author: HAZOURI, J.

text:
    The BOARD OF TRUSTEES OF FLORIDA ATLANTIC UNIVERSITY, Appellant, v. Laura J. BOWMAN, Jennifer L. Pharo, Karen L. Latham, Carol-Lynne Taylor, Pritesh Patel, Arnot Q. Wadsworth IV, Jennifer L. Stein, Christoper Herndon, Appellees.
    No. 4D02-2864.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Rehearing Denied Sept. 18, 2003.
    Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A. and Joseph L. Ackerman of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, West Palm Beach, for appellant.
    Peter J. Aldrich of Peter J. Aldrich, P.A., Palm Beach Gardens, for appellees.
   HAZOURI, J.

This is an appeal from an order denying a motion for attorneys’ fees by the Board of Trustees of Florida Atlantic University based on proposals for settlement which it had made pre-trial. We reverse.

In December 1999, eight plaintiffs (Plaintiffs) filed suit against the Board of Regents of the Division of Universities of the Department of Education ex rel. The Florida Atlantic University (Defendant). Plaintiffs were former full-time students of Florida Atlantic University (FAU) who were enrolled in its physical therapy program. The Complaint alleged that when Plaintiffs enrolled in classes at FAU in 1997, the physical therapy program was not accredited; however, Defendant had made a promise to seek accreditation. This promise was stated in the written Curriculum provided to Plaintiffs by Defendant. Plaintiffs alleged that Defendant was obligated to use reasonable diligence and good faith to perform its promise to pursue accreditation and that it breached this obligation. In addition, Plaintiffs alleged that Defendant multiplied their damages by intentionally and repeatedly misleading them about the status of accreditation between May of 1997 and Spring of 1999.

On or about May 11, 2001, Defendant served separate Proposals for Settlement on each of the Plaintiffs offering to settle each claim for $2,001. Each Proposal was identical and contained the following relevant provisions:

1. The party or parties making the proposal is: THE BOARD OF REGENTS OF THE DIVISION OF UNIVERSITIES OF THE DEPARTMENT OF EDUCATION and THE FLORIDA ATLANTIC UNIVERSITY, AND ITS AGENTS, EMPLOYEES, and SERVANTS.
3. The proposal is attempting to resolve and settle the following claim or claims: Any and all claims which were raised or could have been raised in this action by any party against any other party.

The Proposals also required each Plaintiff to execute a “General Release” that was attached as Exhibit “1” to the Proposals. The General Release required each Plaintiff, also referred to as “First Party” to:

HEREBY remise, release, acquit, satisfy, and forever discharge the said Second Party, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs (including attorneys fees, expert fees, and out-of-pocket expenses), pre and post-judgment interest, obligations, losses, loss of services, expenses, compensation, judgments, executions, claims and demands whatsoever, in law or in equity, which said First Party ever had, now has, or which any personal representative, successor, heir or assign of said First Party, hereafter can, shall or may have, against said Second Party, for, upon or by reason of any matter, cause or thing whatsoever, known and unknown, foreseen and unforeseen, from the beginning of the world to the day of these presents, and including all issues, causes, claims, counterclaims, set-offs, and allegations which were raised or could have been raised relating to or arising out of certain action styled Laura Bowman, et al., v. Florida Board of Regents, Palm Beach County Circuit Case No.: CL 99-12145 Al.

The General Release defined “First Party” and “Second Party” as including:

[Singular and plural, heirs, legal representatives, agents, employees, attorneys, and assigns of individuals and the subsidiaries, affiliates, parent corporations, and each of their respective present and former officers, agents, employees including, but not limited to, shareholders, directors, attorneys, insurers, sureties, successors and assigns of corporations, agencies, or political bodies, wherever the context so admits or requires.

More than thirty days passed from the service of those Proposals without acceptance; therefore, pursuant to Florida Rule of Civil Procedure 1.442(f)(1), the Proposals were deemed rejected.

In October 2001, the trial court entered an order substituting the Board of Trustees of Florida Atlantic University in place of the Board of Regents, the original defendant, because the Board of Regents had been abolished by statute. The Order stated that the Board of Trustees “shall step into the shoes of the Florida Board of Regents for all pleading purposes.” The Order was entered based on a stipulation of the parties. The case proceeded and was set for jury trial. The jury found that Plaintiffs did have express, written contracts with Defendant; however, they found that Defendant did not breach those contracts. The trial court entered a Final Judgment in favor of Defendant, the Board of Trustees.

Defendant filed a Motion for Attorneys’ Fees and Costs and alleged that it was entitled to reasonable attorneys’ fees and costs based on Plaintiffs’ rejections of the Proposals for Settlement. The trial court denied Defendant’s Motion for Attorneys’ Fees and Costs based on its determination that the Proposals for Settlement were invalid because the General Release contained in the Proposals required Plaintiffs to release all claims against Defendant, not just claims raised by the suit, and required Plaintiffs to release all claims against third parties to the action. The trial court found that those conditions contained in the General Release did not give Plaintiffs a determinable value with which to weigh their chances at trial as required by this court’s decision in Zalis v. M.E.J. Rich Corp., 797 So.2d 1289 (Fla. 4th DCA 2001).

Defendant argues that the language in the Proposal for Settlement and General Release was consistent with the nature of a general release and sufficiently clear and unambiguous; therefore, the trial court should have enforced its rights under section 768.79, Florida Statutes (1997). We agree.

With respect to the trial court’s first reason for finding the Proposals invalid, we hold the trial court’s reliance on Zalis to be misplaced. In the instant ease, the General Release required Plaintiffs to release all claims against Defendant from any and all actions or claims that Plaintiffs had or could have had as of the date of execution of the Proposal for Settlement and required Plaintiffs to release claims against third parties to the action. The Plaintiffs were also required to release all their claims against not only Defendant, but also Defendant’s agents, employees, and servants. These factors are typical of a “general release” and do not invalidate the Proposals for Settlement. See Hold v. Manzini, 736 So.2d 138, 141 (Fla. 3d DCA 1999).

In Hold, the third district analyzed identical language to that contained in the General Release in the instant case:

[W]hich said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have against said second party, for, upon or by reason of any matter, cause of thing whatsoever, from the beginning of the world to the day of these presents. Id.

The third district determined that the above language was clear and unambiguous in that it required the plaintiff to release the defendant for all claims which had accrued as of the date of its execution. It did not bar any claims that the plaintiff may have against the defendant after the date of its execution. Id.

In the instant case, the language in the General Release, even though expansive, is typical of other general releases and is clear and unambiguous. The fact that Plaintiffs are required to release Defendant for all claims which had accrued as of the date of the Proposal for Settlement does not invalidate the Proposal for Settlement. The Florida Supreme Court has held that general releases contained in proposals for settlement are enforceable to farther the policy of encouraging settlements. See Mazzoni Farms, Inc. v. DuPont De Nemours & Co., 761 So.2d 306 (Fla.2000) (recognizing that numerous Florida cases have upheld general releases, even when the releasing party was unaware of the defect at the time the agreement was executed).

However, the trial court found that this requirement invalidated the Proposals on the basis of this Court’s decision in Zalis. In Zalis, the defendant made a proposal for settlement prior to trial to settle the lawsuit for $20,000 under the condition that the parties exchange mutual releases that neither the plaintiff nor any firm associated with him would bring any future action against the defendant or anyone associated with him. Zalis, 797 So.2d at 1290. The plaintiff refused the offer. The jury found against the plaintiff and awarded the defendant $105,000 on his counterclaim. Thereafter the defendant filed a motion for attorneys fees pursuant to section 768.79. The trial court denied the motion on the basis that the condition in the settlement offer rendered it invalid. On appeal, this court in affirming the trial court focused on Rule 1.442(c), which requires that proposals for settlement state with particularity any relevant conditions, state the total of the proposal and state with particularity all non-monetary terms of the proposal. This court noted that the proposal for settlement required the plaintiff to release all rights to sue the defendant about anything at any point in the future and held as follows:

The condition that a plaintiff relinquish all rights to sue about anything at any point in the future is intrinsically a condition incapable of being stated with the particularity required under section 768.79 of the Florida Statutes. No reasonable estimate can be assigned to such a waiver. The defendant’s offer simply did not give the plaintiff a determinable value with which to weigh his chances at trial.

Id. at 1290-91 (emphasis added).

The instant case is distinguishable from Zalis because there is an important distinction between the release in Zalis and the General Release in the instant case. In the instant case, Plaintiffs were only required to release any and all claims they had up to the date of the Proposal for Settlement. They were not required to release all rights to sue Defendant based on any causes of action accruing in the future. It was the release of future claims in Zalis that this court found to be invalid.

We next address the trial court’s second reason for finding the Proposal for Settlement invalid, i.e., Plaintiffs were required to release claims against unnamed third parties to the action. The Proposals for Settlement clearly state that the parties making the Proposals are “The Board of Regents of the Division of Universities of the Department of Education and the Florida Atlantic University, and its agents, employees, and servants.” In addition, the General Release utilizes an expansive definition for the term “Second Party” which includes all agents, employees, attorneys, subsidiaries, affiliates, and shareholders among many others.

