text:
    David TALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1495.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Rehearing Denied Aug. 13, 2004.

      David Talley, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying David Talley’s rule 3.800(a) motion to correct an illegal sentence.

Talley entered a no contest plea and was sentenced on count I (fleeing) to fifteen years in prison; count II (reckless driving), ninety days in jail; count III (aggravated assault on a law enforcement officer), fifteen years in prison, consecutive to count I; count IV (aggravated battery on a law enforcement officer), thirty years in prison, consecutive to count III; count V (battery on a law enforcement officer), five years in prison, consecutive to count IV; count VI (aggravated battery on a law enforcement officer), thirty years in prison, consecutive to count V; and count VII (resisting officer with violence), five years in prison, consecutive to count VI. Talley challenges the consecutive sentences received on- counts III, IV, V, and VI.

On each of the four contested counts, Talley was charged under section 784.07, Florida Statutes, which reclassifies the degree of the offense where the victim is a law enforcement officer. Talley argues that section 784.07 is an enhancement statute and, therefore, the court could not order his sentences to run consecutively. See Boler v. State, 678 So.2d 319, 322 (Fla.l996)(recognizing that consecutive enhancement sentences are not authorized). See also Jackson v. State, 659 So.2d 1060 (Fla.1995).

In Boler, the defendant was sentenced to life in prison with a twenty-five year mandatory minimum for murder and a consecutive life sentence for robbery, with a three year mandatory minimum for use of a firearm. 678 So.2d at 320. Boler argued that the consecutive mandatory minimum sentences were improper and the Florida Supreme Court agreed. Id. at 324. The court observed that it has held “enhancement sentences arising out of a single criminal episode may not be imposed consecutively.” Id. at 322 (emphasis added). The court, however, also recognized that it “distinguished statutory sentences in which the legislature ha[s] included a minimum mandatory sentence, such as the sentences for capital crimes, from sentences in which there is no minimum mandatory penalty although one may be provided as an enhancement through [another statute].” Id. (emphasis add-edXquoting Hale v. State, 630 So.2d 521, 524 (Fla.1993)). Boler’s mandatory minimum sentence for murder was statutorily required; however, the other mandatory minimum sentence for use of a firearm was authorized by an enhancement statute. Id. at 323. The court concluded that the legislature did not authorize consecutive enhancement sentences and, as a result, held Boler’s sentence was improper. Id. at 324.

The Florida Supreme Court has recognized that section 784.07 is a reclassification statute, not an enhancement statute. Mills v. State, 822 So.2d 1284, 1290 (Fla.2002)(concluding there is no double enhancement problem when sentencing a defendant convicted of battery on a law enforcement officer as a habitual offender because section 784.07 is not an enhancement statute).

Here, the statute prescribing the penalty for certain offenses against law enforcement officers includes the mandatory minimum sentence, without resorting to a separate enhancement statute. § 784.07(2), Fla. Stat. (2001); see Hale, 630 So.2d at 524 (distinguishing mandatory sentences under enhancement statutes from those under a statute authorizing punishment for the specific crime); see also Daniels v. State, 595 So.2d 952, 953-54 (Fla.1992)(same).

The consecutive sentences in this case are legal; thus, we affirm.

STONE, TAYLOR and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gerald TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2102.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Gerald Taylor, in proper person.

      Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before, COPE, GERSTEN and FLETCHER, JJ.
   PER CURIAM.

This is an appeal from an order denying a Rule 3.850 motion filed by defendant-appellant Gerald Taylor, asserting newly discovered evidence. Under the circumstances of this case, the denial was proper.

Defendant’s newly discovered evidence claim is based on an affidavit provided by an alleged witness to the crime, a fellow inmate. The fellow inmate offered an affidavit which states that he saw the shooting which defendant was convicted. The affidavit states that both shooters wore ski masks and that the build of the shooters did not resemble the build of the defendant. The affidavit concludes that because the description of the shooters did not match the build of the defendant, the defendant could not have committed the crime.

The state properly argues, and our review of the transcript reveals, that two eyewitnesses to the crime identified defendant as one of the shooters. Both eyewitnesses had known defendant for years. Further, there was no mention by these eyewitnesses — or any suggestion by the prosecutor, the defense, or anyone at the trial — that the shooters were wearing ski masks or masks of any type. Thus, the trial court could properly reject the affidavit, for it is “inherently incredible.” See McLin v. State, 827 So.2d 948, 955 (Fla.2002); Evans v. State, 843 So.2d 938 (Fla. 3d DCA2003).

Affirmed.


author: GUNTHER, J. KLEIN, J.,

text:
    ROYAL & SUNALLIANCE, a foreign corporation, a/s/o R.R. & L.R. Corporation, Inc., Appellants, v. LAUDERDALE MARINE CENTER, Appellee.
    No. 4D03-2148.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      James M. Kaplan, Clifford L. Rostin, and Elise D. Weakley of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Miami, for appellant Royal & Sunallianee.
    Stephen C. Irick, Jr. and William R. Boeringer of Hayden and Milliken, P.A., Miami, for appellee.
   GUNTHER, J.

Royal & Sunallianee (“Royal”) have appealed the trial court’s order granting Lauderdale Marine Center’s (“LMC”) motion to dismiss Royal’s spoliation of evidence claim and the trial court’s order granting LMC’s motion for summary judgment. We affirm on all issues but write to address the spoliation of evidence claim.

In this case, a yacht, the Alicia, owned by R.R. & L.R. Corporation (“R.R.”) was being repaired by Cleanse A Yacht, Inc. doing business as Cay Marine, Inc. (“Cay Marine”). Cay Marine leases space from LMC and uses the space leased from LMC for vessels it is repairing. The Alicia was in one of these spaces on July 4,1998 when it caught fire and partially burned. A vessel docked in a space next to the Alicia was also partially burned. R.R. had insurance through Royal, and Royal indemnified R.R. and the owner of the adjacent vessel. Royal filed a subrogation action against Cay Marine to recover amounts paid to R.R. and the owner of the adjacent vessel.

In January 2002, Royal added LMC as a defendant by serving its Second Amended Complaint in which Royal alleged causes of action for negligence and spoliation of evidence against LMC. The spoliation of evidence claim was dismissed without prejudice for failure to state a claim upon which relief could be granted. Royal filed a third complaint attempting to state a cause of action for spoliation of evidence against LMC; however, the trial court again dismissed this claim without prejudice.

Next, Royal filed its Fourth Amended Complaint in which it again attempted to assert a spoliation of evidence claim. In the complaint, Royal asserted that the fire inspectors collected debris from the fire and placed it in barrels; however, at some point between July 4, 1998 and July 13, 1998, the contents of the barrels were thrown away. Royal argued that LMC had a common law duty to preserve the debris and that without this debris it could not prove the exact cause of the fire and who might be responsible. LMC filed a motion to dismiss on which the trial court heard oral argument. The trial court entered an order dismissing this claim with prejudice and eventually consolidated the order dismissing the spoliation of evidence claim with an order granting LMC’s motion for summary judgment and issued a final order of dismissal.

As stated above, we write to discuss only the order dismissing the spoliation of evidence claim. “A motion to dismiss tests whether the plaintiff has stated a cause of action.” Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001). In reviewing a motion to dismiss, a trial court is limited to the four corners of the complaint, and it must accept all the allegations in the complaint as true. Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001). “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.” Bell, 778 So.2d at 1032.

A complaint must contain the “ultimate facts” necessary to support the claim for relief. Fla. R. Civ. P. 1.110(b)(2). Here, in order to properly plead a cause of action for spoliation of evidence, Royal needed to plead facts that could establish the essential elements of this claim. The essential elements of a spoliation of evidence claim are:

(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.

Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088, 1091 (Fla. 4th DCA 2001) (quoting Cont’l Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990)). In this case, the issue on appeal involves the second element, that is, whether LMC had “a legal or contractual duty to preserve evidence.” Id.

“A duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed).” Silhan v. Allstate Ins. Co., 236 F.Supp.2d 1303, 1309 (N.D.Fla.2002) (citing Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3d DCA 1984); Miller v. Allstate, 573 So.2d 24, 27 (Fla. 3d DCA 1990); Strasser v. Yalamanchi, 783 So.2d 1087, 1093-94 (Fla. 4th DCA 2001)). However, here, Royal has not alleged a contractual or statutory duty. Royal also has not alleged that a discovery request was served which required the evidence to be preserved.

Royal has argued, relying on Hagopian, that there can also be a common law duty to preserve evidence before litigation has begun. In Hagopian, a Publix customer, Cheryl Hagopian, brought suit against Publix and Coca Cola after a Sprite bottle exploded and injured her foot while she was shopping in Publix. 788 So.2d at 1089. The Sprite bottle explosion occurred in 1991; however, Hagopian did not file suit until 1994. Id. In the meantime, the Sprite bottle had been destroyed. Id. However, Hagopian does not expressly establish any common law duty to preserve evidence. Instead, in Hagopian, this court focused on Hagopian’s ability to prove the case without the destroyed evidence, which involves the fourth and fifth elements of a spoliation claim. Id. at 1091-92.

In Hagopian, this court did mention St. Mary’s Hospital, Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996); however, this case also does not establish a common law duty to preserve evidence in anticipation of litigation. In Brinson, the parents of Alonzette Brinson, a nineteen-month-old infant, brought suit against a hospital alleging negligence. Id. at 34. Alonzette suffered cardiac arrest after receiving an elevated amount of anesthesia during surgery to correct a drooping eyelid. Id. During discovery, the Brinsons found out that “the halothane vaporizer used in the anesthesia machine during Alonzette’s surgery [had been] ... disassembled.” Id. The Brinsons then filed a claim against St. Mary’s alleging negligent and/or intentional destruction of evidence. Id. The trial court consolidated the two cases and a jury found for the Brinsons. Id. at 35.

