author: FARMER, J.

text:
    Alfred HURST, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-896.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Carey Haughwout, Public Defender, Susan D. Cline, Assistant Public Defender and Sherry Schwartz, Certified Legal Intern, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

During a trial that resulted in defendant’s conviction for possession with intent to sell cocaine, the state questioned a police officer as follows:

STATE: [D]id you have an occasion to come in contact with the defendant, Alfred Hurst?
WITNESS: Yes, I did.
STATE: Could you describe that for us?
WITNESS: I was contacted by a confidential informant who advised me that he or she could—
DEFENSE: Objection, hearsay.
COURT: Overruled.
WITNESS: That the subject was selling narcotics at a certain location in the city of Hollywood.
STATE: Based on the information received, what did you do?
WITNESS: I contacted other members of the team that were working that night and I drove by with the confidential informant into the target location where he and or she pointed out the subject to me.

Defendant argues on appeal that it was reversible error to admit this testimony, and we agree.

In State v. Baird, 572 So.2d 904 (Fla.1990), the court held:

“when the only purpose for admitting testimony relating accusatory information received from an informant is to show a logical sequence of events leading up to an arrest, the need for the evidence is slight and the likelihood for misuse is great. In light of the inherently prejudicial effect of an out-of-court statement that the defendant engaged in the criminal activity for which he is being tried, we agree that when the only relevance of such a statement is to show a logical sequence of events leading up to an arrest, the better practice is to allow the officer to state that he acted upon a ‘tip’ or ‘information received’ without going into the details of the accusatory information.”

572 So.2d at 908. Later in Conley v. State, 620 So.2d 180 (Fla.1993), the court said of the same kind of testimony:

“Even if we were to conclude that the testimony was not used to prove the truth of the matter asserted, the contents of the statement were not relevant to establish a logical sequence of events, nor was the reason why officers arrived at the scene a material issue in the case. As we said in Baird, the inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information to establish the logical sequence of events outweighs the probative value of such evidence. Such practice must be avoided.”

620 So.2d at 183. Still later in Wilding v. State, 674 So.2d 114 (Fla.1996), receded from on other grounds in Devoney v. State, 717 So.2d 501 (Fla.1998), the court faced the same kind of testimony and commented:

“Even if the testimony was offered simply to show the logical sequence of events regarding the murder investigation, its probative value clearly was outweighed by its prejudicial effect. As a general rule, the investigation leading to the defendant’s arrest is not at issue in a criminal trial. Placing information before the jury that a non-testifying witness gave police reliable information implicating the defendant in the very crime charged clearly could affect the verdict. More importantly, because Wilding could not cross-examine the unidentified witness, admission of this testimony violated his confrontation rights.”

674 So.2d at 119. And more recently, in Keen v. State, 775 So.2d 263 (Fla.2000), the court said of the same kind of evidence:

“This case closely parallels Wilding in that ‘the clear inference to be drawn from [Amabile’s] testimony’ was that the insurance industry with its resources had investigated the disappearance and discovered a murder, that Keen’s own brother had implicated him in the murder, and that ‘the information received was reliable because it had been verified by police who talked to [Shapiro].’ Wilding, 674 So.2d at 119. As a result, ‘the jury was led to believe that [the insurance companies and defendant’s brother], who did not testify and [were] not subject to cross-examination, had given the police evidence of [Keen’s] guilt, evidence that upon investigation proved to be reliable.’ Id. Because Wilding is squarely on point with regard to this type of testimony, we must next determine whether the error here was properly preserved and the standard of review we should apply in our analysis.”

775 So.2d at 274. As to the state’s contention that the testimony was admissible to show a sequence of events, the court said:

“We reject such contention. First, this Court clearly instructed in Baird, reaffirmed in Conley, and confirmed in Wilding that an alleged sequence of events leading to an investigation and an arrest is not a material issue in this type of case. Therefore, there is no relevancy for such testimony to prove or establish such a nonissue. When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label.”

Id.

We face the very circumstances in this case condemned by the court in this sequence of cases. Here the statement was not necessary to establish a logical chain of events, and the reason why the officers were at the scene was not a material issue. The information imparted to the officer by the informant effectively placed defendant in the commission of the very crime for which he stood trial. See also Schaffer v. State, 769 So.2d 496, 498 (Fla. 4th DCA 2000) (“Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible.”); Stribbling v. State, 778 So.2d 452 (Fla. 4th DCA 2001) (finding reversible error where detective improperly testified that he received a telephone message in which the defendant was named as a perpetrator). If the tip was so important to the state’s case, the procedure was clear. The state needed to call the informant as a witness, and let the witness be confronted by defense counsel.

The error in admitting this evidence was not harmless. Goodwin v. State, 751 So.2d 537, 542 (Fla.1999) (finding that the state must prove beyond a reasonable doubt that the error did not contribute to the verdict); Wilding, 674 So.2d at 114 (“Placing information before the jury that a non-testifying witness gave police reliable information implicating the defendant in the very crime charged clearly could affect the verdict.”).

Because the case must be retried we also comment that we find error in excluding defense evidence based on an alleged discovery violation. Though the court did find a discovery violation, the court failed to determine whether the violation was inadvertent or willful, trivial or substantial, and what effect it had on the state’s ability to prepare for trial. In Tarrant v. State, 668 So.2d 223 (Fla. 4th DCA 1996), the trial court failed to make a formal finding as to whether a discovery violation was trivial or substantial, whether it was willful or inadvertent, or whether it had any impact on the defendant’s ability to prepare for trial. Similarly, in this case, the court failed to make the same findings. On retrial the court should not refuse to admit the evidence because of the alleged discovery violation, as the concerns at trial surrounding it have long since been vitiated by this appeal.

REVERSED AND REMANDED FOR NEW TRIAL.

STEVENSON and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Robert FRATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4952.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant contends that the trial court erred when it granted his request to discharge his private counsel on the day his case went to trial, without giving him the opportunity to obtain new counsel. Unrepresented, appellant was convicted of burglary of a dwelling with an assault or battery and received a life sentence. We reverse.

At a hearing three weeks before trial, appellant informed the court that he wanted to discharge his private counsel because she had failed to attend two hearings, had not done sufficient discovery, and he was generally dissatisfied with her performance. She agreed to be discharged because she had no desire to represent a client who did not want her to represent him.

This case had been continued several times as a result of scheduling conflicts or poor communication between appellant’s privately retained counsel and the state. However, none of the continuances were caused by appellant, who was incarcerated and had waived speedy trial.

The court, which was concerned about appellant’s languishing in jail, questioned appellant’s counsel about her readiness for trial and found that she was not ineffective. It then queried appellant about his age, education, and understanding of criminal process, to determine whether appellant was competent to represent himself. In response appellant made it clear that he had no desire to represent himself, only to obtain other counsel. The court then advised appellant that he could discharge his counsel, but that he could not have a continuance of the trial scheduled to begin in twenty days.

On the morning trial was scheduled to begin, appellant, still represented by the same counsel, again informed the court that he wanted to discharge her, but that he was not competent to represent himself. The court responded:

[I]f you terminate her services that you are doing so freely and voluntarily based on your informed free will and you are freely and voluntarily exercising your right to self representation. I did not find any basis for incompetent assistance of counsel. I have no legal obligation to appoint another attorney for you. You can fire her if you wish. Ill send her out the back door. You’ll be representing yourself in this case.

At this point, appellant requested a court appointed attorney which the court refused. The court then discharged appellant’s private counsel and denied appellant’s request for a continuance, noting that this was one of the oldest cases on its docket.

A public defender who was present suggested that the trial court determine whether appellant was indigent so that the court could appoint counsel to represent appellant, but the court responded that appellant should allow his private counsel to represent him. The court then conducted the trial with appellant unrepresented, over appellant’s continued objections, and appellant was convicted.

If a defendant wishes to discharge court appointed counsel for being ineffective, and the court determines that counsel is not ineffective, the defendant is not entitled to additional court appointed counsel. Rather, the defendant must either keep that counsel or represent himself. Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1978). In the present case the court erred by assuming that Nelson, which applies only when a defendant seeks to replace one court appointed counsel with another, applied to appellant’s attempt to discharge his private counsel.

A criminal defendant has the right to select his own private counsel, so long as he is not seeking to delay or otherwise subvert judicial proceedings. Foster v. State, 704 So.2d 169 (Fla. 4th DCA 1997) and cases cited therein. In this case, the court made no finding that appellant was attempting to delay the proceedings or was otherwise in bad faith. As we noted earlier, none of the prior delays were attributable to appellant, and it appears that the court was primarily concerned with the fact that the appellant was in jail and that this was one of the oldest cases on the court’s docket.

Although the court was correct in granting appellant’s request to discharge his private counsel, Foster, the court erred when it did not give appellant the opportunity to either obtain new private counsel or, if he was indigent, court appointed counsel. A criminal defendant cannot be forced to represent himself where he does not knowingly and intelligently choose to do so. McCall v. State, 481 So.2d 1281 (Fla. 1st DCA 1985). Reversed.

