that his mother shot Ronald Kelly a second time. Brown testified that he never fired the gun.

Virginia Kelly testified in her own defense. She stated that upon finding Ronald Kelly’s truck at the “whore motel,” she cut two of his passenger-side tires. She knew this would make him very angry. She also admitted test-firing the gun to see if it worked. Like Levi Brown, she testified that Ronald Kelly came home in a rage. He started “pushing and shoving” her around, and he told her that she needed to get out of his apartment. He was rummaging through his dresser drawer, possibly in search of a weapon. When he turned toward her she shot the gun. Contrary to Levi Brown’s testimony, Virginia Kelly testified that she fired only once, and that while she was on the phone with the dispatcher, her son went back to the bedroom and she heard a shot being fired. She told her son to leave the scene. At the first trial Mrs. Kelly testified that she had fired the gun both times. She explained this testimony by saying that she “wanted to cover up for [her] son. I didn’t want to get him in trouble.”

The discrepancy in Mrs. Kelly’s testimony and the question of who fired the second shot became a critical issue during the trial.

Officer John Frascello was one of the police officers sent to process the crime scene. On cross examination the officer testified that his report indicated Levi Brown admitted firing the weapon that day.

On redirect the following exchange took place:
Q: “Officer Frascello, let’s clarify something: Is there anything in your report that reflects you had a conversation with Levi Brown?”
A: Officer Frascello-“No.”

Appellant’s attorney attempted to recross Officer Frascello about his prior testimony at deposition and in the first trial concerning his conversations with Levi Brown about firing the gun. The trial court refused to allow recross examination.

The decision to allow recross examination is generally subject to the discretion of the trial court. See Hurst v. State, 825 So.2d 517 (Fla. 4th DCA 2002). However, when new matters are introduced during redirect examination, denying recross effectively denies the opposing party the right to any cross examination on the new matter and, thus, violates the confrontation clause. United States v. Boss, 33 F.3d 1507, 1518 (11th Cir.1994). Officer Frascello’s testimony on cross examination concerning the details of his report appears to be consistent with his prior sworn testimony. It was also supportive of and crucial to the defendant’s theory of the case. The witness gave testimony on redirect which conflicted with testimony given only moments prior. The trial court acknowledged the conflict, but determined that its resolution was best left to the jury.

Being able to directly confront the officer with his testimony under oath at deposition and at the previous trial was critical impeachment. While there was some evidence of the prior deposition testimony on the record, the officer was not directly confronted with the inconsistency and there was no mention at all of the prior trial testimony. To deny the defendant the opportunity to put these matters before the jury constituted an abuse of discretion. See Simmons v. State, 552 So.2d 268 (Fla. 1st DCA 1989) (holding that failure to allow impeachment on recross constituted reversible error).

The second issue requiring reversal occurred during the prosecutor’s closing argument when a number of inflammatory comments were made. The appellant only objected one time. Two of the most egregious comments occurred about the time of the objection:

Now, ladies and gentlemen, Virginia Kelly would like for you to excuse her. She is so desperate to be excused from her criminal behavior that she blamed her own son for murder. She sat on the stand in this courtroom today, said she could look Levi in the eye, but I will guarantee you she couldn’t and put that second shot right on him, and I asked her what do you want the State of Florida to do?
Should we arrest Levi Brown? Should we bring him in here in handcuffs and put him next to you? This woman who never did what she should have to protect Levi Brown now wants to sacrifice him so that you will grant her mercy, so that you will absolve her of her crime, of her sin....
Try to get you to absolve her of this crime or finally admit that she just doesn’t care about Levi Brown because with her words today, ladies and gentlemen, she put murder and responsibility for murder on her teenage son and, ladies and gentlemen, that all by itself ought to convince you that she deserves to be convicted of second degree murder,

(Emphasis added). Appellee argues that the issue concerning closing argument was not preserved for appeal. However, the transcript shows that the defense attempted to object at the point when the most egregious comments were being made, but the trial court would not allow the defense attorney to state the grounds for objection at that time. The first opportunity for defense counsel to state the grounds for his objection was at the end of the state’s closing argument. Defense counsel also made a motion for mistrial at that time. Under these circumstances the argument was preserved for appeal.

