author: ORFINGER, J.

text:
    John W. HACK, Tarinee Williams, et al., Appellants, v. Lorraine A. JANES, Appellee.
    No. 5D03-3072.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.

      Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellants.
    Jack B. Nichols, Orlando, for Appellee.
   ORFINGER, J.

John W. Hack, Tarinee Williams, Alan Williams, Mary Ann Bertino, Diane Berti-no, Dawn Bertino Mattson, and the Orlando Humane Society (Appellants), appeal an order of the probate court admitting Dorothy T. Helling’s 1992 will to probate. Appellants, beneficiaries under Helling’s 1990 will, challenged the probate of the 1992 will, contending that Helling lacked the testamentary capacity to execute it, and that Appellee, Lorraine Janes, exercised undue influence to procure the will under which she is a substantial beneficiary.

When this matter was first tried, at the close of Appellants’ case, Janes, the proponent of Helling’s 1992 will and Hell-ing’s personal representative, moved for a directed verdict. The trial court granted Janes’s motion. On appeal, concluding that Appellants had presented a prima facie case of undue influence as required by In re Carpenter’s Estate, 253 So.2d 697 (Fla.1971), we reversed the order admitting the 1992 will to probate, and remanded the matter for a new trial. See Hack v. Estate of Helling, 811 So.2d 822 (Fla. 5th DCA 2002) (Hack I). In so doing, we said that because Appellants had presented a prima facie case of undue influence on the part of Janes, the burden then shifted to Janes to overcome the presumption of undue influence. Following retrial, and after considering the evidence brought forth by Appellants and Janes, the trial court again admitted the 1992 will to probate. The trial court concluded that Helling was competent at the time the 1992 will was executed, and the “greater weight of the evidence show[ed] that ... Lorraine Janes did not unduly influence Dorothy T. Hell-ing to execute [the 1992 will] and that she did not abuse any confidential relationship.” In this appeal, Appellants contend that the trial court’s conclusions are not supported by competent, substantial evidence, and that the trial court failed to properly apply the revised presumption of the undue influence statute, section 733.107, Florida Statutes (2002), enacted subsequent to our opinion in Hack I. We disagree and affirm. Nonetheless, the effect of the revisions to section 733.107 merit discussion.

In will contests, the person opposing or seeking to revoke a will has the burden of producing evidence to support that position. See § 733.107, Fla. Stat. (2002). A rebuttable presumption of undue influence arises when someone in a fiduciary or confidential relationship actively procures a devise or gift in his or her favor. In Re Estate of Carpenter.

“A presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.” § 90.301, Fla. Stat. (2002). “A presumption ... requires that ‘once some fact ... is established, some other fact at issue ... must be deemed true, at least provisionally.’ ” State v. Rolle, 560 So.2d 1154, 1159 (Fla.1990) (Barkett, J., concurring specially). Section 90.304 provides that rebuttable presumptions not included within the definition of section 90.303, ie., presumptions that implement public policy rather than being established primarily as procedural devises, are presumptions affecting the burden of proof or the burden of persuasion. § 90.304, Fla. Stat. (2002); see Charles E. Ehrhardt, Florida Evidence, § 304.1 (2004 ed.) However, “when proof is introduced of the basic facts giving rise to a section 90.302(2) presumption affecting the burden of proof, the presumption operates to shift the burden of persuasion regarding the presumed fact to the opposing party.” Id.

Section 733.107, Florida Statutes (2002), provides:

(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under sections 90.301-90.304-

(emphasis added).

The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301-90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest. The new statute supersedes Carpenter and Cripe v. Atlantic First National Bank, 422 So.2d 820 (Fla.1982), to the extent that they prohibit a shifting of the burden of proof in presumption of undue influence in cases. See Steven G. Nilsson, Florida’s New Statutory Presumption of Undue Influence, 77 Fla. B.J. 20, 21 (2003). Because section 733.107(2) specifically mandates that the presumption shifts the burden of proof under sections 90.301 through 90.304 when a presumption of undue influence arises, as it did here, Janes, the alleged wrongdoer, bore the burden of proving that there was no undue influence. Nonetheless, Carpenter and Cripe live on, at least in part. As Nilsson correctly observes, “[t]hose portions of Carpenter and Cripe that prescribe the legal effect of the presumption of undue influence are superseded by the new statute. Those portions of Carpenter and Cripe that explain the circumstances giving rise to the presumption of undue influence are not superseded by statute.” Id. at 24 (footnotes omitted).

