author: GREEN, Judge. SILBERMAN, Judge, BLUE, Chief Judge,

text:
    Mark Lee GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-497.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2002.
    Rehearing Denied Jan. 27, 2003.

      Donald A. Smith, Jr., and Gwendolyn R. Hollstrom of Smith & Tozian, P.A., Tampa, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Michele Taylor, Assistant Attorney General, Tampa, for Appellee.
   GREEN, Judge.

Mark Lee Gibson appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion alleged three grounds for relief. The trial court summarily denied the first two grounds of the motion, and we affirm that ruling without further comment. Ground three of the motion alleged ineffective assistance of counsel, and the trial court ordered an evidentiary hearing on this ground. After the hearing, the trial court denied relief. We conclude that ineffective assistance of counsel did not prejudice Mr. Gibson, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore, we also affirm this portion of the order.

This court previously affirmed Mr. Gibson’s direct appeal of his judgments and sentences with an extensive written opinion. See Gibson v. State, 721 So.2d 363 (Fla. 2d DCA 1998). In Gibson, the court detailed some of the circumstances that led to the present claim for ineffective assistance of counsel.

Mr. Gibson was charged with two counts of capital sexual battery and three counts of lewd and lascivious act on a child under twelve years of age, which carried a mandatory life sentence. The week before his trial, the attorney who initially represented Mr. Gibson was reassigned to another division, and Mr. Gibson was given a new attorney. There is some dispute as to exactly when this occurred. There is also some dispute as to the new attorney’s ability to adequately prepare for the trial. Indeed, the new attorney requested a continuance the morning of trial alleging he was unprepared to try the case, but the continuance was denied. Ultimately, both the initial attorney and the newly assigned attorney represented Mr. Gibson. Both attorneys were experienced criminal trial attorneys.

In his postconviction motion, Mr. Gibson alleged that the new counsel did not adequately prepare a defense and, as a result, committed a critical, prejudicial error during the trial. While cross-examining the child victim, this attorney asked the child broad, open-ended questions. The child responded by testifying to additional acts of sexual abuse by Mr. Gibson with which Mr. Gibson had not been charged. At least one of these acts would have itself constituted capital sexual battery.

At the postconviction hearing, the attorney who elicited this testimony asserted that his questioning was a specific, thought-out trial strategy intended to show the child victim was confused in her many allegations. Mr. Gibson points out that there were other, less perilous ways to accomplish that purpose, such as asking very specific, limited questions or impeaching the child with prior statements. Whether a criminal defense attorney’s decision to elicit testimony of uncharged crimes, which evidence is generally regarded as inherently highly prejudicial, can ever be considered a reasonable trial strategy is not an issue we need address in this case. See, e.g., Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000) (noting “patently unreasonable” decisions, although characterized as tactical, are not immune from ineffective assistance claims). We conclude that there was no prejudice to Mr. Gibson from any error of counsel. See Cook v. State, 638 So.2d 134, 136 (Fla. 1st DCA 1994) (stating that court considering claim of ineffective assistance of counsel need not make a specific ruling on performance component when it is clear that prejudice component is not satisfied).

The child victim testified resolutely and consistently that the charged acts of sexual abuse occurred. More important, Mr. Gibson admitted to those acts in a recorded confession to law enforcement, including an admission that his penis made contact, or “union,” with the victim’s vagina, which would support his conviction for capital sexual battery. In a postconviction proceeding, it is Mr. Gibson’s burden to establish prejudice as a result of counsel’s errors. We conclude, as did the postcon-viction trial judge, that there is no reasonable probability that the outcome of the trial proceedings would have been different even in the absence of the child’s testimony on cross-examination.

Affirmed.

SILBERMAN, J., Concurs specially with opinion.

BLUE, C.J., Dissents with opinion.

SILBERMAN, Judge,

Specially concurring.

Although several points raised by the dissent are troubling, based on the record before us I agree with the majority opinion.

At the evidentiary hearing on Gibson’s postconviction motion, both the first attorney who represented him in the underlying case and the attorney who was assigned to take over the representation testified. Although Gibson asserts that his attorneys were not adequately prepared to represent him at trial, the record reflects that they were highly experienced criminal defense lawyers; they attended the depositions of the key witnesses in the case; they discussed and agreed on the strategy to be used; they met with and prepared Gibson for trial; they felt they were fully prepared to try the case; and they tried the case together. Their testimony reflects that the change in their case assignments did not hamper their ability to represent Gibson.

The attorneys were emphatic that Gibson had a weak defense ease because of his confession and the evidence that they expected would be presented at trial. They also testified that they had taken the victim’s deposition and thought they could show the victim was confused about whether the incidents occurred and where they had occurred. The attorneys stated that difficult strategy choices had to be made. They acknowledged that at trial, the cross-examination of the victim was broad and resulted in her testimony as to additional acts of sexual abuse committed by Gibson. However, they concluded that their best hope of successfully defending Gibson was to discredit the victim by asking open-ended questions that would lead her to appear confused and unbelievable. They also believed this strategy might help to explain away Gibson’s confession.

While the strategy used by defense counsel was unsuccessful in securing a complete acquittal for Gibson, he was found not guilty of two of the charges. But whether a strategy is successful or unsuccessful is not the standard by which counsels’ performance must be measured. See Sired v. State, 469 So.2d 119, 120 (Fla.1985). Rather, there is a presumption of reasonableness of counsel’s trial strategy. See Downs v. State, 453 So.2d 1102, 1108 (Fla.1984). While the dissent concludes that counsels’ strategy was unreasonable, the postconviction trial court’s conclusion to the contrary is supported by the record. Judge Barbas correctly noted that “[t]he trial strategy implemented by [Gibson’s] attorneys was a high wire act balancing the risks that a jury might make the propensity inference with the reward that confusion and reasonable doubt might exonerate [Gibson]. The circumstances of this particular case, however, demonstrate that the strategy and its implementation were appropriate in light of [Gibson’s] au-diotaped confession.”

The applicable standard of review requires us to defer to the trial court’s factual findings that are supported by competent, substantial evidence, but we independently review the trial court’s legal conclusions. See Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000). It is not for this court to reweigh the evidence and substitute its view of the witnesses’ credibility for that of the trial court. See Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). Judicial scrutiny of counsels’ performance must be highly deferential, and there is a strong presumption that counsels’ conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moreover, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052.

Gibson’s burden was to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The ineffective assistance of counsel must have “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052.

The record before us supports the post-conviction trial court’s denial of relief. Gibson’s attorneys evaluated the case, weighed the options, and made an informed decision as to what they considered to be the best available strategy to defend Gibson in a weak defense cáse. Because the record does not lead to the conclusion that, but for the claimed errors of counsel there was a reasonable probability that the outcome of the trial would have been different, I concur with the majority opinion.

BLUE, Chief Judge,

Dissenting.

I respectfully dissent. I conclude that the Public Defender’s Office of the Thirteenth Judicial Circuit provided ineffective assistance of counsel that requires a new trial. To fully understand my position requires familiarity with the prior decision in this case on direct appeal. Gibson, 721 So.2d 363.

Mark Gibson was set for trial on two counts of capital sexual battery, each carrying a mandatory life sentence, and three counts of lewd and lascivious acts. On the day of trial, an assistant public defender requested a continuance, stating that he had just met the defendant and was not prepared for trial. This newly assigned assistant public defender attributed this problem to the reassignment of attorneys in the week before trial. The trial court denied the continuance, and on direct appeal this court affirmed, ruling that it was not an abuse of discretion. Gibson, 721 So.2d at 366 (holding that the public defender’s decision to reassign Gibson’s case to another attorney, “especially when that decision was made on the Friday before his trial for a capital felony, may raise an issue of ineffective assistance of counsel, but it did not compel the trial judge, who was uninvolved in the reassignment, to grant a continuance”).

Later that day, trial proceeded with the assistant public defender relieved from the case and the newly assigned public defender. During cross-examination, as part of a strategy to confuse the young victim, the newly assigned public defender “successfully” elicited testimony from the victim of uncharged capital sexual battery conduct.