The inclusion of agents, employees, etc. is simply standard language in a general release that should be considered unambiguous and should not invalidate the proposal. See Sheen v. Lyon, 485 So.2d 422 (Fla.1986). In Sheen, the Florida Supreme Court held that a general release discharging a specifically named employer and its agents and employees was clear and unambiguous in that it refers to those persons who were employed at the time of the alleged injury. Therefore, the language in the instant case is sufficiently clear and should not be considered a condition incapable of being stated with particularity.

All the facts and circumstances which Plaintiffs allege entitle them to damages have already occurred and Plaintiffs can fully evaluate their claims against Defendant and its agents, employees and servants. The trial court erred in finding that the language in the General Release requiring Plaintiffs to release all claims against defendant and its agents, employees, et al. rendered the Proposals for Settlement invalid. We reverse and remand for a determination of reasonable attorneys’ fees and costs.

TAYLOR and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bruce BALKEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4900.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Rehearing Denied Sept. 19, 2003.
    Bruce Balkey, Hollywood, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bruce Balkey appeals the summary denial of his postconviction motion. The trial court denied the motion as untimely without addressing the merits of Balkey’s claims. However, as Balkey argued below,' the motion was timely filed based on Florida Rule of Criminal Procedure 3.040.

Two of the claims raised in the postcon-viction motion are legally sufficient and not refuted by any record attachments: (1) Balkey alleged that he received ineffective assistance of counsel because his attorney did not object that a lesser offense of the criminal mischief charge was stated incorrectly on the verdict form; and (2) he alleged that his attorney should have objected when the court imposed a thousand dollars restitution in this case because, based on the jury verdict, restitution should have been less than a thousand dollars.

We reverse and remand for an eviden-tiary hearing or for attachment of portions of the record conclusively demonstrating that appellant is entitled to no relief.

REVERSED and REMANDED.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Rubin LONG, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1102.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2003.
    Rehearing Denied Sept. 18, 2003.
    Rubin Long, South Bay, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Rubin Long, seeks review of an order summarily denying his 3.800(a) motion to correct illegal sentence, in which appellant, pursuant to Karchesky v. State, 591 So.2d 930 (Fla.1992), sought recalculation of his guideline sentencing score by eliminating 120 points added for victim injury. We reverse and remand for the trial court to address the merits of Long’s claim. The claim is cognizable if the error is ascertainable from the face of the record. Reynolds v. State, 827 So.2d 356 (Fla. 1st DCA 2002); Dickson v. State, 826 So .2d 412 (Fla. 2nd DCA 2002); Boland v. State, 613 So.2d 72 (Fla. 4th DCA 1993).

STEVENSON, SHAHOOD and MAY, JJ., concur.


text:
    Glenn Charles AYO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2384.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    Glenn Charles Ayo, Sanderson, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    James C. STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1556.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    James Stanley, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003); Smith v. Moore, 782 So.2d 955 (Fla. 1st DCA 2001).

GRIFFIN, PLEUS and ORFINGER, JJ., concur.


text:
    Shavar SIDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-945.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

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

THOMPSON, PLEUS and MONACO, JJ., concur.


text:
    Henry L. GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-308.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

SHARP, W„ THOMPSON and ORFINGER, JJ., concur.


text:
    Roger MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1072.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Blanco v. State, 702 So.2d 1250 (Fla.1997).

SAWAYA, C.J., THOMPSON and PALMER, JJ., concur.


text:
    Greg S. GREENMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2841.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

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


text:
    Denver I. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2549.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2003.
    Denver I. Wilson, Orlando, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. Section 948.01, Florida Statutes (2000).

PETERSON, THOMPSON and MONACO, JJ., concur.


author: STEVENSON, J.

text:
    Jack LIEBMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-2883.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Rehearing Denied Sept. 18, 2003.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Appellant, Jack' Liebman, entered no contest pleas to pending charges in seven lower court cases. Liebman filed a motion to withdraw the no contest pleas but later withdrew it. Now, on appeal, Liebman asks this court to reinstate his motion to withdraw plea, arguing (1) that a motion to withdraw plea is a critical stage of the proceeding and that he was denied his right to counsel, and (2) that the counsel he was subsequently provided at the hearing rendered ineffective assistance. We affirm.

Appeals following a plea of guilty or no contest are governed by Florida Rule of Appellate Procedure 9.140(b)(2)(A), which provides that, following a plea, a defendant may appeal only those disposi-tive issues specifically reserved or, if no issues were reserved, the lower court’s lack of subject matter jurisdiction; a violation of the plea agreement, if preserved by motion to withdraw the plea; an involuntary plea, if preserved by motion to withdraw the plea; and a sentencing error, if preserved. Here, Liebman did not reserve any issues for appeal when he entered his plea and, while ultimately he wishes to challenge the voluntariness of his plea, this issue has not been preserved since he withdrew his motion to withdraw plea, depriving the trial court of the opportunity to rule on the same.

Accordingly, we affirm without prejudice to appellant’s right to file a 3.850 motion alleging ineffective assistance of counsel at the January 4, 2001 hearing wherein appellant withdrew his motion to withdraw his plea.

AFFIRMED.

POLEN and SHAHOOD, JJ., concur.

      . On the merits of the first issue, we cannot agree that Liebman was denied his right to counsel at the January 4, 2001 hearing where the trial court allowed appellant to withdraw -his motion. Although appellant’s original trial counsel withdrew, the trial court appointed new counsel to represent appellant at this hearing. Indeed, Liebman argues that the attorney appointed to represent him at this hearing provided ineffective assistance of counsel. However, any such ineffectiveness is not apparent from the record and cannot be considered for the first time on direct appeal. See, e.g., Barrientos v. State, 825 So.2d 1065 (Fla. 4th DCA 2002), review denied, 845 So.2d 887 (Fla.2003).


text:
    Willie MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3552.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s conviction and sentence, but we direct the trial judge on remand to correct the scrivener’s error in the probation order to reflect that appellant was found guilty by the verdict of a jury.

AFFIRMED.

BARFIELD, BENTON and VAN NORTWICK, JJ„ concur.


text:
    William T. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2336.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    William T. Murphy, Bonifay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Owen v. Crosby, 23, Fla. L. Weekly S615, — So.2d —, 2003 WL 21554960 (Fla. July 11, 2003).

SHARP, W., PLEUS and ORFINGER, JJ., concur.


text:
    Joseph Austin WOOLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1036.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.

      James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987); Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

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


text:
    Patrick Michael POWERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-739.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Terry BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-257.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    David Mengers, Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ragsdale v. State, 798 So.2d 713 (Fla.2001).

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


text:
    Donald E. McGINNIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-189.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    Donald E. McGinnis, Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003).

PETERSON, GRIFFIN and TORPY, JJ., concur.


text:
    Weston P. SPOONIRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-173.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Woodrow Wilson HARROLD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3976.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Auguste Cesar CORONA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3429.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Owens v. State, 817 So.2d 1006 (Fla. 5th DCA 2002); Henry v. State, 483 So.2d 860 (Fla. 5th DCA 1986).

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


text:
    Sonny THAI, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1403.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 843 So.2d 856 (Fla.2003); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003); Garner v. State, 729 So.2d 990 (Fla. 5th DCA 1999).

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


text:
    Timothy HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1010.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2003.

      James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Kreehowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Faison v. State, 426 So.2d 963 (Fla.1983).

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


author: SHAHOOD, J.

text:
    ROYAL PROFESSIONAL BUILDERS, INC., a Florida corporation, Appellant, v. Beth ROGGIN, Appellee.
    No. 4D02-3784.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.

      Robert D. Jones of Fuchs and Jones, P.A., Royal Palm Beach and Bruce G. Ka-leita of Bruce G. Kaleita, P.A., West Palm Beach, for appellant.
    Cathleen Scott of Cathleen Scott, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm this non-final order denying appellant’s motion to compel arbitration.

On June 29, 1992, appellant, Royal Professional Builders, Inc., and Elizabeth Roggin (along with her ex-husband) entered into a Contract for Sale and Purchase, whereby the parties agreed that Royal Professional Builders would construct a home for the Roggins on certain real property, and after construction, Royal Professional Builders would convey the improved property to the Roggins. Royal Professional Builders warranted material and workmanship for one year from the date of closing due to noncompliance with Quality Standards set forth in the Agreement. Included in the contract was “Royal Professional Builder’s Custom Ten (10) Year Limited Warranty.” That limited warranty provided that the home would be free from Major Structural Defects during the first ten years; it also cited numerous exclusions under the warranty. Construction was completed on or about November 13, 1992 and the property was conveyed to the Roggins.

Appellee, Elizabeth Roggin, filed a complaint for damages against Royal Professional Builders for breach of contract in February 2002 alleging that she became aware of several problems with the home prior to filing suit, including improper grading of the soil surrounding the home, substandard tile floors, termites, improperly installed concrete slab, poor construction of windows, inadequately installed ceilings, and improper duct work. Roggin claimed that Royal Professional Builders breached their contract in that the alleged inadequacies were below contract standards and sought damages on the grounds that these claims were not major structural defects as defined in the warranty agreement.

