author: STRINGER, Judge.

text:
    Herbert WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3581.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Herbert Wilson seeks review of the trial court’s order revoking his community control for leaving the Avon Park drug treatment center without permission before his treatment was completed. Wilson argues that the trial court erred in revoking his community control based solely on inadmissible hearsay evidence. We agree and reverse.

It is well-settled that a trial court may not base its finding that a defendant violated his community control solely on inadmissible hearsay evidence. Grimsley v. State, 830 So.2d 118, 119-20 (Fla. 2d DCA 2002); Gammon v. State, 778 So.2d 390, 391 (Fla. 2d DCA 2001); Clemons v. State, 388 So.2d 639, 640 (Fla. 2d DCA 1980). In this case, the following evidence supported the trial court’s finding that Wilson violated his community control by absconding from Avon Park: (1) testimony of Wilson’s community control officer that Wilson had not completed the program at Avon Park; (2) testimony of a former community control officer that she was informed that Wilson had absconded from Avon Park; and (3) testimony of Avon Park’s records custodian that Avon Park’s records indicated that Wilson had left Avon Park against medical advice. However, none of this testimony was based on personal knowledge; the witnesses all relied on information either supplied by other persons who were not called to testify or by documents that were not entered in evidence. Accordingly, the evidence was inadmissible hearsay, see § 90.801, Fla. Stat. (2002), and the trial court erred in revoking Wilson’s community control based solely on that testimony.

We therefore reverse the order of violation of community control. We note that the State is not precluded from attempting to prove another violation based on the same circumstances on remand as long as the period of community control has not expired. See Chavous v. State, 597 So.2d 943, 944 (Fla. 2d DCA 1992); McCarrick v. State, 553 So.2d 1373, 1374 (Fla. 2d DCA 1989).

Reversed and remanded.

SILBERMAN and CANADY, JJ„ Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Vincent Joseph ABOYOUN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2616.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Vincent Aboyoun appeals a restitution order and contends that the State failed to prove the value of the stolen items. The State concedes, and we agree, that a new restitution hearing is required to establish the value of four gold necklaces that were taken. The State correctly argues that the proof was sufficient to establish the value of the other items.

The victim testified during the original restitution hearing that the perpetrators took from him cash, four gold necklaces, two gold rings, two gold bracelets, new sneakers, and a car stereo system. He testified that he received the necklaces as gifts from his parents and that they told him how much they paid for these items. This was the only evidence offered to establish their value. The State properly concedes that this hearsay testimony was insufficient to establish value for restitution purposes. See Korica v. State, 791 So.2d 543 (Fla. 2d DCA 2001). Therefore, a new restitution hearing is appropriate to determine the fair market value of the necklaces. See id. at 544; Fletcher v. State, 800 So.2d 309, 311 (Fla. 2d DCA 2001).

With respect to the other gold jewelry, the victim testified from his personal knowledge as to the purchase price of the two rings. He did not know the purchase price of the two bracelets, but he was able to testify concerning their value based on his experience shopping for and purchasing gold jewelry. He testified that all of the stolen jewelry was in good condition. The victim also gave his opinion as to the value of the stereo system, and he testified as to the cost of the sneakers that he had purchased on the day of the robbery.

In Korica, this court acknowledged that “[gjenerally, restitution should be based on the fair market value of the property, unless that amount will not fully compensate the victim.” Korica, 791 So.2d at 544 (citing State v. Hawthorne, 573 So.2d 330 (Fla.1991)). In determining fair market value, the factors to be considered are purchase price, the manner in which the property was used, its condition, and depreciation. Id. Moreover, a property owner is generally qualified to testify regarding the fair market value of his or her property. Hawthorne, 573 So.2d at 333 n. 6.

In Bakos v. State, 698 So.2d 943, 944 (Fla. 4th DCA 1997), the Fourth District concluded that testimony from the victim regarding the purchase price of gold jewelry purchased ten years earlier, which she also opined was its current value, was sufficient to sustain the restitution award. Restitution for a pair of earrings was also upheld based on the victim’s testimony as to their purchase price. Id.

Here, the victim’s testimony regarding the rings and bracelets was sufficient to establish their value for restitution purposes. See id. Similarly, his testimony as to the value of the stereo system and sneakers, and the amount of cash that was taken, was sufficient to support the restitution award for those items. See Hawthorne, 573 So.2d at 333 n. 6; J.M. v. State, 661 So.2d 1285 (Fla. 4th DCA 1995).

Accordingly, we reverse the restitution order and remand for a new restitution hearing on the value of the four gold necklaces and for entry of a new restitution order consistent with this opinion.

Reversed and remanded.

STRINGER and CANADY, JJ„ Concur.


author: FULMER, Judge.

text:
    Demetrius MULDROW, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D01-2106, 2D01-2166.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.

      James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee; Dale E. Tarpley, Assistant Attorney General and Ha T. Dao, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Demetrius Muldrow appeals his sentence for attempted robbery with a firearm. Muldrow was sentenced to twenty years in prison, as a minimum mandatory, under the “10-20-Life” statute, section 775.087(2)(a)(2), Florida Statutes (1999). Because the verdict form does not reflect a clear jury finding that Muldrow discharged a firearm, we reverse and remand for re-sentencing.

The information alleged that in the course of committing an attempted robbery Muldrow “carried a firearm and discharged the firearm.” The 10-20-Life statute provides for a minimum mandatory sentence of ten years for possession of a firearm during the commission of an attempted robbery and a minimum mandatory sentence of twenty years for the discharge of a firearm during the commission of an attempted robbery. Before the trial court may impose the minimum mandatory sentence, the jury must make a specific finding of the fact that dictates the minimum mandatory sentence, i.e., possession or discharge.

The verdict form submitted to Mul-drow’s jury provided four options:

A. The defendant is guilty of Attempted Robbery with a Firearm, as charged.
B. The defendant is guilty of the Lesser crime of Attempted Robbery with a Weapon.
C. The defendant is guilty of the Lesser crime of Attempted Robbery.
D. The defendant is not guilty.

The jury chose option A and convicted Muldrow of attempted robbery with a firearm as charged. At sentencing, the trial court stated:

[I]t’s noted in the Information that they charged with you (sic) with attempted robbery with a firearm and that in fact you discharged the firearm in furtherance of the attempted robbery. The court is going to find that pursuant to— there was sufficient evidence at the trial for this jury to conclude that you in fact did discharge the weapon in furtherance of the attempted robbery.

Based on this finding, the trial court imposed an enhanced sentence of twenty years in prison pursuant to section 775.087(2)(a)(2).

Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Muldrow argues that the sentence is illegal because the jury did not make a specific finding that Muldrow discharged a firearm. We agree that Apprendi applies, and as the State points out, Florida Supreme Court precedent that predates Ap-prendi would also require a clear jury finding that Muldrow discharged a firearm in order to justify enhancement under section 775.087(2)(a)(2). See Tucker v. State, 726 So.2d 768 (Fla.1999); State v. Hargrove, 694 So.2d 729 (Fla.1997); State v. Tripp, 642 So.2d 728 (Fla.1994); State v. Overfelt, 457 So.2d 1385 (Fla.1984).

The State contends that because the jury was given the information to take to the jury room and found Muldrow guilty “as charged,” the verdict rendered incorporates the allegation in the information that Muldrow discharged a firearm. We disagree with this contention. The phrase “with a firearm, as charged” incorporates the factual allegation that Muldrow possessed a firearm, which would justify imposition of a ten-year minimum sentence under the enhancement provision in section 775.087(2)(a)(1). See Tucker, 726 So.2d at 772 (stating that enhanced sentence should be upheld if based on a jury verdict which specifically refers to the use of a firearm, either as a separate finding or by the inclusion of a reference to a firearm). However, the verdict form makes no reference to the discharge of a firearm. It cannot be said that a factual finding that a firearm was possessed constitutes a factual finding that the firearm was discharged. Therefore, the verdict form does not incoiporate the factual allegation that Muldrow discharged the firearm as required for imposition of the twenty-year minimum mandatory sentence. See Tripp, 642 So.2d at 730 (explaining that jury’s verdict that the defendant is guilty of “charges made against him in the Information” is insufficient to establish that a weapon was used, even if the information alleged that the defendant used a weapon during commission of the crime); see also Orjales v. State, 758 So.2d 1157 (Fla. 2d DGA 2000) (following Tripp). If this jury found that Muldrow committed the attempted robbery while possessing a firearm but did not discharge it, the verdict that would reflect these findings is the same verdict that was rendered. Thus, we cannot say that the verdict form reflects a clear jury finding that Muldrow discharged the firearm.

Accordingly, we reverse the sentence imposed and remand for resentencing in case no. 2D01-2106. On remand, the judgment should be corrected to classify the attempted robbery with a firearm conviction as a second-degree felony. We reject without discussion the issue raised in consolidated case no. 2D01-2166.

Case 2D01-2166 affirmed; in case 2D01-2106, the conviction is affirmed, but the sentence is reversed and remanded with directions.

WHATLEY and SILBERMAN, JJ., Concur.

      . § 775.087(2)(a)(1), Fla. Stat. (1999).

      . § 775.087(2)(a)(2), Fla. Stat. (1999).