On appeal, this court stated “we find that the trial court did not err in allowing the Brinsons to proceed on an action for the spoliation of evidence.” Id. Other than this statement, there is no discussion of duty to preserve the evidence in the opinion at all. Thus, Brinson does not establish a common law duty to preserve evidence in anticipation of litigation. Furthermore, one commentator examined the appellate briefs and found that Brinson’s spoliation claim was in fact based on a statutory duty of the hospital to preserve the vaporizer rather than a common law duty to preserve the vaporizer in anticipation of litigation. Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U.L.Rev. 1289, 1309 (2002).

Thus, neither Hagopian nor Brinson establishes a duty to preserve evidence when litigation is merely anticipated. Accordingly, we find Royal’s argument that there was a common law duty to preserve the evidence in anticipation of litigation to be without merit, and thus, we affirm the trial court’s dismissal of its claim for spoliation of evidence.

AFFIRMED.

TAYLOR, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority opinion. I am writing to comment on the law review article cited by the majority, Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U.L.Rev. 1289 (2002). I believe that the article has misconstrued our decision in Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4th DCA 2001), leading a federal court to also misinterpret it. Silhan v. Allstate Ins. Co., 236 F.Supp.2d 1303 (N.D.Fla.2002).

In Hagopian, a bottle on a shelf exploded and injured a shopper’s foot. The Pub-lix store manager filled out an incident report, collected the broken bottle pieces and remaining bottles in the six pack, and placed them in the computer room. Three months after the accident, plaintiffs lawyer wrote Publix, notifying it of her claim. During the next several months, however, the Publix store was closed and the evidence was inadvertently destroyed.

Years later, when plaintiff subsequently brought her lawsuit against Publix, she added a claim for spoliation of evidence, alleging that the destruction of the evidence hindered her from proving her case against Coca Cola, as well as the bottle manufacturer, Owens Corning, and Publix. We determined that she could recover on that claim.

Peltz characterizes our holding in Hago-pian, on page 1310 of his article, as follows:

Although recognizing that the fragments had been destroyed incidentally and pri- or to the initiation of suit, the Fourth District nevertheless concluded that the preparation of the incident report, coupled with Publix’s refusal to produce it on work product grounds, evidenced that it anticipated litigation, thereby creating a duty to preserve the potential evidence.

As our opinion in Hagopian shows, however, on page 1090, it was the trial court which had reasoned that Publix should have anticipated litigation. Moreover, the trial court used that reasoning only to authorize the jury to draw a rebuttable adverse inference that the lost evidence would have been unfavorable bn the negligence claim against Publix. The' trial court directed a verdict on the separate spoliation claim against Publix.

We reversed the directed verdict on spoliation, not on the basis that Publix should have anticipated litigation, but because we found the case similar to Miller v. Allstate Insurance Co., 573 So.2d-24 (Fla. 3d DCA 1990). In Miller the plaintiffs insurer had agreed with plaintiff that it would preserve her vehicle, which had been totaled as a result of the accelerator becoming stuck. Her insurer did not live up to its promise and sold the vehicle to a salvage yard, significantly' impairing her ability to bring a claim against the manufacturer for a defect. Our reliance on Miller leads me to conclude that the duty in Hagopian arose once Publix preserved the evidence following the accident. Peltz recognizes in his article that a duty to preserve evidence can arise as a result of an express or implied agreement. Id. at 1310.

A duty could also have arisen in Hagopi-an under the principle that one who has no duty in the first place, but voluntarily undertakes a duty, can be liable for negligence. Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Fidelity & Cas. Co. of N.Y. v. L.F.E. Corp., 382 So.2d 363 (Fla. 2d DCA 1980). Assuming Publix had no duty in Hagopian to preserve the evidence at the time of the accident, and I agree it did not, it did preserve it. Having done so, it could be held hable for negligently discarding it.

A federal court which cited Peltz’s article has also characterized Hagopian as holding that Publix had a duty to preserve the evidence for use in anticipated litigation which “arose from the preparation of an incident report coupled with a refusal to give a copy to Ms. Hagopian based on work-product grounds.” Silhan v. Allstate Ins. Co., 236 F.Supp.2d 1303, 1313 (N.D.Fla.2002).

At the risk of being repetitious, I would reiterate that it was only the trial court in Hagopian which had followed that reasoning, and then only for the purpose of allowing the jury to draw an adverse inference on the claim that Publix negligently caused the accident. Peltz’s fears, that he expresses on pages 1310 and 1311, that the ramifications of Hagopian are “extremely troubling” because every time there are repairs of premises, cars, or machinery involved in accidents, spoliation claims will arise, are in my opinion unfounded.

      . Cay Marine is not a party to this appeal.

      . In the complaint, Royal did allege that LMC "agreed” to preserve the evidence. However, without more, this allegation is not sufficient to establish that there was a contractual duty. Furthermore, Royal did not properly raise this argument before this court. This argument was not raised in the initial brief but was first raised in the reply brief. See NOS Communications, Inc. v. State, 858 So.2d 362, 363 (Fla. 1st DCA 2003).


text:
    Bradley J. DAVIS, Appellant, v. NEW RIVER DEVELOPMENT, LLC., a Florida Limited Liability Company, Appellee.
    No. 4D03-902.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.
    Marvin P. Pastel, II and JoAnn Nesta Burnett of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, Bradley Davis raises a number of issues on appeal concerning a default judgment entered against him, the order denying his motion to set aside the default judgment, and the final judgment entered in this case awarding the Appellee, New River Development, L.L.C. (“New River”), damages. Because we find the default judgment was entered prematurely, we reverse and remand on this point and decline to address the other issues Davis has raised on appeal.

On October 24, 2002, New River filed suit against Davis and his brother, alleging causes of action for material misrepresentation and fraud in the inducement against Davis. New River alleged causes of action against Davis’s brother for tortious interference and abuse of process. These claims relate to an Agreement of Purchase and Sale for property belonging to Davis. On November 12, 2002, New River filed an Amended Complaint, which no longer asserted any claims against Davis’s brother but still contained the counts against Davis for material misrepresentation and fraud in the inducement. This complaint was served by mail on November 7, 2002. On November 21, 2002, New River filed a Motion for Court Default stating that Davis “was required to file a responsive pleading [to its Amended Complaint] on or before November 18, 2002, and has failed to do so.” The trial court held a hearing on this motion on November 25, 2002 and granted New River’s Motion for Default, filing its order granting this motion on November 26, 2002. Davis never filed a responsive pleading to either of New River’s complaints.

Here, the trial court erred in granting the Motion for Default because at the time the motion was granted, Davis still had time to respond to the Amended Complaint. We find New River’s argument that Florida Rule of Civil Procedure 1.190(a) required a responsive pleading to have been filed within ten days of the Amended Complaint to be without merit. Rule 1.190(a) states:

[a] party may amend a pleading once as' a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, [a party] may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading with[in] 10 days after service of the amended pleading unless the court otherwise orders.

Although rule 1.190(a) does state that a response to an amended pleading should be served within ten days, when this provision is read in context with the preceding sentences, the provision refers to responses to amended pleadings filed “by leave of court or by written consent of the adverse party” and not responses to amended pleadings filed “as a matter of course.” See Thompson v. State, 695 So.2d 691, 692 (Fla.1997) (“It is a settled principle of statutory construction that phrases within a statute are not to be read in isolation, but rather should be construed within the context of the entire section.”).

Furthermore, when this portion óf rule 1.190(a) was amended in 1988 to change the time period in the last line from “20 days” to “10 days,” the Civil Procedure Rules Committee of the Florida Bar stated that this amendment was being made “to conform with the 10-day time requirement of subsection 1.140(a)(3).” In re Amendments to Rules of Civil Procedure, 536 So.2d 974, 975, 978 (Fla.1988). Rule 1.140(a)(3) states:

[1]f the court, permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement .shall be served within 10 days after notice of the court’s action. Responses to the pleadings or statement shall be served within 10 days of service of the pleadings or statements.

(Emphasis added). As the emphasized portion shows, the ten-day time period in rule 1.140(a)(3) clearly refers only to responses to amended pleadings filed with the court’s permission or filed because the court has required them to be filed. Because the Civil Procedure Rules Committee amended rule 1.190(a) to conform with rule 1.140(á)(3), and rule 1.140(a)(3) does not refer to responses to amended complaints filed as a matter of course, this further demonstrates that the ten-day time period in rule 1.190(a) refers only to amended pleadings filed with the court’s permission rather than those filed in response to amended complaints filed as a matter of course.

Thus, the ten-day response time stated in rule 1.190(a) does not apply to amended pleadings like the amended complaint' in this case, which was filed as a matter of course before a responsive pleading was served. Here, Davis had twenty days to respond to New River’s Amended Complaint. See Fla. R. Civ. P. 1.140(a)(1). Davis was served with the Amended Complaint by mail on November 7, 2002. Pursuant to Florida Rule of Civil Procedure 1.090(e), five days for mailing are added to the twenty days given to Davis to file a response. Thus, the response to the Amended Complaint was due on December 2, 2002, making an entry of default on November 25, 2002 premature. Because the motion for default was entered prematurely, all the orders entered after this improper default order are void. See Employers’ Fire Ins. Co. v. Dep’t of Labor & Employment Sec., 629 So.2d 1118, 1118 (Fla. 1st DCA 1994).

Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


text:
    S.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5202.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

S.C., a child, appeals the trial court’s adjudication of delinquency and commitment to the Department of Juvenile Justice. Because the trial court erred in departing from the Department’s commitment recommendation, we reverse.

