author: BROWNING, J. LEWIS, J.,

text:
    INTERNATIONAL UNION OF POLICE ASSOCIATIONS, Appellant, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, Appellee.
    No. 1D02-1467.
    District Court of Appeal of Florida, First District.
    May 20, 2003.
    Rehearing Denied Sept. 26, 2003.
    Tobe Lev, Esq., of Egan, Lev & Siwica, P.A., Orlando, for Appellant.
    Michael Mattimore, Esq., of Allen, Norton & Blue, P.A., Tallahassee, for Appel-lee.
   BROWNING, J.

International Union of Police Associations, AFL-CIO (Appellant), the recognized bargaining agent for Appellee’s law enforcement employees (public employees), appeals a final order of the Public Employees Relations Commission (PERC), and alleges that PERC reversibly erred by failing to order restoration to the status quo ante as to work schedules until bargaining was completed between the parties because of Appellee’s admitted unfair labor practice. We agree and reverse with instructions. In all other respects the order is affirmed.

Facts

This case arose from the adoption of a constitutional amendment by Florida voters in the 1998 general election that combined the former Game and Fresh Water Fish Commission and the former Marine Patrol, effective July 1, 1999. Art. XII, § 23, Fla. Const. The two agencies’ responsibilities were transferred to the newly created Florida Fish and Wildlife Conservation Commission (FFWCC). The two former commissions were operated as divisions without changes in the public employees’ work schedules until April 2, 2001, when Appellee announced its intention to adopt new work schedules for its public employees effective May 11, 2001.

Upon receipt of such notice, Appellant requested that the proposed changes in work schedules be the subject of bargaining under Chapter 447, Florida Statutes, and further requested in writing on April 16, 2001, that Appellee suspend its implementation of the proposed work schedules pending collective bargaining on the issue. Appellee failed to respond specifically to such request, but a bargaining session was held by the parties on April 26, 2001, and at the end of the bargaining session, the parties agreed that Appellant would provide counter-proposals to Appellee’s proposed work schedules by May 4, 2001. Appellant requested and received from Appellee an extension of time for submission of its counter-proposals until May 7, 2001. Then, Appellant requested a one-day extension, which Appellee denied. Appellee advised Appellant that it was terminating negotiations and implemented its proposed new work schedules effective May 11, 2001. Appellant submitted its counter-proposals to Appellee on May 8, 2001.

Because of Appellee’s unilateral implementation of the proposed work schedules, Appellant filed an unfair labor practice charge with PERC asserting that Appellee had violated section 447.501(l)(a) & (c), Florida Statutes. A hearing was held on Appellant’s unfair labor charge before an administrative law judge (ALJ), and Ap-pellee defended its action on the grounds that exigent circumstances justified Appel-lee’s unilateral action and that Appellant had waived its right to negotiate. The ALJ issued an order recommending that PERC adopt the recommended findings of fact and conclusions of law and enter a final order requiring, inter alia:

2. That Appellee take the following affirmative action:
a. Rescind, the unilateral change in work schedules and return to the status quo ante until bargaining is completed, (emphasis added).
b. Return to the bargaining table and negotiate in good faith the impact over the change in the law enforcement officers’ work assignments;

Appellee filed exceptions to the recommended order, and PERC entered a final order modifying the recommended order requiring Appellee, inter alia, to take the following action:

a. Upon request, return to the bargaining table and negotiate in good faith work schedules for law enforcement officers; (emphasis added).

The final order did not adopt the ALJ’s recommendation rescinding the Appellee’s unilateral changes in work schedules and ordering a return to the status quo ante until bargaining is completed, as recommended by the ALJ, and Appellant appealed.

Appellee does not argue in this appeal that it was not guilty of an unfair labor practice, that Appellant waived its bargaining rights, or that exigent circumstances justify its failure to bargain with Appellant. Its sole argument for affirmance is that PERC did not abuse its discretion by failing to order a return of the parties to a status quo ante bargaining position, because of the disruptive effect that would accompany rescinding the work schedules until the bargaining process is completed.

Applicable Law

The traditional remedy for an unfair labor practice relating to unilateral changes in terms and conditions of employment by public employees is to return the parties to the “status quo ante.” Escambia Educ. Ass’n v. Escambia County Sch. Bd., 10 FPER 15160 (1984); Nassau Teachers Ass’n v. Sch. Bd. of Nassau County, 8 FPER 13206 (1982). Employers have been required to return to the status quo in a variety of contexts. Monticello Prof'l Fire Fighters Ass’n v. Monticello, 15 FPER 20225 (1989) (ordering City to offer immediate reinstatement to employees terminated when fire department abolished); Leon County PBA v. City of Tallahassee, 8 FPER 13400 (1982) (ordering City to reimburse officers for increase in payroll deductions for health insurance); Florida Nurses Ass’n v. Pub. Health Trust, 14 FPER 19312 (1988) (ordering Trust to reinstate past practice of contributing toward dependent HMO coverage); SPALC v. Sch. Bd. of Lee County, 26 FPER 31105 (2000) (ordering School Board to re-establish policy of providing employees with leased uniforms); Southwest Florida Prof'l Fire Fighters v. Ft. Myers Beach Fire Control Dist., 23 FPER 28209 (1997) (ordering District to rescind change in minimum manning level until union provided opportunity to bargain impact of its decision); IAFF, Local 754 v. City of Tampa, 13 FPER 18129 (1987) (ordering City to rescind practice of paying fire fighters for actual hours worked and reinstate past practice of paying fire fighters the average of 104 hours of work each pay period regardless of hours worked); Escambia Educ. Ass’n v. Escambia Sch. Bd., supra, (ordering School Board to recognize additional year of service credit and pay eligible teachers accumulated salary experience increments with interest); IAFF v. City of St. Petersburg, 13 FPER 18116 (1987) (ordering City to pay annual progressive raises retroactive to expiration of agreement).

This traditional remedy has obtained in cases, as here, involving unilateral changes to work schedules. On at least two occasions, PERC has ordered this traditional remedy where employers unilaterally changed work schedules. IBEW Local 2358 v. Jacksonville Elec. Auth., 14 FPER 19196 (1988) (ordering Authority to restore twelve-hour work shift); Royal Palm Beach Prof'l Fire Fighters Ass’n v. Village of Royal Palm Beach, 14 FPER 19304 (1988) (ordering Village to return to status quo of working its employees 24 continuous hours per shift).

Analysis

Appellee’s sole argument for affir-mance is that a return to the status quo ante would have such a disruptive effect that affirmance is required. We cannot agree. Appellee studied, or had time to study, the new work schedules for approximately two years before it notified Appellant of its intended changes. After Appellant asked for bargaining on the issue, one bargaining session was held; when Appellant asked for a total four-day extension for submission of its counter-proposals, Appellee arbitrarily and unilaterally enacted the new work schedules. Such action was taken by violating the fundamental principle of public bargaining that the ALJ, quite correctly, determined Appellee knew, or should have known, would constitute an unfair labor practice. Accordingly, we cannot condone Appellee’s position in this appeal that, in essence, asks for an affirmance because of the very consequences attendant to its unfair labor practice. Not to require a return to the status quo ante would be akin to rewarding Ap-pellee for an unlawful act and would leave Appellant impotent under PERC’s rather bland final order. Simply put, PERC abused its discretion by not following the ALJ’s recommendation that the parties be returned to the status quo ante on the facts presented in this appeal. IBEW Lo cal 2358, 14 FPER 19196; Village of Royal Palm Beach, 14 FPER 19304.

We are not unmindful that substantial changes have occurred since May 11, 2001, because of the lapse of time caused by the initial hearing and the appellate process, and that disruption will result from a return to the status quo ante that might be detrimental to the public interest. Accordingly, we conclude that under section 447.504, Florida Statutes, the parties shall have 60 days from the issuance of this court’s mandate in which to negotiate a settlement. During such 60-day period, the parties shall negotiate pursuant to Chapter 447.403, Florida Statutes, and PERC shall supervise the negotiation process to insure that the parties’ dispute is settled by negotiations or by implementation of impasse procedures. If a settlement is not reached within such 60-day period, the status quo ante between the parties shall exist effective May 10, 2001, as provided in the recommended order.

Even though the procedure adopted does not include in toto either party’s position, it seems to us to “strike a balance” between the competing interests of the parties and the public they serve. Appel-lee is cautioned that when the law is clear, as here, there is no plausible reason for the actions taken. Public employees’ right to bargain collectively is constitutionally and statutorily based and cannot be ignored with impunity. Appellee’s concern for disruption could have best been handled by following recognized collective bargaining principles. The detrimental effect caused by unlawful action cannot be used as a shield to avoid imposition of the appropriate remedy.

AFFIRMED in part, REVERSED in part and REMANDED for proceedings consistent with this opinion.

BARFIELD, J. CONCURS; LEWIS, J. DISSENTS WITH WRITTEN OPINION.

LEWIS, J.,

dissenting.

I respectfully dissent and would affirm PERC’s Final Order. In doing so, I note at the outset that the issue on appeal is not whether an affirmance by this Court would be akin to rewarding appellee for what the majority terms “an unlawful act,” but rather whether PERC abused its discretion in not following the hearing officer’s recommendation and ordering appellee to return to the status quo with regard to the officers’ work schedules. See § 120.68(7)(e)3., Florida Statutes (2000). Discretion is abused when the action taken is arbitrary, fanciful, or unreasonable, or, in other words, when no reasonable person would take the view adopted by the lower tribunal. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). If reasonable people could differ as to the propriety of the lower tribunal’s action, then the action is not unreasonable, and there can be no finding of an abuse of discretion. Id.

