text:
    Larry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2337.
    District Court of Appeal of Florida, First District.
    June 13, 2003.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

AFFIRMED. Jones v. State, 829 So.2d 351 (Fla. 1st DCA 2002); Graham v. State, 822 So.2d 576 (Fla. 1st DCA 2002); Jones v. State, 791 So.2d 580 (Fla. 1st DCA 2001). See also Foster v. State, 820 So.2d 365 (Fla. 1st DCA 2002).

ALLEN, C.J., and BOOTH and BARFIELD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie R. SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4180.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Appellant Willie R. Singleton, pro se, Sanderson.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Willie R. Singleton, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We address only two of the grounds asserted by Singleton. See Heath v. State, 648 So.2d 660 (Fla.1994). First, Singleton’s motion argued that defense counsel was ineffective for failing to object to the prosecutor’s improper comments on Singleton’s silence during closing argument. The trial court’s summary denial does not address this argument. It appears that, in closing, the prosecutor merely commented on statements by a State witness, who repeated Singleton’s incriminating statements in court. However, we are unable to conclusively determine that based on the current record attachments.

Next, Singleton’s motion argued that defense counsel was ineffective for failing to interview, depose, and call to. testify four witnesses who would have substantially impeached Appellee’s primary witness. In view of the importance of such state witness’ testimony, and the alleged testimony of the four witnesses identified by Singleton, the trial court’s record attachments do not show conclusively that Singleton is entitled to no relief. Thus, we are compelled to reverse and remand for attachments that do conclusively show Singleton’s non-entitlement to relief or for an evidentiary hearing.

Accordingly, we reverse and remand with directions to attach additional portions of the record conclusively refuting Singleton’s claims, or to conduct an eviden-tiary hearing on these claims. Fla. R.App. P. 9.141(b)(2)(D).

AFFIRMED in part and REVERSED in part.

KAHN, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    Ernest W. RUSSO, Appellant, v. FORD MOTOR COMPANY, and Milton Ford Mercury, Inc., d/b/a Orville Beckford Ford Mercury, Appellees.
    No. 1D03-0929.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Lawrence J. Obin II, Cantonment, for Appellant.
    William L. Bromagen, Fort Lauderdale; Bruce McDonald, Pensacola, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated April 3, 2003, the appeal is hereby dismissed. See Hemmerle v. Miceli, 445 So.2d 1151 (Fla. 2d DCA 1984).

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


text:
    Leroy BYRDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4882.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Appellant pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order summarily denying his motion seeking post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He asserts that his trial counsel was ineffective in five respects. As to all save one, we affirm without discussion. We are, however, constrained to reverse the summary denial of the remaining claim because the portions of the record attached to the trial court’s order do not demonstrate conclusively that appellant is entitled to no relief.

Appellant was convicted of armed robbery. The state’s case consisted of a positive identification by the victim. Appellant presented an alibi defense, claiming that he was in another city at the time of the robbery. Appellant complains that his attorney was ineffective because he failed to call at trial the victim’s adult daughter, who was available to testify. According to appellant, his attorney was aware from the daughter’s deposition that, although the daughter had encountered (and said hello to) the robber, she was unable to identify appellant in a photo spread. Appellant further claims that the daughter gave a description of the man which differed greatly from that of appellant. The daughter supposedly described the man as slightly taller than five feet six inches, and of medium build, whereas appellant was six feet one inch tall and weighed 287 pounds. According to appellant, because the state’s case rested entirely upon the victim’s identification, had his attorney called the daughter, her testimony would have had a significant impact on the victim’s credibility, and resulted in a different outcome. Such allegations are legally sufficient. See, e.g., Terrero v. State, 839 So.2d 873 (Fla. 3d DCA 2003); English v. State, 830 So.2d 240 (Fla. 4th DCA 2002).

Because the portions of the record attached to the order denying relief do not demonstrate conclusively that appellant is entitled to no relief, we are constrained to reverse. On remand, the trial court may again deny relief if it attaches to its order portions of the record demonstrating conclusively that appellant is entitled to no relief. Otherwise, it shall hold an eviden-tiary hearing. In all other respects, the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, PADOVANO and POLSTON, JJ., CONCUR.


text:
    SECURITY NATIONAL BANK OF OMAHA, Appellant, v. CORPORATE COMPUTER GROUP, INC., Appellee.
    No. 1D02-4494.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Julie Ann Sombathy of Isler, Sombathy & Sombathy, P.A., Panama City, for Appellant.
    Mitch Dever, Panama City Beach, for Appellee.
   PER CURIAM.

Appellant seeks review of a non-final order denying its motion to dismiss for lack of personal jurisdiction. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(C)(i). On its face, appellee’s third amended com-plamt (including exhibit) was legally insufficient to plead a basis for personal jurisdiction over appellant because it neither pled the alleged basis for jurisdiction pursuant to the language of section 48.193(1), Florida Statutes (2001), nor alleged facts which, if true, would be sufficient to support jurisdiction. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (citing what is now Florida Rule of Civil Procedure 1.070(h)). Accordingly, the trial court should have granted appellant’s motion to dismiss. Because it did not, we reverse, and remand with directions that it enter an order vacating its prior order and dismissing, as to appellant, appellee’s third amended complaint for lack of personal jurisdiction.

REVERSED and REMANDED, with directions.

WEBSTER, PADOVANO and POLSTON, JJ., concur.


text:
    Barbara BENSON, Appellant, v. SARASOTA COUNTY SCHOOL BOARD and Integrated Administrators, Appellees.
    No. 1D03-1223.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Keith A. Mann of Mann Employers Legal Group, Sarasota, for appellant.
    Ben H. Cristal of Sponsler, Bennett, Jacobs & Cristal, Tampa, for appellees.
   PER CURIAM.

DISMISSED. Vazquez v. Truly Nolan of America, 752 So.2d 68 (Fla. 1st DCA 2000).

ERVIN, KAHN and HAWKES, JJ., concur.


text:
    Felton Lee HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1039.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion to correct an illegal sentence, in which he alleges that for time spent in two Georgia jails solely on Florida charges, he should receive 207 days of additional jail credit. The appellant claims that the trial judge already granted him the credit orally, which the appellant alleges would be reflected in the sentencing colloquy. Appellant’s claim is facially sufficient and not refuted by the record. See Kronz v. State, 462 So.2d 450 (Fla.1985); Ashley v. State, 28 Fla. Law Weekly S18, — So.2d -, 2003 WL 60564 (Fla. Jan. 9, 2003).

We accordingly reverse the summary denial of this claim and remand for the trial court to either attach portions of the record which conclusively refute this claim or to grant the relief requested.

REVERSED AND REMANDED.

KAHN, WEBSTER and DAVIS, JJ., concur.


text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Benny CHESNUT, Appellee.
    No. 1D03-1192.
    District Court of Appeal of Florida, First District.
    June 16, 2003.
    Gary Lavon Grant, Assistant General Counsel, Tallahassee, for Appellant.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for Appellee.
    Stephen A. Meek, and Jerry Chatham, Tallahassee, for Public Employees Relations Commission.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 14, 2003, as well as the response filed by the Public Employees Relations Commission, the Court has determined that the order is not a final appealable order. See Dep’t of Corrections v. Saulter, 751 So.2d 163 (Fla. 1st DCA 2000); see also Mathis v. Dep’t of Corrections, 726 So.2d 389 (Fla. 1st DCA 1999). Accordingly, the appeal is dismissed for lack of jurisdiction.

ERVIN, KAHN and HAWKES, JJ., concur.


author: KELLY, Judge.

text:
    DEPARTMENT OF REVENUE, Larry Fuchs, in his official capacity as Executive Director of the Department of Revenue, and Joe G. Tedder, in his official representative capacity as the Polk County Tax Collector, representing a defendant class of all County Tax Collectors in the State of Florida, Appellants, v. PEPPERIDGE FARM, INC., for itself and on behalf of a class, Appellee.
    No. 2D02-2087.
    District Court of Appeal of Florida, Second District.
    June 18, 2003.

      Charles J. Crist, Jr., Attorney General, and Jarrell L. Murchison, Nicholas Bykow-sky, and R. Lynn Lovejoy, Assistant Attorneys General, Tallahassee, for Appellant Department of Revenue.
    John R. Griffin of Hahn, McClurg, Watson, Griffith & Bush, P.A., Lakeland, for Appellant Joe G. Tedder.
    Guy M. Burns, Elizabeth J. Daniels, and Jonathan S. Coleman of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Tampa, for Appellee.
   KELLY, Judge.

The Department of Revenue and the Polk County Tax Collector appeal from a nonfinal order certifying a class and approving class notice. We affirm.

The appellee, Pepperidge Farm, Inc., filed a class action complaint seeking refunds of ad valorem taxes it and other prospective class members had paid on computer software. Pepperidge Farm alleged that the software was defined by section 192.001(19), Florida Statutes (1997), as intangible personal property not subject to ad valorem taxation. It filed a motion for class certification and a request for approval of class notice. The Department and the Tax Collector opposed Pep-peridge Farm’s motion, arguing that Pep-peridge Farm’s complaint was a challenge to the assessment of property which, under subsection 194.171(2), Florida Statutes (1997), should have been brought within sixty days of the date the county tax rolls were certified. They argued that the failure to bring the action within that time deprived the trial court of jurisdiction. See § 194.171(6). Pepperidge Farm responded that it was not challenging the assessment of its property; instead, it was challenging the classification of its property as tangible, rather than intangible, for valuation purposes. Therefore, it argued that it had four years to seek a refund under section 197.182(l)(e), Florida Statutes (1997).