The reasons set forth by the trial court in support of departure must be supported by competent, substantial evidence, and the trial court’s reasoning must refer to the characteristics of the restrictiveness level in relation to the needs of the child. A.G. v. State, 737 So.2d 1244, 1248 (Fla. 5th DCA 1999). Where the trial court’s departure is based on evidence or factors considered by the Department, the trial court must explain why such evidence led the court to reach a different conclusion than the Department did. E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002). Here, the trial court failed to refer to the needs of the child or explain why its consideration of the evidence led to a different conclusion than that recommended by the Department. Therefore, we affirm the trial court’s adjudication of delinquency but reverse the disposition and remand the case to the trial court for further proceedings.

AFFIRMED in part, REVERSED in part and REMANDED.

DAVIS, LEWIS and POLSTON, JJ., CONCUR.


text:
    E.A.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5190.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his adjudication of delinquency based upon a determination by the trial court that he had committed what would be the offenses of possession of cocaine and attempted tampering with evidence were he an adult. He contends that the trial court should have granted his motion for judgment of dismissal. We agree.

The charges against appellant were based on circumstantial evidence, and the cocaine possession charge was predicated on the premise that appellant had constructive possession of the cocaine. As to the constructive possession charge, the evidence was insufficient, as a matter of law, to establish that appellant knew of the presence of the cocaine, knew of its illicit nature or had the ability to exercise control over it. See, e.g., C.M. v. State, 818 So.2d 554 (Fla. 2d DCA 2002); Daniels v. State, 111 So.2d 1113 (Fla. 4th DCA 2001); Woods v. State, 765 So.2d 255 (Fla. 2d DCA 2000); E.H. v. State, 579 So.2d 364 (Fla. 4th DCA 1991); Poitier v. State, 525 So.2d 472 (Fla. 5th DCA 1988). As to the tampering charge, the evidence was insufficient, as a matter of law, to establish that appellant attempted to alter, destroy, conceal or remove anything; or that he knew that an investigation was about to take place. See C.K. v. State, 753 So.2d 617 (Fla. 4th DCA 2000).

We reverse the adjudications of delinquency, and remand with directions that the trial court enter judgment dismissing the amended delinquency petition.

REVERSED and REMANDED, with directions.

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


text:
    Roger ROCKETTE, Appellant, v. SPACE GATEWAY SUPPORT and AIG Claims Services, Inc., Appellees.
    No. 1D03-2977.
    District Court of Appeal of Florida, First District.
    July 9, 2004.

      Patrick J. Deese, Melbourne; Bill McCabe, Longwood, for Appellant.
    Kristin L. March of DeCiccio & Johnson, Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation case, we affirm the impairment rating found by the judge of compensation claims notwithstanding the claimant’s contention that the issue of impairment was not before the judge, because the claimant failed adequately to preserve the issue. No objection was voiced at a ruling conference during which the judge summarized the evidence regarding impairment at some length and made findings on that issue; and no motion for rehearing was filed pursuant to Florida Workers’ Compensation Procedure Rule 4.141(b)(2) or Florida Administrative Code Rule 60Q-6.122(2)(b).

We do, however, reverse the denial of attendant care benefits for the periods from July 25 through August 6, 2001, and from July 26 through August 8, 2002, as not supported by competent, substantial evidence. On the contrary, the undisputed evidence supports this claim to the extent it was based on assistance provided by the claimant’s wife in bathing, dressing, administering medications and assisting with sanitary functions. See, e.g., Montgomery Ward v. Lovell, 652 So.2d 509, 511 (Fla. 1st DCA 1995); Constr. Finishing v. Combs, 569 So.2d 919, 920 (Fla. 1st DCA 1990). Moreover, the fact that the claimant’s treating physician did not prescribe attendant care is not, as the judge appeared to believe, determinative of the claimant’s right to recover such benefits. It is sufficient that the physician provided the necessary testimony at the hearing. Attitudes & Trends v. Arsuaga, 616 So.2d 1103, 1103 (Fla. 1st DCA 1993). Because we reverse the denial of attendant care benefits, we must also reverse the denial of penalties, interest and attorneys’ fees.

We affirm in part, reverse in part, and remand. On remand, the judge shall revisit the attendant care issue, and make findings of fact as to the number of hours reasonably expended by the claimant’s wife for care that went beyond ordinary household duties and the hourly rate of pay for that care as provided in section 440.13(2)(b), Florida Statutes (2001). The judge shall also revisit the issue of the claimant’s entitlement to penalties, interest and attorneys’ fees.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

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


author: WOLF, C.J.

text:
    BERTANY ASSOCIATION FOR TRAVEL AND LEISURE, INC., Business Association for Trade and Labor, Inc., Quik Quote Insurance Brokers, Inc., Susan Pine, and Ray Pinto, Appellants, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Office of Insurance Regulation, Appellee.
    No. 1D03-2635.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    Edward W. Dougherty, Jr. and Thomp-kins W. White, of Igler & Dougherty, P.A., Tallahassee, for appellants.
    Clifford A. Taylor, Assistant General Counsel, Office of Insurance Regulation, Tallahassee, for appellee.
   WOLF, C.J.

This is an appeal of an Immediate Final Order (“IFO”) issued by the Department of Financial Services, Office of Insurance Regulation (“OIR”) against appellants Susan Pine and Ray Pinto who are the corporate officers of appellants Bertany Association for Travel and Leisure, Inc. (Bertany), Business Association for Trade and Labor, Inc. (BAFTAL), and Quik Quote Insurance Brokers, Inc. (QQIB). The IFO involves the sale and administration of a health insurance product not authorized by the State of Florida. Because we find on its face the IFO sufficiently states particularized facts showing an immediate danger to the public welfare, we affirm.

The IFO was rendered pursuant to section 120.569(2)(n), Florida Statutes (2003), which provides in relevant part:

If an agency head finds that an immediate danger to the public health, safety, or welfare requires an ’immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or enjoinable from the date rendered.

The IFO “must allege facts showing that specific incidents of irreparable harm to the public interest will occur without an immediate cease and desist order.” Commercial Consultants Corp. v. Dep’t of Bus. Reg., Div. of Fla. Land Sales & Condos., 363 So.2d 1162, 1164 (Fla. 1st DCA 1978). In order to satisfy due process requirements, this court held in Premier Travel International, Inc. v. State of Florida Department of Agriculture & Consumer Services, 849 So.2d 1132 (Fla. 1st DCA 2003), that an IFO must contain factual allegations demonstrating the following:

1. The complained of conduct was likely to continue.
2. The order was necessary to stop the emergency.
3. The order was sufficiently narrowly tailored to be fair.

Id. at 1132-1135.

On appeal, appellants’ primary attack is on the first requirement, focusing on the lack of allegations establishing the “immediacy” of the alleged harm and whether there is a pattern of conduct likely to continue. In Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979), we emphasized that allegations of past conduct could reflect the continuing nature of the offense. Id. at 1082. See also Stock v. Dep’t of Banking & Fin., 584 So.2d 112, 115 (Fla. 5th DCA 1991) (“There is ample precedent supporting the suspension of a licensee upon showing of past harm when the harm is sufficiently serious and of a nature likely to be repeated.”). Appellants rely on Premier Travel and Crudele v. Nelson, 698 So.2d 879 (Fla. 1st DCA 1997), for the proposition that the IFO should be reversed because the facts fail to establish the continuing nature of the alleged danger to the public. Unlike this case, in Premier Travel the IFOs did not indicate that the alleged conduct was likely to continue. Premier Travel, 849 So.2d at 1135. In Crudele, there were no allegations or findings suggesting anything in Crudele’s history that would support an inference of continuing bad conduct. Crudele, 698 So.2d at 880. Moreover, this court found it important that Crudele’s conduct upon which the emergency order was based occurred “well over two years before the issuance of the emergency order of suspension.” Id.

Unlike the orders in Premier and Cru-dele, the IFO against appellants contains allegations of past and recent conduct which would support an inference that appellants’ unauthorized activity may continue absent a cease and desist order. The IFO alleges that appellants previously were involved with the unauthorized administration of health insurance products. It further alleges that in February 2003, appellants were advised by the issuer of a health insurance product not authorized in Florida that they were not to sell the product. Despite this notification, appellants began a marketing operation of the unauthorized product in February 2003. As of March 2003, appellants had sold approximately ten unauthorized policies. In April 2003 an agent had sold two more unauthorized policies through appellant BAFTAL which were to start in May 2003. As of the date of the order, May 23, 2003, there were two-thousand unrevoked solicitations for the unauthorized product and appellants were still advertising health insurance on a website. These allegations of previous conduct coupled with the allegations regarding the recent conduct were sufficient to establish the continuing nature of appellants’ conduct.

Appellants also argue the IFO is not narrowly tailored to be fair. The de-cretal portion of the IFO orders appellants to stop selling unauthorized products or acting as unauthorized administrators. Specifically, appellants are ordered to “CEASE AND DESIST from the transaction of any new or renewal insurance business as or on behalf of unauthorized insurers.” Appellants are also required to notify their agents and members that no further applications would be accepted for any unauthorized product in Florida, and appellants are required to provide the OIR an accounting of all premiums or dues collected and health claims paid or incurred since the marketing operation of the unauthorized product in February 2003. We reject appellants’ argument that these requirements were the equivalent to a suspension of their licenses. Cf. Premier Travel (involving IFOs which suspended appellants’ registrations, required them to cease operation as sellers of all travel, and required appellants to stop selling any business opportunities); Crudele (reversing IFO where Insurance Commissioner suspended all insurance licenses in appellant’s name). The IFO does not suspend or affect the status of appellants’ licenses to sell legitimate and authorized insurance products, and appellants are still allowed to conduct legitimate business. See White Const. Co., Inc. v. State, Dep’t of Transp., 651 So.2d 1302, 1305 (Fla. 1st DCA 1995) (upholding IFO, finding that the action of placing a limer-ock pit on conditional status to pretest the limerock for stability, rather than suspending or revoking approval of the mine, was narrowly tailored).