In resolving labor disputes and fashioning a remedy to rectify a violation of the law concerning labor relations in the public sector, PERC’s decisions are entitled to great deference by the courts due to its enlightened experience in such matters. Town of Pembroke Park v. Fla. State Lodge, Fraternal Order of Police, 501 So.2d 1294, 1297 (Fla. 4th DCA 1986). Although I, like the majority, do not condone appellee’s actions in this case, I recognize that it was PERC’s duty to not only consider the officers’ collective bargaining rights when fashioning a remedy, but also the consequences of its ordered remedy on the Florida Fish and Wildlife Conservation Commission’s (“FFWCC”) functioning. Section 447.503(6)(a), Florida Statutes (2000), provides:

If, upon consideration of the record in the case, the commission finds that an unfair labor practice has been committed, it shall issue and cause to be served an order requiring the appropriate party or parties to cease and desist from the unfair labor practice and take such positive action, including reinstatement of employees with or without back pay, as will best implement the general policies expressed in this part.

(emphasis added). Section 447.201, Florida Statutes (2000), provides that it is the public policy of the state to “promote harmonious and cooperative relationships between government and its employees” and “to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.” (emphasis added).

Following the merger of the former Game and Fresh Water Fish Commission (“GFWFC”) and the former Florida Marine Patrol (“FMP”) in July 1999 and the transfer of the two agencies’ responsibilities into the newly-created FFWCC, FFWCC formed the marine enforcement bureau and the inland enforcement bureau. The former GFWFC officers and the former FMP officers continued to work primarily in their area of specialty, either land or water enforcement. While these bureaus were intact, the officers also continued to work their previous schedules. The former GFWFC officers had previously worked a “best eight out of twenty-four hours” schedule. In other words, each officer chose which eight hours in a day to work based upon when he or she believed certain wildlife violations might be occurring. As to the marine patrol officers of the former FMP, each marine patrol chose the type of schedule that it operated upon. For instance, some districts would rotate schedules every twenty-eight days, while the officers in Dade and Broward Counties employed a seniority based schedule. According to PERC, prior to May 11, 2001, the day in which appellee implemented its new work schedule, there were thirteen different schedules being worked throughout the newly-created agency.

During the period between the merger of the two former agencies and appellee’s implementation of the new schedule, FFWCC evaluated its services and its effectiveness. For instance, upon the agency’s inquiry into its ability to respond to citizens’ complaints, which, according to its bureau chief, Michael Paul Wiwi, is the agency’s primary objective, FFWCC determined that on average, there was no officer available to respond to a citizen’s complaint seventeen percent of the time, with a high of thirty-four percent in some areas. As a result of its evaluation, FFWCC decided to merge the two former groups of officers into one. Also, during this period, FFWCC promoted officers throughout the agency and graduated its first class of officers, who had no previous work schedule.

On January 1, 2001, FFWCC’s reorganization plan went into effect. In reorganizing the agency, FFWCC established the east and west bureaus. However, according to PERC, the majority of the officers were not placed on the same squads under common supervision and with common duties until May 11, 2001, when the new schedule was implemented. This new schedule employs Alpha-Bravo-Charlie shifts with twelve-hour work periods. The Alpha shift is from 6:00 a.m. to 6:00 p.m., the Bravo shift is from 3:00 a.m. to 3:00 p.m., while the Charlie shift is a combination of both within the same week. Both the work periods and days off rotate every twenty-eight days for the lieutenants and the officers.

As the majority explains, appellant filed an unfair labor practice charge with PERC due to the agency’s implementation of the new schedule. However, appellant also contended that appellee had engaged in an unfair labor practice in implementing the new work assignments whereby the officers were responsible not only for their previous area of specialty, either land or water enforcement, but also for the other area as well. In the hearing officer’s Recommended Order, she found that it was the legislative intent to integrate the former GFWFC and FMP into one agency, thereby eliminating duplication and creating a more efficient agency. According to the hearing officer, prior to the merger of these two agencies, officers in the same squad worked different hours than their supervisors. It was under this “multiple and inconsistent schedule structure” that FFWCC looked at its ability to respond to citizens’ complaints. The hearing officer found that under the new schedule, lieutenants are required to attempt to work the same shifts and take the same days off as all of his or her subordinates.

With regard to her conclusions of law, the hearing officer concluded that appel-lee’s unilateral change of its past work schedules without negotiating the change and its failure to provide appellant a reasonable opportunity to bargain over the impact of new work assignments constituted unfair labor practices. As such, the hearing officer recommended that PERC order the State to rescind the unilateral change in work schedules and return to the status quo ante until bargaining was complete. Interestingly, the hearing officer did not recommend that PERC order appellee to return to the status quo with regard to the new work assignments. The hearing officer only recommended that PERC order appellee to return to the bargaining table and negotiate over the officers’ new work assignments.

In appellant’s exceptions to the Recommended Order, it averred that the hearing officer should have gone further and required rescission of the work assignments as well. Appellant noted that the hearing officer may have recommended a status quo remedy only as to the work schedule because “the work assignments were so closely intertwined with the changed job schedules that a rescission of the change in work schedules necessarily entailed elimination of the change in job assignments.” Appellant conceded that the former GFWFC officers could not perform the duties previously performed by the former FMP officers unless both were assigned to the same work schedules.

While the majority correctly explains that PERC accepted the hearing officer’s conclusion of law that appellee committed an unfair labor practice in unilaterally changing the officers’ work schedules without first negotiating such, PERC disagreed with the hearing officer’s conclusion that appellee had committed such a practice with regard to its change in work assignments. Similar to appellant’s arguments in its exceptions, PERC recognized that the issues of work schedules and work assignments “are intertwined and difficult, if not impossible, to separate.”

In its Final Order, PERC set forth, “[hjaving found an unfair labor practice regarding the State’s implementation of the new work schedule, we would normally return the parties to the status quo ante.” While not condoning appellee’s violation of its statutory bargaining obligation, PERC recognized the disruptive effect a return to the status quo would produce in this case. According to PERC, requiring FFWCC to reinstate the thirteen prior work schedules would serve to dismantle the integrated schedules of supervisors and their subordinate officers and of officers within the same squads and would serve to increase the time for responding to citizens’ complaints. PERC further concluded that such results would be contrary to the legislative intent in proposing the constitutional amendment to merge the former GFWFC and the former FMP, which Floridians voted to approve. As such, PERC ordered appellee, upon appellant’s request, to return to the bargaining table and negotiate in good faith the officers’ schedules.

In reversing and remanding this case, the majority has, in effect, substituted what it believes to be the proper remedy for PERC’s chosen remedy merely because it believes that appellee ignored the officers’ right to bargain collectively. As the majority explains, “[t]he detrimental effect caused by unlawful action cannot be used as a shield to avoid imposition of the appropriate remedy.” (emphasis added). However, although the majority may disagree with PERC’s chosen remedy in the instant case, PERC’s decision is entitled to great deference by this Court due to its enlightened experience in such matters. See Town of Pembroke Park, 501 So.2d at 1297.

PERC, obviously realizing its statutorily mandated duties of implementing a positive action that best implements chapter 447’s general policies and taking into consideration the public policy of promoting the orderly and uninterrupted operations of government, decided that restoration of the status quo as to the officers’ work schedules was not warranted. To order the restoration of the status quo with regard to the work schedules would, in effect, force the agency to return to the status quo as to the employees’ work assignments as well. In other words, the agency would be forced to dismantle its integrated squads of officers, who now work under common supervision and with common duties, and revert back to its pri- or work structure where officers primarily worked in their area of expertise, either water or land enforcement. As such, I agree with PERC that a return to the status quo was not an appropriate remedy based upon the facts of this case.

Furthermore, although PERC’s traditional remedy in rectifying unfair labor practices in the work scheduling context has been to order the restoration of the status quo, there is no indication that thirteen different work schedules were involved in PERC’s previous decisions or that a return to those thirteen different work schedules would have an adverse effect on the employees’ new work assignments, as is the case here. See Int’l Brotherhood of Elec. Workers, Local Union 2358 v. Jacksonville Elec. Auth., 14 F.P.E.R. ¶ 19196 (1988) (ordering the Authority to restore a twelve-hour work shift); Laborers’ Int’l Union of North Am., Local Union No. 1240 v. Desoto County Board of County Comm’rs, 7 F.P.E.R. ¶ 12212 (1981) (ordering the Board to return the employees to their previous ten-hour day, four days a week).

In addition, although PERC has traditionally ordered the status quo in cases involving unilateral changes in employees’ work schedules, PERC is not bound to its traditional remedy in each and every ease that comes before it. Pursuant to section 120.68(7)(e)3., Florida Statutes (2000), a court must remand a case to the agency for further proceedings if the agency’s discretion was inconsistent with a prior agency practice if the agency does not explain the deviation. However, a court “shall not substitute its judgment for that of the agency on an issue of discretion.” § 120.68(7)(e), Fla. Stat. (2000). See also Thomas v. Dep’t of Juvenile Justice, 730 So.2d 809, 809 (Fla. 3d DCA 1999) (holding that the court could not substitute its judgment for that of the agency on an issue of discretion); Fraser v. Lewis, 360 So.2d 1116, 1118 (Fla. 1st DCA 1978) (noting that the court was forbidden to substitute its judgment for that of the agency on an issue of discretion). Here, as previously set forth, PERC did explain its reasoning for deviating from its prior practice of ordering the status quo remedy. I find PERC’s reasoning sufficient for purposes of satisfying section 120.68(7)(e)3., and, therefore, unlike the majority, decline to substitute my judgment for that of PERC’s.