The jury found Gibson guilty of one count of capital sexual battery and two counts of lewd and lascivious acts; he was found not guilty of one count of capital sexual battery and one count of lewd and lascivious acts. Before leaving the courtroom, the jury learned that Gibson was to be sentenced to life imprisonment without the possibility of parole. One of the jurors, in passionate terms and with the agreement of the other jurors, told the court that they believed something had happened, but they would not have found the defendant guilty had they known their verdict would result in the sentence to be imposed.

Whether the victim’s testimony on cross-examination was the “something happened” that resulted in the guilty verdict, we will never know. What we do know is that the attorney who did the cross-examination requested a continuance on the day of trial, with the representation to the trial judge that he was not prepared for trial.

I am aware that at the evidentiary hearing on the postconviction motion, both attorneys testified that they were prepared for trial. This testimony differed significantly from the representations made to the court at the time of trial, when the continuance was requested and the court was informed that through reassignment neither attorney was prepared to represent the defendant on these most serious charges. I come to my position on this court with some experience in the courtroom as an attorney and a trial judge. This background leads me to the conclusion that the attorney reassigned to another division, with no more responsibility for Gibson’s case, did not prepare for trial. I accept the newly assigned public defender’s earlier representations to the trial court that he was not prepared for trial. Although the record reflects that both attorneys appeared and tried the case, I am unable to see how doubling the number of unprepared attorneys provided effective assistance of counsel.

I agree there was sufficient evidence presented by the State to sustain the convictions, and thus I recognize that the second prong of Strickland, is more difficult to meet. I understand the majority’s position, but the jury’s reaction to this verdict convinces me that the evidence was not so overwhelming that we can conclude Gibson was not prejudiced by ineffective representation. If defendants are entitled to representation by the public defender because they are unable to afford an attorney, the system that supplies such representation has the duty to provide attorneys prepared for trial. I doubt that a private law firm, representing a client for adequate compensation in any case, would make the switch in attorneys executed by the public - defender’s office in this case. And this was not any case. This was a case in which the stakes were a mandatory life sentence without the possibility of parole. I conclude the Public Defender for the Thirteenth Judicial Circuit provided ineffective assistance of counsel to this defendant that cannot be rectified without a new trial, and thus I dissent.

      . We note that this strategy may have had some of its intended effect, as the jury ultimately found Mr. Gibson not guilty of one count of capital sexual battery and not guilty of one count of lewd and lascivious act.

      . One rationale for affirming the denial of a continuance on direct appeal was the conclusion that the public defender’s office was the equivalent of a law firm. Gibson, 721 So.2d at 366 (“The public defender’s office is comparable, in some respects, to a law firm. The trial court had appointed that office, not a specific assistant public defender, to represent Mr. Gibson.”).


source: Caselaw Access Project

author: SCHEB, JOHN M„ Senior Judge.

license: Public Domain

text:
    BARTON-MALOW COMPANY, Appellant/Cross-Appellee, v. GRUNAU COMPANY, Western Waterproofing Company of America, M & J Materials, Construct Two, Universal Building Specialties, and Florida Sheet Metal, Appellees/Cross-Appellants.
    No. 2D01-3347.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2002.
    Rehearing Denied Feb. 3, 2003.

      Gilbert E. Theissen and Mark R. Boyd of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for Appel-lanVCross-Appellee.
    Andrew F. Russo of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee/Cross-Appellant Grunau Company.
    Richard M. Hanchett of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellee/Cross-Appellant Western Waterproofing Company of America.
    Michael S. Rywant and Jill Emerson of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellees/Cross-Appel-lants M & J Materials and Construct Two.
    Jennifer G. Cooper of Gambrell & Stolz, LLP, Atlanta, Georgia, for Appel-lee/Cross-Appellant Universal Building Specialties.
    Daniel F. Pilka of Pilka & Associates, P.A., Brandon, for Appellee/Cross-Appel-lant Florida Sheet Metal.
    Joseph V. McNabb of Marlowe & McNabb, P.A., Tampa; and Donald W. Gregory and Kim H. Finley of Kegler, Brown, Hill & Ritter Co. LPA, Columbus, OH, for Amicus Curiae American Subcontractors Association.
   SCHEB, JOHN M„ Senior Judge.

Barton-Malow Company, a general contractor, appeals the final judgment awarding it a portion of its defense costs and attorneys’ fees pursuant to the indemnity provision of its subcontract agreements with six of its subcontractors, who are the appellees here. Barton-Malow contends that the trial court erred by not awarding it the full amount of its defense costs and attorneys’ fees. The six subcontractors cross-appeal, arguing that the trial court erred in awarding Barton-Malow any defense costs or attorneys’ fees. We agree with the subcontractors and reverse.

In 1984 Barton-Malow contracted with Polk County to construct a new courthouse in Bartow. Barton-Malow subcontracted much of the work, although it retained some duties of its own. Shortly after the courthouse was completed in 1987, numerous courthouse employees sued the architect, the engineers, and Barton-Malow, alleging that the courthouse was a “sick building” and seeking damages for various health problems allegedly caused by the negligent design and construction of the new courthouse. In response to these complaints, Barton-Malow brought a third-party action against its subcontractors for both common law and contractual indemnity. Barton-Malow ultimately settled the claims of the courthouse employees and its claims against all but six of its subcontractors. The case then proceeded solely on the third-party contractual indemnity claims against these six subcontractors.

During the litigation between Barton-Malow and the subcontractors, the subcontractors filed a motion for summary judgment, arguing that the indemnity provision in Barton-Malow’s subcontract agreement was void and unenforceable under section 725.06, Florida Statutes (1983). Under that statute, certain indemnity provisions between a general contractor and a subcontractor are void unless they contain a monetary limit on the subcontractor’s liability or unless the general contractor gives a specific consideration for the indemnity provision. The trial court granted the subcontractors’ motion in part, holding that the indemnity provision in Barton-Malow’s subcontract agreement was unenforceable insofar as it required the subcontractors to indemnify Barton-Malow for the damages it paid to the courthouse employees. However, the trial court found that the “duty to defend” portion of the indemnity provision was severa-ble from the remainder of the provision, and the parties thus proceeded to a nonju-ry trial as to the amount of defense costs and attorneys’ fees reasonably incurred.

At the nonjury trial, Barton-Malow argued that the subcontractors should be jointly and severally liable for the entire amount of defense costs and attorneys’ fees. The subcontractors argued that, at the most, each subcontractor was responsible for only those portions of the defense costs and attorneys’ fees directly attributable to its own negligent work. When Barton-Malow refused to apportion its defense costs and attorneys’ fees by subcontractor, the trial court apportioned the award by assessing each subcontractor the same percentage of defense costs and attorneys’ fees that its contribution bore to the overall settlement with the courthouse employees in the underlying action. Thus, the total award against the six subcontractors was $146,344.99, with each subcontractor being responsible for a portion of this total amount.

In this appeal, Barton-Malow does not challenge the trial court’s ruling that the indemnity provision in its subcontract agreements is unenforceable under section 725.06. Rather, Barton-Malow contends that, notwithstanding such invalidity, it was entitled to recover all its defense costs and attorneys’ fees because the “duty to defend” was severable from the duty to indemnify. On the other hand, the subcontractors argue that the “duty to defend” is part and parcel of the duty to indemnify, that the “duty to defend” arises only out of the unenforceable indemnity provision, and that Barton-Malow cannot enforce one portion of an otherwise unenforceable provision. Thus, the narrow issue we address is whether the duty to pay defense costs and attorneys’ fees is severa-ble from the duty to indemnify for damages under the language of Barton-Ma-low’s subcontract agreement.

Barton-Malow correctly notes that contracts of insurance commonly include provisions requiring the insurer to both defend and pay damages and that these provisions are generally held to be severable. See, e.g., St. Paul Fire & Marine Ins. Co. v. Tingley Sys. Inc., 722 So.2d 849 (Fla. 2d DCA 1998); Fla. Physicians Ins. Co. v. Lazenby, 576 So.2d 794 (Fla. 2d DCA 1991). However, this principle does not necessarily follow in a nonin-surance context. This is particularly true when the main purpose of the contract at issue is not indemnification because, in that case, the indemnity provisions must be construed strictly in favor of the indem-nitor. Sol Walker & Co. v. Seaboard Coast Line R.R. Co., 362 So.2d 45, 49 (Fla. 2d DCA 1978).