On June 25, 2002, Royal Professional Builders moved to compel arbitration and for stay of action arguing that the Limited Warranty incorporated into the contract for sale and purchase of the property provided for mandatory binding arbitration. Roggin countered that all of her claims were separate and outside the scope of the warranty’s arbitration provision.

On September 4, 2002, the trial court denied the motion to compel arbitration. The trial court agreed that Roggin’s claims were beyond the one-year warranty period, and otherwise not covered by the warranty attached to the contract. We agree and affirm.

The Limited Warranty Agreement provides the following in relevant part:

Royal warrants that, for the first year beginning on the commencement date: the home will be free from defects in workmanship and materials due to noncompliance with the Quality Standards set forth hereinafter.
Royal warrants that during the first ten (10) years after the commencement date that the home will be free from Major Structural Defects. A “Major Structural Defect” is actual physical damage to the following designated load-bearing portions of the home caused by failure of such load-bearing portions which affects their load-bearing functions to the extend] that the home becomes unsafe, unsanitary, or otherwise unlivable:
1. Foundation systems and footings;
2. Beams;
8. Girders;
4. Lintels;
5. Load-bearing columns;
6. Load-bearing walls and partitions;
7. Structural floor systems; and
8. Roof framing systems.
Repair of Major Structural Defects is limited (a) to the repair of damage to the load-bearing elements of the home which are necessary to restore their load-bearing ability; and (b) to the repair of those items of the home damaged by the Major Structural Defect which make the home unsafe, unsanitary, or otherwise unlivable.
If defect occurs in an item which is covered by this Warranty, Royal will repair, replace, or at its sole option, pay the Purchaser the reasonable cost of repairing or replacing the defective item in accordance with warrantor’s responsibility as defined in the Quality Standards set forth hereinafter. Anything to the contrary not withstanding, Royal’s maximum liability under this Warranty shall be limited to the original purchase price of the home. The choice among repair, replacement, or payment is Royal’s alon[e]. Any steps taken by Royal to correct defects shall not act to extend the time of this Warranty.

The Warranty further provides the following with regard to “Major Structural Defects”:

Repair of Major Structural Defect is limited (1) to the repair of damage to the load-bearing elements of the home themselves which is necessary to restore their load-bearing ability; and (2) to the repair of those items of the home damaged by the Major Structural Defect:
a. Roof shingles and sheeting;
b. Drywall and plastering;
c. Exterior siding;
d. Brick, stone or stucco veneer;
e. Subfloor and flooring materials;
f. Wall tile or other wall coverings;
g. Non-load bearing partitions;
h. Concrete floors in attached garages and basements that are built separate from foundation walls or other structural elements of the home;
i. Electrical, heating, cooling, ventilation, mechanical, and plumbing systems; appliances, equipment, fixtures, paint, doors, windows, trim, cabinet, hardware and insulation.
Items a. through i. above with the exception of any “consumer products” as disclaimed herein, are covered by Warranty for one (1) year as described herein.

The Agreement provided that any complaints be sent to Royal Professional Builders in writing and provided the following with respect to any continuing dispute between the parties:

If Royal disagrees with the merits of a timely [filed] complaint, Royal will arrange within a reasonable period of time for arbitration of the dispute by the American Arbitration Association. Royal will advance the necessary filing fees which shall be the responsibility of the unsuccessful party in the arbitration proceedings as determined by the American Arbitration Association. Royal and Purchaser will be bound by the decision of the American Arbitration Association through a single arbitrator under the construction industry rules and regulations ...

On appeal, Royal Professional Builders claim that the warranty at issue provided a binding arbitration provision governing the construction claims raised by Roggin. Further, it argues that even if those claims arose after the warranty time had expired, under the arbitration clause, the claims still needed to be submitted to an arbitrator for determination.

In ruling on a motion to compel arbitration, a trial court must decide three issues: (1) whether a valid written agreement exists containing an arbitration clause; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Pulte Home Corp. v. Smith, 823 So.2d 305, 308-09 (Fla. 2d DCA 2002)(citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Because arbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation. See Seifert, 750 So.2d at 636.

The general rule is that where an arbitration agreement exists between the parties, arbitration is required only of those controversies or disputes which the parties have agreed to submit to arbitration. See Fla. Power Corp. v. City of Casselberry, 793 So.2d 1174 (Fla. 5th DCA 2001). Because the arbitration provision in the agreement did not provide for the arbitration panel to decide whether the claim is arbitrable, the trial court, rather than the arbitration panel, should make that determination. See Premier Med. Mgmt., Ltd. v. Salas, 830 So.2d 959, 960 n. 2 (Fla. 1st DCA 2002).

Any time a contract contains an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. See Advantage Dental Health Plans, Inc. v. Beneficial Adm’rs, Inc., 683 So.2d 1133, 1134 (Fla. 4th DCA 1996). While all doubts as to the scope of an arbitration agreement are to be resolved in favor of arbitration rather than against it, in this case, the arbitration clause at issue did not coyer the disputed claims at issue. See id.

Upon review, we conclude that each of Roggin’s claims were either excluded by the Limited Warranty or outside the one-year period of coverage. Further, none of her claims constituted a “Major Structural Defect” as defined by the Warranty set forth above. Thus, based on the Warranty provisions, Roggin’s claims are outside the scope of the Warranty’s arbitration clause.

AFFIRMED.

GUNTHER and POLEN, JJ., concur.


author: PALMER, J.

text:
    Ginny L. SHEEHAN, Appellant, v. Edward Carl SHEEHAN, Appellee.
    No. 5D02-3700.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.

      William R. Barker, Orlando, for Appellant.
    R. Gregory Colvin of R. Gregory Colvin, P.A., Orlando, for Appellee.
   PALMER, J.

Ginny L. Sheehan (“wife”) appeals the trial court’s orders denying her motions for an extension of time on a previously entered domestic violence injunction and for temporary alimony. We affirm.

The record indicates that this case began when the wife filed a petition in the trial court seeking an injunction for protection against domestic violence, naming her husband, Edward Sheehan, as the perpetrator. The trial court granted the petition and entered a temporary injunction, effective for six months. Shortly before the expiration of the six-month time period, the wife filed a motion seeking an extension of the injunction. In the motion, the wife claimed that an extension was necessary because she was “still in fear for her safety from her husband”. The trial court conducted a hearing on the motion. Upon review, the trial court denied the motion as being legally insufficient, ruling, in pertinent part, that: ‘Wife’s motion does not allege any new act of violence toward her since the entry of the injunction”. The wife challenges this ruling claiming that her motion was sufficient.

Section 741.30(6)(b) of the Florida Statutes (2001) authorizes the imposition of an injunction against domestic violence as follows:

741.30. Domestic violence; injunction; powers and duties of court and clerk; petition; notice and hearing; temporary injunction; issuance of injunction; statewide verification system; enforcement
(6)(b) The terms of an injunction restraining the respondent under subparagraph (a)l. or ordering other relief for the protection of the victim under subparagraph (a)7. shall remain in effect until modified or dissolved. Either party may move at any time to modify or dissolve the injunction. No specific allegations are required. Such relief may be granted in addition to other civil or criminal remedies.

§ 741.30(6)(b), Fla. Stat. (2001) (emphasis added). While Sheehan is correct that the statute does not specifically require any allegation of a new act of violence, in Patterson v. Simonik, 709 So.2d 189 (Fla. 3d DCA 1998), the Third District construed the statute as follows:

In making its decision as to whether a permanent injunction should be extended, we believe that section 741.30(6)(b) requires a court to determine whether the petitioner’s professed continuing fear of the respondent is reasonable based upon all of the circumstances.

Id. at 190. We adopt this reasoning as our own. Accordingly, in order to obtain an extension of a domestic violence injunction, the moving party must present evidence from which a trial court can determine that a continuing fear exists and that such fear is reasonable, based on all the circumstances. See also Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001)(holding that when moving for an extension of a pre-existing injunction against domestic violence, the petitioner must establish either that additional domestic violence has occurred or that, at the time the petition for an extension is filed, he or she has a continuing fear of being in imminent danger of becoming the victim of domestic violence). Here, since the record o appeal is devoid of any showing that the wife sustained her burden of proving that she had a reasonable continuing fear of domestic violence, denial of her motion was warranted.

As to the wife’s claims of error relating to the trial court’s order denying her request for temporary alimony, we affirm this order, having found no reversible error.

The wife filed a motion requesting an award of temporary alimony and the trial court conducted a hearing thereon. During the hearing the parties presented evidence as well as argument of counsel. Upon review, the trial court summarily denied the motion but instructed the husband to pay the parties’ mortgage and automobile insurance.