Moreover, while in no way condoning appellee’s actions, PERC recognized the disruptive effect that a return to the status quo would produce in this case. In choosing its remedy, PERC had to be mindful of the officers’ collective bargaining rights as well as assuring the “orderly and uninterrupted operations and functions of government.” See § 447.201, Fla. Stat. (2000). There is no question that ordering a return to the status quo with regard to the officers’ work schedules will have an adverse effect on FFWCC’s functions and operations, which will, in turn, be detrimental to the public interest. Because the majority recognizes that a return to the status quo may have such a detrimental effect, it has concluded that the parties shall have sixty days from the issuance of this Court’s mandate to negotiate a settlement. If a settlement is not reached, the appellee will be ordered to return the officers to their prior work schedules, notwithstanding the fact that the officers are now working on the same squads with their supervisors and the fact that new officers have graduated and others have been promoted. While the majority seems hopeful that a settlement will be reached within sixty days, there is no guarantee of such. Thus, FFWCC could still be placed in the extremely difficult position of having to dismantle its integrated squads of officers and revert back to its prior inefficient work structure, which would not only consume a great deal of the agency’s time, but also a significant amount of its resources.

In conclusion, I, like the majority, do not condone appellee’s actions in this case. However, I disagree with the majority’s reversal and remand because the factual scenario in this case is dramatically different from PERC’s past decisions. In declining to order the restoration of the status quo after concluding that appellee committed an unfair labor practice, PERC was cognizant of these differences and realized the potential detrimental consequences of such a decision. As such, PERC’s decision was not arbitrary, fanciful, or unreasonable. Therefore, I cannot agree with the majority that PERC abused its discretion. Accordingly, I would affirm.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PALM HILL VILLAS HOMEOWNERS ASSOCIATION, INC., Appellant, v. Yvonne C. ROSE-GREEN, Dahlia C. Pryce, Rohan McLean and Bank of America, N.A., Appellees.
    No. 4D03-958.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.

      David A. Core of St. John, Core, Fiore & Lemme, P.A, West Palm Beach, for appellant.
    No appearance for appellees.
   ORDER ON JURISDICTION

PER CURIAM.

Appellant association filed this suit against the appellee homeowner alleging nonpayment of assessments and seeking to foreclose a hen for the unpaid assessments. The homeowner filed a counterclaim alleging slander of title based on the hen and a motion for summary judgment on the association’s claim. The trial court granted the motion for summary judgment on the association’s claim against the homeowner; however, it is not a final order in that it merely grants the motion and does not contain words of finality. Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA 1991). We therefore rehnquish jurisdiction for the association to obtain a final summary judgment against the association.

The counterclaim for slander of title is still pending. Because the counterclaim for slander of title is permissive, not compulsory, Callaway Land & Cattle Co. v. Banyon Lakes C. Corp., 831 So.2d 204 (Fla. 4th DCA 2002), a final order on the main claim, while the counterclaim is still pending, will be appealable as a partial final judgment under rule 9.110(k). Philip J. Padovano, Florida Appellate Practice, § 21.4 (2002); City of Haines City v. Allen, 509 So.2d 982, 983 (Fla. 2d DCA 1987)(“If the counterclaim is compulsory, the disposition of it or the main claim cannot be appealed until both have been disposed of.”); S.L.T. Warehouse v. Webb, 304 So.2d 97 (Fla.1974).

Jurisdiction rehnquished for thirty days.

STONE, KLEIN and SHAHOOD, JJ„ concur.


text:
    Harold Cleveland GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1096.
    District Court of Appeal of Florida, Second District.
    May 28, 2003.
   PER CURIAM.

Affirmed. See Bernal v. State, 768 So.2d 467 (Fla. 2d DCA 2000).

SALCINES, STRINGER, and COVINGTON, JJ., concur.


text:
    Juan VELASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2637.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Gammon v. State, 778 So.2d 390 (Fla. 2d DCA 2001).

ALTENBERND, C.J., and SILBERMAN and COVINGTON, JJ., concur.


text:
    David E. TEBBS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Dyco Paints, Inc., Appellees.
    No. 2D02-885.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
    David E. Tebbs, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
    No appearance for Appellee Dyco Paints, Inc.
   PER CURIAM.

Affirmed. See Horst v. Unemployment Appeals Comm’n, 725 So.2d 1266 (Fla. 2d DCA 1999).

ALTENBERND, C.J., and SILBERMAN and COVINGTON, JJ., concur


text:
    Larry FERRARA, Appellant, v. Dick FARREL, Appellee.
    No. 4D02-2638.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Barry M. Silver, Boca Raton, for appellant.
    Carl A. Cascio of Carl A. Cascio, P.A., Boynton Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

POLEN, C.J., WARNER and GROSS, JJ., concur.


text:
    Trimidus MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2996.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s sentence on count I where he was sentenced as both an habitual felony offender and a prison re-leasee reoffender. We remand for resen-tencing in accordance with Grant v. State, 770 So.2d 655 (Fla.2000).

POLEN, C.J., WARNER and GROSS, JJ., concur.


text:
    CITY OF HOLLYWOOD, Florida, Petitioner, v. DIAMOND ON THE BEACH, INC., Diamond Parking, Inc., Katarina Dijak, Steve Dijak, Richard H. Witt and Lizabeth Kayne, Respondents.
    Nos. 4D03-793, 4D03-794, 4D03-795, 4D03-796.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Daniel L. Abbott, Fort Lauderdale and Michael S. Popok of Weiss Serota Helfman Pastoriza & Guedes, P.A., Fort Lauder-dale, for petitioner.
    Martin B. Woods of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, for respondents Diamond on the Beach, Inc., and Diamond Parking, Inc.
    Pamela S. Terranova of Law Offices of Pamela S. Terranova, Fort Lauderdale, for respondent Richard H. Witt.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, West Palm Beach, for respondent Honorable Robert Lance Andrews.
   PER CURIAM.

The City of Hollywood has filed four petitions for writ of prohibition in connection with four separate cases in which it filed motions seeking the disqualification of the trial judge, who denied them all as “procedurally insufficient,” concluding that the city was impermissibly seeking “blanket disqualification.” The judge’s order cited Ginsberg v. Holt, 86 So.2d 650, 651 (Fla.1956); Livingston v. State, 441 So.2d 1083, 1085 (Fla.1983); and Cascone v. Foster, 774 So.2d 773, 774 (Fla. 1st DCA 2000). However, the city did as those opinions instruct, seeking disqualification by filing a separate motion in each case in question.

We therefore grant the petition, but only to the extent of returning the four cases to the trial court to consider each motion separately as it relates to the case in which it was filed, and to determine whether that motion is “legally sufficient” within the meaning of rule 2.160(f), Florida Rules of Judicial Administration. It would be inappropriate for this court to make that determination in the first instance. See Roberts v. State, 840 So.2d 962 (Fla.2002); Kelly v. Scussel, 167 So.2d 870 (Fla.1964); Novartis Pharmaceuticals Corp. v. Carnato, 840 So.2d 410 (Fla. 4th DCA 2003).

POLEN, C.J., GROSS and MAY, JJ., concur.


author: STRINGER, Judge.

text:
    Amy H. LASHKAJANI, Appellant, v. Hadi B. LASHKAJANI, Appellee.
    No. 2D02-3427.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.

      Raymond J. Rafool, II, of Rafool & Ra-fool, P.A., Winter Haven, for Appellant.
    Robert L. Trohn and Callie N. Sandman of Gray Harris Robinson Lake Trohn, Lakeland, for Appellee.
   STRINGER, Judge.

Amy H. Lashkajani, the Former Wife, seeks review of the trial court’s order awarding Hadi B. Lashkajani, the Former Husband, attorney’s fees after the dissolution of marriage. The Former Wife argues that the trial court erred in awarding the Former Husband attorney’s fees incurred during the marriage under the parties’ prenuptial agreement. Because the obligation to pay spousal support during the term of the marriage cannot be contracted away, we reverse.

On January 21, 2000, the Former Wife filed a petition for dissolution of marriage, temporary and permanent injunction, and complaint for money damages against the Former Husband. The Former Husband filed a response and counterpetition for dissolution of marriage seeking enforcement of the parties’ prenuptial agreement. The court subsequently entered an order finding the prenuptial agreement valid and enforceable. Thereafter, the court entered a final judgment of dissolution of marriage, again enforcing the prenuptial agreement.

The trial court entered the order on review pursuant to (1) the Former Husband’s second amended motion seeking reimbursement and recovery of attorney’s fees and costs pursuant to paragraphs eight and sixteen of the prenuptial agreement and other applicable law and (2) the Former Wife’s motion for attorney’s fees, costs, and suit money pursuant to section 61.16, Florida Statutes (2002). The fees and costs sought by the parties were those incurred during the parties’ marriage.

The trial court granted both parties prejudgment attorney’s fees and costs incurred during the challenge to the prenuptial agreement. The court also denied the Former Husband’s request for reimbursement of temporary attorney’s fees under paragraph eight of the prenuptial agreement and awarded the Former Wife attorney’s fees otherwise incurred in the dissolution action to that point. The court based the Former Wife’s attorney’s fee award on section 61.16 and made the following findings: (1) the Former Wife was in need of attorney’s fees, costs, and suit money; (2) the Former Husband’s net worth was at least $12,000,000, and the Former Husband was twelve times as wealthy as the Former Wife; and (3) the Former Wife’s challenge to the prenuptial agreement was not without merit. The court based the Former Husband’s attorney’s fee award on paragraph sixteen of the prenuptial agreement, which provided for prevailing party attorney’s fees in actions seeking to enforce or prevent the breach of the prenuptial agreement. This appeal concerns only the Former Wife’s challenge to the award of attorney’s fees to the Former Husband.