In support of its severability argument, Barton-Malow cites to Westinghouse Electric Corp. v. Metropolitan Dade County, 592 So.2d 1134 (Fla. 3d DCA 1991). In that case, the court found that the duty to defend was severable from the duty to indemnify even though both duties were included in the same contractual provision. Id. at 1135. However, in that case, the duty to defend was set out in a separate sentence from the duty to indemnify against damages paid. Id. Thus, there was a basis in the structure of the indemnity provision for finding the duties sever-able. See also Metro. Dade County v. Fla. Aviation Fueling Co., 578 So.2d 296 (Fla. 3d DCA 1991).

In contrast, in Westinghouse Electric Corp. v. Prudential Insurance Co. of America, 547 So.2d 721, 721 (Fla. 1st DCA 1989), the indemnity clause read: “The subcontractor agrees to defend, indemnify and save harmless the Contractor and the Owner, their agents and employees, from and against all claims, damages, losses or expenses (including costs and attorney’s fees) by reason of liability imposed by law upon the Contractor or Owner for damages ...” (Emphasis in original.) After considering that language, the First District held that the duty to defend was not severable from the other requirements of the indemnity provision. Id. at 722.

In this case, the relevant language in the subcontract agreements requires each subcontractor to “protect, defend, indemnify and save harmless ... Barton-Malow Company ... from and against all losses, claims, demands, payments, damages, suits, actions, attorney’s fees, recoveries and judgments of every nature and description brought or recovered against ... Barton-Malow Company.” We see nothing in this language that indicates that the parties intended the duty to defend to be severable from the remainder of the duties in the indemnity provision. Here, as in Prudential, the indemnity provision intertwines the duty to indemnify and the duty to defend. Therefore, the structure of the indemnity provision does not support Barton-Malow’s argument or the trial court’s interpretation of the provision.

Barton-Malow also relies on cases in which the courts held that there was a duty to defend even though it was not yet clear whether there would be a duty to indemnify. See, e.g., Metro. Dade County v. CBM Indus. of Minn., Inc., 776 So.2d 937 (Fla. 3d DCA 2000); Linpro Fla. Inc. v. Almandinger, 603 So.2d 666 (Fla. 4th DCA 1992); Fed. Ins. Co. v. W. Waterproofing Co. of Am., 500 So.2d 162 (Fla. 1st DCA 1986). However, none of those cases imposed a duty to defend when there was no potential right to indemnity. Rather, in each of those cases, the potential existed for the subcontractor to be required to indemnify the general contractor for damages paid. Here, in contrast, there is no potential right to indemnity for damages because the trial court found this indemnity provision invalid. Therefore, there can be no duty to pay defense costs and attorneys’ fees. Cf. Skidmore, Owings & Merrill v. Volpe Constr. Co., 511 So.2d 642, 645 (Fla. 3d DCA 1987) (holding that because Skidmore was not entitled to indemnity from Volpe, Skidmore could not recover from Volpe the defense costs and attorneys’ fees it incurred in defending itself).

Finally, Barton-Malow correctly points out that in Cone Brothers Contracting Co. v. Ashland-Warren, Inc., 458 So.2d 851, 855-56 (Fla. 2d DCA 1984), this court held that section 725.06 does not invalidate any contractual provision other than the indemnity provision. However, Barton-Ma-low does not cite to any provision in its subcontract agreements, other than the invalid indemnity provision, that would give rise to any duty to defend by the subcontractors.

Accordingly, we hold that the “duty to defend” is not severable from the remainder of the indemnity provision in Barton-Malow’s subcontract agreement. Because the trial court found the indemnity provision to be invalid and no other contractual provision imposes a duty to defend, the subcontractors have no contractual obligation to indemnify Barton-Malow for its defense costs and attorneys’ fees. In view of this holding, we need not address the remaining points raised by the parties.

Reversed.

CASANUEVA and SILBERMAN, JJ., Concur.


author: POLEN, C.J.

text:
    Norma DAMIANI, Appellant, v. Rommel DAMIANI, Appellee.
    No. 4D01-4793.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Feb. 24, 2003.
    Isabel Julia-Miles of Isabel Julia-Miles, P.A., and Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.

      Steven M. Pesso of Steven M. Pesso, P.A., and Jeanne C. Brady of Brady & Brady, Boca Raton, for appellee.
   POLEN, C.J.

Norma Damiani appeals a final judgment of dissolution. During the marriage, the couple had one child. Just before the couple filed for divorce, the mother took the child into Mexico and kept him away from the father. The mother repeatedly disobeyed court orders demanding that she produce the child. Eventually, after seeking the help of various law enforcement agencies, the husband located the mother and child in Mexico and the parties entered in to a temporary agreement. Although the record contains conflicting evidence, at the time of this litigation, the father maintained full time employment with Granger Industrial Supply and the mother was earning a substantially smaller income waiting tables. The final judgment that was entered by the trial court was the proposed final judgment submitted by the husband without change. The final judgment provided, inter alia, that the father would be the primary residential parent and that the mother’s visitation was conditioned upon her posting a $100,000 bond.

On appeal, the wife raises six arguments. We find error with the trial court’s verbatim adoption of the husband’s proposed judgment and with the trial court’s order conditioning the wife’s visitation upon her ability to post a $100,000 bond. We find the wife’s other arguments raised on appeal unpersuasive. We hereby reverse the trial court’s judgment in those two respects and grant the wife’s motion for appellate attorney’s fees.

The first issue that we address is the court’s decision to condition the mother’s visitation upon the posting of a $100,000 bond. The denial or restriction of visitation rights is generally disfavored. However, we recognize that it is within the court’s discretion to restrict or limit visitation as may be necessary to protect the welfare of the child. Allen v. Allen, 787 So.2d 215 (Fla. 5th DCA 2001)(citing Yandell v. Yandell, 39 So.2d 554 (Fla.1949)). Thus, we would not disturb the trial court’s decision absent a finding of abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Based on the facts of this case, especially the evidence of the mother’s income, we find that the trial court did abuse its discretion in requiring the mother to pay a $100,000 bond.

The Florida Supreme Court overruled a lower court’s decision to deny a parent any visitation rights and stated “[T]he privilege of visiting the minor children of the parties to a divorce proceeding should never be denied either parent so long as he or she conducts himself or herself, while in the presence of such children, in a manner which will not adversely affect the morals or welfare of such progeny.” Yandell, 39 So.2d at 555. In this case, according to the written order, the court did not take away the mother’s ability to visit the child altogether. However, based on the mother’s financial inability to meet the requirement of a $100,000 bond, we find the order will very likely preclude any visitation.

The posting of a bond as a condition precedent to visitation is not a unique requirement. In a somewhat similar scenario, such a bond was upheld by the first district. Scharmen v. Scharmen, 613 So.2d 121 (Fla. 1st DCA 1993). In Scharmen, the court did not disturb a lower courts requirement of a father to post a $2500 bond in order to have visitation after he had “absconded to Georgia with the children,” Id. at 122. The opinion does not address the reasonableness of the amount of the bond, nor does it address the ability of the father to pay the bond amount. However, it is clear that the likelihood of visitation, when a bond is required, coincides with the parent’s ability to make the requisite bond payment. For that reason, the reasonableness of a bond such as this must be considered on a case by case basis.

In this case, the trial court noted that the requirement of the bond was premised on the idea that should the mother decide to take the child into Mexico, the bond would finance the husband’s search for the child. The record clearly demonstrated that Mr. Damiani spent great sums of money searching for his child. However, nothing in the record suggests that it is in the best interest of this child to have no contact with the mother. In fact, the court recognized that it was in the child’s best interest to have visitation with the mother. We find it unreasonable to suggest that the mother, based on her alleged income, would ever be able to raise the money necessary to meet this bond requirement. As a result, the imposition of this bond, on this mother, has effectively eliminated her visitation altogether.

We recognize the difficult position the trial court is in and we are not blind to the fact that the record indicates the mother’s willingness to disobey court orders. However, we find that the imposition of a $100,000 bond in this situation was an abuse of discretion as it will likely preclude the mother from having any visitation with the child and the court recognized that visitation is in the child’s best interest. As a result, we hereby reverse that portion of the final judgment requiring a bond and remand this issue to the trial court with instructions to find a visitation schedule, with such additional reasonable restrictions on the mother, that will support the best interest of the child.