We agree with Pepperidge Farm that its lawsuit does not challenge the property appraiser’s exercise of judgment in assessing the value of its computer software but, rather, that it challenges the classification of its computer software as tangible personal property. Accordingly, we find no error in the trial court’s determination that Pepperidge Farm’s lawsuit was not one barred by the sixty-day time limit in section 194.171. See Sartori v. Dep’t of Revenue, 714 So.2d 1136 (Fla. 5th DCA 1998) (holding that where the taxpayer never challenged the county’s judgment regarding the value of equipment, but only challenged the classification of the property, the taxpayer had four years within which to file, suit under section 197.182). Further, as the trial court noted, the Department’s contention that the sixty-day time limit applies to Pepperidge Farm’s claims is refuted by its own internal documents and information bulletins which recognize the applicability of the refund provisions of section 197.182 to taxpayers seeking a refund for ad valorem taxes paid on computer software.

The Department and the Tax Collector also argue that the trial court erroneously concluded that the class certification requirements of Florida Rule of Civil Procedure 1.220(a) were met. We find no merit in their argument. The requirements for certification of a class are “nu-merosity, commonality, typicality and adequacy.” See Fla. R. Civ. P. 1.220(a)(l)-(4). In opposing the motion for class certification, the Department and the Tax Collector never addressed these prerequisites, but instead argued in essence that Pepper-idge Farm and the other prospective taxpayers had not stated a cause of action. The trial court correctly recognized that the issue of whether the complaint stated a cause of action was not before it and it properly focused on whether the requirements of rule 1.220 were satisfied. See Samples v. Hernando Taxpayers Ass’n, 682 So.2d 184, 185 (Fla. ,5th DCA 1996). Accordingly, we affirm the order certifying the case as a class action and approving class notice.

Affirmed.

ALTENBERND, C.J., and CASANUEVA, J., concur.


author: STRINGER, Judge.

text:
    James (Jim) TODORA, Sarasota County Property Appraiser, Appellant, v. VENICE GOLF ASSOCIATION, INC., Appellee.
    No. 2D02-2465.
    District Court of Appeal of Florida, Second District.
    June 18, 2003.

      Michele Santi, Joe D. Dingess, and John C. Dent, Jr., of Dent & Cook, Sarasota, for Appellant.
    E.G. Boone, Jeffrey A. Boone, and John S. Koda of Boone, Boone, Boone, Hines & Koda, P.A., Venice, for Appellee.
   STRINGER, Judge.

James Todora, the Sarasota County Property Appraiser (the Appraiser), challenges a final judgment striking the 1999 and 2000 ad valorem tax assessments for Venice Golf Association, Inc. (VGA). Because VGA was not the proper party to challenge the assessments, we reverse.

VGA operates a twenty-seven hole golf course located in Sarasota County. The property upon which the course is situated is leased by VGA from the City of Venice (the City). The record indicates that the property was assessed in the name of the City for tax years 1999 and 2000. However, pursuant to the terms of its lease with the City, VGA assumes all tax liabilities related to the property.

Following the 1999 and 2000 tax assessments, VGA filed suit against the Appraiser alleging that in assessing the property the Appraiser failed to properly consider the factors for determining just valuation enumerated in section 193.011, Florida Statutes (1999) and (2000). The Appraiser moved to dismiss the action alleging that as owner of the property the City, and not VGA, was the proper party to assert the tax challenge. The Appraiser’s motion to dismiss was denied, and VGA was permitted to proceed. VGA prevailed after a two-day trial.

Section 194.181, Florida Statutes (1999) and (2000), designates parties who have standing as plaintiffs in a tax suit. Those parties are “the taxpayer contesting the assessment of any tax, the payment of which he or she is responsible for under the law,” or the property appraiser. § 194.181(l)(a), (b) (emphasis supplied). Therefore, “taxpayers” within the meaning of this provision are those who incur the obligation of payment by operation of law, not by private contract as VGA has in the present case. Our reasoning in this regard is supported by the definition of “taxpayer” provided in section 192.001(13), Florida Statutes (1999) and (2000): “ ‘Taxpayer’ means the person or other legal entity in whose name property is assessed.” For each of the assessment years in dispute, the golf course was assessed in the name of the City. The plain language of sections 194.181(1) and 192.001(13) indicates that the City was the proper party to challenge the tax assessments in this case. See also Greens of Inverrary Condo. Ass’n Phase I, Inc. v. Johnson, 445 So.2d 1096 (Fla. 4th DCA 1984) (holding that condominium unit owners, rather than condominium association, were proper parties to challenge tax assessments; this holding applied to an early version of section 194.181 which has since been amended to give condominium, homeowners, and cooperative associations standing to file tax suits); cf. Mastroianni v. Mem’l Med. Ctr. of Jacksonville, Inc., 606 So.2d 759 (Fla. 1st DCA 1992) (holding that property owner, rather than lessee, was the proper party to apply for tax exemption). The final judgment is therefore reversed.

We recognize that this holding will effectively leave VGA without a vehicle for challenging the tax assessment it will ultimately have to pay. Accordingly, we certify the following question as one of great public importance:

DOES THE NONGOVERNMENTAL LESSEE OF GOVERNMENT-OWNED PROPERTY HAVE STANDING TO CHALLENGE THE ASSESSMENT OF AD VALOREM TAXES ON THE PROPERTY WHEN THE PROPERTY IS NOT ASSESSED IN THE NAME OF THE LESSEE BUT THE LESSEE IS CONTRACTUALLY OBLIGATED TO PAY THE TAXES?

Reversed.

CASANUEVA and CANADY, JJ., concur.

      . VGA filed a separate action for each tax year, but its suits challenging the 1999 and 2000 tax assessments were later consolidated.

      . The Appraiser’s motion to dismiss the suit also alleged that VGA had failed to file its complaint within the sixty-day period prescribed by section 194.171(2), Florida Statutes (1999). Because we conclude that VGA was not the proper party to file suit in this case, we need not consider the timeliness of the complaint.


text:
    BUDGET RENT-A-CAR SYSTEMS, INC., Appellant, v. Eddie BENNETT, as Personal Representative of the Estate of Ladarren L. Darden, et al., Appellees.
    No. 3D01-3174.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.

      Richard A. Sherman (Ft. Lauderdale); Michael P. Rudd, Miami; Marlow, Connell, Valerius, Abrams, Adler & Newman and Rosemary B. Wilder, Coral Gables, and Williams G. Edwards, for appellant.
    Alldredge & Jones and Melvin C. All-dredge; Larry R. Handfield; Podhurst Orseck and Joel S. Perwin; Freshman, Freshman & Traitz and Lawrence Freshman, Miami; Rouson & Pellarchy and Darryl E. Rouson (St. Petersburg), for appellees.
    Billing, Cochran, Heath, Lyles & Mauro, Fort Lauderdale, and Parenti, Falk, Waas, Hernandez & Cortina for the Florida Defense Lawyers Association as amicus curiae; Frank A. Shepherd for Pacific Legal Foundation as amicus curiae.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Appellant/Defendant Budget Rent-A-Car Systems, Inc. (“Budget”) appeals from an order granting Summary Final Judgment to the Appellees/Plaintiffs on the basis that Chapter 99-225, Laws of Florida, violates the single-subject requirement of Article III, Section 6 of the Florida Constitution. We reverse.

On November 5,1999, a resident of Miami rented an automobile for a term of less than one year from Budget. On November 10, 1999, the automobile was involved in an accident. Four passengers were killed, and one was seriously injured. The Plaintiffs brought wrongful death actions and an action for personal injury against Budget as the vicariously liable vehicle owner under Florida’s dangerous instrumentality doctrine.

After the filing of the Complaints, Budget informed the Plaintiffs that pursuant to Section 324.021(9)(b)(2), Florida Statutes (1999), which limits the liability of short term lessors for motor vehicles, its maximum liability to the Plaintiffs was $800,000.00, and offered to tender that amount. However, the Plaintiffs filed a Complaint for Declaratory Judgment, contending that Section 324.021(9)(b)(2) was unconstitutional because it violated their right of access to courts, trial by jury, equal protection, due process, and the single-subject rule under the Florida Constitution. Both parties filed Motions for Summary Judgment on the constitutionality of Chapter 99-225, Laws of Florida, and Section 324.021(9)(b)(2), Florida Statutes (1999). The trial court entered an Order which granted summary judgment in favor of the Plaintiffs, concluding that Chapter 99-225, Laws of Florida, in which Section 324.021(9)(b)(2) is comprised, “in its entirety violates the single-subject requirement of Article III, § 6 of the Florida Constitution because it embraces more than one subject.” This appeal follows.

There is a strong presumption in favor of the constitutionality of statutes. See Burch v. State, 558 So.2d 1, 3 (Fla.1990) (citing State v. Kinner, 398 So.2d 1360, 1363 (Fla.1981)). All doubt will be resolved in favor of the constitutionality of a statute, and an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. See id. at 3 (citing Kinner, 398 So.2d at 1363). Budget contends that the trial court erred in finding that Chapter 99-225, Laws of Florida, violates the single-subject rule. Budget further argues that Section 824.021(9)(b)(2) itself violates no provision of the Florida Constitution. We agree with Budget for the reasons set forth by the First District Court of Appeal in Enterprise Leasing Co. South Central, Inc. v. Hughes, 883 So.2d 832 (Fla. 1st DCA 2002). In Enterprise Leasing, the First District reversed a trial court’s determination that Chapter 99-225 was unconstitutional, concluding that Chapter 99-225 does not violate the single-subject rule. See id. at 834-36. Moreover, the Court also held that Section 324.021 does not violate (1) a plaintiffs right of access to courts, (2) a plaintiffs right to trial by jury, and (3) the equal protection and due process clauses of the Florida Constitution. See id. at 836-39. Accordingly, this cause is reversed and remanded to the trial court for proceedings consistent with this Opinion.