GROSS and TAYLOR, JJ., concur.


author: PER CURIAM.

text:
    Sherry F. ROMANO, Appellant, v. EASTERN FINANCIAL FEDERAL CREDIT UNION, Appellee.
    No. 4D01-4451.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Jennifer Daley and William R. Amlong of Amlong & Amlong, P.A., Fort Lauder-dale, for appellant.
    Cathy M. Stutin of Fisher & Phillips, LLP, Fort Lauderdale, for appellee.
   PER CURIAM.

REVERSED. See Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891 (Fla.2002).

WARNER, FARMER and TAYLOR, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Curtis Eugene SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1701.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Bennett H. Brummer, Public Defender and Ivy R. Ginsberg, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Erin K Zack, Assistant Attorney General, for appellee.

      Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

On this appeal from the denial of the defendant’s 3.800 motion, we find that the trial judge improperly imposed a “vindictive” sentence of thirty years minimum mandatory as a violent career criminal despite his own explicit offer of fifteen years if the defendant pled guilty to this (and another) offense before trial. As required, we reverse for resentencing of the defendant before a different judge.

This case is entirely governed by Wilson v. State, 845 So.2d 142, 2003 WL 1832631 (Fla. April 10, 2003). Here, like Wilson, but unlike situations in which the trial court “merely” endorses a pre-trial plea offered by the prosecution, see Nowells v. State, 840 So.2d 415 (Fla. 3d DCA 2003), the trial judge in this case expressly—directly contrary to State v. Warner, 762 So.2d 507 (Fla.2000) — made the offer himself. Thus, the transcript reveals the following:

THE COURT: I will be more than happy to let you do that in a minute. Do you understand I have offered if you want to resolve both of these cases today a plea of fifteen years state prison with credit time served since April of 1999?
And for all practical purposes the roughly fifteen years state prison as a habitual offender means you would probably serve close to the fifteen years in state prison. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand if you reject that I will not extend that offer to you again? The State has not extended that offer, I have extended that offer. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is that what you wish to do, you wish to reject the Court’s offer?
THE DEFENDANT: Yes, sir.

In these circumstances, it is clear that the post-trial imposition of thirty years minimum mandatory after conviction gave rise to a presumption of vindictiveness which, as in Nowells, for example, was not only unrebutted but actually confirmed by the record.

Hence, the order on appeal is vacated and the cause is remanded for sentencing before a different judge. Wilson.

Vacated and remanded.

      . The result in Wilson (but not the remedy of resentencing before a different judge) is in accord with a long series of cases decided by this court. See Nowells v. State, 840 So.2d 415 (Fla. 3d DCA 2003); Laferta v. State, 837 So.2d 562 (Fla. 3d DCA 2003); Naim v. State, 837 So.2d 519 (Fla. 3d DCA 2003); Charles v. State, 816 So.2d 731 (Fla. 3d DCA 2002); see also Harris v. State, 839 So.2d 785 (Fla. 2d DCA Case 2003); Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), review granted, 817 So.2d 850 (Fla.2002), approved in part, quashed in part sub nom. Wilson v. State, 845 So.2d 142, 2003 WL 1832631 (Fla. April 10, 2003); McDonald v. State, 751 So.2d 56 (Fla. 2d DCA 1999).

      . At the post-trial hearing below, the trial judge made his position entirely clear:
      THE COURT: I guaranteed Mr. Smith, from the first day that I met him when he took the position that he had not done anything wrong and he was going to go to trial, that I would protect his constitutional rights. I gave him a valid plea colloquy or valid alternative colloquy which was presented to the Third DCA.
      He knew what he was looking at, at the time he opted to go to trial, and exercised his constitutional right to trial. He knew that he had been habitualized by the State and he knew what in fact he had been looking at and what his maximum exposures were. And to the extent that he knew that, he satisfied me that he understood all of that.
      He had a sentencing hearing. His family was here. I know his mother was here. I think his sister here at the time. I had people telling me all of the things that you are telling me.
      I don’t think there has been 12 months in his adult life that he has not been in custody or under arrest or had charges pending. And he was told at the time of the sentencing he is the exact kind of person that the Legislature enacted all of these enhancements for. He is a repeat, repeat, repeat, repeat, repeat offender.
      He thinks that he is special. The laws were written for other people. They were never written for Curtis. Curtis got to do anything that Curtis wanted.
      The judge’s last remark indicates that, unlike the usual case, he may have been “vindictive” in the dictionary, as well as in the legal sense. See Nairn v. State, 837 So.2d 519, 520 (Fla. 3d DCA 2003)("As used in the sentencing process the word 'vindictive' has lost its dictionary definitions. See American Heritage Dictionary 1430 (1969 ed.)('disposed to seek revenge’; 'unforgiving; bitter; spiteful’). The sentencing term 'vindictive' has become a 'term of art,' describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge. See Frazier v. State, 467 So.2d 447 (Fla. 3d DCA), rev. dismissed, (Fla.1985).”).

      . The State asserts that the cited authorities cannot apply to a violent career criminal sentence like this because it is mandatorily required upon conviction. See State v. Meyers, 708 So.2d 661 (Fla. 3d DCA 1998). It is obvious, however, that such a sentence need not be imposed if the procedural requirements of section 775.084, Florida Statutes (1997) are not followed, or if the court makes a finding (as it was apparently prepared to do before trial) that the sentence was not necessary for the protection of the public. See § 775.084(3)(a)6, Fla. Stat. (1997)(now § 775.084(3)(c)5, Fla. Stat. (2002)). In any event, if, as is clear, the fifteen-year offer could have been legally implemented if accepted before trial, it is just as clear that it can be imposed (by the successor judge) after-wards.
      On the other hand, we reject the appellant's alternative claim that his prior convictions for battery on a police officer and burglary of a structure do not qualify for violent career criminal status. See Watson v. State, 749 So.2d 556 (Fla. 2d DCA 2000); Rodriguez v. State, 837 So.2d 1177 (Fla. 3d DCA 2003). But see Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002)(Schwartz, C.J., dissenting).
      Thus, there are no legal obstacles to the successor trial judge's resentencing the appellant to the fifteen-year offer, the thirty year minimum mandatory sentence previously imposed, or anything in between' — so long as the sentence is appropriate under the principles stated in Wilson.


author: WARNER, J.

text:
    Carlos HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2526.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Kevin J. Kulik, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was convicted for manslaughter with a deadly weapon and sentenced to fourteen years in prison. He makes several claims of trial court error. Principally, we address whether the court erred in denying a judgment of acquittal, as appellant claims the evidence failed to exclude the reasonable hypothesis of self-defense. We conclude that a jury question was presented, and affirm.

On the night of the victim’s death, appellant and several of his friends were called to a fight at a church. When they arrived, a group of teenagers were fighting. Appellant immediately joined in the fighting. Two teenagers came from behind appellant, grabbed him around his neck, and began hitting him. Appellant dropped to the ground. When he got up, he started to run away but noticed one of the teenagers running after him. He stopped, turned around, pulled out a knife he was carrying, and pointed it at the pursuing teenager, telling him to “chill.” According to other witnesses, appellant then pushed the victim, at which point the victim fell. The victim had been stabbed by appellant’s knife and later died from his injury. Appellant ran to his car and escaped with his other friends.

Appellant claims he was entitled to a judgment of acquittal because the state failed to disprove he acted in self-defense. A motion for judgment of acquittal should not be granted unless “the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

Section 776.012, Florida Statutes (1997), permits the use of deadly force against another, “only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” Whether a person was justified in using deadly force is a question of fact for the jury to decide if the facts are disputed. See Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002). In Dias, we relied on Reimel v. State, 532 So.2d 16 (Fla. 5th DCA 1988), which held:

A jury question is presented when the evidence is reasonably susceptible of two views, either that the defendant’s action in shooting was justifiable self-defense or that such action evinced a depraved mind without proper regard for the life of the victim. The defendant is mistaken that the issue is whether he believed that he was in danger. The law does not ascribe a subjective standard as to a defendant’s state of mind, but concerns a reasonably prudent person’s state of mind.

Dias, 812 So.2d at 491 (quoting Reimel, 532 So.2d at 18). Appellant would not be justified in using deadly force against the victim if appellant could have retreated to avoid the use of deadly force. See Weiand v. State, 732 So.2d 1044, 1049 (Fla.1999); accord Dias, 812 So.2d at 492. If the record contains sufficient evidence from which the jury could conclude or infer appellant could have avoided the use of deadly force by retreating safely, the jury is entitled to reject appellant’s theory of self-defense. See State v. Tai Van Le, 553 So.2d 258, 259 (Fla. 2d DCA 1989).