Rule 4-3.4(e) of the Rules Regulating the Florida Bar, prohibits an attorney from asserting a personal opinion concerning the credibility of a witness. The prosecutor’s statement offering a guarantee that the defendant could not look Levi in the eye was the equivalent of the prosecutor guaranteeing that the defendant was lying. Accordingly, it directly violates Rule 4-3.4(e). See Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994) (finding, “[I]t is improper for a prosecutor to express a personal belief in the guilt of the accused, or in the veracity of the state’s witness.”).

Perhaps more importantly, a very large portion of the prosecutor’s closing remarks appear to be calculated to generate hatred and ill will towards the defendant as a result of her saying that her son fired the second shot. For example, the prosecutor further stated,

[you heard the defendant] finally admit that she doesn’t care about Levi Brown because with her words today, ladies and gentlemen, she put murder and responsibility for murder on her teenage son and, ladies and gentlemen, that all by itself ought to convince you that she deserves to be convicted of second degree murder.

(Emphasis added). The emphasized portion of the quoted comment is an express suggestion that the jury should convict the defendant because of her bad character. “It is improper for a prosecutor to refer to the accused in derogatory terms, in such a manner as to place the character of the accused in issue.” Pacifico v. State, 642 So.2d at 1183. As in Pacifico, it is difficult to imagine any other purpose behind the line of argument in this case other than to encourage the jury to base its verdict on ill will and passion, rather than on the evidence and the law.

In Urbin v. State, 714 So.2d 411, 420 (Fla.1998), the Florida Supreme Court confronted improper closing statements by the prosecutor during the penalty phase of a capital murder trial. The improper comments included an invitation to the jury to recommend the death sentence to ensure that the defendant did not benefit from a future change in the law. Id. at 420 n. 10. The court in Urbin considered that comment to be an invitation to the jury to disregard the law. Id. at 420. In its analysis of the numerous improper statements during the state’s closing argument in Urbin, the court stated that this comment was its “first and foremost concern.” In that case the court held that the curative instruction given was inadequate and that a new penalty proceeding was justified. Id. at 419.

We find the prosecutor’s remarks in this case invited the jury to make a finding of guilt for a reason other than evidence that demonstrated appellant committed the crime. This is error. In light of the disputed evidence concerning self defense, we cannot determine that the cumulative effect of the errors was harmless. We are, therefore, required to reverse and remand for a new trial.

ERVIN and VAN NORTWICK, JJ., CONCUR.

      . Appellant had previously been tried and convicted of second degree murder. Her first conviction was reversed by this court in Kelly v. State, 746 So.2d 1248 (Fla. 1st DCA 1999). The reversal in that case was based on the trial court's failure to give the appropriate jury instruction.

      . The proposed cross examination was proffered by defense counsel.

      . Defense counsel's objection that the prosecutor’s statements tended to generate "hatred and ill will” towards the defendant and that the prosecutorial guarantee that the witness is not telling the truth adequately apprised the trial court of the grounds for the objection and motion for mistrial.


author: POLSTON, J. BROWNING, J.,

text:
    Eddie Tyrone JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 02-1127.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Nancy A. Daniels, Public Defender, Second Judicial Circuit; David Gauldin, Assistant Public Defender, Tallahassee, for the Appellant.
    Charlie Crist, Attorney General; Thomas D. Winkour, Assistant Attorney General, Office of the Attorney General, Tallahassee, for the Appellee.
   POLSTON, J.

Appellant was charged and convicted for failure to register as a “sexual offender.” See § 943.0435(9), Fla. Stat. (2001)(stating that a “sexual offender” who does not comply with registration requirements commits a third degree felony). Appellant argues that the trial court erred by informing the jury that he was a “sexual offender” and denying his proposed “sanitized” jury instructions, citing Brown v. State, 719 So.2d 882 (Fla.1998). We affirm because we agree with the State that the trial court’s jury instructions were consistent with the rulings in Brown.

I.