Reversed.


text:
    Robert LEIGHTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2852.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Bruce A. Alter; Randy S. Kravis (Studio City, California), for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Fayson v. State, 698 So.2d 825 (Fla.1997).


text:
    FOUNDATION HEALTH, a Florida Health Plan, Inc., Care Florida, Inc., Care Florida Health Plan, Inc., and Preferred Health Providers, Inc., Appellants, v. Ricardo GARCIA-RIVERA MD., and Kenneth C. Fischer, MD., individually and as class representatives, Appellees.
    No. 3D03-558.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Epstein Becker & Green and Daly D.E. Temchine; Steven M. Ziegler and Arthus Cholodofsky and Dorothy F. Easley, Hollywood, for appellants.
    Robert C. Maland; Lauri Waldman Ross; Jon M. Herskowitz, Miami, for ap-pellees.

      Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

This is an appeal of a post judgment order directing disbursement of certain class action settlement proceeds. See Foundation Health v. Garcia-Rivera, 814 So.2d 537 (Fla. 3d DCA 2002) (affirming certification of class). We entirely agree with Judge Rothenberg that the class action settlement agreement is clear on its face, see Barakat v. Broward County Housing Authority, 771 So.2d 1193, 1195 (Fla. 4th DCA 2000), and the disbursement order is in accordance with its terms.

Affirmed.


text:
    D & J INDUSTRIES, INC., Appellant, v. KEY WEST BEACH CLUB CONDOMINIUM ASSOCIATION NOS. 1 AND 2, INC., Appellee.
    No. 3D02-2099.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Charo Bolanos Ruiz, for appellant.
    R. Bruce Wallace, Key West, for appel-lee.
    Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

D & J Industries, Inc. appeals an adverse final judgment after a bench trial. We conclude that the judgment is supported by competent substantial evidence. Merlot Communications, Inc. v. Shalev, 840 So.2d 446 (Fla. 3d DCA 2003); Mazzella v. Greene, 802 So.2d 458, 458 (Fla. 3d DCA 2001); Roberts Roofing Co. v. Smith, 605 So.2d 167, 167 (Fla. 3d DCA 1992). The damage award is entirely appropriate under the circumstances of the case.

Affirmed.


author: COPE, J.

text:
    Enrique GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2961.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.

      Enrique Garcia, in proper person.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   COPE, J.

Enrique Garcia appeals an order denying his motion to correct illegal sentence. We affirm in part and reverse in part.

In 1996, defendant-appellant Garcia entered guilty pleas in circuit court case number 90-7244 plus eight cases bearing 1994 case numbers. In the 1994 cases the disposition was forty years on each count as a habitual violent offender (“HVO”) with a fifteen-year mandatory minimum sentence, or on some counts thirty years as an HVO with a fifteen-year mandatory minimum sentence.

In subsequent proceedings, the defendant filed a motion to correct illegal sentence as to two counts in two of the 1994 cases. Garcia v. State, 796 So.2d 647 (Fla. 3d DCA 2001). He now seeks the same relief with regard to other counts in those two 1994 cases, plus the remainder of his 1994 cases.

The State concedes that the defendant is entitled to relief on a number of counts in the 1994 cases, but disputes his entitlement to relief on certain of the counts. That being so, we reverse the 3.800 order and remand for a hearing on the defendant’s challenge to his habitualization in the 1994 cases. See Garcia and cases cited therein. The defendant is entitled to the appointment of counsel for purposes of that proceeding.

The defendant also challenges his HVO mandatory minimum sentences. With regard to those counts on which the HVO adjudication is eliminated, the issue becomes moot. With regard to the counts (if any) on which the HVO status remains intact, the defendant is not entitled to relief. That is so because the HVO mandatory minimum terms were explicitly agreed on as part of the plea bargain. On those counts (if any) on which the defendant actually qualifies for HVO adjudication, the HVO mandatory minimum sentences are legal sentences.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


text:
    Jackson Rip HOLMES, Appellant, v. Jeanette Holmes POSLER, individually and as Trustee; and Vande Holmes Slack, individually and as Trustee, Appellees.
    No. 3D02-3353.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.

      Reiner & Reiner, and Samuel B. Reiner, II, Miami, for Appellant.
    Phillips, Eisinger & Brown, and Jed Frankel(Hollywood), for Appellees.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

We find no abuse of discretion in the trial court’s order granting the motion to dismiss for forum non-conveniens. See Aerolineas Argentinas, S.A v. Gimenez, 807 So.2d 111 (Fla. 3d DCA 2002); Hyatt Corp. v. Howarth, 678 So.2d 823 (Fla. 3d DCA 1996). Accordingly, we affirm the order below.

Affirmed.


text:
    Lourdes LORIE, Appellant, v. BOSTON INVESTORS GROUP, INC., Appellee.
    No. 3D02-3379.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Scott Alan Orth, for Appellant.
    Gelb & Spatz and Carl A. Spatz, Miami, for Appellee.
    Before COPE, GODERICH, and GREEN, JJ.
   PER CURIAM.

Affirmed. See La Rosa v. Fortier, 492 So.2d 425 (Fla. 4th DCA 1986); Perimeter Invs., Inc. v. Amerifirst Dev., Co., 423 So.2d 586 (Fla. 1st DCA 1982).


text:
    Jorge CORZO and Barbara Corzo, his wife, Appellants, v. AMERICAN SUPERIOR INSURANCE COMPANY, Appellee.
    No. 3D03-308.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.

      Harold B. Elite Truppman, for appellants.
    Groelle & Salmon and Kobin B. Roth-man, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   COPE, J.

Jorge and Barbara Corzo appeal a final judgment denying their suit for appraisal. We affirm.

Jorge and Barbara Corzo are homeowners insured by American Superior Insurance Company. They made a claim for damages to their home due to nearby blasting activities. The insurer denied the claim, asserting that coverage is excluded by the insurance policy.

The Corzos filed a lawsuit in which the sole claim for relief was a demand for appraisal. The trial court entered summary judgment in favor of the insurer on the demand for appraisal, and the Corzos have appealed.

We entirely agree with the trial court. The court correctly ruled that where, as here, the claim has been denied in its entirety on the ground that it is not covered by the insurance policy, the issue of coverage is one for the court, not for the appraisers. Johnson v. Nationwide Mutual Insurance Co., 828 So.2d 1021 (Fla. 2002). The Corzos’ complaint did not bring suit on the insurance policy, and did not challenge the insurer’s interpretation of the insurance policy. That being so, the plaintiffs had sought the wrong remedy and appraisal was properly denied. The trial court’s ruling in substance means that the request for appraisal was premature absent a determination that coverage exists under the insurance policy.

The insurer concedes that the plaintiffs remain free to file suit on the insurance policy, and at that time, reassert their claim for appraisal. The plaintiffs express concern that the trial court’s denial of the request for appraisal will have some pre-clusive effect in the future, but that is not so. Since the demand for appraisal was premature, the dismissal was necessarily without prejudice.

Affirmed.


author: SHEVIN, Judge. COPE, J.,

text:
    Juan NAVEDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D003-337.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   SHEVIN, Judge.

Juan Navedo appeals his sentence. We vacate the sentence. The court ordered defendant to serve five years in prison and awarded defendant a brief furlough. The court agreed to mitigate defendant’s sentence to 364 days and completion of the TASC program upon defendant’s timely surrender to begin serving his sentence. Unfortunately, defendant failed to surrender at 9:00 a.m. as agreed. Defendant, having overslept, voluntarily appeared in court at 2:50 p.m., less than six hours late on the proper date.

The court abused its discretion in failing to mitigate defendant’s sentence. As in Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995), we hold that the deviation of several hours from the agreement amounts to a de minimis violation that did not warrant the additional punishment. See Eulo v. State, 786 So.2d 43 (Fla. 4th DCA 2001).

Accordingly, we vacate defendant’s sentence and remand with directions for the trial court to re-sentence defendant forthwith to the bargained-for sentence of 364 days in county jail, completion of the TASC program, and early termination upon successful completion of the program. This opinion is effective immediately and will not be delayed by the filing of a motion for rehearing or other post-decision motion.

Sentence vacated, and cause remanded with directions.

WELLS, J., concurs.

COPE, J.,

specially concurring.

If we were writing on a clean slate, I would affirm the trial court ruling. In Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995), however, this court held that a voluntary surrender at 3:30 p.m. (when the defendant was supposed to have surrendered at 9:00 a.m.) was a de minimis deviation, and that the defendant was entitled to have his sentence mitigated in accordance with the plea bargain. Id. at 1113. Since we are bound by Amaya, we are obligated to provide the same relief in this case.

It was suggested at oral argument that since the failure to surrender at 9:00 a.m. was disobedience of the court’s order, it follows that the trial court in the event of a late surrender may hold the defendant in contempt and impose an additional sanetion. In the present case, that would appear to be a fair resolution of the problem.


author: ORFINGER, J.

text:
    Jessie L. DORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1614.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Jessie L. Dorsey appeals his conviction of sexual battery on a child under twelve years of age. He contends that his right to a speedy trial was violated due to ineffective assistance by trial counsel. We affirm.

Dorsey was arrested on February 9, 2001, and charged with sexual battery. The public defender’s office for the Fifth Circuit was appointed to represent him. Mark Nacke, an assistant public defender in the Lake County public defender’s office, was assigned to Dorsey’s case. Because his sister worked as a corrections officer at the Lake County jail, Dorsey was held in the Sumter County jail.

On March 19, 2001, Dorsey’s attorney entered a plea of not guilty on Dorsey’s behalf and requested fifteen days within which to file motions directed to the sufficiency of the charges pursuant to Florida Rules of Criminal Procedure 3.190(c) and 3.050. On July 2, 2001, Hugh Lee, a Sumter County assistant public defender, visited Dorsey in the Sumter County jail to discuss the case at Nacke’s request. Dorsey contends that, because he was housed in Sumter County, while Nacke’s office was in Lake County, communications, between the two were minimal. On August 27, 2001, Dorsey wrote to the trial judge, expressing frustration about the slow progress of his case and his limited knowledge as to its status. On September 6, 2001, Dorsey again wrote the trial judge, explaining that he had been in custody for 208 days, and, with the exception of a bond hearing, had not heard from his attorney. Dorsey advised the trial judge that assistant public defender Lee had visited him once and asked him to waive his right to a speedy trial, but Dorsey claimed that he had not waived, and would not waive, his speedy trial rights.