In this case, the state presented sufficient evidence from which the jury could have concluded that appellant’s use of force was not reasonable or that he could have retreated to avoid further harm. Appellant was already retreating and near his vehicle when the victim pursued him. Instead of retreating further, appellant stopped, turned around, and pulled his knife on the victim. A jury could determine that appellant could have avoided the confrontation. Secondly, appellant failed to demonstrate stabbing the victim was necessary to prevent imminent danger where none of the fighting teenagers had weapons, except appellant. The jury could conclude that using a deadly weapon was not reasonable in such circumstances. Because these were questions for the jury, the trial court properly denied appellant’s motion for judgment of acquittal.

With respect to the trial court’s denial of the motion to disqualify the trial court judge, we affirm. The trial court’s decision not to grant post-trial release to any defendant facing the potential of significant prison time, as appellant was, is not legally sufficient to prove bias against the defendant in connection with his sentencing.

We affirm as to all other issues raised without further discussion.

Affirmed.

STONE and FARMER, JJ., concur.


text:
    Leonard COPELAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2886.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Leonard Copeland, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Leonard Copeland appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We conclude that the motion should have been granted, and reverse the order now before us.

Defendant-appellant Copeland was convicted of burglary and armed robbery. The crime date was March 1984. The defendant was sentenced under the sentencing guidelines to a departure sentence of life followed by thirty years.

Subsequently the Florida Supreme Court held the sentencing guidelines unconstitutional for the period prior to July 1, 1984. Smith v. State, 537 So.2d 982, 987 (Fla.1989). This means that the defendant must be resentenced to a nonguidelines, parole-eligible sentence. Id.; see Braggs v. State, 642 So.2d 129, 131 (Fla. 3d DCA 1994); Fowler v. State, 641 So.2d 941, 942 (Fla. 5th DCA 1994).

At the sentencing proceeding the defendant may elect to be sentenced under the guidelines if he so chooses. If he does so, the trial court is free to reimpose the departure sentence, see Braggs, 642 So.2d at 131, which would not be parole-eligible.

For the reasons stated, the order denying the motion is reversed and the cause remanded for resentencing of the defendant.


text:
    Manuel RODRIGUEZ, Appellants, v. STATE of Florida, Appellee.
    No. 3D02-1633.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

Manuel Rodriguez appeals his conviction for aggravated assault with a deadly weapon. We reverse because appellee State of Florida improperly bolstered the victim’s credibility with irrelevant testimony.

Rodriguez was charged with threatening his girlfriend with a machete during an argument. At trial, the victim testified that she asked Rodriguez to move out, an argument ensued, and he threatened to kill her while brandishing a machete. The State also elicited testimony that the victim had obtained a restraining order after the incident. The question was asked at the very end of direct examination which tended to emphasize the answer for the jury. Rodriguez testified that they argued because he was going to move out, but he did not have a machete and he did not threaten her. The only other testimony came from the deputy sheriff who took the victim’s statement, interviewed Rodriguez and then made the arrest.

Rodriguez argues that testimony concerning the restraining order improperly bolstered the victim’s credibility because the jury could have concluded that the judge who issued the order believed the victim’s version of the incident. We agree that the testimony should not have been allowed. See Hayes v. State, 778 So.2d 400, 401 (Fla. 3d DCA 2001) (testimony that a judge had found probable cause that the defendant had committed the crimes charged was highly prejudicial, irrelevant testimony and should not have been admitted).

Additionally, in cases such as this where the case consists of a credibility contest between the victim and the defendant, the error is not harmless. See Hitchcock v. State, 636 So.2d 572, 574 (Fla. 4th DCA 1994) (when credibility determination is at the heart of the trial, the improper admission of statements bolstering the victim’s testimony constitutes prejudicial error necessitating reversal); see also Perez v. State, 595 So.2d 1096 (Fla. 3d DCA 1992). Accordingly, we reverse.

Rodriguez’s other arguments lack merit.

Reversed.


text:
    Craig SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4050.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions for robbery with a firearm and carjacking with a firearm. However, we reverse and remand appellant’s sentence. Appellant was given two life sentences for these convictions as a Prison Releasee Reoffender pursuant to section 775.082(9)(a)3, Florida Statutes (“PRRPA”). Appellant was also given two ten-year mandatory minimum sentence pursuant to section 775.087(2)(a), Florida Statutes (“10-20-Life”). The mandatory minimum sentences imposed were not greater than appellant’s life sentences as a Prison Releasee Reoffender. Therefore, they are illegal and must be set aside. See Smith v. State, 813 So.2d 1002, 1003 (Fla. 4th DCA 2002)(reversing and remanding for resentencing where sentence pursuant to 10-20-Life statute was not greater than the PRRPA sentences); see also Grant v. State, 770 So.2d 655, 659 (Fla.2000).

Appellant filed a motion pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, to correct the illegal sentence on June 6, 2002. The trial court did not grant the motion until August 20. As explained in Blake v. State, 814 So.2d 1163 (Fla. 1st DCA 2002), a trial court’s jurisdiction to rule on a motion to correct a sentencing error ends once sixty days pass with no action on the motion. Id. at 1164 (citing Hart v. State, 773 So.2d 1263, 1264 (Fla. 1st DCA 2000)). As a result, the trial court’s subsequent order modifying appellant’s sentence was a nullity. Id. (citing Kimbrough v. State, 766 So.2d 1255, 1256 (Fla. 5th DCA 2000)).

Accordingly, we reverse appellant’s ten-year mandatory minimum sentences and remand this case with instructions to re-sentence appellant to two life sentences as a Prison Releasee Reoffender.

REVERSED and REMANDED for re-sentencing.

SHAHOOD, TAYLOR and MAY, JJ„ concur.


text:
    Ovel PILOTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2631.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Steven W. Gomberg of the Law Office of Steven W. Gomberg, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm in all respects, except with regard to Piloto’s conviction for possession of burglary tools. On this issue, the State failed to present a prima facie case because the evidence presented did not prove that the tools were used, or were intended to be used, in a burglary. § 810.06, Fla. Stat. (2001). Because the State’s evidence was insufficient to prove that Piloto at least intended to use the tools found in the van to perpetrate a burglary, his conviction on this count is reversed and remanded for discharge. See Latimore v. State, 753 So.2d 690 (Fla. 4th DCA 2000).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR DISCHARGE.

GUNTHER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Robert J. BARRETT, III, Appellant, v. David L. CALLAWAY, and Does 1 through 10, inclusive, Respondents.
    No. 4D03-1018.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Richard B. Simring of Stroock & Stroock & Lavan LLP, Miami, for petitioner.
    No response required for respondent.
   KLEIN, J.

Petitioner is the plaintiff in a defamation suit against members of his private social club. The trial court granted a protective order prohibiting certain discovery on the basis that the club’s bylaws made all “membership deliberations” confidential and not “open to inspection by the general membership or any other person.” He seeks certiorari review, asserting that this order is a departure from the essential requirements of law for which there is no adequate remedy by appeal from final judgment.

As sole authority for jurisdiction petitioner cites Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000), in which the fifth district reviewed by certiorari an order granting a protective order which prevented the taking of the defendant’s deposition in an accident case. The Beekie court, recognizing that review of denial of discovery orders by certiorari is rarely warranted, concluded that it was justified under the facts.

This court, on the other hand, has consistently maintained the view that “plenary appeal provides an adequate remedy to address the legal propriety of an order precluding discovery.” Calfin v. McInnis, 683 So.2d 1137 (Fla. 4th DCA 1996) and cases cited. Because we conclude that petitioner has failed to demonstrate irreparable harm which cannot be remedied on final appeal, we dismiss the petition.

WARNER and HAZOURI, JJ., concur.


text:
    MOGERMAN, O’LEARY & PATEL, INC., Appellant, v. Marcia SHERWIN, Appellee.
    No. 4D02-1402.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Allyson D. Goodwin and Michelle T. Bell of Saavedra, Pelosi & Goodwin, Fort Laud-erdale, for appellant.
    Charles Wender, Boca Raton, for appel-lee.
   PER CURIAM.

The trial court dismissed appellant’s complaint due to defective service on the appellee. There is no transcript of the evidentiary hearing on the motion. We affirm the dismissal. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

After the dismissal and denial of appellant’s motion for rehearing, the court entered a second judgment on different grounds. Because the court’s jurisdiction terminated with the denial of rehearing, we vacate the second judgment. See Arleo v. Garcia, 695 So.2d 862, 862 (Fla. 4th DCA 1997).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Michael Edward LINDSAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4096.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Michael Edward Lindsay, Crestview, pro se.

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

Michael Edward Lindsay (Appellant) appeals from an order dismissing his motion for postconviction relief for lack of jurisdiction. We reverse.

On August 14, 2000, Appellant pleaded guilty to multiple counts and, pursuant to a negotiated agreement, was sentenced concurrently to three years of incarceration, to be followed by fifteen years probation, with credit for 965 days time served, with a three-year firearm mandatory minimum. His sentence was subsequently vacated as being illegal. He was resentenced on December 18, 2000, to two years of community control, followed by five years of probation on counts I, III, and TV, concurrently, with a three-year minimum mandatory for counts IV and V, and with 1,121 days credit for time served. The special conditions of his sentence included a requirement that he successfully complete the BARC-IRT twenty-eight day inpatient program. On January 10, 2001, Appellant was returned to court and the BARC-IRT program was deleted from his sentence.