Section 943.0435 requires that a “sexual offender” register at an office of the Department of Law Enforcement or the sheriffs office. Appellant submitted a proposed jury instruction that would “sanitize” the reference to appellant as a “sexual offender” by referring to him instead as a “felony offender.” The proposed jury instruction stated:

FAILURE TO REGISTER AS A FELONY OFFENDER
Before you find Eddie T. Johnson guilty of Failure to Register as a Felony Offender, the State must prove the following elements beyond a reasonable doubt:
The Court instructs you that Eddie T. Johnson has agreed that he has been convicted as a felony offender and must register his address with the Department of Law Enforcement or the Sheriffs Office pursuant to Section 943.0435(9), Florida Statutes.
1. Eddie T. Johnson has been convicted as such a Felony Offender.
2. Eddie T. Johnson knowingly failed to report in person at the Department of Law Enforcement or the Sheriffs Office in the county in which he establishes or maintains a permanent or temporary residence, within 48 hours after establishing permanent or temporary residence, within 48 hours after being released from the custody, control, of the Department of Corrections or from the custody of a private correctional facility.
... (Emphasis added).

The trial court denied the requested instruction, holding that the requested instruction would remove an element of the offense from the jury’s consideration. The trial court gave the following instruction, as it relates to the issue in this case:

Members of the jury, I thank you for your attention during this trial. Please pay attention to the instructions I’m about to give you. Eddie T. Johnson, the defendant in this case, has been accused of the crime of failure to register as a sexual offender. Before you can find the defendant guilty of failure to register as a sexual offender, the State must prove the following elements beyond a reasonable doubt. The Court instructs you that Eddie T. Johnson has agreed or stipulated that he has been convicted as a sexual offender. The elements are these. One, Eddie T. Johnson has been convicted as a sexual offender. Two, Eddie T. Johnson knowingly and failed to report in person at the Florida Department of Law Enforcement or at the sheriffs office in the county in which the defendant establishes or maintains a permanent or temporary residence within 48 hours after establishing a permanent or temporary residence in this state or within 48 hours after being released from the custody, control or supervision of the Department of Corrections or from the custody of a private correctional facility....

II.

In Brown, the Florida Supreme Court addressed the analogous crime of a felon-in-possession of a firearm and held that “when a criminal defendant offers to stipulate to the convicted felon element of the felon-in-possession of a firearm charge, the Court must accept that stipulation, conditioned by an on-the record colloquy with the defendant acknowledging the underlying prior felony eonviction(s) and acceding to the stipulation. The State should also be allowed to place into evidence, for record purposes only, the actual judgment(s) and sentence(s) of the previous conviction(s) used to substantiate the prior convicted felon element of the charge.” 719 So.2d at 884. The Court ruled that “neither these documents nor the number and nature of the prior convictions should be disclosed to the trial jury.” Id. at 889. Appellant argues that the Court’s ruling regarding the non-disclosure of the actual judgments and sentences means also that the jury should not be instructed on the legal elements of the crime because of unfair prejudice. This expansive argument of the Court’s evidentiary ruling regarding the defendant’s actual judgments and sentences is contrary to the further rulings in Brown that specifically address jury instructions.

Substituting the required legal status of “sexual offender” in place of “convicted felon” within the specific ruling in Brown on jury instructions, it is clear that the trial court complied with Brown:

Further, we agree with the Eleventh’s Circuit’s reasoning in United States v. Hardin, 139 F.3d 813 (11th Cir.1998), that the defendant’s stipulation of [sexual offender] status satisfies the prosecution’s burden of proof for that element of the crime. Therefore, if the element of the [“sexual offender”] is established by stipulation, the judge may thereafter instruct the jury that it can consider the [“sexual offender”] status element of the crime as proven by agreement of the parties in the form of a stipulation.

Id. (emphasis added).

The trial court in this case accepted appellant’s stipulation that he was a sexual offender without disclosing to the jury any further details about the nature of his offense, thereby applying the evidentiary balancing test required by section 90.403, Florida Statutes (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”). The appellant’s underlying judgment and conviction establishing his sexual offender status was not made known to the jury and is not part of the record on appeal.

The issue in Brown was framed by the certified question of whether the prior precedent of the Florida Supreme Court, Parker v. State, 408 So.2d 1037 (Fla.1982) should be overruled in favor of the evidentiary analysis in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The Court answered affirmatively and decided the case on evi-dentiary grounds, addressing the balancing of section 90.403. 719 So.2d at 887. None of these cases hold that jury instructions stating proper elements of the law should be “sanitized” because of unfair prejudice to the defendant. The appellant, not surprisingly, cites no authority for such an argument.