On November 19, 2001, Dorsey again wrote the trial judge, complaining that he had been incarcerated for nine months, had not been permitted to attend any of the pretrial hearings that had occurred in his case, and had not spoken with his attorney. He asked the court to appoint a “better” attorney for him. Understandably frustrated, on April 4, 2002, Dorsey filed a motion for postconvietion relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel. While his motion was procedurally flawed, it clearly advised the court of Dorsey’s concern about his limited contact with his attorney and further asserted that he had asked his attorney to move for a discharge on speedy trial grounds, but that Nacke had failed to do so. The record does not indicate if the court determined whether Dorsey’s concern about the representation he was receiving was well founded or not, as required by Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

The case proceeded to trial on April 9, 2001. Prior to trial, Nacke asked the court to address Dorsey’s rule 3.850 motion, but the court declined to do so until after the jury had been sworn. When the matter was discussed, it became apparent that Dorsey and his attorney had conflicting views about whether Dorsey had authorized speedy trial to be waived. Dorsey maintained that he had not waived his right .to a speedy trial and had not authorized his attorney to waive it on his behalf. Conversely, Nacke asserted that in a conversation with assistant public defender Lee, Dorsey had authorized a waiver of his speedy trial rights. The court heard no evidence on the matter.

While no explicit ruling was made by the court, apparently, the court found Dorsey’s position unavailing, as the matter proceeded to trial. Dorsey was convicted, and now argues that his constitutional right to a speedy trial was violated. The State responds by arguing that when Dorsey’s attorney entered a plea of not guilty and requested fifteen days within which to file defensive pleadings, Dorsey waived his right to a speedy trial. We disagree. While a continuance granted at the request of the accused constitutes a waiver of the right to a speedy trial under Florida Rule of Civil Procedure 3.191, see Stewart v. State, 491 So.2d 271 (Fla.1986), here, there is no evidence that Dorsey, or his attorney, ever requested a continuance. We do not believe that by requesting fifteen days within which to attack the sufficiency of the information, Dorsey waived his speedy trial rights. See Tucker v. State, 357 So.2d 719 (Fla.1978); State v. Thurston, 372 So.2d 959 (Fla. 3d DCA 1979) (fifteen-day extension of time granted to defendant to file motions attacking the information did not constitute an “unexcused continuance” or, alternatively, did not render defendant “unavailable” for trial under the speedy trial rule, and, therefore, defendant was entitled to discharge where he was not brought to trial within 180 days after his arrest notwithstanding fact that defendant obtained such extension); but see State v. Beckett, 357 So.2d 448 (Fla. 2d DCA 1978) (ten-day extension, granted on defendant’s request to allow defense to file motions attacking sufficiency of information, amounted to a continuance or delay by defendant, effectively halting prosecution, and extending speedy trial time accordingly).

Although we conclude that Dorsey’s request for additional time within which to file defensive motions did not waive his right to a speedy trial, on the record before us, we are unable to determine whether Dorsey authorized his attorney to waive his speedy trial rights, as Nacke contended. That matter, along with Nacke’s alleged failure to communicate with Dorsey, or to ensure that he was transported to court for pretrial hearings, is best left for resolution in a postconviction proceeding pursuant to Florida Rule of Criminal Procedure 3.850.

This court generally does not address ineffective assistance of counsel claims on direct appeal. See State v. Barber, 301 So.2d 7 (Fla.1974); Howard v. State, 462 So.2d 31 (Fla. 1st DCA 1984). Rather, the issue is more properly raised in a rule 3.850 motion for postconviction relief because it requires an evidentiary hearing on Dorsey’s claim that he did not waive his speedy trial rights and a determination of his attorney’s effectiveness under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We find the other issue Dorsey raised to be without merit. We affirm Dorsey’s conviction without prejudice to litigate the matter in a timely rule 3.850 proceeding.

AFFIRMED.

SHARP, W. and PETERSON, JJ., concur.

      . About this same time, a hearing occurred on Dorsey's motion for a statement of particulars but for reasons not apparent in the re-ord, Dorsey was not transported from the jail to attend the hearing.


author: SAWAYA, J.

text:
    Leah GRYPHON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-149.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Leah Gryphon appeals his judgment and the subsequent sentence rendered for aggravated child abuse in violation of section 827.03(2), Florida Statutes (1997). Gryphon asserts that the trial court committed fundamental error in instructing the jury using the then existing standard jury instructions regarding the definition of malice instead of using the definition provided by the Florida Supreme Court in State v. Gaylord, 356 So.2d 313 (Fla.1978). The issue we must resolve is whether Gryphon should be granted a new trial because of the lower court’s failure to provide the Gaylord definition of malice to the jury in its instructions. We agree with Gryphon that this failure constitutes fundamental error and reverse.

On October 19, 2001, Gryphon was convicted of one count of aggravated child abuse in violation of section 827.03(2), Florida Statutes (1997), a second-degree felony, for incidents that allegedly occurred with his daughter between August 1 and December 13, 1998. Gryphon moved for a new trial and the trial court ultimately denied the motion without prejudice. Gryphon appealed, asserting that he was denied a fair trial due to prosecuto-rial misconduct and that fundamental error occurred concerning the use of the standard jury instruction for aggravated child abuse, specifically as it defined “malice.”. Because the latter issue determines the resolution of this appeal, we will not address the issue regarding the alleged misconduct.

Section 827.03(2), as it read at the time of the alleged offense in the instant case, defined aggravated abuse of a child as when a person

(a) [cjommits aggravated battery on a child;
(b) [wjillfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
(c)[kjnowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

§ 827.03(2), Fla. Stat. (1997) (emphasis added).

The Florida Supreme Court has answered the question whether “the giving of the standard jury instruction for aggravated child abuse [is] fundamental error when the instruction inaccurately defines the disputed element of malice” in the affirmative under certain circumstances. Reed v. State, 837 So.2d 366, 367-68 (Fla.2002). In Reed, the petitioner raised the issue of the malice definition in the Florida Standard Jury Instructions for the first time on appeal. The district court affirmed the petitioner’s conviction, holding that: 1) the issue was not preserved for review because the appellant made no objection during trial and 2) even if the error was fundamental, any such error would be harmless given “the overwhelming evidence of guilt and the fact that the prosecutor did not misuse the incorrect instruction _” Reed v. State, 783 So.2d 1192, 1198 (Fla. 1st DCA 2001), quashed, 837 So.2d 366 (Fla.2002). The Florida Supreme Court disagreed, holding that “the failure to use the correct definition is fundamental error in cases in which the essential element of malice was disputed at trial” and quashed and remanded for further proceedings. Reed, 837 So.2d at 369.

In Reed, the supreme court examined the standard jury instructions in effect prior to 2002 that defined malice, or “maliciously,” as it is used in the statute, as “wrongfully, intentionally, without legal justification or excuse.” Fla. Std. Jury Instr. (Crim.) 16.1. In contrast, the court in Gaylord previously held that “the term ‘maliciously ... provide[s] a definite standard of conduct understandable by a person of ordinary intelligence [and that] [m]alice means ill will, hatred, spite, an evil intent.” Gaylord, 356 So.2d at 314. The latter definition provides a more stringent standard when examining the intent element of the offense. In other words, the State’s burden of proof is directly related to the court’s choice of definition for this key term contained in the aggravated child abuse statute.

In an earlier case, Young v. State, 753 So.2d 725 (Fla. 1st DCA 2000), the First District Court explained the conflict between the Gaylord definition and the jury instruction definition of malice by stating:

The difference between the definition adopted in Gaylord and that included in the standard jury instruction is significant. The former is generally referred to as actual malice, or malice in fact; whereas the latter is generally referred to as legal, or technical, malice. Actual malice, or malice in fact, requires proof of evil intent or motive. In contrast, legal malice merely requires proof of an intentional act performed without legal justification or excuse. Legal malice may be inferred from one’s acts, and does not require proof of evil intent or motive.

Id. at 728 (citations omitted); see also Ramsey v. State, 114 Fla. 766, 154 So. 855, 856 (1934) (distinguishing the “legal and technical sense of the word ‘malice’ ... [as] a term of art importing wickedness and excluding a just cause or excuse” from the “commonly understood sense of ill will, hatred, spite, an evil intent.”) (citations omitted).

The sole point warranting discussion, however, is whether the trial court’s failure to use the definition of malice outlined in Gaylord constitutes fundamental error. Antecedent to its decision in Reed, the Florida Supreme Court rendered its decision in Stewart v. State, 420 So.2d 862 (Fla.1982), which we find to be instructive. In Stewart, the defendant alleged that the trial court “committed fundamental error by failing to instruct the jury on the intent to permanently deprive another of property as [a requisite] element of robbery.” Id. at 863 (footnote omitted). Although affirming the defendant’s conviction on other grounds, the Stewart court acknowledged that “[t]he district courts of appeal have considered this issue and have held that fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Id. (emphasis added) (citations omitted); see also Pratt v. State, 601 So.2d 619 (Fla. 2d DCA 1992) (holding the trial court’s failure to instruct on the element of intent constituted fundamental error); Gibson v. State, 403 So.2d 1019, 1021 (Fla. 3d DCA 1981) (holding that “[t]he omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question.”) (citing Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983)). Simply put, to constitute fundamental error, the omission (or selection of a particular definition, as in the instant case), must be a disputed element of the crime.

In the instant case, the State had the burden of proving that Gryphon had “willfully tortured or maliciously punished the child” to make a prima facie case of aggravated child abuse. § 827.03(2)(b), Fla. Stat. (1997). The prosecutor attempted to do this by emphasizing to the jury the definition of malice as outlined in the standard jury instructions. Furthermore, the trial court used these as yet unamended jury instructions and defined maliciously as meaning “wrongfully, intentionally, without legal justification or excuse.” Fla. Std. Jury Instr. (Crina.). Because the specific definition of malice is critical in determining whether the State has met all elements of section 827.03(2), it is evident that the meaning of malice is, in fact, in dispute.