Thereafter, Appellant was found guilty of four technical violations. His probation was revoked and on August 30, 2001, he was sentenced to 15.8 years in prison on counts I-IV, concurrently. He appealed to this court.

On August 16, 2002, while the revocation appeal was pending, Appellant filed a rule 3.850 motion for postconviction relief, raising ten grounds for relief, all alleging either lack of factual basis for the original plea, ineffective assistance of counsel at the time of the original plea or on the subsequent resentencing in November 2000 or January 2001, or breach of the original plea agreement in connection with the November 2000 and January 2001 re-sentencing. None of the grounds concerned the revocation of his probation and subsequent resentencing, other than a claim that counsel at the time of the plea was ineffective for failing to inform him of the consequences of violating probation. The trial court dismissed the motion for postconviction relief for lack of jurisdiction because Appellant’s direct appeal of the revocation of probation and resentencing was still pending.

It is true that “a trial court has no power to rule on an issue which would interfere with the authority of the appellate court.” Washington v. State, 823 So.2d 248, 249 (Fla. 4th DCA 2002). However, even if the trial court lacked jurisdiction to rule on the instant motion because of the pending direct appeal, instead of dismissing the motion, as this court recently noted in Washington and Perez v. State, 834 So.2d 882 (Fla. 4th DCA 2002), the better practice would have been to stay the motion until jurisdiction returned. Appellant’s conviction based on his original plea became final in September 2000, thirty days after his original sentencing; with respect to some claims asserted in his motion, the sentence became final thirty days after his resentencing in November 2000 and January 2001. Therefore, the time for filing a timely rule 3.850 motion from the original conviction and from the sentencing prior to the revocation has now expired. See Zeigler v. State, 632 So.2d 48, 50 (Fla.1993) (noting that the two-year time limit for challenging a conviction commences when the conviction alone became final and not when the conviction and sentence both became final), cert. denied, 513 U.S. 880, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994); Kissel v. State, 757 So.2d 631, 632 (Fla. 5th DCA 2000) (where defendant filed motion for postconviction relief after rule 3.800(a) motion was granted, denying first three claims as untimely, citing Zeig-ler for proposition that “two-year time period for challenging a conviction commenced when the conviction alone became final, not when both the conviction and sentence became final”).

Furthermore, as the state concedes in response to this court’s order to show cause, the pending appeal of Appellant’s probation revocation did not cause the trial court to lose jurisdiction as to his challenge to the original plea or his subsequent resentencing based on that plea because the issues before this court on appeal from the revocation of probation were unrelated to those before the trial court in the post-conviction motion. See generally Francois v. Klein, 431 So.2d 165 (Fla.1983) (explaining that a rule 3.850 motion could be considered by the trial court while a petition for writ of habeas corpus as to the same case was pending in the appellate court); Jones v. State, 787 So.2d 35 (Fla. 2d DCA 2001) (ruling that the trial court should not have dismissed a rule 3.850 motion while a prior unrelated postconviction motion was on appeal); Norman v. State, 739 So.2d 1258 (Fla. 1st DCA 1999) (holding that a court can rule on a 3.850 motion when an appeal is pending from an unrelated rule 3.800(a) motion).

On remand, the trial court is directed to consider the merits of Appellant’s motion.

WARNER, STEVENSON and HAZOURI, JJ., concur.

      . This court affirmed on March 5, 2003, see Lindsay v. State, 839 So.2d 829, (Fla. 4th DCA 2003).


author: STONE, J.

text:
    G.P., C.M., C.H., and L.H., Appellants, v. STATE of Florida, Appellee.
    No. 4D02-3410.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Charlotte Danciu of Charlotte Danciu, P.A., Boca Raton, for appellants.
    No appearance for appellee.
    Siobhan Helene Shea, Palm Beach, for amicus curiae-FAWL & NOW.
    Susan L. Stockholm of Susan L. Stock-ham, P.A., Sarasota, and Alice H. Murray of Robinson R. Harrell & Associates, P.A., Shalimar, for amicus curiae-Florida Adoption Council, American Academy of Adoption Attorneys, and Dave Thomas Adoption Law Center.
    Randall C. Marshall of American Civil Liberties Union Foundation of Florida, Miami, Emily J. Martin of ACLU Foundation Women’s Rights Project, Mariann Meier Wang and Diana Kasdan of ACLU Foundation Reproductive Freedom Project, and Philip L. Graham, Jr., James Andrew Kent, Michael A. Cheah, and Kathrine M. Mortensen, New York, New York, for amicus curiae-American Civil Liberties Union & ACLU of Florida.
   STONE, J.

We reverse a declaratory judgment in which the trial court found that sections 63.087-088(5), Florida Statutes, relating to private adoptions under the Florida Adoption Act, were not unconstitutional. The Attorney General of Florida has intentionally failed to file a contesting brief and neither the attorney general nor the Palm Beach County State Attorney appeared at the hearing below.

Appellants are four women who have each executed a formal consent for adoption of their children and have authorized an intermediary to file a petition to terminate their parental rights. Because, in each case, the identity of the fathers is unknown, constructive notice is required under the challenged statutory provisions.

Appellants moved for declaratory relief, challenging sections 63.087 and 63.088(5) as violative of their right to privacy guaranteed under the Fourteenth Amendment of the United States Constitution and Article I, § 23 of the Florida Constitution. Although the trial court agreed that the provisions violated Appellants’ right to privacy, the court found that Appellants had failed to prove that the state did not have a compelling interest to invade their privacy or that the interest could be achieved through less intrusive means. The court did find that the statutes were unconstitutional as to the women whose pregnancy was a result of sexual battery.

Under the challenged statutes, Appellants would be forced to publish information relating to their sexual relations that may have led to the child’s conception. Section 63.087(6)(f) provides, in relevant part:

(f) The petition must include:
1. The minor’s name, gender, date of birth, and place of birth. The petition must contain all names by which the minor is or has been known, excluding the minor’s prospective adoptive name but including the minor’s legal name at the time of the filing of the petition, to allow interested parties to the action, including parents, persons having legal custody of the minor, persons with custodial or visitation rights to the minor, and persons entitled to notice pursuant to the Uniform Child Custody Jurisdiction Act or the Indian Child Welfare Act, to identify their own interest in the action.
2. If the petition is filed before the day the minor is 6 months old and if the identity or location of the father is unknown, each city in which the mother resided or traveled, in which conception may have occurred, during the 12 months before the minor’s birth, including the county and state in which that city is located.
3. Unless a consent to adoption or affidavit of nonpaternity executed by each person whose consent is required under s. 63.062 is attached to the petition, the name and the city of residence, including the county and state in which that city is located, of:
a. The minor’s mother;
b. Any man who the mother reasonably believes may be the minor’s father ....

§ 68.087(6)01-3, Fla. Stat. (2002).

Notice and service requirements are governed by section 63.088, Florida Statutes. Appellants challenge only subsection (5) of section 63.088, which states:

(5) LOCATION UNKNOWN OR IDENTITY UNKNOWN. This subsection only applies if, as to any person whose consent is required under s. 63.062 and who has not executed an affidavit of nonpaternity, the location or identity of the person is unknown and the inquiry under subsection (3) fails to identify the person or the diligent search under subsection (4) fails to locate the person. The unlocated or unidentified person must be served notice under subsection (2) by constructive service in the manner provided in chapter 49 in each county identified in the petition, as provided in s. 63.087(6). The notice, in addition to all information required in the petition under s. 63.087(6) and chapter 49, must contain a physical description, including, but not limited to, age, race, hair and eye color, and approximate height and weight of the minor’s mother and of any person the mother reasonably believes may be the father; the minor’s date of birth, and any date and city, including the county and state in which the city is located, in which conception may have occurred. If any of the facts that must be included in the notice under this subsection are unknown and cannot be reasonably ascertained, the notice must so state.

§ 63.088(5), Fla. Stat.

Article I, section 23 of the Florida Constitution, recognizes a right to privacy in this state and provides: “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life as otherwise provided herein.” This right to privacy encompasses at least two different categories of interest. The first is “the individual interest in avoiding disclosure of personal matters!.]” Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987)(quoting Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). The second is “the interest in independence in making certain kinds of important decisions.” Id. In deciding whether this constitutional right is impacted, the courts consider both the individual’s subjective expectation and the values of privacy that our society seeks to foster. Jackson v. State, 833 So.2d 243 (Fla. 4th DCA 2002).

The concern as to sections 63.087 and 63.088(5) is that the offending provisions substantially interfere with both a woman’s independence in choosing adoption as an alternative and with the right not to disclose the intimate personal information that is required when the father is unknown. We deem the invasion of both of these interests so patent in this instance as to not require our analysis of cases interpreting this constitutional provision. See generally, Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998); In re T.W., 551 So.2d 1186 (Fla.1989).