      . We also note that the instructions read to the jury contained no reference to the discharge of a firearm.

      . Although it is not dispositive, we note that the issue of whether Muldrow discharged a firearm was a disputed issue at trial, and the evidence was such that the jury could have logically found that Muldrow committed the attempted robbery with a firearm but did not discharge it. In fact, Muldrow contends that the evidence was insufficient to support a jury finding that he discharged a firearm. We reject this contention because we conclude that there was sufficient circumstantial evidence by which the jury could have found that Muldrow discharged a firearm if the question had been properly posed on the verdict form. And, in any event, a jury finding of a discharge is required even where the evidence of discharge is uncontested. See Tucker, 726 So.2d 768.


text:
    Michael HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4341.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.
   STRINGER, Judge.

Michael Hunter challenges the trial court’s order dismissing his motion for clarification of sentence. We affirm the trial court’s order without comment and note only-that pursuant to Gethers v. State, 838 So.2d 504 (Fla.2003), Hunter is not entitled to credit against his Hendry County sentence from the date the detainer from Hendry County was lodged against him while he was in jail in Palm Beach County awaiting disposition of his charges there. The court in Gethers held that “[o]nly if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer.” Id. at 507.

Affirmed.

WHATLEY and NORTHCUTT, JJ., concur.


text:
    Kelvis JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4344.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.
   SILBERMAN, Judge.

We affirm the order denying Kelvis Jimenez’s motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a) without prejudice to whatever right he may have to file a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Collins v. State, 819 So.2d 945 (Fla. 2d DCA 2002); Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002).

Affirmed.

WHATLEY and NORTHCUTT, JJ., concur.


author: SALCINES, Judge.

text:
    Chrisandra SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4409.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.
   SALCINES, Judge.

Chrisandra Scott appeals the summary denial of her motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand on one claim and affirm without comment on all others.

Scott claims that counsel was ineffective for failing to consider the defense of voluntary intoxication. In Straitwell v. State, 834 So.2d 918 (Fla. 2d DCA 2003), this court held that, for purposes of a postcon-viction motion for relief, the appellant must show either that he told his attorney that he was intoxicated at the time of the offense or that he told his attorney of his addiction and there was record evidence that should have alerted his attorney to a possible intoxication at the time of the offense. Straitwell, 834 So.2d at 920 (citing Boehm v. State, 776 So.2d 332, 333 (Fla. 4th DCA 2001)). Scott told counsel that she was voluntarily intoxicated, and the record reveals that she has a documented history of drug abuse. An eviden-tiary hearing is warranted to determine whether counsel was ineffective for failing to discuss and explore with Scott the possibility of utilizing a voluntary intoxication defense. See Straitwell, 834 So.2d 918. Therefore, we reverse and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.


text:
    Terrell A. DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4226.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.
   STRINGER, Judge.

Terrell Dunbar challenges the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Dunbar argues that his sentence as a habitual felony offender is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the decision of the trial court because Dunbar does not affirmatively allege that he received a minimum mandatory sentence under section 893.13, Florida Statutes (2001), and was therefore affected by the amendments contained within chapter 99 188. Dunbar is therefore not entitled to relief under Taylor.

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.

      . Taylor held that chapter 99-188, Laws of Florida, is unconstitutional because it was enacted in violation of the single subject rule.


text:
    Jon C. RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4404.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.
   SILBERMAN, Judge.

Jon C. Randall challenges the summary denial of his motion to correct illegal sentence. We affirm; however, we note that on the face of the record, a discrepancy exists between the oral pronouncement and the written sentence. The plea agreement and transcript indicate that Randall was convicted of two counts of attempted capital sexual battery, a first-degree felony. However, the judgment lists the offenses as two counts of attempted sexual battery, a second-degree felony. In the context of the entire plea and sentencing hearing, it appears that the discrepancy is the result of a scrivener’s error. Accordingly, the case is remanded for the trial court to correct the written sentencing documents to conform to the oral pronouncement. Williams v. State, 744 So.2d 1156 (Fla. 2d DCA 1999). Randall need not be present for the correction of the sentencing documents.

Affirmed with directions.

WHATLEY and NORTHCUTT, JJ., Concur.


author: SCHWARTZ, Chief Judge.

text:
    Glenn STORM, Appellant, Cross-appellee, v. ALLIED UNIVERSAL CORPORATION, a Florida corporation and RObert Namoff, Appellees/Cross-appellants.
    Nos. 3D01-3563, 3D01-2152.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.

      Bernard Butts, Jr., Hialeah; Donna Ballman (Davie), Ft. Lauderdale; Kutner, Rubinoff, Bush & Lerner and Susan Lerner, Miami, for Storm.
    Anania, Bandklayder, Blackwell, Baum-garten & Torricella and Douglas H. Stein, and Daniel K. Bandklayder, Miami, for Allied and Namoff.
    Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

In an order granting a new trial, on appeal in case no. 01-2152, the trial judge concluded — on ample, indeed overwhelming, evidence adduced in extensive post-trial proceedings — that the plaintiff, Storm, who had won a large jury verdict in his favor, had “misled and deceived the Defendants, the jury and this Court about matters which strike at the heart of Storm’s claims.” We reject out of hand Storm’s various attacks upon this ruling and its consequences, including, in the judgment on appeal in case no. 01-3563, the assessment of attorney’s fees against him for the efforts required of the defendants to reveal his multiple acts of fraud, perjury, and deception. See Babe Elias Builders, Inc. v. Pemick, 765 So.2d 119 (Fla. 3d DCA 2000); Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA 1993), review dismissed, 630 So.2d 1100 (Fla.1993).

We can find no cognizable reason, however, for the trial court’s exercise of “discretion,” challenged on the cross-appeal, to grant a new trial, rather than a dismissal with prejudice because of the plaintiffs misconduct. On this record, the ends of justice preclude a miscreant like Storm from continuing, in a new trial or otherwise, his use of the very system he has corrupted. See Cabrerizo v. Fortune, Int’l Realty, 760 So.2d 228 (Fla. 3d DCA 2000); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998); Mendez v. Blanco, 665 So.2d 1149 (Fla. 3d DCA 1996). Accordingly, we order that after remand, Storm’s action be dismissed with prejudice.

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

APPENDIX A

IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO: 95-2Q273 CA 25

GLENN STORM, Plaintiff, vs. ALLIED UNIVERSAL CORP., a Florida corporation and ROBERT NAMOFF,

Defendants.

ORDER SETTING ASIDE VERDICT, VACATING FINAL JUDGMENTS AND GRANTING A NEW TRIAL

THIS MATTER came before the Court, on May 22, 2001, upon the Motion to Set Aside Verdict and Final Judgment and to Dismiss or for New Trial Based on Plaintiffs Misleading and Perjured Testimony and Abuse of Discovery (“Motion to Set Aside”) filed herein by the Defendants, ALLIED UNIVERSAL CORPORATION (“ALLIED”) and ROBERT NAMOFF (“NAMOFF”)(collectively “Defendants”). The Court having reviewed the Motion, the Defendants’ Memorandum of Law (and attached Exhibits) filed May 21, 2001 (“Defendants’ Memorandum”), the accompanying record evidence, the applicable authorities and the Plaintiffs Memorandum of Law in Opposition to Defendants’ Post Trial Motions, having heard the argument of counsel, and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law:

BACKGROUND

The Plaintiff, GLENN STORM (“STORM”), was employed by ALLIED. STORM alleges that ALLIED wrongfully discharged him on August 24, 1995 in retaliation for his prosecuting a worker’s compensation claim. The Defendants deny these allegations.

The case came on for trial March 13, 2000. At the conclusion of the four day trial, the jury returned a verdict in favor of STORM and awarded the following damages: $138,800 for “lost income”; $23,782.33 for “401K entitlement”; $4,182.69 for “vacation pay”; and $750,000 for STORM’s “mental anguish, emotional distress and humiliation.”

The Defendants filed numerous post-trial motions, including the instant Motion to Set Aside. In their Motion, the Defendants assert that STORM: (a) testified falsely at his depositions and at trial; and (b) misled and/or deceived the jury. The Defendants, in. turn, request that this Court set aside the verdict, vacate the final judgments, and dismiss this case with prejudice or, alternatively, order a new; trial and impose sanctions against STORM.

For the reasons set forth below, the Court hereby grants the Defendants’ Motion, sets aside the jury’s verdict, vacates the March 17, 2000. final judgments against the Defendants, and orders a new trial.

FINDINGS OF FACT

At STORM’s pre-trial depositions and at trial, STORM, a chemical engineer with a Master’s degree, unequivocally testified that, for at least two years after ALLIED discharged him,' he devoted his “full-time efforts” (without success) to obtaining full-time, gainful employment at a chemical company:

My full-time efforts for that two year period was to gain employment at a chemical company and to be employed (Trial, p. 788, lines 14-16).
Question (April, 10, 1996, Deposition, p. 71): What is your current employment status?

Answer: I’m looking for full-time work. At trial, STORM testified that, during these two years, he “lost (his) total income and made absolutely nothing” (Trial, p. 755, lines 4-7). STORM further testified that the only reason that he was “not working during those two years” was that nobody would offer him a job (Trial, p. 327). STORM also testified that he “realized that (he) had been black balled” (Trial, p. 261) and that prospective employers refused to consider him, presumably because of adverse references from his former employer, ALLIED (Trial, p. 260-261, 326).