In determining fundamental error in the instant case, a second step in the analysis is required. “It is fundamental error if the inaccurately defined malice element is disputed ... and the inaccurate definition ‘is pertinent or material to what the jury must consider in order to convict.’ ” Reed, 837 So.2d at 369 (emphasis added) (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)). Because the initial criteria that the element be disputed is clearly met, this court must now determine if the disputed element was “pertinent or material.” We hold that it was.

It is a longstanding principle that fundamental error is error that “reaches down into the legality of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the error alleged.” Hamilton v. State, 88 So.2d 606, 607 (Fla.1956); see also McDonald v. State, 743 So.2d 501, 505 (Fla.1999); King v. State, 800 So.2d 734, 737 (Fla. 5th DCA 2001) (“If the trial court issues an incomplete or inaccurate jury instruction, fundamental error may occur if the error relates to an element of the crime.”) (citations omitted); Dowling v. State, 723 So.2d 307, 308 (Fla. 4th DCA 1998); Jones v. State, 666 So.2d 995, 998 (Fla. 5th DCA 1996) (stating that the “trial court’s giving of an incomplete and inaccurate instruction on the law during a jury instruction constitutes fundamental error where the error relates to an element of the offense.”) (citing Ward v. State, 655 So.2d 1290, 1292 (Fla. 5th DCA 1995)).

We conclude that the use of the inaccurate (and less stringent) definition of malice “reduc[ed] the state’s burden of proof on an essential element of the offense charged.” Young, 753 So.2d at 729. The onus remained on the State to prove that Gryphon willfully tortured or maliciously punished a child and, under the correct definition of malice, the State had to prove that Gryphon acted with “ ‘ill will, hatred, spite, an evil intent.’ ” Reed, 837 So.2d at 369 (quoting Gaylord, 356 So.2d at 314). Based on the record before us, in using the “wrongful, intentional and without any legal justification” standard, the State’s lesser burden as to intent may have directly affected the jury’s decision to convict. Therefore, the trial court’s erroneous instruction on the proper definition of malice was fundamental error, and Gryphon should be granted a new trial.

REVERSED and REMANDED for new trial.

SHARP, W. and ORFINGER, JJ., concur.

      . The standard jury instructions at issue in the instant case are Florida Standard Jury Instructions (Criminal) for aggravated child abuse as originally adopted. The Florida Supreme Court adopted these instructions in 1981 and they remained unchanged until amended in June 2002. See Fla. Std. Jury Instr. (Crim.) 16.1 (2002); Standard Jury Instr. In Criminal Cases, 824 So.2d 881 (Fla. 2002).


author: THOMPSON, C.J.

text:
    Frederick L. CANADY, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3415.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.

      James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Frederick Canady appeals his conviction for attempted felony murder. We affirm.

Canady contends that there was insufficient evidence of the underlying felony of attempted robbery, to support his conviction for attempted felony murder. The victim testified that when Canady came into the victim’s convenience store, Canady immediately restrained the victim and told his cohort, the gunman, to shoot. The victim testified that after he was shot, he saw people on the street outside and began yelling for help. Canady and the gunman then tried to take him to the beer cooler at the back of the store. The victim initially testified that he did not recall hearing either man ask for money, but later, when asked if either of the men asked in any way for money, the victim replied, ‘When Canady hold me, ask money, I show him at the cashier.... In just in a very quick moment he just say that [sic].” Asked for Canady’s exact words, the victim testified, “He asked me where’s the money.” There was testimony by Byrd, the getaway driver, that the trio had driven around earlier in the day thinking about whether to rob the store, at which, Canady had told the others, they could get some “easy money.” Although at trial Byrd and Canady tried to minimize the sense of purpose the trio had, they admitted having discussed the robbery while driving around. Further, Byrd testified that they obtained a gun and a mask, that his assignment was to be the getaway driver, and that the gunman’s assignment was to be the lookout. We think this evidence was sufficient proof of the underlying felony of attempted robbery.

AFFIRMED.

PETERSON and SAWAYA, JJ., concur.


text:
    MEDCOM USA, INC., Appellant, v. RYDER HOMES AND GROVES CO., Appellee.
    No. 2D02-3028.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.

      Michael J. Appleton, Orlando, for Appellant.
    Neil A. Roddenbery of Gray Harris Robinson Lake Trohn, Lakeland, for Ap-pellee.
   STRINGER, Judge.

Medcom USA, Inc. (“Medcom”) seeks review of the trial court’s order denying its motion to set aside default judgment in Ryder Homes and Groves Co.’s (“Ryder Homes”) action for breach of lease against Medcom. We affirm the denial of relief from the default judgment as to liability, but reverse for an evidentiary hearing as to damages and attorney’s fees.

In May 2000 Medcom agreed to lease approximately 8323 square feet of commercial space in Lakeland, Florida, from Ryder Homes. The lease requires Med-com to contribute $187,402.06 to construction costs, $95,000 of which is to be amortized over the five-year term of the lease and evidenced by a promissory note. In the event of a default, the lease provides that Ryder Homes may take possession of the premises, but Ryder Homes becomes obligated to utilize its best efforts to find a replacement tenant. Rent realized from a reletting of the premises is to be credited against the balance due from Medcom, subject to the deduction of costs and expenses associated with the reletting. The lease also contains a rent acceleration clause.

On October 15, 2001, Ryder Homes filed a three-count complaint against Medcom. Count one seeks a judgment for possession. Count two requests unspecified damages for breach of the lease. Count three alleges a default under the $95,000 note, declares the unpaid balance accelerated, and demands judgment therefor. The clerk entered a default on count one on October 30, 2001, and the court entered a final judgment for possession the following day. Ryder Homes took possession of the premises on November 5, 2001.

On December 10, 2001, the clerk issued a pluries summons for service on “Bill Williams, President & CEO” of Medcom, at an office address in Scottsdale, Arizona. A return of service executed by Jill C. Slavin of Track Down, Inc. states that the summons and complaint were served on Williams personally on December 19, 2001. Based upon this return, the clerk entered a default as to counts two and three of the complaint. Without first conducting an ev-identiary hearing, the trial court entered a default judgment for damages of $620,488.65, as set forth in an affidavit filed by Ryder Homes.

On April 12, 2002, Medcom served a motion requesting that the court set aside the clerk’s default as to counts two and three of the complaint and vacate the final judgment. Medcom argued that the default and default judgment were improper because Medcom had not received notice of the lawsuit. The motion was supported by affidavits from Michael Malet, the vice president of Medcom; Greg R. Davis, Esq., the company’s chief counsel; and Williams. The affidavits stated that Williams had not been served with process; that Medcom’s first knowledge of the suit was the receipt of the final judgment on March 11, 2002, by Malet at his office in Irvine, California; and that the company had immediately retained counsel to take appropriate steps to respond to the action. Medcom also argued that the trial court should have conducted an evidentiary hearing prior to entering the default judgment. The trial court entered an order denying the motion, and Medcom sought review in this court.

We reject Medcom’s argument that the trial court erred in denying relief from the default judgment as to liability. Med-com’s bare allegations that Williams had not been served with process are not sufficient as a matter of law to impeach the process server’s return of service and sworn statement that she personally served Williams. See Fla. Nat’l Bank v. Halphen, 641 So.2d 495, 496 (Fla. 3d DCA 1994); Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989). Because the return of service was unrefut-ed as a matter of law, an evidentiary hearing is not required. See Stewart v. Julana Dev. Corp., 678 So.2d 1385, 1389 (Fla. 3d DCA 1996).

Although the issue of liability was properly determined without an evidentia-ry hearing, the trial court erred in awarding damages under count two without holding a hearing because the damages were not liquidated. Florida Rule of Civil Procedure 1.440(c) requires a hearing on claims for unliquidated damages, even if a party has been defaulted. Pierce v. Anglin, 721 So.2d 781, 783 (Fla. 1st DCA 1998); Land v. C.F.S. Bakeries, Inc., 559 So.2d 670, 671 (Fla. 3d DCA 1990). Damages are unliquidated when their ascertainment requires the taking of testimony. Pierce, 721 So.2d at 783; Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983). Damages are liquidated when they can be determined by mathematical calculation or the application of definite rules of law. Charlotte Harbor Props. Assocs., Ltd. v. Huff, 632 So.2d 229, 229 (Fla. 2d DCA 1994); Bowman, 432 So.2d at 662.

Count two of the complaint seeks damages for breach of the lease. It alleges the failure to pay the monthly rent, building expenses, and common area expenses from July 1, 2001, through September 1, 2005. It also alleges the failure to pay the monthly option payment of $1272 from January 1, 2001, through June 1, 2001. The lease, which was attached to the complaint, allows for the mathematical computation of the monthly rent, building and common area expenses, option payments, and the applicable sales tax. However, the record does not reflect whether Ryder Homes has relet the premises or, if it has not, whether it has utilized its best efforts to find a replacement tenant.

We conclude that testimony is needed to determine whether Medcom is currently entitled to a setoff based on Ryder Homes’ obligation to relet the premises, and the damages are therefore unliquidated to this extent. As Ryder Homes has conceded, testimony is also necessary to determine reasonable attorney’s fees. Bowman, 432 So.2d at 663. Accordingly, we reverse and remand for an evidentiary hearing as to damages on count two and attorney’s fees. The trial court’s order denying Medcom’s motion to set aside default judgment is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and KELLY, JJ., Concur.


text:
    Michael FLOURNOY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1742.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Michael Flournoy, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of Michael Flournoy’s motion pursuant to Florida Rule of Criminal Procedure 3.800(a). See Clayton v. State, 842 So.2d 971 (Fla. 5th DCA 2003). Consistent with Clayton, we also certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED.

