text:
    Phillip WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4773.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Phillip Walker appeals his convictions for felony murder and attempted robbery with a firearm. We reverse. We conclude that Mr. Walker is entitled to a new trial because a tape recording introduced into evidence during his trial was not sufficiently edited to comply with a prior court order granting Mr. Walker’s motion in li-mine. Because we conclude Mr. Walker is entitled to a new trial on this basis, we do not address the more difficult issue of whether reversible error occurred when the trial court failed to swear the prospective jurors for Mr. Walker’s case with the oath required by Florida Rule of Criminal Procedure 3.300(a).

On March 18, 2001, an employee of a methadone distribution treatment center was shot and killed during the course of an attempted armed robbery. Mr. Walker became a suspect in the killing and was interrogated at length by the police. This interrogation was taped. Although Mr. Walker repeatedly denied involvement in the killing during the interrogation, he made inconsistent statements regarding his whereabouts on the morning of the offense. At trial, Mr. Walker presented an alibi defense. In an attempt to refute this defense and to attack the credibility of Mr. Walker, the State introduced a tape of Mr. Walker’s interrogation into evidence.

Prior to trial, defense counsel had filed a motion in limine seeking to exclude from evidence the portions of this interrogation that referred to “hearsay information from third parties.” The trial court had entered an order granting this motion. At trial, although the State indicated that the tape had been edited accordingly, the portion played for the jury had numerous references to hearsay information that the officers indicated they received from unspecified third parties. On numerous occasions during the interrogation, the officers referred to “people” who claimed Mr. Walker knew who committed the crime, who thought Mr. Walker looked like a composite drawing of the suspect, who said Mr. Walker was acting suspiciously, and who claimed Mr. Walker told them his brother was involved in the incident. The officers repeatedly intimated that they had information from numerous sources implicating Mr. Walker and that Mr. Walker’s version of events differed from all of those sources. At trial, however, there were only two witnesses who identified Mr. Walker. A third witness described a very different-looking person loitering outside of the clinic the morning of the crime, a person the witness could not identify. There was no physical evidence linking Mr. Walker to the crime. Thus the portion of the interrogation presented to the jury left the distinct impression that there was more evidence against Mr. Walker, and certainly more talk in the neighborhood incriminating him than was placed into evidence.

There is no indication that the State acted in bad faith in editing the taped interrogation. Moreover, at the time the tape was played for the jury, it was not clear whether witnesses at trial would substantiate many of the officers’ allegations during the interrogation. At the conclusion of the trial, however, the prejudice caused by the tape was evident. Mr. Walker filed a motion for new trial, raising again the issue of his pretrial motion in limine. The trial court denied the motion for new trial. We conclude that the trial court was required to grant Mr. Walker’s motion for new trial under these circumstances. See Chatmon v. State, 738 So.2d 970, 971 (Fla. 2d DCA 1999).

Reversed and remanded.

ALTENBERND, C.J., and SALCINES and STRINGER, JJ., Concur.

      . Because police officers are not required to be truthful while interrogating suspects and because there was no other evidence presented at trial to support many of these assertions, it is not clear whether the officers' allegations during this interrogation were true.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Judy L. HOFFMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-811.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      Robert R. Jacobs, II, Public Defender, and Allison B. David, Assistant Public Defender, Ft. Myers, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Judy L. Hoffman is appealing the trial court’s order finding her in violation of an injunction for protection. Ms. Hoffman received a suspended sentence of ten days in county jail. She argues that the evidence presented was insufficient to prove the violations. Because we agree that the State did not sufficiently prove the allegations against her, we reverse Ms. Hoffman’s judgment and sentence.

On May 3, 2001, the trial court entered a final judgment of injunction precluding Ms. Hoffman from engaging in certain behavior. Under the terms of the injunction, Ms. Hoffman was not to “directly or indirectly contact [Ms. Duke] in person, by mail, e-mail, fax, telephone, through another person, or in any other manner.” Additionally, Ms. Hoffman was ordered not to come within 500 feet of Ms. Duke’s residence or Ms. Duke’s child’s daycare.

Ms. Duke alleged that Ms. Hoffman violated the injunction for protection on several occasions. In its written order, the trial court found that two of the allegations were proven. The first allegation was that Ms. Hoffman violated the injunction by sending Ms. Duke cards. Ms. Duke also submitted that Ms. Hoffman violated the injunction by coming within 500 feet of her child’s daycare.

First, Ms. Hoffman argues that the evidence was insufficient to prove that she violated the injunction for protection by sending cards to Ms. Duke. The only testimony regarding the cards allegedly sent to Ms. Duke occurred during Ms. Duke’s cross-examination. She testified that the cards were not sent to her; rather, they were addressed either to Ms. Hoffman’s son or to her ex-husband. Ms. Duke testified that she read the cards when she opened the ex-husband’s mail. The injunction does not prohibit Ms. Hoffman from sending cards to either her ex-husband or her son. Thus, we conclude that the evidence presented did not prove that Ms. Hoffman violated the injunction by sending the cards.

Next, Ms. Hoffman argues that the trial court erred when it found her in violation of the injunction for coming within 500 feet of her child’s daycare. Ms. Duke testified that when she dropped Ms. Hoffman’s child off at his daycare, Ms. Hoffman was across the street at a carwash. Ms. Duke presented the only testimony regarding the location of the carwash. During direct examination, she stated that Ms. Hoffman “went right across the street and sat there flicking me off and smiling at me.” During cross-examination, she testified that Ms. Hoffman “was across the street at the carwash. It’s directly across the street.”

“[T]o prove indirect criminal contempt, ‘there must be proof beyond a rea-, sonable doubt that the individual intended to disobey the court.’ ” Tide v. State, 804 So.2d 412, 413 (Fla. 4th DCA 2001) (quoting Levine v. State, 650 So.2d 666, 668 (Fla. 4th DCA 1995)). It appears that the trial court assumed, or inferred, that the carwash was within 500 feet of the daycare. While it may appear obvious that the carwash was within 500 feet of the daycare, we cannot be certain of this fact. The State is required to ‘“prove every essential element of the crime charged’ by proof beyond a reasonable doubt.” Cordova v. State, 675 So.2d 632 (Fla. 3d DCA 1996) (quoting Purifoy v. State, 359 So.2d 446, 449 (Fla.1978)) (citation omitted).

Here, the State did not sufficiently prove that the carwash was within 500 feet of the daycare. The only testimony with regard to distance was Ms. Duke’s testimony that the carwash was “directly across the street.” We conclude that this was insufficient to prove a violation beyond a reasonable doubt. Therefore, we reverse Ms. Hoffman’s judgment and sentence.

Reversed.

WHATLEY and STRINGER, JJ., Concur.

      . Ms. Duke lives with Ms. Hoffman's ex-husband and Ms. Hoffman’s son.

      . Although the trial court orally announced that this allegation had not been proven, its written order found that Ms. Hoffman had violated this provision of the injunction.


author: STRINGER, Judge.

text:
    Malik Abdul McCAULEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-187.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      James Marion Moorman, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ha T. Dao, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Malik Abdul McCauley seeks review of the trial court’s order denying his motion to suppress and his conviction for aggravated assault with a firearm. McCauley’s challenge to the denial of his motion to suppress has merit if he can establish that he has standing to raise such a challenge. Accordingly, we reverse and remand for a determination on that issue. We find McCauley’s remaining challenge to his conviction to be without merit and decline to comment on that issue.

On February 24,1999, the State charged McCauley with aggravated assault with a firearm, possession of a firearm by a felon, opposing a police officer without violence, and possession of a forged Georgia identification card. The arrest arose from allegations that McCauley threatened the victim with a firearm. Once arrested, McCauley allegedly produced a fake identification card and confessed to possessing the firearm. Prior to trial, McCauley moved to suppress all evidence seized from the home of his girlfriend’s mother.

At the hearing on the motion to suppress, Tampa Police Officer Curabba testified that on February 4, 1999, at approximately 7 p.m., he and Officer Bercaw responded to an aggravated assault call involving the victim. Officer Bercaw interviewed the victim, and she accused McCauley of threatening her with a firearm. Officer Curabba then went to the home of McCauley’s girlfriend’s mother, Josephine Penn, and arrested McCauley in the front room. Penn was not present at the time of McCauley’s arrest, but there were several other people inside the home, including McCauley’s girlfriend, Ju-dean Michelle Forbes.