Post-trial discovery indisputably has established that, contrary to STORM’s trial testimony, he did not devote his “full time efforts” for at least two years following his August 24, 1995 discharge to an unsuccessful search for gainful employment. Instead, during this time frame, STORM was actively engaged in business through two chemical supply companies that he formed in 1995, Premier Industries International, Inc. (“Premier”) and Coastal Manufacturing, Inc. (“Coastal”).

At trial, STORM testified that Premier “never did become a functioning company.” (Trial, p. 262). At STORM’s August 2, 1999 deposition, p. 92, STORM testified:

Question: Is there anything that Premier has ever done?
Answer: No.

When STORM was questioned at trial as to whether he was even engaged in any “start up activity” with Premier during this two year time frame, he testified that “there was no focus or start up activity on my behalf. My full-time efforts for that two year period [were] to gain employment at a chemical company and to be employed” (Trial, p. 788).

The above testimony is false. In actuality, during this time frame, STORM, through Premier, was engaged in the business of selling chemical products. In fact, during post-trial discovery, Defendants uncovered numerous invoices, purchase orders, checks and deposit slips which confirm that, from September, 1995 through June, 1997, Premier received approximately $48,000 from the sale of chemical products to various customers, primarily Greenwich Air Services, Inc. and Commercial Chemical Products, Inc. (Defendants’ Memorandum, Exhibits “C” and “D”).

With regard to Coastal, STORM testified at trial that during the subject two year time frame, he had “no involvement” with Coastal (Trial, p. 789) and that STORM’s partner, Simon Fernandez (“Fernandez”) ran Coastal from the very beginning ... he man-handled and managed Coastal from day one” (Trial, p.' 789). This testimony is false. Fernandez testified at his post-trial deposition that, in actuality, STORM, rather than Fernandez, ran all of Coastal’s day-to-day business operations during this time frame. Fernandez further testified that STORM “handled most of the routine day-to-day affairs and administrative matters of the company from the beginning of the company (January, J996) onward (Fernandez Deposition, pp. 28 43). Specifically, STORM: (a) prepared the company’s tax returns (Fernandez Deposition, p. 19); (b) handled 100% of Coastal’s bookkeeping and accounting (Fernandez Deposition, pp. 22-24); (c) dealt with Coastal’s vendors and suppliers (Fernandez Deposition, p. 25); (d) paid Coastal’s bills, obtained permits for the handling of hazardous materials and certified the company as minority firm/minority contractor (Fernandez Deposition, p. 26); (e) handled Coastal’s shipping and made its bank deposits (Fernandez Deposition, p. 31); (f) obtained, in January, 1996, Coastal’s UPC membership and instituted a bar coding system for Coastal’s products (Fernandez Deposition, p. 35); and (g) obtained Coastal’s chemicals and supplies (Fernandez Deposition, pp. 42-45). In Short, STORM “handled everything, like I said before ... from the beginning” (Fernandez Deposition, p. 44).

The foregoing record evidence convincingly demonstrates that STORM’s trial testimony regarding his activities, during the two years following his discharge, ie. his purported full time, unsuccessful job search, inability to find work, total loss of income and resulting mental distress, was false and, at the very least, misled and deceived the jury. This testimony undermined the integrity of the entire trial.

STORM also misled and deceived the jury with evidence and argument that ALLIED refused to “give him back the money that he had contributed to his 401K pension” (Trial, p. 215). STORM testified at trial that ALLIED “still owed” him his 401K money (Trial, p. 259) and “not only did I not get my 401K, I could not get a quarterly or annual report” (Trial, p. 810). Moreover, STORM testified at trial that “if anybody was a thief here it was them” (Trial, p. 259). In her opening statement, STORM’s counsel emphasized that ALLIED “did not even ... give him back the money that he had contributed to his 401K pension” (Trial, p. 215).

Contrary to STORM’s trial testimony, his 401K contributions indisputably remain in his account at Mass Mutual, ALLIED’s 401K plan administrator. Moreover, STORM has always had, and continues to have, complete access to those funds. As of May 15, 2001, the balance in STORM’s 401K account at Mass Mutual is $25,595.89 (Defendants’ Memorandum, Exhibit “E”). ALLIED has no control over these funds. STORM, on the other hand, has the ability to request loans, withdrawals, transfers, investment options and other account changes or transactions simply by calling Mass Mutual at its 800 number. STORM’s contention that ALLIED somehow blocked his access to his 401K account by refusing to provide him with account information is incredible. During STORM’s tenure as an active employee: (a) his weekly paychecks contained stubs that set forth his weekly and year-to-date 401K contributions and (b) approximately four weeks after the end of each quarter, he received, with his paycheck, a quarterly account summary prepared by the plan administrator. Since STORM worked at ALLIED until August, 1995, he received quarterly statements, with his paychecks, in April and July, 1995. See Defendants’ Memorandum, Exhibit “E”. STORM’s testimony-and his counsel’s argument-that ALLIED refused to “give him back” his 401K funds severely prejudiced the Defendants. Moreover, the prejudice goes far beyond the jury’s separate award of $23,782.33 for “401K entitlement.” This testimony and argument discredited ALLIED and NAMOFF in the eyes of the jury, damaged the credibility of the defense witnesses on all issues, and undermined the integrity of the entire trial and the jury’s verdict.

STORM further misled and deceived the jury, and deliberately appealed to the jury’s emotions, passions and sympathy, by claiming that STORM’s mental anguish and emotional distress resulting from his termination was particularly sever because, at the time ALLIED discharged STORM, “his father had just died” (Trial, p. 273, 845) and, as a result “this was two of the worst years of (his) life” (Trial, p. 273). In closing argument, Plaintiffs counsel emphatically reiterated this point when she urged the jury to award STORM hundreds of thousands of dollars for his mental anguish, emotional distress and humiliation:

Ms. Ballman (Trial, p. 845): These are the three numbers that we are asking you to fill in on that verdict form. Now, the next thing you are going to be asked is emotional distress damages: What is the total amount of damages, if any, sustained by Glenn Storm for mental anguish, emotional distress and humiliation caused by his discharge.
You heard Mr. Storm’s emotional testimony about the extent of the humiliation, having to borrow money from his mother, how his father had just died on top of that. You heard it. You remember how visibly shaken he was. STORM’s counsel’s argument related to the following emotional trial testimony: Question (by Ms. Ballman, Trial, p. 273): Now, describe to me your feelings over the two years when you were looking for a job.
Answer: Ms. Ballman, this was two of the worst years of my life. Like I told you, I am an only child. My dad passed away.
Question (by Ms. Ballman, Trial, p. 273-274): You mentioned a couple of times that your father just passed away. You must have suffered some sort of emotional upset from that. Can you describe to me how the acts that we discussed here by ALLIED caused you any distress that was different from the distress you have suffered regarding the death of your father?
Answer (Trial, p. 274): I mean, your father is your father and you see him go. To see him go-

Post-trial, Defendants discovered that, in actuality, STORM’s father died in August, 1992, more than three years before ALLIED discharged STORM. At the May 22, 2001 hearing on Defendant’s post-trial motions, Plaintiffs counsel, Donna Ballman, Esq., stated that, at the time of the trial, she did not know this. Nevertheless, there can be no doubt that STORM did. His emotional testimony, and his counsel’s emphatic reiteration of this emotional testimony in her closing argument, misled and deceived the jury. STORM deliberately (and successfully) appealed directly to the jury’s emotions, passions and sympathy, in order to bolster STORM’s claim for mental anguish and emotional distress damages. His success in so misleading the jury is reflected by the jury’s award of $750,000 for STORM’s alleged mental anguish and emotional distress.

CONCLUSIONS OF LAW

As the Fourth District Court of Appeal recently observed:

The late George Allen, Sr., while serving as coach of the Washington Redskins football team, once said that the only thing worse than dying was losing. Perhaps that is an appropriate attitude for professional sports. It is not equally appropriate for all areas of human endeavor. Today, regretfully, some seem to view winning a case as more important than supporting the system that all of us look to for justice ...

Berman & Feldman v. Winn Dixie, Inc., 684 So.2d 320, 321 (Fla. 4th DCA 1996).

This court finds, based on clear and convincing evidence, that STORM’s deposition and trial testimony were replete with falsehoods, misrepresentations and outright lies that strike at the heart of STORM’s wrongful discharge claim. STORM’s false and misleading testimony directly relates to: (a) STORM’s claimed inability to find a job for two years despite his “full time efforts” to do so; (b) STORM’s claim that, as a result of the Defendants’ alleged wrongful acts, he earned “absolutely nothing” for at least two years following his discharge; (c) ALLIED’s alleged refusal to “give him back the money that he had contributed to his 401K pension”; and (d) STORM’s alleged mental anguish and emotional distress. Our own Third District Court of Appeal recently observed:

The suggestion that perjury in a civil case is acceptable, or in the alternative, that it will go unpunished even when discovered, has gained regrettable acceptance among many. I can think of few crimes, however, that strike more viciously against the integrity of our system of justice than the crime of perjury. In my judgment, it is imperative that when such conduct is identified, offenders be immediately investigated and, if the evidence warrants, prosecuted to the full extent permitted by law.

