author: ORFINGER, J.

text:
    DAWKINS, INC., etc., et al., Appellant, v. Donald R. HUFF and Rebecca Huff, etc., et al., Appellees.
    Nos. 5D02-1563, 5D02-2116.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.

      Michael R. D’Lugo of Wicker, Smith, Tutan, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellant.
    Robert J. Telfer, Jr. of Cianfrogna, Tel-fer, Reda, Faherty & Anderson, P. A., Titusville, for Appellees.
   ORFINGER, J.

Dawkins, Inc. appeals two non-final orders denying its motions to set aside defaults entered by the clerk. Because these are non-appealable, non-final orders, we lack jurisdiction to consider the matters and dismiss this consolidated appeal. See Fla. R.App. P. 9.130(a)(5). Despite our dismissal, the circumstances merit discussion.

After Donald and Harold Huff were injured while setting roof trusses, they filed separate negligence actions against Daw-kins, Inc. Following service of the complaints, Dawkins promptly forwarded the suit papers to its insurer, Indiana Lumber-mans Mutual Insurance Company. About a month later, the clerk entered defaults against Dawkins because no papers had been filed on Dawkins’s behalf.

Upon, learning that defaults had been entered, Indiana Lumbermans retained counsel who promptly moved to set them aside. In support of the motions, Dawkins filed the affidavit of Susan Lebo, an Indiana Lumbermans’s claims adjuster. Lebo’s affidavit indicated that Damen Carter, formerly an Indiana Lumbermans’s adjuster, had received the complaints from Dawkins in a timely manner and promptly attempted to forward the complaints by facsimile to its Florida counsel with instructions to file appropriate responsive pleadings. Lebo’s affidavit indicated that Indiana Lumbermans believed that it had transmitted both complaints to its Florida counsel, but for unknown reasons, its counsel never received the faxed transmission. No affidavit from Dawkins was filed.

Construing Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So.2d 982 (Fla. 3d DCA 1985) and Scherer v. The Club, Inc., 328 So.2d 532 (Fla. 3d DCA 1976) as requiring an affidavit from the insured in all cases wherein an insured attempts to show excusable neglect in the handling of suit papers, the trial judges denied the motions to set the defaults aside. When, as here, there is no binding precedent from the supreme court or the district court of appeal in which the court sits, a trial judge is bound to follow decisions of other district courts of appeal, which are on point. McCauley v. Goldstein, 653 So.2d 1108, 1109 (Fla. 4th DCA 1995). The trial judges’ reliance on Bay-view and Scherer was, therefore, entirely justified.

We disagree, however, with Bay-view and Scherer to the extent that they can be read to establish a bright-line test mandating in all cases the denial of a motion to set aside a default in the absence of an affidavit from the insured. Florida has a policy of liberally vacating defaults so that the merits of a case can be reached. North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962). To be relieved of a default, a defendant must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief. Decubellis v. Ritchotte, 730 So.2d 723, 727-28 (Fla. 5th DCA 1999). In the instant case, the Huffs concede the existence of meritorious defenses and due diligence on Dawkins’s part in seeking relief. The controversy here focuses solely on whether an insured defendant, who has timely delivered suit papers to the insurance company charged with its defense, can ever demonstrate excusable neglect without personally filing an affidavit. We believe in some circumstances it can.

To establish excusable neglect, a party must file affidavits or sworn statements that set forth the facts explaining or justifying the mistake or inadvertence. Moreno Constr., Inc. v. Clancy & Theys Constr. Co., 722 So.2d 976, 977 (Fla. 5th DCA 1999). Common sense dictates that such affidavits should come from any person with knowledge of the disputed relevant facts. Here, there is no dispute about how Dawkins handled the suit papers; rather, the dispute centers on Indiana Lumbermans’s actions after receiving the papers. An affidavit from Dawkins would shed no light on how Indiana Lumbermans handled the suit papers after receiving them. That being the case, it was entirely appropriate for the affidavit to come from an Indiana Lumber-mans representative, rather than Dawkins.

Nonetheless, we must dismiss this appeal. An order on a motion to set aside a clerk’s default is not an appealable, non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). See BMW Fin. Servs. NA, LLC v. Alger, 834 So.2d 408 (Fla. 5th DCA 2003). Absent extraordinary circumstances, such an order is also not renewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits interlocutory review of non-final orders. See Kolb v. Fla. Fruit & Vegetable Ass’n Inc., 718 So.2d 957 (Fla. 5th DCA 1998) (holding that an order which sets aside a clerk’s default is not appealable as a non-final ordef, and since there is an adequate remedy by plenary appeal, certiorari review is also generally not available). Accord Collins v. Penske Truck Leasing, 668 So.2d 343 (Fla. 5th DCA 1996) (denying certiorari review of order which granted motion to set aside clerk’s default since no extraordinary grounds for relief were alleged). Although Dawkins will have to proceed to trial on damages, that does not qualify as irreparable injury.

For the foregoing reasons, we dismiss this appeal. In doing so, we observe that a court always has jurisdiction during the progress of a case to set aside or modify an interlocutory order before final judgment. Interlocutory orders are not within the restrictions provided in Florida Rule of Civil Procedure 1.540. Rather, such orders remain within the inherent power of the court to control the progress of the case prior to final judgment. As a result, the trial courts may wish to revisit these interlocutory orders consistent with the views expressed herein.

SHARP, W., and GRIFFIN, JJ., concur.

      . This type of non-final order was sometimes appealed under the appellate rule, which permitted interlocutory appeals of an order which determined "the issue of liability in favor of a party seeking affirmative relief.” See Fla. R.App. P. 9.130(a)(3)(C)(iv)(2000); Safetitle, Inc. v. Fidelity Nat’l Title Ins., 701 So.2d 565 (Fla. 5th DCA 1997). However, that particular categoiy of appealable non-final orders was deleted in 2000 to limit the number of interlocutory appeals. The committee notes to Rule 9.130 specifically state that such orders are not appealable until the conclusion of the case.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Lee NASTASE, Appellant, v. FLORIDA FISH AND WILDLIFE CONSERVATION, etc., Appellee.
    No. 5D02-1833.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.

      David W. Glasser, of Glasser and Handel, Daytona Beach, for Appellant.
    Alec D. Russell and Ted L. Shinkle, of Gray, Harris & Robinson, P.A., Melbourne, for Appellee.
   GRIFFIN, J.

Plaintiff below, Lee Nastase [“Nas-tase”], appeals an order granting summary final judgment in favor of defendant below, Florida Fish and Wildlife Conservation Commission [“the Commission”].

On August 25,” 2000, Nastase filed a complaint and demand for jury trial against the Commission. Nastase alleged damages pursuant to the Federal Employment Discrimination Act, 42 U.S.C. § 2000(e), and the Florida Employment Discrimination Act, section 760, Florida Statutes (2000), for sex discrimination. She alleged that she was a duty officer performing as a dispatcher and that she was written up several times for various rule violations. She further alleged these rules were not followed by similarly situated males, but that the males were never reprimanded or punished. Nastase claimed her employer’s actions and attempts to terminate her employment constituted a constructive termination forcing her to resign in September 1998.

The Commission filed an answer and affirmative defenses. Among other things, it asserted that it was not a proper party and should be dismissed from the action because Nastase was an employee of the Department of Environmental Protection [“DEP”] rather than the Commission.

The Commission then filed a motion for summary final judgment. The Commission’s argument was that it had never been Nastase’s employer and therefore could not be subject to Lability in the action. The motion set out the following undisputed material facts supported by the affidavits of Captain Mickey Otwell and Cindy Hoffman:

1. On or about March 27, 1992, [Nas-tase] was hired by the Florida Department of Environmental Protection, Division of Law Enforcement.
2. [Nastase] was employed by the Department of Environmental Protection until she resigned by written resignation, effective September 27,1998.
3. [The Commission] did not exist until it was created by constitutional amendment and subsequent legislative enactment made effective July 1,1999.
4. [Nastase] is not now, nor has she ever been, employed by [the Commission],

Captain Otwell’s affidavit stated that he was employed by the DEP, Division of Law Enforcement, in the Titusville office where he served as District Captain in July 1997. It further stated he was the District Captain for Nastase from July 1997 until her resignation in September 1998. Captain Otwell asserted that Nas-tase was at all times employed by DEP, had her paycheck issued by DEP, had insurance provided through DEP, was identified on her uniform and badge as an employee of DEP, had participated in DEP’s sick leave pool, and was subject to the directives and policies of DEP. He further asserted that Nastase had initiated a grievance against other DEP employees and the procedure was administered by DEP. Finally, he stated that in July 1999 after Nastase’s resignation, certain of the divisions of DEP were transferred to the newly created Commission. The transfer included certain employees of the Division of Law Enforcement and Otwell, but to his knowledge Nastase had never been employed by the Commission.

Cindy Hoffman, Chief of Personnel for the Commission, stated in her affidavit that employment records indicated that Nastase was employed by DEP between March 27, 1992 and September 27, 1998, and that there was no record indicating Nastase ever worked for the Commission.

The trial court entered summary final judgment in favor of the Commission. Nastase filed a motion for rehearing alleging:

2.That the record establishes that [Nastase] was previously employed by and through the Florida Marine Patrol Division which subsequent to [Nastase]’s employment came to be a division of another State Agency, that being [the Commission],
3. That while [Nastase] was previously employed by [DEP] and allegations in the complaint occurred while [Nastase] was employed by that agency, [the Commission] is a successor agency pursuant to Constitutional Amendment and thus a party to this action. The Court thus made an error of law in granting [the Commission]’s motion.
4. That there is a question before the Court as to whether there was sufficient identity of assets, location, management and personnel. [The Commission] is responsible for liabilities of [Nastase]’s prior department which was absorbed by [the Commission],

Nastase acknowledges in her brief that she was employed by a division of DEP and that she was never employed by the Commission. However, Nastase asserts the entitlement to sue the Commission because she was employed in DEP’s Division of Law Enforcement and certain employees of that division, including her supervisor Otwell, became employees of the Commission after it was formed in 1999. As a result, Nastase argues the Commission is a responsible “successor” agency.