The next issue that we address is the court’s verbatim adoption of the husband’s proposed order. Five months after the trial, the court decided to adopt a proposed order submitted by the husband. The submitted order was adopted verbatim. We agree with the wife that the verbatim adoption of this proposed order was an error and we hereby remand this case back to the trial court to enter an order that accurately reflects the proceedings reflected in the record.

This court has previously addressed the issue of a trial court adopting a proposed judgment. Flint v. Fortson, 744 So.2d 1217 (Fla. 4th DCA 1999). In Flint, this court acknowledged the desirability of judges preparing their own orders, but recognized the practical justification for judges utilizing submissions from counsel. The Flint opinion noted that “what is critical for a reviewing court is that a final judgment reflect the trial judge’s independent decision on the issues of the case.” Id. at 1220. The court concluded that although there is a split of opinion on the issue, reversal has only been granted when the signed judgment is inconsistent with prior pronouncements of the judge. Id.

Although this case is distinguishable from Flint in regards to the amount of time between the trial and rendition of the judgment, there is no bright line time frame that renders an adoption of a judgment per se error. The court’s opinion in Flint makes clear that the court considered several factors. In addition to the timing, the court considered whether the judgment diverted from the findings on record, whether there were any irregularities or conflicts, whether the judge participated in the trial, and whether the judge made any alterations to the judgment. Id. at 1217.

In this case, we find that the judgment bears evidence that it does not accurately reflect the findings of the court. First, as mentioned above, the judgment was not entered until five months after the trial. We do not hold that a five month delay is per se grounds for reversal, but it is merely one factor that is considered. In addition to the delay, we find that the existence of several inconsistencies between the final order and the transcript mandates that the trial judge reconsider this issue.

In sum, as this court has previously held in Flint, a reversal on this issue is warranted only when the judgment is inconsistent with the prior pronouncements of the judge. Flint, supra. This case exemplifies that exact situation and thus we hereby reverse the final order of dissolution and remand this case back to the trial court to act in accord with this opinion.

Last, we address the wife’s motion for appellate attorney fees. The wife has filed a motion seeking appellate attorney’s fees pursuant to sections 57.105 and 61.16, Florida Statutes, contending that she has great need for, and husband has financial ability to pay for, appellate attorney’s fees. Section 61.16 provides in part that “when determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties.”

This court has previously held that “[W]hen we grant a motion for appellate attorney’s fees founded on section 61.16, we have no way of knowing how great is the need to equalize the access to legal services, nor how great is the ability to pay. In one case the need may be modest but the ability unlimited; while in another the need may be great but the ability modest; in still another the need and ability are similar; and in yet another there may be little or no need or ability. All of these permutations are for the finder of fact, the trial court, to sort out.” Gerhardt v. Gerhardt, 738 So.2d 485 (Fla. 4th DCA 1999).

This court’s inability to accurately determine the wife’s need for fees, as well as the husband’s ability to pay, is further complicated in this case due to contradictory or incomplete portions of the record regarding the financial positions of the parties. As a result, based on the apparent discrepancy between the financial positions of the parties, we hereby grant the motion and recognize that a prima facie basis for a fee award exists under section 61.16, Florida Statutes, but that the final award is subject to a determination of need and ability to pay by the trial court and in accord with the factors outlined in Rosen. Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GUNTHER and MAY, JJ„ concur.


author: FLETCHER, Judge.

text:
    The STATE of Florida, Appellant, v. Onelia ALFONSO, Appellee.
    No. 3D01-3342.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 2002.

      Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellee.
    Before JORGENSON, FLETCHER and RAMIREZ, JJ.
   FLETCHER, Judge.

The State of Florida appeals from a final order vacating the defendant Onelia Alfonso’s plea, judgment of conviction, and sentence. We reverse and remand.

In 1996, Alfonso pleaded guilty to child abuse for striking her 7-year-old nephew with a belt and her hands. She received a withhold of adjudication and one year of probation with the requirement that she complete parenting classes. She fulfilled her obligations. Some time later she received a letter from INS stating that she was deportable, and there is the suggestion in the record that deportation proceedings against her were begun. Alfonso moved to vacate her 1996 plea based on her claim that neither her counsel nor the trial court advised her of the deportation consequences of her plea, and that her counsel affirmatively misadvised her that there would be no deportation consequences at all. After hearing argument from both parties, the trial judge made several findings based solely on equitable considerations and granted Alfonso’s motion to vacate her plea and the trial court’s prior judgment and sentence, and to set the case for trial.

The record shows that none of the trial court’s oral or written reasons for vacating Alfonso’s plea and conviction comport with the decision in Peart v. State, 756 So.2d 42 (Fla.2000), which provides the proper analysis for reviewing a post-conviction relief motion based on violation of rule 3.172(c)(8), Florida Rules of Criminal Procedure. See also State v. Seraphin, 818 So.2d 485 (Fla.2002). Accordingly, we reverse and remand with instructions that the trial court hold a hearing in order to provide this court with proper analysis and written explanation that complies with Peart and progeny.

Reversed and remanded.


author: NORTHCUTT, Judge.

text:
    Valentine RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5208.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2002.
    Rehearing Denied Feb. 3, 2003.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

      Richard E. Doran, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

A defendant cannot be sentenced to consecutive Prison Releasee Reoffender sentences for offenses arising from a single criminal episode. Smith v. State, 824 So.2d 263, 264 (Fla. 2d DCA 2002). Valentine Rodriguez contends that his consecutive P.R.R. sentences are illegal for that reason. Rodriguez pleaded guilty to committing an aggravated assault and a felony battery against the same victim on the same day. However, we cannot discern from the record or the transcript of the plea colloquy whether the offenses were, in fact, committed in the same criminal episode. Therefore, we affirm Rodriguez’s sentences without prejudice to any right he may have to raise this claim in a timely, facially sufficient rule 3.850 motion.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.


author: PER CURIAM.

text:
    Alvin HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4721.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 24, 2003.
   PER CURIAM.

Alvin Howard appeals the summary denial of his motion to correct an illegal sentence. We affirm without prejudice to any right Howard might have to challenge the Prison Releasee Reoffender Punishment Act sentence imposed on him for attempted burglary. See Christopher v. State, 821 So.2d 1275 (Fla. 2d DCA 2002).

Affirmed.

NORTHCUTT, SALCINES, and STRINGER, JJ., Concur.


text:
    Ronnie Maurice NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-3010.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Rehearing Denied Feb. 6, 2003.
    Ronnie Maurice Neal, pro se, petitioner.
    Robert A. Butterworth, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Ronnie Maurice Neal petitions this court for a belated appeal of a February 2000 order denying his motion for postconviction relief, alleging that despite the assurances of an inmate law clerk that a timely notice of appeal would be filed, no appeal was initiated. Neal’s petition to this court was filed in July 2002, and is thus untimely pursuant to Florida Rule of Appellate Procedure 9.141(c)(4)(A). More to the point, however, the court’s records reflect that a timely appeal of the trial court’s February 2000 order was initiated, and that order was affirmed without comment in August 2000. See Neal v. State, 768 So.2d 1075 (Fla. 1st DCA 2000). Accordingly, we deny the petition for belated appeal.

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


author: ORFINGER, J.

text:
    Andre WINDOM, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3359.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    Andre Windom, Miami, Pro Se.
    Richard E. Doran, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Andre Windom appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

In 1989, Windom was sentenced as a youthful offender to a term of imprisonment followed by probation. He violated his probation in 1992 by committing new crimes. His probation was then revoked and he was sentenced to a term of fifteen years in prison. On appeal, Windom argues that his fifteen-year sentence is illegal due to the six-year cap on youthful offender sentences found in section 958.04(2)(a), Florida Statutes (1989), as it existed at the time he committed his offenses. The State contends that Windom’s sentence is authorized based on a 1990 amendment to the youthful offender law (before Windom violated his probation, but after he committed the underlying offenses), which allows for a defendant originally sentenced as a youthful offender to be resentenced up to the statutory maximum for the offense involved upon a substantive violation of probation. The resolution of this controversy depends on which version of section 958.14 should apply — the version in effect at the time Windom committed his original offenses, or the amended version, which was in effect that the time Windom violated his probation.