The wife challenges this ruling, arguing that it is unsupported by the evidence. We disagree. While we agree the evidence presented by the parties was limited, the wife had the burden of presenting competent evidence to support her request, but failed to do so. Having failed to sustain her burden, the trial court properly denied her motion. See Powell v. Powell, 527 So.2d 260 (Fla. 3d DCA 1988)(holding that the trial court did not abuse its discretion in refusing to extend alimony payments beyond ten-year period provided for in settlement agreement, which was incorporated into judgment of dissolution, where wife failed to sustain her burden of showing substantial and material change in circumstances to justify extension).

Having rejected as meritless all of the wife’s claims of error, we affirm.

AFFIRMED.

SHARP, W. and PLEUS, JJ., concur.

      . See § 741.30(6)(b), Fla. Stat. (2001).

      . The wife has failed to provide this court with a transcript of the hearing or a stipulation of facts as authorized under rule 9.200 of the Florida Rules of Appellate Procedure. See Powers v. Powers, 831 So.2d 724 (Fla. 5th DCA 2002)(explaining that an appellant has the burden to bring forward a record adequate to demonstrate reversible error because we presume the decision of a trial court to be correct).


author: MONACO, J.

text:
    Edward SUPINSKI, M.D., Appellant, v. OMNI HEALTHCARE, P.A., Appellee.
    Nos. 5D03-563, 5D03-720.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.

      Douglas B. Brown and R. Travis Rentz, of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
    Jack A. Kirschenbaum, Alec D. Russell of Gray, Harris & Robinson, P.A., Melbourne, for Appellee.
   MONACO, J.

Edward Supinski, M.D. (“Dr.Supinski)”, appeals the entry of a temporary injunction issued in response to alleged breaches by him of a noncompetition restrictive covenant contained in his employment agreement with the appellee, Omni Healthcare, P.A. (“Omni”). We have jurisdiction of this nonfinal appeal in accordance with Article V, section (b)(1), Florida Constitution, and Rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure. As we conclude that the temporary injunction met the necessary legal requirements, we affirm, but remand for further consideration of the bond amount.

The facts, in truncated form, reflect that Dr. Supinski was recruited by Omni in the year 2000 to move to Florida from Pennsylvania to work in one of Omni’s facilities in Brevard County. Omni is a physician owned multi-specialty medical practice that operates three medical offices exclusively in central and southern Brevard County, and mainly in the Melbourne area. The parties negotiated an employment agreement effective August 1, 2000, for an initial term of 24 months. It was to terminate on July 31, 2002, unless automatically extended pursuant to its terms. More particularly, the agreement provided that it would automatically renew unless either party provided written notice of nonrenewal at least 180 days prior to the termination date.

The employment agreement contained a noncompetition restrictive covenant that was enforceable by injunction. In essence, the parties agreed that for a period of two years after the conclusion of his employment, Dr. Supinski would not compete against Omni within a ten mile radius of any of its offices in Brevard County, nor would he solicit Omni’s patients or employees. Dr. Supinski also agreed not to misappropriate Omni’s trade secrets or confidential information for a period of five years. He acknowledged that the restrictive covenant was reasonable and necessary for Omni’s protection and that he could earn a living outside the boundaries of the restricted territory.

Dr. Supinski began his employment in accordance with the contract. There is evidence that Omni assisted Dr. Supinski in becoming credentialed by various managed care organizations, helped him gain staff privileges at hospitals, hired his staff, advertised his practice, and aided him in establishing a patient base. On May 10, 2002, well short of the 180 day requirement, Dr. Supinski sent a letter to Omni asserting that he was not renewing his employment agreement, and that he would leave its employment on July 31, 2002.

As soon as his resignation was effective, Dr. Supinski opened his new practice approximately 4 miles from the care center at which he had previously been employed. Three days later Omni filed suit, asserting that Dr. Supinski had breached his employment agreement in a number of ways, including the failure to give the minimum notice of nonrenewal and the violation of the noncompetition provisions. Omni sought liquidated damages and temporary and permanent injunctive relief pursuant to the terms of the agreement and section 542.335, Florida Statutes (1999).

During the course of pleadings and discovery, Dr. Supinski denied that his resignation was untimely, and alleged that Omni had earlier breached the contract in a number of ways, the details of which are unimportant for purposes of this appeal. He admitted, however, that he had established his new office within 10 miles of an Omni care center, and that 40% of the patients at his new office were patients he treated while employed by Omni.

An evidentiary hearing was held to consider entry of a temporary injunction. Upon consideration of the evidence, the trial court concluded that the restrictive covenant was supported by legitimate business interests associated with a specific geographic location and a specific marketing area; that the terms of the restriction were reasonable; that Dr. Supinski materially breached the covenant by opening his practice within the proscribed area; that Omni would suffer irreparable harm unless an injunction were issued; and that the agreement did not violate public policy. The court granted the temporary injunction, and set bond at $50,000.

Several months later Dr. Supinski moved for an emergency modification of the temporary injunction. The motion contained many of the arguments previously considered by the trial court; asserted that the injunction was overbroad because it precluded him from opening an office within 10 miles of any Omni office, and covered all patients, not just those he had treated while at Omni; and argued that the bond amount was not supported by evidence. Dr. Supinski alleged that there was a “change in circumstances” to support the modification; namely a decision by the First District Court of Appeal in the case of University of Florida, Bd. of Trustees v. Sanal, 837 So.2d 512 (Fla. 1st DCA 2003). Omni responded that there were no changed circumstances, and that the bond amount had been stipulated to by the attorney who had previously represented Dr. Supinski at the earlier injunction hearing. Omni’s counsel indicated in this regard that the hearing had been running late and that the court reporter was unable to stay. Both sides agreed to waive the presence of a court reporter for the legal argument that was to follow. Omni’s counsel indicated further that the stipulation occurred during the time the reporter was not present.

The trial court declined to modify the injunction. As to the bond amount, the court said that he would not modify it based on the representations made by Omni’s counsel, and his own recollection that he did not pull the bond number “from thin air.” Counsel for Dr. Supinski asserted that he was surprised by the claim of a stipulation, and that he would have had the prior attorney present to testify if he had known. Counsel for Omni offered to have the prior attorney appear immediately by telephone to confirm that there was a stipulation on the amount of the bond. Apparently, however, the prior lawyer was not called. The trial court concluded the hearing, saying that Dr. Su-pinski had not met his burden for modification or vacation of the injunction. Dr. Supinski then appealed both the rendition of the temporary injunction, and the denial of his motion to modify.

The parties appear to agree that section 542.335(1), Florida Statutes (1999), is applicable to this case. So long as the covenant not to compete fits within the parameters of section 542.335, it may be enforced by the injunctive power of the courts. The grant or denial of a temporary injunction comes to an appellate court clothed with the presumption of correctness, and may be reversed only upon a showing of a clear abuse of discretion. See Knox v. District School Bd. of Brevard, 821 So.2d 311, 314 (Fla. 5th DCA 2002); Rollins, Inc. v. Parker, 755 So.2d 839, 841 (Fla. 5th DCA 2000); Anich Industries, Inc. v. Raney, 751 So.2d 767 (Fla. 5th DCA 2000).

It is well-settled that a party seeking a temporary injunction must demonstrate that: (1) there is a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) the petitioner has a substantial likelihood of success on the merits; (3) the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) the granting of a temporary injunction will not disserve the public interest. See Anich; Estate of Barsanti 773 So.2d 1206 (Fla. 3d DCA 2000); Florida High School Activities Ass’n v. Kartenovich, 749 So.2d 1290 (Fla. 3d DCA 2000). In the present case the trial court made findings of fact confirming that Omni satisfied each of these requirements.

Dr. Supinski urges initially, however, that the injunction is overbroad, and should be limited to preventing him from offering medical services only to those patients he actually treated while an employee of Omni. In support of this position Dr. Supinski cites University of Florida v. Sanal, 837 So.2d 512 (Fla. 1st DCA 2003).

In Sanal the University of Florida sought review of a summary final judgment entered against it on its complaint seeking enforcement of a noncompete provision contained in a contract of employment it had entered into with a physician. The contract provided that:

... you will not engage in a community based clinical practice within a radius of 50 miles from any location which has been the situs of your major faculty clinical teaching assignment within the 2 years preceding the date of termination.

After his employment ended Dr. Sanal began working with a Jacksonville oncology group which had a community based clinical practice located less than 50 miles from the University’s facility in Jacksonville. The University filed a complaint and one of Dr. Sanal’s affirmative defenses was that the non-compete agreement was “not reasonably necessary to protect any legitimate business interest of the University and was, therefore, unenforceable as a matter of law.”

In agreeing with the trial court’s decision not to enforce the covenant, the Sanal court noted that the University was unable to establish that Dr. Sanal had provided care to any of its former patients and was, in fact, unable to identify a single patient treated by Dr. Sanal during his employment with it who had followed him for continuing care. Moreover, the University had not realized any marked decrease in its hemotology/oncology patient population since Dr. Sanal started working for a competitor group. Dr. Sanal had treated only established patients of the Jacksonville oncology group and there was no evidence that a relationship with any existing patient had been affected. Nonetheless, the University argued that it was entitled to injunctive relief because it had a legitimate business interest in its “prospective patient base.” According to the University, its prospective patient base included all persons residing within a 50 mile radius of its Jacksonville facility because they “might need the services of a hemotologist/oneologist in the future.”