The Commission responds that civil liability for employment discrimination under both the federal and state acts lies only against an employer, and that the Commission can therefore not be liable because it was never an employer of Nastase. The Commission further responds that Nastase cannot prevail on her successor liability theory because the Commission is a governmental entity rather than a corporation, upon its formation the Commission did not assume any liabilities of DEP, and the Commission did not absorb DEP. The Commission also notes that both DEP and the Commission continue to exist as distinct executive departments of the State of Florida.

The Commission was formed in 1999 through constitutional amendment and statute by unifying the Marine Fisheries Commission and the Game and Fresh Water Fish Commission. Even though some employees from the DEP Law Enforcement Division were also transferred to the Commission according to Otwell’s affidavit, the Commission did not succeed or absorb the DEP Law Enforcement Division because the statute provides that the Division of Law Enforcement within the DEP still exists. See § 20.255(3)(d), Fla. Stat. (1999). Additionally, we note that the original complaint filed with the EEOC by Nastase was against DEP.

We find neither factual nor legal support for appellant’s successor liability theory. Accordingly, we affirm.

AFFIRMED.

PLEUS, J., and COBB, W., Senior Judge, concur.

      . This division is commonly referred to as the Florida Marine Patrol.

      . Art. IV, § 9, Fla. Const. (1999) and § 20.331, Fla. Stat. (1999). Apparently, in the implementation of this amendment, the Florida legislature combined all of the staff and commissioners of the former Marine Fisheries Commission, elements of the Marine Resources and Law Enforcement Divisions of DEP, and all of the employees and commissioners of the former Game and Fresh Water Fish Commission to form the Commission. The Division of Law Enforcement of DEP is still in existence. § 20.255(3)(d), Fla. Stat. (2001).

      . One underlying purpose of successor liability seems to be that the employee will not be denied the right to sue an employer entity for relief when that employer entity ceases to exist because it was absorbed into another entity. In the present case, however, DEP Division of Law Enforcement continues to exist and could be sued.


author: SAWAYA, J.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Barkley J. McCLUSKY, Respondent.
    No. 5D02-2436.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.

      Michael T. Callahan and Jennifer C. Worden of Callahan Law Firm, St. Peters-burg, for Petitioner.
    Richard A. Kupfer of Richard A. Kup-fer, P.A., West Palm Beach, for Respondent.
   SAWAYA, J.

In this first-party bad faith case, .Allstate Insurance Company (Allstate) seeks certiorari review of the trial court’s order granting Barkley J. McClusky’s renewed motion to compel production of Allstate’s “entire claim file,” with the exception of any materials pertaining to underwriting. We grant the petition in part and deny it in part.

McClusky was injured in an automobile accident caused by an underinsured motorist. Allstate, which had issued McClusky a policy that provided underinsured motorist (UIM) coverage in the amount of $50,000, offered to settle the UIM claim for substantially less than the full coverage amount. After the jury in the negligence action awarded McClusky $128,298 in damages, Allstate tendered its policy limits, plus costs. McClusky then filed a bad faith action against Allstate pursuant to section 624.155(l)(b)l., Florida Statutes.

When he noticed the deposition of Allstate’s claims adjuster, McClusky subpoenaed all of the files maintained by Allstate concerning his UIM claim. Allstate filed a motion for a protective order, asserting that the entire file is privileged. Although Allstate did not prepare a privilege log as required by our decision in Nationwide, Mutual Fire Insurance Co. v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002), the trial court granted Allstate’s motion. McClusky’s subsequent attempt to take the adjuster’s deposition revealed no practical information about how the claim was handled primarily because, according to McClusky, Allstate had instructed the adjuster not to review the file and the adjuster had no independent recollection of the claim. Therefore, McClusky filed a motion to compel production of the claims file, which motion included a request for a privilege log from Allstate or an in camera inspection of the file by the trial court. The trial court denied the motion.

McClusky, undaunted, then attempted to depose other witnesses, including three of Allstate’s executives, but obtained no useful information because none of them could provide any information without reviewing the claims file. McClusky renewed his motion to compel production of the file. This time, the motion was heard by a successor judge, who granted the motion and ordered production of the file. The trial court found that Allstate failed to comply with the dictates of Hess and that McClusky made a sufficient showing that he was unable to obtain the necessary discovery by other means. It is this order that we review in the instant proceeding.

McClusky asserts that Allstate’s failure to provide a privilege log in accordance with Hess constitutes a waiver of Allstate’s right to assert the attorney-client and work-product privileges. Allstate argues that the trial court erred in granting the motion without first holding an in camera inspection. We agree with McClusky’s assertion that failure to provide a privilege log as required by Hess generally waives the insurance carrier’s right to assert the attorney-client and work-product privileges. Hess, 814 So.2d at 1242 (citing Fla. R. Civ. P. 1.280(b)(5); TIG Ins. Corp. of Am. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001), review denied, 821 So.2d 304 (Fla.2002); Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So.2d 192 (Fla. 4th DCA 1991)). However, under the particular facts and circumstances of the instant case, we find that Allstate did not waive its right to assert the privileges because it was entitled to rely on the two prior orders, albeit erroneously entered, that granted Allstate’s motion for protective order.

As to the trial court’s additional finding that, waiver aside, McClusky made a sufficient showing that he was unable to obtain the necessary information relating to his claim by other means, that determination alone does not warrant production of the entire file because that showing only relates to the work-product privilege, not the attorney-client privilege, and Allstate has asserted both. Hess.

Accordingly, we deny Allstate’s petition to the extent that it requests this court to quash the trial court’s order in its entirety. We grant Allstate’s petition in part and remand this case to the trial court to either permit Allstate to provide a privilege log or conduct an in camera inspection of the file by the trial court. We note parenthetically that this is the relief sought by McClusky in his first motion to compel.

PETITION GRANTED IN PART; DENIED IN PART; REMANDED.

PETERSON, J., and HARRIS, C.M., Senior Judge, concur.


author: PLEUS, J.

text:
    Ralph PETTUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1196.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Pettus appeals his adjudication for violation of probation. The trial court found him guilty of violating two conditions of his probation: using marijuana and failing to follow his probation officer’s instructions. On the first condition, he argues that there was no competent proof that he used marijuana. On the second condition, he argues that the condition was not court-ordered, was based on hearsay and was not willful and substantial. We agree and reverse.

The first issue turns on whether Pettus admitted using marijuana. We find that he did not. In his direct examination, the probation officer testified at least three times that Pettus admitted using marijuana. The probation officer decided to forego giving Pettus a drug test to confirm his marijuana use. Instead, he had Pettus sign an “admission” and referred Pettus to a drug counseling and evaluation program. When Pettus failed to appear for his appointment, the officer filed an affidavit of violation.

However, on cross-examination the probation officer equivocated. Pettus’ attorney first established that the probation officer could not remember what Pettus said to him. Then, the following exchange occurred:

Q Do you recall him telling you he may have been out to a function or place where cannabis was smoked and he was worried that he would test positive because of cannabis smoke? Does that sound familiar?
A Can I state my opinion?
Q It’s not necessary?
A He may have stated that, but in my experience somebody comes in and admits they’re around people — he basically admitted to me, from what, what I recall, he was positive for cannabis. I took that to mean we, paraphrasing, he—
Q You took it to mean he basically had been smoking?
A Yes.

Pettus’ attorney confirmed this, asking, “And you’re not really sure whether or not he said it was based on second-hand smoke?” The probation officer replied, “I cannot recall.” Later in the cross-exam, the probation officer tried to get back to his original testimony by stating, “That was on or about the date he admitted he had smoked marijuana, or used marijuana.” But Pettus’ attorney corrected him, stating, “Or had been around marijuana, since you can’t recall?” The probation officer conceded, ‘Tes, sir.” The cross-examination established that the probation officer could not remember whether Pettus admitted to using marijuana or simply being around it, but if he was around it, that was as good as using it, to the probation officer. Such equivocal testimony is not sufficient to establish that Pettus used marijuana.

The so-called “admission” form cannot save the state. The form merely states that Pettus understood and accepted that he had received a positive drug test “on or about 1-12-01.” It further states that “I recognize that this acceptance constitutes a full admission of drug use during the period covered by the specimen.” This “admission” is rendered meaningless because there was no drug test, much less a positive drug test.

The only other evidence is Pettus’ testimony that he told his probation officer he was in a car while someone was smoking marijuana and he was afraid that would make him test positive. This evidence does not establish that Pettus used marijuana.

On the second issue, Pettus argues that his violation for failing to attend the drug counseling and evaluation program was improperly based upon hearsay. Pet-tus’ hearsay argument lacks merit because he admitted he did not attend the drug evaluation in Kissimmee. However, Pet-tus correctly argues that probation may only be revoked for violation of a condition which is imposed by the court, rather than by a probation officer. See Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982). In Holterhaus, the defendant was violated for failing to follow his probation officer’s instructions to enroll in, attend and complete a substance abuse program when he was terminated from the program. The appellate court reversed, explaining that a probation officer is allowed to give “normal supervisory directions” without court approval, but requiring a probationer to complete a drug program was not a “matter of routine supervision” and not “such a reasonable and necessary condition of supervision that it could be specifically delegated merely by such a broad directive as” complying with the probation officer’s instructions. See also, Hutchinson v. State, 428 So.2d 739, 740 (Fla. 2d DCA 1983) (holding that “probation officer’s directive that appellant report to a rehabilitation program for therapy was not encompassed by condition (8) requiring the probationer to comply with all instructions given by his officer”).