SHARP, W„ PETERSON and PLEUS, JJ., concur.


text:
    Drew L. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-952.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Drew L. White, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Drew L. White appeals the denial of an award of jail time credit. The trial court correctly ruled that White is not entitled to credit for time served in The Bridge Substance Abuse Program, Hill v. State, 813 So.2d 274 (Fla. 5th DCA 2002), nor has he demonstrated entitlement to credit for his time spent in Seminole County Jail, McAllister v. State, 840 So.2d 1163 (Fla. 5th DCA 2003). However, the State concedes that the trial court made a mathematical error in computing the award. Accordingly, we reverse and remand to the lower court only for correction of the mathematical error.

REVERSED and REMANDED.

SHARP, W., PETERSON and ORFINGER, JJ., concur.


author: GRIFFIN, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. M.C., a child, Respondent.
    No. 5D03-765.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Ralph J. McMurphy, Wildwood, for Petitioner.
    No Appearance for Respondent.
   GRIFFIN, J.

This petition for writ of certiorari presents the same issue we recently decided in Department of Children & Families v. E.M.S., 841 So.2d 621 (Fla. 5th DCA 2003). On the authority of that decision, we grant the writ and vacate the order under review.

Writ GRANTED.

SHARP, W., and ORFINGER, JJ„ concur.


author: SALCINES, Judge.

text:
    Steven BOUCHARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-552.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
   SALCINES, Judge.

Steven Bouchard appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Bouchard claimed that his trial counsel was ineffective for failing to object when the trial court provided the jury with a partial copy of the jury instructions. He claimed that his conviction would have been reversed if his counsel had preserved the issue for appeal. Because the record does not refute Bouchard’s claim, we reverse and remand for further proceedings.

The failure to preserve a potentially reversible error for appeal may constitute ineffective assistance of counsel. See Daniels v. State, 806 So.2d 563 (Fla. 4th DCA 2002). Under certain circumstances, it is reversible error for the trial court to provide the jury with a copy of only a portion of the jury instructions; if the trial court provides the jury with any written instructions, it must provide the jury with all of the instructions. Van Loan v. State, 779 So.2d 497 (Fla. 2d DCA 2000); Pettit v. State, 612 So.2d 1381 (Fla. 2d DCA 1992); Wilson v. State, 746 So.2d 1209 (Fla. 5th DCA 1999); Fla.R.Crim. P. 3.400(a)(3). Therefore, if only partial written instructions were given to the jury, and trial counsel failed to preserve the issue for appeal, trial counsel was ineffective.

The trial court denied the claim on the basis that the trial court provided the jury with a copy of all the jury instructions. While the record indicates that copies of the instructions on the elements and voluntary intoxication were given to the jury, Bouchard claims, and the State concedes, that other jury instructions were not provided to the jury. Since the record does not refute Bouchard’s claim, we reverse and remand for the trial court to conduct an evidentiary hearing or provide record attachments that conclusively refute Bou-chard’s claim.

Reversed and remanded.

COVINGTON and KELLY, JJ., Concur.


text:
    Jerail Leron LAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-630.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.

      Jerail Leron Law, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, C.J.

Jerail Leron Law appeals the summary denial of his rule 3.850 motion. Four of Law’s claims of ineffective assistance of counsel were properly denied and do not merit discussion. However, we find that ground three is facially sufficient and is not refuted by the record.

Law was convicted of carjacking with a firearm, armed burglary of a dwelling with a firearm, aggravated assault with a firearm, and possession of a firearm in the commission of a felony. Law’s convictions were affirmed on appeal. Law v. State, 824 So.2d 1055 (Fla. 5th DCA 2002). In ground three of his rule 3.850 motion, Law argues that his trial counsel was ineffective for failing to interview or call two alibi witnesses to testify on his behalf and support his defense of misidentification. As a result of counsel’s omission, Law claims the victim’s identification of Law was virtually unchallenged.

The trial court denied this ineffective assistance claim, pointing out that when the court questioned Law on his decision not to testify. Law indicated that the court should let defense counsel do his job and that he felt counsel was representing him “in the best way he can.” The trial court found that Law could have complained of counsel’s failure to call witnesses at that point, but failed to do so.

We conclude that Law’s comments do not conclusively refute this ineffective assistance claim. First, the comments that the trial court pointed out pertained to Law’s decision not to testify rather than his right to call witnesses. In addition, Law’s statement indicating satisfaction, made after the state had rested, may have been made based on his belief that it was too late to call witnesses. Compare Stanley v. State, 703 So.2d 1156 (Fla. 2d DCA 1997) (plea agreement indicating defendant’s satisfaction with defense counsel does not conclusively refute claim of ineffective assistance for failing to advise defendant of a possible defense). While the supreme court affirmed the denial of post conviction relief where defense counsel failed to call exculpatory witnesses in Thomas v. State, 838 So.2d 535 (Fla.2003), the instant case is distinguishable. In Thomas, an evidentiary hearing was held, and counsel testified that he had discussed his decision with the defendant, who agreed with his strategy. In this case, defendant’s motion was denied without an evidentiary hearing.

Additionally, it appears that no witnesses were called for the defense in this case. Although the victim identified Law, there was no physical evidence to connect him to the crime and no other witnesses. Therefore, there is a reasonable probability that alibi witnesses would have changed the outcome of the trial. In a similar situation, in Williams v. State, 507 So.2d 1122 (Fla. 5th DCA 1987), this court held that a decision not to present available exculpatory witnesses to impeach the state’s eyewitnesses was ineffective assistance of counsel. In Williams, as in this case, there was no physical evidence connecting the defendant to the crime, and the decision in Williams not to call any witnesses was made solely to preserve rebuttal closing argument. This court held that “[a] trial strategy to do nothing ... is not an acceptable one.” Id. at 1123; see also Cole v. State, 700 So.2d 33 (Fla. 5th DCA 1997). Because Law has made a facially sufficient claim which is not refuted by the record, we reverse the trial court’s order as to ground three and remand for an evidentiary hearing.

AFFIRMED in part; REVERSED in part, and REMANDED for evidentiary hearing.

PETERSON and TORPY, JJ, concur.


text:
    Cornelius DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4051.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Cornelius Dawson, Perry, pro se.
    No Appearance for Appellee.
   THOMPSON, C.J.

Cornelius Dawson, a prison inmate, filed a notice of appeal on 20 August 2002, more than 30 days after the trial court rendered its order denying Dawson’s rule 3.800(a) motion on 15 July 2002. In response to this court’s order to show cause why the appeal should not be dismissed for lack of jurisdiction, Dawson alleged that he did not receive a copy of the trial court’s order until 25 July 2002 and that it took him several weeks to obtain assistance from a law clerk inmate.

We dismiss the appeal for lack of jurisdiction. The dismissal is without prejudice to Dawson’s filing a petition for a belated appeal although we make no ruling as to whether Dawson should be granted such an appeal. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989) (lack of access to a law library does not establish good cause for failure to file a timely notice of appeal).

DISMISSED without prejudice.

PETERSON and MONACO, JJ. concur.


author: PALMER, J.

text:
    Gayle VALDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3940.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Charles P. Horn, Ocala, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PALMER, J.

Gayle Valdez (defendant) has filed a petition seeking certiorari review of an order entered by the trial court disqualifying her trial counsel. Concluding that the defendant was fully informed of the potential conflict of interest and knowingly waived that conflict, we grant the petition and quash the disqualification order.

The defendant was charged with trafficking in contraband. A co-defendant was also arrested and charged with possession of contraband. The defendants were living together at the time of their arrest, and they retained the same attorney to represent them.

The State moved to disqualify the defendant’s trial counsel based on an alleged conflict of interest due to the fact that the co-defendant would be called at trial to testify against the defendant. At the hearing on the motion, the arresting officer testified that the co-defendant stated that the defendant was responsible for dealing in narcotics. However, the co-defendant testified that he did not make any statement which implicated the defendant. The defendant indicated that she wanted her lawyer to continue to represent her.

The trial court granted the State’s motion, finding that a serious potential conflict existed due to defense counsel’s dual representation, and further finding the conflict to be so potentially fundamental as to negate the defendant’s waiver. We conclude that the trial court departed from the essential requirements of law in ordering disqualification and, therefore, we grant the defendant’s petition and quash the disqualification order.

A defendant in a criminal proceeding has a presumptive right to proceed with counsel of his or her choosing under the Sixth Amendment to the United States Constitution. See Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Robinson v. State, 750 So.2d 58 (Fla. 2d DCA 1999). In Woseley v. State, 590 So.2d 979 (Fla. 1st DCA 1991) the First District explained:

In a criminal case, the existence of a conflict of interest is not determinative because the defendant has a constitutionally guaranteed right to counsel of his choice.

Id. at 980 (citing DeArce v. State, 405 So.2d 283 (Fla. 1st DCA 1981)); see also Barclay v. Wainwright, 444 So.2d 956 (Fla.1984); Roberts v. State, 573 So.2d 964 (Fla. 2d DCA 1991).

Here, although a conflict of interest might develop between the defendant and the co-defendant, that possibility must be weighed against the defendant’s right to proceed with counsel of her own choosing. The defendant made an affirmative waiver of any conflict at the hearing. Once she was fully informed of the potential conflict of interest and knowingly waived that conflict, disqualification of counsel was unwarranted.

Petition GRANTED, order QUASHED and case REMANDED.

SHARP, W, and PETERSON, JJ., concur.


text:
    Nasir M. ASHEMIMRY, et al., Petitioners, v. Sheik Ahmed Abdul Rahman Saleh BA NAFA, etc., Respondent.
    No. 5D02-3684.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.

      Jonas C. Packer, of Baker & McKenzie, Miami, and Peter M. Bernhardt, of Reid, Metzger & Associates, P.A., West Palm Beach, for Petitioner.
    Kenneth W. Sukhia, of Fowler, White, Boggs Banker, P.A., Tallahassee, for Respondent.
   PER CURIAM.