It is well settled in Florida that a spouse’s obligation to provide spousal support during the marriage, including the responsibility for attorney’s fees and costs, may not be contracted away by a prenuptial agreement. Belcher v. Belcher, 271 So.2d 7, 13 (Fla.1972); Fernandez v. Fernandez, 710 So.2d 223, 225 (Fla. 2d DCA 1998); Blanton v. Blanton, 654 So.2d 1240, 1240 (Fla. 2d DCA 1995); Lawhon v. Lawhon, 583 So.2d 776, 777 (Fla. 2d DCA 1991). Thus, a provision of a prenuptial agreement purporting to waive the spouse’s obligation to pay attorney’s fees and costs incurred during the marriage is unenforceable. Id. In determining entitlement to prejudgment attorney’s fees, the court may consider the prenuptial agreement, but only in conjunction with the factors articulated in section 61.16 to the extent that the agreement bears on those factors. Belcher, 271 So.2d at 10; Appelbaum v. Appelbaum, 620 So.2d 1293, 1295 (Fla. 4th DCA 1993); Mulhern v. Mulhern, 446 So.2d 1124, 1125 (Fla. 4th DCA 1984).

The Former Husband claimed entitlement to attorney’s fees under paragraph sixteen of the prenuptial agreement, which provided for prevailing party attorney’s fees in actions seeking to enforce or prevent the breach of the prenuptial agreement. Because this provision purported to waive the Former Husband’s obligation to pay attorney’s fees and costs incurred during the marriage, it is unenforceable. Accordingly, the trial court erred in awarding the Former Husband prejudgment attorney’s fees under the prenuptial agreement.

The Former Husband concedes that he is not entitled to attorney’s fees under the prenuptial agreement, but argues that the trial court properly awarded attorney’s fees by considering the prenuptial agreement in conjunction with the factors articulated in section 61.16. This argument is refuted by the plain language of the order indicating that “[u]nder the prenuptial agreement, the former husband is entitled to reasonable attorney fees to successfully enforce the agreement.” The order also states, “This court knows of no reason why the former wife’s contractual obligation to pay the prevailing party’s attorney’s fees in the prenuptial enforcement [sic] should be set aside. Accordingly, the former wife owes to the former husband the reasonable attorney’s fees and costs involved in his defense of the parties’ prenuptial agreement.” The order does not reference section 61.16 in connection to the Former Husband’s award of attorney’s fees.

Furthermore, the trial court’s finding that the Former Wife is entitled to attorney’s fees under section 61.16 necessarily precludes an award to the Former Husband based on the same factors. The trial court concluded that the Former Wife had a need for attorney’s fees and the Former Husband, who was twelve times as wealthy as the Former Wife, had the ability to pay. The court also concluded that the Former Wife’s challenge to the prenuptial agreement was not without merit.

The Former Husband’s alternative argument on appeal is that the supreme court has effectively overruled Belcher and its progeny in Casto v. Casto, 508 So.2d 330 (Fla.1987). However, this court has expressly rejected that argument in Fernandez, 710 So.2d at 225. In Fernandez, we also recognized “that perceptions have changed since Belcher was decided that may require a review of existing legal principles” and certified a question as one of great public importance. Id. Because it does not appear that the parties in Fernandez pursued review in the supreme court, we certify the following question as one of great public importance:

MAY THE PARTIES, BY EXPRESS PROVISION IN A PRENUPTIAL AGREEMENT, CONTRACT AWAY A FUTURE OBLIGATION TO PAY ATTORNEY’S FEES AND COSTS DURING THE TERM OF THE MARRIAGE BY PROVIDING FOR PREVAILING PARTY ATTORNEY’S FEES IN ACTIONS SEEKING TO ENFORCE OR PREVENT THE BREACH OF THE PRENUPTIAL AGREEMENT?

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.

      . Section 61.16, Florida Statutes (2002), provides that the primary consideration in awarding attorney's fees in dissolution proceedings is the parties’ need and ability to pay. The court may also consider the history, scope, and duration of the litigation; the merits of the parties' arguments; whether the litigation is brought or maintained for the primary purpose of harassing the opposing party; and the course and existence of any prior or pending litigation. Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

      . Both parties filed notices appealing the order awarding attorney’s fees, but the Former Husband has voluntarily dismissed his appeal and is now only defending the issue raised by the Former Wife.


author: CANADY, Judge.

text:
    William ELY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2118.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

William Ely appeals an order that added restitution as a condition of his probation. Because the trial court was without authority to award restitution after entering a final order directing that no restitution should be paid, we reverse.

Ely entered into a plea agreement that resulted in a sentence of probation and a withheld adjudication of guilt. As part of this plea bargain, Ely agreed to pay restitution to his victim in an amount to be determined at a proceeding subsequent to the change of plea hearing. At this subsequent proceeding, the prosecutor stated, ‘We have tried to contact the victim and got no response, so no restitution.” The trial court responded: “Okay. Confirm no restitution.” The trial court entered an order reflecting that no restitution would be paid.

Sometime later, the State discovered that the victim’s timely submitted request for restitution had been misdirected and not appropriately forwarded to the prosecutor in Ely’s case. The State sought a modification of Ely’s probation to include a restitution requirement. Determining that the sixty-day modification period provided for by Florida Rule of Criminal Procedure 3.800(e) had not yet lapsed, the trial court modified Ely’s probation to include an amount of restitution. In so doing, the trial court erred.

In this case, the trial court properly reserved jurisdiction over Ely’s sentencing to determine the amount of restitution to be paid. See State v. Sanderson, 625 So.2d 471 (Fla.1993). However, when the trial court entered an order awarding no restitution, that order was final, even though it was based upon erroneous information. As a consequence, double jeopardy attached and the trial court was without authority to increase Ely’s sentence, even within the sixty-day modification period. See Strickland v. State, 681 So.2d 929, 930 (Fla. 3d DCA 1996) (noting that ‘[i]t is well established that where a lawful sentence has been imposed and the sentencing hearing concluded, it is a violation of the defendant’s constitutional protection against double jeopardy to increase the sentence at a later time” and holding that order increasing amount of previously ordered restitution violated prohibition against double jeopardy); see also Troupe v. Rowe, 283 So.2d 857, 860 (Fla.1973) (holding that where sentence was imposed and “matter was concluded for all purposes” sentence imposed “could not thereafter be increased ... in violation of defendant’s constitutional guaranty not to be twice placed in jeopardy”).

We reverse and remand with instructions that the order awarding restitution be stricken.

Reversed and remanded with instructions.

CASANUEVA and SILBERMAN, JJ„ concur.


author: SILBERMAN, Judge.

text:
    Jorge HANANIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1025.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.
    Tony C. Dodds, Lakeland, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Jorge Hanania appeals the revocation of his probation and argues that the violations were not willful and substantial. We agree and reverse.

In 1992 Hanania was convicted of conspiracy to traffic in cocaine. He was sentenced to fifteen years’ imprisonment followed by ten years’ probation. His probation order contained the following special conditions pertinent to this appeal:

(2) You Twill pay the State of Florida $40 per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(6) You will not use intoxicants to excess. You will not visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed, or used.
(12) You shall not (consume any alcohol/illegal drugs) (be in possession of alcohol or illegal drugs) (associate with persons who use alcohol or illegal drugs) (frequent places where alcohol is the main source of business or illegal drugs are used).
(21) You are to pay (Court Costs) (Fine & Court Costs) for case(s) pled to of $275, to the Clerk of the Court, Criminal Division, by w/in 2 yrs....

In December 2000 an affidavit was filed alleging that Hanania had violated conditions 2, 6, 12, and 21 of the probation order. The affidavit asserted that Hana-nia had been instructed to not visit places where drugs are unlawfully sold, dispensed, or used, to not associate with persons who use illegal drugs, and to not frequent places where illegal drugs are used. The affidavit alleged that Hanania violated his probation by being a passenger in a car that was found to contain drugs and related paraphernalia, and that he was in arrears in the payment of the monetary conditions of the probation order.

At an evidentiary hearing, a Lakeland police officer testified that in November 2001, he came into contact with Hanania during a traffic stop. Hanania was a passenger in the car. The officer checked identification and learned that Hanania was on probation for a drug offense. The officer stated that he suspected there might be narcotics activity and he called for a narcotics detection dog. After the dog “alerted” on the passenger’s seat of the car, the officer searched the car. He and another officer found the following: a yellow manila envelope containing three baggies of suspected methamphetamine located between the passenger’s seat and the center console transmission column; an electronic scale located in a recess under the stereo in the dashboard; several empty, small, plastic baggies located in a cloth bag in the center console; and an envelope addressed to the driver and owner of the vehicle and containing marijuana located under the passenger seat. The officer acknowledged that he was unable to testify that Hanania knew of the presence of the narcotics or even what Hanania might have been able to see while in the car. The officer was unable to get fingerprints from the items.

In his defense, Hanania testified that the driver of the car was an acquaintance with whom he rarely socialized. Hanania had been at a store when the car pulled up and the driver entered the store. Hanania asked for a ride home, and approximately five blocks from the store, the police stopped the car. Hanania testified that he knew nothing about the drugs and the scale in the car, and had he known of the narcotics he would not have stayed in the car. He also testified that he was unable to work and pay his fines and costs because of recent knee surgery. At the conclusion of the testimony, the trial court found that Hanania had violated conditions 2, 6,12, and 21.

For a trial court to revoke probation based on a violation of a condition of probation, the State must establish by a preponderance of the evidence that the violation was willful and substantial. Stevens v. State, 823 So.2d 319, 321 (Fla. 2d DCA 2002). The standard of review that applies to an order revoking probation is abuse of discretion. Id.