Shortly after McCauley’s arrest, Forbes went to retrieve her infant child from a bedroom in the back of the home. Officer Curabba decided to conduct a protective sweep of the home, and he and Officer Bercaw followed Forbes to the bedroom. When asked whether there were any weapons in the home, Forbes responded that there was a firearm in the bedroom. Officer Curabba then looked under the mattress of a bed in the bedroom and found a firearm. He did not obtain Forbes’ consent to search the room prior to looking under the mattress. Penn arrived just after McCauley had been arrested and the firearm discovered, and she signed a consent to search the home.

Forbes denied telling the officers that there was a firearm under the mattress. She also asserted that McCauley had not possessed a weapon during the earlier incident with the victim. Penn testified that she signed the consent under duress after being threatened by the police.

The trial court denied McCauley’s motion to suppress without making any findings; thus our review of the order is de novo. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001). Of course, we must interpret the evidence and deductions drawn therefrom in the manner most favorable to sustaining the trial court’s ruling. Murray v. State, 692 So.2d 157, 159 (Fla.1997).

The State raises several bases for upholding the search and seizure in this case. First, the State argues that the search was actually a permissible precautionary or protective sweep. However, the police exceeded the permissible limits of either a precautionary or a protective sweep by looking under the mattress in the bedroom. See Runge v. State, 701 So.2d 1182, 1183-84 (Fla. 2d DCA 1997) (holding that the places searched during a precautionary or protective sweep must be places where a person could reasonably be expected to be); see also Meece v. State, 742 So.2d 319, 320 (Fla. 2d DCA 1999) (holding that a search under the cushions of the defendant’s couch did not constitute a protective sweep); United States v. Ford, 56 F.3d 265, 271 (D.C.Cir.1995) (holding that a search under a mattress exceeded the scope of a protective sweep).

Second, the State argues that McCauley’s girlfriend, Forbes, consented to the search. However, this argument is not supported by the evidence. There was no testimony that Forbes gave the police consent to search the premises. The State cites testimony that Forbes told the police that there was a firearm in the bedroom in support of this argument. However, this statement was not in response to a request to search and does not in itself indicate a consent to search. Moreover, when Officer Curabba was questioned as to whether he was given consent to search, he replied, “I was eventually ... [b]y the owner of the house [Penn].” He did not mention consent by Forbes.

Nor does Penn’s after-the-fact consent to search justify the search and seizure. It is well-settled that consent obtained after illegal police activity is presumptively tainted and renders the consent involuntary. Connor v. State, 803 So.2d 598, 609 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); Ingraham v. State, 811 So.2d 770, 774 (Fla. 2d DCA 2002).

The analysis of the above issues demonstrates that the search of the premises in this case was illegal. However, the State also asserts that McCauley lacked a reasonable expectation of privacy in the premises searched and therefore lacked standing to challenge the search. This position appears to be correct because the evidence established that McCauley lived with his father but merely stayed at Penn’s home from time to time and was just visiting on the day in question. Cf. State v. Mallory, 409 So.2d 1222, 1224 (Fla. 2d DCA 1982) (holding that defendant who had a permanent residence and was merely a visitor in a third party’s home did not have standing to challenge the search of the home even though the defendant kept some clothing there, was free to come and go with the use of a hidden key, and spent occasional nights there as a guest); Noel v. State, 526 So.2d 1052, 1058 (Fla. 8d DCA 1988) (holding that the defendant, who kept a change of clothes at the victim’s apartment and stayed there occasionally, did not have standing to challenge a search of the apartment because he had a permanent residence).

Although this point was not argued by the State at the hearing on the motion, the concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal. State v. Abeles, 483 So.2d 460, 461 (Fla. 4th DCA 1986); St. John v. State, 400 So.2d 779, 780 (Fla. 1st DCA 1981). Because McCauley was not given an opportunity to prove his interest in the premises below due to the State’s tacit concession of standing, we conclude that he is entitled to a hearing on the matter. See Combs v. United States, 408 U.S. 224, 227-28, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972); State v. Hutchinson, 404 So.2d 361, 366 (Fla. 2d DCA 1981); Abeles, 483 So.2d at 461.

We therefore reverse and remand for a new suppression hearing at which the trial court shall address only the issue of standing. If the trial court finds that McCauley established standing, it should grant the motion to suppress based on the fact that the search and seizure was otherwise illegal.

Reversed and remanded.

WHATLEY and COVINGTON, JJ„ Concur.

      . The trial court severed the charge of possession of a firearm by a felon, and a jury subsequently acquitted McCauley of that charge. A separate jury convicted McCauley of aggravated assault with a firearm, opposing a police officer without violence, and possession of a forged Georgia identification card. McCauley does not raise challenges to his convictions for opposing a police officer without violence and possession of a forged Georgia identification card on appeal.


author: ALTENBERND, Chief Judge.

text:
    Juan MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5296.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      Ramon Carrion of Ramon Carrion, P.A., Clearwater, for Appellant.
   ALTENBERND, Chief Judge.

Juan Martinez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We reverse and remand in light of the Florida Supreme Court’s decision in Peart v. State, 756 So.2d 42 (Fla.2000).

In 1993, Mr. Martinez entered a plea of nolo contendere to a charge of aggravated assault. The trial court withheld adjudication and placed him on probation for a period of one year. He did not appeal the sentence and allegedly completed the term of probation without incident.

In February 2002, the Immigration and Naturalization Service issued a notice to appear, stating that Mr. Martinez was subject to removal. He quickly filed a motion for postconviction relief, alleging that the trial court failed to inform him of the potential deportation consequences of his plea as required by Florida Rule of Criminal Procedure 3.172. He further alleged that he was unaware of these consequences and would not have pleaded nolo contendere if he had been aware of them. The trial court denied the motion because it had not been filed within two years from the date the judgment became final.

In Peart, the supreme court held that the two-year limitation period applicable to a defendant’s claim that the trial court failed to inform the defendant of possible deportation following entry of a guilty plea begins to run when the defendant has or should have knowledge of the threat of deportation. Peart, 756 So.2d at 46; see also Gray v. State, 774 So.2d 30 (Fla. 2d DCA 2000). Accordingly, Mr. Martinez’s claim cannot be ruled untimely on its face.

Because Mr. Martinez’s claim is facially sufficient in all other respects, we remand this matter to the trial court to reconsider his motion. On remand, the trial court may again deny this motion if the allegations are conclusively refuted by record attachment. If not, the trial court must conduct an evidentiary hearing on this claim.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.


author: SALCINES, Judge.

text:
    J.R.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5748.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

      Charlie Crist, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

J.R.R. appeals the disposition orders entered in thirteen cases. He challenges the imposition of the disposition order entered in one of the thirteen cases (case number 01-000947). He also challenges his commitment to a high-risk, rather than a moderate-risk, facility as to all of the cases. We reverse and remand as to case number 01-000947, and affirm the remaining twelve cases without discussion.

We accept the State’s concession that the trial court improperly entered a disposition order in case number 01-000947 following a plea proceeding in the other twelve cases. The trial court did not conduct a plea colloquy or accept a plea in case number 01-000947. Accordingly, we reverse the adjudication of delinquency and remand for further proceedings in that single case.

Affirmed in part; reversed and remanded in part.

WHATLEY and CANADY, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Ralph POPLAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-493.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Ralph Poplar appeals the judgment revoking his probation. The State has forthrightly acknowledged the merit of Mr. Poplar’s contention that the trial court erred in adding conditions of probation more than sixty days after the original order of probation was entered and thereafter revoking his probation for violating one of the improperly added probation conditions. We reverse.

In 1997, following a plea to felony charges involving promoting a sexual performance by a child and possession of child pornography, the trial court sentenced Mr. Poplar to a two-year term of community control followed by a three-year term of probation. In September 2000, the trial court modified the original sentence by adding conditions of supervision mandated by section 948.03(5)(a), (b), Florida Statutes (1999), including condition 21, which stated:

Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, you will not view, own, or possess any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs or computer services that are relevant to your deviant behavior pattern.

An affidavit alleging the violation of this condition was filed in August 2001 and a warrant was issued for Mr. Poplar’s arrest.