Because the IFO is legally sufficient, we affirm.

ERVIN and VAN NORTWICK, JJ., CONCUR.

      . The IFO was issued against seven other individuals or entities who have not joined in the appeal.


author: VILLANTI, Judge.

text:
    Timothy Fredrick BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5580.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.
   VILLANTI, Judge.

In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), Timothy Fredrick Baker alleges his appellate counsel was ineffective for failing to argue on direct appeal that certain jury instructions given in his trial amounted to fundamental error. We agree that appellate counsel rendered ineffective assistance when he neglected to raise this issue and therefore grant the petition and allow Baker a belated appeal on this issue only.

Baker was charged with aggravated battery with a deadly weapon emanating from a love triangle that provoked a melee in a woman’s apartment. According to the victim’s trial testimony, the victim and Baker’s “off and on” girlfriend were sitting clothed on the bed in the girlfriend’s apartment when Baker entered the bedroom and started punching the girlfriend. The victim came to her defense, at which time Baker retrieved a knife from the kitchen and stabbed the victim. The girlfriend’s testimony was consistent with the victim’s account.

Baker’s testimony provided a different version of the events. He testified that he walked in on his “off and on” girlfriend and the victim while they were engaged in sexual acts. The victim then attacked him, and a fight ensued. Baker fell, and the victim went into the kitchen and returned with a knife. Baker testified that he and the victim struggled over the knife until he was able to get it out of the victim’s hand and throw it in the kitchen.

The trial court instructed the jury on the justifiable use of deadly force as follows: “However, the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. Timothy Frederick [sic] Baker was attempting to commit, committing or escaping after the commission of aggravated battery with a deadly weapon....” Baker’s trial counsel did not object to this instruction. Therefore, to have been raised on appeal, the instruction would have had to amount to fundamental error. Baker alleges in his petition that appellate counsel’s failure to argue that the instruction was fundamental error constituted ineffective assistance of appellate counsel.

At the time appellate counsel filed his brief in this case, two cases from the Fourth District were instructive on this issue: Giles v. State, 881 So.2d 1263 (Fla. 4th DCA 2002), and Fair v. Crosby, 858 So.2d 1103, 1104-05 (Fla. 4th DCA 2003). In Giles, the defendant was charged with aggravated battery. Over defense counsel’s objection, the jury was instructed that the “use of force not likely to cause death or great bodily harm is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.” Giles, 831 So.2d at 1265. In holding that the instruction constituted reversible error, the court stated:

The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that [section] 776.041(1) would apply to preclude a self defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense.

Id. at 1266. This reasoning certainly applied in Baker’s case. Giles did not answer, however, whether giving such an instruction was fundamental error.

In Fair, however, the Fourth District held that the failure of appellate counsel to argue on direct appeal that the giving of such a jury instruction constituted fundamental error amounted to ineffective assistance of appellate counsel.

The possibility that such an instruction may have confused the jury sufficiently so as to negate petitioner’s defense of self-defense is such that we believe the issue should have been raised in the context of petitioner’s direct appeal. The fundamental nature of the error can be gleaned only from a review of the full record on appeal.

858 So.2d at 1104-05. See also Estevez v. Crosby, 858 So.2d 376, 377 (Fla. 4th DCA 2003). With these cases from the Fourth District in his arsenal, appellate counsel’s failure to argue that the instruction given in Baker’s trial was fundamental error was ineffective assistance of appellate counsel.

Accordingly, we grant Baker’s petition for ineffective assistance of appellate counsel. Because the determination as to whether the error was indeed fundamental requires a review of the full record on appeal, we grant the petition with instructions to the trial court, within thirty days from the date of the issuance of the mandate in this case, to appoint an appellate attorney to file a brief limited to the issue outlined above. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.

COVINGTON and WALLACE, JJ„ Concur.

      . The instruction was based on section 776.041(1), Florida Statutes (2000).

      . After appellate counsel filed Baker’s initial brief, the Fourth District held in Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003), that giving an instruction such as the one given in Baker’s case constituted fundamental error. Thus the court reversed the defendant's aggravated battery conviction even though defense counsel did not object to the instruction. This court reached a similar conclusion in
        Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004).


text:
    Thomas Alan SIGLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1573.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.

      Thomas Alan Sigler, Arcadia, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Thomas Sigler (defendant) appeals the summary denial of what the trial court properly deemed to be a rule 3.800(a) motion to correct illegal sentence. He challenges his “sexual predator” status. We affirm.

The defendant first contends that his sexual predator designation must be stricken pursuant to State v. Robinson, 873 So.2d 1205 (Fla.2004). In Robinson, the Supreme Court issued a narrow holding that the designation as a sexual predator violates the defendant’s right to due process of law in situations where the defendant is not convicted of an offense involving a sexual act. The Robinson case is inapplicable here because this case involves a conviction for forcing or enticing a child to commit a lewd, lascivious, or indecent act; clearly, an offense that involves a sexual act.

Next, the defendant asserts that the Florida Sexual Predator Act is facially unconstitutional as being violative of procedural due process, citing to Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003). However, this court, as well as all of the other district courts, have disagreed with Espindola and certified conflict therewith. See Frazier v. State, 29 Fla. L. Weekly D369, 2004 WL 221043, — So.2d - (Fla. 1st DCA Feb.6, 2004); Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), rev. granted, 859 So.2d 514 (Fla.2003).

We therefore affirm and once again certify conflict with Espindola.

AFFIRMED.

PALMER, MONACO and TORPY, JJ., concur.

      . See Fla. R.Crim. P. 3.800.


text:
    Robert DUHAIME, Appellant, v. Jack Edward BOGGS, Appellee.
    No. 5D03-3263.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    John S. Mills of Mills & Carlin, P.A., Jacksonville, for Appellant.
    Richard A. Sherman, Sr., of Richard A. Sherman, P.A., Ft. Lauderdale, and Cho-bee Ebbets of Ebbets, Armstrong & Traster, Daytona Beach, for Appellee.
   PER CURIAM.

The issue in this chain-collision case is whether Appellee (defendant below), the driver of the last motor vehicle involved in the series of collisions, sufficiently rebutted a presumption of negligence such that the issue of liability was properly submitted to the jury, notwithstanding Appellant’s (plaintiff below) Motion for Directed Verdict. We hold that the evidence, and reasonable inferences therefrom, when interpreted in the light most favorable to Appellee, did suffice to rebut the presumption. We, therefore, affirm.

In the afternoon, on an interstate overpass, during light to moderate rain, four vehicles heading in the same direction were involved in a series of collisions. The first vehicle was stationary, stopped at a red light. The driver of the second vehicle, traveling 15-20 miles per hour (well within the speed limit), crested the overpass, saw the vehicle ahead of her, but when she attempted to brake, skidded on a slippery substance and lightly struck the first car. As Appellant crested the same overpass, he observed the cars stopped m front of him, tried to slow down, skidded on the same slippery substance and collided with the second car. Lastly, Appellee, as he crested the overpass, saw Appellant sliding, attempted to brake, skidded and struck Appellant’s vehicle shortly after it collided with the preceding vehicle. Although the record is unclear as to the precise nature and extent of the slippery substance, based on how it was described by witnesses, the judge and jury could have reasonably inferred that it was unforeseen (something more than a wet road) and hidden from the view of drivers approaching the overpass.

Appellant timely sought a directed verdict on liability at the close of the evidence, arguing that Appellee had failed to rebut the presumption of negligence that attached to Appellee’s act of rear-ending Appellant’s vehicle. The trial court denied the motion and allowed the case to proceed to the jury. The jury, thereafter, returned a defense verdict.

The question of whether the presumption of negligence was overcome in this case is resolved by application of the following standard:

When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, the impact of “the presumption is dissipated.” Whether the ultimate fact has been established must then be decided by the jury from all of the evidence before it without the aid of the presumption.

Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573 (Fla.2001). Here, we agree with the trial judge that the evidence was sufficient to overcome the presumption. Three drivers, all apparently operating at safe speeds, encountered an unforeseen, slippery substance on the road, hidden from view, located just at the point where, because of the circumstances, braking became critical. By the time Appellee crested the overpass, he was confronted with the added hazard of one collision having just occurred and one collision about to occur. He essentially had no way to stop or otherwise avoid the accident. Under these unique circumstances, we think the jury was properly permitted to decide whether Appellee’s actions constituted a breach of the applicable duty of care.

We have considered Appellant’s other point on appeal but find that it is without merit.

AFFIRMED.

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


author: POLSTON, J.

text:
    FLORIDA CAUCUS OF BLACK STATE LEGISLATORS, INC. d/b/a/ Florida Conference of Black State Legislators, et al, Appellants, v. James CROSBY, in his official capacity as Secretary of the Florida Department of Corrections, Appellee.
    No. 1D03-3370.
    District Court of Appeal of Florida, First District.
    July 14, 2004.

      ■ Randall Marshall, Esquire, ' ACLU of Fla. Foundation, Inc., Miami; Randall C. Berg, Jr., Esquire and Peter M. Siegel, Esquire of Florida Justice Institute, Inc., Miami, for Appellants.
    Charlie Crist, Attorney General; James A. Peters, Special Counsel, Office of the Attorney General, Tallahassee, for Appel-lee.
    Deborah Goldberg and Jessie Allen, Brennan Center for Justice at NYU School of Law, New York, NY, Amicus Curiae.
   POLSTON, J.