In Beal Bank, SSB v. Almand and Associates, 780 So.2d 45, 59 n. 20 (Fla.2001), the supreme court explained:

Pursuant to section 90.302(2), a presumption effecting the burden of proof “imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” Thus, when evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case. See generally Charles W. Ehrhardt, Florida Evidence, §§ 302.1, 302.2, 303.1, 304.1 (2000 ed.).

Finally, we are left with a question of the quantum of proof the proponent of a will must produce to overcome the presumption of undue influence. Appellants argue that the proponent of the will should be required to prove the non-existence of undue influence and abuse of a confidential relationship by clear and convincing evidence. They argue that a higher burden should be placed on those who claim substantial gifts under circumstances when a prima facie case of self-serving manipulation has been made. In support of their argument that Janes’s evidentiary burden should be clear and convincing evidence, Appellants cite Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438 (Fla.1979). In Caldwell, a firefighter, who suffered a heart attack, was denied disability in the line of duty benefits. The supreme court held that the statutory presumption, providing that any impairment of the health of a firefighter caused by heart disease, resulting in total disability, was suffered in the line of duty, could be overcome by the employer only by clear and convincing evidence. Id. at 441. While Caldwell is surely persuasive, we believe more on point is the supreme court’s holding in Gripe, wherein the supreme court said that the trier of fact determines the question of undue influence by the preponderance (greater weight) of the evidence. See Cripe, 422 So.2d at 824. While sound policy arguments can be made to support Appellants’ position regarding the amount of evidence needed to overcome a prima fa-cie showing of undue influence, we believe that to be a matter better suited for the Legislature to address, not the courts. The preponderance or greater weight of the evidence is the generally accepted burden of proof in civil matters. See Seropian v. Forman, 652 So.2d 490, 494 (Fla. 4th DCA 1995); see also Wieczoreck v. H & H Builders, Inc., 475 So.2d 227, 227-28 (Fla.1985). Absent clear direction from the Legislature, we find no reason to deviate from that standard here.

We find no merit in the remaining issues raised by Appellants. Accordingly, the judgment is affirmed.

AFFIRMED.

SAWAYA, C.J., and PALMER, J., concur.

      . Since this was a non-jury trial, Janes should have moved for an involuntary dismissal, rather than a directed verdict. Rehab. Advisors, Inc. v. Floyd, 601 So.2d 1286 (Fla. 5th DCA 1992). In any event, the same law is applicable to both motions. Foster v. City of Gainesville, 579 So.2d 774 (Fla. 1st DCA 1991).

      . A summary of the evidence put forth by Appellants can be found in Hack I. On retrial, Janes offered conflicting evidence.

      . Sections 90.301 through 90.304 provide:
      90.301. Presumption defined; inferences
      (1)For the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.
      (2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.
      (3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.
      (4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.

        90.302. Classification of rebuttable presumptions
      Every rebuttable presumption is either:
      (1) A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or
      (2) A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.
      90.303. Presumption affecting the burden of producing evidence defined
      In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.
      90.304.Presumption affecting the burden of proof defined
      In civil actions, all rebuttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof.

      . The effect of the amended statute is "to make clear that the presumption of undue influence by an actively involved substantial beneficiary who is in a fiduciary or confidential relationship with the testator is a policy-based shifting of the burden of proof. This ensures that the presumption does not vanish’ upon production of rebuttal evidence by the proponent of the will.” Fla. H.R. Comm. for Smarter Government, HB 1127 (2002) Staff Analysis 5 (Mar. 6, 2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dino LEWIS, Petitioner, v. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D02-3664.
    District Court of Appeal of Florida, First District.
    July 20, 2004.

      Dino Lewis, pro se, petitioner.
    Rosa Carson, Acting General Counsel, and Carolyn J. Mosley, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

Respondent’s motion to recall mandate and for clarification is granted. We withdraw the original opinion and substitute the following opinion for our previous decision.

By petition for writ of certiorari, Dino Lewis seeks review of an order of the circuit court which denied his petition for writ of mandamus which sought recalculation of his release date. Because Lewis is entitled to relief pursuant to Bolden v. Florida Dept. of Corrections, 865 So.2d 1 (Fla. 1st DCA 2003), rev. granted, Crosby v. Bolden, 848 So.2d 1153 (Fla.2003), rev. dismissed, 867 So.2d 373 (Fla.2004), we grant the petition.