The lower court denied the University’s request for temporary injunctive relief and granted Dr. Sanal’s motion for summary judgment. The court specifically indicated that it was not precluding the University from filing another action in the event that the doctor either actively or passively solicited business from patients he formerly treated while employed at the University. The First District Court of Appeal affirmed, holding that the University failed to establish that it would suffer irreparable injury to a “legitimate business interest,” as that term is defined in section 542.335(1)Gb), Florida Statutes (1999).

Dr. Supinski can draw little solace from Sanal. The lower court found, based on substantial competent evidence in the record and in accordance with section 542.335, that Omni had legitimate business interests to protect and that the issuance of a temporary injunction was necessary to protect those interests. Dr. Supinski has admitted that 40% of his clientele were persons he treated while at Omni, and that his new office was well within the proscribed area. Omni established to the satisfaction of the trial judge that Dr. Supinski interfered with “substantial relationships with prospective ... patients” within the meaning of the statute, and we do not perceive any abuse of discretion by the trial court in this regard.

Dr. Supinski also suggests that the trial court erred in enforcing the spatial aspects of the injunction so that he is prohibited from opening an office within 10 miles of each of its several facilities. He argues that he should only be prohibited from competing within 10 miles of the office he actually worked in. This argument might have some merit if the various offices were widespread. The fact is, however, that the various Omni facilities are all located primarily in a confined area of southern Brevard County, and that Dr. Supinski is free to work in the north part of the county or in any other county. That the distance is measured from more than one office is, thus, largely irrelevant. If the geographic restriction had been defined as encompassing all of Brevard County, we suspect there would have been no reason for Dr. Supinski to complain. As the restriction covers far less, the force of his argument wanes.

This case is unlike Open Magnetic Imaging, Inc. v. Nieves-Garcia, 826 So.2d 415 (Fla. 3d DCA 2002), where the restricted party worked in one county, yet was barred from practicing in three. The lower court found that the provision was too restrictive, and declined to enforce it on such a widespread basis. The Third District affirmed on this point, finding that the trial court’s assessment regarding the overbroad nature of the restriction was correct, but remanded for the trial court to modify and narrow the breadth of the covenant in accordance with the requirements of the statute. In the present case, however, we find no abuse of discretion in the enforcement of the geographic restriction as written.

Dr. Supinski next argues that because Omni breached the employment agreement, he was entitled to terminate the agreement without the onus of the restrictive covenant barring his options. More specifically, he argues that the trial court misinterpreted the contract with respect to his compensation. As a subset of this position, Dr. Supinski argues that according to Omni’s calculations, although he was entitled to be paid as a part of his compensation $108,823.50 for net adjusted collections during the second year of his employment, he was actually paid $1,000.00 less than that. Omni responded by asserting that the withhold was necessary because Dr. Supinski failed to purchase “tail insurance,” as he was required to do under the contract, and that Omni would have to do so on its own. The trial judge disagreed with Dr. Supinski, and we do as well.

One applying for a temporary injunction to enforce a noncompete agreement must show, among other things, a likelihood of success on the merits. See Cordis Corp. v. Prooslin, 482 So.2d 486, 489 (Fla. 3d DCA 1986). The person against whom the injunction is sought may offer as a defense that the moving party has materially breached the contract. If the employee introduces evidence of the employer’s breach, as the employee is entitled to do pursuant to section 542.335(g)3, Florida Statutes (1999), the employer must then demonstrate that it is likely to succeed on the merits of the proffered defense, as well. See Bradley v. Health Coalition, Inc., 687 So.2d 329, 333 (Fla. 3d DCA 1997).

The trial court found that Dr. Supinski “failed to produce sufficient evidence to establish a breach of contract or wrongful act” by Omni, and determined that Omni “has established a significant likelihood that it will prevail on the merits after trial.” After carefully reviewing the record, we find no abuse of discretion in these findings and substantial competent evidence to support them. Moreover, given the small differential in the claimed net adjusted collections versus the paid adjusted collections, the materiality of the breach, if any, is questionable.

Finally, Dr. Supinski argues that the lower court erred in setting the amount of the injunction bond. He alleges that the court heard no evidence justifying the amount of the bond, and that the bond was, therefore, arbitrary. Omni argues that prior counsel for Dr. Supinski stipulated to the $50,000 bond amount at a time when the court reporter had been discharged. According to Dr. Supinski, however, the court reporter was discharged only for purposes of recording the final arguments of the attorneys, and for no other purpose. The trial judge apparently has no strong recollection of the events that led to the bond amount being inserted, and Dr. Supinski’s former attorney was not present at the hearing to confirm or deny the existence of a stipulation.

Before setting the amount of an injunction bond a trial court must have some basis for the exercise of its discretion. See AOT, Inc. v. Hampshire Mgmt. Co., 653 So.2d 476 (Fla. 3d DCA 1995); Resorts Mgmt., Inc. v. Olsen, 651 So.2d 194 (Fla. 2d DCA 1995). Given the confusion in the setting of this bond amount, the fairest thing to do under these peculiar circumstances is to affirm the issuance of the temporary injunction, but remand the case to the lower court with directions to conduct an evidentiary hearing concerning whether the bond amount was the subject of a stipulation of the parties. If there was a stipulation, then the bond should remain as set. If not, then the court is directed to hold an evidentiary hearing addressing the proper amount of the injunction bond. Pending those determinations, however, the injunction as issued shall remain in place.

AFFIRMED and REMANDED.

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

      .Section 542.335(1), Fla. Stat. (1999), reads in pertinent part:
      (1) ... [Enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:

      (b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term "legitimate business interest" includes, but is not limited to:
      1. Trade secrets, as defined in s. 688.002(4).
      2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
      3. Substantial relationships with specific prospective or existing ... patients....
      4.... [Patient], or client goodwill associated with:
      a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or "trade dress”;
      b. A specific geographic location; or
      c. A specific marketing or trade area.
      5. Extraordinary or specialized training. Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
      (c) A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is over-broad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.

      (g) In determining the enforceability of a restrictive covenant, a court:
      1. Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought....
      3. Shall consider all other pertinent legal and equitable defenses.
      4. Shall consider the effect of enforcement upon the public health, safety, and welfare.
      (h) A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.

      (j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant. No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving file requirement of an injunction bond or limiting the amount of such bond.

      . We note that the "Supplemental Appendix” filed on behalf of Dr. Supinski contains nothing but documents that came into existence after these appeals were filed. In addition, a number of documents in the original Appendix came into existence after the orders being appealed. These documents were clearly not before the trial court when it made its determinations and rendered the orders being reviewed. It is elemental that appellate courts will not consider evidence that was not presented to the trial court for its consideration in making its decisions. Our function is to determine whether the trial court committed error on the basis of the evidence and issues before it. See, e.g., Hillsborough County Bd. of County Cmm’rs. v. Public Employees Relation Comm’n., 424 So.2d 132, 134 (Fla. 1st DCA 1982). Omni has moved to strike Dr. Supinski’s briefs and appendices because of this transgression. Rather than do so and consequently prolong these proceedings, we have noted the motion and have ignored any document filed after the rendition of the orders being appealed, as well as any comments in Dr. Supinski’s briefs referencing them.


author: THOMPSON, J.

text:
    Bernard Leon ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-501.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Bernard Leon Allen appeals an order changing his mandatory minimum sentence from three years to ten years. We affirm.

Allen was convicted of carjacking with a firearm in violation of section 812.133, Florida Statutes (2000). Originally, the trial court sentenced Allen to twenty years of incarceration, and specified in the order that the sentence carried a mandatory minimum term of three years: “It is further ordered that the 3-year minimum imprisonment provisions of section 775.087(2), Florida Statutes, is hereby imposed for the sentence specified in this count.” Section 775.087, Florida Statutes (2000), actually mandated a minimum sentence of ten years, and provided that the defendant would not be eligible for statutory gain-time or any form of discretionary release prior to serving the minimum sentence. In his first appeal, Allen contended that there was insufficient evidence that he possessed a firearm during the commission of the carjacking, and that the mandatory minimum provision was erroneous because Allen had been removed from the courtroom by the time the trial court announced the minimum term. In Allen v. State, 799 So.2d 284 (Fla. 5th DCA 2001), we affirmed the conviction and sentence. The state did not cross appeal. Id.

After remand, Allen moved for modification of his sentence, asserting that the trial court might have received an incorrect impression of Allen’s juvenile history and that he had changed in the time he had thus far spent in prison. The court denied the motion, but noticed that Allen should have been sentenced to a minimum term of ten years rather than three years. The trial court concluded that the original sentence was illegal and modified the sentence to provide for the statutorily mandated minimum term of ten years. On appeal, Allen contends that the original sentence was legal and that by modifying it, the trial court violated his right to be free of double jeopardy. We conclude that the original sentence was illegal and that the court properly corrected it.