At the violation of probation hearing, the court received evidence regarding Mr. Poplar’s possession of photographs depicting nude women, including his wife, in a variety of poses. Mr. Poplar offered in his defense that the photographs, sent to him by a relative, had been taken some years before his sentence and that the individuals in the photographs were family members and were nude because he and other members of his family were naturists. The trial court did not find his explanation persuasive, revoked his supervision, and imposed a sentence of incarceration.

Florida Rule of Criminal Procedure 3.800(c) (1999) authorizes a court to modify a legally imposed sentence within sixty days of its imposition. Here, the modification occurred years after the sixty-day time period for modification had expired. In Kiriazes v. State, 798 So.2d 789, 794 (Fla. 5th DCA 2001), the court concluded:

The trial court’s initial failure to impose the standard conditions of probation mandated by section 948.03(5) resulted in an incomplete, but not illegal, sentence. The oversight is uncorrectable. More than sixty days had passed since the original sentence was imposed and, thus, under rule 3.800(c), the trial court had no jurisdiction to correct the error.

Accordingly, we reverse the order revoking Mr. Poplar’s probation for violating condition 21 and direct that he be reinstated to supervision.

Reversed and remanded with instructions.

SALCINES and KELLY, JJ„ Concur.


author: DAVIS, Judge.

text:
    Anthony BROWNLEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4412.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
   DAVIS, Judge.

Anthony Brownlee appeals the trial court’s denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse.

Anthony Brownlee was convicted of trafficking in cocaine and possession of cannabis on April 29, 1998. The trial court sentenced him to 23.3 months’ prison followed by two years’ probation. Upon a finding that Brownlee had violated the terms of his probation order, the trial court sentenced him to fifty-eight months’ prison on January 17, 2001. On June 3, 2002, Brownlee filed his motion to correct sentence pursuant to rule 3.800(a). He alleged that the twelve points assessed on his scoresheet for a community sanction violation was in error. From the face of the scoresheet, it appears that the twelve points were assessed for a new felony conviction. Brownlee argues that as of the date of the sentencing, he had not been convicted of the new felony.

The trial court denied the relief, pointing out that the affidavit of violation alleged three counts of violating condition five of the probation order which required the probationer to abide by the law. Each count specified a separate criminal charge that Brownlee was facing and designated the police report number describing each incident. Of the three charges, one was for felony possession of cocaine. The trial court attached the affidavit of violation of probation and the calendar report that indicated that the trial court found Brownlee guilty of violating condition five. Based on these documents, the trial court concluded that the points were properly assessed.

For Brownlee to obtain the requested relief, the allegation must be capable of resolution by reference to record at the trial court. If the error is such that other proceedings are required, then a rule 3.800(a) motion is inappropriate; however, relief may be available under Florida Rule of Criminal Procedure 3.850. See Atwood v. State, 765 So.2d 242 (Fla. 1st DCA 2000).

The trial court concluded that this allegation was resolved by documents from the trial court record, and it attached those documents to its order denying relief. The attachments to the trial court’s order, however, do not conclusively show that, as of the date the scoresheet was prepared, Brownlee had been convicted of the new felony charge. Rather, the attachments only show that the police had charged Brownlee and that the trial court found Brownlee had violated condition five of his probation order. Brownlee alleged in his motion that the date of the conviction for the new felony charge was February 1, 2001, and he provided the trial court case number for that charge. There is nothing in our appellate record that refutes this allegation.

Accordingly, the trial court’s order denying the motion is reversed, and this cause is remanded for further review. If there is evidence in the trial court’s record that refutes Brownlee’s allegation, the trial court may again deny the relief and attach a copy of that documentation to its order. If the record confirms Brownlee’s representation, the trial court should grant the requested relief. If there is nothing in the record that either refutes or affirms the allegation, the trial court should deny the motion without prejudice to Brownlee’s filing, if appropriate, a motion pursuant to rule 3.850. See Atwood, 765 So.2d 242.

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


author: POLEN, C.J.

text:
    HYUNDAI MOTOR COMPANY and Hyundai Motor America, Appellants/Cross-Appellees, v. Anthony J. FERAYORNI, as Personal Representative of the Estate of Paulette Jo Ferayorni, Appellee/Cross-Appellant.
    Nos. 4D00-643, 4D00-980.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Rehearing Denied May 1, 2003.

      Francis M. McDonald and Wendy F. Lumish of Carlton Fields, Orlando; Ca-baniss, Conroy & McDonald, LLP, Orlando (withdrawn after filing brief); Leslie G. Landau and Robert A. Brundage of Bing-ham McCutchen LLP, San Francisco, CA, for appellants/cross-appellees.
    Thomas D. Lardin of Thomas D. Lardin, PA, Fort Lauderdale, for appellee/cross-appellant.
   ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION

POLEN, C.J.

This cause is before us on appellee’s motions for rehearing, rehearing en bane, and clarification. We deny the motion for rehearing en banc, but grant the motion for rehearing. Accordingly, we withdraw our former opinion of December 11, 2002 and substitute the following in lieu thereof.

Hyundai Motor Company (“Hyundai”) appeals after a jury entered a $6,500,000 verdict against it, which was later reduced to $3,000,000 on remittitur, on a wrongful death suit brought by Anthony Ferayorni, the personal representative of the estate (“Estate”) of his 17-year old daughter, Paulette Ferayorni (“Paulette”).

This case is before us for the second time. Estate originally initiated this action after Paulette was killed in a car accident on January 26, 1991. Ferayorni v. Hyundai Motor Co., 711 So.2d 1167, 1168 (Fla. 4th DCA 1998)(“Ferayomi I ”). The accident occurred when her vehicle, a 1990 Hyundai Excel (“Excel”), was struck by another vehicle. It is undisputed that Paulette was not properly utilizing her seatbelt at the time of the accident. The Excel’s seatbelt system consisted of a “manual” lap belt and a “passive” shoulder belt; however, Paulette was not wearing the lap belt, and she was wearing the shoulder harness under her arm, rather than over her shoulder. It is also undisputed that the cause of death was internal injuries caused by the pressure from the under-arm use of the seatbelt upon impact.

At the first trial, Estate’s theory of the case was that Hyundai was aware that smaller drivers experience “neck-cutting” from the shoulder harness and that some respond by wearing the shoulder harness under their arms. It raised various claims against Hyundai, including that the seat-belt mechanism was defectively designed and that Hyundai negligently failed to warn of the risk of improperly utilizing the seatbelt. After a week-long trial, the jury returned a verdict of no liability. On appeal, this court remanded for a new trial only on Estate’s claim of strict liability failure to warn, due to improper jury instructions, but held that Estate was not entitled to a retrial on its other claims including negligent failure to warn. Id. at 1173.

The subsequent trial centered around Hyundai’s three seatbelt warnings: two located on the visors and one located in the owner’s manual. Dr. Robert Cunitz, a human factors psychologist and Estate’s expert in warnings, testified that substantial scientific literature had developed the various criteria by which warnings and labels could be evaluated. He then explained that he evaluated Hyundai’s owner’s manual and visor warnings against those criteria. He did not, however, run any experiments or use any focus groups to test reactions to the warnings because he felt it unnecessary due to the warnings’ inadequacies.

Cunitz testified that the criteria used to evaluate warnings came from scientific literature that experimental psychologists have studied for several years. The criteria were as follows:

1. Ability to attract attention — a warning should use signal words like “danger” or “caution” and use colors like red or black and white;
2. Right time and place — evaluates whether the warning is located where it will be easily seen;
3. Ability to motivate — measures whether the warning gives sufficient and truthful information about what could go wrong if the warning is ignored;
4. Instruct to avoid harm — evaluates whether the warning provides adequate instructions as to how to avoid harm; and
5. Ability to be understood — measures whether the warning was drawn using simple terms and signals that could be understood.

Cunitz explained that an effective warning must pass all five criteria. After analyzing Hyundai’s three warnings against those criteria, Cunitz concluded that the warnings were all inadequate. Cunitz, however, believed the seat belt system had a design defect that induced passengers, specifically including Paulette, to wear the belt under the arm. He, therefore, made comments, to which Hyundai objected, and which objections were sustained, implying that the Excel’s design was unsafe.