Having thus determined that the statutes violate a fundamental right to privacy, the burden of proof shifted to the state to justify the intrusion on the mothers’ privacy. See Von Eiff, 720 So.2d at 514. The standard is one of strict scrutiny. The state has the burden of demonstrating that the challenged statutes serve a compelling state interest and that they accomplish the intended result, i.e., notice to fathers, through the use of the least intrusive means. Id.; Fla. Bd. of Bar Examiners Re: Applicant, 443 So.2d 71, 74 (Fla.1983)(“The compelling state interest or strict scrutiny standard imposes a heavy burden of justification upon the state to show an important societal need and the use of the least intrusive means to achieve that goal.”).

The legislature’s intent in enacting the stringent notice provisions was to finalize private adoptions by ensuring that all possible avenues of affording parents their due process have been exhausted and to protect the child by ensuring that any future challenge to the adoption based on lack of notice would be unsuccessful.

The state has failed to demonstrate, however, how any compelling interest of either the putative father or the state outweighs the privacy rights of the mother and child in not being identified in such a personal, intimate, and intrusive manner.

We do not address the alternative proposals that have been raised by the appellants which are designed to ensure that notice is sufficient to protect the due process rights of the unknown fathers, such as by registration with a state or national database, or simply by a more narrowly tailored statute.

It is sufficient, here, given the state’s effective waiver of interest, to simply recognize that the state failed to demonstrate a sufficiently compelling interest for such an invasion of privacy and that the interests sought to be achieved could not have been accomplished by less intrusive means. Strict scrutiny imposes a heavy burden on the state. Fla. Bd. of Bar Examiners, 443 So.2d at 74. Thus, the trial court erred in placing the burden on Appellants to prove the state did not have a compelling interest and that the means used were not the least intrusive.

We conclude that the state failed to meet its burden of proof in demonstrating the validity of the challenged provisions. The state has, in effect, conceded that the statutes cannot survive a strict scrutiny challenge. Accordingly, the order on appeal is reversed. We remand for further proceedings as governed by the remainder of the statute.

WARNER and HAZOURI, JJ., concur.


text:
    Reginald TOOKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2183.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Tookes appeals his conviction and sentence for robbery with a firearm. We reverse.

Marvin Carver was robbed of his wallet by a man who appeared to be holding a handgun underneath a piece of cloth. Carver could see the silver tip of a barrel sticking out from underneath the cloth. He admitted he could not see enough of the gun to determine whether it was a real gun or a plastic gun. However, he claimed to have seen and heard the man cock the gun underneath the cloth. Carver was further convinced the man had a gun when the man advised him: “Don’t do something stupid, give me your wallet, don’t make me kill you.” Carver identified Tookes as the assailant.

At the close of trial, the court read the Florida Standard Jury Instructions for robbery, which included the definition of a firearm. It then instructed the jury that it could find Tookes guilty of robbery with a firearm if it found that Tookes carried or displayed a firearm during the commission of the robbery. During deliberations, the jury inquired: “Does the state have to prove a weapon was a real firearm?” After some debate, and over defense counsel’s objection, the trial court answered: “the State does not have to prove that a weapon was a real firearm, so that is not an element, not a burden of proof.”

To prove armed robbery with a firearm, the state must show that the defendant carried a firearm in the course of committing the robbery. Holliday v. State, 781 So.2d 496, 498 (Fla. 5th DCA 2001).

Sections 812.13(1) and (2), Florida Statutes (2001), provide:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree ...
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree ...
(c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree ...

(emphasis added)

The term “firearm” is defined, according to chapter 15.1 of the Florida Standard Jury Instructions and section 790.001(6), as,

any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device, or any machine-gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

§ 790.001(6), Fla. Stat. (2001); see also Stanley v. State, 757 So.2d 1275 (Fla. 4th DCA 2000)(approving this definition of firearm as correct statement of the law). Patently, if the jury believed that Tookes carried a toy gun, it could not lawfully find him guilty of carrying a firearm.

We note that the sufficiency of the evidence is not an issue in this appeal. Tookes simply argues that the jury may have been misled or confused by the court’s answer to its question. The court told the jury that the state did not have to prove that the firearm was real and that the use of a real firearm was “not an element.” This is an incorrect statement of the law, as it authorizes the jury to find him guilty of the firearm offense even if it did not find that Tookes used a “real” gun, and instead used only a toy or imitation gun. Obviously, we cannot know what the jury’s finding was on this point.

Thus, the error was not harmless because it cannot be said, beyond a reasonable doubt, that the error did not affect the verdict. See Goodwin v. State, 751 So.2d 537-544 (Fla.1999). The only proof that Tookes used a firearm came from Carver who did not see the gun clearly and only had a few seconds to make the assessment.

As to the other issue raised on appeal, we find no reversible error, as the issue was not preserved.

Although normally the remedy would be a new trial, the state has stipulated that, in the event of reversal, it requests that this court remand with instructions for entry of a judgment and sentence for the lesser offense of simple robbery pursuant to section 812.13(2)(c), Florida Statutes. We accept the state’s stipulation and reverse and remand accordingly.

WARNER and FARMER, JJ., concur.


author: POLEN, C.J.

text:
    STATE of Florida, Appellant, v. V.M., a Child, Appellee.
    No. 4D02-1758.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   POLEN, C.J.

The State contends the trial court erred in holding the ten-day recapture period provided for in Florida Rule of Juvenile Procedure 8.090(m)(3) was not available to the State as a consequence of its failure to arraign V.M. prior to the expiration of the ninety-day speedy trial time, and dismissing the charges against V.M. We agree with the State and reverse the order of dismissal.

V.M. was arrested on December 29, 2001, and on January 24, 2002, the State filed a petition for delinquency charging him with possession of cannabis, less than twenty (20) grams. However, V.M. was not arraigned until April 10, 2002, at which time he was appointed counsel. On April 16, 2002, V.M. filed a motion to dismiss the charges against him, contending the speedy trial period had expired on March 29, 2002. See Fla. R. Juv. P. 8.090(a)-(b). The State responded that it was entitled to the ten-day recapture period to bring V.M. to trial before the charges should be dismissed outright. See Fla. R. Juv. P. 8.090(d),(m)(3). On April 19, 2002, a hearing was held on V.M.’s motion to dismiss. The trial court made no findings of fact and dismissed the charges against V.M. We hold this was error.

As recently addressed by this court in State v. D.L., 841 So.2d 663 (Fla. 4th DCA 2003), a minor who is not arraigned prior to the expiration of speedy trial is not automatically entitled to dismissal of the charges. See also A.L. v. State, 787 So.2d 942, 944 (Fla. 4th DCA 2001)(rejecting argument that failure to arraign within ninety-day speedy trial time constitutes automatic grounds for dismissal of charges; “[t]he right to a speedy trial is a procedural right, not a substantive right.”). We need not restate the body of case law, relying on this court’s analysis in D.L. In effect, availability of the ten-day recapture period is determined by a two-step test: first, whether the minor had the ability to move for speedy trial discharge within a short time after the expiration of the ninety-day period; and, if not, whether that inability was attributable to the fault of the child or of the State. We find V.M. had the ability to, and did in fact, move for discharge within a short time after the expiration of the ninety-day period. Dismissal was improper.

V.M. was arraigned and appointed counsel twelve (12) days after the expiration of speedy trial, and moved for discharge six (6) days later. We find the material facts in D.L. analogous and controlling. Id. (minor received notice of arraignment seven (7) days after speedy trial expired, for arraignment scheduled nine (9) days after speedy trial expired). V.M. had the ability to move for discharge within a short time after the expiration of speedy trial. Cases where this court has held a minor lacked the ability to move for a discharge within a short time after the expiration of speedy trial are factually distinguishable. Cf. D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002)(summons was initially sent to wrong address and minor was not properly served until over two months after expiration of speedy trial, for an arraignment scheduled for the next month); D.C. v. State, 807 So.2d 198 (Fla. 4th DCA 2002)(minor in Department of Juvenile Justice custody was not arraigned until forty-three days after expiration of speedy trial). Accordingly, we hold the ten-day recapture period was available to the State, reverse the order of dismissal, and remand for further proceedings.

REVERSED and REMANDED.

KLEIN and HAZOURI, JJ., concur.

      . At the hearing on the motion for discharge, V.M. did not allege his notice of the arraignment had been defective. Though the record does not definitively establish the exact date on which such notice occurred, at the hearing, counsel for V.M. stated V.M. was not served until "over two months later” than the filing of the petition [January 24, 2002]. As held by this court in D.L., service of notice outside of speedy trial does not constitute grounds for dismissal where a properly noticed arraignment occurs a short time after the expiration of speedy trial, in effect providing the minor with the opportunity to move for discharge at that time.


text:
    PREFERRED NATIONAL INSURANCE, Appellant, v. FAT INVESTORS, INC., d/b/a Dax’s Bar & Grill, Jane E. McGill and Richard Limegrover, as co-personal representatives of the Estate of Shawn R. Limegrover, Appellees.
    No. 4D02-1226.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach for appellees Jane E. McGill and Richard Limegrover.
    David M. Beckerman of David M. Beck-erman, P.A., Boca Raton, for appellee Fat Investors, Inc.
   KLEIN, J.