In Reeves v. State, 605 So.2d 562, 563 (Fla. 2d DCA 1992), the court held that the application of the amended statute would constitute an ex post facto violation:

The amended version of section 958.14 operates to subject a youthful offender to the general provisions of section 948.06(1) beyond the normal six-year cap for such an offender when the offender commits a substantive violation of probation or community control. In this case, there is no dispute that defendant’s having resisted arrest without violence constituted such a substantive violation. There is also no dispute that section 958.14 as amended was in effect at the time defendant committed the substantive violation in March 1991, a fact upon which the state relies in its argument that the six-year cap may be exceeded.
Since defendant was being sentenced for a crime he committed in 1988, we conclude that application of a statute amended in 1990 which clearly serves to increase the length of incarceration to which he could be subject would constitute an impermissible ex post facto law under both the Florida and United States Constitution. See, e.g., Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Swinson v. State, 588 So.2d 296 (Fla. 5th DCA 1991). Therefore, the sentence may not exceed the foregoing six-year cap.

We adopt the holding in Reeves. We find no merit in the other issues raised by Windom. We remand the matter for re-sentencing consistent with section 958.14, as it was in effect at the time Windom committed his original offenses.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

PETERSON and GRIFFIN, JJ., concur.


author: SILBERMAN, Judge.

text:
    COMMONWEALTH PROPERTY ASSOCIATES, INC., a Florida corporation, and S.W. Enterprise Associates, Inc., a Florida corporation, Appellants/Cross-Appellees, v. SUNTRUST BANK, SOUTHWEST FLORIDA, a Florida corporation and State Chartered Bank, f/k/a Sunbank of Lee County, N.A., Appellee/Cross-Appellant. SunTrust Bank, Southwest Florida, a Florida corporation and State Chartered Bank, f/k/a Sunbank of Lee County, N.A., Appellant, v. Commonwealth Property Consolidated Associates, Inc., a Florida corporation, and S.W. Enterprise Associates, Inc., a Florida corporation, Appellees.
    Nos. 2D01-850, 2D01-1968.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
    Rehearing Denied Feb. 3, 2003.

      Robert E. Doyle, Jr., James T. Demurest, and Lilliana M. Farinas of Quarles & Brady, LLP, Naples, for Commonwealth Property Associates, Inc. and S.W. Enterprise Associates, Inc.
    Theodore L. Tripp, Jr. and Elisa S. Worthington of Garvin & Tripp, P.A., Fort Myers, for SunTrust Bank, Southwest Florida.
   SILBERMAN, Judge.

In this consolidated appeal, Commonwealth Property Associates, Inc., and S.W. Enterprise Associates, Inc., appeal the order awarding attorney’s fees to SunTrust Bank. SunTrust cross-appeals the same order and appeals the order granting, in part, its motion to tax costs. We reverse the award of attorney’s fees to SunTrust because it was not entitled to recover fees pursuant to its offers of judgment when the lawsuit was voluntarily dismissed without prejudice. Our decision on this issue renders the cross-appeal moot. Concerning SunTrust’s appeal of the order on costs, we conclude that the trial court did not abuse its discretion and affirm that order without further comment.

In 1994 Commonwealth filed a lawsuit to recover 1991 and 1992 operating expenses allegedly owed by SunTrust as a result of SunTrust’s tenancy of a building managed by Commonwealth. In 1995 S.W. Enterprise, the owner of the building, and Commonwealth jointly filed a second lawsuit against SunTrust to recover operating expenses for 1993 and 1994. SunTrust served offers of judgment in both cases.

After the 1994 and 1995 cases were consolidated, S.W. Enterprise amended its complaint against SunTrust; Commonwealth was no longer included as a coplain-tiff. In March 1998, during the trial of the consolidated case, S.W. Enterprise requested from the trial court, and was granted, a voluntary dismissal without prejudice. Several days later, SunTrust filed its motion seeking an award of attorney’s fees against S.W. Enterprise and Commonwealth pursuant to the unaccepted offers of judgment. By the time the trial court considered SunTrust’s motion, a third lawsuit had been filed against Sun-Trust. The trial court reserved jurisdiction to consider SunTrust’s motion for fees and stated that the motion would remain pending until the conclusion of the third lawsuit.

The third lawsuit was filed by Commonwealth, S.W. Enterprise, and an individual named Dominic A. Franchi. They claimed that SunTrust was liable for unpaid operating expenses that had accrued over the course of several years. Subsequently, Commonwealth dismissed its claims against SunTrust, and S.W. Enterprise dismissed certain of its claims. The third lawsuit was eventually resolved when Franchi and S.W. Enterprise accepted an offer of judgment made by SunTrust.

SunTrust then renewed its request for an award of attorney’s fees in the earlier, consolidated case. The trial court ruled in favor of SunTrust and awarded fees against Commonwealth and S.W. Enterprise. Commonwealth and S.W. Enterprise argue that the fee award was improper because the consolidated case had been voluntarily dismissed without prejudice. We agree.

In MX Investments, Inc., v. Crawford, 700 So.2d 640, 642 (Fla.1997), the supreme court held that only when a plaintiffs voluntary dismissal is with prejudice or is a second voluntary dismissal is the defendant entitled to an award of attorney’s fees in accord with section 768.79, Florida Statutes, the offer of judgment statute. See also Aero Toy Store, Inc. v. Sherwin-Williams Co., 725 So.2d 1267, 1268 (Fla. 4th DCA 1999); Gammie v. State Farm, Mut. Auto. Ins. Co., 720 So.2d 1163, 1163-64 (Fla. 3d DCA 1998). Because Commonwealth and S.W. Enterprise dismissed their claims without prejudice, and it was their first voluntary dismissal of the claims, SunTrust was not entitled to recover attorney’s fees pursuant to the offers of judgment that it had made in the consolidated case.

Therefore, the order awarding attorney’s fees to SunTrust is reversed, and the order granting SunTrust’s motion to tax costs is affirmed.

NORTHCUTT and DAVIS, JJ., Concur.

      . We also note SunTrust's assertion that Commonwealth and S.W. Enterprise waived the MX argument by not raising it in the trial court. The record reflects that MX was specifically brought to the trial court's attention well before the trial court resolved the fee issue.


author: STONE, J.

text:
    Terrance Max LEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3696.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Rehearing Denied Feb. 19, 2003.

      Carey Haughwout, Public Defender, and Jeffrey Anderson and Samuel A. Walker, Assistant Public Defenders, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, Fort Lauder-dale, for appellee.
   STONE, J.

Terrance Lee was found not guilty on a charge of possession of cocaine with intent to sell, but was convicted on a companion count of possession of marijuana. He asserts error in the trial court’s denial of his motion for judgment of acquittal, contending that the state’s proof of his constructive possession of a marijuana cigarette was legally insufficient to create a jury question. He also contends that there was a fundamental error in the jury instructions. We affirm Lee’s conviction.

The only evidence adduced at trial relevant to the marijuana charge was that Lee was driving alone in a black Cadillac when arrested, and a marijuana cigarette was later found during the course of an inventory search of the vehicle. The testifying officer, who conducted the search, could not recall where the marijuana was found, i.e., whether in plain view or hidden under the seat or floor mat, and did not make a report of his inventory. Instead, the officer relied on another officer’s report for his testimony that the marijuana cigarette was found “on the driver’s side floor.” The admission of this testimony is not in issue. We note that in moving for judgment of acquittal, defense counsel asserted that the marijuana was under the floor mat and that in final argument, the state asserted that it was found under the driver’s seat.

It is undisputed that the conviction is founded on a theory of constructive, and not actual, possession. When pursuing a theory of constructive possession, the state must prove beyond a reasonable doubt that the accused had (1) dominion and control over the contraband, (2) knowledge the contraband was within his presence, and (3) knowledge of the illicit nature of the contraband. Williams v. State, 573 So.2d 124, 125 (Fla. 4th DCA 1991).

The first question we are asked to consider is whether the inference that may be drawn from sole occupancy of a vehicle in which contraband is found, without more, is sufficient to prove a prima facie case of possession. We conclude that it is.