At the conclusion of trial, the jury found in favor of Estate and awarded $3,120,000 compensatory damages to Paulette’s father and $3,380,000 to her mother for past and future pain and suffering. After a final judgment was entered based on the jury’s verdict, the trial court denied Hyundai’s post-trial motions dealing with liability, but granted Hyundai’s motion for remittitur, reducing the total damage award to $3,000,000 for both parents, less set-offs. The estate did not agree to the remittitur, resulting in an order granting a new trial on damages.

Before addressing the arguments raised by the parties, this court must detail the progression of this case on appeal. This court initially issued an opinion in this second appeal in April of 2001. In that opinion we reversed and sent the case back to the trial court for a new trial pointing out two harmful errors and further instructing the trial court to caution Dr. Cunitz from testifying about anything related to the design issue. We rejected the argument that the trial court erred by failing to instruct the jury on the conclusions of “Ferayorni I.” One of the grounds supporting our reversal was our conclusion that the trial court erred by allowing Dr. Cunitz to testify without having previously conducted a Frye hearing. In addition, specifically disagreeing with Nash v. Gen eral Motors Corp., 734 So.2d 437 (Fla. 3d DCA), rev. granted, 749 So.2d 502 (Fla.1999), approved in part by D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001), we found error with the trial court’s refusal to include a non-party defendant, who was a drunk driver, on the verdict form. Subsequently, as a result of appellee’s motions for rehearing, rehearing en banc, and clarification, we issued a new opinion in August of 2001.

In the opinion issued in August of 2001, we again sent the case back for a new trial. Once again, we rejected the argument that the trial court erred by failing to specially instruct the jury on the conclusions reached in “Ferayorni I.” We disagreed with Nash, and found that the trial court erred by refusing to instruct the jury on comparative negligence of the drunk driver and include that driver on the verdict form. However, in this opinion we receded from our prior opinion and determined that the trial court did not err by allowing Dr. Cunitz to testify without first having conducted a Frye hearing.

The Estate sought review of our opinion in the Florida Supreme Court and, in July of 2002, this court received a mandate from the Florida Supreme Court resulting from the Supreme Court’s decision in D Amarlo. In D Amarlo, the Florida Supreme Court specifically agreed with the third district in Nash and held that it was error for a drunk driver to appear on the same verdict form as the negligent tortfea-sor in a product liability action. Id. Accordingly, we are compelled to withdraw that portion of our prior opinion finding reversible error in not including the drunk driver on the verdict form.

On remand we must now return our attention to Hyundai’s first issue. In support of this argument, Hyundai points out that even though Estate was not permitted to re-litigate the seat belt design, Cunitz made comments implying that the Excel was designed unsafe. For example, the following exchange occurred during his cross-examination:

Q. Under your rationale, Hyundai, to not have been subject to your criticism, would have to put some kind of sticker or label all over that dashboard to satisfy your rationale of warning about safety-critical matters, correct?
A. Not necessarily, sir. They have the option of designing a safer vehicle and obviating and eliminating the need for warnings.

We agree that this testimony given by Dr. Cunitz was improper. However, the trial court properly sustained objections that were made during the testimony. As we held in our previous opinions, we reject Hyundai’s argument that the trial court improperly rejected the request to give the jury a special instruction on the findings of the court in ‘Ferayorni I,’ because it would have been too confusing for the jury. Although we previously characterized these comments as error in our opinion which also reversed because of the drunk driver issue, we are persuaded by the estate’s motion for rehearing that these comments alone do not warrant a new trial.

Because our earlier opinions had reversed for a new trial on all issues, we had deemed the cross appeal challenging the remittitur moot. However, since we now are affirming, we address the cross-appeal.

The jury awarded $3,380,000 to Paulette’s mother and $3,120,000 to Paulette’s father for past and future pain and suffering. The different amounts would be consistent with the fact that Paulette’s mother had a longer life expectancy. In the order granting the remittitur the court appeared to be motivated primarily by the fact that counsel had only suggested $3,000,000 in closing argument. It is not clear, however, from the transcript, whether counsel was suggesting $3,000,000 total or $3,000,000 for each parent. The argument is just as susceptible of the latter interpretation as the former.

The trial court also relied heavily on the discussion of amounts awarded in Florida for child wrongful death cases in Williams v. United States, 681 F.Supp. 763 (N.D.Fla.1988). That case, however, was decided in 1988 and relied on verdicts returned between 1974 and 1987. The Williams opinion recognized that cases decided more than five years earlier were of limited value. 681 F.Supp. at 765.

Substantially higher verdicts have been approved in child wrongful death cases by this court in recent years. See e.g., St Mary’s Hospital, Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996)($4,500,000 to each parent for the death of a nineteen month old); and Kammer v. Hurley, 765 So.2d 975 (Fla. 4th DCA 2000)($2,500,000 to each parent for a wrongful stillbirth). We conclude that the order granting a remittitur is an abuse of discretion under Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). We therefore reverse and remand for entry of a judgment for the full amounts awarded by the jury.

KLEIN and SHAHOOD, JJ„ concur.

      . A "manual” seatbelt must be applied by the occupant, while a "passive” seatbelt is one which automatically moves into place around the occupant. Ferayorni I, 711 So.2d at 1173 n. 1.

      . “Human factors," otherwise known as "ergonomics,” concerns the relationship between human beings and the objects in the world around them.


author: PER CURIAM.

text:
    Leonardo T. MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1785.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Rehearing, Certification and Rehearing En Banc Denied April 16, 2003.
    Leonardo T. Morales, in proper person.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and RAMIREZ, JJ.
   PER CURIAM.

We affirm the trial court’s denial of defendant Leonardo T. Morales’ petition for writ of habeas corpus.

Morales first argues that, upon resen-tencing, the inclusion of case no. 85-3514 as a prior record rather than as an additional offense in the guideline scoresheet was error. This issue, however, has already been decided by Morales v. State, 613 So.2d 922, 923 n. 1 (Fla. 3d DCA 1993). See also Rodriguez v. State, 589 So.2d 439 (Fla. 3d DCA 1991); Thorp v. State, 537 So.2d 205 (Fla. 4th DCA 1989).

Morales next argues that his life sentence should be reduced to a thirty year maximum sentence. However, burglary with an assault is a first degree felony which can be punishable by life imprisonment. See Fla. Stat. § 810.02(2)(a)(2002); Burdick v. State, 594 So.2d 267, 268 n. 5 (Fla.1992) (use of the term “punishable by term of years not exceeding life imprisonment,” is synonymous with “punishable by life imprisonment”).

Morales’ argument that his sexual battery conviction should be set aside also lacks merit. See State v. Foreman, 476 So.2d 662 (Fla.1985).

Affirmed..


text:
    Steven R. MARINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4873.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Rehearing Denied April 24, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our opinion filed on January 8, 2003 and substitute the following opinion.

Affirmed.

WARNER, KLEIN and TAYLOR, JJ., concur.


text:
    Thomas Perry WELLS, Jr., Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D02-2240.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Rehearing Denied April 22, 2003.
    Thomas Perry Wells, Jr., Pro Se.
    Charlie Crist, Attorney General, and Philip A. Fowler, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

AFFIRMED. See Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So.2d 452 (Fla. 1st DCA 2002).

BOOTH, WOLF and KAHN, JJ., concur.


author: HAZOURI, J.

text:
    PALM BEACH GARDENS POLICE PENSION FUND BOARD OF TRUSTEES, and George Mamak, Appellants, v. Mitchell J. BEERS, P.A., Appellee.
    Nos. 4D01-4059, 4D01-4100, 4D02-1945.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rehearing Denied May 1, 2003.
    Bonni S. Jensen of Hanson, Perry & Jensen, P.A., West Palm Beach, for appellant Palm Beach Gardens Police Pension Fund Board of Trustees.
    William H. Pruitt of Pruitt & Pruitt, P.A., West Palm Beach, for appellant George Mamak.
    Barbara J. Scheffer of Beers & Regan, P.A., Palm Beach Gardens, for appellee.
    Robert D. Klausner, Stuart A. Kaufman and Adam P. Levinson of Klausner & Kaufman, P.A., Plantation, for Amicus Curiae Jacksonville Police and Firefighter Pension Fund.
    Stephen H. Cypen of Cypen & Cypen, Miami Beach, for Amicus Curiae Board of Trustees of the City of Fort Lauderdale Police and Fire Retirement System, Board of Trustees of City of Hialeah Employees Retirement System, Board of Trustees of Hollywood Firefighters’ Pension Fund, Board of Trustees of Hollywood Police Pension Fund, Board of Trustees of the City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Miami Beach and Board of Trustees of City Pension Fund for Police Officers and Firefighters in the City of Pembroke Pines.
   HAZOURI, J.