There is no contention by appellant that the jury instructions as given do not properly state the legal elements of section 943.0435(9). Although the trial court should accept the defendant’s stipulation of status to avoid undue prejudice pursuant to section 90.403, the trial court is not precluded from giving a jury instruction that properly sets forth the elements of the crime. That is the whole point of giving a jury instruction — to accurately inform the jury of the law. The “sanitized” version requested by appellant is not a correct instruction of the legal elements of section 943.0435(9) because registration is required by “sexual offenders,” a defined term by the Legislature, not by “felony offenders,” an undefined term requested by appellant that is not mentioned in the statute. Accordingly, the trial court properly denied the proposed instruction. See Kransnosky v. Robbins, 120 So.2d 184, 185 (Fla.1960)(ruling that the trial judge was justified in refusing a requested jury instruction because it did not accurately state the law); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996)(ruling that “[ejonviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant, as was the case here, by request for a jury instruction on a nonexistent offense”).

AFFIRMED.

DAVIS, J., concurs; BROWNING, J., dissents with separate opinion.

BROWNING, J.,

dissents with opinion.

It seems to me that the crux of Brown v. State, 719 So.2d 882 (Fla.1998), is that “... evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant ...” and “... trial courts should ordinarily accept a stipulation by a criminal defendant.” That removes the necessity for mentioning a defendant’s criminal record status except in the least prejudicial manner. Despite this admonition, the majority affirms the trial court’s jury instruction that informed the jury that Appellant is a sexual offender. Because the trial court’s instruction added nothing to the proceeding other than the ingredient of prejudice to Appellant, contrary to Brown, I am compelled to dissent.

Consistent with Brown, Appellant stipulated to the criminal status element of the offense charged and thereby removed any necessity for the jury to know the nature of Appellant’s reason for registration beyond that he was a convicted felon and was required to register. Also, consistent with Brown, Appellant waived the requirement of proof of this element beyond a reasonable doubt on the record. In view of these steps, the “sanitized” instruction would have permitted the jury to decide Appellant’s failure to register without a “cloud of prejudice” that is inherent in informing a jury of a defendant’s convicted sex offender status. Accordingly, I reason the trial court reversibly erred by not giving the “sanitized” instruction.

The majority attempts to justify such disclosure on the basis that “... appellant’s underlying judgment and conviction establishing his sexual offender status was not made known to the jury and is not part of the record on appeal.” But this approach conflicts with Brown, which requires a trial court to balance the impact of prohibiting disclosure of the nature of the crime with the prosecution’s right to prove its case and place a meaningful narrative before the jury, and after such balancing, if the necessity for revealing the nature of the prior offense is outweighed by the possibility of undue prejudice, such disclosure is not made. Here the trial court improperly implemented this test and failed to prohibit the jury from learning of the nature of Appellant’s former offense, a sexual offense, for no apparent plausible reason.

The label of a convicted sexual offender carries with it probably a greater danger of collateral prejudice than any other crime, and its use should be avoided except when there is a compelling need, not present here, to- so inform the jury. Appellant’s conviction status was not in dispute, leaving only Appellant’s failure to register for the jury’s determination. Disclosure that Appellant is a convicted sexual offender to the jury added nothing to the proceedings other than increasing the danger that the jury would determine Appellant’s failure to register on the basis that he is a “bad man” with the loathsome characteristics that accompany the label of “sexual offender.” Further, such potential prejudice to Appellant is not justified by the majority’s observation that there is a dearth of authority supporting “sanitized” instructions, as such is not the case.

The court in State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662 (1997), cited with approval in Brown, dealt with a driving while intoxicated charge under a repeat offender statute. One of the three elements of the offense is that the defendant must have two or more prior convictions, suspensions, or violations. Despite the prior convictions’ being an “element” of the offense, the court promulgated the following instruction, omitting any reference to the existence of the necessity of proving two previous driving convictions under the influence on remand for a new trial, be given:

When a circuit court is faced with the circumstances presented in this ease, the circuit court should simply instruct the jury that they must find beyond a reasonable doubt that: 1) the defendant was driving or operating a motor vehicle on a highway; and 2) the defendant had a prohibited alcohol concentration at the time he or she drove or operated the motor vehicle. The “prohibited alcohol concentration” means 0.08 grams or more of alcohol in 210 liters of the person’s breath or 0.08 percent or more by weight of alcohol in the person’s blood. See Wis. JICriminal 2660B. The jury is charged to follow the instruction. See Poellinger, 153 Wis.2d at 507, 451 N.W.2d 752.