Metropolitan Dade County v. Martinsen, 736 So.2d 794, 796 (Fla. 3d DCA 1999)(So-rondo, J., concurring). A party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution (the party) has subverted to achieve his or her ends. Rosenthal v. Rodriguez, 750 So.2d 703 (Fla. 3d DCA 2000).

This Court has “the inherent power to regulate litigation and to sanction litigants for abusive practices.” Vargas v. Peltz, 901 F.Supp. 1572, 1579 (S.D.Fla.1995). Florida courts consistently have relied on their inherent authority to sanction litigants for abusive practices as a basis for dismissing or striking the claims of litigants who repeatedly lie under oath. See, e.g., Rosenthal, supra (holding that the trial court properly exercised its discretion by striking plaintiffs pleadings and dismissing her case with prejudice, based on plaintiffs repeated and pervasive perjurious statements on matters central to her personal injury action); Hanono v. Murphy, 728 So.2d 892 (Fla. 3d DCA 1998)(holding that a dismissal with prejudice of plaintiffs personal injury claim is required, where the plaintiff was adjudicated guilty of perjury based on his false deposition testimony regarding the nature and extent of his injuries and impairment); Savino v. Florida Drive In Theatre Mgt., Inc., 697 So.2d 1011 (Fla. 4th DCA 1997)(trial court properly dismissed personal injury claim of plaintiff, with prejudice, where plaintiff lied under oath and to his treating physicians about his educational background, his ability to work and his level of intelligence). See also O'Vahey v. Miller, 644 So.2d 550 (Fla. 3d DCA 1994); Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998). Where it is shown that the prevailing party knowingly gave or used false testimony, the trial court in its discretion may, at the very least, grant a new trial. Gaiter v. Winn Dixie Stores, Inc., 376 So.2d 912 (Fla. 3d DCA 1979). In the as-yet unpublished opinion in Kenet, M.D. v. Bailey Hunt Jones & Busto, 785 So.2d 515, 25 Fla. L. Weekly, D1605 (Fla. 3d DCA 2000), the Court held that the offending party’s testimony need not be perjurious to warrant the granting of a new trial. To the contrary, it is sufficient that the party’s testimony is inaccurate and misleading.

The Supreme Court of Florida has summarized the trial court’s discretion in ruling on a motion for new trial as follows:

To summarize, this court has repeatedly held that the trial judge has broad discretion in ruling on a motion for new trial on the grounds that the verdict is contrary to the manifest weight of the evidence. A trial judge has the responsibility to draw “on his (or her) talents, his (or her) knowledge and his (or her) experience to keep the search for the truth in a proper channel, and the trial judge should always grant a motion for a new trial when the jury has been deceived as to the force and the credibility of the evidence or has been influenced by considerations outside the record. The trial judge’s discretion permits the grant of a new trial although it is not ‘clear, obvious and indisputable that the jury was wronged.’ ”

Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla., 1999)(reh’g denied, January 12, 2000).

Here the record evidence clearly and convincingly demonstrates that, throughout this litigation, STORM has misled and deceived the Defendants, the jury and this Court about matters which strike at the heart of STORM’s claims, i.e., his alleged: (a) inability to obtain employment; (b) lost earnings; (c) mental anguish and emotional distress, during what he described at trial as “the worst two years of my life”; and (d) the Defendants’ purported refusal to “give him back the money that he had contributed to his 401K pension.” STORM’s indisputably false and misleading testimony on these issues permeated the trial, severely damaged the credibility of the defense witnesses on all issues and undermined the integrity of the entire trial. “A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.” Cox, at 47. This Court simply cannot condone Plaintiffs lack of candor, which made it impossible for the jury and this Court to render a just result. This Court finds that, at the very least, the jury has been deceived as to the force and credibility of the evidence and the jury’s verdict is against the manifest weight of the evidence. This court is convinced that based on STORM’s misconduct in his prosecution of this case, it would be appropriate for this Court to dismiss this case with prejudice. Instead, however, this Court chooses, in the exercise of its discretion, to set aside the verdict, vacate the final judgments entered in STORM’s favor and against the Defendants, and order a new trial.

Accordingly, it is

CONSIDERED, ORDERED and ADJUDGED as follows:

1. Defendants’ Motion to Set Aside Verdict and Final Judgment and to Dismiss or for New Trial Based on Plaintiffs Misleading and Perjured Testimony and Abuse of Discovery be, and the same is hereby GRANTED.

2. The jury’s verdict and the final judgments dated March 17, 2000 against the Defendants, ALLIED UNIVERSAL CORPORATION and ROBERT NA-MOFF, be and the same are vacated in all respects.

3. This Court hereby orders a new trial.

DONE AND ORDERED in Chambers, at Miami, Dade County, Florida, this 3rd day of July, 2001.

/a/ Philip Bloom THE HONORABLE PHILIP BLOOM

CIRCUIT COURT JUDGE

Copies to:

Daniel K. Bandklayder, Esq. Donald W. Hardeman, Jr., Esq. Bernard H. Butts, Jr., Esq. Donna Marie Ballman, Esq. Susan S. Lerner, Esq.

      . See Appendix A.

      . The only apparent reason for this aspect of the trial judge’s ruling was his statement that he was "going to give the Plaintiff the break of his life.” This is precisely the kind of legal arbitrariness which cannot support a discretionary ruling. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)("The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial court’s discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner.”); DeVaughn v. DeVaughn, 840 So.2d 1128 (Fla. 5th DCA 2003); Arango v. Arango, 450 So.2d 583 (Fla. 3d DCA 1984).

      . NAMOFF is Allied’s Chief Executive Officer.

      . STORM could not identify a single witness to support his contention that his purported inability to find a job was caused by adverse references from Allied.

      . At trial, STORM tried to explain away the nearly $50,000 in deposits reflected on Premier’s checking account statements by attributing them to (a) loans from his mother; (b) "sloppy bookkeeping” on his part, in that he mistakenly deposited his personal funds into corporate accounts; and (c) proceeds that he received from the sale of his deceased father’s electric train sets, furnishings and collectibles (Trial, p. 784, 787). This testimony also is false. The checks and deposits slips obtained through post-trial discovery reflect that, contrary to STORM's trial testimony, nearly all of the deposits into Premier's account are from Commercial Chemical Products, Inc., Greenwich Air Services, Inc., TNT Doogan, The Dupont Company, Coastal Manufacturing and Goggin Truck Line, Inc.

      . STORM misled the Defendants, the jury and this Court, and attempted to “cover up” Coastal’s business operations and his extensive involvement in its day-to-day operations by referring to it as a "start up” company that "never got off the ground” and “generated no income.” The misleading nature of this testimony is evident from Coastal’s bank statements, which reflect deposits of approximately $75,000 during this time frame, from entities which include: Wholesale Emporium of Florida, Auto Wash Supply, Inc., Biscayne Park, the Pointe Bayside, Cason Enterprises, Inc., SAK Unlimited, Commercial Chemical Products, Inc., Deep South Trading Company, Monarch Supply Corp., Northern Leasing Systems, Print Max, Inc. and American Express Travel. Again, the records obtained post-trial establish the falsity of STORM’s trial testimony that these deposits came from his mother, the sale of his deceased father's assets and/or "sloppy bookkeeping.”

      . STORM’s trial testimony that his inability to find work during this two year time frame was attributable solely to the fact that no one would hire him (presumably because ALLIED “black balled” him) is further belied by the indisputable fact that STORM filed a claim for worker's compensation wage loss benefits, in which he certified that, for at least a portion of this time frame, he was unable to work because of injuries he allegedly sustained at ALLIED. Specifically, in STORM’s Petition for Benefits,- he states that he "can’t work because of debilitating headaches, severe neck and left shoulder/arm pain, loose, painful and misaligned teeth, TMJ, loss of memory, depression, insomnia ... temporary total disability from December 6, 1995.” (Defendants' Memorandum, Exhibit "A”).

      . See Defendants' Memorandum, Exhibit "F”.


author: WOLF, J.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS and Mavis Georgalis, Appellees.
    No. 1D02-3020.
    District Court of Appeal of Florida, First District.
    April 10, 2003.

      Pamela S. Leslie, General Counsel; Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, for appellant.
    M. Stephen Turner and Martin A. Fitzpatrick, of Broad and Cassel, Tallahassee, for appellees.
   WOLF, J.

State of Florida, Department of Transportation (DOT or the Department) appeals from a final order granting temporary reinstatement of Mavis Georgalis to her position of employment with DOT pursuant to section 112.3187(9)(f), Florida Statutes (2002). The Department argues that the Florida Commission on Human Relations (FCHR) failed to follow the statutory notice requirements of section 112.3187-112.31895, Florida Statutes, the “Whistle-blowers Act.” DOT also argues 1) the trial court erred in granting temporary relief where no actual discharge took place, and 2) the trial court erred in not allowing DOT to present evidence concerning whether a discharge took place. We affirm the trial court’s order.