In circuit court case number 95-31807, Lewis was convicted of armed robbery with a firearm and possession of a firearm by a convicted felon for robbing a Subway Store on April 17, 1995. In circuit court case number 95-31817, Lewis was convicted of armed robbery with a firearm and possession of a firearm by a convicted felon for robbing a Pizza Hut on April 8, 1995. On all four counts, Lewis was sentenced as an habitual offender and received seven-year sentences, less credit for time served prior to sentencing, all counts running concurrent to any active sentence. The circuit court imposed three-year minimum mandatory terms on the two armed robbery counts.

Lewis was eligible to receive incentive gain time while serving the firearm sentences, but not while serving the three-year mínimums for the armed robbery counts. As a result, the release dates for the firearm counts were earlier than the release dates for the armed robbery counts. The Department of Corrections tolled the time for conditional release supervision to begin on the firearm counts for 344 days while Lewis completed the incarcerative periods for the armed robbery sentences.

Lewis was released to conditional release supervision, but was later revoked. In calculating Lewis’s new release date, the Department added the 344 days which had been tolled. Lewis’s release date should be recalculated without the addition of the 344 days. In Bolden, this court held that in calculating a new release date following revocation of conditional release supervision, the Department could not consider as tolled the time served following expiration of the incarcerative portion of one sentence while the inmate awaited expiration of the incarcerative portion of a related sentence which arose from the same criminal episode. Here, petitioner received sentences that were imposed for offenses committed during both the same and different criminal episodes. During each robbery, petitioner, a convicted felon, possessed a firearm, but each robbery was committed during a separate criminal episode. Thus, as to the Pizza Hut robbery, the prison time on the firearm possession sentence could not be tolled while the Pizza Hut robbery sentence was completed. Likewise; as to the Subway robbery, the prison time on the firearm possession sentence could not be tolled while the Subway robbery sentence was completed. As between the sentences imposed in the two separate cases, our decision in Bolden affords petitioner no relief because the sentences were imposed for two unrelated robberies. See Bostic v. Crosby, 858 So.2d 347 (Fla. 1st DCA 2003); Crosby v. McNeal, 865 So.2d 617 (Fla. 5th DCA 2004).

PETITION GRANTED.

ERVIN, PADOVANO and POLSTON, JJ., concur.

      . See Thompson v. Singletary, 659 So.2d 435, 437 (Fla. 4th DCA 1995)(citing Washington v. State, 92 Fla. 740, 110 So. 259, 260-61 (1926))(holding that the prevailing rule is that an appellate court's jurisdiction ends with the term the judgment was rendered and mandate issued except as to the power to make correction of clerical errors or inadvertences or to recall a mandate sent down by inadvertence, or to vacate a judgment void on its face).


text:
    David PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1399.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

BENTON, PADOVANO and HAWKES, JJ., concur.


author: GERSTEN, J.

text:
    KAYE SCHOLER LLP, a New York limited liability partnership and Manuel Kushner, Esq., Petitioners, v. Charles N. ZALIS, individually, and Charles N. Zalis, in his capacity as General Partner of the Charles N. Zalis Family Limited Partnership, a Virginia limited partnership, North American Underwriting Managers, Inc., a Florida corporation, and North American Underwriting Managers Agency, Inc., a Massachusetts corporation, and Richard Brodsky, Esq., Respondents.
    No. 3D04-292.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.

      Shutts & Bowen, and Robert Fracasso, and Joey E. Schlosberg, for petitioners.
    Bales & Sommers, and Richard M. Bales, Jr., and Martin L. Nathan, Miami, for respondents.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   GERSTEN, J.

Petitioner law firm Kaye, Scholer, LLP, and attorney Manuel Kushner, Esq. (hereafter collectively referred to as “Scholer”), seek certiorari review of a trial court order denying their motion to compel discovery. We find the trial court departed from the essential requirements of law, quash the order, and remand with instructions to grant Scholer’s motion to compel production of documents from the respondents.

Respondent, Charles Zalis, and his affiliated companies (hereafter collectively referred to as “respondents”), filed a legal malpractice action against several law firms, including Scholer. Appropriately, Scholer sought discovery relating to its defenses and served the respondents with its first document request in July of 2003.