Respondent, Sheik Ahmed Abdul Rah-man Saleh Ba Nafa, etc., is the plaintiff below. Petitioner, Nasir M. Ashemimry [“Ashemimry”], the defendant below, seeks a writ of certiorari to quash an order of the trial court ordering defendant to produce to plaintiff a witness statement taken by defense counsel.

This case arises out of a commercial dispute involving claims of fraud and theft involving in excess of eight million dollars. The dispute at issue now concerns Item 6 of the plaintiff’s February 22, 2002, request for production, which sought:

Copies of any statements (recorded and/or written) taken by any of the Defendants/Counter Plaintiffs concerning and/or relating to the factual allegations contained in the latest Amended Complaint or in any of the Defendants/Counter Plaintiffs’ most recent pleadings.

Ashemimry’s response to that request was:

“The only statement in Plaintiffs possession is the statement of Khalid Al-Humaidan which was taken in connection with Defendants’ defense of a criminal investigation and, as such, is protected by the work product privilege.”

On October 2, 2002, the circuit court held a hearing and granted the plaintiffs motion to compel production of witness statements, just as the court had earlier granted Ashemimry’s identical discovery request for witness statements.

Ashemimry now petitions for a writ of certiorari on the ground that the Khalid Al-Humaidan interview was taken “in anticipation of criminal prosecution [and] contains the absolutely protected mental impressions and legal theories of Defendant’s criminal defense and civil attorney,” and, as such, it is not subject to production.

Respondent, in his response, contends that by specifically urging in this court that the recorded statement is opinion work product, not merely fact work product, Ashemimry is raising arguments to this court that he never made to the trial court. He also argues that the trial court was familiar with the case, “with the peculiar circumstance relating to Al Humaidan as an important witness” and has broad discretion in the scope of discovery and this court should not interfere.

We conclude it was error to order discovery of the recorded statement without in camera inspection or additional findings and we accordingly grant the writ. The work product immunity is designed to promote the adversary system by protecting an attorney’s trial preparation. See Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437 (Fla. 3d DCA 1987). Generally, as the supreme court pointed out in Pinellas County v. Carlson, 242 So.2d 714, 719 (Fla.1970), each party must be prepared to succeed or fail on the product of his own work, absent overriding circumstances. Florida Rule of Civil Procedure 1.280(b)(3) does allow discovery of fact work product where the requesting party can show need and the inability to obtain the substantial equivalent by other means without undue hardship. Vesta Fire Ins. Corp. v. Figueroa, 821 So.2d 1233, 1234 (Fla. 5th DCA 2002). The showing of need and undue hardship necessary to overcome the work product immunity is more than a bare assertion and must include specific explanations and reasons. The unsworn allegations of counsel are insufficient. North Broward Hosp. Dist. v. Button, 592 So.2d 367 (Fla. 4th DCA 1992); see Procter & Gamble Co. v. Swilley, 462 So.2d 1188 (Fla. 1st DCA 1985).

Here, the claim of work product was adequately raised. To defeat the work product immunity, respondent mainly relied on the court’s prior ruling that petitioner had to produce similar statements— a ruling that respondent chose to comply with rather than have this court review it. Since the documents and videotape at issue clearly have the character of work product, however, plaintiff must identify a legal basis for their discovery. On certio-rari review, the plaintiff mainly relies on the defendant’s failure to specify that the statement was “opinion” work product and contends that the “overall record” would have been enough to support a determination by the trial court that the plaintiff could have met the test to obtain the statement as fact work product based on a need for the material in order to prepare the plaintiffs case and his inability to obtain the substantial equivalent by other means. This exception is problematical, however, because the record suggests that the witness could be deposed and, by now, may have been deposed. Further, the plaintiff has himself previously obtained a written statement of some sort from the witness in the nature of responses to written questions. The fact that the witness is in Europe might, in an appropriate case, be enough to support the “undue hardship” prong because of the cost of travel, but in this case both the facts underlying the dispute and the conduct of the litigation suggest that travel to Europe for a deposition does not constitute “undue hardship” on the basis of cost alone.

Writ GRANTED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.

      . We have heard prior appeals in this case, one involving jurisdiction and venue and one prior certiorari, which concerned a different discovery issue. Ashemimry v. Ba Nafa, 778 So.2d 495 (Fla. 5th DCA 2001); Ashemimry v. Ba Nafa, No. 00-2389 (Feb. 7, 2001).

      . At the hearing on this issue, plaintiff mainly relied on the fact that this request was not so coincidentally (except for exchanging the names of the plaintiff and defendant) the same as Ashemimry asked the plaintiff to produce in 2001:
      6. Copies of any statements (recorded and/or written) taken by the Plaintiff con-ceming and/or relating to the factual allegations contained in the latest Amended Complaint or in Plaintiff's most recent pleadings.
      The trial court ordered the plaintiff to produce that information, which he did.

      . Respondent says in his response to the petition that Ashemimry is in Romania and that his deposition was scheduled to take place in March 2003.


author: FULMER, Judge.

text:
    Steven EMERSON, Appellant, v. Richard COLE, Appellee.
    No. 2D02-1081.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.

      Richard Horowitz, New York, and Wayne Lee Thomas, Tampa, co-counsel for Appellant.
    Patricia Fields Anderson of Patricia Fields Anderson, P.A., St. Petersburg, for Appellee.
   FULMER, Judge.

Steven Emerson, plaintiff below in a libel suit, appeals the order dismissing Richard Cole, defendant below, based on lack of personal jurisdiction. The issue on appeal is whether Cole has sufficient minimum contacts with Florida such that he should reasonably anticipate being haled into a Florida court based on allegedly defamatory statements he made over the telephone for a news story to be published in Florida. The trial court held that Cole did not have sufficient minimum contacts to justify personal jurisdiction. Based on our de novo review, see Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002), we conclude that Cole’s several telephone interviews, given for a story to be published in Florida, provided sufficient minimum contacts. Therefore, we reverse.

On appeal, Cole does not dispute that sufficient facts have been alleged to bring this action within Florida’s long-arm statute, section 48.193(l)(b), Florida Statutes (1997). As the supreme court held in Wendt, 822 So.2d at 1260, “ ‘committing a tortious act’ in Florida under section 48.193(l)(b) can occur through the nonresident defendant’s telephonic ... communications into Florida” as long as the cause of action arises from such communications; the nonresident’s physical presence in Florida is not required. The issue here is whether Cole has sufficient minimum contacts to satisfy due process requirements. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). This analysis “is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement” than the long-arm statute. Wendt, 822 So.2d at 1257 (quoting Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000)).

To avoid offending traditional notions of fair play and substantial justice, certain minimum contacts are required by the Due Process Clause. Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The minimum contacts analysis focuses on the relationship among the defendant, the forum, and the litigation. Id. Here, Cole (the defendant) made statements for publication in Florida (the forum), and the litigation arises from these statements.

“[T]he constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). “[T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). We conclude that Cole could reasonably anticipate being haled into a Florida court to answer for statements he made to a Florida audience. This is not a place of incidental publication; this is the place of primary publication.

In Godfrey v. Neumann, 373 So.2d 920, 922 (Fla.1979), the Florida Supreme Court held that “by committing a tort in Florida a nonresident establishes sufficient ‘minimum contacts’ with Florida to justify the acquisition of in personam jurisdiction over him.” In Smith v. Cuban American National Foundation, 657 So.2d 86, 86 (Fla. 3d DCA 1995), personal jurisdiction over a nonresident defendant was based on the defendant’s commission of a tort in Florida “by making certain allegedly defamatory statements in a televised interview conducted in Washington, D.C. for a PBS documentary film under circumstances in which it was entirely foreseeable that the subject film would be aired in Florida.” In Carida v. Holy Cross Hospital, Inc., 424 So.2d 849 (Fla. 4th DCA 1982), disapproved on other grounds, Doe v. Thompson, 620 So.2d 1004 (Fla.1993), personal jurisdiction over a nonresident defendant was based on a series of telephone conversations between that defendant and a Florida employer regarding the plaintiffs abilities and performance in a training program. The Fourth District noted that it was “not dealing here with one isolated conversation in a vacuum.” 424 So.2d at 852. In this case, Cole admitted to multiple phone conversations with John Sugg, the editor of a Florida publication. Thus, like Canda, this case does not deal with an isolated conversation. And like Smith, Cole made statements for publication in Florida.

“[The] purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.... Jurisdiction is proper ... where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State.” Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174 (citations and internal quotation marks omitted). The Supreme Court recognized that even a single act can support jurisdiction when it creates a substantial connection to the forum, but “ ‘some single or occasional acts’ ... may not be sufficient to establish jurisdiction if ‘their nature and quality and the circumstances of their commission’ create only an ‘attenuated’ affiliation with the forum.” Burger King Corp., 471 U.S. at 476 n. 18, 105 S.Ct. 2174 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). While a single telephone conversation may have been too attenuated, the multiple interviews given by Cole for publication in Florida are not.

In an amended complaint, Emerson alleged that the court had jurisdiction over Cole, a California resident, under section 48.193 because Cole committed a tortious act in Florida. Emerson alleged that “Cole maliciously provided to [John] Sugg in Florida, for publication in Florida, certain false information about Emerson.” Cole appeared specially and filed a motion to dismiss and an affidavit. In his affidavit, Cole stated that he was a California resident; he had “never personally met with John Sugg, the editor of the Weekly Planet, either in Florida or in any other location”; he “had a few phone conversations with John Sugg ... [who] initiated the contact”; he had “no personal knowledge where Mr. Sugg was located” when they spoke; and he “was not in Florida when [he] spoke with Mr. Sugg by telephone.” Cole’s motion to dismiss stated:

Giving the Amended Complaint its most liberal reading, Plaintiff Emerson merely alleges that Defendant “Cole maliciously provided to Sugg in Florida, for publication in Florida, certain false information about Emerson, as described below.” Even if this bare allegation were enough to meet the requirements of Florida’s long-arm jurisdiction statute, which it is not, it certainly does not satisfy the constitutional requirement of minimum contacts with Florida.