George Mamak and the Palm Beach Gardens Police Pension Fund Board of Trustees (“Board”), defendants below, appeal from the Amended Final Judgment entered in favor of Mitchell J. Beers, P.A. (“Beers”) on Beers’s complaint for breach of contract. We reverse the judgment entered against the Board and, with respect to Mamak, we affirm the judgment for breach of contract but remand for a rede-termination of the amount of fees as discussed below.

Mamak, a police officer employed by the city of Palm Beach Gardens, applied for a duty disability pension under the terms of the city’s pension plan. His initial application was denied. He timely appealed that decision entitling him to a hearing before the Board. Mamak hired Beers to represent him at the hearing and signed a contract for Beers’s services. The contract provided for a partial contingency fee. Mamak was to reimburse Beers at an hourly rate of $100 per hour plus a 20 percent contingency of amounts recovered. In addition, Mamak agreed to pay the costs of pursuing his claim. Mamak paid Beers a retainer of $10,000. At the hearing before the Board, sufficient medical evidence was presented to persuade the Board to reverse its prior decision thereby granting Mamak his duty disability pension.

A few weeks later, Beers wrote a letter to the Board’s attorney claiming that Ma-mak was entitled to attorney’s fees from the Board as the prevailing party, citing section 185.40, Florida Statutes (1997), and certain case law which Beers asserted supported Mamak’s claim. The Board’s attorney reported Beers’s request to the Board and the Board denied the request.

When Mamak refused to pay the fees Beers claimed he owed, Beers filed his complaint alleging that Mamak failed to pay the attorney’s fees that were due under the contract. Beers spent a total of 50.15 hours representing Mamak and incurred costs of $4,219.39. Beers also alleged that he was entitled to the present value of 20 percent of the total value of the disability pension to be paid to Mamak over his lifetime. Mamak filed his answer denying he owed the fees claimed and also filed a counterclaim alleging Beers breached their contract for services by failing to seek attorney’s fees and costs from the Board.

Both parties filed motions for summary judgment. After a hearing, the trial court granted Beers’s motion and found that Beers was entitled to damages in his action for breach of contract but found that issues of fact remained as to the amount of attorney’s fee due. The trial court denied Mamak’s motion.

Thereafter, Beers filed his motion for summary judgment on the amount of fees to which he was entitled. The trial court reviewed the affidavits submitted by Beers, including the affidavit of a forensic economist, Bernard F. Pettingill, Jr., Ph.D. Pettingill calculated the total pension benefits derived from a monthly payment of $1,833 over a 25.9 year life expectancy, calculated the 20 percent contingent fee, and then determined the present value of the contingent fee to be $52,988. In the trial court’s order awarding Beers $59,727, the trial court awarded the $52,988 based upon future disability payments plus 20 percent of the payments received by Ma-mak from the date payments began until the date of the order granting entitlement to fees.

Mamak subsequently moved to amend his counterclaim and asked the court to determine his right to recover attorney’s fees from the Board. As the Board was not a party, Beers filed a motion which asked the court to find that the Board was a necessary party if it found that Mamak was entitled to fees under section 185.40. The trial court ruled that Mamak was entitled to fees and then granted Beers leave to add the Board as a necessary party. Beers filed its Amended Complaint including the Board as a party and in a new count claimed the fees to which Ma-mak was entitled from the Board are owed to Beers. After the Board answered, Beers filed his motion for summary judgment against the Board asserting that he was entitled to judgment as a matter of law under section 185.40.

The trial court granted Beers’s motion and found as a matter of law that the Board was liable for Mamak’s fee under section 185.40. Upon a subsequent motion by Beers and a hearing to determine the portion of the fee due that was to be paid by the Board, the trial court found the Board responsible for $28,207.37 which would offset the amount Mamak was ordered to pay, leaving Mamak liable for a balance of $27,300.24. Both the Board and Mamak appealed.

The Board asserts several issues on appeal but we limit our discussion to only one: whether section 185.40 (now section 185.05(5)) is applicable to proceedings before the Board. The statute provides:

In any judicial proceeding or administrative proceeding under chapter 120 brought under or pursuant to the provisions of this chapter, the prevailing party shall be entitled to recover the costs thereof, together with reasonable attorney’s fees.

The question for our determination is whether the proceeding before the Board was a “judicial proceeding” which, if it were, would entitle Mamak to recover his fees and costs. Mamak and Beers acknowledge that the proceeding before the Board was not a judicial proceeding. They contend, however, that the hearing before the Board is “quasi-judicial,” and therefore section 185.40 should be construed to include the hearing before the Board. We disagree.

In Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000), the supreme court held:

The Legislature’s intent must be determined primarily from the language of the statute. Accordingly, “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”

Id. at 297 (citations omitted). A plain reading of section 185.40 indicates that the prevailing party in any judicial proceeding under chapter 185 is entitled to attorney’s fees and costs. Had the legislature intended to include “quasi-judicial” proceedings, it could have easily done so. We hold that the plain meaning of “judicial proceeding” does not include proceedings before the Board. We reverse the judgment for attorney’s fees and costs entered against the Board and remand for dismissal of the claim against it.

Mamak argues in his appeal that the trial court erred in awarding attorney’s fees in the amount of $59,727.20 to Beers on his breach of contract claim. The trial court correctly determined that Mamak had breached the contract and was liable to Beers for a partial contingent fee. We find, however, that under the terms of this contract, Beers was only entitled to “a percentage of the amount recovered” and “20% of any recovery.” Thus, since Ma-mak has not recovered the future pension payments and is only entitled to monthly payments of his pension until his death, he has not recovered the total of his pension payments that he will receive during his lifetime. Beers is entitled to attorney’s fees only as Mamak recovers his monthly pension payments. Otherwise, Beers could collect fees on payments never collected by Mamak should he not live the 25.9 years projected by Dr. Pettingill. Beers earns his fee only as Mamak collects his payments.

We also note that the hourly retainer paid by Mamak should be an offset against the hourly fees and the costs incurred, resulting in a credit of $765.61 for Mamak.

Additionally, the trial court awarded Beers attorney’s fees for the cause of action before it based upon a demand for judgment filed under section 768.79, Florida Statutes (1997). Based upon our decision herein, the amount to which Beers is entitled is not 25 percent more than his demand for judgment. As a result, Beers is not entitled to fees under section 768.79.

In view of the foregoing, the judgment against the Board is reversed. We also reverse the amount of the judgment against Mamak. This cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

POLEN, C.J., and KLEIN, J., concur.

      . This section was repealed in 1999 and added to section 185.05(5), Florida Statutes (1999).

      . Both parties agree that the proceeding was not an administrative proceeding under chapter 120.

      . Mamak conceded at oral argument that if this court ruled that Mamak was not entitled to attorney's fees under section 185.40, Beers was not in breach of the contract as Mamak alleged in his counterclaim.


author: WELLS, J.

text:
    WOOD/FAY REALTY GROUP, INC., a Florida Corporation, Appellant, v. NEW AQUARIUS CORPORATION, a Florida Corporation, and Stanley G. Tate, Receiver, Appellees. New Aquarius Corporation, a Florida Corporation, Cross-appellant, v. Wood/Fay Realty Group, Inc., A Florida Corporation, Cross-appellee.
    Nos. 3D01-523, 3D01-2132.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Clarification Denied April 16, 2008.

      Fowler White Burnett and Steven E. Stark and June G. Hoffman and Michael N. Kreitzer, Miami, for appellant.
    Levine & Finger and David J. Finger; Frank H. Alvarez, Miami, for appellees.
    Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
   WELLS, J.

Real estate brokerage firm Wood-Fay Realty Group, Inc., (herein, Wood-Fay), appeals from a final judgment which determined that the firm was not entitled to a commission on the sale of a commercial property. Buyer New Aquarius Corp. cross-appeals from the court’s order denying the buyer attorney’s fees. On the following analysis we reverse the order denying the commission, and affirm the order denying the fees.