Thereafter, the respondents sought five extensions of time. Scholer agreed to all five extensions. Meanwhile, the respondents neither served any responses or objection, nor sought any protective order. In the interim, Scholer requested a privileged document log pursuant to Rule 1.280(b)(5). In similar dilatory fashion, the respondents did not provide one.

By November of 2003, Scholer, having still not received any responsive documents, filed a motion to compel and for sanctions. The motion sought the production of the respondents’ documents, as well as a determination that any claims of privilege had been waived pursuant to Florida Rule of Civil Procedure, Rule 1.280(b)(5), based upon the failure to produce a privilege log.

The trial court denied the motion in January of 2004, and Scholer sought reconsideration. In its motion for reconsideration, Scholer explained that although the respondents’ attorney had partially produced certain documents, the respondents themselves had completely failed to produce any documents or a privileged document log. Upon reconsideration denied, Scholer sought certiorari in this Court.

On review, this Court ordered the respondents to file a response. Interestingly, and only after receiving this Court’s order, the respondents now acknowledge their obligation to produce the documents. The respondents state the trial court may have been “confused” about the nature of the production. They argue that any “delay or recalcitrance” in their production of the essential discovery does not justify waiver and does not warrant certiorari. We disagree.

As finally acknowledged by the respondents, they were required to respond to the discovery request pursuant to Florida Rule of Civil Procedure, Rule 1.350. Even if the respondents believed certain documents were privileged or protected from discovery, they were still required to file a privilege log pursuant to Rule 1.280(b)(5). Rule 1.280(b)(5) states:

When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

This Rule requires the production of a privilege log in order to preserve a privilege. See TIG Ins. Corp. of America v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001). The purpose of this requirement is “to identify materials which might be subject to a privilege or work product protection so that a court can rule on the ‘applicability of the privilege or protection’ prior to trial.” General Motors Corp. v. McGee, 837 So.2d 1010, 1033 (Fla. 4th DCA 2002). Failure to comply with the requirements of Rule 1.280(b)(5) results in the waiver of any attorney-client and work-product privileges. See General Motors Corp. v. McGee, 837 So.2d at 1010; Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002); TIG Ins. Corp. of America v. Johnson, 799 So.2d at 339.

Although Scholer continuously agreed to numerous enlargements of time, the respondents willfully refused to produce a log, and further took advantage of the trial court’s “confusion” by continuing to delay production of documents. This type of conduct clearly results in a waiver under Rule 1.280(b)(5).

We remind counsel that all attorneys have a professional responsibility of candor toward the court. See R. Regulating Fla. Bar 4-3.3; Hays v. Johnson, 566 So.2d 260 (Fla. 5th DCA 1990), review denied, 576 So.2d 287 (Fla.1991). Just because the respondents have now agreed to produce all responsive documents, does not mean they are absolved from then-professional responsibility. Part of this professional responsibility involves forbearance from unnecessary litigation and its concomitant increased costs. Had the respondents been more attuned to their duty of candor and their proper discovery duties as litigants, Scholer would not have incurred the unnecessary expense of seeking certiorari relief in this Court.

Accordingly, we grant the petition for certiorari, remand with instructions to quash the order denying the motion to compel discovery, and find the respondents have waived any claims of privilege. See TIG Ins. Corp. of America v. Johnson, 799 So.2d at 339; Criswell v. Best Western Int’l, Inc., 636 So.2d 562 (Fla. 3d DCA 1994). The respondents are ordered to promptly produce all documents responsive to the document request. Further, on remand, the trial court shall conduct a hearing to determine a reasonable amount of attorney’s fees to be paid by the respondents to Scholer.

Certiorari granted; order quashed; remanded with instructions.

      . Although no documents were produced by the respondents, the respondents' attorney was separately served with a request for production and subpoena duces tecum and did produce twenty eight boxes of discovery.


text:
    Betty BARBER, Appellant, v. Richard A. BARBER, Appellee.
    No. 3D03-2078.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.