The purpose of the constructive possession doctrine is, as explained by the Minnesota Supreme Court,

to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.

State v. Florine, 303 Minn. 103, 226 N.W.2d 609, 610-11 (1976).

In Brown v. State, 428 So.2d 250, 252 (Fla.1983), the supreme court cited to Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967), with approval, for the following proposition:

If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive.

Frank, 199 So.2d at 120. Thus, less evidence is required for a conviction when possession is exclusive. Id. In cases where possession is joint, the state must present additional evidence to support the infer-enees of knowledge and ability to control. Id.

In every constructive possession case, a determination is made as to whether “there is such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant’s dominion and control as if it were actual possession.” United States v. Terry, 911 F.2d 272, 278 (9th Cir.1990).

An inference of knowledge may be drawn in cases of exclusive constructive possession, establishing the requisite nexus. Scott v. State, 808 So.2d 166, 171 n. 6 (Fla.2002)(referring to the Medlin inference which arises in cases of actual possession). We have previously construed “exclusive,” in the possession context, to mean “vested in one person alone.” Gartrell v. State, 609 So.2d 112, 114 (Fla. 4th DCA 1992), quashed on other grounds by, 626 So.2d 1364 (Fla.1993). Here, control of the vehicle was vested in Lee alone and is, thus, exclusive, notwithstanding a lack of proof as to ownership or evidence as to how the vehicle came into Lee’s possession. See State v. Paleveda, 745 So.2d 1026, 1028 (Fla. 2d DCA 1999)(“Knowledge of contraband found within an automobile or premises is generally inferred or presumed from one’s exclusive possession thereof unless and until proven otherwise.”); Parker v. State, 641 So.2d 483, 484 (Fla. 5th DCA 1994)(holding that, despite evidence that defendant’s son drove vehicle earlier, defendant was driver and sole occupant and his exclusive possession of vehicle in which cocaine was found created inference that he had knowledge of cocaine); Jordan v. State, 548 So.2d 737, 739 (Fla. 4th DCA 1989)(defendant who was driver of automobile containing passenger was in exclusive possession of trunk in which cocaine was found, even though defendant claimed others had access to trunk).

Lee’s presence, as driver and sole occupant of the vehicle at the time of his arrest, is sufficient to show he exclusively possessed the vehicle, creating an inference of his dominion and control and guilty knowledge of the marijuana. We recognize that generally a conviction based on the exclusive possession inference will be supported by additional evidence, either direct or circumstantial. See e.g. Smith v. State, 776 So.2d 957 (Fla. 3d DCA 2000)(firearm found in trunk of car in which defendant was driver and sole occupant and where bullets and magazine clip were found in defendant’s pockets); Gaines v. State, 706 So.2d 47, 50 (Fla. 5th DCA 1998)(cocaine found in dresser drawer next to personal papers belonging exclusively to defendant and dresser was located in defendant’s bedroom in house defendant rented and of which he was sole occupant); State v. Craig, 413 So.2d 863 (Fla. 1st DCA 1982)(weapon found in prison cell over which defendant maintained exclusive possession between September 10th through September 14th).

Although, here, there were no such additional factors, sole possession and control of the vehicle, alone, is prima facie evidence that Lee maintained exclusive possession over the vehicle. Therefore, Lee’s knowledge and ability to control the marijuana may be inferred by the jury. See Chicone v. State, 684 So.2d 736, 740 (Fla.1996).

We conclude that the state’s evidence was sufficient to support an inference that Lee had constructive possession of the marijuana in the vehicle. Therefore, the court did not err in denying Lee’s motion for judgment of acquittal.

We turn to the second issue, whether the trial court erred by failing to instruct the jury on the state’s burden to prove knowledge of the illicit nature of the substance possessed, even though he did not request the instruction. Lee argues that the court’s failure to sua sponte charge the jury on this element of the offense is fundamental error.

In State v. Delva, 575 So.2d 643 (Fla. 1991), however, the supreme court held that the erroneous failure to instruct on knowledge of the illicit nature of the substance possessed by the defendant is not fundamental error and can only be preserved for appeal by proper objection, notwithstanding that the instruction relates to an element of the offense. In Delva, as here, the defendant was in exclusive possession of a car and the contraband was found under the front seat. Id. at 645. His defense was that he did not know that the package was in the car. Id. at 643. In that case, there was also evidence that other persons had access to the vehicle. Id.

We recognize that in Scott, the supreme court, refining its opinion in Chicone, held that it is not only error to deny a requested instruction on the need to prove knowledge of the illicit nature of the substance in a possession case, even when the element is not in issue and the defendant is in exclusive control, but that such error cannot be deemed harmless. Scott, 808 So.2d at 172. Scott, however, did not address the question of fundamental error. To the contrary, it repeatedly emphasized that error in that case was in failing to give the requested “Chicone ” instruction. We also note that the court, in Scott, had an opportunity to address fundamental error because the request for the instruction in that case was oral, rather than written. See id. at 169 n. 3, 174 (Harding, J., dissenting). The court declined to consider the absence of a written request because the issue was not addressed in the district court opinion under review.

We recognize that some of the reasoning in Delva, would be inapplicable subsequent to Chicone and Scott. In Delva, the court reasoned that because knowledge of the illicit nature of the substance was not at issue in the case, as the defendant denied knowledge of the package altogether, the failure to instruct on that element could not be fundamental error. In Scott, however, the court decided that a defendant is not required to put guilty knowledge in dispute in order to be entitled to the Chi-cone instruction, as knowledge of the illicit nature of the substance is placed in issue by a plea of not guilty. The supreme court opinions, therefore, may conflict in this regard.

Had it not been for Delva, we might have reversed on this issue, interpreting the language in Scott to mean that the failure to give the Chicone instruction is, per se, fundamental error. The supreme court, however, has recently cautioned the district courts against failing to follow the dictates of a prior supreme court opinion, despite its possible conflict with a subsequent supreme court opinion. Puryear v. State, 810 So.2d 901 (Fla.2002).

But for the recent enactment of section 898.101, Florida Statutes, effective May 13, 2002, we would have certified this issue to the supreme court. However, we decline to do so here in light of the legislative clarification, notwithstanding that the statute is inapplicable to offenses committed prior to its effective date.

GROSS and HAZOURI, JJ., concur.

      . The legislature has subsequently enacted section 893.101, Florida Statutes (2002), having prospective effect, to clarify that knowledge of the illicit nature of the controlled substance is not an element of possession but an affirmative defense.

        . State v. Medlin, 273 So.2d 394 (Fla.1973).

      . There being no evidence indicating otherwise.


author: DELL, JOHN W., Senior Judge.

text:
    Salvatore J. ALTIERI, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-925.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, Laura Fisher Zibara and Marrett W. Hanna, Assistant Attorneys General, West Palm Beach, for appellee.
   DELL, JOHN W., Senior Judge.

Salvatore Altieri appeals his conviction and sentence for aggravated assault with a deadly weapon. We affirm his conviction. We reverse the trial court’s imposition of a twenty year mandatory minimum sentence for discharging a firearm during the offense. We remand for re-sentencing.

On July 26, 1999, the victims were traveling north on 1-95 when the driver of a white taxicab, later identified as appellant, fired two or three shots at their car. The driver of the victim’s car testified that he sped into a rest area to escape from appellant. He lost control of the car and crashed into a tree. The occupants of the car and appellant called the police and both claimed to be the victim of an incident occurring on 1-95. Appellant testified that the victims were the aggressors and that the shots he fired were fired into the air as warning shots. The jury found appellant guilty of aggravated assault with a deadly weapon and also found that he discharged the firearm during the offense. The trial court sentenced appellant to a mandatory minimum term of twenty years imprisonment for the aggravated assault based on the discharge of the firearm, pursuant to 775.087(2)(a)(2), Florida Statutes (1999).

Appellant contends that the trial court erred when it imposed a twenty year mandatory minimum sentence because the information did not charge that during the commission of the aggravated assault, he discharged a firearm. Appellant also contends that the trial court should have granted a new trial based on the prosecutor’s improper comments during closing argument and that the trial court erred when it refused to give a jury instruction on justifiable use of non-deadly force.