Appellants brought an action seeking a writ of mandamus, or injunctive and declaratory relief, to compel the Secretary of the Florida Department of Corrections to comply with section 944.293, Florida Statutes (2002), which states:

Initiation of restoration of civil rights.— With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall assist the offend- ' er in completing these forms and shall ensure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision.

(Emphasis added). The trial court entered a final judgement on July 25, 2003, granting retroactive relief for the offenders who were released from prison or supervision during the period between 1992 and 2001. The retroactive relief is not at issue in this appeal. Because the trial court had previously dismissed the mandamus portion of appellants’ complaint, no prospective relief was granted. Appellants argue on appeal that this Court should reverse the trial court’s order dismissing the petition for a writ of mandamus and remand with instructions to issue the writ requiring compliance with section 944.298. We agree.

I.

Although an “E-list” or “E-application” is deemed the requisite application by the Office of the Governor, the parties agreed at oral argument that 85% of all offenders must also submit form ADM 1501A to seek restoration of their civil rights. It is undisputed that form ADM 1501A was not being provided to offenders prior to their discharge. Accordingly, the Department is not complying with the requirement of section 944.293 to provide “other forms required for the restoration of civil rights” to offenders prior to their discharge.

The trial court ruled that mandamus was not appropriate because the Department’s statutory obligations are discretionary, rather than ministerial. Because the legislature chose to use the word “shall” throughout section 944.293, the Department’s obligations are not discretionary. See Osterback v. Singletary, 679 So.2d 43, 44 (Fla. 1st DCA 1996) (reversing the trial court’s order denying petition for writ of mandamus with directions to grant the petition because the defendant was excluded from the hearing when the applicable statute stated that the defendant “shall be present at the hearing”); Stanford v. State, 706 So.2d 900, 902 (Fla. 1st DCA 1998) (stating that the normal meaning of the word “shall” is mandatory).

The trial court also ruled that mandamus was not appropriate because the Department’s statutory obligations are not clearly stated in section 944.293. Generally, an “extraordinary writ of mandamus may not be used to establish the existence of an enforceable right, but rather only to enforce a right already clearly and certainly established in law.” Sancho v. Joanos, 715 So.2d 382, 385 (Fla. 1st DCA 1998). However, “[t]he fact that we may need to examine and interpret the statute in order to determine whether there is such a right [for the petitioner] does not make the right any more or less ‘clear.’ ” Schmidt v. Crusoe, 878 So.2d 361, 363, 2003 WL 1987971 (Fla. May 1, 2003) (granting petition for writ of mandamus), motion for reh’g filed, No. SC00-2512 (Fla. May 21, 2003). While we agree with the trial court that the Department’s statutory obligations are ambiguous, according to Schmidt, it is appropriate for us to interpret an ambiguous statute and then determine it to be sufficiently “clear” for the purpose of mandamus. Our standard of review in interpreting section 944.293 is de novo. See State v. Phillips, 852 So.2d 922, 923 (Fla. 1st DCA 2003) (ruling that the “court’s interpretation of the statute is one of law; therefore, our review standard is de novo”).

II.

The first requirement of section 944.293 is: “Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights.” (Emphasis added). Appellants do not contest whether the Department obtained form ADM 1501A from the Governor, but rather they contend that the required form must be given to the offenders in order to assist the offenders as required by the last sentence of section 944.293: “The authorized agent shall assist the offender in completing these forms and shall ensure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision.” Although the last sentence of section 944.293 requires the Department to assist the offender, what specifically is expected of the Department is ambiguous.

We agree with the appellants that reading these provisions together requires the Department to provide the requisite forms to the offenders prior to their discharge. See Young v. Progessive S.E. Ins. Co., 753 So.2d 80, 84 (Fla.2000) (stating that “[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another;” quoting from Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)). We also agree with the appellants that the Department must then assist the offenders in’ completing the required forms as stated in the statute. But the Department cannot force its assistance on the offenders and require them to complete the forms. Accordingly, we construe the statute to require the Department to offer its help in completing the forms and then respond with assistance when requested by the offenders. See Merriam-Webster’s Collegiate Dictionary 70 (10th ed.1993) (defining “assist” as to “stand by”). The appellants expressly stipulated to the trial court that they do not contend that the Department has ever refused a request by an inmate for assistance in applying for the restoration of voting rights.

We agree with the Secretary of the Department that the Florida Constitution expressly vests power to grant pardons and clemency solely with the executive branch. See Art. IV, § 8, Fla. Const.; Parole Comm’n a. Lockett, 620 So.2d 153, 157 (Fla.1993); Randall v. F.D.L.E., 791 So.2d 1238, 1241 (Fla. 1st DCA 2001), rev. dismissed, 845 So.2d 892 (Fla.2003). However, the Department is a creature of the Florida Legislature, see § 20.315, Florida Statutes (2002), and the Legislature has directed the Department to help offenders' with their applications through section 944.293. Although the Secretary of the Department is appointed by the Governor, subject to confirmation by the Senate, and serves at the pleasure of the Governor, the Secretary “shall ensure that the programs and services of the department are administered in accordance with state and federal laws, rules, and regulations, with established program standards, and consistent with legislative intent.” See § 20.315(3), Fla. Stat. (emphasis added). The legislature is not violating separation of powers, see Art. II, § 3, Fla. Const., by requiring the Department to provide these services to offenders because the statute does not limit the Governor’s sole discretion to restore civil rights and there is no contrary Florida Constitutional restriction.

Conclusion

Therefore, we reverse the trial court’s order dismissing the petition for a writ of mandamus and remand with instructions to issue the writ requiring the Department to provide the offenders with an application and any other forms necessary to obtain the Governor’s review for restoration of civil rights, and to inform them that the Department will assist in the preparation of the forms upon their request, prior to their discharge.

REVERSED and REMANDED with instructions.

WEBSTER and VAN NORTWICK, JJ., concur.

      . The Department “shall obtain” the required application and forms, "shall assist the offender in completing these forms,” and "shall ensure” the documentation is forwarded to the Governor before the offender’s discharge. § 944.293, Fla. Stat. (Emphasis added).


text:
    James HAWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5296.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Christopher J. Anderson, Atlantic Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, James Hawley, appeals from the trial court’s order denying his post-conviction claim under Florida Rule of Criminal Procedure 3.850, following an evi-dentiary hearing. Hawley contends the trial court erred in concluding that he failed to prove his trial counsel provided ineffective assistance, because the undisputed facts show that counsel advised him to enter a conditional plea of nolo conten-dere in which he reserved the right to appeal certain speedy-trial issues, yet counsel failed to preserve those issues for appeal. We affirm the trial court’s conclusion that Hawley failed to show that he was prejudiced by trial counsel’s affirmative misadvice.

Hawley entered into a negotiated plea of nolo contendere in which- he specifically reserved the right to appeal three orders of the trial court denying motions pertinent to his right to a speedy trial. This court affirmed his convictions in an opinion holding, in part, that Hawley did not preserve two of the three issues, because trial counsel, had failed to file a notice of expiration of speedy trial time, and, thus, the unpreserved issues could not be considered dispositive of his case. Hawley v. State, 702 So.2d 1357 (Fla. 1st DCA 1997).

Hawley filed a 3.850 motion, claiming that his plea was involuntary, and that trial counsel had provided ineffective assistance by failing to preserve the issues for appeal, because Hawley had entered into the plea agreement with the understanding that he would have the right to appeal such issues. The trial court summarily denied the motion, but, on appeal from the order, this court, in Hawley v. State, 822 So.2d 552 (Fla. 1st DCA 2002), reversed and remanded the case for an evidentiary hearing, holding that Hawley had sufficiently alleged a prima facie ground for relief. See, e.g., Seaborne v. State, 789 So.2d 1244 (Fla. 1st DCA 2001); Levine v. State, 788 So.2d 379 (Fla. 4th DCA 2001) (on reh’g); Zambuto v. State, 731 So.2d 46 (Fla. 4th DCA 1999); Ashley v. State, 611 So.2d 617 (Fla. 2d DCA 1993); Helms v. State, 573 So.2d 116 (Fla. 2d DCA 1991).

On remand, the trial court considered whether Hawley was entitled to a new trial, because his plea was involuntary as a result of counsel’s misadvice. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (stating that the trial court must determine whether the defendant established that he was prejudiced by counsel’s misadvice, by proving there is a reasonable probability that, absent counsel’s erroneous assurances, he would not have pled and would have insisted on going to trial). To decide this, the trial court was required to evaluate the credibility of Hawley’s assertion that if he had been correctly made aware of his rights by counsel, he would have gone to trial rather than enter a plea of nolo. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004).

Trial counsel George Yazgi disclosed at the evidentiary hearing that the state had submitted several plea offers which Hawley had declined, but that after trial commenced, Hawley’s co-defendant, Richard Lanier, reached a plea agreement with the state in which he agreed to testify against Hawley, whereupon Hawley, who was facing a possible sentence of 25 years to life in prison, immediately took the offer of 15 years’ incarceration, reserving the right to appeal the speedy-trial issues. Yazgi testified that he thought Hawley’s chances at trial were good only until Lanier flipped, at which point he recommended taking the plea offer. He said he believed he had preserved the speedy-trial issues for appeal. The trial court denied Haw-ley’s motion, finding that Hawley’s motive for entering into the plea agreement was to avoid trial once Lanier decided to testify against him, and that preservation of the speedy-trial issues was not an inducement in reaching his plea agreement.