      Rodriguez O’Donnell Ross Fuerst Gonzalez Williams, P.C., and Christopher B. Tillson, Miami Beach, and Mitchell S. Fuerst, Miami, for appellant.
    Sophie DeMayo, for appellee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal by a former wife of a final judgment enforcing a settlement agreement. The central issues below were (1) who should bear the risk of loss sustained because the value of an asset that the parties agreed, in their mediated settlement agreement, to divide in certain proportions diminished due to market conditions between the date of the mediation session and the date of the distribution of that asset; and (2) whether Ms. Barber breached the agreement by failing to provide information to Mr. Barber to enable him to complete the joint income tax returns that the parties agreed to file. After a lengthy, unnecessarily acrimonious evi-dentiary hearing, presided over by the trial judge with great aplomb and commendable restraint, the trial court made what amounted to be an equitable distribution of the reduced value of the asset, see Florida State Turnpike Authority v. Industrial Construction Co., 133 So.2d 115, 117 (Fla. 2d DCA 1961) (holding that when a court interprets the language of a contract for intent of the parties, the court must aim “to give a just and fair construction or one which will effectuate justice between the two parties”), and reserved jurisdiction to determine the appropriate remedy for Ms. Barber’s failure to provide Mr. Barber with her income tax information so that he could prepare the joint income tax return for the parties for the year 2000.

Post hearing, but prior to entry of the final judgment, the parties were asked to brief the legal issue of loss since the asset had declined in value. Remarkably, the former husband responded with a “Motion for Reformation of Agreement and Motion for Reconsideration,” and the former wife joined in the motion, albeit belatedly. The trial court disregarded and denied these joint motions.

On this appeal, the parties persuasively argue that their marital settlement agreement was entered into as a result of mutual mistake and jointly seek rescission of the agreement, representing to this court that there is a high likelihood of amicable resolution of this matter if they are given the opportunity to renegotiate their agreement with full knowledge of the mistaken facts. Upon review, we find that the settlement agreement was entered into based upon mutual mistake. It is within the purview of a trial court to rescind a contract between parties based upon mutual mistake. Braman Dodge v. Smith, 515 So.2d 1053 (Fla. 3d DCA 1987). We further find that the trial court erred in not rescinding the marital settlement agreement on the evidence presented.

Reversed and remanded with directions.

      . To demonstrate the degree of acrimony, Ms. Barber’s counsel at the hearing made a major issue about the form of quit claim deed that Mr. Barber signed to convey title to the former marital home to Ms. Barber, normally a simple prepared form document. Mr. Barber's attorney readily agreed to have his client sign whatever form of deed that was tendered that would fully effect the agreement of the parties. Conduct of this type ill fits the image of the bar or that of family lawyers, who should be problem-solvers and not problem creators.

      . At the hearing, the wife also refused to represent whether or not she would sign the return if presented to her, despite her prior agreement to do so.


author: PER CURIAM. COPE, J.

text:
    Hector Alfredo UBILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1502.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Hector Alfredo Ubilla, in proper person, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J. and COPE and FLETCHER, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, C.J. and FLETCHER, J., concur.

COPE, J.

(concurring).

In his postconviction motion, defendant-appellant Hector Alfredo Ubilla states that when the venire of jurors was brought to the courtroom for voir dire in his case, the jurors were not sworn prior to voir dire examination. He maintains that he is entitled to a new trial or that his counsel was ineffective for failure to lodge an objection.

The trial court properly rejected the claim. The trial court’s order states that “it is well established in Miami-Dade County Criminal Court that all potential jurors are sworn in each morning prior to being sent to a particular judge for voir dire. Miami-Dade County criminal jurors are held in the 7th floor pool until they are sworn in masse.” The trial court was entitled to take judicial notice of this procedure.

In support of his motion, the defendant relies on the decision in Fernandez v. State, 814 So.2d 459 (Fla. 4th DCA 2001). The Fourth District has subsequently receded from Fernandez. See Hayes v. State, 855 So.2d 144, 145 (Fla. 4th DCA 2003) (en banc) (“The trial court also recognized the St. Lucie County Circuit Court’s practice, like most circuit courts, of swearing the venire in the jury assembly room before the jurors are sent to the respective courtrooms.”); Davis v. State, 848 So.2d 418, 419 (Fla. 2d DCA 2003) (“Previously, this court has recognized that in many trial courts the preliminary oath is administered in the jury assembly room or at some other location when all of the prospective jurors for the several trials to be held in the courthouse on that day are assembled.”); Lott v. State, 826 So.2d 457, 458 (Fla. 1st DCA 2002) (“In many Florida courts, the preliminary oath is administered to the venire in a jury assembly room, before the jurors are questioned about their legal qualifications and before they are divided into smaller groups for questioning in individual cases.”), review denied, 845 So.2d 891 (Fla.2003).


text:
    Theodore DUKES, Appellant, v. STATE of Florida, Appellee.
    No. 3D03-925.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist Jr., Attorney General, and Meredith L. Balo, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Affirmed. See State v. Fiorentino, 793 So.2d 4 (Fla. 3d DCA 2000).