571 N.W.2d at 652.

This instruction, contrary to the majority’s assertion, makes no mention of previous convictions and gave a “sanitized” instruction that removed the possibility of undue prejudice from that trial, contrary to the trial court’s action here. Also, the court specifically disallowed the lower court’s decision that approved admitting evidence of defendant’s prior convictions because they were an element of the crime, which is the same justification given by the majority for the trial court’s advising the jury that Appellant is a convicted sex offender.

Also, in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the case that precipitated Brown, “sanitized” jury instructions played a prominent role. Unfortunately, the instructions pertaining to proof of conviction status requested by both parties were all found to be defective, and the court did not fashion an instruction for defendant’s retrial, as did the court in Alexander. However, I think it is compelling that the two cases cited by the court in Brown involved “sanitized” instructions.

In view of Old Chief and Alexander, I am fortified in my belief that the trial court erred. These courts placed the emphasis on a fair trial for a defendant when the prosecution is not prejudiced by exclusion of any reference to the nature of prior convictions. By so doing, they did not mandate that a ritualistic application of their approach be used. To the contrary, they sanctioned a result requiring exclusion of information of a defendant’s past criminal record that would hinder a jury’s fair determination of the disputed issue with minimal harm to the prosecution. Thus, I am unpersuaded by the majority’s finding that affirmance is appropriate because the trial court followed the same method utilized in Brown to preclude jury consideration of the nature of defendant’s previous crimes. The method utilized in Brown accomplished the goal of insuring a fair trial there, but the same method applied here effects the opposite result— denial of a fair trial to Appellant. This danger could have been avoided by the trial court’s giving the “sanitized” instruction, which in no way would have prejudiced the Appellee.

Apparently, the trial court and majority conclude that there is only one way that an element of a crime can be properly described, and I disagree. The “sanitized” instruction provided that Appellant was a convicted felony offender and must register under section 943.0435(9), Florida Statutes. This statement clearly denotes that Appellant has been convicted of a felony that requires him to register under a statutory provision that applies only to sexual offenders. Thus, under the “sanitized” instruction, the jury would be considering Appellant’s actual crime — failure to register as a sexual offender, without knowing the nature of his previous offense. Such an approach would have avoided the potential for prejudice to Appellant without any prejudice to the Appellee. Further, the cases cited by the majority in support of affirming on the potential for prejudice to the Appellee in no way stand for the proposition that the “sanitized” instruction could prejudice the Appellee. See Kransnosky v. Robbins, 120 So.2d 184 (Fla.1960); Fredericks v. State, 675 So.2d 989 (Fla. 1st DCA 1996).

Kransnosky is a negligence case and involves a defective jury instruction on last clear chance, and I do not see it as persuasive here. Fredericks, like Kransnosky, is unpersuasive, for there the appellant was convicted of the nonexistent offense of attempted aggravated assault on a law officer. In both of these cases, no stipulation was entered or a waiver made on the record, as was done here in compliance with Brovm. Furthermore, the “sanitized” instruction provides a correct description of the Appellant’s offense; only the nature of the crime is omitted.

In conclusion, because the trial court permitted disclosure of the nature of Appellant’s previous conviction by denying his “sanitized” instruction, which accomplished no benefit to Appellee other than creating a risk of undue prejudice against Appellant because of previous criminal conduct, I believe it abused its discretion, ruled contrary to Brown, and should be reversed for the reasons stated.

      . A "sexual offender” is a person who has been "convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025, where the victim is a minor and the defendant is not the victim’s parent; chapter 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0145; or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this subparagraph.” See § 943.0435(l)(a)1., Fla. Stat. (2001). The registration requirements of section 943.0435 do not apply to a sexual offender who is also a sexual predator as defined by section 775.21, because they must register as required by section 775.21. See § 943.0435(5), Fla. Stat. (2001).