In the instant case, Pettus was court-ordered to submit to chemical tests at the request of his probation officer and not use marijuana, but he was not court-ordered to attend the drug program. The probation officer’s instructions to do so were not a matter of routine supervision and thus, were outside his authority. Accordingly, we reverse and remand with directions to reinstate Pettus’ probation.

REVERSED and REMANDED.

GRIFFIN, J., and COBB, W., Senior Judge, concur.

      . If there had been competent testimony that Pettus admitted using marijuana, that would have been sufficient to affirm the violation. See Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980) (holding that defendant's admission to using heroin was sufficient to sustain violation of probation).

      . Pettus was not charged with violating condition 6 of his probation, which prohibits him from visiting places where drugs are used.


author: PER CURIAM.

text:
    Stephen B. DRAGANI, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1014.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Stephen B. Dragani, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to defendant to raise the issue of his illegal sentence via a rule 3.800 motion in the lower court. See Massey v. State, 698 So.2d 607 (Fla. 5th DCA 1997).

THOMPSON, C.J., SAWAYA, J. and HARRIS, C.M., Senior Judge, concur.


text:
    Lynn BERGER, et al., and Michael Siuda, et al., Petitioners, v. RIVERWIND PARKING, LLP, etc., et al., Respondents.
    No. 5D02-2943.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Berry J. Walker, Jr., and Wallace W) Tudhope, of Walker & Tudhope, P.A., Maitland, for Petitioners.
    Scott J. Johnson, of Holland & Knight LLP, Orlando, for Respondents.
   GRIFFIN, J.

.The petitioners seek certiorari review of a discovery order of the trial court entered after the entry of a final judgment and during the pendency of appeal.

The petitioners are homeowners in Seminole Terrace, a residential subdivision. The Riverwind Apartments abut the subdivision. The respondent, Riverwind Parking, LLP, [“Riverwind”], owns a number of lots in the subdivision. The developer of Riverwind Apartments, through Riverwind Parking, LLP, purchased the lots and was granted rezoning by the county to construct a parking lot on the lots to serve the apartment complex.

Seventy-six homeowners [“the homeowners”] in the Seminole Terrace subdivision, including petitioners, filed suit seeking a declaratory judgment and seeking to enjoin Riverwind from constructing the parking lot based on certain deed restrictions purportedly prohibiting commercial use. Riverwind in its answer asserted “unclean hands” as an affirmative defense based on alleged commercial uses of property in the subdivision by many homeowners.

Riverwind served interrogatories, requests to produce and requests for admissions directed to the homeowners on November 2, 2001. The homeowners moved for a protective order; Riverwind moved to compel discovery. On December 13, 2001, the trial court entered an order denying the motion for protective order and granting the motion to compel discovery. The order specified December 31, 2001, as the date for the homeowners to comply with the discovery requests. On December 31, 2001, the homeowners moved for reconsideration of the discovery order and certain homeowners moved for extensions of time to comply with the discovery order.

Riverwind’s discovery requests were addressed to Riverwind’s “unclean hands” defense that some or all of the petitioners were using their property for commercial purposes. Riverwind sought entry upon the homeowners’ property to inspect and photograph potential evidence of commercial uses. In the December 13, 2001, order of the trial court (which the homeowners have appealed separately), the trial court allowed the homeowners until December 31, 2001, to respond to the discovery, and also ordered that homeowners “shall make their premises available for inspection immediately thereafter.”

On December 31, 2001, the homeowners filed a motion for reconsideration/clarification of the December 2001 discovery order, requesting that the court deny the inspection of the homeowners’ homes, or alternatively, to provide clarification regarding the scope of such inspection. This motion filed by the homeowners was never set for hearing, and no ruling was ever entered by the trial court upon the motion. Many homeowners failed to timely comply with responses to the discovery by December 31, 2001. Riverwind, however, did not proceed with inspection of any of the homes nor take other action to compel responses to discovery, apparently electing instead to pursue a ruling on its amended motion for summary judgnent based on unenforceability of the restriction. The trial court granted its motion for summary judgment on January 21, 2002, and subsequently entered final judgment in River-wind’s favor. This decision is also on appeal here.

Notwithstanding the pending appeal of the final judgment, Riverwind requested permission of the trial court to proceed with inspection of the homeowners’ homes, and also to compel homeowners to respond to the prior unanswered discovery. Riverwind’s reason for pursuing discovery was that, while it believed that the final judgment would be affirmed on appeal, there was always the chance that there could be a reversal of the summary judgment and a remand of the case to the trial court for the purpose of taking testimony regarding enforcement of the restrictions. In that event, the affirmative defense of “unclean hands” would again become relevant, and Riverwind wanted to be ready, with its evidence gathered, on this defense by having completed inspections of the homeowners’ homes and by having received discovery responses regarding the homeowners’ use of their homes for commercial purposes.

The trial court granted Riverwind’s motion and entered the discovery order we review in this proceeding. This order compelled those petitioners who had failed to do so previously to respond to the interrogatories and requests for production that were due in December 2001. The discovery order also deemed admitted the requests for admission that had not been answered by December 31, 2001. Finally, the trial court reaffirmed Riverwind’s right to inspect the petitioners’ homes but stayed the inspection on the basis that the discovery would be “moot” if the court’s judgment that the restriction was void and unenforceable as to Riverwind’s lots were upheld on appeal.

We grant the writ because this discovery is being conducted after entry of final judgment. The problem with the trial court’s discovery order is that, at the trial level, the judicial labor has ended. Unless and until overturned on appeal, there was nothing in this case for which discovery could be had. Aside from Rule 1.290(b), which is designed to preserve testimony, and Rule 1.560 governing depositions in aid of execution, discovery under the Florida Rules of Civil Procedure is limited to “pending actions.” See Fla. R. Civ. P. 1.280(b). This action is no longer pending in the trial court and there is no auxiliary issue pending that might justify discovery. If a proper post-judgment motion were filed that required discovery, or if enforcement of the judgment were at issue, then post-judgment discovery would be proper on those issues but, once the final judgment is entered, the need for discovery is over. We can see no reason to permit a litigant who obtains a judgment or suffers a judgment to continue discovery pending appeal “just in case” the judgment is vacated by the appellate court. Nor does it matter that the discovery at issue is discovery that had already been ordered.

Petition for Certiorari GRANTED, order VACATED and REMANDED.

SHARP, W., J., and COBB, W., Senior Judge, concur.


text:
    BANK OF THE WEST, Petitioner, v. Wayne THOMPSON and Debbie Thompson, Respondents.
    No. 5D02-2549.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.

      John R. Hamilton of Foley & Lardner, Orlando, for Petitioner.
    R. Keith Williams, West Melbourne, for Respondents.
   PLEUS, J.

Bank of the West began this action to replevin a motor home in the possession of the Thompsons. The Bank seeks certiora-ri review of the trial court’s order granting the Thompsons’ motion to abate the re-plevin action. We conclude the Bank is entitled to certiorari relief.

In 2000, the Bank financed the purchase of the motor home by Robert and Jeanette Donald, who are not parties in this action. The Bank’s security interest was noted on the certificate of title. The Donalds allegedly fell behind in their payments and delivered the motor home to a dealer in Alabama under a consignment agreement. The dealer then tendered a check to the Bank in payment of the lien on the motor home. The check from the dealer bounced, but in the meantime the dealer sold and delivered possession of the motor home to the Thompsons.

Litigation ensued first in Alabama where the Donalds sued the Thompsons for declaratory relief, claiming that they were entitled to possession of the moto-rhome. The Alabama suit resulted in a final judgment in favor of the Thompsons. The Bank was not a named party in Alabama. The Alabama final judgment is presently on appeal.

In this action commenced in Florida, the Bank seeks replevin of the motorhome. However, on motion by the Thompsons, the trial court ordered abatement of the Florida replevin action until the Alabama proceedings could be concluded. The Bank now seeks review of the court’s order.

We conclude that the Bank is entitled to certiorari relief. Even if the Thompsons are the owners of the motor home in question, the Bank retains both its security interest and its ability to pursue replevin. The Bank’s sole focus is on the right to possession and not ownership. The Alabama action has nothing to do with the right to possession.

As a matter of law, the Bank is not collaterally estopped by whatever judgment the court in Alabama might make. We conclude that the trial court’s order caused, and is continuing to cause, irreparable injury to the Bank.

By statute, the Bank is granted an absolute, unconditional right to the issuance of an order to show cause, followed by a hearing at which the Bank is granted an opportunity to show that it is entitled to possession of the motor home pending final disposition of the case. See Prestige Rent-A-Car, Inc. v. Advantage Car Rental & Sales, Inc., 656 So.2d 541, 545 (Fla. 5th DCA 1995); Morse Operations, Inc. v. Superior Rent-A-Car, Inc., 593 So.2d 1079, 1080-81 (Fla. 5th DCA 1992); § 78.065(2), Fla. Stat. (2001); § 78.067(2), Fla. Stat. (2001); see also Comcoa, Inc. v. Coe, 587 So.2d 474, 476 (Fla. 3d DCA 1991). The trial court’s order deprived the Bank of its legislatively-bestowed rights, and no plenary appeal following entry of final judgment is adequate to restore those rights to the Bank. The Bank must instead rely upon this court, in this proceeding, to provide it with the protection intended by the statutes.