Shawn Limegrover, a minor, drank until he was intoxicated at Dax’s Bar, which is on Clematis Street in downtown West Palm Beach. He walked out of the bar and, later in the night, while on foot, was killed by a train. The trial court held that his estate had a cause of action against the bar for allowing a person, known to be inebriated, to leave, and that there was insurance coverage under the bar’s policy, which excluded liability for furnishing liquor. We reverse.

The exclusion provided:

This insurance does not apply to:
(C) Liquor liability
‘Bodily injury’ or ‘property damage’ for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverage.

In an attempt to get around this exclusion, the estate alleged a theory of liability which is unconnected with furnishing liquor. It is based on the argument that a premises owner has a duty to a person known to be drunk to render aid so that the person does not leave and injure himself or others. In holding that there is such a duty the trial court relied solely on a decision of this court, reasoning:

In [Estate of] Starling v. Fisherman’s Pier, Inc., 401 So.2d 1136 (Fla. 4th DCA 1981), the Fourth District Court of Appeal considered a proprietor’s duty of care to render aid to an invitee. There, a corporation which operated a fishing pier was charged with negligence for failure to safeguard a passed-out drunk customer who was left lying near the ocean on the pier by himself. The customer eventually rolled over into the water and drowned. The Fourth District ... held that the owner or operator of the premises has an affirmative duty to take at least some minimal steps to safeguard an inert person....
Thus, given the reasoning in Starling ... a cause of action against a proprietor for failure to render aid to a known inert invitee exists in Florida.

The essence of Starling is: “A proprietor simply cannot ignore and step over an unconscious customer lying in a dangerous place upon his premises.” Id. at 1138. In Starling the intoxicated person was both inert, and in a dangerous position on defendant’s premises. In the present case, the patron was neither inert nor in danger while on defendant’s premises.

Because this theory of recovery would impose liability on a bar owner even where the bar had not furnished the alcohol which made the patron drunk, it would apply to other businesses as well. It would mean that if an obviously drunk person stumbled into a fast food restaurant, for example, that owner would have a duty to not allow the drunk to leave. The estate has furnished us with no precedent to support this type of liability, nor any good reason why we should so broadly expand premises liability.

The insurer relies on Scarlett O’Hara’s, Inc. v. Sphere Drake Ins. Co., 715 So.2d 317 (Fla. 5th DCA 1998), a per curiam affirmed, with two concurring opinions. In that case a minor employed by Scarlett O’Hara’s became intoxicated at a function sponsored by his employer, drove away from the party in his own vehicle, and struck the plaintiff. The plaintiff sued Scarlett O’Hara’s, claiming it had committed the tort of negligent entrustment by permitting the employee access to his vehicle. The trial court held there was no coverage and the fifth district affirmed. Both of the concurring opinions reasoned that there was no viable cause of action alleged by the injured plaintiff which was unrelated to the furnishing of alcohol, and the liquor liability exclusion precluded coverage.

The result in Scarlett O’Hara’s is consistent with decisions from other jurisdictions which hold that a liquor liability exclusion precludes coverage where a bar is alleged to be negligent for allowing a drunk patron to leave. Frost v. David, 673 So.2d 340 (La.Ct.App.1996); Sheffield Ins. Co. v. Lighthouse Prop., 252 Mont. 321, 828 P.2d 1369 (1992); N.H. Ins. Co. v. Hillwinds Inn, 117 N.H. 350, 373 A.2d 354 (1977); Kovesdy v. Utica Fire Ins. Co., 119 Ohio App.3d 547, 695 N.E.2d 1165 (1997); Paradigm Ins. Co. v. Texas Richmond Corp., 942 S.W.2d 645 (Tex.Ct.App.1997);. Kelly v. Painter, 202 W.Va. 344, 504 S.E.2d 171 (1998);

Although we have not relied on it, we have not overlooked Reed v. Black Caesar’s Forge Gourmet Rest., Inc., 165 So.2d 787 (Fla. 3d DCA 1964), in which a drunk patron of a bar was killed in an accident after the parking valet allowed him to drive off. The court held that the bar could not be liable, but its reasoning was based primarily on the fact that the accident was caused by the patron’s own negligence which, at that time, was a complete bar to recovery. We have no way of knowing whether that court would have reached the same result under principles of comparative negligence.

We reverse for entry of a judgment finding no coverage.

GROSS and TAYLOR, JJ., concur.


text:
    Clark Randal GRABLE, in his capacity as Trustee for Clark Randal Grable Trust, Appellant, v. Daniel B. PETERS, Jill A. Peters, Erica Dietzel Pinna, Terry Pinna, The Dawson Company, Inc., a Florida corporation, and Ken Thomas d/b/a Ken Thomas & Associates, Appellees.
    No. 4D02-3638.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Clark Randal Grable, Tequesta, pro se.
    Alfred A. LaSorte, Jr., of Shutts & Bowen LLP, West Palm Beach, for appellees Daniel B. Peters, Jill A. Peters, Terry Pinna and Erica Dietzel Pinna.
   PER CURIAM.

Clark Randal Grable appeals an order denying him relief from a final order of summary judgment. This is a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(5).

The complaint sought to establish the existence of an eight-foot easement across the back of appellees’ lots for the benefit of Grable’s lots. Initially, the trial court granted final summary judgment in favor of appellees, finding that any easement had been extinguished by the doctrine of merger. This summary judgment was per curiam affirmed on appeal. See Clark Randal Grable Trust v. Peters, 816 So.2d 638 (Fla. 4th DCA 2002). Subsequently, Grable timely moved for relief from final judgment based on newly discovered evidence that, in a prior contract for sale, there was an express reservation of an eight-foot alley easement over several of the lots in question. Based on this new evidence, we believe there is a genuine issue as to whether there exists an “easement” or “right-of-way” for an alley as alleged in the complaint. Accordingly, we reverse the summary judgment order and remand for further proceedings.

REVERSED and REMANDED.

STEVENSON, SHAHOOD and TAYLOR, JJ., concur.

      . Grable received this contract through late-filed discovery while the appeal was pending. Based on this evidence, Grable moved this court to relinquish jurisdiction so that the trial court could reconsider the summary judgment order. The motion to relinquish was denied and the appeal proceeded.


text:
    Naomi MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-51.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Naomi Morrison, Ft. Lauderdale, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Naomi Morrison appeals the summary denial of her post-conviction motion to vacate her plea to violation of probation and correct an allegedly illegal sentence. The trial court denied Morrison’s motion without ordering a state response. The trial court’s order entirely failed to address Morrison’s claim of an illegal sentence.

Morrison raised three legally sufficient issues in her post-conviction motion: (1) the plea was induced by counsel’s incorrect advice regarding the sentence the court would impose if the state’s plea offer was refused, see Kemner v. State, 770 So.2d 276 (Fla. 4th DCA 2000); but see Bond v. State, 695 So.2d 778 (Fla. 1st DCA 1997); (2) the court failed to credit her with the incareerative portion of her probationary split sentence; see Henderson v. State, 720 So.2d 1121 (Fla. 4th DCA 1998); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000); (3) the sentence imposed exceeded the sentencing guidelines beyond the one cell upward increase permitted for violation of probation, Franklin v. State, 545 So.2d 851 (Fla.1989).

The attachments to the trial court’s order do not conclusively refute Morrison’s claims. We reverse and remand for attachment of additional portions of the transcript and record that conclusively demonstrate that the appellant is entitled to no relief or for an evidentiary hearing.

REVERSED and REMANDED.

POLEN, C.J., STONE and TAYLOR, JJ., concur.


author: DAMOORGIAN, DORIAN, Associate Judge.

text:
    D.S., the father, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D02-2266.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Domenic Landolina of Schultz & Lando-lina, P.A., Stuart, for appellant.
    Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
   DAMOORGIAN, DORIAN, Associate Judge.

D.S., a father, timely appeals an order terminating his parental rights to S.S., his only child. While we ultimately affirm the final order of termination, we note that portions of the trial court’s order are not supported by the record; to wit: (i)the trial court’s characterization of a DCF report as one of sexual abuse by the father; and (ii) the finding that the father’s criminal history demonstrated that his involvement in the child’s life would threaten the child’s well-being regardless of the level of social services.

While we recognize that not all of the trial court’s findings were supported by the record, we affirm, nevertheless, because there were other findings that clearly support the termination order. It is well-settled that, where the trial court’s finding that there is “clear and convincing” evidence to terminate parental rights is supported by competent substantial evidence, we have no choice but to affirm. R.S. v. Dep’t of Child. & Fams., 831 So.2d 1275 (Fla. 4th DCA 2000).