GERSTEN and GREEN, JJ., concur.

COPE, J.

(specially concurring).

Under the unique circumstances of this case, I concur that affirmance is in order. It is clear that the trial court intended its extension order to extend the speedy trial period until the State’s petition for writ of certiorari, filed in this court, was disposed of. Since that was the trial court’s interpretation of its own order, I conclude that there was no speedy trial violation.

I.

Defendant/appellant Theodore Dukes was charged with aggravated assault on a police officer, fleeing and attempting to elude a law enforcement officer, and resisting an officer without violence.

The defendant filed a notice of expiration of the speedy trial period. This triggered the window period. See Fla. R.Crim. P. 3.191(p)(3).

On the last day of the window period, the State filed a motion for extension of the speedy trial period on the ground that two essential police officers were not available to testify. One was on his honeymoon and the other was on medical leave. One was named as the victim in the aggravated assault charge and both were named as victims in the charge of resisting an officer. The court denied the continuance.

The State advised the court that it wished to file a petition for writ of certio-rari in this court. The State told the court that it would require fourteen days to prepare and file the petition.

The trial court granted an extension of the speedy trial period for fourteen days. The court also ordered that thereafter the case would appear on the trial calendar from day to day until this court disposed of the petition for writ of certiorari. The court ruled that if the petition were denied, jury selection would begin immediately.

The State filed its petition for writ of certiorari on the fourteenth day. On the fifteenth day, the parties appeared before the court to advise the court of the status. At that time, the petition was pending in this court. Defense counsel objected to the trial court’s conducting any proceedings while the petition for writ of certiorari was pending, stating that the trial court had no jurisdiction. (R.141). Later the same day, this court denied the petition for writ of certiorari.

On the sixteenth day the defendant filed a motion for discharge, arguing that the speedy trial period had expired on the fourteenth day. The motion for discharge was denied. Upon learning that the petition for writ of certiorari had been denied, the court began jury selection immediately, and the case proceeded to trial. The defendant was convicted of fleeing and attempting to elude a law enforcement officer. He was acquitted of the remaining charges.

The defendant has appealed.

II.

Under established precedent, when the State desires an extension of the speedy trial period in order to allow it to seek appellate review, the motion should seek an extension (a) for the filing of the appellate proceeding, and (b) thereafter until such time as the appellate proceeding is disposed of. See State v. Jenkins, 389 So.2d 971, 974 (Fla.1980); State v. Barnett, 366 So.2d 411, 416 (Fla.1978).

The intent of the Barnett rule is to allow the trial court to retain a measure of control so as to prevent the filing of frivolous State appeals to frustrate the speedy trial rule. See Barnett, 366 So.2d at 415.

Thus as a general rule, if the State fails to request an extension of the speedy trial period to include the time that the appellate proceeding is pending, and if through such failure the speedy trial period expires, the defendant will be entitled to discharge — even though the proceeding was pending in the appellate court. See Jenkins, 389 So.2d at 976; Barnett, 366 So.2d at 417.

The defense argues that just such a scenario occurred here. The State filed its petition for writ of certiorari on the fourteenth day of the fourteen-day extension. The State did not specifically request an extension of time to include the time that the petition was pending in this court. The defense contends that the speedy trial period ended on the fourteenth day and that the defendant’s subsequent motion for discharge should have been granted.

While the defendant’s claim is a substantial one, I concur with the majority that affirmance is in order here. The trial court granted an extension of the speedy trial period for fourteen days on the clear understanding that the petition for writ of certiorari would be filed on the fourteenth day. If that is all that had happened in the case, then the speedy trial period would have expired and the motion for discharge would have been well taken under Jenkins and Barnett.

However, that is not all that happened in the case. The trial court scheduled a daily report on the status of the case while the petition for writ of certiorari was pending. Clearly the trial court interpreted its own extension order to mean that the speedy trial period would be extended for so long as the petition for writ of certiorari remained pending in this court. If the trial court had intended for the speedy trial period to run out on the fourteenth day, then logically the defendant would be discharged on the fifteenth or sixteenth day, rather than having the parties appear for a daily report.