Ms. Georgalis had been employed as a Manager of Specialized Technologies for DOT until April 1, 2002. On that date, while she was on vacation visiting her mother in Lake City, she was contacted by telephone and told to report to a meeting in Tallahassee with her supervisor, Nelson Hill. At that meeting she was presented with two letters: one letter was addressed to her and advised her that her services were no longer needed, the other letter asked Mr. Hill to accept her resignation. She claims she was given a choice between the two, and opted for resignation only in response to coercion. The Department does not dispute the accuracy of these facts.

On May 31, 2002, Ms. Georgalis filed a whistle-blower complaint with the FCHR, claiming she was fired because she participated in a complaint made by Clint Curtis, a contractor under her supervision. She claims that the allegations of the complaint are protected by the Whistle-blower’s Act which prevents state agencies from taking adverse action against employees who make protected disclosures to appropriate authorities. Section 112.3187(4), Florida Statutes. It also empowers FCHR to investigate complaints and request temporary reinstatement when appropriate. Section 112.31895, Florida Statutes.

On June 28, 2002, FCHR reviewed Ms. Georgalis’ complaint and sent a letter to DOT requesting her reinstatement. The Department refused to reinstate Ms. Geor-galis. FCHR then filed a “Petition For Expedited Order of Temporary Reinstatement Pending Outcome of Investigation,” and a “Petition For Order To Show Cause.” DOT filed its responses to these petitions.

On July 18, 2002, a hearing was held on FCHR’s motions and DOT’s responses. DOT’s primary argument was that Ms. Georgalis resigned her position, and that the Whistle-blower Act only authorizes FCHR to seek temporary reinstatement when the employee has been discharged. At the hearing, the circuit judge reviewed copies of the termination and resignation letters, both dated April 1, 2002, and found that Ms. Georgalis was actually discharged. The court ordered DOT to temporarily reinstate her.

Section 112.3187(9)(f) provides for temporary reinstatement of an employee who alleges a violation of the Whistle-blowers Act:

Temporary reinstatement to the employee’s former position or to an equivalent position, pending the final outcome on the complaint, if an employee complains of being discharged in retaliation for a protected disclosure and if a court of competent jurisdiction or the Florida Commission on Human Relations, as applicable under s. 112.31895, determines that the disclosure was not made in bad faith or for a wrongful purpose or occurred after an agency’s initiation of a personnel action against the employee which includes documentation of the employee’s violation of a disciplinary standard or performance deficiency. This paragraph does not apply to an employee of a municipality.

In order to get relief a complainant must demonstrate the following: 1) prior to termination the employee made a disclosure protected by the statute; 2) the employee was discharged; and 3) the disclosure was not made in bad faith or for a wrongful purpose, and did not occur after an agency’s personnel action against the employee. See Lindamood v. Office of the State Attorney, Ninth Judicial Circuit of Florida, 731 So.2d 829, 831 (Fla. 5th DCA 1999).

As an initial matter, we consider the order granting reinstatement to be an appealable final order in that there is no further judicial labor required of the circuit court. See Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983). Any proceedings on the underlying whistle-blower’s complaint will be separate and distinct from the reinstatement case and will be conducted in the manner provided by section 112.31895(3) and (4), Florida Statutes.

We next address the Department’s argument that Ms. Georgalis was not entitled to temporary relief because FCHR failed to follow the statutory time periods. It is undisputed that FCHR did not notify DOT of the filing of the complaint within three working days as required by section 112.31895(l)(b), Florida Statutes, nor is it disputed that FCHR failed to file the request for reinstatement with the circuit court within 15 days of filing the complaint as required by section 112.31895(3)(b), Florida Statutes. We find, however, DOT’S arguments regarding failure to comply with statutory time periods to be unpersuasive. The statute itself does not provide for any remedy when the agency fails to meet the statutory requirement. We must, therefore, look at the legislative intent to determine the appropriate remedy for failing to follow the statute.

With respect to time-limit statutes the general rule is that requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed ... a proper test of legislative intent is to focus on the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment.

J.W. v. Dept. of Children and Families, 812 So.2d 599 (Fla. 5th DCA 2002) (quotations and citations omitted).

The legislative intent of the Whistle-blower’s Act is to prevent retaliatory action against employees who disclose misconduct on the part of public officials. Section 112.3187(2), Florida Statutes. The time periods contained within the statute constitute directions to FCHR to expeditiously handle complaints and seek relief for the complainant where it is warranted. It does not serve the legislative purpose to preclude a complaining employee from obtaining relief based upon FCHR’s failure to follow statutory directives. See Department of Bus. Regulation v. Hyman, 417 So.2d 671 (Fla.1982) (finding failure to follow statutory time periods will not necessarily preclude agency action). In addition, DOT has failed to demonstrate that it was prejudiced by the lack of notice. Therefore, appellant is not entitled to reversal. See Hyman.

DOT next argues that the relief of temporary reinstatement is only available for actual discharge rather than constructive discharge. It is unnecessary for us to reach this argument because we agree with the trial court’s determination based on the undisputed facts that an actual discharge took place.

The last argument we address concerns DOT’S assertion that it was entitled to a full evidentiary hearing prior to Ms. Georgalis’ temporary reinstatement. We reject this argument because there is no indication that DOT specifically asked for an evidentiary hearing in the trial court or asserted what factual matters needed to be resolved at the proposed evidentiary hearing. The judgment of the trial court is, therefore, affirmed.

WEBSTER and PADOVANO, JJ„ concur.


author: PER CURIAM.

text:
    Harold MOBLEY, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-0308.
    District Court of Appeal of Florida, First District.
    April 10, 2003.
    Michael A. Shiftman, Daytona Beach, for Appellant.

      Pamela Lutton-Shields, Assistant Attorney General, Tallahassee; Louis A. Vargas, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to the February 24, 2003, order to show cause, we dismiss this appeal as premature. McGurn v. Scott, 596 So.2d 1042 (Fla.1992); see S.L.T. Warehouse Co. v. Webb, 304 So.2d 97,100 (Fla.1974).

DAVIS, BENTON and PADOVANO, JJ., concur.


text:
    M.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2935.
    District Court of Appeal of Florida, First District.
    April 10, 2003.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, M.L., challenges the denial of his motion for judgment of acquittal on the charge of carrying a concealed weapon. Because the State presented no evidence that M.L. either used or intended to use the box cutter found in his possession as a deadly weapon, we reverse his judgment and sentence as to that offense, and remand for further proceedings consistent with this opinion. See T.S. v. State, 734 So.2d 1061 (Fla. 1st DCA 1998); Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989).

Reversed and remanded.

BARFIELD, WOLF and DAVIS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jackie Jerome WHITE, Appellee.
    No. 1D02-1739.
    District Court of Appeal of Florida, First District.
    April 10, 2003.

      Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, Attorneys for Appellant.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

The State appeals the imposition of a drug offender probation sentence, with the incarcerative portion of the sentence suspended, after Appellee pled nolo contende-re to the sale of cocaine within 1000 feet of a church. We reverse.

A sentence consisting of a completely suspended prison term followed by a probationary period falls below the sentencing guidelines. See State v. Powell, 703 So.2d 444 (Fla.1997); State v. Solomon, 667 So.2d 937 (Fla. 2d DCA 1996). Therefore, as a matter of law, such a sentence is treated as a downward departure sentence. See State v. Henriquez, 717 So.2d 1087, 1097 (Fla. 3d DCA 1998); see also Vause v. State, 803 So.2d 799 (Fla. 1st DCA 2001). Valid reasons must exist for the downward departure. See Powell, 703 So.2d at 446.

Pursuant to Florida Rule of Criminal Procedure 3.703(d)(30)(A), the court must orally announce the reasons for departure and accompany the oral pronouncement with a written statement, outlining those reasons. Section 921.001(6), Florida Statutes (2001), and section 921.0016(1)(c), Florida Statutes (2001), also require written reasons for departure. In the present case, the trial court did not give any reasons for the downward departure. The trial court appears to have focused on Ap-pellee’s drug addiction as the cause of his criminal conduct and structured its sentencing toward assisting Appellee in obtaining drug rehabilitation. However, drug abuse is no longer a valid mitigating circumstance justifying departure. See § 921.0016(5), Fla. Stat. (2001); see also State v. Lazo, 761 So.2d 1244 (Fla. 2d DCA 2000) (stating that a defendant’s drug addiction and his amenability to rehabilitation are not valid reasons for a downward departure).

As the trial court failed to provide both oral and written reasons for the departure, it was error for the trial court to impose a downward departure sentence. Accordingly, we reverse and remand for resen-tencing.

REVERSED and REMANDED for re-sentencing.

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    Ronald Laverne BRITTNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0806.
    District Court of Appeal of Florida, First District.
    April 10, 2003.
    Ronald Laverne Brittner, pro se, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s denial of his Motion for Relief from Judgment filed pursuant to Florida Rule of Civil Procedure 1.540. On the basis of established precedent and the unrefuted factual allegations in appellant’s motion, we conclude that the trial court abused its discretion in denying the motion. See Woldarsky v. Woldarsky, 243 So.2d 629, 630 (Fla. 1st DCA 1971) (holding that trial courts are vested with discretion under rule 1.540(b) to grant relief to a party desiring to seek review of a final judgment, decree, or order that was rendered without notice to the party); see also Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298, 1300 (Fla. 4th DCA 1998) (reversing and remanding the trial court’s denial of the appellant’s 1.540 motion as the appellant did not timely receive a copy of the trial court’s order). Because appellant did not timely receive a copy of the trial court’s order designating him a sexual predator, and because appellant filed his 1.540 motion within one year of his receipt of the trial judge’s letter informing him of the entry of the sexual predator designation order, we reverse and remand for further proceedings in order that appellant may timely appeal the trial court’s order. Cf. Owen v. State, 483 So.2d 453, 454-55 (Fla. 1st DCA 1986) (affirming the trial court’s order denying the appellant’s 1.540 motion as the appellant failed to file his motion within one year of his receipt of the trial judge’s letter informing him of the court’s order).