Wood/Fay had an Exclusive Right of Sale Listing Contract on a mobile home park, the Faircloth property, from August 8, 1996 to February 28, 1997. In September of 1996, Michael Fay, representing Wood-Fay, showed a number of properties to businessman Arthur Rogow, representing New Aquarius. At the time Fay approached Rogow about the Faircloth property, Rogow was considering another mobile home park a few blocks away. Fay advised Rogow that Wood-Fay had an exclusive listing on the Faircloth property at $1.9 million. Rogow was interested in this property but not at the $1.9 million listing price. Thereafter, Clayton Mobile Home Park (CMH) contracted with Stanley Tate, the receiver for the Fair-cloth property, to purchase the Faircloth property. This contract contained an option to cancel which terminated on April 1, 1997.

On March 21, 1997, three weeks after the original termination date of the exclusive listing agreement, Rogow contacted receiver Tate to express an interest in purchasing the Faircloth property. Receiver Tate did not advise Wood/Fay of this contact. On March 31, CMH exercised its option to cancel, and on or about April 2, 1997, New Aquarius submitted its offer to purchase the Faircloth property. Receiver Tate accepted this offer. No commission on this contract was paid to Wood/Fay.

The brokerage firm relies on several provisions of the brokerage contract in claiming its right to a commission. First, it relies on section VI(3), which provides a commission is due:

If, within 180 days after Termination Date (“Protection Period”), Seller transfers or contracts to transfer the Property or any interest in the Property to any prospects with whom Seller, Broker or any real estate licensee communicated regarding the Property prior to Termination Date. (Emphasis added.)

Second, it relies on sections I and V of the parties’ agreement, which provide:

Upon full execution of a contract for sale and purchase of the Property, all rights and obligations of this contract will automatically extend through the date of the actual closing of the sales contract.
$ ^ ‡ $
In consideration of Broker’s obligations, Seller agrees to:
a. Cooperate with Broker in carrying out the purpose of this Contract, including referring immediately to Broker all inquiries regarding the Property’s transfer, whether by purchase or any other means of transfer.

The brokerage firm maintains that because Rogow was interested in the Fair-cloth property at some price and discussed it with Fay while the brokerage contract was in effect, Rogow (New Aquarius) was a “prospect,” entitling Wood/Fay to a commission under section VI(3), when New Aquarius contracted to purchase the property within the 180 day “protection period.”

Wood-Fay also argues that the CMH contract extended the brokerage firm’s exclusive listing period as per the brokerage contract’s “extension clause.” Although CMH eventually opted out of the deal, Rogow contacted Tate during the extension period, thus obligating Tate to advise Wood-Fay of Rogow’s interest and ultimately to pay the firm’s commission.

We agree with both points. Rogow was a “prospect,” within the common everyday meaning of that word. See Bergman v. Bergman, 145 Fla. 10, 199 So. 920, 921 (1940)(absent any evidence that the parties intended to endow a special meaning in the terms used in an agreement, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words). Rogow had previously made an offer to purchase a mobile home property listed with Wood-Fay, was in the business of buying mobile home parks, and was considering a property just blocks from the Faircloth property. Rogow also admitted that when Fay contacted him to discuss the Faircloth property, he was interested, just not at the $1.9 million listing price. Moreover, only three weeks after the Wood-Fay listing agreement “terminated,” Rogow executed a contract to purchase this property. In every respect, Rogow was a “prospect” under the Wood-Fay exclusive listing agreement.

The “procuring cause” cases cited by appellee are totally unpersuasive when considering the contractual obligations of these parties. As we observed in Ben-Shmuel v. Wimbish Riteway, Inc., 722 So.2d 955, 957 (Fla. 3d DCA 1998): “ ‘[T]he broker’s right to a commission is controlled, in the final analysis, by the provisions of the employment contract with the principal.’ 15 Richard R. Powell, Powell on Real Property § 84C.05[3], at 84C-74 (1998).”

We also agree with the broker’s conclusion that upon execution of the CMH contract, all rights and obligations of the listing agreement automatically extended as to all parties and not just to the parties to the receiver/CMH contract. The terms and provisions of the exclusive listing agreement are clear and unambiguous in this respect and require no interpretation or rewriting. See Fecteau v. Southeast Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991); Pol v. Pol, 705 So.2d 51, 53 (Fla. 3d DCA 1997)(concluding that where a contract is unambiguous, the plain meaning of the parties’ language controls). Here, the trial court’s limitation of this provision to the parties to the Tate/CMH contract constituted an impermissible rewriting of the parties’ agreement. See Lane, Gelety, Woolsey & Centrone, P.A., Inc. v. Woolsey, 377 So.2d 743, 745 (Fla. 4th DCA 1979)(“[c]ourts may not interfere with the freedom of contract or substitute their judgment for that of the parties thereto and rewrite a contract in order to relieve one of the parties from the apparent hardship of an improvident bargain”).

Thus when CMH contracted with receiver Tate during the original term of the exclusive listing agreement, all of the terms of the Wood-Fay exclusive listing agreement were extended through the CMH/Tate closing date. Before that date, Rogow contacted Tate expressing an interest in the Faircloth property. Under the terms of the brokerage agreement as extended, Tate was obligated to notify Wood-Fay of this prospect so that the brokerage firm could facilitate the sale and collect its commission.

Based on the fact that Rogow was a prospect under both the contract’s 180 day protection period provision (section VI(3)) and the contract’s extension period provision (section I), Wood-Fay is due its commission. Finally, the above analysis makes our consideration of the issue on cross-appeal unnecessary.

Accordingly, the order denying the brokerage firm its commission is reversed and remanded. The order denying the buyer its attorney’s fees is affirmed.


author: HARRIS, C., Senior Judge.

text:
    Lynn BERGER, et al. and Michael Siuda, et al., Appellants, v. RIVERWIND PARKING, LLP, etc., et al., Appellees.
    No. 5D02-726.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Berry J. Walker, Jr., of Walker & Tu-dhope, P.A., Maitland, for Appellants.

      Scott J. Johnson, of Holland & Knight LLP, Orlando, for Appellee, Riverwind Parking, LLP.
   HARRIS, C., Senior Judge.

The issue in this case is whether the Marketable Record Titles to Real Property Act (MRTA) has abrogated subdivision restrictions limiting certain lots to residential use so that the lots’ current use as a parking lot for an apartment complex is sustainable.

The lots in question are the first nine lots in Block F, Seminole Terrace Replat of Seminole County. Although the issue is similar to all lots, lots 3, 5, and 6 pose an additional consideration. The subdivision was created by a plat recorded in May, 1957. The recorded plat contains ño restrictions. However, restrictions executed at or about the time the plat was filed were not recorded until September of that year. But between the recording of the plat and the recording of the restrictions, lots 3, 5, and 6 were conveyed. It is urged by the homeowners that since the original purchasers had actual notice of the restrictions at the time they purchased the property, the delayed recording of the restriction was immaterial.

The developer first contends that the restrictions had no validity until they were recorded and that even if the initial purchasers had actual notice of the restrictions, the property could not be affected by the restrictions. We disagree. While it is true that a developer cannot for the first time create valid restrictions where none previously existed after he has sold the property claimed to be subject to the restrictions, recording the restrictions is not essential to their validity. See A & P Inv. Group, Inc., v. Circle Property Owners Ass’n, Inc., 741 So.2d 1139 (Fla. 4th DCA 1998) (relying on “black letter law” principles that the agreement is not a covenant running with the land because it does not contain the word “assigns,” because it was not contained in a deed, and because it was not recorded, is not on point because the principles recited do not apply where the subsequent owner has actual knowledge). The question as to these lots is whether actual notice existed.

The developer next contends that the affidavit purporting to establish actual notice on the part of the initial purchasers is insufficient as a matter of law and that the trial court properly refused to consider them. We agree as to lots 5 and 6. We find the affidavits insufficient to create an issue as to these lots and agree that the trial court was justified in rejecting them. However, as to lot 3, we find the affidavit sufficient to create an issue as to whether the initial grantee took with notice of the single family residential restriction and, if this were the only issue, would reverse the summary judgment.

One of the original purchasers who took title two months prior to the recording of the restrictions stated under oath that he knew that the lot he was purchasing was subject to a single family restriction. The fact that he said this information came from an employee of the developer (hearsay) does not make his admission of notice inadmissible. See Sacred Heart Hosp. of Pensacola v. Stone, 650 So.2d 676 (Fla. 1st DCA), rev. denied, 659 So.2d 1089 (Fla.1995) (The court properly allowed the testimony on the ground that it was not offered to prove the truth of the matter asserted, but rather was introduced to show the owner’s knowledge concerning the maintenance.) Even though the court erred in not considering this affidavit, if the restrictions are no longer valid because of MRTA, the error is harmless.