'On review of ah order denying a 3.850 motion after an evidentiary hearing, this court must defer to the trial court’s factual findings so long as they are supported by competent substantial evidence (CSE). Nixon v. State, 857 So.2d 172, 175 n. 7 (Fla.2003), cert. granted, - U.S. -, 124 S.Ct. 1509, 158 L.Ed.2d 152 (2004). Hawley fails to show a lack of CSE for the trial court’s factual determination that he entered his plea freely and voluntarily for the purpose of avoiding a trial at which his co-defendant and the victim would testify against him, and that he would not have gone to trial if he had been aware that counsel had not preserved the speedy-trial issues for appeal.

AFFIRMED.

ERVIN, ALLEN and HAWKES, JJ., concur.


author: ALLEN, J.

text:
    G.H. SKIPPER, INC., Appellant, v. CITY OF PENSACOLA, a Municipal Corporation, d/b/a/ Energy Services of Pensacola, Appellee.
    No. 1D03-4652.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Robert A. Emmanuel and H. Wesley Reeder of Emmanuel, Sheppard & Con-don, Pensacola, for Appellant.
    F. Alan Cummings and S. Elysha Luken of Smith, Currie & Hancock LLP, Tallahassee, for Appellee.
   ALLEN, J.

The appellant, G.H. Skipper, Inc. (Skipper), challenges a summary final judgment in favor of the appellee, the City of Pensacola, doing business as Energy Services of Pensacola (the City), in Skipper’s action alleging breach of contract. Because we conclude that the provision of the parties’ contract upon which the trial court’s ruling was based does not clearly and unambiguously entitle the City to judgment in its favor, we reverse the order under review.

Skipper contracted with the City to construct and install natural gas pipelines and service lines as required by the City over a three-year period. The contract provided that Skipper would be entitled to payment at specified unit rates based on the quantity and nature of the materials, equipment, and labor actually provided. Skipper filed a complaint alleging that the City had breached the contract by performing itself a substantial portion of the work referenced in the contract. Skipper alleged that this constituted a breach because the contract contemplated that, except in limited circumstances not material to Skipper’s theory of recovery, Skipper would perform all natural gas pipeline and service line construction and installation required by the City during the term of the contract. The trial court ultimately entered summary final judgment for the City based upon a determination that section 2.14 of the contract afforded the City an unlimited right to use any firm or entity it desired for performance of the work referenced in the contract, and that this right included the right of the City to perform the work itself.

Section 2.14 provides:

Use of other Contractors: The Contractor agrees to allow the City to retain the services of another firm or entity other than the Contractor to perform the scope of services as identified in this specification.

This provision is internally ambiguous because it references the “services identified in this specification” but fails to identify any services as being within the specification. Comparison of the sections appearing in the contract with those referenced in the contract’s table of contents, and comparison of the language used in sections 2.14 and 2.15, might lead one to surmise that the services referenced in section 2.14 were limited to “placement of pipes in joint trenches,” as discussed in section 2.15. But a plain reading of the contract does not necessarily lead to this conclusion. Indeed, a plain reading of the contract provides no clear indication as to what meaning the parties intended to convey by their reference to “services as identified in this specification.”

Even setting aside this internal ambiguity and assuming that “services as identified in this specification” includes all contract work, section 2.14 still does not give the City a clear right to perform the contract work itself. Section 2.14 involves the City’s “Use of other Contractors.” Apart from the fact that the provision makes no reference to the City performing the work itself, expansion of the term “other Contractors” to include the City is difficult to reconcile with other provisions of the contract specifying particular circumstances under which the City would be permitted to self-perform contract work (upon Skipper’s default or failure to make necessary repairs to defective materials or work). If the parties had intended to give the City an unlimited right to self-perform the contract work, it seems that there would have been no reason to include provisions regarding specific circumstances in which this overriding and unlimited right could be exercised.

Further, construing the term “other Contractors” to include the City would appear to conflict with the objective of section 1.09 of the contract. That section authorizes the City to engage third parties to perform portions of the contract work when the City believes that improved efficiencies could thereby be achieved. But it specifically provides that any third party so engaged will be required to perform its work under the same terms and conditions specified in the City’s contract with Skipper. Some portions of the work Skipper was to perform were likely more profitable than other portions of the work. If the City were permitted to selectively contract with others to perform the potentially more-profitable portions of the work, but at unit rates below Skipper’s unit rates under the contract, the City could thereby reduce its overall costs for the contract work. The parties apparently intended by their inclusion of section 1.09 to foreclose this possibility and to eliminate any financial incentive the City might have to allow parties other than Skipper to perform portions of the contract work. Construing section 2.14 as allowing the City an unlimited right to self-perform the contract would give the City the very incentive the parties apparently intended to take away by including section 1.09 in the contract. Under such a construction, the City would be free to itself perform any portions of the contract work that it could perform at less cost than would be due Skipper under the parties’ contract.

Because section 2.14 of the parties’ contract is internally ambiguous and does not give the City a clear and unlimited right to perform the contract work itself, the summary final judgment is reversed and this case is remanded.

BOOTH and-BARFIELD, JJ., concur.


text:
    Larry WILLIAMS, Appellant, v. WORLDWIDE FLIGHT SVCS. INC., and Arthur Ambruster, Appellees.
    No. 3D03-3385.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    J.H. Zidell, for appellant.
    Akerman Senterfitt and Rexford H. Stephens, and Harold E. Morían, II, and Ena T. Diaz, Miami; and Baker & Hostetler and Denis L. Durkin and Celina Candes, Orlando, for appellees.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Larry Williams appeals the dismissal of his complaint with prejudice for failure to state a cause of action for intentional infliction of emotional distress and for negligent retention. We affirm because the facts do not rise to the level of outrageous conduct required under Florida law to maintain an action for intentional infliction of emotional distress.

Williams is a former employee of appel-lee Worldwide Flight Services, Inc. where he worked under the supervision of appel-lee Arthur Ambruster, Worldwide’s general manager. .In his Amended Complaint, Williams alleged that Worldwide and Am-bruster intentionally discriminated against him due to his African-American race. Ambruster, as well as other Worldwide supervisory employees, called him a “nigger” and “monkey” in front of him, other employees, over the “walkie talkie,” and over the work radio. Ambruster repeatedly told him that he did not want Ambrus-ter’s “black ass” there. Ambruster also instructed Eileen Motte, another supervisor, to “create a record” of false disciplinary related incidents for Williams so as to justify Williams’ subsequent termination. Motte did not allow Williams to work with other African-American employees because “niggers will steal if they are left to work together.” Worldwide also falsely accused Williams of stealing. Ambruster constantly and persistently threatened Williams with job termination for no apparent reason. Ambruster. also directed Williams to load and/or unload aircraft in inclement and dangerous weather conditions, to move dangerous heavy equipment and cargo, and to work extra flights thereby “eliminating” Williams’ break times. The trial court subsequently dismissed Williams’ amended complaint with prejudice.

In order to state a cause of action for intentional infliction of emotional distress in Florida, it must be shown that: (1) the wrongdoer’s conduct was intentional or reckless; • (2) the conduct was outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. De La Campa v. Ghifols America, Inc., 819 So.2d 940, 943 (Fla. 3d DCA 2002). Outrageous conduct is conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985). See also Scheller v. American Med. Int’l, Inc., 502 So.2d 1268, 1271 (Fla. 4th DCA 1987). Liability, however, does not extend to mere insults, indignities, threats, or false accusations. See Scheller, 502 So.2d at 1271. See also Food Lion, Inc. v. Clifford, 629 So.2d 201, 202-03 (Fla, 5th DCA 1993)(stating that a false accusation of theft was insufficient to support a cause of action for intentional infliction of emotional distress where the employer terminated an at-will employee).

We agree with the trial court that the conduct Williams complained of did not rise to the level that may be reasonably regarded as so extreme and outrageous so as to permit him to recover in an action for intentional infliction of emotional distress. If the allegations in Williams’ complaint are taken as true, we do find that the allegations reflect conduct that is reprehensible, objectionable, and offensive. The allegations, however, are alone insufficient under Florida law to support a cause of action for intentional infliction of emotional distress. Compare with Nims v. Harrison, 768 So.2d 1198, 1199 (Fla. 1st DCA 2000)(where the allegations involved, unlike here, death threats, and threats to rape the plaintiffs children and other family relatives). We also do not see how the physical activities the employer subjected Williams to were sufficient to satisfy the physical contact requirement normally associated with the outrageous conduct necessary to state a valid claim for intentional infliction of emotional distress. Compare with Johnson v. Thigpen, 788 So.2d 410, 412 (Fla. 1st DCA 2001)(where the allegations involved, unlike here, repeated acts of offensive physical-contact sexual in nature).

This Court notes the number of state and federal remedies available to individuals who claim that they have been discriminated against in the workplace on the basis of their race. Williams could have pursued any of these remedies, and instead he elected not do so. The record does not reflect that Williams filed any discrimination charges in state court pursuant to sections 760.01-760.11, Florida Statutes (2004) (“Florida’s Civil Rights Act of 1992”), or in federal court pursuant to Title VII of the 1964 Civil Rights Act against Worldwide or Ambruster. Additionally, there is no evidence that Williams filed any discrimination charges with the Equal Employment Opportunity Commission (EEOC).

We therefore affirm the dismissal of the claim for intentional infliction of emotional distress, and likewise find no error in the trial court’s dismissal of the negligent retention claim.

Affirmed.


author: RAMIREZ, J.

text:
    Eric DE LA PORTILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2100.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Eric de la Portilla appeals his final judgment of conviction and sentence that followed a jury guilty verdict of battery on a police officer, resisting an officer with violence, and a guilty verdict of resisting an officer without violence. Because there is no reversible error in the trial courts rulings on the scope of the cross-examination of adverse witnesses at trial, or in the trial courts findings at sentencing, we affirm.