REVERSED and REMANDED for further proceedings.

BARFIELD, BROWNING and LEWIS, JJ., concur.


author: SHARP, W., J.

text:
    Tony Deramous OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3510.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.

      James B. Gibson, Public Defender, and-Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR RECONSIDERATION

SHARP, W., J.

We grant the state’s motion for reconsideration, withdraw our former opinion and reissue this opinion in its place.

Oliver appeals his judgment and sentence for robbery, battery and petit theft. We affirm in part and reverse in part.

He argues that he should be re-sentenced on the robbery charge because the habitual violent offender statute is unconstitutional. We affirm his sentence for robbery because the unconstitutionality of the habitual violent offender statute was cured retroactively. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), which relied on the reasoning employed in Dobbert v. Florida) 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). However, as in Hersey, we certify the question of whether the curative statute passed in 2002 should be applied retroactively to the offenses Oliver committed in 2000.

Oliver also argues that the principles of double jeopardy bar his dual convictions for petit theft and robbery. His convictions stemmed from an incident in which he entered an Amoco convenience store/ gas station, and began to buy a four-pack of wine coolers. When the clerk rang up the price of the coolers, Oliver changed his mind, and requested beer rather than wine. He went to get beer while the clerk voided the sale. Once the clerk rang up the beer, the cash drawer opened, and Oliver reached over the counter. A struggle ensued between Oliver and the clerk. Oliver stuck the clerk, grabbed the cash drawer, and ran out of the store carrying the cash drawer.

It is clear from the information and proofs offered at trial that the robbery and petit theft charges were based on the taking of the cash drawer containing cash from the clerk during the same incident. Based on current case law and precedent from this court, Oliver’s claims that double jeopardy should bar dual convictions for both robbery and petit theft of the same property in the same incident from the same clerk, are valid. See Sirmons v. State, 634 So.2d 153 (Fla.1994) (defendant could not be convicted separately for robbery with a weapon and grand theft of an automobile based on a single taking of an automobile at knife point, as both were different forms of the same underlying offense of theft); Elozar v. State, 825 So.2d 490 (Fla. 5th DCA 2002) (improper to convict defendant of grand theft and robbery of the same property taken at the same time from the same person as was conceded by the state in that case); Sessler v. State, 740 So.2d 587 (Fla. 5th DCA 1999) (improper to convict defendant of both robbery with a firearm and grand theft for taking money from store clerk and taking pistol from the clerk at the same time).

The state directed our attention to Taylor v. State, 751 So.2d 659 (Fla. 5th DCA 1999), rev. denied, 770 So.2d 161 (Fla.2000), which is controlling. In Taylor, a defendant was convicted of robbery with a firearm, grand theft of a vehicle, and grand theft. This court held that it was improper to convict for both the grand theft and armed robbery because the charges involved the same property. However, we upheld a separate conviction for grand theft of a motor vehicle because there was a time break between the two takings and different objects were taken— cash for the robbery, and the vehicle for the grand theft.

The result in Taylor is consistent with Hayes v. State, 803 So.2d 695 (Fla.2001). In that case, the court upheld dual convictions for armed robbery and grand theft because there was a separation in time, place and circumstances of objects taken. In this case, there is no separation of anything: not time, object, place or circumstances.

We therefore reverse the conviction and sentence for petit theft. We also certify to the Florida Supreme Court the issue of the constitutionality of the curative effect of chapter 02-210, Laws of Florida, as it relates to chapter 99-188.

AFFIRMED in part; REVERSED in part; Question CERTIFIED.

GRIFFIN and ORFINGER, JJ., concur.

      . See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

      . Since the dropping of that lesser conviction does not materially affect the sentence Oliver received under the three-time violent offender law, he need not be resentenced.


text:
    Gerald D. ENGLAND, Appellant, v. SEMINOLE WALLS & CEILINGS CORP., Appellee.
    No. 5D01-3844.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.

      Eric A. Lanigan, Winter Park, for Appellant.
    Mark C. Filburn and Shawn J. O’Brien of Shepard, Filburn and Goodblatt, P.A., Orlando, for Appellee.
   SHARP, W., J.

England (the defendant below) appeals from a final summary judgment granted against him which awarded Seminole Walls & Ceilings Corporation (Seminole Walls) the sum of $848,948.27, plus interest. We reverse because we think the record established material issues of fact which should not have been resolved on the basis of a summary judgment. Davis v. Lyall & Lyall Veterinarians, 506 So.2d 1072 (Fla. 5th DCA 1987); Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810 (Fla. 1st DCA 1976).

Seminole Walls filed a three-count complaint for fraud, conversion and civil theft against England, in which it alleged that England, as comptroller of Seminole Walls from 1997 through 2000, embezzled funds from the company for his personal use. England filed an answer and affirmative defenses, in which he claimed all the activities performed by him as comptroller during his employment with the company were done under the supervision and control of Robert Fox, the president, and Robert Fox Sr., the de facto chief operating officer, and with their knowledge and consent. England also claimed the complaint had been filed against him in retaliation, and to discredit him as a material witness in a criminal case filed against the Foxes in Orange County Circuit Court, in which the state asserted charges of criminal racketeering, fraud and conspiracy. See State v. Fox, Case No. CR 99-193CFA & B. Seminole Walls denied these allegations.

Seminole Walls filed a motion for summary judgment on August 6, 2001. It argued in its motion that England had asserted his Fifth Amendment privilege in answering interrogatories and at his deposition, and that he would be unable to set forth any facts to dispute Seminole Walls’ claims. At this deposition, which is in the record, England’s attorney stated the Fifth Amendment privilege was being asserted because Seminole Walls had initiated a criminal inquiry against England arising out of the same facts and circumstances set forth in its complaint.

Seminole Walls also filed an affidavit by Fox Sr., in support of the summary judgment motion. In his affidavit, Fox Sr. alleged, in essence, the material allegations of England’s embezzlement and forgery as set forth in the complaint and attested he was “the person with knowledge” of the statements contained therein.

England then filed an affidavit in opposition to the summary judgment motion, restating the essence of his defenses: that Fox Sr. had been in complete control of the company operations, that he knew about all of the questioned transactions and had orchestrated them as a general scheme to defraud various government entities of taxes due them. In summary, he alleged Fox Sr. paid employees in ways that did not show as salary so as not to trigger tax obligations by the company but which would result in income tax deductions for the corporation. He further alleged that these activities culminated in a criminal prosecution of Fox Sr., and that he has since entered a plea of no contest to the felony charges of racketeering, conspiracy to commit racketeering, etc. The record further reveals that Fox, in fact, filed a petition to enter a plea of no contest to racketeering, conspiracy to commit racketeering, four counts of workers compensation fraud and organized fraud, on November 15, 2000.

At the. summary judgment hearing, Seminole Walls persuaded the trial judge to exclude England’s affidavit because it was untimely. Although it is not clear under the applicable Florida Rules of Civil Procedure, we think the better view is that it was timely and should have been considered at the summary judgment hearing held October 29, 2001.

The record established that England’s counsel faxed the affidavit to Seminole Wall’s counsel on October 24, 2001, and counsel acknowledged receiving it. On the same day, counsel for England mailed the original affidavit to the court and a copy to Seminole Wall’s counsel. Because the original affidavit was not in the court file at the time of the summary judgment hearing, both attorneys went to the Clerk’s Office to try to locate it. The Clerk was unable to verify at that time it had been received because it can take a day or two from actual receipt of an affidavit until the computer input and placement in the file occurs. Later, counsel for England confirmed it had been received by mail in the Clerk’s Office on October 29, 2001.

Florida Rule of Civil Procedure 1.510(c), entitled “Summary Judgment,” provides:

The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m., two business days prior to the hearing.

Seminole Walls argues that since the affidavit was not mailed five days prior to the summary judgment hearing, nor was it hand-delivered two days before the hearing, it was untimely.

England relies on rule 1.080(b). That rule sets forth five methods by which “delivery” can be accomplished. The fifth method listed is:

Delivery of a copy within this rule shall be complete upon:
(5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete....

England argues that pursuant to this rule, the affidavit was delivered to Seminole Walls on October 24, the day it was sent, and thus was timely.

Were we to accept Seminole Wall’s argument, we would be foreclosing the possibility of using facsimile to accomplish service of a pleading or affidavit in the context of summary judgment proceedings, although rule 1.080(b) permits facsimile service and delivery in all other contexts. We think the better view is that rule 1.510(c) does not set forth the exclusive methods of service or delivery for summary judgment proceedings and that it falls under the umbrella of rule 1.010, which provides that these rules (ie., including rule 1.080(b)) “apply to all actions of a civil nature and all speciality statutory proceedings in the circuit court and count courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply.” Summary judgment proceedings are not excepted out.