The issue of whether a violation was willful may be proven by circumstantial evidence. See Walton v. State, 780 So.2d 1043, 1044 (Fla. 4th DCA 2001). The State suggests that the evidence of Hanania’s proximity to the contraband was sufficient to establish the violation of conditions 6 and 12. We disagree. Nothing in the record demonstrated that Hanania knew of the presence of the drugs or the scale, or that he was in possession of or had the ability to exercise control over those items. See id.; C.M. v. State, 818 So.2d 554, 555 (Fla. 2d DCA 2002). Additionally, there was no evidence that Hana-nia knew that the car was a place where drugs were being unlawfully sold, dispensed, or used, that Hanania knew that the driver was a person who used alcohol or illegal drugs, or that Hanania otherwise willfully and substantially violated any portion of conditions 6 or 12. Finally, there was no evidence that contradicted Hana-nia’s explanation as to why he was a passenger in the car.

As to conditions 2 and 21, in order to show a willful violation of probation, the State had to prove that Hanania had the ability to pay the costs and fines. See Knight v. State, 801 So.2d 160, 161 (Fla. 2d DCA 2001). The State failed to meet its burden, and Hanania established his inability to pay.

Therefore, we reverse the probation revocation order and remand with directions that the trial court reinstate Hanania’s probation.

Reversed and remanded.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: CASANUEVA, Judge.

text:
    Peter ALEXANDER, Petitioner, v. Robert MINTON, Respondent.
    No. 2D02-5544.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.

      Luke Lirot of Luke Charles Lirot, P.A., Tampa, for Petitioner.
    Thomas H. McGowan of Thomas H. McGowan, P.A., St. Petersburg, and Anthony S. Battaglia of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Respondent.
   CASANUEVA, Judge.

Petitioner Peter Alexander seeks a writ of certiorari to compel arbitration with Respondent Robert Minton based on a contract, the operating agreement under which they formed a company to develop a feature-length motion picture. Because the trial court’s nonfinal order denies a claim of entitlement to arbitration, we deem this a nonfinal appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), rather than a petition for certiorari. Finding merit in Mr. Alexander’s arguments, we reverse.

In February 2000, Mr. Alexander and Mr. Minton formed a company called Courage Productions, LLC, to develop, produce, market, and distribute a motion picture tentatively titled “The Profit.” Based on his experience in the motion picture industry, Mr. Alexander was generally to provide the “know-how” for the limited liability company (the LLC) and Mr. Minton was to provide the financing, although during the life of the company Mr. Alexander apparently invested substantial sums of money in the project, too. The motion picture was to be part of Mr. Minton’s continuing efforts to discredit the Church of Scientology. To the surprise of many, in April 2002, Mr. Minton announced his intention to resolve all his differences with the Church. Soon thereafter, invoking his rights under the operating agreement, he petitioned for an injunction and other equitable relief against Mr. Alexander and sought to restrain him from alienating, assigning, or hiding the assets of the company, directly or indirectly, until an accounting could be conducted and the assets of the LLC equitably divided. Section 8.2 of the agreement provides that each party has the right, upon reasonable request, “for purposes reasonably related to the interest of that [party],” to inspect and copy any of the company’s books and records, and any party may require a review and or audit.

Concluding that Mr. Minton’s new-found friendly attitude toward the Church provided an ulterior motive for the litigation, Mr. Alexander feared the motion picture would never see the light of day, or of a film projector, thereby destroying his substantial personal investment of time, effort, and money in the project. As soon as practicable after being served with suit, Mr. Alexander moved to compel arbitration, but his motion was ultimately denied. Mr. Minton advances a variety of arguments to support the circuit court’s denial of arbitration, none of which has merit.

When a court is presented with a motion to compel arbitration, three questions must be answered: Is there in existence a valid, written agreement containing an arbitration clause? Does an arbitrable issue exist? Has the right to arbitration been waived? Pulte Home Corp. v. Smith, 823 So.2d 305 (Fla. 2d DCA 2002). The LLC’s operating agreement is the contract between these parties and has a broad and clearly stated arbitration clause, which affirmatively answers the first question. Section 11.5 provides: “Any controversy or dispute arising out of or relating to this Agreement or the breach thereof, shall be settled by binding arbitration in Hillsborough County, Florida, conducted in accordance with the rules existing at the date thereof of the AFMA [American Film Marketing Association].” Neither party disputes that the contract to form and operate the LLC was validly entered into and is currently in effect.

As to whether there is an arbitra-ble issue, the operating agreement gives each party to the agreement the right to inspect the books and records of the company, but Mr. Alexander has raised numerous defenses to Mr. Minton’s unfettered access. Primarily, Mr. Alexander claims that Mr. Minton’s actions are inimical to the LLC’s best interests and to his duty and loyalty to the company required by section 608.4225, Florida Statutes (2002), because he has now aligned himself with the adversary. We conclude that an arbitrable issue exists in the unfettered access to the LLC’s records and sole asset, the motion picture itself, and therefore is “related to” the operating agreement. See § 682.02, Fla. Stat. (2002) (providing that agreement or provision to arbitrate shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy).

Mr. Minton counters that his statutory right to such access in an LLC, provided him by section 608.423, trumps the contract and, in effect, nullifies the existence of the arbitrable issue. We cannot agree. Section 608.423 merely states that no operating agreement of any LLC may “unreasonably restrict the right to information or access to records” of the LLC. The operating agreement at issue here does not unreasonably restrict such access. Moreover, Florida favors arbitration to settle disputes outside the courtroom. Healthcomp Evaluation Sens. Corp. v. O’Donnell, 817 So.2d 1095 (Fla. 2d DCA 2002). To accede to Mr. Minton’s argument would abrogate this public policy in the context of LLCs, which are wholly creatures of statute.

Finally, we hold that Mr. Alexander’s actions do not constitute a waiver of arbitration. He moved to compel arbitration at his earliest opportunity, and his other involvement in the proceedings has been defensive in nature, all the while claiming entitlement to arbitration. See Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288 (Fla. 4th DCA 2002) (holding that because the first substantive filing made by the appellants was a motion to stay invoking the contractual arbitration clause, the trial court erred in finding that the appellants waived their right to arbitration).

Accordingly, we reverse the nonfinal order and remand with directions to grant Mr. Alexander’s motion to compel arbitration and to stay all other pending matters in the circuit court until the arbitration process is complete.

VILLANTI, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Section 608.4101(2), Florida Statutes (2002), also provides this right:
      A limited liability company shall provide members and their agents and attorneys access to its records at the limited liability company's principal office or other reasonable locations specified in the operating agreement.... The right of access provides the opportunity to inspect and copy records during ordinary business hours....


author: WHATLEY, Judge.

text:
    Richard J. MANUAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-535.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.
   WHATLEY, Judge.

Richard J. Manual appeals the trial court’s order summarily denying his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2001). In 1987, Manual was convicted of sexual battery (count one), armed burglary (count two), armed robbery (count three), and grand theft second degree (count four). He was sentenced to forty years on count one, ninety-nine years on count two, thirty years on count three, and five years on count four. All counts were to run consecutively. Because there is a “reasonable probability” that Manual would have been acquitted had the DNA evidence demonstrated that the semen found on the victim did not match his DNA, we reverse and remand for further proceedings. See Huffman v. State, 837 So.2d 1147 (Fla. 2d DCA 2003); Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).

In order for a motion filed pursuant to rule 3.853 be considered facially sufficient, it must include the following information:

(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the mov-ant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.

Fla. R.Crim. P. 3.853(b)(l)-(6).

In his motion, Manual alleged that the victim was attacked on September 16, 1986. After calling the police, she was taken to a rape crisis center where she was examined. The evidence that Manual wishes to be tested is a green washcloth. The rapist made the victim wash herself with this washcloth after the attack, and it contains semen from the rapist.

The trial court denied Manual’s motion as insufficient because he did not allege that he was innocent of the crimes charged. However, in his motion, under the heading “Statement of Innocence,” Manual alleged that he was at a birthday party at the time of the crime.

The trial court also concluded that, because the victim identified Manual as her assailant, “the identity of the Defendant was not a genuinely disputed issue at trial.” The trial court’s reasoning is erroneous. Rule 3.853(c)(2) states that upon receipt of the motion, the trial court “shall review the motion and deny it if it is insufficient.” If the motion is sufficient, the State shall be ordered to respond. Rule 3.853(c)(3) states that the trial court “shall review the response and enter an order on the merits of the motion or set the motion for hearing.” The fact that a movant was identified by the victim at trial does not mean that identification is not a disputed issue. Judge Parker, in a thorough review of what constitutes a sufficient allegation that identity was a genuinely disputed issue at trial, noting the paucity of Florida case law on this issue, stated: “Cases from other states with a similar postconviction rule, however, make it clear that identity is a ‘genuinely disputed’ issue when the only significant evidence connecting the defendant to the crime is the victim’s identification of the defendant.” Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002). In Zoll-man, the trial court found Zollman’s claim was facially insufficient “because the victim identified Zollman as her assailant and because of the existence of the partial fingerprint, DNA testing of the other evidence, if it still existed, would not exonerate Zollman.” Id. at 1061. The Zollman court reversed and remanded with instructions to the trial court to order the State to respond to Zollman’s motion. It appears that the trial court here, as in Zollman, was addressing the merits of the motion without first obtaining a response from the State, rather than merely determining whether the allegations in the motion are facially sufficient.

“Cases addressing this issue have uniformly held that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant’s guilt or innocence.” Id. at 1068. Here, as in Zollman, Manual alleges that DNA testing of the evidence in this case would show whether he was the perpetrator of the sexual battery. It appears from the record that the only other evidence of Manual’s guilt was a serology test on the green washcloth. This test indicated that the sample on the washcloth could have come from Manual or 37% of the general population. There is, therefore, a reasonable probability that Manual would have been acquitted had the DNA evidence demonstrated that the semen found on the washcloth was inconsistent with his DNA. See Huffman, 837 So.2d at 1149. Therefore, we reverse and remand for further proceedings consistent with this opinion and the requirements of rule 3.853.