Concerning the remaining lots, the original restrictions were properly recorded and recorded in the appropriate chain of title. The issue on these lots (and now as to lot 3) is whether after 30 years without reference to the restrictions, MRTA has rendered the restrictions invalid. The purpose of MRTA is to extinguish claims which are at least 30 years old and which predate the root of title of the property in question. Here, the root of title for lots 7 and 8 is September, 1958; for lot 4, May, 1959; for lot 1, August, 1959; for lot 9, April, 1961; and for lot 2, May, 1963. The original restrictions were recorded in September, 1957 and the amended restrictions (which insofar as these lots are concerned merely reinstated the original restrictions) were recorded in January, 1959. An amendment to the restrictions which permitted some additional lots to be used for commercial purposes and merely referenced that the previous restrictions applied to the remaining lots was recorded in February, 1965.

First we consider the effect of MRTA on Lot 3. The limiting restriction was imposed on Lot 3 not by the recording of the restrictions in January, 1959, making them “run with the land” (it was not within the grantee’s chain of title), but by actual notice of the restriction and the implied agreement by the grantee (by accepting the deed with knowledge) to comply with it. Although the grantee was bound by this restriction, it was a commitment existing when the grantee took title and should be subject to the MRTA limitation. Certainly if the recorded restrictions are no longer enforceable because of MRTA, then merely having actual notice of them should not breathe new validity into them.

Clearly MRTA extinguishes all limitations imposed by the initial recorded restrictions as to all lots except 3,5, and 6 because they are over 30 years old and predate the root of title of all such lots and no exception applies. But what is the effect of the amended restrictions which were recorded after the root of title but outside the chain of title to lots 7 and 8? The initial restrictions reserved the right for the owner of at least 50% of the lots to amend the restrictions and this was agreed to by the purchasers of lot 7 and 8 by accepting the deed. As urged by the landowners, the purchaser should be bound by subsequent amendments contemplated and authorized at the time of his purchase so long as he has notice of them and so long as the amendments are made in accordance with the reserved authority. But the developer, even if it had the authority to amend the restrictions as to all lots, did not purport to do so in executing the amended restrictions. The developer did not purport to amend the restrictions as the “owners” of 50% of the property; it stated in the amendment that it owned certain land in Seminole County and appears to have limited its amendment to such property. And in any event, the recording of the amended restrictions outside the chain of title of lots 7 and 8 did not give constructive notice. We find the amended restrictions inapplicable to lots 7 and 8.

The amended restrictions were filed within the chain of title of lots 1, 2, 4, and 9 but even assuming the amendment was intended to apply to all lots originally owned by the developer, the amendment would be extinguished as to these lots because it predates their root of title, is over 80 years old and no exception applies.

Does the amendment to restrictions recorded in February, 1965, which was recorded after the root of title, affect lots 1, 2, 4, and 9? The only reference this document makes to the lots involved in this action is “[e]xcept as amended by the foregoing, the restrictions previously recorded for said subdivision remain unchanged.” This instrument does not by its terms impose any new restrictions and it is insufficient to reimpose the original restrictions by reference for the same reason that the earlier amended restrictions did not do so. It does not meet the requirement of section 712.03(1) to refer by book and page number to the instrument “which imposed, transferred or continued such ... use restriction.” A general reference to the rep-lat does not reimpose restrictions which were created by a separate instrument. Since the amendment merely refers back to the original restrictions and since the original restrictions are extinguished by MRTA, the amended restrictions do not affect these lots.

Finally, the landowners contend that an exception exists which prevents MRTA from applying to the restrictions recorded after the root of title. They cite section 712.03(4) Fla. Stat. (2001), which exempts “estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.” They rely on the definition of title transaction appearing in section 712.01(3) which is “any recorded instrument or court proceeding which affects title to any estate or interest in land and which describes the land sufficiently to identify its location and boundaries.” Since they claim the amended restrictions and the amendment to restrictions meet this definition, MRTA does not extinguish them. First, we do not believe the legislature intended that a covenant or restriction be considered an estate, interest, claim, or charge affecting title. In subsection 712.03(2), the legislature distinguished between “estates, interests, claims or charges” and “covenants or restrictions.” Further, even if restrictions fall within subsection 712.03(4), we believe that to be a “title transaction,” the instrument must not only affect title but must also be within the chain of title of the property involved. In other words, mortgages, judgment liens, etc. which appear in the chain of title after the root of title are not extinguished by MRTA. Otherwise, wild deeds could create problems sought to be eliminated by MRTA. The only instrument which was within a chain of title of lots involved herein was the amended restrictions recorded in September, 1957, and they are ineffective as to said lots for the reasons previously stated.

AFFIRMED.

PALMER, J., and COBB, W., Senior Judge, concur.

      . Ch. 712, Fla. Stat. (2001).

      . See Endruschat v. American Title Insurance Company, 377 So.2d 738 (Fla. 4th DCA 1979).

      . The issue for MRTA consideration is not whether the owner is bound by a validly recorded instrument (he may well be bound so long as the instrument is valid); the issue is whether MRTA extinguishes the obligation as it relates to real property if the provisions of MRTA are met. In Cunningham v. Haley, 501 So.2d 649, 652 (Fla. 5th DCA 1986), this court considered the effect of actual notice as it relates to restrictions (a similar issue because to know of applicable restrictions is to be bound by them) and stated:
      The point is not whether appellants or their predecessors had notice of the restrictive covenants.... [A]ctual notice does not suffice to protect use restrictions created prior to a root of title from being extinguished by section 712.02(1), Florida Statutes. The material question is: Do muniments in the chain of title since the root of title disclose the use restrictions by specific reference so as to meet the provisions of section 712.03(1) and thereby preserve the restrictions from being extinguished by section 712.02(1)?

      . The Supreme Court in Sunshine Vistas Homeowners Ass’n v. Caruana, 623 So.2d 490 (Fla.1993), recognized the applicable exceptions when it held:
      ... a thirty-one-year-old restriction is preserved if the root of title or a subsequent muniment contains a "specific identification” to a recorded title transaction that imposed, transferred, or continued the restriction. ... The "specific identification” to the title transaction can be made in one of two ways:
      (1) by reference to the book and page in the public records where the title transaction that imposed the restriction can be found, or
      (2) by reference to the name of a recorded plat that imposed the restriction.
      623 So.2d at 491-92.

      .The authority to amend is set out in the initial restrictions as: "These restrictions may only be removed or amended by the consent of the owners of Fifty Per Cent (50%) of the property, evidenced by an instrument duly executed and filed.” A purchaser agreeing to this provision would assume that before an amendment could be approved which would affect his interest in the property, all owners would receive notice and have an opportunity to be heard. This provision is not the same as one which reserves to the developer so long as he holds a majority of the lots the sole authority to amend and it should not be so construed.

      . We find that the amendment to the restrictions does not reimpose the initial restrictions because, even though it refers to the original replat by book and page number, it does not so refer to the instrument creating the original restrictions. The replat imposed no restrictions. See section 712.03(1), Fla. Stat.

      . Notice the difference in form when the developer filed the amendment of restrictions on February 4, 1963. There the developer purports to amend the restrictions as "owner of more than fifty-one percent (51%) of the lots.” While this, is a technical distinction, section 712.19 requires that MRTA be liberally construed to effectuate the purpose of facilitating land transactions.


author: SILBERMAN, Judge.

text:
    Jeremiah Wade TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-225.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    Rehearing Denied April 21, 2003.

      Richard Escobar of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Jeremiah Wade Tillman appeals his convictions for first-degree murder, robbery with a firearm, dealing in stolen property, and grand theft of a motor vehicle. We agree that the evidence was insufficient to support the convictions for murder and robbery, although it was sufficient to support the lesser offenses of manslaughter with a firearm and petit theft, as well as the charged offenses of dealing in stolen property and grand theft of a motor vehicle. We affirm without comment the other issues raised by Tillman.