We also think that this interpretation of the rules furthers the general policy of rule 1.010 which states that the rules be interpreted “to secure the just, speedy, and inexpensive determination of every action.” Faxes are a comparatively recent innovation in communication, but they have become a common and well-accepted way people do business and communicate today. They are clearly a speedier and less expensive way of communication, than, for example, hand-delivery. In our view, reference to “delivery” in rule 1.510(c) includes and incorporates delivery by fax in rule 1.080(c). Thus England’s affidavit was timely under the Summary Judgment Rule since its delivery was accomplished more than two days before the summary judgment hearing.

We conclude that England’s affidavit should have been considered at the summary judgment hearing and as such it clearly creates issues of material fact which should not have been resolved on a summary judgment basis. England also argues here that, in any event, Fox Sr.’s affidavit should not have been considered by the trial court because it did not state explicitly that Fox Sr. had personal knowledge and thus it was insufficient to provide a basis for summary judgment in Seminole Wall’s favor. We disagree. Although inartfully drafted, Fox Sr. stated he had knowledge about the transactions, facts and circumstances discussed in the “Affidavit,” and the allegations concerned the business operations over which he was the primary officer and supervisor.

Finally, Seminole Walls argues England’s affidavit should be disregarded because a party cannot file an affidavit in opposition to a motion for summary judgment in an attempt to create a disputed issue of material fact, while at the same time seeking cover under the Fifth Amendment, citing Jones v. Stoutenburgh, 91 So.2d 299 (Fla.1975). In Jones, a party filed a counteraffidavit in a summary judgment proceeding and during a subsequent deposition, asserted his Fifth Amendment privilege. In this case, England asserted his Fifth Amendment privilege one year before the summary judgment because Seminole Walls had filed a criminal complaint against him. Under these circumstances, England’s invocation of his Fifth Amendment privilege a year prior to the summary judgment proceeding should not affect its outcome.

All that Seminole Walls can offer here is the testimony of its controlling officer Fox Sr. as to the nature of the transactions engaged in by England, and all that England can offer is his own testimony as to whether Fox knew about them and directed them. It is clearly a matter of disputed facts and credibility of witnesses, best left for a trial resolution. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Manning v. Clark, 71 So.2d 508 (Fla.1954).

REVERSED and REMANDED.

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


author: KELLY, Judge.

text:
    Christopher MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4211.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
   KELLY, Judge.

Christopher Monroe challenges the summary denial of his motions to clarify sentence and correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Monroe claims that his sentence does not accurately reflect the jail and prison credit he has earned. The trial court denied his motions, stating that the Department of Corrections, not the trial court, is the proper place to challenge postsentencing jail time credit issues. However, it is clear from his motions that Monroe claims to be missing both presen-tencing and postsentencing jail time credit. The trial court, not the Department of Corrections, is responsible for presentenc-ing jail time credit. See State v. Mancino, 714 So.2d 429 (Fla.1998). If the record reflects that Monroe served time prior to sentencing and that the sentence does not properly credit the defendant with this time, then the sentence may be challenged under rule 3.800. Mancino, 714 So.2d at 433. This case is therefore remanded to the trial court to consider Monroe’s claims regarding presentencing jail credit. If the trial court again denies the motion, it shall attach those documents that conclusively refute the jail credit claim.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.

      . The relief Monroe seeks regarding jail time spent after sentencing must be sought through administrative proceedings with the Department of Corrections. Knight v. State, 681 So.2d 772, 773 (Fla. 2d DCA 1996).


text:
    J.J., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5270.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

J.J. appeals from a delinquency adjudication of guilt for aggravated fleeing to elude and “leaving the scene of an accident.” J.J. does not challenge the delinquency adjudication for aggravated fleeing to elude, and we affirm as to that count. Because the trial court erroneously found J.J. guilty of “leaving the scene of an accident” as a lesser of the charged offense of leaving the scene of a crash with injury, we reverse as to this count.

During the adjudicatory hearing, J.J.’s counsel moved for a dismissal of the charge of leaving the scene of a crash with injury, in violation of section 316.027(1)(a), Florida Statutes (2000), because the State failed to prove injury. The State responded that if injury was not proven, the court could find J.J. guilty of the lesser offense of leaving the scene of a crash, which, the State claimed, was a first-degree misdemeanor. The trial court adopted the State’s suggestion. The order of juvenile probation indicates that J.J. was found guilty of “Leave Scene of Accident.” The order does not cite a statutory reference for this offense.

Pursuant to section 316.027(1), it is a third-degree felony to leave the scene of a crash resulting in injury and a second-degree felony to leave the scene of a crash resulting in death. Pursuant to section 316.061(1), it is a second-degree misdemeanor to leave the scene of a crash resulting in damage to a vehicle or other property. There is no statute that makes it a criminal offense to leave the scene of a crash when there is no resulting death, injury, or damage to a vehicle or other property. The trial court correctly recognized that the State failed to introduce any evidence of injury as required to support a delinquency adjudication under section 316.027(l)(a). Likewise, however, there was no evidence of damage to any vehicles or other property.

It appears that the trial court found J. J. guilty of a nonexistent offense of leaving the scene of an accident. Conviction of a nonexistent crime is fundamental error. Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001); Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999). We therefore reverse and remand with instructions for the trial court to strike the offense from the order placing J.J. on probation and to enter a dismissal as to count II of the delinquency petition.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and KELLY, J., Concur.

      . Because we conclude that the evidence was insufficient to sustain a delinquency adjudication under either section 316.027 or 316.061, we do not decide whether leaving the scene of a crash with property damage is a lesser included offense to a charge of leaving the scene of a crash with death or injury.


author: NORTHCUTT, Judge.

text:
    Carol Y. JAMESON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Wathen & Kanter Accounting, LLC., Appellee.
    No. 2D02-1987.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.

      Carol Y. Jameson, pro se.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
    No appearance for Appellee Wathen & Kanter Accounting, LLC.
   NORTHCUTT, Judge.

The Unemployment Appeals Commission affirmed an appeals referee’s determination that Carol Jameson was disqualified from collecting unemployment compensation benefits because she voluntarily quit work without good cause attributable to the employer. We reverse.

Jameson’s application for benefits was initially approved. The employer appealed, contending that she had voluntarily resigned because she was embarrassed by her inappropriate behavior at a staff meeting. The record before the appeals referee reflected that Jameson was employed part-time as a bookkeeper at a small accounting firm. She had been working there about sixteen months when her employer held a staff meeting to announce changes in its employment policies. The principal of the accounting firm had taken on a partner four months earlier, since which time the two had made a number of policy changes. In the weeks prior to the meeting Jameson had lost her private office and had suffered an unwelcome increase in her hours from the twenty to twenty-five per week she had originally agreed upon, to thirty-five to forty per week. The firm’s partners also had imposed a new smoking policy that required Jameson to drive off the premises for smoking breaks.

Then, at the staff meeting Jameson learned that she would lose her holiday pay and future vacation benefits. And, whereas employees previously were permitted paid work breaks as needed, henceforth they were limited to two unpaid fifteen-minute breaks per day. Further, the firm no longer would grant cost-of-living raises. Instead, it would pay individual bonuses based on production. During the meeting, Jameson became upset. She turned to the new partner, inappropriately referred to his Jewish heritage, and asserted that he should not be “acting like a Nazi.”

When ruling in favor of the employer, the referee found that “[t]he comment was not received well, and the claimant left the meeting. [The next day] the claimant resigned from her position.” Although this finding was consistent with the employer’s assertion that Jameson resigned because she was embarrassed, it was inaccurate. Rather, the evidence disclosed that the staff meeting ended shortly after Jame-son’s remark and, it being the end of her work day, she left the office. Thereafter, the firm’s partners discussed Jameson’s behavior and decided that if she returned to work the next day they would fire her for insubordination. Instead, the next day they received her resignation.

The referee also found there were conflicts in the testimony as to whether the employer made changes that negatively affected Jameson and, without identifying the conflicts, purported to resolve them in the employer’s favor. This, too, was inaccurate. To the contrary, although the employer’s representative explained the reasons for the policy changes mentioned above, it was undisputed that they were made.

An employee is entitled to unemployment benefits when he leaves his job for good cause attributable to his employer. See § 44S.101(1)(a), Fla. Stat. (2001). “Good cause” is defined as “circumstances which would impel the average, able bodied, qualified worker to give up employment.” Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990). Neither the loss of a private office nor the alteration of smoking privileges would justify characterizing a resignation as one for good cause attributable to the employer. But a reduction or change in hours or salary may qualify as such. Miller v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1218, 1220 (Fla. 4th DCA 2000) (holding that income reduction was good cause to terminate employment). In Platt v. Unemployment Appeals Commission, 618 So.2d 340, 341 (Fla. 2d DCA 1993), an employee who resigned because a schedule change caused him to work excessive hours was held to be eligible for benefits. An increase in the number of days the employee is required to work has been held good cause for him to leave his job, thus entitling him to unemployment compensation. Ferguson v. Unemployment Appeals Comm’n, 734 So.2d 1161 (Fla. 3d DCA 1999).