Reversed and remanded.

SALCINES and DAVIS, JJ., Concur.


author: KELLY, Judge.

text:
    Allen FONTEYNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5367.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.
   KELLY, Judge.

Allen Fonteyne challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Fonteyne claims that his sentence of one year of probation for reckless driving is illegal because it exceeds the statutory maximum for that offense. We agree and reverse.

Section 316.192(2)(a), Florida Statutes, provides that any person convicted of reckless driving shall be punished upon first conviction by imprisonment for a period of not more than ninety days. This court has held that a term of probation is not to exceed the statutory maximum for incarceration. Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). Therefore, the probationary term could not have exceeded ninety days. Nor could Fonteyne have agreed to an illegal sentence, one that exceeds the statutory maximum term. Cheney v. State, 640 So.2d 103 (Fla. 4th DCA 1994). Accordingly, we vacate the sentence and remand for resentencing.

Vacated and remanded for resentencing.

SALCINES and DAVIS, JJ„ Concur.


text:
    Michael WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3582.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING OR CERTIFICATION

PER CURIAM.

In his motion for rehearing or certification, appellant contends that we “overlooked the fact that the controlling case, Giorgetti v. State, 821 So.2d 417 (Fla. 4th DCA 2002), is presently pending on review before the Florida Supreme Court.” We find that Giorgetti is distinguishable from the situation presented here.

Appellant was convicted after a non-jury trial of failing to report a change of address as a sexual offender within forty-eight hours of a residence change, contrary to sections 943.0435(4) and 944.607(9), Florida Statutes (2001).

At the trial, the court was presented with Quinn v. State, 751 So.2d 627 (Fla. 4th DCA 1999). The judge noted that Quinn held that section 943.0435 was not facially unconstitutional because it failed to contain a scienter or guilty knowledge requirement. Id. at 628. Quinn did not address the “entirely separate issue as to whether the court should nevertheless read such a requirement into the statute.” Giorgetti, 821 So.2d at 419.

Giorgetti was a case where the trial court instructed the jury that the state was not required to prove scienter or guilty knowledge to obtain a conviction for a section 948.0435 violation. There is no indication that the trial court decided this case based on an erroneous determination that no “broadly applicable guilty knowledge requirement” was applicable. Id. at 421. In fact, there was evidence that appellant had notice of the reporting requirements. Appellant was convicted of not reporting a change of address that occurred in March 1999. Records produced at trial demonstrated that he had registered with the Department of Motor Vehicles as a sexual offender on July 14, 1998, evidence that appellant was aware of the registration requirement.

The motion for rehearing or certification is denied.

POLEN, C.J., KLEIN and GROSS, JJ., concur.


text:
    Ricardo ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5611.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Ricardo Ellis, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Ricardo Ellis challenges his convictions and sentences for six counts of aggravated child abuse and three counts of simple child abuse. While we affirm the convictions and sentences, we remand for correction of the written judgment.

Ellis was originally convicted “as charged” of nine counts of aggravated child abuse pursuant to section 827.03, Florida Statutes (1993). The information did not reference any specific subsection of section 827.03 in any of the counts. Despite this, Ellis’s judgment reflected an “offense statute number” of section 827.03(l)(a), and these offenses were scored as level eight offenses pursuant to section 921.0012, Florida Statutes (Supp. 1994).

In his direct appeal, Ellis raised a number of issues relating to his convictions and sentences. This court reversed the convictions as to three counts (information counts 8, 9, and 10 which were judgment counts 5, 6, and 7) and remanded for entry of convictions for simple child abuse “as proscribed by section 827.04(1), Florida Statutes (1995).” Ellis v. State, 714 So.2d 1160, 1162 (Fla. 2d DCA 1998). On remand, the trial court resentenced Ellis as directed but did not correct the written judgment to reflect the correct offense statute numbers. Therefore, this court again reversed and remanded for correction of the written judgment as to these counts to reflect the proper offense statute number of section 827.04(1). Ellis v. State, 744 So.2d 583 (Fla. 2d DCA 1999).

After resentencing, Ellis filed a motion for postconviction relief pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850, raising numerous issues. In one issue, Ellis argued that the written judgment improperly showed the offense statute number as section 827.03(l)(a) on the six counts of aggravated child abuse (information counts 4, 5, 6, 11, 12, and 13 which were judgment counts 1, 2, 3, 8, 9 and 10, respectively). According to Ellis, the proper offense statute number should have been simply section 827.03 because the jury was never asked to specify which subsection of section 827.03 Ellis had violated. In addition, Ellis argued that because section 827.03 was not listed in the offense severity ranking chart, his convictions under this section should have been scored as level four offenses rather than level eight offenses. See § 921.0013, Fla. Stat. (1993) (stating that any second-degree felony offense not listed in section 921.0012 shall be scored as a level four offense). The trial court denied relief on this ground.

On appeal from the denial of postconviction relief, this court noted that Ellis had been convicted of “multiple counts of aggravated child abuse under section 827.03, Florida Statutes (1993).” Ellis v. State, 795 So.2d 1015, 1016 (Fla. 2d DCA 2001). The court noted that counts “ten, eleven, and twelve” were scored as level eight offenses when they should have been scored as level four offenses. Id. In reversing and remanding for resentencing on this issue, this court relied on Dorsey v. State, 722 So.2d 288 (Fla. 5th DCA 1998). In Dorsey, the defendant argued that because the verdict form had not specified that he had been convicted under section 827.03(l)(a), his convictions should have been scored as level four offenses rather than level eight offenses. Id. at 289. The State conceded error, and the case was remanded for re-sentencing under a corrected scoresheet. Id. By citing the Dorsey case in support of this court’s reversal of Ellis’s convictions, this court essentially held that Ellis’s offense statute number for his aggravated child abuse convictions should have been section 827.03 rather than section 827.03(l)(a) and specifically held that the convictions should be scored as level four offenses rather than level eight offenses.

On remand from this court’s decision in the postconviction relief case, the trial court resentenced Ellis under a scoresheet that properly scored his six convictions under section 827.03 as level four offenses and his three convictions under section 827.04(1) as level seven offenses. However, the written judgment still shows section 827.03(l)(a) as the offense statute number for the six aggravated child abuse convictions. Moreover, inexplicably, the written judgment was changed to show section 827.03 as the offense statute number on the three simple child abuse convictions rather than the proper offense statute number of section 827.04(1). While the record shows that Ellis was properly sentenced using a corrected scoresheet, these errors in the written judgment are not harmless because the Department of Corrections, which relies solely on the written judgment in handling prisoner matters, is classifying Ellis based on his convictions for level eight offenses.

Because Ellis was properly sentenced, we do not reverse and remand for resen-tencing. However, because the written judgment does not reflect the correct offense statute numbers, we remand for correction of the written judgment to conform to this and all prior opinions of this court. On remand, judgment counts 1, 2, 3, 8, 9, and 10 must be corrected to delete the “1A” reference in the offense statute number. These counts must reflect an offense statute number of simply section 827.03. Judgment counts 5, 6, and 7 must be corrected to reflect an offense statute number of section 827.04(1). Ellis need not be present when these changes are made.

Convictions and sentences affirmed; remanded for correction of the written judgment.

CASANUEVA and STRINGER, JJ., concur.


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    NOR-TECH POWERBOATS, INC., a Florida corporation, and Borre Andersen, Appellants, v. H.P.B.C., INCORPORATED, a Florida corporation, Trond Schou, and Nils Johnsen, Appellees.
    No. 2D02-1461.
    District Court of Appeal of Florida, Second District.
    July 2, 2003.
    Rehearing Denied Oct. 2, 2003.

      Stephen M. Maher, Fort Myers, for Appellants.
    Michael C. Tice, Fort Myers, for Appel-lees.
   SILBERMAN, Judge.

Nor-Tech Powerboats, Inc., and Borre Andersen (jointly referred to as the “Dealer”), appeal from the order granting a new trial to H.P.B.C., Inc., Trond Schou, and Nils Johnsen (jointly referred to as the “Manufacturer”). The Dealer argues that the trial court erred in finding that it pursued a new theory of recovery at trial that unfairly prejudiced the Manufacturer. We agree and reverse.

The Dealer sued the Manufacturer for various claims, including breach of an oral agreement. The complaint alleged that the oral agreement, which authorized the Dealer to market and sell a specified line of powerboats built by the Manufacturer, involved the same terms and conditions that were contained in an earlier written dealer agreement between Andersen and the original boatbuilder, Nordic Export, Inc. (the Nordic agreement).

At trial, Andersen testified that the Nordic agreement was terminated and replaced by the oral agreement between the Dealer and the Manufacturer. Prior to the cross-examination of Andersen, defense counsel indicated that he would conduct the cross-examination without prejudice to his requesting a motion to strike, or another motion, concerning certain of Andersen’s testimony as to the “dealer agreement.” Defense counsel stated that he finally understood the Dealer’s case: it was either for “enforcement of an express agreement, if it exists, or reasonable value of services.” He stated that he anticipated the Dealer would move to amend the pleadings to conform to the evidence. The trial court responded that counsel’s concern would be addressed “when it comes up.”