First, we do not agree with the state’s argument that the modification had no effect on Allen’s sentence. When a statute mandates a minimum sentence, the sentencing court must specify it on the sentencing order. D’Alessandro v. Shearer, 360 So.2d 774, 775 (Fla.1978) (issuing mandamus requiring trial court to recite that five-year sentences were subject to three-year minimum mandatory provisions because without such a recitation the authorities would not be on notice that the case calls for a minimum of three years service in prison, and even if authorities received notice by other means, without a judicial order, it would be questionable whether minimum service was required); see also State v. Johnson, 627 So.2d 98 (Fla. 4th DCA 1993) (en banc) (receding from State v. Moran, 561 So.2d 685 (Fla. 4th DCA 1990)); State v. McKenzie, 574 So.2d 1176 (Fla. 5th DCA 1991) (en banc) (receding from State v. Hall, 538 So.2d 468 (Fla. 5th DCA 1989)).

In arguing that the modification had no effect on the sentence, the state relies on Johnson and McKenzie, in which sentencing orders were reversed because the trial courts failed to check boxes on the sentencing forms indicating the mandatory minimum terms. Although the sentencing orders were reversed, it was considered likely by the majority in Johnson and the dissents and concurrence in McKenzie that the failure to check the box designating the minimum sentence would have no effect on the time served by the defendants because the Department of Corrections would be aware of and follow any statute precluding it from awarding gain time until expiration of the mandatory minimum term. Thus, the state’s argument is essentially that the department would have ignored the three-year mandatory minimum sentence imposed by the court in the original sentencing order, so the modification of the sentence could not have changed anything. The instant case is not like Johnson and McKenzie, where the orders were silent regarding the minimum terms, because here the original sentence clearly required a three-year minimum term. Cf. Fuston v. State, 838 So.2d 1205 (Fla. 2d DCA 2003) (corrections department, which informed trial court that it would treat the defendant’s sentence as though a minimum term had been imposed, has no authority to impose a more onerous sentence upon a prisoner than the sentence actually imposed by the trial court, and it has no authority to disobey or reverse an unambiguous sentence); Moore v. Pearson, 789 So.2d 316, 319 (Fla.2001) (corrections department, which refused to give effect to court’s sentencing structure based on a statute requiring service of 85% of a sentence, violated the separation of powers doctrine, and the sentence, which was ordered to be co-terminus with the defendant’s previously imposed sentence, did not constitute “court-ordered gain time,” but was a lawful mitigation of sentence).

Furthermore, we conclude that the sentence was subject to correction if it was illegal. A court may not increase a “legal” sentence once the defendant has begun to serve the sentence. See e.g. Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996) (once a legal sentence is imposed, jeopardy attaches and the defendant cannot be resentenced to a greater term of imprisonment), approved, Ashley v. State, 850 So.2d 1265 (Fla.2003). However, “[a] court may at any time correct an illegal sentence imposed by it_” Fla. R.Crim. Pro. 3.800(a). Rule 3.800(a) was designed to provide relief to a defendant from the prejudicial effects of an illegal sentence, but it does not flatly prohibit the state from fifing the motion. Robinson v. State, 757 So.2d 532 (Fla. 4th DCA 2000) (state properly sought relief from illegal sentence under rule 3.800(a), but withholding of adjudication, although improper, was not “illegal”). Cf. Gartrell v. State, 626 So.2d 1364 (Fla.1993) (“Because neither an illegal sentence nor a calculation error was involved in this case, rule 3.800(a) was clearly the improper vehicle for the State to use,” and the state should have appealed the departure sentence entered without required written reasons).

In Carter v. State, 786 So.2d 1173 (Fla.2001), the court held that a habitual offender sentence for a fife felony, imposed when the habitual offender statute did not authorize it, was illegal. For that defendant, the length of the sentence was not affected by the habitual offender designation because the court had entered a proper upward departure sentence. Id. at n. 6. The court recognized, however, the collateral consequences of the habitual offender designation:

Nonetheless, improper habitualization may have collateral consequences that could ultimately increase the length of Carter’s sentence. See generally Ashley v. State, 614 So.2d 486, 489 (Fla.1993) (stating that the habitual offender statute “ensures that defendants will serve a greater portion of their sentences by eliminating the possibility of early release through parole, or accrual of basic or meritorious gain-time or provisional credits” and habitual violent felony offenders receive mandatory minimum terms).

Id.

The supreme court held that the sentence was illegal because:

as a matter of law, the version of section 775.084, Florida Statutes, in effect at the time of the sentencing unquestionably did not permit habitualization for life felonies. Carter received the more onerous terms and conditions of a habitual offender sentence when the existing law plainly and clearly did not authorize the imposition of a habitual offender sentence. The terms and conditions of Carter’s sentence are illegal for purposes of rule 3.800(a) as a matter of law because they exceed those authorized by statute for the adjudicated offense of second-degree murder with a weapon.

In addition, the error was apparent on the face of the record and was “the kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” Id. at 1181 (quoting Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999)).

The instant case is the flip side of Carter. As in Carter, the only sentencing factor in issue is the mandatory minimum sentence, except that in this case the sentence was shorter than the law required. Allen received a mandatory minimum sentence that the statute unquestionably did not authorize, and as a result he received less onerous sentencing terms and conditions than he should have. As in Carter, Allen’s sentencing error is apparent on the face of the record, and it is not one that could be imposed under any set of factual circumstances. Based on Carter, we must conclude that Allen’s sentence was illegal and subject to correction under rule 3.800(a).

We distinguish Ashley, 850 So.2d 1265, in which the supreme court reversed an amended sentencing order imposing a mandatory minimum term, but in which the original sentence was valid. It does not offend double jeopardy principles to resen-tence a defendant to harsher terms when the original sentence was invalid, particularly when, as in the instant case, it is the defendant who brings his sentence into question. Compare, United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (double jeopardy clause does not provide defendants with a right to know at any specific moment in time what the exact limit of his punishment will turn out to be); Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947) (resentencing that imposes a more severe sentence to correct an omitted mandatory penalty does not violate the double jeopardy clause); Bover v. State, 797 So.2d 1246 (Fla.2001) (claim that felonies predicate to imposition of habitual offender sentencing were not sequential and therefore could not support habitual offender sentence is cognizable under rule 3.800(a), but state should have the opportunity to show that other prior felonies satisfied sequentiality requirement); Harris v. State, 645 So.2d 386 (Fla.1994) (defendant had no expectation of finality regarding his sentence where he opened the door to the district court’s appellate jurisdiction on an issue of law that was clarified while his case was still pending); Roberts v. State, 644 So.2d 81 (Fla.1994) (when resentencing a defendant after revocation of probation, a trial court may consider prior convictions that were omitted from the sentencing score-sheet even if the omission was not the fault of the defendant).

AFFIRMED.

SAWAYA, C.J., and TORPY, J., concur.


author: GRIFFIN, J.

text:
    Barry BINDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4027.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Defendant below, Barry Binder [“Binder”], appeals his judgment and sentence, contending that the trial court erred by denying his motion to dismiss Count II of the information.

Binder was charged by a two-count information: Count I, failure of a sexual offender to report at driver’s license office for renewal of license and after any change in residence and Count II, failure of sexual offender to make report of intent to change residence to Florida Department of Law Enforcement or Sheriff. The information was subsequently amended by the State, changing the date of the offense from May 16, 2002 to between February 16, 2002 and July 19, 2002. Count II specifically charged:

Lawson Lamar, State Attorney .of the Ninth Judicial Circuit prosecuting for the State of Florida in Osceola County ... by and through the undersigned Designated Assistant State Attorney, under oath, charges that [Binder] ... in said County and State, did, in violation of Florida Statutes 943.0435(7) and 943.0435(9), fail to report in person at an office of the Sheriff of Orange County, the county of [Binder’s] residence, or the Florida Department of Law Enforcement, within forty-eight (48) hours before the date he intended to establish residence in another state or jurisdiction

On November 25, 2002, Binder filed a motion to dismiss Count II of the information on double jeopardy grounds. On the same day, Binder entered a plea of nolo contendere on both counts in exchange for a sentence of a maximum of 30 months’ imprisonment. Defense counsel and the State stipulated that the motion to dismiss Count II of the information would be heard at the sentencing hearing, but meanwhile Binder would be adjudicated guilty and sentenced to 30 months on both counts with the understanding that, if the motion to dismiss Count II were granted by the court, the sentence would be modified to 16.5 months imprisonment for Count I.

After Binder’s plea, the State set forth the factual basis for the charges. Binder had been convicted of a lewd act on a child in May 1998, making him eligible for the sexual offender reporting requirements. On July 19, 2002, two Kissimmee Police Department officers spoke with the manager of the Lambert Inn located at 410 West Vine Street in Kissimmee and determined that Binder had been staying at that hotel since February 16 or 17, 2002. At that time, Binder was registered at 1204 Royal Street in Kissimmee, as ascertained by another officer when she ran a license plate check on Binder’s vehicle. The State concluded that Binder was in violation of the law by failing to report his change in address as well as in failing to inform the Sheriffs Office of his intent to make that change. At the end of the State’s presentation, the court found a sufficient factual basis to establish a prima facie case of guilt for the offenses charged and accepted the plea.