While it is well-settled that decisions regarding abatements and continuances are within the trial court’s discretion and generally are only disturbed when that discretion is abused, see State v. McCarthy, 585 So.2d 1167 (Fla. 4th DCA 1991), under the circumstances of this ease, we conclude the trial court departed from the essential requirements of law making cer-tiorari relief appropriate.

Accordingly, we grant the petition for certiorari relief and quash the trial court’s order abating this action.

PETITION GRANTED; ORDER QUASHED.

ORFINGER, J„ and HARRIS, C., Senior Judge, concur.


text:
    STATE of Florida, Petitioner, v. Tony L. TALBERT, Respondent.
    No. 5D02-3578.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Lawson L. Lamar, State Attorney, and-Chalon C. Young, Assistant State Attorney, Orlando, for Petitioner.
    Terrence E. Kehoe of Law Offices of Terrence E. Kehoe and Donald R. West, Orlando, for Respondent.
   PER CURIAM.

The State of Florida seeks our certiorari review of the trial court’s order allowing the defendant’s presence at the deposition of a witness. We conclude that in granting the motion, the trial court deviated from the essential requirements of the law and that this deviation resulted in a miscarriage of justice to the State. State v. Pettis, 520 So.2d 250 (Fla.1988). Under Florida Rule of Criminal Procedure 3.220(h)(7), a defendant shall not be physically present at a deposition except on stipulation of the parties or on a showing of good cause. Since the parties have not so stipulated and no good cause has been shown, we grant certiorari and quash the order. The petition for stay is therefore moot.

PETITION GRANTED.

PETERSON, SAWAYA and PLEUS, JJ., concur.


text:
    WAL-MART STORES, INC., Appellant, v. Alvin MAZOUREK, etc., Appellee.
    Nos. 5D99-3165, 5D99-3168.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Stacy D. Blank, Robert E.V. Kelley, Jr., and Joseph J. Weissman of Holland & Knight, LLP, Tampa, for Appellant.
    Joseph C. Mellichamp, III, Gaylord A. Wood, Jr., and B. Jordan Stuart of Wood & Stuart, P.A., New Smyrna Beach, for Appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

This cause came before this court on Wal-Mart Stores, Inc.’s (“Wal-Mart”) motion for clarification of our order dated December 20, 2002. Mazourek, the property appraiser, previously appealed a portion of this court’s prior decision to the Florida.Supreme Court. Specifically, the review by the supreme court was limited to only two of the three issues on appeal. The first issue concerned the property appraiser’s inclusion of sales taxes in an appraisal conducted pursuant to the cost approach. Our holding was that sales taxes paid are external costs and add nothing to the value. The second issue concerned whether the appraiser properly considered all the factors required in section 193.011, Florida Statutes.

The supreme court reversed our holding on those two issues, and pursuant to its instructions, this court, by order dated December 20, 2002, withdrew its prior mandate and affirmed the final judgment of the circuit court for Hernando County. Wal-Mart now asks this court to clarify its order with respect to the third issue of our previous decision which was not challenged in the supreme court.

The third issue involved a counterclaim. In its final judgment, the circuit court entered judgment in favor of the property appraiser on a counterclaim filed by the property appraiser against Wal-Mart. The circuit court permitted the property appraiser to assess, through the counterclaim, unidentified tangible personal property which Wal-Mart had allegedly failed to report. In our decision, however, this court concluded that the property appraiser’s attempt to assess the property through a counterclaim, rather than through the statutory procedures provided for that purpose, was improper. As a result, we reversed the circuit court’s judgment in favor of the property appraiser on the counterclaim issue.

In the appeal of this court’s decision, the property appraiser did not challenge this court’s ruling on the counterclaim issue. In fact, in footnote 4 of its Second Revised Opinion, the supreme court noted that neither party raised the counterclaim issue. As a result, the supreme court did not address this court’s decision on the counterclaim issue. Thus, this court’s decision which reversed the circuit court on the counterclaim issue remains in full force and effect. We clarify the December 20, 2002 order by recognizing that the portion of our original decision reversing the circuit court’s judgment on the counterclaim issue remains valid.

The case is remanded to the trial court for further proceedings consistent herewith. MOTION GRANTED; REMANDED.

PETERSON, SAWAYA and PLETJS, ■ JJ., concur.

      . Wal-Mart Stores, Inc. v. Mazourek, 778 So.2d 346 (Fla. 5th DCA 2000).

      . Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85 (Fla.2002).


text:
    Larry Tyrone LENNEAR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3996.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2003.
    Larry Tyrone Lennear, Defuniak Springs, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

We grant the petition for writ of habeas corpus seeking leave to file a belated appeal of the denial of Lennear’s rule 3.800 motion to correct his sentence, review the order on its merits pursuant to Florida Rule of Appellate Procedure 9.140(g), and affirm.

PETITION GRANTED. ORDER AFFIRMED.

PLEUS, ORFINGER, JJ., and HARRIS, C., Senior Judge, concur.


text:
    KWIK KING FOOD STORES, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, et al., Appellees.
    No. 5D01-3837.
    District Court of Appeal of Florida, Fifth District..
    Feb. 4, 2003.
    Michael G. Takac, Ocala and Gary M. Farmer, Jr. of Gillespie, Goldman, Kronen-gold & Farmer, P.A., Fort Lauderdale, for Appellant.
    Edwin C. Cluster, John B. Fuller and Robert H. McLean of Ayres, Cluster, Curry, McCall, Collins & Fuller, P.A., Ocala, for Appellees C.L. Dinkins, as Trustee, Bradford L. Dinkins and Dinkins & Din-kins, Inc.
    Pamela S. Leslie, General Counsel and Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, for Appellee Department of Transportation.
   PER CURIAM.

AFFIRMED. See Great American Restaurants, Inc. v. Dinkins, 831 So.2d 204 (Fla. 5th DCA 2002).

GRIFFIN, SAWAYA and TORPY, JJ., concur.


text:
    Charlie SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4044.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2003.
    Charlie Smith, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Tal-Mason v. State, 515 So.2d 738 (Fla.1987).

SHARP, W, SAWAYA, JJ., and COBB, W., Senior Judge, concur.


author: SILBERMAN, Judge.

text:
    Vincent MACALUSO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4835.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
   SILBERMAN, Judge.

Vincent Macaluso appeals from the trial court’s order denying his motion for post-conviction relief filed under Florida Rules of Criminal Procedure 3.800 and 3.850 and his motion to correct illegal sentence filed under rule 3.800. We affirm the denial of the latter motion without comment. With respect to the motion for postconviction relief, we affirm in part and reverse in part.

The motion for postconviction relief alleged several issues that the trial court correctly determined were time barred under rule 3.850. However, Macaluso also asserted that the predicate offenses used to support his adjudication as a habitual felony offender were either nonqualifying misdemeanors or felonies that fell outside of the applicable five-year time frame under the habitual offender statute. See § 775.084(l)(a), Fla. Stat. (1995). That claim is cognizable under rule 3.800 and may be raised at any time. See Fla. R.Crim. P. 3.800(a); Hollingsworth v. State, 802 So.2d 1210, 1211 (Fla. 2d DCA 2002). Because the trial court incorrectly denied the claim concerning predicate offenses as time barred, and did not otherwise address the claim, we reverse. On remand, if the trial court again denies relief, it must attach to its order those portions of the record supporting denial.

Affirmed in part, reversed in part, and remanded.

DAVIS and COVINGTON, JJ, Concur.

      . The actual title of Macaluso's motion was "motion to amend due to typographical error in case number, motion for postconviction relief, to correct an illegal sentence or vacate judgment and sentence.”


author: NORTHCUTT, Judge.

text:
    Antonio FINN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3378.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
   NORTHCUTT, Judge.

Antonio Finn challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings on one of Finn’s claims and affirm, without comment, the remainder of his claims.

In ground one of his motion, Finn alleged ineffective assistance of trial counsel based on counsel’s failure to object to the scoring of a juvenile offense as prior record on his guidelines scoresheet where Finn pleaded no contest and adjudication was withheld. Finn cited to Batchelor v. State, 729 So.2d 956 (Fla. 1st DCA 1999), in support of his claim. The trial court denied this claim, citing to Hill v. State, 805 So.2d 61 (Fla. 3d DCA), review dismissed by 817 So.2d 847 (Fla.2002), which holds that an offense is properly scored as prior record under the guidelines even if adjudication was withheld. The trial court stated that it “was unable to locate any ruling issued by [the Second District Court of Appeal] that adopted the reasoning set forth” in Batchelor. However, in State v. Freeman, 775 So.2d 344 (Fla. 2d DCA 2000), review denied by 790 So.2d 1108 (Fla.2001), we specifically aligned ourselves with Batchelor. See also McMillian v. State, 827 So.2d 354 (Fla. 2d DCA 2002). We therefore reverse the trial court’s order as it relates to. this claim and remand for the trial court to consider the claim.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and CASANUEVA, J., Concur.


author: STRINGER, Judge.

text:
    David LOVETTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3296.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
   STRINGER, Judge.

David Lovette appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he asserted several grounds for relief. We reverse and remand as to one claim. We affirm as to the remaining claims without comment.

Lovette was sentenced as a habitual felony offender to fifteen years in prison with five years suspended to be served as probation. He claims that he did not receive written notice of the intent to habitualize him. He further asserts that the trial court failed to ascertain that he was personally aware of the maximum habitual offender sentence he could receive and the consequences of habitualization. Lovette asserts that if he had been given the information, he would not have entered the plea, but would have proceeded to trial.

In Ashley v. State, 614 So.2d 486, 490 (Fla.1993), the Florida Supreme Court held that when a defendant is sentenced as a habitual felony offender, he must be told about the consequences of habitualization. Lovette’s claim is therefore facially sufficient. See Newsome v. State, 704 So.2d 213, 214 (Fla. 2d DCA 1998) (holding that defendant must allege that he would not have entered the plea had he been aware of the reasonable consequences of habitu-alization).