A motion to dismiss for lack of personal jurisdiction is a challenge to the legal sufficiency of the pleadings. Venetian Salami Co., 554 So.2d at 502. To contest a complaint’s jurisdictional allegations, or to challenge the presence of minimum contacts, the defendant must file an affidavit. Id. The burden then shifts to the plaintiff, who must “prove by affidavit the basis upon which jurisdiction may be obtained.” Id. But the burden never shifts back to the plaintiff “when the nonresident defendant’s affidavit does not sufficiently refute the jurisdictional allegations.” Lampe v. Hoyne, 652 So.2d 424, 426 (Fla. 2d DCA 1995); see also Gahn v. Holiday Prop. Bond, Ltd., 826 So.2d 423, 427 (Fla. 2d DCA 2002) (“When a foreign defendant challenges personal jurisdiction by sworn statement, the burden of establishing jurisdiction is only shifted to the plaintiff if the affidavit contests the factual basis of long-arm jurisdiction asserted in the complaint.”). Because Cole did not deny that he knew Sugg was writing a story to be published in Florida, the burden never shifted to Emerson to provide an affidavit.

Here, the facts show that Cole answered his phone and talked, more than once, with someone writing a story to be published in Florida. Thus, his connection with Florida is not random, fortuitous, or attenuated. In its analysis, the trial court relied primarily on Hoechst Celanese Corp. v. Nylon Engineering Resins, Inc., 896 F.Supp. 1190 (M.D.Fla.1995), but in that case the statements were made by a nonresident defendant to a publication with a relatively insignificant percentage of its circulation in Florida (only 1.8 percent of total circulation). 896 F.Supp. at 1196 n. 7. Cole’s comments were made for publication in Florida. While he should not reasonably expect to be haled into another state where copies of the publication might find their way, we conclude that he should reasonably expect to be called upon in Florida to defend statements he knew would be published in Florida. Therefore, we reverse the order of dismissal.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ„ concur.


text:
    Brian J. VONDERVOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1907.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.

      James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Brian J. Vondervor [“Vondervor”] appeals an order revoking his probation and resentencing him after the violation. We affirm.

Vondervor pled nolo contendere to one count of the sale of methamphetamine, one count of possession of methamphetamine, two counts of sale of marijuana, and two counts of possession of marijuana. In exchange for the plea, he was sentenced to five years of drug offender probation, with the special condition that he serve eleven months and twenty-nine days in the county jail on counts IV and VI.

After his release, Vondervor was charged with violation of his probation due to the failure to pay the cost of supervision, as well as a number of fines, fees and costs. He was resentenced to a new four-year term of drug offender probation on February 25,2002.

On April 9, 2002, Vondervor was again charged with violation of his probation. This time the charges concerned the failure to submit a written report to his probation officer on or before March 5, 2002, and the failure to comply with instructions given to him by his supervising officer. The violation report explained that after Vondervor had been resentenced to probation on February 25, 2002, he had reported to the probation office, but had been unable to give an address to the officer of the day. The report stated that the officer of the day had told Vondervor to contact his probation officer, Robert Thompson [“Thompson”], the following day and give an address, but Vondervor never contacted his probation officer and his whereabouts were unknown. Further, he had never filed the written report for the period ending March 5, 2002.

A hearing on the alleged violations was held on June 3, 2002. Before the hearing commenced, the court asked for a recommendation from the State if the violations were admitted. The State proposed that Vondervor be sentenced to a residential drug treatment facility, and held in custody until a placement can be made. The court indicated that it would sentence Von-dervor in accordance with the State’s proposal, but it was rejected by Vondervor.

Thompson testified that Vondervor had violated the conditions of his probation by failing to comply with instructions he had been given. The instructions were to contact Thompson on February 26, 2002 with his address. Vondervor also failed to file a monthly written report by March 5, 2002. Thompson said that Vondervor did not contact him until April 8, 2002, when he came into the office. By this time, the affidavit of violation had already been filed. Even then, Vondervor gave Thompson his brother’s address. Thompson told him he needed more than his brother’s address, since he did not think he was actually staying there.

Vondervor testified that he was released from jail on February 25, 2002. He admitted that he went to the probation office and talked to Thompson, who told him to call his probation officer the following day. He said the next day he was just “busy,” working with his brother and trying to get his life straight. He knows he should have called, but he had no residence at the time. Instead, he was living with his brother and various people in Crystal River, “switching on and off.” Vondervor claimed that he reported to the probation office on March 7, 2002, and filled out a written report. He gave it “to the lady up front.” He also reported in April. He was working on getting a residence. He has been taking urine screens for several years, and none of them have come back positive.

At the conclusion of the testimony, the court found that Vondervor had willfully violated his probation both by failing to file his March report and by failing to give his address to his probation officer. Vonder-vor was resentenced to five years’ imprisonment on each of the four felony counts, with all sentences to run concurrently. He was sentenced to time served on the two misdemeanor possession counts. A corrected sentence was issued on July 19, 2002, sentencing him to five years in the DOC on count I, and no sentence on the remaining counts.

Vondervor appealed. While the appeal was pending, he filed a rule 3.800(b) motion to correct his sentence, arguing that his sentence was the result of vindictiveness and improperly took into account his refusal to accept the plea offer made by the State. The trial court denied the motion in a lengthy written order, in which the court reviewed the history of Vonder-vor’s case and the evidence presented at the violation hearing. The court rejected the notion that Vondervor’s sentence was the product of vindictive sentencing, explaining:

Once the defendant declined to admit the violation and requested a hearing, it was inevitable that the judge would be apprised of facts or circumstances that would impact the determination of an appropriate sentence.
In view of the facts established at the violation hearing; that the defendant had previously violated probation; that he had completely failed to contact his probation officer from February 26th until April 8, 2002; that he had failed to provide an address where he was living during this time; and that he had could [sic] not explain his conduct other than to say he “was busy”; it appears that the bald allegation that judicial vindictiveness was the basis for the defendant’s sentence is baseless. See, Eltaher v. State, 777 So.2d 1203 (Fla. 4th DCA 2001).

Vondervor first argues that the State failed to meet its burden of proving by the greater weight of the evidence that he violated probation. We find this argument to be without merit. The evidence is sufficient to support the conclusion that Vondervor violated his probation.

Vondervor next complains that the sentence imposed by the trial court was legally vindictive, because the trial court gave him five years in prison after he insisted on going to trial on his probation violation. He asserts that the judge offered him residential drug treatment if he pled to the violations. He maintains that his more severe sentencing after a trial demonstrates judicial vindictiveness.

Until recently, Florida courts appeared to be split on the question of whether the presumption of vindictiveness established in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) applies when a defendant rejects a plea offer or has a plea set aside and subsequently receives a greater sentence after going to trial. The majority of courts, including this court, applied such a presumption where the judge became involved in plea negotiations, which were then rejected by a defendant, who subsequently went to trial and was sentenced to a harsher sentence. See Prado v. State, 816 So.2d 1155, 1157 (Fla. 3d DCA 2002) (presumption recognized), review granted, Case No. SC02-1124 (Fla. May 15, 2002); Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001) (presumption recognized), review granted, 817 So.2d 850 (Fla.2002); McDonald v. State, 751 So.2d 56, 59 (Fla. 2d DCA 1999) (presumption recognized). By contrast, the Fourth District found that a lesser sentence could be offered as part of a plea, and no presumption of vindictiveness should be applied where the defendant receives a greater sentence after going to trial. See Morales v. State, 819 So.2d 831 (Fla. 4th DCA 2002), review granted, Case No. SC02-1152 (Fla. May 20, 2002).

The issue has now been addressed by the Supreme Court of Florida and decided by a divided vote. In Wilson v. State, 845 So.2d 142 (Fla.2003), the court detailed the circumstances in which a presumption of vindictiveness should be applied where a defendant receives a higher sentence after plea negotiations, as well as the interrelationship of the presumption with the judge’s limited right to participate in plea negotiations as outlined in State v. Warner, 762 So.2d 507 (Fla.2000). In Warner, the court recognized certain limits on judicial participation in the plea bargaining process. The first was that, the trial court could not initiate the plea dialogue. The second was that the judge must “neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Wilson, 845 So.2d at 146, quoting Warner, 762 So.2d at 513-514. According to Wilson, the opinion “involved a very narrow holding that permits a trial judge to respond to a request from a defendant as to what sentence the judge would impose in exchange for a guilty plea.” Wilson, 845 So.2d at 152.

Wilson refused to adopt a presumption of vindictiveness to be applied in every case in which the judge participated in plea negotiations. Wilson, 845 So.2d at 150. Instead, it “conclude[d] that a totality of the circumstances review ... is the more appropriate analysis to employ to determine whether a defendant’s constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated.” Wilson, 845 So.2d at 156.

In this case there is no basis for imposition of a presumption of vindictiveness. First, no violation of Warner appears to exist. A plea offer was made by the State and simply agreed to by the trial judge, who did not insinuate himself into the bargaining process or depart from his role as an impartial arbiter. Although the judge did ask at the outset of the plea hearing for a recommendation from the State if the violation were admitted, this does not appear to be a violation of Warner. Prior to trial, a judge may ask the attorneys if a plea offer has been extended, and may ask the defendant if he is aware of a pending plea offer without violating Warner’s restrictions. See Wilson, 845 So.2d at 157 n. 9 The judge can even tell the defendant at the same time of his or her maximum exposure if convicted at trial. Id. Furthermore, once the issue of vindictiveness was raised by Vondervor, the judge explained in detail the reasons why he imposed a harsher sentence.

AFFIRMED.

SHARP, W., and PALMER, JJ„ concur.

      . The written conditions stated:
      CONDITION (1): Not later than the fifth day of each month, or as otherwise directed, you will submit a full and truthful report to your supervising officer on the Written Monthly Report Form.
      CONDITION (8): You will promptly and truthfully answer all inquiries directed to you by your Supervising Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.