Although the State called numerous witnesses to testify at trial, much of its evidence was circumstantial. None of the State’s witnesses observed the shooting that occurred on June 9, 1998. Tillman testified and also called several witnesses as part of his defense. The evidence as to the sequence of events immediately prior to and after the shooting was provided through Tillman’s testimony.

Tillman and the victim, Gerald Gordy, Jr., were best friends. There was no evidence of animosity between them. Tillman testified that he had spent the night at Gordy’s home, and the following day they were talking and watching television. The talk turned to fireworks and gunpowder. Gordy brought out his antique rifle and showed it to Tillman. Later, Gordy talked about wanting to make his own gun. He left the room and returned with his handgun to demonstrate and explain his plan to make a gun.

Gordy handed the gun to Tillman. Tillman stated that he was “messing with the gun,” playing with its switches. Gordy was reclining on one couch, and Tillman was sitting close by on a second couch. Tillman did not believe that the gun had a round in the chamber because Gordy always preached gun safety and would never have left a round in the chamber. But when Tillman pulled the hammer back and released it, the gun fired. The bullet struck Gordy and killed him.

Tillman testified that he panicked. He was scared to stay around and decided to leave town. He saw Gordy’s keys and jewelry on a bookcase and grabbed them. He fled in Gordy’s truck because his own truck had been repossessed a few days before the shooting, and he took the jewelry because he needed money to leave town. He went to a shop to pawn the jewelry, then later that evening he spent time with a friend. He did not tell anyone about the shooting. The next day, he left Florida. He was arrested eight days later at his grandparents’ home in Tennessee.

There were no signs of a struggle at Gordy’s home. The home had not been ransacked or disturbed, and valuables remained in the home. Gordy owned several guns, including the one that caused his death. Testimony was presented that he was safety conscious and generally did not keep a round in the firing chamber. However, there was evidence that Gordy had recently broken up with a girlfriend, was upset about it, and had written a letter that could be characterized as a suicide note.

Concerning the shooting, expert testimony was equivocal as to the exact distance from which the shot was fired and the exact positioning of Gordy and Tillman. It was undisputed that Tillman did not bring a weapon to Gordy’s house, and there was no evidence that Tillman planned to kill Gordy. Although the State suggested that the circumstantial evidence established an intentional shooting, the record reflects that the evidence was not inconsistent with Tillman’s testimony as to how the event occurred.

Following the State’s presentation of evidence, and again at the close of all evidence, Tillman sought judgments of acquittal. He argued that the State failed to establish premeditation or that he had committed a crime such as robbery that would support a felony murder conviction. See § 782.04(1), Fla. Stat. (1997). He also asserted that the State failed to prove various lesser crimes.

A judgment of acquittal is appropriate if the State fails to present sufficient evidence to establish a prima facie case of the crime charged. See Olsen v. State, 751 So.2d 108, 110 (Fla. 2d DCA 2000). In this case, one of the key questions is whether the State presented sufficient evidence of premeditation in order to establish the charge of first-degree murder.

Premeditation may be established by circumstantial evidence, but “the evidence must be inconsistent with any reasonable hypothesis of innocence.” Holton v. State, 573 So.2d 284, 289 (Fla.1990). If the evidence is sufficient to allow the jury to infer premeditation “to the exclusion of all other possible inferences, including accidental death,” then the jury’s verdict will be upheld. Id. If the State fails to exclude a reasonable hypothesis that the homicide occurred by something other than a premeditated design, a conviction for first-degree murder cannot be sustained. Norton v. State, 709 So.2d 87, 92 (Fla.1997).

Premeditation may be inferred from various factors such as the type of weapon used, previous difficulties between the parties, the presence or absence of adequate provocation, the manner in which the homicide was committed, and the nature and manner of the wounds that were inflicted. Spencer v. State, 645 So.2d 377, 381 (Fla.1994). The evidence must be sufficient to show that the accused was conscious of the act that was about to be committed and the probable result of that act. Id.

Here, the State did not present sufficient evidence of premeditation to sustain the conviction for first-degree murder. The evidence demonstrated that a shooting resulted in Gordy’s death, but the evidence was not inconsistent with Tillman’s claim that the shooting was unintentional. This is particularly true due to the absence of evidence of any prior differences between Gordy and Tillman, provocation, a struggle, multiple wounds, or any plan or design by Tillman to shoot Gordy. Because the circumstantial evidence was not inconsistent with Tillman’s hypothesis of innocence, his motion for judgment of acquittal as to premeditated first-degree murder should have been granted. See Burttram v. State, 780 So.2d 224, 227 (Fla. 2d DCA), review denied, 792 So.2d 1215 (Fla.2001); Fowler v. State, 492 So.2d 1344, 1347-48 (Fla. 1st DCA 1986).

The second theory that the State pursued to support a conviction for first-degree murder was that the shooting occurred when Tillman robbed Gordy. In order to sustain the conviction, the State was required to establish that Tillman took property from Gordy by force, violence, or assault, and killed him during the process. See Fowler, 492 So.2d at 1345. Here, as in Fowler, the State failed to present competent testimony or physical evidence to impeach or contradict Tillman’s explanation of what happened; to believe the State’s version would amount to pure speculation. Fowler, 492 So.2d at 1345; see Mahn v. State, 714 So.2d 391, 396-97 (Fla.1998) (concluding that the evidence did not overcome a reasonable hypothesis that the defendant did not intend to steal the victim’s money and keys prior to the murders, but the evidence reasonably led to the conclusion that the property was taken as an afterthought to the murders). Accordingly, judgments of acquittal should have been entered as to first-degree felony murder and robbery. See Mahn, 714 So.2d at 397; Fowler, 492 So.2d at 1352.

Pursuant to section 924.34, Florida Statutes (1997), we must next determine whether the evidence supports convictions for lesser statutory degrees or necessarily included lesser offenses other than first-degree murder and robbery. The verdict form that the jury used reflected various alternatives to the charge of murder in the first degree including murder in the second or third degrees, with or without a firearm, and manslaughter with or without a firearm.

The key distinction between first and second-degree murder is that second-degree murder lacks the element of premeditation. Hines v. State, 227 So.2d 334, 335 (Fla. 1st DCA 1969). Second-degree murder is the unlawful killing of a person “when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (1997). The act must be one that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; is done from ill will, hatred, spite or an evil intent; and is of such a nature that it indicates an indifference to human life. Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996). The evidence simply did not establish the necessary elements to support a conviction of second-degree murder.

Third-degree murder is an unlawful killing that occurs during the perpetration of, or the attempt to perpetrate, a felony other than those felonies listed in section 782.04(4), Florida Statutes (1997). Because there was no evidence that Tillman perpetrated a qualifying felony, except perhaps as an afterthought to the shooting, the evidence was insufficient to sustain a conviction for third-degree murder.

Section 782.07(1), Florida Statutes (1997), defines manslaughter as the killing of a person “by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder.” Culpable negligence is more than a failure to use ordinary care; it is a course of conduct showing reckless disregard of human life or the safety of others. See Manuel v. State, 344 So.2d 1317, 1320 (Fla. 2d DCA 1977).

The evidence presented at trial and the reasonable inferences that may be drawn from that evidence were sufficient to prove manslaughter with a firearm. Tillman had served in the army and was trained in the use of various firearms. He knew that a basic rule of gun safety required that all guns be treated as if they are loaded. He never checked to see whether Gordy’s gun was loaded, but he trusted Gordy to not have a round in the chamber. He was seated very close to Gordy while he was playing with the gun. He admitted that he pulled back and released the hammer and acknowledged that he must have pulled the trigger. Expert testimony established that the gun did not have a “hair-trigger.” Under these circumstances, remand is required for entry of a conviction for manslaughter with a firearm.

The verdict form also listed lesser offenses as alternatives to robbery with a firearm including robbery with a deadly weapon, robbery, and petit theft. While the State faded to establish that Tillman robbed Gordy, the evidence was sufficient to support a conviction for petit theft as a result of Tillman taking some of Gordy’s belongings after the shooting. See § 812.014(3)(a), Fla. Stat. (1997).

Accordingly, we reverse the convictions and sentences for first-degree murder and armed robbery and remand with directions that the trial court enter judgments and sentences for manslaughter with a firearm and petit theft. We affirm the convictions for dealing in stolen property and grand theft of a motor vehicle, but because of scoresheet changes necessitated by this opinion, we remand for resentencing.

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

SALCINES and STRINGER, JJ., Concur.