Since the trial court’s order merely denies relief without any attachments to refute these allegations, we reverse and remand for further proceedings as to this claim. If the trial court again summarily denies the motion, it must attach those portions of the record that refute the allegations. If the allegations cannot be conclusively refuted by the record, an eviden-tiary hearing may be conducted.

Affirmed in part, reversed in part, and remanded.

DAVIS and COVINGTON, JJ., Concur.


author: SALCINES, Judge.

text:
    Anthony D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3241.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
   SALCINES, Judge.

Anthony D. Williams appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Williams claims that his forty-year sentence is illegal because it exceeds the statutory maximum sentence for a first-degree felony. Williams was charged with attempted first-degree murder, a first-degree felony. See §§ 782.04(l)(a), 777.04(4)(a), Fla. Stat. (1989). The information specifically states that Williams attempted to kill the victim “with a firearm,” and the jury found Williams guilty as charged of attempted first-degree murder with a firearm. Therefore, the offense was reclassified from a first-degree felony to a life felony pursuant to section 775.087(l)(a), Florida Statutes (Supp.1990), for the use of a firearm, and the forty-year prison sentence is legal since it is within the statutory maximum sentence provided for life felonies. See § 775.082(3)(a), Fla. Stat. (1989).

Williams’ confusion is understandable, however, in light of a scrivener’s error contained within the judgment that incorrectly reflects that Williams was convicted of a first-degree felony. In order to avoid future confusion, the trial court may find it advisable to correct that scrivener’s error.

Affirmed.

DAVIS and COVINGTON, JJ., Concur.


author: PER CURAIM.

text:
    Queen WILLIAMS, etc., Appellant, v. Juan Carlos DIAZ, et al., Appellees.
    No. 3D02-583.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Abramson & Magidson and John M. Abramson (Homestead), for appellant.
    Ferencik, Libanoff, Brandt & Busta-mante and Gavin D. Caddy (Plantation); Knecht & Knecht and Harold C. Knecht, St. Paul, Mn, for appellees.
    Before SCHWARTZ, C.J., and FLETCHER and SHEVIN, JJ.
   PER CURAIM.

Affirmed. See Pacheco v. Florida Power & Light Co., 784 So.2d 1159 (Fla. 3d DCA 2001), review denied, 805 So.2d 806 (Fla.2001).


text:
    Joseph L. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3247.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Joseph L. Smith, in proper person.
    Charlie Crist, Attorney General, and Michael J. Neimand, and Jason Helfant, Assistant Attorneys General, for appellee.
    Before GERSTEN, and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Middleton v. State, 721 So.2d 792 (Fla. 3d DCA 1998).


text:
    Alejandro CRUZATA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3077.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Douglas J. Glaid (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Batista v. State, 685 So.2d 20 (Fla. 3d DCA 1996), review denied, 695 So.2d 698 (Fla.1997).


text:
    Elroy A. LEONARD, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D02-1128.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Elroy A. Leonard, in proper person.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before JORGENSON, LEVY, and RAMIREZ, JJ.
   PER CURIAM.

Elroy A. Leonard appeals from an order of the Unemployment Appeals Commission affirming the denial of unemployment compensation benefits. For the following reasons, we reverse.

The employee’s attendance of a school picnic authorized by the host school and the students’ parents violated his employer’s policies, and justified his termination from employment. However, “the record does not contain substantial competent evidence to support a finding of misconduct serious enough to disqualify [him] from receiving unemployment compensation benefits.” Mitchell v. Florida Unemployment Appeals Comm’n, 804 So.2d 618, 618 (Fla. 3d DCA 2002) (citing Carmona v. Florida Unemployment Appeals Comm’n, 826 So.2d 1014, 1015 (Fla. 3d DCA 2001)).

Accordingly, we reverse with directions to afford the claimant the entire amount of benefits claimed.

REVERSED.


text:
    Theodore THOMAS, Appellant, v. DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee.
    No. 3D02-1188.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Theodore Thomas, in proper person.
    Stephen S. Mathues, Tallahassee, for ap-pellee.
    Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Because the appellant has not demonstrated that the Department of State committed any error of law or procedure, we affirm the license revocation under section 493.6118, Florida Statutes (2002).

Affirmed.


text:
    George W. FELDER, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 3D02-3021.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    George W. Felder, in proper person.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for appellee.
    Before GERSTEN, GREEN and WELLS, JJ.
   PER CURIAM.

George W. Felder appeals from an order denying his petition for writ of habeas corpus. We redesignate the appeal as a petition for writ of certiorari. See Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998). We deny the petition finding no error in the revocation of conditional release supervision. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Cavalcante v. Florida Parole and Probation Comm’n, 414 So.2d 658 (Fla. 1st DCA 1982).

Certiorari denied.


text:
    T.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-371.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation and disposition order adjudicating him delinquent. We remand, however, for correction of the disposition order to reflect that appellant was found guilty of battery after trial, rather than pled guilty to the charge.

AFFIRMED, in part; REMANDED.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Stacey J. CREIGHTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2703.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.

      Stacey J. Creighton, in proper person.
    Charlie Crist, Attorney General, and Mark Rosenblatt (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before JORGENSON, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Major v. State, 814 So.2d 424 (Fla.2002).


author: FLETCHER, Judge.

text:
    FENCE MASTERS, INC., Appellant, v. ZURQUI CONSTRUCTION SERVICE, INC., etc., et al., Appellees.
    No. 3D02-1508.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Andrew M. Feldman and Patrick C. Barthet, Miami, for appellant.
    Lehtinen, Vargas & Reiner and Samuel B. Reiner, II, Miami, for appellees.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   FLETCHER, Judge.

Zurqui Construction Service, Inc. [Zur-qui] contracted with the City of Fort Lauderdale for the improvement of property known as Holiday Park Phase II. Zurqui then contracted with Fence Masters, Inc. for fence and gate materials and labor for the project. Through change orders the total sum agreed upon for Fence Masters’ labor and materials was $283,725.00. During the progression of Fence Masters’ work, Zurqui paid Fence Masters $117,744.05, but refused to pay the balance notwithstanding Zurqui’s admission that it had received from the City all the funds due for Fence Masters’ work on the project.

Fence Masters brought suit for payment of its contract balance. The suit ultimately included a count alleging that Zurqui violated section 255.071, Florida Statutes (2001). This section requires entities which received payment from public agencies (such as the city) for various public works projects, to pay the undisputed contract obligations for labor, services or materials provided by others — such as Fence Masters here. § 255.071(1), Fla. Stat. (2001). An entity’s failure to pay any of its undisputed obligations for labor, services or materials for the public works project entitles providers (such as Fence Masters) to file a verified complaint seeking the undisputed, unpaid portion of the contract amount with an early (on fifteen days notice) evidentiary hearing. § 255.071(2),(3) and (4).

After hearing, pursuant to section 255.071(4)(a), Zurqui was required by the trial court to prepare an accounting. The accounting reflected that the City paid Zurqui $283,725.00 for Fence Masters’ work while Zurqui paid only $117,744.05 to Fence Masters for that same work, leaving an apparent balance of $165,980.95 due Fence Masters from Zurqui. However, Zurqui has contested portions of the unpaid funds, as the accounting reflects:

“At this time, the total amount of damages, including but not limited to liquidated damages, claimed by Zurqui from Fence Masters is $63,000 and no other claims for additional work, liquidated damages, back charges, expenses, warranty work or damages, claims or sums due whatsoever are claimed by Zurqui pertaining to the work of Fence Masters.”

[Ex.I, exhibits to appellant’s brief] Based on the accounting Fence Masters argues that there is no bona fide dispute as to there being $95,972.35 due Fence Masters, and pursuant to section 255.071(4), Florida Statutes (2001), Fence Masters is entitled to various immediate remedies for the rapid recovery of that amount. We agree.

As a consequence we reverse the trial court’s order denying Fence Masters’ motion for entry of final judgment as to Count V (relating to the section 255.071 claim) and remand with instructions to enter final judgment for Fence Masters as to Count V in the principal amount of $95,972.55.

Reversed and remanded.

      . After this conclusion, the accounting states that the City may make a $20,000 ± claim for "defective work.”

      . The trial court can only enter judgment on the undisputed amount. As to the disputed amounts the case must proceed as any other contract lawsuit. See Astaldi Const. Corp. v. American Asphalt, Inc., 672 So.2d 609 (Fla. 5th DCA 1996).


text:
    E.S. Mother of C.F. AND C.H., JR., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-3582.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.

      Maria Rodriguez, Tallahassee, for Appellant.
    Acelo I. Pedrosa, Susan Dawson, Joyce Sibson Dove, Don Pumphrey Jr., Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s responses or failure to respond to this Court’s orders, dated December 10, 2002, November 12, 2002, October 14, 2002, and September 23, 2002, we dismiss this appeal for lack of jurisdiction because no order filed constitutes either a final order or a nonfinal order appealable pursuant to Florida Rules of Appellate Procedure, 9.130(a)(4) (2002).

The appellant is seeking review of the Final Order Ratifying General Master’s Finding that Mother Engaged in Egregious Conduct, But Granting Exception that Manifest Best Interests Do Not Support Termination at This Time, filed July 30, 2002. In this order on a petition for termination, the trial court found that there were grounds for termination, but failed to terminate the appellant’s rights based on a determination that termination was not in the best interests of the children at this time. This order also failed to find that the children were dependent.