We agree with appellant that the trial court erred when it imposed a mandatory minimum twenty year sentence. The state alleged in the information that on:

July 26, 1999 Salvatore J. Altieri did intentionally and unlawfully threaten[ed] by word or act to do violence to the person of Jose Desravines, having the apparent ability to do so, and did an act which created a well-founded fear in Jose Desravines that such violence was about to take place, and in the process thereof used a deadly weapon, to-wit: a firearm, in violation of Florida Statute 784.021(l)(a).

(Emphasis added.) The jury found appellant “Guilty of Aggravated Assault with a Deadly Weapon, as charged in the Information.” The jury also found that the deadly weapon was a firearm when they responded “yes” to the question, “If you find the Defendant Guilty of Aggravated Assault with a Deadly Weapon and you find that the Deadly Weapon was a firearm, did the Defendant Discharge the Firearm?” The trial court sentenced appellant pursuant to section 775.087(2)(a)(2), Florida Statutes (1999), which provides:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a ‘firearm’ or ‘destructive device’ ... shall be sentenced to a minimum term of imprisonment of 20 years.

§ 775.087(2)(a)(2), Fla. Stat. (1999). Aggravated assault is one of the enumerated felonies included in § 775.087(2)(a)(l)(f), Florida Statutes (1999).

Appellant cites Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999), in support of his argument that his twenty year mandatory minimum sentence must be reversed. In Bryant, the information charged the defendant with attempted first-degree murder in count I and for shooting into an occupied building in count II. In count I, attempted first-degree murder, the information “did not allege that the offense was committed with a firearm.” Id. at 1226. The defendant was found guilty of the lesser-included charge of attempted second-degree murder (count I) and of shooting into an occupied building (count II). By special verdict, the jury found that the defendant used a firearm in the commission of the attempted second-degree murder. He was sentenced on each count to a mandatory minimum sentence of three years pursuant to section 775.087(2), Florida Statutes (1997).

This court held in Bryant that the imposition of a three year mandatory minimum sentence for his conviction of attempted second-degree murder constituted fundamental error and reversed and remanded the case for re-sentencing:

We have held that ‘[i]n order for a three year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a ‘firearm’ or ‘destructive device’ during the commission of the crime.’ No such firearm allegation or reference to section 775.087(2) was made in the information to put appellant on notice that he was being charged in Count I [attempted first-degree murder] ‘with the use of a firearm’ and faced potential imposition of a three-year mandatory minimum sentence.

Id. at 1226 (citations omitted). In Bryant, the court also stated:

Although Count II charged appellant with shooting into an occupied building, the state cannot use allegations of use of a firearm in another count of the information to support imposition of the mandatory minimum term on Count I.

Id.

Here, the information contained an allegation that appellant “used a deadly weapon, to wit: a firearm” but it did not contain an allegation that appellant discharged a firearm or destructive device. We are not persuaded by the state’s argument that the allegation that “in the process thereof used a deadly weapon, to wit: a firearm,” was sufficient to place appellant on notice that he was being charged with discharging a firearm during the course of the aggravated assault. The term “used” a firearm does not necessarily mean that a person “discharged” a firearm because a person may use a firearm without discharging it. Section 775.087(2)(a)(2) applies when a person discharges the firearm or destructive device.

The absence of any allegation in the information that appellant “discharged” a firearm during the aggravated assault deprived him of notice that he was subject to a mandatory minimum of twenty years. The jury’s finding that he discharged a firearm during the course of the aggravated assault did not cure the defect in the information. We, therefore, reverse the mandatory minimum twenty year sentence imposed by the trial court for the discharge of a firearm. See Bryant, 744 So.2d at 1225; see also Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993).

Because we must remand this case for re-sentencing, we will discuss appellant’s argument that because the information does not contain an express allegation that he “actually possessed” a firearm during the commission of the aggravated battery, the trial court cannot impose a three-year mandatory minimum sentence for possession of a firearm. Section 775.087(2)(a)(1), Florida Statutes (1999), provides in part “that a person who is convicted for aggravated assault ... shall be sentenced to a minimum term of imprisonment of three years if such person possessed a ‘firearm’ or ‘destructive device’ during the commission of the offense.” Here, the information charged that “in the process thereof [the aggravated assault] [appellant] used a deadly weapon, to wit: a firearm.” Appellant argues that Bryant requires that the state “must allege in the information and prove at trial that the defendant possessed a ‘firearm’ or ‘destructive device’ during the commission of the crime.”

Neither party has cited a case that addresses the specific question of whether an information that contains an allegation that a person “used” a firearm during the commission of an aggravated assault is sufficient to support the imposition of a three-year mandatory minimum sentence as provided in 775.087(2)(a)(l). This court noted in Bryant, that State v. Overfelt, 457 So.2d 1385 (Fla.1984), and its progeny “addressed the requirement that a jury specifically find that the defendant committed the crime while using a firearm, either by finding the defendant guilty of a crime which involved a firearm or by a special verdict form indicating use of a firearm. They did not answer the question of whether there needed to be an allegation in the charging document that the defendant possessed a firearm during the commission of the crime.” Id. at 1226-27.

In Bryant and Gibbs, neither information contained any allegation as to whether the subject offense was committed with a firearm. In both cases, this court held that “[i]n order for a three year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a ‘firearm’ or ‘destructive device’ during the commission of the crime. See Peck v. State, 425 So.2d 664, 665 (Fla. 2d DCA 1983).” Gibbs, 623 So.2d at 555. We conclude that the imposition of a three year mandatory minimum sentence in this case is consistent with Bryant and Gibbs because the information contains an allegation that the appellant “used a deadly weapon, to wit: a firearm,” during the commission of the aggravated assault. We find support for this conclusion in Bryant because this Court stated “... [n]o such firearm allegation or reference to section 775.087(2) was made in the information to put appellant on notice that he was being charged in Count I ‘with use of a firearm’ and faced potential imposition of a three year mandatory minimum sentence.” (Emphasis added.) Bryant, 744 So.2d at 1226. It is also apparent from several of the cases that have considered the application of the three year mandatory minimum sentence for possession of a firearm during an enumerated offense that “possession of a firearm” and “use of a firearm” have been used in the same context. See Overfelt, 457 So.2d at 1385; Bryant, 744 So.2d at 1225; Gibbs, 623 So.2d at 551; Mesa v. State, 632 So.2d 1094 (Fla. 3d DCA 1994).

In Bass v. State, 739 So.2d 1243 (Fla. 5th DCA 1999), the Fifth District affirmed the imposition of a three year mandatory minimum sentence for aggravated assault. The court stated:

However, the jury verdict found defendant guilty of aggravated assault ‘as charged in the information.’ The information, in each count, charged defendant with committing the crime ‘with a firearm, ’ a deadly weapon. For imposition of the mandatory minimum sentence, it was sufficient the verdict referred to the information where the information contained a charge of a crime committed with the use of a firearm. State v. Hargrove, 694 So.2d 729, 731 (Fla.1997). There was no error here.

Id. at 1246. (Emphasis added.)

Here, as in Bass, the information charged that appellant used a firearm during the commission of the aggravated assault and the jury found him guilty of aggravated assault with a deadly weapon. For the reasons discussed, we hold that the state’s allegation that appellant “used a deadly weapon, to wit: a firearm” was sufficient to place him on notice that he was subject to a three year mandatory minimum sentence for possession of a firearm, pursuant to section 775.087(2)(a)(l).

Next, we hold that the prosecutor’s comments during closing argument did not constitute reversible error. We have considered the comments raised by appellant in light of the evidence adduced at trial and in the context of the prosecutor’s entire argument and hold that the comments did not reach the level of prejudice that would require a new trial. See Ryan v. State, 467 So.2d 1084 (Fla. 4th DCA 1984). We also hold that the trial court did not abuse its discretion when it failed to give an instruction on justifiable use of non-deadly force. See Miller v. State, 613 So.2d 530, 531 (Fla. 3d DCA 1993).

Accordingly, we affirm appellant’s conviction. We reverse the trial court’s imposition of a twenty year mandatory minimum sentence for discharging a firearm and we remand this cause to the trial court to re-sentence appellant as provided in section 775.087(2)(a)(l), Florida Statutes (1999).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

KLEIN and SHAHOOD, JJ., concur.