At the subsequent sentencing hearing, on December 6, 2002, Binder first attacked Count II on double jeopardy grounds, citing to State v. Anderson, 695 So.2d 309 (Fla.1997) and Gordon v. State, 780 So.2d 17 (Fla.2001). His position was that Count II should be dismissed as duplicative of Count I for impermissibly punishing different degrees of the same crime. Binder noted that under section 943.0435(4), the Department of Highway Safety and Motor Vehicles is charged with forwarding to the Department of Law Enforcement all photographs and information provided by the sexual offender. Binder argued that by complying with this statute in registering with the Department of Highway Safety and Motor Vehicles he is also registering with the Department of Law Enforcement since the information will be forwarded. Binder concluded he was being punished twice for the same offense of failing to register and that this was an instance of either double jeopardy on the grounds of the same degree of the offense or lesser offense.

The State responded that each crime contained an element that the other did not, i.e. one required registration with the Department of Law Enforcement and one required registration with the Department of Highway Safety and Motor Vehicles. Therefore, the State asserted Binder was not put in double jeopardy. The State also argued that the fact that the statute mandates the Department of Highway Safety and Motor Vehicles to release information to the Department of Law Enforcement does not affect the conduct required of Binder.

The trial court denied Binder’s motion to dismiss Count II on double jeopardy grounds. We agree with the trial court that the two charged offenses are separate and no double jeopardy violation occurred when Binder was convicted of both.

On appeal, Binder argues in the alternative that even if charging the two offenses did not violate double jeopardy, Count II should still be dismissed on the grounds that it charged a “non-existent” offense (failure to state or report an intent to leave the jurisdiction). Indeed, there is no suggestion in the record of any intent to move out of the state or the Ninth Circuit or even leave Osceola County; therefore he could not violate subsection (7) which requires sexual offenders to report an intent to establish residence in another state or jurisdiction within 48 hours prior to relocation. The State “concedes that the record demonstrates that [Binder] did not leave the state or jurisdiction as he was previously living in Kissim-mee and moved to another address within Kissimmee.” However, the State urges that Binder’s argument has to be that there was no factual basis for the plea, and this issue was not preserved due to his failure to object at the plea hearing as well as his failure to file a motion to withdraw his plea.

It does appear that the State charged Binder with the wrong offense. Based on the facts in the charging affidavit, it appears that Binder may have violated subsection (2) rather than subsection (7), but we cannot tell from this record why this discrepancy appears to have received no notice. Perhaps it did not matter to Binder, for reasons not apparent on this record. In any event, since Binder did not object, reserve the right to appeal or move to withdraw his plea, he may not attack this conviction here. See Brawley v. State, 815 So.2d 789 (Fla. 4th DCA 2002); D.P.J. v. State, 779 So.2d 291 (Fla. 2d DCA 1998); Nettles v. State, 673 So.2d 547 (Fla. 4th DCA 1996); Fla. R.App. P. 9.140(b)(2); § 924.051(4), Fla. Stat. (2002).

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

      . Sections 943.0435(7) and 943.0435(9), Fla. Stat. (2002).

      . The State asserted that the charge was based on the fact that Binder had been living at one address in Kissimmee while he was registered at another address in Kissimmee.


author: ORFINGER, J.

text:
    Beverly GRUBER, Petitioner, v. CAREMARK, INC., Respondent.
    No. 5D03-866.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Petitioner.
    Mark A. Faris of Hinshaw & Culbertson Ft. Lauderdale, for Respondent.
   ORFINGER, J.

Beverly Gruber seeks certiorari review of an order staying the enforcement of an order entered by a Judge of Compensation Claims (JCC) in her worker’s compensation proceeding. For the reasons discussed below, we grant the petition.

After Gruber was involved in a work-related accident while employed by Care-mark, Inc., Gruber filed a claim for worker’s compensation. Caremark’s worker’s compensation insurer was Legion Insurance Company. While Gruber’s worker’s compensation claim was pending, an order was entered in the Commonwealth Court of Pennsylvania, placing Legion into rehabilitation. Paragraph 24 of the rehabilitation order provided:

(a) All court actions, arbitrations and mediations currently or hereafter pending against Legion in the Commonwealth of Pennsylvania or elsewhere are hereby stayed, (b) All court actions, ar-bitrations and mediations currently or hereafter pending against an insured of Legion in the Commonwealth of Pennsylvania or elsewhere are stayed for 90 days from the effective date of this order or such additional time as the reha-bilitator may request.

Orders extending the stay through the date of Gruber’s petition were entered later.

While the stay was in effect, Gruber and Caremark entered into a settlement regarding the worker’s compensation claim. Gruber, Caremark and Gallagher-Bassett Services, Caremark’s servicing agent, also agreed to the entry of a stipulated order requiring Caremark/Gallagher-Bassett to pay Gruber’s attorney the amount of $7,400 to resolve Gruber’s claim for attorney’s fees and costs. Based on the stipulation, the JCC then entered an order for attorney’s fees that provided:

The employer/servicing agent shall have 30 days from the date of entry of this order to pay the counsel for claimant, David Hill, $7,400.00 for full and final resolution of all attorney’s fees and costs due and owing regarding the above-captioned case from the date of accident April 25, 1997 through entry of this order.

When the attorney’s fee remained unpaid, Gruber filed a rule nisi petition against Caremark in the circuit court pursuant to section 440.24(1), Florida Statutes (2002), seeking enforcement of the order awarding attorney’s fees, alleging that Caremark had failed to pay the attorney’s fees as ordered by the JCC. In response, Caremark asserted that the JCC’s order was unenforceable because of the Pennsylvania stay order. Following the rule nisi hearing, the circuit court continued the proceedings, citing Frontier Insurance Co. v. American Title Services, 838 So.2d 1178 (Fla. 5th DCA 2003) until such time as the stay entered by the Pennsylvania court is lifted, effectively denying Gruber’s petition.

In Frontier Insurance Company, this court quashed a circuit court order that granted relief from a stay entered by a foreign court in a rehabilitation proceeding involving Frontier as an insolvent insurer. We held that because both Florida and New York, Frontier’s home state, had adopted a version of the Uniform Insurer’s Liquidation Act (UILA), see generally Chapter 631, Florida Statutes (2002), the public policy of Florida required cooperation with reciprocal states in rehabilitation proceedings involving an insolvent insurer. As a result, we held that under the principles of comity, the circuit court should have honored the stay entered by the New York court. Importantly, Frontier was the defendant in the Florida action; in this action, Legion is not.

Gruber asserts that Frontier Insurance Company is inapposite to the instant case, arguing that the application of a stay should have been raised in the underlying worker’s compensation proceedings, not in the rule nisi proceedings in the circuit court. Gruber also argues that the order sought to be enforced in the rule nisi proceedings is not against Legion, but rather against Caremark based on the agreement she made with Caremark while the stay was in effect. Gruber argues that by entering into the stipulation regarding the payment of attorney’s fees, Caremark waived any benefit of the stay.

The order of the Pennsylvania court stayed all actions against Legion and Legion’s insureds, including Caremark. Pennsylvania is Legion’s domiciliary state under section 631.011(7), Florida Statutes (2002), and arguably is a reciprocal state under section 631.011(20), Florida Statutes (2002). See Twin City Bank v. Mut. Fire Marine & Inland Ins. Co., 646 F.Supp. 1139 (S.D.N.Y.1986), aff'd, 812 F.2d 713 (2d Cir.1987) (although Pennsylvania has not formally adopted UILA, Pennsylvania should be considered a reciprocal state because it provides for the six central remedies supplied by the UILA). As a result, the Pennsylvania stay order would normally be honored in Florida under the principles of comity.

However, the issues that can be litigated in a rule nisi proceeding are limited. A rule nisi proceeding is for enforcement purposes only. The circuit court determines whether a JCC order is in full force and effect, and if it is, then issues a writ of execution or some other process to enforce the JCC order (assuming, of course, proper jurisdiction). In a rule nisi proceeding, the circuit court cannot determine issues which were raised, or should have been raised before the JCC. See Merritt v. Promo Graphics, Inc., 691 So.2d 632, 634 (Fla. 5th DCA 1997) (rule nisi procedure is not to be used to determine merits of underlying worker’s compensation order or to resolve factual disputes between parties); Marion Corr. Inst., Fla. Dep’t of Corrs. v. Kriegel, 522 So.2d 45 (Fla. 5th DCA 1988). Caremark did not claim the benefit of the stay before the JCC. As a result, we conclude that Care-mark waived the benefit of the stay in the rule nisi proceeding. Cf. Snyder v. Douglas, 647 So.2d 275, 277 n. 4 (Fla. 2d DCA 1994) (where statutory stay was deemed waived when not raised before the court).