Orders terminating parental rights or adjudicating children dependent are ap-pealable. See G.L.S. v. Department of Children & Family Services, 724 So.2d 1181 (Fla.1998); A.G. v. Department of Children and Family Services, 731 So.2d 1260 (Fla.1999). Following a termination hearing, the trial court is required to either (1) deny the petition for termination of parental rights and either (a) adjudicate the children dependent or (b) dismiss the petition for termination, or (2) grant the petition to terminate parental rights. § 39.811(l)(a)(b), (2), Fla. Stat. (2001). However, this order is not final because it neither terminates parental rights nor adjudicates the children dependent.

This Court allowed the appellant an opportunity to obtain a final order terminating parental rights or adjudicating the children dependent. However, the order obtained, Report and Order on Status of Appeal and Final Order Heard on October 28, 2002, filed December 4, 2002, also fails to terminate parental rights or adjudicate the children dependent. Therefore, dismissal for lack of jurisdiction on this direct appeal is appropriate.

DISMISSED.

ALLEN, C.J., WOLF and PADOVANO, JJ., concur.


text:
    CAPITAL TRUCK, INC., a Florida corporation, Michael Pitts, an individual, and Mark Thomas, an individual, Appellants, v. INTERNATIONAL TRUCK AND ENGINE CORPORATION, a foreign corporation, Appellee.
    No. 1D02-4127.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    Robert A. Bass of Myers and Fuller, Tallahassee; and Thomas F. Panebianco, Tallahassee, for Appellant.
    Timothy McDermott and J. Riley Williams, Jacksonville, and Bruce Culpep-per, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellants’ response to this Court’s order, dated November 13, 2002, we dismiss for lack of jurisdiction. The order on appeal, Order Granting Plaintiffs Motion to Dismiss Count II of Defendant Capital Truck, Inc.’s Counterclaim, rendered on September 10, 2002, is a compulsory counterclaim where it, and all the pending claims, all revolve around factual determinations as to whether a franchise interest could be transferred. Therefore, the dismissal of this compulsory counterclaim is neither a final appealable order nor an appealable partial final judgment. See Campbell v. Gordon, 674 So.2d 783, 785 (Fla. 1st DCA 1996); Fla. R.App. P. 9.110(k), (m) (2002).

DISMISSED.

ALLEN, C.J., WEBSTER and BENTON, JJ., concur.


text:
    Reyneldon DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4625.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    William Mallory Kent of The Law Office of William Mallory Kent, Jacksonville, for Appellant.
    Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Reyneldon Davis, appeals his convictions and sentences for conspiracy to traffic in cocaine and trafficking in cocaine. Davis claims the trial court erred in denying his motion to suppress cocaine seized from his rental vehicle. We agree.

The trial court improperly based its denial of the motion to suppress upon a finding of a valid stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At oral argument, the State conceded that the seizure of the cocaine from Davis’ rental vehicle was not proper under Terry. Thus, we reverse the trial court’s order denying Davis’ motion to suppress and his convictions and sentences, and remand for a new trial. In light of our determination as to Davis’ first claim on appeal, we decline to address Davis’ additional claims.

Reversed and remanded for further proceedings consistent with this opinion.

WEBSTER, DAVIS and VAN NORTWICK, JJ„ concur.


text:
    Daniel M. EDELMAN, etc., Appellant, v. Johnnie Cordell BREED, et al., Appellees.
    No. 5D02-332.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Joseph A. Frein of Law Offices of Joseph A. Frein, Orlando, and Charles P. Pillans, III, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, for Appellant.
    Alan B. Taylor and Paul E. Dehart of Litchford & Christopher, P.A., Orlando, for Appellees.
   PLEUS, J.

This is an appeal from an order which removed Daniel Edelman as the personal representative of the Estate of Allen Kent Breed, deceased. Allen Breed invented the triggering device to inflate airbags in motor vehicles. Edelman, a CPA, had been Breed’s advisor on financial and tax matters.

After Breed’s death, Edelman and Breed’s widow, Johnnie Cordell Breed, had a falling out over fees and expenses in the estate. At the urging of Mrs. Breed, the petition for removal was filed by the co-trustees of the Allen K. Breed Revocable Trust which was the sole beneficiary under Breed’s will. The amended petition alleged a multitude of grounds for removal, including a pending malpractice action filed by Mrs. Breed against Edelman and his accounting firm.

After an answer to the adversarial proceedings was filed by Edelman, a hearing was held by the Honorable W. Rogers Turner. Over a two-day period, the co-trustees put on evidence. After they rested, Edelman moved for a directed verdict. Counsel for the co-trustees responded, “I think we’ve made a prima facie case to have him removed now through a directed verdict on our favor.” The trial court took the matter under advisement and the next day granted the co-trustees’ “Motion for a Directed Verdict.” The court then made findings of fact in which the trial court concluded that there was “an unquestionable conflict of interest” with respect to the malpractice suit by Mrs. Breed, everything had become “adversarial”, and there had been “maladministration of the estate”, as well as “absolutely astronomical fees” incurred thus far.

Counsel for Edelman properly objected, stating:

Judge, if I can respond. This was an adversary proceeding served by formal notice being adopted in the court by the Rules of Civil Procedure.
I have at least six witnesses to testify. I have direct examination from Mr. Edelman. I have testimony for the attorneys for — who administered — involved in the administration of the estate.
I have depositions to publish to the Court, and I have expert testimony in the areas of estate tax and accounting, and I’ve not been afforded an opportunity to address — to present any evidence to this Court, Judge.
On the inflated valuations or on problems with the 706, on the Vermont and Nevada ancillary proceedings or the fees incurred, although I object to that as being part of this proceeding, this would be akin, Judge, to a civil trial to the plaintiff after having rested their case, the defense is precluded from presenting its case in opposition to it, and I object on that basis, Judge.

Edelman should have been allowed to present his defense. Instead, the trial court granted the motion and entered an order removing Edelman and replacing him with the co-trustees.

The ruling was improper both procedurally and substantively. Adversarial proceedings to remove a personal representative are governed by the Florida Probate Rules and the Florida Rules of Civil Procedure. The procedure followed in this case is contrary to the Probate Rules, the Rules of Civil Procedure, and the fundamental guarantees of due process.

Florida Rule of Civil Procedure 1.480(a) provides:

Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made....

Nowhere in the rule, or comments to the rule, is there any suggestion that a plaintiff (the petitioner in this case) may move for a directed verdict at the close of its case. We hold it is reversible error and a denial of due process for a trial court to direct a verdict against a party prior to the time the party moved against has been given an opportunity to present its case in chief. In this case, Edelman should have been afforded an opportunity to refute the allegations of the petition.

In Pelle v. Diners Club, 287 So.2d 737 (Fla. 3d DCA 1974), Diners Club brought suit on an unpaid balance on credit card charges. At the close of the plaintiffs case, the court stated that it understood the positions of the parties and requested letter memoranda, following which the court entered a judgment for the plaintiff. The judgment was reversed by the district court of appeal, stating:

It is fundamental that the constitutional guarantee of due process, which extends into every proceeding, requires th[at] the opportunity to be heard be full and fair, not merely colorable or illusive.
Turning to the case at bar, we find the trial court erred in failing to grant the appellant an opportunity to present its case-in-chief and, therefore, was denied the protection afforded by the constitutional guarantee of due process of law.

Pelle, 287 So.2d at 738.

In In Re Estate of Sackett, 171 So.2d 906 (Fla. 1st DCA 1965), an executor appealed an order vacating a final discharge order and appointing an administrator. The appellant argued that the trial court violated due process by entering the order without giving him an opportunity to present evidence against the allegations in the petition. In addressing this argument, the appellate court stated:

If the petition filed by appellee was for the purpose of seeking the removal of appellant as the executor of decedent’s estate for any of the causes specified by law, and the order here appealed constituted a removal of appellant as executor, then we would be forced to agree that appellant has not been accorded due process of law, and the order appealed should be reversed. Such, however, is not the case.

Sackett, 171 So.2d at 909-10. Such is the ease in the instant case; the court removed Edelman for cause under section 733,504, Florida Statutes, without first giving him an opportunity to present evidence against the petition for removal.

In Carmichael v. Shelley Tractor & Equipment Co., 300 So.2d 298 (Fla. 4th DCA 1974), the plaintiff brought a suit for breach of contract. The defendant filed a counterclaim and the case proceeded to a non-jury trial. At trial, the plaintiff voluntarily dismissed his complaint and at the conclusion of the defendant’s case-in-chief on its counterclaim, the court granted the defendant’s (the counterclaim plaintiffs) motion for directed verdict. The judgment on the verdict was reversed, saying:

The granting of appellee’s motion for directed verdict on Count I at the close of its case-in-chief and before appellant had rested was error as the motion was premature. At trial upon the issues made by the pleadings, a party may not move for and obtain a directed verdict prior to the time the party moved against has completed its case-in-chief. Otherwise, such party would be denied due process of law.

Carmichael, 300 So.2d at 299.

In Department of Health & Rehabilitative Services v. Marlow, 448 So.2d 1106 (Fla. 1st DCA 1984), the Department appealed an order of the Career Service Commission which had directed a verdict in favor of an employee who alleged that she was improperly discharged. The Commission directed the verdict over the objection of the Department that it had not been permitted to present a case on the issue of whether just cause existed for the dismissal. The First District Court of Appeal reversed the order of the Commission insofar as it made findings of fact and conclusions of law on the issue of just cause for dismissal without permitting the Department to present its ease.