      . See § 918.10(1), Fla. Stat. (2001)(stating that at the conclusion of counsels' argument, the court shall charge the jury “only on the law of the case”); State v. Ratliff, 329 So.2d 285, 287 (Fla.1976)(ruling that the jury must consider the case upon the sworn testimony and upon the judge's instructions only on the law of the case); Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999)(stating that “[t]he yardstick by which jury instructions are measured is clarity, for jurors must understand fully the law that they are expected to apply fairly”).


text:
    Anthony N. BORRACCINI, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1158.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Owen, 696 So.2d 715 (Fla.1997).

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


text:
    Jason P. KENT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1637.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Schuck, 573 So.2d 335 (Fla.1991); State v. Smith, 573 So.2d 306 (Fla.1990).

THOMPSON, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Dennis Wayne SERVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3125.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Ebaugh v. State, 623 So.2d 844 (Fla. 5thDCA 1993).

AFFIRMED.

THOMPSON, C.J., PLEUS and TORPY, JJ., concur.


text:
    Mack RITCHIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3284.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2003.
    James B. Gibson, Public Defender and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002).

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


text:
    Carol MEDYEC, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-265.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2003.
    Carol Medvec, Port Orange, pro se.
    Cathy McAllister, Assistant District Legal Counsel, Daytona Beach, for Appellee.
   PER CURIAM.

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

GRIFFIN, PLEUS and TORPY, JJ., concur.


text:
    Willie A. LENNEAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-741.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2003.
    Willie A. Lennear, Bowling Green, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

GRIFFIN, PLEUS and ORFINGER, JJ., concur.


author: CASANUEVA, Judge.

text:
    C.R.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2373.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Tampa, for Appellee.
   CASANUEVA, Judge.

C.R.C., who was charged with battery on a school board employee after he allegedly shoved the assistant principal during an altercation with another student, claims on appeal that the court erred in finding that he committed the delinquent act of disorderly conduct. We must reverse because, contrary to the trial judge’s belief, disorderly conduct is not a lesser-included offense of the act with which the defendant was charged.

At trial both the assistant principal and the juvenile testified. C.R.C. admitted that he was fighting with another student but insisted that he never pushed the assistant principal, as she claimed. Instead, he believed that the person behind him who was trying to break things up was another friend, not a school official, and he simply pulled his hand away when she grabbed it. Based on this testimony, the trial judge specifically found that C.R.C. did not intentionally commit a battery on a school board official but decided to find C.R.C. delinquent for disorderly conduct.

The trial court committed reversible error in finding the defendant delinquent for committing an offense that was not a lesser-included offense of the crime with which he was charged. In D.L. v. State, 491 So.2d 1243, 1244 (Fla. 2d DCA 1986), this court observed that disorderly conduct is not a lesser-included offense of the charged crimes of battery or criminal mischief, because each crime contains separate and distinct elements that the other does not. Here, the State was required to prove, under section 784.081, Florida Statutes (2001), that C.R.C. actually and intentionally struck or touched a person whom he knew to be a school board employee against the will of that person. Disorderly conduct, however, proscribed by section 877.03, Florida Statutes (2001), required proof only that the defendant engaged in brawling or fighting.

Furthermore, as in D.L., this is not a situation where a “crime may also be a lesser included offense if its elements are included in the accusatory pleading and sustained by the evidence.” Id. (citing Brown v. State, 206 So.2d 377 (Fla.1968)). Even though the proof at trial might have sustained a conviction for disorderly conduct, the elements of that crime were not charged in the information. Conviction of an offense not within the ambit of the charging document constitutes a denial of due process and is fundamental error. See State v. Gray, 435 So.2d 816 (Fla.1983); Mauldin v. State, 696 So.2d 801 (Fla. 2d DCA 1997); Jaramillo v. State, 659 So.2d 1238 (Fla. 2d DCA 1995); Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995). On remand, however, the State can file an amended information and retry C.R.C. for the offense of disorderly conduct. Mauldin, 696 So.2d at 801; State v. Velasquez, 679 So.2d 54 (Fla. 2d DCA 1996); Jaramillo, 659 So.2d at 1239; Von Deck v. Evander, 622 So.2d 1160 (Fla. 5th DCA 1993).

Reversed and remanded for further proceedings.

SILBERMAN and CANADY, JJ„ Concur.

      . In authorizing refiling on this charge, this opinion should not be construed as preclud-tag any appropriate defensive motions in the trial court.