During the cross-examination at trial of police officer Gustavo Carreras, defense counsel inquired of Officer Carreras whether he had ever been under investigation for the use of force. The prosecution objected. At sidebar, defense counsel proffered that Officer Carreras had been the subject of four use of force investigations and that the allegations involved a broken bone, bruises or abrasions, unrelated injury, and sprain or strain. Defense counsel also proffered that the other officers involved in the subject incident had also been involved in similar use of force investigations. The defense argued that the prior investigations went directly to the issue of the bias and motive of the officers to testify falsely. The trial court ruled that defense counsel could not cross-examine the officers about any prior investigations in which the charges of excessive use of force consisted of unfounded allegations.

The trial court heard further argument from the parties and reviewed legal authority on the proper scope of cross-examination on the issue of prior investigations that involved unsubstantiated claims of excessive use of force. The trial court then allowed defense counsel to inquire into the officers prior instances that involved excessive use of force and ruled as follows:

THE COURT: I will allow the defense then to go into the prior instances and if what you are telling me is correct, the witness will say that they are unsubstantiated and that’s it.

Over the States objection, the Court further ruled as follows:

THE COURT: The defense will be allowed to go into the pending investigation as permitted by some of the cases that the defense has provided me, including the Mosley [v. State] case from the Third District cited at 616 So.2d 1129, Third District, 1993.

Officer Carreras cross-examination continued. Defense counsel questioned him about the departmental process used when a use of force report is filed. Defense counsel also asked Officer Carreras whether he recalled 1997 use of force reports. Officer Carreras did not recall. The following transpired:

DEFENSE COUNSEL: Let me see if this jogs your memory. There was a use of force for hands and arms and injury with some broken bones and fracture.
PROSECUTOR: Objection, Judge. Improper impeachment.
DEFENSE COUNSEL: I am not trying to impeach him.

At sidebar, the following transpired:

THE COURT: Counsel, are these all the allegations that were substantiated? DEFENSE COUNSEL: I believe he answered.
THE COURT: He said they were substantiated, they were because of incidents prior or he didn’t say how many, but in particular as far as an open investigation, I will allow it.
DEFENSE COUNSEL: Am I allowed to ask him how many times they were substantiated? I can go into them?
THE COURT: Yes.
PROSECUTOR: Judge, I would ask for a curative instruction based on asking about broken bones.

The court instructed the jury to disregard defense counsels last question in its entirety. Officer Carreras subsequently testified that he had been subjected to prior use of force complaints and that the use of force complaint that de la Portilla initiated remained pending.

On re-direct examination, Officer Carr-eras testified that the initiation of a complaint was quite simple and that such complaints were common in battery on a law enforcement officer cases. He testified about the officers arrest of de la Portilla and their use of force.

Two other officers involved in de la Por-tillas arrest also testified. Defense counsel likewise questioned these officers about the officers prior-investigations into their use of excessive force. Officer Yaniel Hernandez testified that he had complaints filed against him for excessive use of force, but that none of those complaints had ever been substantiated. He also testified that de la Portillas complaint against him for use of excessive force was pending. Officer Jorge Carreno testified that he had other prior complaints filed against him, but that de la' Portillas complaint was the first complaint for use of excessive force which he had received in his fifteen years of service. De la Portilla testified that he had not used any violence against the officers when they arrested him, and that the officers had beaten him after they handcuffed him.

The defense moved for a judgment of acquittal and renewed its objection to the trial courts refusal to allow the defense to examine the officers about the officers pri- or use of force investigations. The court overruled the defense objection because the prior complaints were unsubstantiated and the States inquiries had not opened the door to permit the defenses line of questioning.

De la Portilla argues that the trial court refused to allow the defense to impeach the officers testimony by questioning them about their prior police investigations into the use of excessive force, and that this type of questioning was relevant to the officers credibility to demonstrate the officers bias and motive for testifying. He further, argues that the trial court refused to allow the defense to inquire into the details of those prior investigations.

We do not agree with de la Por-tilla that the trial court abused its discretion in its ruling on the scope of the cross-examination of the police officers regarding the officers prior investigations for the use of excessive force. See. Hinojosa v. State, 857 So.2d 808 (Fla. 2d DCA 2003) (concluding that the trial court erred in preventing Hinojosa’s counsel from cross-examining the alleged assault victim, Officer Preyer, on prior complaints and investigations of excessive force lodged against the officer). We recognize that a defendant has the absolute right to conduct a full and fair cross-examination. Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). It is thus reversible error for the trial court to prohibit cross-examination “when the facts sought to be elicited are ‘germane to that witness’ testimony and plausibly relevant to the theory of defense.’ ” Bertram v. State, 637 So.2d 258, 260 (Fla. 2d DCA 1994) (citation omitted); Powe v. State, 413 So.2d 1272, 1273 (Fla. 1st DCA 1982). The trial court, however, has control over the scope of the cross-examination and the trial court’s rulings are not subject to review unless there is a clear abuse of discretion. Ho Yin Wong v. State, 359 So.2d 460, 461 (Fla. 3d DCA 1978).

A close examination of the record does not support de la Portillas claim that the trial court restricted defense counsels cross-examination of the officers and did not permit him to inquire into the details of the officers prior investigations into excessive use of force. The trial court in this case permitted defense counsel to inquire into the officers prior and pending use of excessive force investigations. Three officers testified that they had been subjected to prior use of excessive force complaints, and that they knew that de la Portillas complaint filed against them remained pending. Defense counsel thus had the opportunity to question the officers about their prior complaints for use of excessive force, and the testimony about the officers prior complaints was admitted into evidence and considered by the jury.

Additionally, defense counsel never proffered what additional questions he wanted to propound to the witness which the trial court did not allow him to ask and likewise did not proffer what that witness’ testimony would have been. Such a proffer “is necessary to preserve a claim [for appellate review] because an appellate court will not otherwise speculate about the admissibility of such evidence.” Lucas v. State, 568 So.2d 18, 22 (Fla.1990). See also Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002); A.McD. v. State, 422 So.2d 336, 338 (Fla. 3d DCA 1982)(stating that a trial court’s restriction on cross-examination does not constitute fundamental error “where the party fails to make an offer of proof since, as a result of this failure, there is an absence of material in the record to disclose the error.”). Furthermore, whatever limitations may have been imposed on defense counsels cross-examination of the officers were harmless beyond any reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We likewise find no error in the trial courts finding that de la Portilla qualified as a violent career criminal. The State presented evidence which established de la Portillas qualification as a violent career criminal by a preponderance of the evidence, and this evidence was unrefuted. See Brown v. State, 789 So.2d 366, 367 (Fla. 2d DCA 2001); Stabile v. State, 790 So.2d 1235, 1238 (Fla. 5th DCA 2001).

We therefore affirm.


author: SHEPHERD, J.

text:
    Emile McFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1537.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, Consuelo Maingot, Assistant Attorney General, and Venus Zilieris, Certified Legal Intern, for appellee.
    Before SCHWARTZ, C,J., and SHEVIN and SHEPHERD, JJ.
   SHEPHERD, J.

Emile McFord appeals a final judgment of conviction and sentence for violating a substantial assistance plea agreement. We affirm.

In April 2001, McFord was charged with drug trafficking in violation of § 89S.135(l)(b)(2), Fla. Stat. (2000). In September of that year, McFord entered into a plea agreement to supply the State with, “substantial assistance,” see § 893.135(4), Fla. Stat. (2000), in undercover drug investigations in exchange for the State’s agreement to waive the applicable fifteen-year minimum mandatory provision of his sentence. Other conditions of the agreement were that McFord would “refrain from the commission of any crime” while on release pursuant to the agreement, and also provide to the authorities “[any] tangible items which are in any way related to any criminal acts.” McFord acknowledged that “[t]he commission by the Defendant of any crime ... shall be a violation of [the] agreement,” resulting in reinstatement of the minimum mandatory provision and a sentence of thirty years in state prison. The plea agreement also required the Defendant to “make daily telephone or personal contact” with the detective assigned to his case.

At the plea colloquy, the trial court reviewed the plea agreement with the Defendant paragraph by paragraph. The court impressed upon the Defendant that not only would he be assisting the police in further drug investigations, but also stressed the condition that the commission of any further crime would constitute a violation of the agreement. Among the several admonitions of the trial judge to the Defendant were the following:

THE COURT: Paragraph 9, the Defendant agrees to refrain from the commission of any crimes during the pendency of this case and if the Defendant cooperates (sic) the commission of any felony inside or outside of Miami-Dade County he shall be in violation of this agreement and the Defendant shall be sentenced pursuant to paragraph 13,1 will get that in a moment ...
While you’re out there, if you commit any kind of crime, it could be driving under the influence, possessing marijuana, [even a] misdemeanor amount, drinking in public, or any number of misdemeanors, or any felony for that matter, then you will suffer the consequences of your violation of this agreement ...
Do you understand that?
THE DEFENDANT: Yes, sir.
[THE COURT]: Paragraph 13, if the Defendant, this is the critical one you need to be aware of because it goes back to what we are talking about, you get arrested for anything, you fail to do what you are required to do under this agreement ... if you fall on your own sword because you don’t follow through with what you’re supposed to ... you get rearrested for something while you’re trying to help, then you get thirty years with a fifteen year minimum mandatory.
If its alleged that you have violated the terms and conditions of this plea agreement, you will be entitled to a hearing because I’ll not just violate you on the word of the prosecutor or officer, I would conduct a formal hearing and receive evidence, and it’s from that I will determine if you are in compliance or violation.
Do you understand that?
THE DEFENDANT: Yes, sir.