The stay was entered in Pennsylvania, Legion’s domiciliary state, for the benefit of Legion, its insureds and Legion’s receiver, to give them temporary relief from creditors and other obligations, such as the defense of lawsuits and settlement of claims. Nevertheless, Caremark was free to waive the stay in the instant case, particularly since Legion was not a party to the stipulation. Legion’s assets are not affected by the JCC’s order or the rule nisi proceeding, since Gruber only named Caremark as the respondent. Cf. Jack-O-Lantern Spectacular, Inc. v. Usovicz, 16 Mass. L. Rptr. 335, 2003 WL 21500594 (Mass.Super.Ct.2003) (where action is not directly against the troubled insurer, but against its insured under a liability policy, the insurer’s assets are not directly at risk and the reasons for enforcing a foreign court’s stay of litigation is a good deal less compelling than it might be in a direct action against an insurer). Had Caremark claimed the benefit of the stay before the JCC, under principles of comity, the JCC would have been required to stay the worker’s compensation proceedings until the Pennsylvania stay was lifted. However, as Caremark did not raise that issue before the JCC, we conclude Caremark waived the benefit of the stay.

CERTIORARI GRANTED, ORDER QUASHED.

GRIFFIN and MONACO, JJ, concur.

      . That settlement is not an issue in this proceeding.

      . Curiously, in the order approving the stipulation on attorney’s fees, the servicing agent (Gallagher-Bassett) is listed as the carrier, not Legion. A servicing agent usually administers the worker's compensation claim, and is not the insurer. The servicing agent does not generally enter into a stipulation unless there are existing funds to pay the settlement or fees. However, the rule nisi petition was filed only against Caremark, the employer, so any questions concerning the servicing agent’s obligations or liabilities as a party to the stipulation is beyond the scope of this certiorari proceeding.


text:
    James M. SOOKOV, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2131.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    James M. Sookov, Lake City, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

James M. Sookov appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Sookov was charged with arson and was tried, convicted, and sentenced to seventeen years in prison. His conviction was affirmed on direct appeal. Sookov v. State, 833 So.2d 155 (Fla. 5th DCA 2002). Although Sookov raises numerous claims of ineffective assistance of counsel in his rule 3.850 motion, only one merits further discussion and an evi-dentiary hearing.

Sookov contends that his counsel was ineffective for failing to call, interview or investigate three alibi witnesses. Sookov asserts that he informed his trial counsel that he had been drinking and dining with Donna and Denise Reynolds on the night of the fire. He further maintains that he told counsel where the two women could be located. Sookov also claims that he told counsel about another “alibi” witness, a drug dealer who would have testified that he sold cocaine to Sookov’s wife, the victim of the arson, and that the witness would have testified that other cocaine dealers had threatened to burn down the wife’s home if her drug debts went unpaid. Sookov states that he gave counsel the drug dealer’s name, and advised counsel that the drug dealer was in the same jail as Sookov and had agreed to testify. However, Sookov contends that counsel failed to interview, depose or subpoena this witness.

These allegations adequately state a legally sufficient ineffective assistance of counsel claim. See Brooks v. State, 710 So.2d 595, 597 (Fla. 1st DCA 1998). Sookov identified the prospective witnesses that trial counsel should have called and their whereabouts, stated the substance of the witnesses’ testimonies, and explained how the alleged omission prejudiced the outcome of the trial in that, had these witnesses testified, there is a probability that he would have been found not guilty. Because the trial court denied this claim without the requisite attachments showing why the omission of the testimony of these witnesses would have made no difference, we reverse and remand either for attachments conclusively refuting this claim or for an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find no merit in Sookov’s remaining claims.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . Based on the limited record before us, we are unable to say if the drug dealer's testimony would have been admissible at the trial.


author: BENTON, J.

text:
    Joe T. MASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0523.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.

      Nancy A. Daniels, Public Defender; Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Joe T. Mason brings this direct appeal from conviction and sentence for violating section 790.23(l)(d), Florida Statutes (Supp.1998), which outlaws possession of a firearm by a person who has been found “guilty of an offense that is a felony in another state.... ” We reverse.

The state introduced two documents to prove that appellant was a convicted felon when he possessed a firearm: Judgment and Sentence on Plea of Not Guilty (Judgment) dated February 21, 1985, and the antecedent Indictment, both filed in Car-lisle County, Kentucky, and both styled “Commonwealth of Kentucky v. Joe Mason.” Neither document contained fingerprints, a middle initial, or any other means of identifying appellant as the Kentucky convict.

After the state rested, the defense moved for judgment of acquittal on grounds that “the state has failed to prove to the jury the fact that Mr. Mason is a convicted felon. There’s no ... identifiers linking the prior conviction to Mr. Mason.” The trial court denied the motion, and we now review that ruling. At issue is the sufficiency of the evidence, not its legal weight. See generally State v. Brockman, 827 So.2d 299 (Fla. 1st DCA 2002). “[A]n order on a motion for a judgment of acquittal is reviewed by the de novo standard.” Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001).

The trial court’s denial of the motion for judgment of acquittal was error. See Stovall v. State, 727 So.2d 1009, 1009-10 (Fla. 5th DCA 1999) (reversing conviction for possession of firearm by a convicted felon because a certified copy of a prior felony conviction with defendant’s name on it did not establish the defendant’s identity as the perpetrator); Monson v. State, 627 So.2d 1301, 1302 (Fla. 1st DCA 1993) (“[T]he trial court erred by denying appellant’s motion for judgment of acquittal on the charge of possession of a firearm by a convicted felon, because the state failed to prove ... that the person named in the certified armed robbery judgment was appellant.”); Napoli v. State, 596 So.2d 782, 786 (Fla. 1st DCA 1992) (“We ... emphasize that the state must present evidence of more than mere identity between the name on the prior judgment and the name of the defendant for the prior judgment to be admissible.”); Sinkfield v. State, 592 So.2d 322, 323 (Fla. 1st DCA 1992) (“[Mjere identity between the name appearing on the prior judgment and the name of the defendant on trial does not satisfy the state’s obligation to present affirmative evidence that they are the same person.... Sinkfield’s conviction for possession of a firearm by a convicted felon must be reversed, and Sinkfield discharged.”); Killingsworth v. State, 584 So.2d 647, 648 (Fla. 1st DCA 1991) (holding trial court erred in denying motion for judgment of acquittal on possession of a firearm by a convicted felon charge, where the only evidence offered to prove defendant was a convicted felon was a certified copy of a judgment containing the defendant’s name).

The state argued here and below that “the Kentucky judgment contained appellant’s name, date of birth, and social security number.” This misstates the record. Neither the Judgment nor the Indictment contains appellant’s middle initial, date of birth or social security number. What does contain appellant’s middle initial, date of birth and social security number is the clerk’s Certification of Records, certifying that the Kentucky Judgment and Indictment are true and correct copies of the originals. A Certification of Records dated December 10, 2001, was available at the túne of trial.

The extraneous information in the Certification of Records was not, however, offered — and would not have been admissible — as substantive evidence. See Charles W. Ehrhardt, Florida Evidence § 902.5, at 929 (2003 ed.) (“If the officer’s certification contains matter extraneous to the authentication of a document, it is hearsay and is inadmissible unless an exception applies.”); U.S. v. Stone, 604 F.2d 922, 925 (5th Cir.1979) (“When an ex parte affidavit presents evidence beyond the simple authentication requirements ... the extraneous portions of the affidavit constitute inadmissible hearsay....”); U.S. v. Stout, 667 F.2d 1347, 1352-53 (11th Cir.1982) (reversing convictions because, apart from the inadmissible portions of two National Firearms Registration and Transfer Record certifications, the evidence was insufficient). The trial court explicitly found, regarding the Certification of Records attached to State’s Exhibit No. 8, that “the only thing that it adds is certification of court records.”

When copies of the Judgment and Indictment were originally furnished to the defense, no certification accompanied them. Signed later by a clerk in Kentucky, the Certification of Records relied on at trial is dated the day of trial. It arrived by facsimile transmission and was objected to on grounds, among others, of surprise. As far as the record before us reveals, the middle initial, date of birth and social security number that appear on the Certification of Records might as well have come from somebody in Florida as from the records of the Circuit Court in Carlisle County, Kentucky, generated more than fifteen years earlier when a Joe Mason was prosecuted there.

While the Certification of Records did not come in evidence itself, it did serve as predicate for admission of the Judgment and Indictment. But the Judgment and Indictment do not contain the requisite identifiers for finking appellant to the Kentucky convict. See, e.g., Stovall, 727 So.2d at 1009-10; Napoli v. State, 596 So.2d at 786; Sinkfield v. State, 592 So.2d at 323. Under the cases, the state’s evidence was insufficient to establish the essential element of appellant’s prior conviction of a felony, and the trial court erred accordingly in denying appellant’s motion for judgment of acquittal at the close of the state’s case-in-chief. See, e.g., Monson v. State, 627 So.2d at 1302; Killingsworth, 584 So.2d at 648.

Reversed.

WOLF, C.J., and ERVIN, J., Concur.