On cross-examination, Andersen again stated that the parties were operating under an oral agreement and that the “claim was based upon the verbal agreement that we had, which followed the — along the lines of the written dealer agreement with Nordic Export, Inc.” He acknowledged that the Nordic agreement may not have been properly terminated in writing, but he reiterated that the relationship between the Dealer and the Manufacturer was pursuant to the oral agreement, which included the same terms as the Nordic agreement. Another witness acknowledged that the Nordic agreement had been effectively terminated.

At the conclusion of the Dealer’s evidence, the Manufacturer moved for a directed verdict and argued that the Dealer’s claim was for breach of an oral agreement, that the Dealer had not established the existence of an oral agreement, and that “any claim for a written contract or the dealer agreement is outside the pleadings.” In response, the Dealer argued that it had proved the Nordic agreement had been terminated and a verbal agreement was entered into under the same terms that had been in the Nordic agreement. The trial court reserved ruling on the motion.

During the Manufacturer’s case, Schou, president of H.P.B.C., testified that after Nordic Export decided to get out of the boat business, he, Johnsen, and Andersen reached an agreement for H.P.B.C. to manufacture the boats and for Andersen to buy the boats as an independent dealer in order to resell them. He stated that the Nordic agreement had been terminated. He also confirmed that the new agreement was verbal, but he disputed the terms of the agreement concerning compensation.

After all evidence was presented, the Dealer moved to amend the pleadings to conform to the evidence. Counsel for the Manufacturer objected to the amendment “because we did not really understand the theory of the case involving the express contract until at the virtual end of the plaintiff’s [sic] case.” The trial court granted the motion to amend. The Manufacturer renewed the earlier motion for directed verdict, and the trial court took that motion under advisement.

The trial court instructed the jury to determine whether a contract existed to allow the Dealer to market the boats, and if so, whether the Dealer was entitled to compensation under the terms of the contract. The jury was not asked to make any findings as to whether the agreement had been oral or written. The jury found in favor of the Dealer and determined the amount of damages.

The Manufacturer filed a motion to set aside the verdict and for judgment in accordance with the motion for directed verdict, and alternatively, it requested a new trial. The Manufacturer asserted that the Dealer abandoned the oral contract theory and instead sought to enforce a written contract, that the case was submitted to the jury on a breach of written contract claim, and that the Manufacturer had been ambushed at trial with a new, written contract theory. The trial court granted the motion for new trial and stated that there had been confusion, that the trial had been unclear, and that the Manufacturer had been at an unfair disadvantage and was unduly prejudiced.

In this appeal, the Dealer argues that the trial court erred by granting the motion for new trial because the Dealer had pleaded and proved the breach of an oral agreement. The Dealer asserts that the Nordic agreement was not the basis of the claim and that it never sought to enforce any written agreement against the Manufacturer.

A trial court has broad discretion in considering a motion for new trial, and its ruling on such a motion will not be disturbed in the absence of a clear showing of abuse. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959); see also Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998). However, under the circumstances before us, we conclude that the trial court abused its discretion in granting the motion for new trial.

The Dealer’s evidence was consistent with its claim for breach of an oral agreement, and nothing in the record suggests that the case was submitted to the jury on a claim for breach of a written agreement. The Dealer established that a written dealer agreement had existed between Andersen and Nordic Export. After Nordic Export decided to leave the boat business, the parties to the litigation reached a verbal agreement for H.P.B.C. to build boats and for the Dealer to market the boats under the same terms and conditions that had been in the Nordic agreement. The Nordic agreement was merely used as evidence of the terms of the later oral agreement.

Moreover, while there was a general request by the Dealer to amend the pleadings to conform to the evidence, the record does not reflect any change of the claim from breach of an oral agreement to breach of a written agreement. Indeed, there was no discussion as to any specific change to be made in order for the pleadings to conform to the evidence. The record also does not reveal any modification of or objection to the jury instructions or the verdict form due to the granting of the motion to amend.

Although the Manufacturer claimed that it did not understand the Dealer’s theory of the case, nothing demonstrates that the jury was confused, and the record does not support the claim of ambush or a change in theory by the Dealer. See Becker v. Ziton, 167 So.2d 241, 242 (Fla. 2d DCA 1964) (affirming the granting of a new trial based on jury confusion); Staib v. Ferrari, Inc., 391 So.2d 295, 297 (Fla. 3d DCA 1980) (same). Additionally, the record does not support the trial court’s reasons for granting a new trial, that the trial had been unclear or that the Manufacturer had been at an unfair disadvantage and was unduly prejudiced. As a result, the trial court abused its discretion in ordering a new trial. See Eley v. Moris, 478 So.2d 1100, 1104 (Fla. 3d DCA 1985).

Accordingly, we reverse the order granting a new trial and remand for reinstatement of the jury verdict and for entry of a final judgment consistent with that verdict.

Reversed and remanded.

ALTENBERND, C.J., and WHATLEY, J., concur.

      . Counsel did not indicate whether his concern as to enforcement of an express agreement related to the oral agreement or the Nordic agreement, both of which had been discussed in Andersen’s testimony.


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    ERNIE PASSEOS, INC. d/b/a Liberty Harley Davidson, Appellant, v. Kevin O’HALLORAN, as trustee for Keller Financial Services of Florida, Inc., and Keller Financial Services, Inc., Appellees.
    No. 2D02-2892.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.
    Rehearing Denied Oct. 7, 2003.

      Peter M. Feaman of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for Appellant.
    Mark J. Bemet and Jon T. Gatto of Buchanan Ingersoll, P.C., Tampa, for Ap-pellees.
   CANADY, Judge.

Ernie Passeos, Inc. (Passeos), an Ohio corporation, appeals a nonfinal order of the circuit court in Pinellas County determining that the court had personal jurisdiction over Passeos in an action for conversion filed against Passeos by Keller Financial Services, Inc. (Keller), a Florida corporation. Because we conclude that Passeos committed no tortious act in Florida and therefore is not subject to the “long-arm” jurisdiction of Florida’s courts, we reverse.

The origin of this case was the sale of ten Harley Davidson motorcycles by the now defunct Bennett Motorcycles, Inc. (Bennett), a Florida corporation that operated a Harley Davidson dealership in Pi-nellas County, to Passeos, which operated a similar dealership in Ohio. Passeos placed an order for these motorcycles from its offices in Ohio and paid Bennett in full for the motorcycles after receiving them. More than three years following this purchase, Passeos received a demand from Keller, Bennett’s former floor plan financier which had perfected a security interest in the motorcycles and in the proceeds of their sale, for either the return of the motorcycles or the return of the proceeds. That demand was sent to and received by Passeos at its place of business in Ohio. Keller alleged that Bennett failed to forward Passeos’s payment for the motorcycles to Keller, as Bennett was contractually obligated to do, and that Keller’s security interest in those motorcycles had therefore not been terminated. Following Passeos’s refusal of the demand, Keller sued Passeos.

In response to Passeos’s motion to dismiss the action for lack of jurisdiction, Keller asserted that Passeos was subject to the jurisdiction of the Florida courts under section 48.193(l)(b), Florida Statutes (2001), which provides for jurisdiction over any person “[cjommitting a tortious act within this state.” The trial court agreed with Keller and denied Passeos’s motion to dismiss. Keller now argues on appeal that Passeos committed a tortious act — namely conversion — in Florida by acquiring the motorcycles when it had at least constructive knowledge of Keller’s security interest.

“A trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review.” Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). Here the question of law for our determination is whether the allegations made by Keller are a sufficient basis for the assertion of long-arm jurisdiction under section 48.198(l)(b). Because we conclude that the complaint does not “allege sufficient jurisdictional facts to bring the action within the ambit of the [sjtatute,” we need not reach the additional issue of “whether sufficient ‘minimum contacts’ are demonstrated to satisfy [the federal] due process requirements” for the exercise of long-arm jurisdiction. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987)).

In most circumstances, “[a] buyer in ordinary course of business ... takes free of a security interest created by his or her seller even though the security interest is perfected and even though the buyer knows of its existence.” § 679.307(1), Fla. Stat. (1997). A person who buys goods in a “transfer in bulk” or with knowledge that the sale is “in violation of the ... security interest of a third party in the goods” is not a “ ‘[b]uyer in ordinary course of business.’” § 671.201(9), Fla. Stat. (1997). Keller alleges that the sale of the ten motorcycles was a transfer in bulk and that Passeos accordingly did not take title to the motorcycles free of Keller’s security interest. But, even if the motorcycles acquired by Passeos did remain subject to Keller’s security interest, that fact would not establish that Passeos committed a tortious act within this state by purchasing the motorcycles.

Any possessory right Keller may have had in the motorcycles under its security interest had not been exercised by Keller at the time Passeos acquired the motorcycles and they were transported to Ohio. Indeed, Keller did not attempt to exercise a possessory right in the motorcycles — by demanding that Passeos surrender them— until more than three years after the purchase from Bennett. It was only then— when Passeos refused to surrender the motorcycles — that a possible basis for a conversion claim by Keller arose. Keller in effect acknowledges this in the allegation of its complaint that “[b]y refusing to surrender possession of the [motorcycles] or their proceeds to [Keller], [Passeos] has converted the motorcycles and proceeds to its own use.”

The “essence of conversion” is the possession of property “in conjunction with a present intent on the part of the wrongdoer to' deprive the person entitled to possession of the property, which may be, but is not always, shown by demand and refusal.” Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157, 1161 (Fla. 3d DCA 1984). Of course, there may be liability for conversion even when the property was obtained without a specific wrongful intent. Seymour v. Adams, 688 So.2d 1044, 1047 (Fla. 5th DCA 1994) (stating that conversion “may be established despite evidence that the defendant took or retained property based upon the mistaken belief that he had a right to possession, since malice is not an essential element of the action”). But ordinarily a cause of action for conversion will arise only after the person entitled to possession demands possession, thereby giving the person in possession actual notice of the rights of the person who is legally entitled to possession. Shelby Mut. Ins. Co. v. Crain Press, Inc., 481 So.2d 501, 503 (Fla. 2d DCA 1986) (citing Senfeld and stating that “[a] conversion occurs when a person who has a right to possession of property demands its return and the demand is not or cannot be met,” but that “demand and refusal are unnecessary” where they “would be futile”).