In Searock, Inc. v. Babcock, 667 So.2d 853 (Fla. 3d DCA 1996), the plaintiff, Bab-cock, and the defendant, Searock, at the conclusion of the plaintiffs case-in-chief, both, as here, filed motions for directed verdict. The trial court, as it did in this case, granted the plaintiffs motion. The district court, citing the long line of authority on this point, said:

Simply, the trial court erred in granting a directed verdict for Babcock and in depriving Searock of the ability to present its case. Precedent fails to support the granting of a directed verdict before the defendant has had an opportunity to present its case. To the contrary, Florida jurisprudence clearly mandates that “a party may not obtain a directed verdict prior to the time that the party moved against has completed his casein-chief, since to do so would constitute a denial of due process of law.”

Searock, 667 So.2d at 853.

Edelman has asked that should we reverse the trial court, a new judge be named to rehear the case. By the time our decision is released, the Honorable W. Rogers Turner will be retired after a long tenure of dedicated service as a circuit judge. Thus, the request is moot.

The order removing Daniel M. Edelman as the personal representative is reversed. The order appointing Charles Speranzella and Terry Cordell to succeed Edelman as personal representative is vacated. The cause is remanded to reconsider Edel-man’s status as the personal representative of the estate by way of an evidentiary hearing which gives Edelman an opportunity to be heard.

ORDER OF REMOVAL REVERSED; CAUSE REMANDED.

PETERSON and ORFINGER, JJ., concur.

      . Fla. Prob. R. 5.010 & 5.025(d) and Fla. R. Civ. P. 1.010.

      . Of course, the circuit court always has the authority to appoint an administrator ad litem to safeguard the estate if the court has reason to believe that the estate assets and administration are endangered or being mismanaged. Thereafter, the court should promptly entertain its concerns on the merits with respect for the due process rights of all interested parties.


author: TORPY, J.

text:
    Howard H. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1161.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Attorney General, Daytona Beach, for Appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

We affirm the appellant’s conviction and sentence. We certify, however, as we did in Kersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), the question of whether the enactment of Chapter 02-210, Laws of Florida, cured the single subject violation of Chapter 99-188, Laws of Florida.

AFFIRMED.

PETERSON and PALMER, JJ., concur.


text:
    Michael Joseph STRAUSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1306.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Michael Joseph Strauss, Daytona Beach, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Michael Joseph Strauss, appeals the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion included eighteen separate grounds, with subclaims. The trial court conducted a hearing on certain of these claims and the others were denied without a hearing. All claims were denied by the trial court in a detailed and thorough order. We have made a painstaking review of all eighteen claims and find no reversible error..

AFFIRMED.

PLEUS, J., and COBB, W., Senior Judge, concur.


author: HARRIS, C., Senior Judge,

text:
    Martin S. YATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1313.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C., Senior Judge,

Appellant argues, and the State concedes, that there is a conflict between the oral sentencing and the judgment of sentence. The cause is remanded to the trial court to correct the judgment.

REVERSED and REMANDED for correction.

PLEUS and PALMER, JJ., concur.


text:
    Shannon R. MILES, etc., Appellant, v. Sean M. HYMAN, Appellee.
    No. 5D02-1912.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Linda D. Schoonover of Linda D. Schoonover, P. A., Altamonte Springs, for Appellant.
    Andrew Zelman of Cotter & Zelman, P. A., Winter Park, for Appellee.
   ORFINGER, J.

The former wife, Shannon R. Miles, appeals the trial court’s order dismissing for lack of jurisdiction her supplemental petition for modification of a final judgment of dissolution of marriage and changing primary residential responsibility of her minor children. Because we find that Florida has jurisdiction to consider the former wife’s petition, we reverse.

The marriage of the former wife and Sean M. Hyman, the former husband, was dissolved in Seminole County, Florida, in June, 1999, with the parties agreeing to joint custody of their minor children. The former wife alleged that pursuant to the custody provisions of the final judgment, she had substantial contact with the children in Florida until September, 2000, when the former husband removed them from the state of Florida without notice or agreement, and provided no way for her to contact the children. The minor children then resided with the former husband in Texas until May, 2001, when the former husband relocated the children to Arkansas.

Although the parties agree that the courts of Florida had jurisdiction to make the initial custody determination pursuant to section 61.1308, Florida Statutes (2000), their present disagreement stems from the parties’ differing views regarding Florida’s continuing jurisdiction to modify the initial custody determination. The former husband moved to dismiss the former wife’s petition, contending that the Florida court lacked subject matter jurisdiction to alter the custody determination because the children lacked any significant contacts with Florida. The trial court agreed and dismissed the petition.

The jurisdiction of a Florida court to alter its own custody orders does not automatically terminate simply because the children may have resided outside Florida for more than six months, when it appears the children maintained significant contacts with Florida. Yurgel v. Yurgel, 572 So .2d 1327, 1331-32 (Fla.1990). “To the contrary, jurisdiction must be presumed to continue once it is validly acquired under section 61.1308; and it Continues up until a Florida court expressly determines on some other basis that jurisdiction no longer is appropriate, until virtually all contacts with Florida have ceased, until some other Florida statute terminates jurisdiction, or until jurisdiction is terminated by operation of the [Parental Kidnapping Prevention Act].” Id. at 1332 (emphasis in original) (citing 28 U.S.C. § 1738A (1987)). The UCCJA generally prohibits the courts of one state from modifying the custody decrees of other states unless those other states no longer have, or have declined to exercise, jurisdiction. § 61.133, Fla. Stat. (2001). By doing so, the UCCJA discourages shifting children from state to state as a way of forum shopping and prevents conflicts among jurisdictions once a state has entered a custody decree. Yurgel.

A petition to modify a custody order should be addressed to the court that rendered the original decree, even if a second state has become the “home state” of a child. Lamon v. Rewis, 592 So.2d 1223, 1225 (Fla. 1st DCA 1992). Here, although Arkansas may now be the home state of the children, the trial court erred in determining, without considering any evidence, that the children lacked significant contacts with Florida. The parties concede that the former wife had regular contact with the children in Florida until September, 2000, and again visited with the children in Florida in December, 2001. These conceded facts alone demonstrate sufficient contacts for the Florida court to retain jurisdiction to consider the former wife’s supplemental petition, particularly where it appears that the children were improperly removed from the state.

For the foregoing reasons, we reverse the trial court’s order dismissing the former wife’s supplemental petition and remand this matter for further proceedings.

REVERSED AND REMANDED.

SHARP, W. and GRIFFIN, JJ., concur.

      . The court amended the final judgment in March, 2000, based on a stipulation by the parties.

      . Section 61.1308 of Florida's Uniform Child Custody Jurisdiction Act (UCCJA), provides:
      (1)A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (a) This state:

        1. Is the home state of the child at the time of commencement of the proceeding, or
      2. Had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his or her removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; (b) It is in the best interest of the child that a court of this state assume jurisdiction because:
      1. The child and his or her parents, or the child and at least one contestant, have a significant connection with this state, and
      2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
      (c) The child is physically present in this state and:
      1. The child has been abandoned, or
      2. It is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or (d) 1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
      2. It is in the best interest of the child that a court of this state assume jurisdiction. (2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      (3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody.
      § 61.1308, Fla. Stat. (2000).

      . Effective October 1, 2002, the UCCJA was amended as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and renumbered, sections 61.501-542, Florida Statutes (2002). Because the former wife’s petition for modification was filed prior to October 1, 2002, the UCCJA, rather than the UCCJEA, applies. See § 61.542, Fla. Stat. (2002).

      . Arkansas adopted the Uniform Child Custody Jurisdiction Act in 1979. Ark.Code Ann. §§ 9-13-201 to 9-13-227 (1979). Arkansas repealed the UCCJA when its general assembly enacted the UCCJEA in 1999. See 1999 Ark. Acts 668, § 405; see also Ark.Code Ann. §§ 9-19-101 to 9-19-401 (2002).


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Beth Ann SOSNOWSKI, Appellee.
    No. 5D02-1904.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.

      Paul L. Nettleton and Nancy C. Ciampa of Carlton Fields, P.A., Miami, for Appellant.
    Gregory S. Stark of McKeever, Albert & Barth, Winter Park, for Appellee.
   ORFINGER, J.

State Farm Fire and Casualty Company appeals the trial court’s order denying its motion to transfer venue due to forum non conveniens, section 47.122, Florida Statutes (2002). We reverse.

Beth Ann Sosnowski sued State Farm and its agent, Phillip Thompson, alleging that State Farm and Thompson fraudulently failed to disclose to her the existence of available uninsured motorist (UM) benefits and to pay her certain UM benefits due under her automobile insurance policy following an accident. Sosnowski’s action was filed in the circuit court of Seminole County, Florida. Pursuant to section 47.122, State Farm moved to transfer venue to Broward County due to forum non conveniens. State Farm premised its motion on the fact that (1) Sosnowski is a resident of Georgia; (2) State Farm is an Illinois corporation with agents and offices located throughout Florida, including Bro-ward County and Seminole County; (3) Sosnowski obtained her State Farm policy in Broward County; (4) Sosnowski’s claim was adjusted by State Farm representatives in Broward County; and (5) the accident, which resulted in the claim, occurred in Palm Beach County, where Sosnowski received treatment for her injuries.

The standard of review of a trial court’s denial of a motion to transfer due to forum non conveniens is abuse of discretion. Darby v. Atlanta Cas. Ins. Co., 752 So.2d 102, 103 (Fla. 2d DCA 2000). Sosnowski’s initial venue selection was based on the fact that State Farm has an office in Seminole County, but all other record evidence indicates that State Farm’s Seminole County office has no connection to Sosnowski’s lawsuit or the underlying claim. Broward County, or perhaps Palm Beach County, where the accident occurred and where Sosnowski received medical treatment, are clearly more convenient to the parties and better serve the interest of justice. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So.2d 1195 (Fla. 2d DCA 1996) (granting change of venue to Lake County, which contained majority of witnesses and was site of all alleged contact; noting that in the interest of justice, Polk County should not hear a case when only connection to Polk County was location of lawyer’s office). Accordingly, we conclude that the trial court abused its discretion in denying the change of venue. Finding no merit in the remaining issues, we reverse and remand for further proceedings.