Here, Jameson’s employer made sweeping changes to the terms of her hire. It substantially altered her hours, her compensation, her benefits and her working conditions, all to her detriment. Although her comment at the staff meeting was inappropriate and insubordinate, nothing in the record suggests that she was embarrassed by her behavior. And, although her employers were rightly offended by Jameson’s remark and would have been justified in firing her, their intention to do so was not communicated to her before she resigned. Thus, the evidence was uncon-tradicted that Jameson resigned because of the mentioned policy changes, and for no other reason.

Reversed and remanded with directions to award Jameson unemployment compensation benefits.

CASANUEVA, J., and DANAHY, PAUL W., Senior Judge, Concur.


text:
    James Joseph WINKLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4904.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
   NORTHCUTT, Judge.

James Joseph Winkler challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues that his sentence as a prison releasee reof-fender is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, was unconstitutional on single subject grounds. Chapter 99-188 contained an amendment to the Prison Releasee Reof-fender Punishment Act broadening the definition of a prison releasee reoffender to include a defendant who commits a listed offense while he is serving a prison sentence or is on escape status. See ch. 99-188, § 2. Winkler’s claim is insufficient because he has not alleged that he was affected by this amendment and that he could not have been sentenced as a prison releasee reoffender pursuant to the statute as it existed prior to the enactment of chapter 99-188. See Bush v. State, 823 So.2d 833 (Fla. 2d DCA 2002) (holding that the validly enacted statutes' in effect prior to the enactment of chapter 99-188 control sentencing).

Affirmed.

FULMER and WHATLEY, JJ., Concur.


text:
    Johnny D. CROUCH, Petitioner, v. The PEPSI BOTTLING GROUP, INC., and RSKCO, Respondents.
    No. 1D03-1415.
    District Court of Appeal of Florida, First District.
    April 11, 2003.
    Randy D. Ellison, West Palm Beach, for Petitioner.
    Katrina Jefferson, Orlando, for Respondents.
   PER CURIAM.

DENIED. Levitt-Ansca Towne Park Partnership v. Smith and Company, Inc., 807 So.2d 197 (Fla. 4th DCA 2002).

BARFIELD, BENTON and LEWIS, JJ., concur.


text:
    John Jerome CRUMITIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4228.
    District Court of Appeal of Florida, First District.
    April 16, 2003.
    Clyde M. Taylor, Jr., Esq., Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute appellant’s claim that his counsel was ineffective for failing to interview and call Janine Johnson as an alibi witness, we reverse and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that appellant is entitled to no relief or to conduct an evidentiary hearing on this claim. We affirm the trial court’s summary denial of appellant’s other claims without further discussion.

Appellant was convicted of one count of first-degree murder, one count of attempted second-degree murder, two counts of attempted robbery with a firearm, and one count of shooting at or within an occupied vehicle. According to the State’s Adult Predisposition Report for Delinquency, the crimes occurred at approximately 4:00 a.m. on September 14, 1993. This Court per curiam affirmed appellant’s convictions and sentences. See Crumitie v. State, 698 So.2d 840 (Fla. 1st DCA 1997).

Subsequently, appellant filed the present motion, in which he alleged that his counsel was ineffective for failing to call two alibi witnesses whose testimony would have served to exonerate him. However, in his initial brief, appellant limited this argument to only one of these alleged alibi witnesses, Janine Johnson, his aunt. According to appellant, Johnson, who was allegedly at home with appellant on September 13-14, 1993, from the hours of 8:00 p.m. to 6:00 a.m., would have testified that she was at home with appellant on the morning on which the crimes occurred. The trial court, obviously under the mistaken impression that Janine Johnson was appellant’s mother, found that the following exchange between the State and appellant during his trial conclusively refuted appellant’s claim:

Q: Back in September of 1993, who were you living with?
My mother and my sister and my auntie.
And back in September of 1993, what was your bedtime on a school night? <3*
Usually 10 or 10:30.
Were there any little kids that were staying in the house with you?
Yes, ma’am.
And how old are they?
My two sisters, one was 14 and one was 13.
Did they have a bedtime on school nights? i©
Yes.
What was their bedtime?
9:00 p.m.
On the night that the people were shot out on 1-10, say from, oh 8 or 9:00 on, where were you?
I was at home. t>
Was your mom home? <£>
At that time, she was there about 8 p.m., And then she left to go out. i>
And did you see her come home that night?
No, ma’am. She had came in pretty late, but I stayed up late, later than my bedtime because she wasn’t there.
And was she home yet when you had gone to bed or had you already gone to bed? &
I had already gone to bed when she got there.
Do you know what time your sisters went to bed that night? e©
Yes, ma’am. t>
What time did they go to bed? cO
9:00 p.m. i>
The morning after that shooting, did you go to school? .O
Yes, ma’am.

Following the trial court’s summary denial, in which it attached a copy of this exchange, appellant filed a Motion for Rehearing, which the trial court denied. Appellant subsequently filed a Petition for Writ of Habeas Corpus for a Belated Appeal, which this Court granted. See Crumitie v. State, 794 So.2d 694 (Fla. 1st DCA 2001). This appeal followed.

For this Court to uphold the trial court’s summary denial of the claims raised in a rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999); see also Fla. R.Crim. P. 3.850(d). Furthermore, when no evidentiary hearing is conducted on such claims, this Court must accept the appellant’s factual allegations to the extent they are not refuted in the record. See Peede, 748 So.2d at 257. In order to assert a facially sufficient claim that counsel was ineffective for failing to call an alibi witness, an appellant must identify the witness, the content of the witness’s expected testimony, and assert how he was prejudiced by the omission of the witness’s testimony. State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999).

Here, appellant identified Janine Johnson as a potential alibi witness. Appellant alleged that Johnson would have testified that appellant was at home with her on the morning that the crimes occurred. Appellant further alleged that while Johnson’s testimony would have served to exonerate him, he is instead serving a life sentence. As such, appellant’s claim was facially sufficient.

Contrary to the trial court’s finding, the previous exchange does not conclusively refute appellant’s allegations. Within that exchange, appellant testified that he lived with his mother, whose name, according to the pre-sentence investigation sheet, is Susie Mae Johnson, his sister, and his aunt. According to appellant, Janine Johnson is the aunt he referred to in his testimony. In its response to an order issued by this Court pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the State conceded that it had assumed that Janine Johnson was appellant’s mother, and that it appeared that the trial court did not consider appellant’s claim regarding his aunt.

Accordingly, because the trial court’s attachments do not conclusively refute appellant’s claim, we reverse the summary denial of appellant’s claim that his counsel was ineffective for failing to interview and call Janine Johnson as an alibi witness, and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that appellant is entitled to no relief or to conduct an evidentiary hearing on this claim. We otherwise affirm the trial court’s order.

AFFIRMED in part; REVERSED in part; and REMANDED.

BARFIELD, BROWNING and LEWIS, JJ., Concur.


author: RAMIREZ, J.

text:
    Orlando MARIN, Appellant, v. Maria E. MARIN, Appellee.
    No. 3D02-644.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.

      Marilyn Colon and Maribel Mendoza, for appellant.
    Simon Schwartz, for appellee.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   RAMIREZ, J.

Orlando Marin appeals the entry of a partial final judgment of dissolution of marriage, and appellee Maria E. Marin cross-appeals the entry of the final judgment. We reverse the portion of the partial final judgment in which the trial court reserved jurisdiction to award alimony and attorney’s fees because these claims were never pled, and affirm the judgments in all other respects.

The parties married on March 17, 1972 and divorced on September 18, 1979 in Cuba. On September 22, 1979, the parties remarried in Cuba. In 1980, the parties relocated to Florida, resided together until July of 1987, and became the parents of Jeanette Melissa Marin. In 1996, the husband married Rosa Caridad Marin.

On January 28, 2002, the trial court entered a Partial Final Judgment of Dissolution of Marriage, dissolving the parties’ marriage and reserving jurisdiction on the issues of distribution of marital assets, child support, retroactive child support, alimony, retroactive alimony, attorney’s fees, costs and suit monies. Prior to the entry of the partial final judgment, the trial court struck the husband’s pleadings and entered a default judgment against him. On February 12, 2002, the trial court entered a Final Judgment of Dissolution of Marriage.

A party against whom a default is entered can only be said to have admitted the well-pleaded facts and to have acquiesced in the relief specifically prayed for. See Williams v. Williams, 227 So.2d 746, 748 (Fla. 2d DCA 1969). See also Freeman v. Freeman, 447 So.2d 968, 964 (Fla. 1st DCA 1984)(it is error to award relief that is not sought).

The wife in this case did not plead entitlement to alimony or attorney’s fees, and merely prayed for divorce and pleaded grounds in support. The trial court thus exceeded its jurisdiction. To hold otherwise deprives the husband of due process. See Williams, 227 So.2d at 748.

Affirmed in part, reversed in part and remanded.

      . The husband, however, alleged that the parties never remarried and that their marriage dissolved in Cuba on September 18, 1979.


text:
    Gillis WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4115.
    District Court of Appeal of Florida, First District.
    April 16, 2003.
    Nancy A. Daniels, Public Defender; David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

BARFIELD, WOLF and DAVIS, JJ., Concur.