In the circumstances of this case, where the purchaser made full payment for the property to the seller, a tortious intent to deprive Keller of its asserted right of possession arose — if at all — only when Passeos refused to surrender the property in response to Keller’s demand for possession. And that refusal took place not in Florida, but in Ohio where Passeos received Keller’s demand. The mere fact that an injury to a Florida resident may have resulted is insufficient to establish jurisdiction in the Florida courts. Tex. Guaranteed Student Loan Corp. v. Ward, 696 So.2d 930, 932 (Fla. 2d DCA 1997) (stating that “[t]he occurrence of injury alone in Florida does not satisfy section 48.193(l)(b)”). Accordingly, the allegations made by Keller are insufficient to establish jurisdiction over Passeos in the Pinellas County circuit court and the complaint against Passeos must be dismissed.

We remand this case with instructions that it be dismissed as to Ernie Passeos, Inc., without prejudice to the refiling of the cause in an appropriate jurisdiction.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., concur.


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    Arthur FLORIDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2316.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.

      Arthur Florida, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny appellee’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

Appellant Arthur Florida appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse and remand in part.

Appellant Florida was convicted on counts of armed burglary, robbery with a firearm, armed sexual battery, armed kid-naping, attempted sexual battery, aggravated battery of a law enforcement officer, attempted second degree murder with a firearm, attempted aggravated battery of a law enforcement officer, attempted aggravated battery, resisting an officer with violence, shooting within a dwelling, and armed burglary with a dangerous weapon. Appellant took a direct appeal to this court, which appeal was per curiam affirmed without opinion in Florida v. State, 701 So.2d 881 (Fla. 4th DCA 1997).

Appellant timely filed a motion for post-conviction relief, which he later supplemented, raising some eight separate grounds. We affirm the trial court’s summary denial of grounds one, two, five, six, seven and eight, but reverse and remand on grounds three and four. We write only to address the claims made in grounds three and four.

In ground three, appellant alleged that his convictions for aggravated battery of a law enforcement officer in count six and attempted second degree murder with a firearm in count seven violated double jeopardy as the crimes involved the same victim and same act. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), codified in § 775.021(4), Fla. Stat. (1995); Johnson v. State, 744 So.2d 1221, 1221 (Fla. 4th DCA 1999); Gresham v. State, 725 So.2d 419, 420 (Fla. 4th DCA 1999). We have held that where a defendant Mils a single victim with a series of murderous blows, it is a violation of due process to convict on both aggravated battery and second degree murder. See Campbell-Eley v. State, 718 So.2d 327, 329 (Fla. 4th DCA 1998).

In this case, the record before us indicates that appellant was convicted of both aggravated battery of a law enforcement officer and attempted second degree murder for shooting at the officer. We acknowledge that our decision in this case expressly conflicts with Schirmer v. State, 837 So.2d 587, 589 (Fla. 5th DCA 2003), in which the fifth district concluded that double jeopardy did not bar dual convictions for aggravated battery with a deadly weapon and attempted second degree murder where both criminal charges related to the same act — the stabbing of the victim with a knife.

We reject the state’s argument, asserted at trial and here on appeal, that there is no prejudice from these dual convictions because appellant was not sentenced on count six for aggravated battery of a law enforcement officer. Harmless error analysis is not applied to this type of fundamental error. See Johnson v. State, 460 So.2d 954, 958 (Fla. 5th DCA 1984). Thus, the record of appellant’s conviction constitutes the violation of double jeopardy.

Appellant made another double jeopardy challenge to his convictions for attempted aggravated battery of a law enforcement officer in count eight and attempted aggravated battery in count nine. Again, we find the dual convictions based on the same incident and victim violate double jeopardy and reject the state’s argument of harmless error or lack of prejudice because appellant was not sentenced on count eight.

Appellant also claimed in ground four that his conviction in count eight for attempted aggravated battery of a law enforcement officer was illegal because that offense does not exist. As the state points out, appellant’s offense was reclassified under section 784.07, Florida Statutes (1999), from a third degree felony to a second degree felony. The controlling case law reveals that this was erroneous.

In Merritt v. State, 712 So.2d 384, 385 (Fla.1998), the supreme court held that section 784.07, which provides for the reclassification of offenses and minimum sentences for assault or battery of law enforcement officers, among others, does not apply to attempted battery of a law enforcement officer. In so doing, the court explained:

Section 784.07, Florida Statutes (1995), is an enhancement statute rather than a statute creating and defining any criminal offense. The plain language of the statute indicates that the legislature enacted section 784.07 in order to increase the penalties for the enumerated crimes of assault, aggravated assault, battery, and aggravated battery for offenders who commit these crimes upon law enforcement officers. At the time the enhancement statute was enacted, the legislature had created the four enumerated offenses in other statutory provisions.

Id. (footnote omitted).

The court concluded in Merritt that section 784.07 “contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses.” Id. (citation omitted).

Thus, we find that the trial court erred by rejecting appellant’s sentencing challenge on this ground, at least insofar as appellant’s sentence in count nine for attempted aggravated battery was enhanced under this statute.

For the reasons discussed above, we affirm the trial court’s summary denial of appellant’s motion for postconviction relief on grounds one, two, five, six, seven and eight, but reverse the trial court’s summary denial on grounds three and four. We remand to the trial court for further proceedings consistent with this opinion.

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    James TOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3070.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard L. Polin, Senior Assistant Attorney General, Miami, for ap-pellee.
   PER CURIAM.

Affirmed. Krischer v. Faris, 838 So.2d 600 (Fla. 4th DCA 2003).

WARNER, KLEIN and SHAHOOD, JJ., concur.


text:
    OMEGA CONGRESS, INC., Appellant, v. BAF TOUR SERVICES, INC., Appellee.
    No. 3D02-3392.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Rehearing Denied Oct. 1, 2003.
    Ginsberg & Giustibelli, and Ann-Marie Giustibelli (Hollywood), for appellant.
    Killgore, Pearlman, Stamp, Ornstein & Squires, and William J. Denius (Orlando), for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Omega Congress, Inc. (“Omega”) appeals an adverse summary judgment based upon Section 559.928, Florida Statutes (2002), in its breach of contract claim against appellee, BAF Tour Services, Inc. (“BAF”). We affirm.

Omega entered into two contracts with BAF to secure hotel rooms for two tour groups at a medical convention in California. The contracts specified that Omega would secure rooms at the Doubletree Hotel in Anaheim, California. Instead, Omega secured rooms at a hotel in Costa Mesa, California, a different city.

Because the rooms were secured at the wrong hotel, one of the tour groups can-celled its booking with BAF. After BAF paid Omega $30,565.50, Omega sued for an additional $25,631.15. BAF then counter-sued for return of the monies previously paid to secure the hotel rooms. Both parties sought summary judgment.

The trial court granted BAF’s summary judgment motion, finding the contracts were void because Omega had not complied with the Florida Sellers of Travel Act, Section 559.926, et seq., Florida Statutes (2002). We agree with the trial court’s well reasoned findings and order.

The Florida Sellers of Travel Act, requires a corporation that is conducting business as a seller of travel, to register annually with the State of Florida, Department of Agriculture and Consumer Services. § 559.928, Fla. Stat. (2002). Any violation of Section 559.9335 constitutes a deceptive and unfair trade practice, subject to the imposition of administrative, civil and criminal penalties. §§ 559.934, 559,9335, 559.936, 559.937 Fla. Stat. (2002).

It is undisputed that the contracts involved the sale of hotel rooms from Omega to BAF and that Omega was a “seller of travel” as defined by Section 559.927(10). It is also undisputed that Omega was not registered as a seller of travel in July of 1999 when it executed the contracts, and was not registered as a seller of travel in March of 2000 when the rooms were secured.

As the trial court accurately noted, since Omega was not registered as a seller of travel at the time the contracts were made, the contracts are void and unenforceable. See Local No. 234 of United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting Indus, v. Henley & Beckwith, Inc., 66 So.2d 818 (Fla.1953); Steinberg v. Brickell Station Towers, Inc., 625 So.2d 848 (Fla. 3d DCA 1993); Winter v. Surfview Realty, Inc., 400 So.2d 839 (Fla. 5th DCA 1981); D & L Harrod, Inc. v. U.S. Precast Corp., 322 So.2d 630 (Fla. 3d DCA 1975). Accordingly, the trial court properly entered summary judgment in BAF’s favor on Omega’s claims against BAF.

Affirmed.

      . Summary judgment was granted in favor of Omega on BAF's counterclaim.


text:
    Douglas PEEBLES, M.D., Appellant, v. SHERIDAN HEALTHCARE, INC., Mitchell Eisenberg, M.D., Lewis D. Gold, M.D., Jay A. Martus, Esq., Levey & Martus, P.A., and Levey, Martus & Gilbert, P.A., Appellees.
    No. 4D02-2232.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Joseph L. Raia, Lisa Shearer Nelson, and Antonio L. Roca of Holtzman, Equels & Furia, Miami, for appellant.
    Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, and William Scherer and James F. Carroll of Conrad & Scherer, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed. See Peebles v. Sheridan Healthcare, Inc., 853 So.2d 559, 2003 WL 22047616 (Fla. 4th DCA Sept. 3, 2003).

KLEIN, SHAHOOD and TAYLOR, JJ., concur.