Although, here, the verified petition for adjudication of dependency made no allegation of sexual molestation by the father, the trial court made a specific finding which characterized a DCF report as a report of sexual abuse by the father. However, this finding was not supported by the record. Due to the extremely damaging nature of this erroneous finding, we felt compelled to clarify that it was not at all supported by the evidence and, thus, was not a valid ground for terminating the father’s parental rights.

We also note that the lower court erred in its finding regarding the father’s criminal history. A parent’s criminal history and incarceration are factors the court may consider in deciding whether to terminate parental rights on the ground of abandonment. M.S. v. D.C., 763 So.2d 1051 (Fla. 4th DCA 1999). However, DCF presented no evidence that, because of the father’s criminal history, his involvement in the child’s life would threaten her well-being irrespective of the provision of services.

Notwithstanding the foregoing errors in the termination order, we affirm. Other reasons for terminating the father’s parental rights are supported by the record, most notably the father’s failure to substantially comply with his case plan and his abandonment of the child.

AFFIRMED.

GROSS and MAY, JJ., concur.


text:
    Nancy HUNT, Appellant/Cross-Appellee, v. Gregory A. HUNT, Appellee/Cross-Appellant.
    No. 2D02-1881.
    District Court of Appeal of Florida, Second District.
    April 25, 2003.
    John K. Finch, Safety Harbor, for Appellant/Cross-Appellee.
    M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Nancy Hunt (the wife) appeals and Gregory Hunt (the husband) cross-appeals a final judgment of dissolution of marriage. We reverse that part of the final judgment that awarded the husband bridge-the-gap alimony of $250 per month and that portion of the judgment that awarded the husband only $1000 of his attorney’s fees and costs. We affirm the remainder of the judgment.

The parties were married in 1994 and have one child. The husband was disabled at the time of the marriage, and his sole source of income is and has been social security disability benefits. The wife is employed full time as a drafter. The parties separated in December 2000, shortly after the husband was diagnosed with hepatitis C. In March 2001, the parties sought a dissolution of marriage.

At trial, the issues centered on the husband’s visitation with the minor child, the husband’s request for permanent alimony, and the husband’s entitlement to a contribution toward his attorney’s fees. The parties stipulated to an equitable distribution of assets and debts. The parties also stipulated that the trial court should determine the husband’s entitlement to his attorney’s fees at trial, but the reasonableness and amount of any fees would be determined at a future hearing.

At the conclusion of the trial, the court entered a final judgment denying the husband permanent periodic alimony, but determining that the husband was entitled to permanent lump sum alimony to bridge the gap between marriage and divorce. This permanent alimony included two components: (1) a provision requiring the wife to maintain health insurance coverage for the husband through COBRA for the relevant three-year period, and (2) a provision requiring the wife to pay the husband $250 per month for a period of thirty-six months. The trial court’s award of the first component was supported by competent, substantial evidence that the husband needed the health insurance, that the health insurance was available through COBRA at a cost of $250 per month for thirty-six months, and that the wife had the ability to pay this award. The additional award of $250 per month, however, was not supported by the evidence. The husband presented no evidence that he had a particular, identifiable, short-term need for this alimony, as long as he had health insurance coverage. We therefore reverse that component of the alimony award. See Blanchard v. Blanchard, 793 So.2d 989, 991 (Fla. 2d DCA 2001) (reversing award of bridge-the-gap alimony where there was no evidence husband lacked basic needs due to the divorce); Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999) (cautioning that bridge-the-gap alimony was to be awarded only to assist spouse with legitimate, identifiable, short-term need).

The final judgment also held that the husband was entitled to a contribution toward his attorney’s fees and costs pursuant to section 61.16(1), Florida Statutes (2001). Contrary to the parties’ stipulation, however, and in the absence of any evidence of the fees reasonably incurred by the husband, the trial court awarded the husband only $1000 in attorney’s fees and costs. Although we affirm the trial court’s finding that the husband was entitled to a contribution towards his attorney’s fees, we reverse the portion of the final judgment limiting that recovery to $1000, particularly in light of our reversal of a portion of the alimony award. See Banton v. Parker-Banton, 756 So.2d 155, 156 (Fla. 4th DCA 2000) (noting that when financial provisions of final judgment of dissolution are reversed, trial court should revisit requests for attorney’s fees).

On remand, the trial court shall strike that portion of the final judgment awarding the husband $250 per month in alimony and shall then reconsider the amount of attorney’s fees reasonably incurred by the husband and whether the wife is able to pay all or a portion of those fees. We note that in a separate order issued simultaneously with this opinion, we are also remanding to the trial court the husband’s motion for appellate attorney’s fees. See Rados v. Rados, 791 So.2d 1130, 1131 (Fla. 2d DCA 2001). We affirm the judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and FULMER and NORTHCUTT, JJ., concur.

      . Consolidated Omnibus Budget Reconciliation Act of 1985, Pub.L. No. 99-272, 100 Stat. 82 (codified at 42 U.S.C. §§ 300bb-l to -8 (2000)).


author: SALCINES, Judge.

text:
    C. Jivan TURNA, Appellant, v. ADVANCED MED-SERVICES, INC., Appellee.
    No. 2D02-640.
    District Court of Appeal of Florida, Second District.
    April 25, 2003.

      Lynne L. England of Lynne L. England, P.A., Brandon, for Appellant.
    Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie and Friedsam, P.A., Tampa, for Ap-pellee.
   SALCINES, Judge.

C. Jivan Turna, individually, appeals an amended final judgment entered in favor of Advanced Med-Services, Inc. We reverse.

Advanced Med-Services filed a two-count complaint. Count one was a cause of action for breach of oral agreement against C. Jivan Turna, P.A., and count two alleged the same cause of action against Turna in her individual capacity. After a bench trial, the trial court granted judgment for Advanced Med-Services against C. Jivan Turna, P.A., for $182,601, but denied relief against Turna individually. C. Jivan Turna, P.A. appealed the final judgment and. this court affirmed. C. Jivan Turna, P.A. v. Advanced Med-Servs. Inc., 818 So.2d 507 (Fla. 2d DCA 2002).

Advanced Med-Services filed a motion for rehearing as to Turna’s individual liability. At the hearing on the motion, Advanced Med-Services made an ore tenus motion to amend the complaint to add a cause of action against Turna individually for a tortious act which it later identified as intentional interference with an advantageous contractual relationship. The trial court granted the motion to amend and entered the amended final judgment which held Turna individually liable for this tort in addition to holding C. Jivan Turna, P.A., liable for breach of oral contract.

The issue on appeal is whether, pursuant to Florida Rule of Civil Procedure 1.190(b), there was evidence of the tort presented at trial to allow an amendment to the complaint to conform to the evidence after the trial had been completed.

When evidence is introduced at trial concerning facts or issues not included in the pleadings, the trial court, in its discretion, may allow amendments to conform to the evidence. Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987). In the present case, the trial court abused its discretion when it allowed the complaint to be amended because there was no evidence presented at trial which would indicate that Turna individually interfered with the contractual relationship between Advanced Med-Services and C. Jivan Turna, P.A.

Accordingly, the amended final judgment is reversed. We remand this cause and direct the trial court to reinstate the original judgment denying relief against Turna individually.

Reversed and remanded.

FULMER and CANADY, JJ., concur.


text:
    Laurence E. FENDRICH, Appellant, v. RBF, L.L.C., a Delaware limited liability company, Appellee.
    No. 4D02-2203.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.

      Stanford R. Solomon and Hallie S. Evans of The Solomon Tropp Law Group, P.A., Tampa, for appellant.
    Scott B. Newman of Holland & Knight LLP, West Palm Beach and Daniel S. Pearson and llene S. Pabian of Holland & Knight LLP, Miami, for appellee.
   KLEIN, J.

We withdraw our opinion filed on March 19, 2003 and substitute the following opinion.

Defendant appellee, a developer, signed a reservation form purporting to give the appellant plaintiff the right to subsequently enter into a contract to purchase a home on a specified lot at a firm price. Plaintiff alleges that when defendant tendered the purchase contract, it was for a less desirable lot and at a higher price. We conclude that these allegations state a cause of action under the Florida Deceptive and Unfair Trade Practices Act.