This court denied the petition for certio-rari on the fifteenth day. Under Florida Rule of Criminal Procedure 3.191(m), this court’s ruling triggered a ninety-day period in which to start the trial. The trial proceeded within the time period allowed by rule 3.191(m).

III.

For the stated reasons, I concur in the affirmance of the defendant’s conviction.


text:
    Shawn SMALLS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1993.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson and Valentina Tej-era, (Ft. Lauderdale), Assistant Attorneys General, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

The trial court is affirmed in all respects. In so affirming, however, we do not address the appellant’s allegations of ineffective assistance of counsel.


text:
    Lynell CARR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2546.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

We reverse and remand for entry of a corrected sentencing order awarding the appellant credit for time served from the date of his arrest, August 28, 1993, to the date of sentencing on the severed count, March 22,1995.

Reversed and remanded.


text:
    Johnny Carl WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3322.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Johnny Carl Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

On remand, the trial court is directed to strike the requirement of “hard labor” from the defendant’s sentence. Holman v. State, 740 So.2d 1258 (Fla. 3d DCA 1999); Burney v. State, 705 So.2d 90 (Fla. 2d DCA 1997). In all other respects, the trial court’s order dated November 4, 2003, denying the defendant’s motion to correct illegal sentence is affirmed.


author:
PER CURIAM.
      WELLS, J.,

text:
    DELPA, INC., Appellant, v. Cecilia MARTINEZ, Appellee.
    No. 3D04-113.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Murray, Marin & Herman and Carolyn A. Pickard, Coral Gables, for appellant.
    Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger and Marc E. Schwartz, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Earnest & Stewart, Inc. v. Codina, 732 So.2d 364, 366 (Fla. 3d DCA 1999)(“Properly viewed, ... the dismissal and releases referred to in the offer were not ‘conditions’ of the settlement, but rather mechanical and legally inconsequential means of effecting it. They thus should be regarded as mere surplusage, the existence of which should not affect substantial rights.”); Waddell v. Donelly, 138 Fla. 570, 189 So. 650 (1939); 2 Fla. Jur.2d Agency § 113 (1998)(“A third person cannot receive the benefits of a transaction through an agent and then refute the agent’s right to act.”).

SCHWARTZ, C.J., and GERSTEN, J., concur.

WELLS, J.,

(dissenting).

I respectfully dissent. The parties agreed to settle this action with Delpa paying $12,000 to Martinez in exchange for Martinez’s executed general release (a release drafted by Delpa). Martinez’s brief confirms that provision of the release by Martinez was an “essential” term. Martinez’s position, and that apparently adopted by the trial court, is that while the release was essential, who signed the release was not. I cannot agree.

As we know, Martinez has been “missing” since the lawyers hammered out this agreement; she has never executed or provided the agreed upon “essential” release; and she did not execute a power of attorney which would have allowed someone else to sign the release and end the case. At oral argument, counsel for Martinez begrudgingly conceded that the court below had no power to appoint (as it did) an attorney-in-fact to execute documents, including a release, or to otherwise act on Martinez’s behalf. Nonetheless, with no release to exchange, the trial court concluded that it could effectuate the parties’ agreement, order disbursement and enter judgment.

“Settlements, of course, are governed by the rules for interpretation of contracts.” Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985). The courts of this state neither write nor re-write contracts on behalf of the litigants who come before them. See, e.g., Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 408 (Fla.1954)(“Courts are not authorized to write a new contract for the parties on the pretext of construing the terms thereof when the wording employed is plain, crystal clear and unambiguous.”); Hamilton Constr. Co. v. Bd. of Pub. Instruction of Dade County, 65 So.2d 729, 731 (Fla.1953) (concluding that to give an agreement a meaning other than that expressed in it “would be to do violence to the most fundamental principle of contracts”). As part of the “deal” between the parties, Delpa was to secure a valid and enforceable general release executed by Martinez. There is certainly nothing ambiguous about the terms of this agreement and, since no one can execute the mandated “essential” release on Martinez’s behalf, payment cannot be forced.