REVERSED AND REMANDED.

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


text:
    Brian Jack FORD, Appellant, v. Wendy Lea LEWIS, Appellee.
    No. 5D02-2537.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Brian Jack Ford, DeLeon Springs, pro se.
    James R. Clayton of Clayton, Teal & Huddleston, P.A., DeLand, for Appellee.
   PLEUS, J.

The final judgment establishing paternity and shared parental responsibility is affirmed without prejudice to the appellant to raise visitation. The trial court which reserved ruling on the issue. See Fla. R. Civ. P. 1.540(b).

AFFIRMED.

SAWAYA and MONACO, JJ., concur.


author: SHARP, W., J.

text:
    Eric Lamar WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3279.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Eric Lamar Williams, Ocala, pro se.
    No Appearance for Respondent.
   SHARP, W., J.

We deny Williams’ petition for a belated appeal filed October 9, 2002 in this court. On advice of counsel, he dismissed his appeal from the criminal cases involved in this case. Thus his convictions became final September 8, 2000. He also collaterally attacked those convictions by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850, claiming ineffective assistance of trial counsel. The denial of the motion was affirmed on appeal. See Williams v. State, 821 So.2d 1083 (Fla. 5th DCA 2002).

In this current proceeding, Williams argues his trial counsel and his appellate counsel were ineffective. His attack on trial counsel is successive. In addition, we find that Williams’ attack on appellate counsel’s ineffectiveness is time barred by the two-year statute of limitations, and his failure to allege any special factual basis that he was affirmatively misled about the results of his appeal. Further, even if not time barred, the claimed omissions were not of such magnitude as to constitute a serious or substantial deficiency. See Teffeteller v. Dugger, 734 So.2d 1009 (Fla.1999); Johnson v. Singletary, 695 So.2d 263 (Fla.1996).

To the extent Williams is also asserting ineffective assistance of counsel in prosecuting the rule 3.850 motion, we are unable to recognize such a claim. See Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999); State v. Riechmann, 777 So.2d 342, 364 n. 22 (Fla.2000).

Petition for Belated Appeal DENIED.

SAWAYA, J., and HARRIS, C., Senior Judge, concur.

      . First degree murder (section 782.04(l)(a), Florida Statutes), armed burglary (section 810.02(1), (2)(b), Florida Statutes) and aggravated assault (section 784.021(l)(a), Florida Statutes).

      . Fla. R.App. P. 9.141(c)(4)(B).


author: PALMER, J.

text:
    Edwin B. HARVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3505.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Edwin B. Harvey, Crestview, pro se.
    No Appearance for Respondent.
   PALMER, J.

As in Johnson v. State, 652 So.2d 980 (Fla. 5th DCA 1995): “The number thirteen proves unlucky for petitioner.” That is the number of times petitioner Edwin B. Harvey, who entered no contest pleas, has attempted to collaterally attack in this court his 1991 convictions and sentences after he had his' convictions affirmed in this court over ten years ago. Harvey v. State, 600 So.2d 1127 (Fla. 5th DCA 1992). “Enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).

In fact, more than three years ago, we twice warned Harvey about submitting successive, meritless postconviction claims. See Harvey v. State, 748 So.2d 1057 (Fla. 5th DCA 1999); Harvey v. State, 726 So.2d 814 (Fla. 5th DCA 1999). In spite of that warning, he has done so again by filing the instant request for a belated appeal from the denial of his latest postconviction motion. Based upon his numerous and successive meritless pro se filings, we hold that Harvey is prohibited from filing any additional appeals, pleadings, motions or petitions pertaining to his convictions and sentences in Eighteenth Judicial Circuit Court No. 91-550-CFA unless reviewed and signed by an attorney licensed to practice in the State of Florida. The clerk of this court is directed not to accept from Harvey, as petitioner or appellant, any further pro se pleadings or filings which relate to that case. See Ellison v. State, 807 So.2d 825 (Fla. 5th DCA), rev. denied, 829 So.2d 917 (Fla.2002); Jackson v. Florida Dep’t of Corrections, 790 So.2d 398 (Fla. 2001); Vickson v. Singletary, 734 So.2d 376 (Fla.1999).

PETITION DENIED.

SAWAYA, J., and COBB, W., Senior Judge concur.

      . Harvey also had two other cases as well, Case No. 90-1416 and Case No. 91-755, but it appears his sentences in those cases have been served, making it unnecessary for this court to enter an order barring him from submitting pro se filings in those cases.


author: CASANUEVA, Judge.

text:
    Gary JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2707.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
   CASANUEVA, Judge.

Gary Johnson appeals the denial of his petition for writ of mandamus. In his petition Johnson sought to compel the Clerk of the Circuit Court of Pinellas County to provide him with free copies of multiple documents relating to his trial and direct appeal.

We agree with the trial court that because Johnson seeks these records for postconviction purposes he is not entitled to free copies of these documents from the Clerk. See Roesch v. State, 633 So.2d 1 (Fla.1993). However, Johnson is entitled to receive copies of any transcripts that were prepared at government expense for his direct appeal and that are in the possession of his former public defender. See Thompson v. Unterberger, 577 So.2d 684 (Fla. 2d DCA 1991). Transcripts provided at public expense to facilitate an indigent defendant’s appeal do not become the property of counsel once the appeal has been completed. Id. We therefore affirm without prejudice to Johnson’s right to seek these documents from his former public defender.

Affirmed without prejudice.

NORTHCUTT and SALCINES, JJ., Concur.


text:
    Adan LOREDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-241.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.

      Jeffrey Sullivan of Stidham & Stidham, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Adan Loredo appeals three convictions for lewd, lascivious, or indecent assault in violation of section 800.04(1), Florida Statutes (1997), asserting two grounds for reversal. We affirm without comment the trial court’s decision not to grant a mistrial. We also affirm the admission of his confession into evidence but write to discuss several issues Mr. Loredo has raised concerning alleged police impropriety.

Arriving home from work one evening, Mr. Loredo was contacted by Detective Lewis of the DeSoto County Sheriffs Office, who asked him to come to the sheriffs station to discuss a complaint that he had sexually abused his paramour’s juvenile daughter. He drove to the sheriffs office in his own car and, upon arrival, was led by the detective to an interrogation room. The detective told him that the door was closed but not locked, information that was repeated later in the interview. The record shows that Mr. Loredo was advised that he was not in custody and that he was free to get up and walk out the door any time he wished. Additionally, he was placed under oath and advised that another officer was present in case he needed anything translated from English to Spanish. He made no such request during the interrogation. Near the end of the interrogation, however, after Mr. Loredo made incriminating statements, the detective twice mentioned that she would take information provided by Mr. Loredo to the judge. During the interrogation Mr. Lor-edo was never provided the warnings associated with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The standard of review for motions to suppress confessions raising issues under the Fifth Amendment and article I, section 9, of the Florida Constitution follows a two-tier inquiry. On questions of historical fact, the trial court is afforded deference. With regard to such findings the trial court is entitled to a presumption of correctness and can be reversed only if those findings are not supported by competent substantial evidence. The second tier involves a de novo review of the application of the legal standards to the historical facts as found by the trial court. Connor v. State, 803 So.2d 598, 605-08 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). To enable the appellate court to apply this standard of review properly and effectively, the trial court must, as here, make its findings of fact on the record, either in the transcript of proceedings or in a written order.

In this case the initial issue is whether Mr. Loredo was interrogated. Because the objective in questioning him was to obtain admissions of guilt, we find that he was interrogated. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Killian v. State, 761 So.2d 1210, 1213 (Fla. 2d DCA 2000).

The second issue is whether Mr. Loredo was in custody at the time of his interrogation, a mixed question of fact and law. The record here clearly establishes that Mr. Loredo was told he was not under arrest, that he could leave at any time; furthermore, he was given directions for exiting the station. Applying the four factors set forth in Ramirez v. State, 739 So.2d 568, 573-74 (Fla.1999), we conclude that Mr. Loredo was not in custody for purposes of Miranda and that the police were not required to give Miranda warnings. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

The third issue is whether the interrogating officer’s comments regarding presenting the matter to the state attorney’s office and later to a judge were statements suggesting leniency. On the record of this case, we hold they were not. Not only was there no explicit suggestion of leniency, the evidence failed to establish an express quid pro quo bargain for the confession. Bruno v. State, 574 So.2d 76, 79-80 (Fla.1991) (“Statements suggesting leniency are only objectionable if they establish an express quid pro quo bargain for the confession.”); Grasle v. State, 779 So.2d 334, 336 (Fla. 2d DCA 2000). We caution, however, that in another case the record may not be as clear. We urge custodial interrogators not to indicate an intention to bring the matter to a judge or to the judiciary. Because judges traditionally impose sentence, such a suggestion may imply lenience and thus coercive police conduct. A similar concern arises with suggestions to bring the matter to the state attorney, given the number of statutes that essentially place the sentencing decision into the hands of the prosecutor.

Finally, Mr. Loredo argues that the detective made false statements of evidence and promises of treatment to induce his confession. Police deception does not render a confession involuntary per se. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). The record here does not establish that law enforcement overstepped the line of permitted deception. We do suggest, however, that when law enforcement uses such deception, the legality of the confession is more likely to be sustained when Miranda warnings have been given. See State v. Cayward, 552 So.2d 971 (Fla. 2d DCA 1989).

Affirmed.

COVINGTON, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.