The reservation form, entitled “Residence Homes at Eagle Tree Reservation Agreement,” specifically referring to Lot 10A, contained the following relevant provisions:

1. Reservation of Residence Homes(s). Purchaser hereby reserves the right to purchase the aforedescribed Residence Home(s) in the Residence Home at Eagle Tree community of the Ritz-Carlton Golf Club & Spa, Jupiter project, in accordance with the terms and conditions set forth in this Agreement.
2. Purchase Price. The purchase price of the Residence Homes(s) hereby reserved by Purchaser shall be U.S. $1,200,000 (the “Purchase Price”). Seller assures Purchaser that the Purchase Price shall be that which is to be set forth in the Contract.
3. Refundable Deposit. Contemporaneously with Purchaser’s execution of this Agreement, Purchaser agrees to deliver to Seller a check or payment by major credit card reasonably acceptable to Seller in the amount of U.S. $25,000 as a good faith deposit (hereinafter referred to as “Deposit”) to be held by Seller in consideration for Seller’s reservation of the aforedescribed Residence Home(s) in Purchaser’s name. In the event that Purchaser actually consummates the purchase of such Residence Home(s) and proceeds with closing the transaction (“Closing”), the aforede-scribed Deposit shall be applied toward the down payment required under any applicable purchase contract (the “Contract”) to be executed. In the event that the Purchaser elects for any reason not to purchase the aforedescribed Residence Home(s) prior to the time that a legally binding Contract is executed by Purchaser, then, pursuant to Section 4 below, the Deposit together with any interest that has accrued, shall promptly be refunded to Purchaser.
4.No obligation. Purchaser acknowledges that until both Purchaser and Seller have executed a Contract with respect to the aforedescribed Residence Home(s), Purchaser is under no obligation to purchase and Seller is under no obligation to sell such Residence Home(s). This agreement can be terminated by either party at any time, subject to a refund of Purchaser’s Deposit in accordance with Section 5 below.

When the time came to execute the purchase agreement, about five months later, the defendant offered a contract for Lot 2C, not 10A, for a purchase price of $1,495,000, not $1,200,000. Plaintiff subsequently filed this lawsuit seeking specific performance, damages for breach of contract, and damages for violating the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

Plaintiffs theories of recovery of damages for breach of contract or specific performance are grounded on the argument that this was an enforceable option agreement. An option to purchase land, however, is irrevocable by the seller until expiration of a time limit. Goodman v. Goodman, 290 So.2d 552 (Fla. 1st DCA 1973). Because paragraph 4 allows either party to terminate at any time, this is not a valid option agreement, and the trial court was correct in dismissing the claims for specific performance and damages. It does not follow, however, that there cannot be a cause of action for deceptive trade practices under FDUTPA.

Section 501.204, Florida Statutes (2002) provides:

(1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

Trade or commerce is defined in section 501.208(8):

“Trade or commerce” means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.

Florida courts, in construing Chapter 501, are guided by federal decisions interpreting the Federal Trade Commission Act. § 501.204(2). A deceptive practice, under federal decisions, is one which is “likely to mislead consumers.” Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA 2000) and cases cited.

The reservation form states that “Purchaser hereby reserves the right to purchase the aforedescribed Residence Home(s), in the Residence Home at Eagle Tree Community of the Ritz-Carlton Golf Club & Spa ...” for a specific price ($1,200,000) and Seller “assures Purchaser that the Purchase Price shall be that which is to be set forth in the Contract.” It further provides that the Purchaser delivers a check in- the amount of “$25,000.00 as a good faith deposit ... to be held by Seller in consideration for Seller’s reservation of the aforedescribed Residence Homes(s) in Purchaser’s name.”

Despite paragraph 4, which says that the reservation form is not a purchase contract, the reservation form could have deceived this consumer into thinking that he was reserving the right to enter into a contract for a home on Lot 10A for $1,200,000. If he knew this reservation form was not worth the paper it was written on, which is the position of the defendant, why would he have written a check for $25,000? If, as the complaint alleges, defendant later offered a contract for a home on an inferior lot at a higher price, it could be found to have engaged in a classic bait and switch.

Whether a reservation for the purchase of real estate can constitute a deceptive trade practice is a question of first impression in Florida. Defendant relies on two cases from other jurisdictions to support its argument that this transaction cannot be deceptive; however, those cases are distinguishable.

In Leekha v. Wentcher, 224 Ill.App.3d 342, 166 Ill.Dec. 599, 586 N.E.2d 557 (1991), the prospective purchaser signed a property reservation receipt acknowledging a ten percent deposit and reserving the right to purchase a specified lot. In Leekha, however, the seller did not attempt to change either the property or the price. Rather the purchasers refused to sign the proffered contract because of an easement for a bike path.

In Freeman, v. Greenbriar Homes, Inc., 715 S.W.2d 394 (Tex.App.1986), the buyers signed a contract to purchase a home and gave a deposit check to a salesman. The contract was not signed by the developer seller, however, and three weeks later the buyers were informed that the developer would only sign for an additional $4,000. Freeman is distinguishable because the seller had never bound itself to do anything.

We are well aware that reservation forms are widely used in this state to market real estate and that they can serve a useful purpose. When the reservation form, however, unequivocally represents that the consumer will be given the opportunity to purchase a particular lot or unit at a firm price, it can be likely to mislead. We accordingly reverse the order dismissing the complaint for failure to state a cause of action only in regard to Count III, the deceptive trade practice claim.

POLEN, C.J., and HAZOURI, JJ., concur.

      . " 'Bait and switch’ describes an offer which is made not in order to sell the advertised product at the advertised price, but rather to draw the customer to the store to sell him another similar product which is more profitable to the advertiser.” Tashof v. Fed. Trade Comm'n, 437 F.2d 707, 709 n. 3 (D.C.Cir.1970); Izadi v. Machado Ford, Inc., 550 So.2d 1135, 1139 n. 8 (Fla. 3d DCA 1989).

      . An early version of Chapter 501 did not apply to sales of real estate, State ex rel. Herring v. Murdock, 345 So.2d 759 (Fla. 4th DCA 1977); however, the broad definition of trade or commerce contained in the present statute, which refers to "any property” was added in 1993. Ch. 93-38, Laws of Fla. Defendant does not contend that real estate is exempt. See also Southwest Sunsites, Inc. v. Fed. Trade Comm’n, 479 U.S. 828, 107 S.Ct. 109, 93 L.Ed.2d 58 (1986)(Federal Deceptive Practices Act applies to sale of undeveloped land to out of state purchasers).


author: CASANUEVA, Judge.

text:
    Edward P. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5713.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   CASANUEVA, Judge.

Edward P. Williams challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the trial court’s order.

The trial court erroneously denied Williams’ motion as untimely. This court issued a mandate affirming Williams’ judgments and sentences on December 15, 1999. Williams v. State, 753 So.2d 95 (Fla. 2d DCA 1999). On May 17, 2001, the Florida Supreme Court vacated this court’s decision and remanded the case for reconsideration in light of several recent decisions. Williams v. State, 786 So.2d 1170 (Fla.2001).

A motion for postconviction relief pursuant to rule 3.850 must be filed within two years after the judgment and sentence become final. The two-year clock began to tick when the opinion of the Florida Supreme Court issued. See Huff v. State, 569 So.2d 1247 (Fla.1990). Therefore, Williams’ motion was not untimely.

We reverse the trial court’s order denying Williams’ motion as untimely and remand for consideration of the motion.

Reversed and remanded.

FULMER and KELLY, JJ., concur.


text:
    Iris MILLER v. Eric D. CLOUT, III, Baker Hughes Oilfield Operations, Inc. and National Union Fire Insurance Company.
    No. 2003-C-0091.
    Supreme Court of Louisiana.
    March 28, 2003.
   ORDER

The court hereby informs the parties that it has granted certiorari in this matter. Because the issues are not complex, the court has selected this case for possible resolution by summary disposition and per curiam opinion.

Pursuant to Supreme Court Rule VIII, § 5, it is ordered that oral argument be limited to fifteen minutes for each side. During argument, the court may, at its discretion, grant the parties additional time.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    Bonnie D. REED v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2003-C-0107.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re State Farm Mutual Automobile Insurance Company;- — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 63,403; to the Court of Appeal, Third Circuit, No. 02-804.

And, whereas, the Court has' this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “ It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    ANTHONY CRANE RENTAL, L.P. v. Rufus FRUGE, Jr., Director of Calcasieu Parish Sales & Use Tax Dept.
    No. 2003-C-0115.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Fruge, Rufus R. Jr., Director; Calcasieu Parish Sales and Use Tax Dept.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Cal-casieu, 14th Judicial District Court Div. B, No. 2000-1828; to the Court of Appeal, Third Circuit, No. 02-0635.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — ■“ It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, thé record in duplicate of the above entitled case.

Granted.


text:
    GOOTEE CONSTRUCTION, INC. v. AMWEST SURETY INSURANCE COMPANY and Premier Glass Plus, Inc.
    No. 2003-CC-0144.
    Supreme Court of Louisiana.
    March 28, 2003.
   ORDER

The court hereby informs the parties that it has granted certiorari in this matter. Because the issues are not complex, the court has selected this case for possible resolution by summary disposition and per curiam opinion.

Pursuant to Supreme Court Rule VIII, § 5, it is ordered that oral argument be limited to fifteen minutes for each side. During argument, the court may, at its discretion, grant the parties additional time.

/s/ Pascal F. Calogero Justice, Supreme Court of Louisiana