Approximately one year after the plea hearing, the detective involved in handling the Defendant’s case received a tip from the Miami-Dade County Robbery Bureau that Defendant was dealing in narcotics. After some surveillance on Defendant’s house and other investigation, the detective approached the Defendant and asked whether he had anything concealed in his home. The Defendant admitted that he had cocaine. A search of Defendant’s bedroom, done with Defendant’s consent and in his presence, revealed the existence of “numerous baggies, crack pipes, cocaine, marijuana ... a cell phone, battery and electronic scale.” The Defendant was rearrested, and the State moved to vacate the plea pursuant to Fla. R.Crim. P. 3.170(g).

At the hearing on the motion, the Defendant admitted to the possession of cocaine, a violation of Florida law. Nevertheless, the Defendant urged an antithetical explanation, i.e., that his possession was “out of necessity” to mask his undercover work. Yet, not once prior to coming into possession of the illegal substances, or at any time thereafter, did Defendant tell his supervisor that he had these items, despite daily required communications between them. The Defendant likewise ignored a provision of the plea agreement that required him to provide for “review or duplication any and all ... tangible items which are in any way related to any criminal acts.” The trial court held that the Defendant violated the terms of his agreement and sentenced him to thirty years with a fifteen-year minimum mandatory sentence, with credit for time served pursuant to the agreement.

McFord contends on appeal that a proper interpretation of the plea agreement requires that the State either introduce evidence of a conviction or, at a minimum, prove that he committed a crime beyond a reasonable doubt at the 3.170(g) non-compliance hearing before he can be held to have violated the agreement. In support of this argument, he urges that the language of the agreement which states that “[t]he commission by the Defendant of any crime ... shall be a violation of [the] agreement,” is ambiguous because it does not expressly disclaim the requirement of a conviction.' He then urges that this purported ambiguity must be construed against' the State as the drafter of the agreement. We reject this argument. The agreement expressly states that it is the commission and not the conviction of a crime that would constitute a violation of the agreement. But if there was any doubt about the interpretation and meaning of the plea, agreement, the trial judge made the- terms of the agreement crystal clear during the plea colloquy. Specific clarifications of a plea agreement made during the course of a plea colloquy become part of the agreement for purposes of its enforcement. Metellus v. State, 817 So.2d 1009 (Fla. 5th DCA 2002); Deramus v. State, 652 So.2d 1245 (Fla. 5th DCA 1995).

Defendants who seek to avail themselves of the salutary upside of a substantial plea agreement do not have the right to make unilateral modifications to the agreement. See State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997) (a party who reaps the benefits of the agreement must be held to its detriments). We decline McFord’s invitation to do so here, by en-grafting an after-the-fact “necessity” exception into the plea agreement. As the trial court told the Defendant at the plea colloquy, “the keys to the prison ... [are] in your hands. It’s up to you what you do out there.” His obligation was clear. Sadly, he squandered the break of a lifetime.

Affirmed.


author: MAY, J.

text:
    Alan WESSLING, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2425.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence on two counts of fleeing and eluding. He raises three issues, one of which causes us to reverse and remand for a new trial.

The state charged the defendant with two counts of aggravated fleeing and eluding and one count of aggravated assault on a law enforcement officer. The charges arose when Fort Lauderdale Police Officer Kelley observed defendant’s car being driven in Fort Lauderdale without a license tag around 3:00 in the morning. The officer attempted to stop the car, but the defendant fled at speeds of 80-90 miles an hour through a residential neighborhood.

The defendant traveled into Plantation. Plantation Police Officer Hampton almost collided head-on with the defendant, who drove on the -wrong side of the street. After a series of near collisions with other Plantation officers, the defendant stopped his car. A police dog was used to subdue the defendant, who had a lump on his head after the arrest.

The defendant claimed that a man got into his car as he was leaving a gas station. The man held a gun to his head and forced him to drive at high rates of speed, striking the defendant in the head at one point. The defendant testified that he was shaken and trembling after the blow to his head. He claimed he suffered a concussion which caused him to be unable to conform his conduct to the law because he did not know what he was doing. While these are the underlying facts, it is the timing of the trial events that are central to the issues raised.

The defendant was assigned a public defender on December 12, 2001. The State filed discovery on January 3, 2002. On February 27th, the trial court granted the defendant’s motion for additional discovery. On March 22nd, a private lawyer filed a notice of substitution of counsel.

On April 29th, the parties appeared for jury selection. Defense counsel moved for a continuance. He asked to speak with a doctor from whom the public defender had obtained a report. When asked if the doctor would be a witness, defense counsel said he was unsure until he had an opportunity to speak with him. The court denied the motion.

The parties selected a jury with the trial scheduled to begin two days later. At that time, the State asked the court whether the defendant intended to call the doctor as a witness because it had not received a witness list. The defense responded affirmatively. The court then conducted a Richardson hearing.

Defense counsel responded he had only spoken to the doctor the day before and had not previously disclosed his report because he considered it confidential. The doctor would testify that the defendant’s concussion could have caused him to be unaware of his conduct. The court found the discovery violation willful and that it prejudiced the State. The court excluded the doctor from testifying.

We find no error in the court’s denial of the motion for continuance. We disagree, however, with the trial court’s exclusion of the doctor’s testimony. There were other means readily available to the trial court that would have accommodated both the State’s concerns and yet have protected the defendant’s right to present a defense. Exclusion of exculpatory evidence denies a defendant his fundamental right to defend himself in violation of the Sixth Amendment. Mattear v. State, 657 So.2d 46 (Fla. 4th DCA 1995). Prejudice to the State may be averted by granting a recess to permit the other side to question or depose the undisclosed witness. See, e.g., Streeter v. State, 323 So.2d 16 (Fla. 3d DCA 1975).

In this case, the trial court found, and the record supports, that defense counsel exercised his personal judgment in not disclosing the doctor’s report to the State. The court correctly found thát the failure to disclose had been willful. However, to avoid prejudice to the State, the court should have utilized a less drastic remedy.

Exclusion of a witness is a harsh remedy that should not be employed unless the court is faced with an extreme case. This was not such a case. We find the exclusion of the doctor as a witness was too harsh a sanction under the specific facts of this case. In doing so, we are mindful that a different set of facts might have warranted the sanction imposed. Thus, this holding is limited to the facts before us. :

' We therefore reverse the conviction and sentence and remand the case for a new trial.

REVERSED and REMANDED.

FARMER, C.J., and POLEN, J., concur.

      . See Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Diana STEVENS, Appellant, v. AMERICAN IMPORT CAR SALES, d/b/a Jumbo Auto and Truck Sales, a Florida corporation, Appellee.
    No. 4D02-1917.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Rebecca J. Covey of Rebecca J. Covey, P.A., Fort Lauderdale, for appellant.
    Charles M-P George, Coral Gables, and Esther E. Galicia and Gary A. Baumann of George, Hartz, Lundeen, Fulmer, John-stone, King & Stevens, Fort Lauderdale for appellee.
   PER CURIAM.

Diana Stevens appeals an order granting a motion to compel settlement. We affirm.

Stevens purchased a used 1997 Pontiac Grand Am from appellee American Import Car Sales d/b/a Jumbo Auto & Truck Sales. She sued Jumbo for deceptive trade practices, alleging that Jumbo had (1) concealed from her that the vehicle had undergone major repairs as a result of a prior accident, and (2) failed to disclose that the car was a salvage, rebuilt, or flood vehicle.

Stevens’s lawyer, Rebecca Covey, had represented Loretta Ramdial, a previous owner of the same Grand Am in a substantially similar lawsuit against Jumbo. Jumbo settled the lawsuit with Ramdial, accepted the Grand Am back into its inventory, and sold it to Stevens.

Stevens filed suit against Jumbo on March 1, 2001. In a letter dated March 15, 2002, Stevens proposed a “full and final settlement” with Jumbo for $35,000. On April 5, 2002, Jumbo’s counsel hand-delivered a letter to attorney Covey accepting the settlement offer. On April 10, 2002, Covey wrote to Jumbo’s lawyer withdrawing the March 15 offer of settlement and proposing a new offer of $150,000. The basis for Covey’s attempt to withdraw the settlement offer was that she had received a document during discovery from a third party which suggested that Jumbo had knowledge of the poor condition of the car at the time it first acquired it in 1997 or 1998. Arguably, this document strengthened the case against Jumbo.

Having represented two clients regarding the Grand Am, Covey was well aware of the problems with the car at the time she made the March 15 settlement offer. In pleadings and in argument during the case, Covey had taken the position that Jumbo was not truthful in its protestations that it was unaware of the condition of the car before it was sold to Stevens. Covey extended the offer over a year after she had filed the case. By making an offer while some discovery was outstanding, Covey assumed the risk that documents would be unearthed that would support her claim. See BMW of N. Am., Inc. v. Krathen, 471 So.2d 585, 588 (Fla. 4th DCA 1985) (holding that lack of due care on the part of defendant’s counsel leading to unilateral mistake did not justify setting aside settlement agreement).

This case is very different from Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306 (Fla.2000). In that case, after the parties settled the case, the plaintiffs discovered information which indicated that the defendant had intentionally concealed test results. Here, the document at issue is hardly the “smoking gun” involved in Mazzoni. Unlike the plaintiffs in Mazzoni, Stevens had reason to question the defendant’s position concerning what it knew about the Grand Am and in fact, was awaiting outstanding discovery directed to this issue.

AFFIRMED.

FARMER, C.J., GROSS and MAY, JJ„ concur.