      . We have addressed the issues concerning prosecutorial misconduct and the trial court’s failure to give an instruction on justifiable use of non-deadly force, notwithstanding the appellant’s conditional abandonment of these issues. Appellant states in his brief that "appellant asks that, if this court concludes that it was error to sentence him to a twenty year mandatory minimum because the state did not allege that he discharged a firearm, it affirm his conviction.”


text:
    Daniel Cly MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5031.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    Rehearing Denied Feb. 3, 2003.
    Alex Reed Stavrou of Law Offices of Alex R. Stavrou, Tampa, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Daniel Cly Miller pleaded nolo contende-re to two counts of aggravated child abuse and one count of neglect of a child after the court denied his motion to suppress a pre-Miranda confession. The court made a specific finding that its ruling was not dispositive. Therefore, Miller may not appeal the judgment on this ground. See § 924.051(4), Fla. Stat. (2001); Fla. R.App. P. 9.140(b)(2)(A)(I); Leonard v. State, 760 So.2d 114, 119 (Fla.2000).

Likewise, Miller failed to preserve any error with respect to his sentence by filing a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800. See Leonard, 760 So.2d at 119.

Affirmed.

WHATLEY and SILBERMAN, JJ„ Concur.


author: BROWNING, J.

text:
    UNIVERSITY NURSING CARE CENTER, INC., Appellant, v. FIRST UNION NATIONAL BANK, Appellee.
    No. 1D02-0198.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Rehearing Denied Jan. 31, 2003.

      David M. Garvin, P.A., Miami, for Appellant.
    Michael R. Freed of Smith, Hulsey & Busey, Jacksonville, for Appellee.
   BROWNING, J.

This is an appeal of a summary judgment entered in favor of the appellee, First Union National Bank (First Union), against the appellant, University Nursing Care Center, Inc. (UNCC). We hold that the trial court erred in granting summary judgment, and remand for further proceedings.

UNCC is the owner of a nursing care facility in Gainesville. Anthony Liuzzo is the sole shareholder of UNCC and is currently its President. Ann Restivo and Suzanne Dornau each served as President of UNCC in the mid-1990s. On or about September 19, 1994, UNCC entered into a management agreement with Long Term Management, Inc. (LTM), to manage UNCC’s facility. LTM was operated by Charlotte Albano and Simon Schwarz.

During 1994-96, UNCC maintained four bank accounts with First Union: an operating account, a money market account, a payroll account, and a trust account. Shortly after UNCC entered into the management agreement with LTM, Suzanne Dornau, on behalf of UNCC, completed a separate form entitled “Certified Corporate Resolution for Depository Authorization” (corporate resolution) for each of the four accounts. Each form specified the names of the persons authorized to transact business on each account; Schwarz and Albano were given signature authority on the payroll and trust accounts, whereas Dornau and Liuzzo were designated as authorized signatories of the operating and money market accounts. At that time, UNCC informed First Union of the management agreement with LTM, which specified that “LTM shall deposit in a bank or banks designated by Owner and in Operating Accounts established in Owner’s name, all funds received from the operations of the Center.” UNCC alleges that First Union received a copy of this management agreement at that time, but First Union disputes that allegation.

In December of 1995, UNCC learned that the operating and money market accounts had been closed. None of the corporate resolutions gave LTM the authority to close any of UNCC’s corporate accounts. At that time, and also in January and February 1996, Liuzzo told the First Union branch manager that Schwarz was no longer authorized to conduct any bank business in any of the accounts of UNCC or on behalf of UNCC. The branch manager stated that she could not take action because the accounts on which Schwarz was transacting business, entitled “Long Term Management, Inc. as agent for UNCC,” did not list Liuzzo’s name as an authorized signatory. First Union continued to permit Schwarz to deposit third party checks payable to UNCC into LTM accounts without the authorization of UNCC.

On March 14, 1996, Restivo, as president of UNCC, wrote a letter to First Union directing that all checks payable to UNCC should be deposited in a new UNCC account. Upon receipt of that letter, First Union decided to freeze all accounts in the name of “Long Term Management, Inc. as agent for UNCC.” UNCC thereafter sued First Union, alleging breach of their written agreement and negligence. UNCC specifically argued that the corporate resolutions allowed Schwarz to deposit money only into UNCC accounts, and also that the management agreement served as the written notice required to modify any agreement between UNCC and First Union. Upon First Union’s motion for summary judgment, final judgment was entered in favor of First Union.

A movant for summary judgment must demonstrate that there is no genuine issue of material fact. See Lcmders v. Milton, 370 So.2d 368 (Fla.1979). We hold that UNCC has shown the existence of a genuine issue of material fact with respect to both breach of a written agreement and the negligence claim. As to breach of a written agreement, the genuine issue of material fact is whether the corporate resolutions were modified by the UNCC-LTM management agreement, which limited Schwarz’s power to deposit checks payable to UNCC. The argument is twofold: the management agreement may be considered evidence that impacts the meaning of ambiguous terms in the corporate resolutions, and First Union’s receipt of the management agreement may be considered evidence of written notification of a change to the signature authorization forms.

The corporate resolutions’ terms are disputed and can be reasonably construed to reach divergent legal positions. First Union argued at the summary judgment hearing that, while the power granted the named persons “to sign checks, drafts, instruments, bills of exchange, acceptances, and/or other orders for the payment of money from said corporate account(s)” pertains to the individual accounts, the power “to endorse checks, instruments, bills, drafts, certificates of deposit, bonds, and/or other instruments, evidences of indebtedness and orders payable to, owned, or held by this Corporation” pertains to any checks payable to UNCC, and does not limit where the person may deposit such checks or instruments. However, the forms may be read to pertain only to a specific account number because there are four separate forms, each listing the account number of one of UNCC’s four accounts at the top. Also, UNCC presented affidavits stating that First Union told it that the forms authorized the named people to endorse checks to deposit funds only into the specific account numbers listed at the top of the documents. Because the terms of the corporate resolutions “are disputed and reasonably susceptible to more than one construction, an issue of fact is presented as to the parties’ intent which cannot properly be resolved by summary judgment.” Strama v. Union Fidelity Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001), quoting Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc., 513 So.2d 218, 219 (Fla. 1st DCA 1987).

With respect to the second argument, an issue of material fact exists as to whether the UNCC-LTM management agreement served as written notification to First Union sufficient to limit Schwarz’s ability to deposit checks into accounts not belonging to UNCC. The corporate resolutions were subject to change only by written notification. UNCC alleges that the UNCC-LTM management agreement, when given to First Union, constituted written notice to change or limit the corporate resolutions. There are both deposition testimony and statements in affidavits to the effect that UNCC told First Union about the management agreement and gave a copy to First Union, both when it opened the account and again in December 1995. However, First Union’s representative testified at his deposition that First Union did not have a copy of the management agreement. Thus, UNCC has established that there is a genuine issue of a material fact that precludes summary judgment for First Union on the claim of breach of contract.

UNCC has also established a genuine issue of material fact as to whether First Union was negligent in allowing Schwarz to continue depositing checks payable to UNCC into LTM’s account. For purposes of summary judgment, a court is to treat the allegations of the complaint as true. See Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975), cert, dism., 336 So.2d 105 (Fla.1976), citing White v. Pinellas County, 185 So.2d 468 (Fla.1966). Here, UNCC alleged that First Union had a duty to “safeguard” UNCC’s funds, and that First Union breached that duty “by permitting Mr. Schwarz to transact bank business with UNCC funds by withdrawing funds, transferring funds, depositing checks made payable to UNCC, and /or writing checks against Plaintiffs funds deposited at Defendant’s bank.” Specifically, UNCC argues that First Union was negligent in failing to follow the UNCC-LTM management agreement and in failing to request in December 1995 that UNCC put its request in writing. First Union has not yet disproved UNCC’s allegations because of the aforementioned ambiguity of the corporate resolutions and the question of whether the management agreement constituted written notice of the limitation on Schwarz’s authority. Because First Union has not shown that there is no genuine issue of material fact, the trial court erred in granting summary judgment for First Union as to both claims.

Accordingly, we REVERSE and REMAND for further proceedings.

ERVIN and KAHN, JJ., concur.