In light of Martinez’s concession that Martinez’s agreement to provide a release was an essential term of the parties’ agreement, I cannot agree with the majority’s suggestion that a release is mere surplus-age. And while I agree with the general proposition stated in Earnest & Stewart, Inc. v. Codina, 732 So.2d 364, 366 (Fla. 3d DCA 1999), that a general release requirement is surplusage to a statutory offer of settlement which does not render that offer unenforceable, I do not agree that a general release is surplusage to every settlement agreement. To the contrary, neither a dismissal with prejudice nor a final judgment entitles a party to a general release. While the doctrine of res judicata provides protection from re-litigation of the same claims, it will not, as will a general release, protect the parties from subsequent claims, whether anticipated or unforeseen. A general release can, therefore, have value separate and apart from that naturally occurring in a dismissal or judgment upon settlement. See Codina, 732 So.2d 364, 367 (Fla. 3d DCA 1999) (Cope, J., specially concurring); see also Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001) (holding that where “the parties fail to reach an agreement as to the character, nature, or type of release to be used, an essential element of the agreement is not established”); Grimsley v. Inverrary Resort Hotel, Ltd,., 748 So.2d 299, 301 (Fla. 4th DCA 1999) (finding no enforceable settlement agreement where the plaintiff refused to sign a general release demanded by the defendant because the parties were not in agreement as to every essential element); Bateski v. Ransom, 658 So.2d 630, 632 (Fla. 2d DCA 1995) (confirming that because the parties never agreed on the character, nature, or type of release to be used, no settlement agreement existed).

The parties in this case expressly agreed that Delpa would pay $12,000 in exchange for a general release from Martinez and for a stipulation for dismissal with prejudice. Under the circumstances, the trial court was not free to dispense with this clear and unambiguous requirement and to order payment and enter judgment without it!

I would therefore reverse the judgment in Martinez’s favor.

      . In a fall-back argument, Martinez’s counsel suggested that the court could appoint a guardian ad litem for this mentally competent adult under section 731.303(4), Florida Statutes (2003). However, section 731.303 governs representation "in judicial proceedings involving estates of decedents or trusts,” neither of which is implicated here. Moreover, as counsel conceded, he had never complied with those procedural safeguards that are also part of section 731.303.

      . I see no reason why the trial court could not approve the settlement and dismiss the action. This would leave the parties to effectuate the settlement with an exchange of funds upon receipt of the release when and if Martinez reappears. This would place the onus on the missing Martinez to enforce the settlement by providing the release. Alternatively, this action should have been dismissed under Rule 1.420(e).


text:
    Jerome THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-899.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Jerome Thomas, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Render v. State, 802 So.2d 512, 513 (Fla. 3d DCA 2001).


text:
    Richard KULIG, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2212.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.

      Richard Kulig, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

In Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003) (en banc), this court held that the legislation authorizing the mandatory minimum terms associated with various crimes including trafficking, was not enacted in violation of the single subject rule. See Ch. 99-188, Laws of Fla. Accordingly, we affirm the trial court’s denial of appellant’s motion. Again, we certify conflict with the second district’s decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), and the fifth district’s decision in Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004) (on rehearing en banc).

WARNER, GROSS and HAZOURI, JJ., concur.


author: MONACO, J.

text:
    Philip Bradford THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1513.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Philip Bradford Thomas appeals from the judgment and sentence imposed upon him after a jury found him guilty of First Degree Murder. We affirm the judgment and sentence on the merits in all respects, but comment briefly on two matters raised by Mr. Thomas.

First, Mr. Thomas argues that the trial court erred in failing to grant a motion to suppress his two videotaped confessions. The trial judge found, however, that Mr. Thomas reinitiated a discussion with law enforcement officers after they had ceased questioning him pursuant to his request to talk to an attorney. In matters concerning the suppression of evidence, the trial judge sits as the trier both of fact and of law. The court’s determinations with respect to factual questions must be accepted by a reviewing court if the record supports the finding. See Lecorn v. State, 832 So.2d 818, 819 (Fla. 5th DCA 2002); State v. Garcia, 431 So.2d 651 (Fla. 3d DCA 1983). Here, there is substantial competent evidence underpinning the trial judge’s factual finding.

Mr. Thomas also asserts that the trial court erred in sending a video cassette recorder into the jury room so that the jury could view the video tape of his confessions during its deliberations. The videotaped confessions of Mr. Thomas had been published to the jury and admitted into evidence. After the jury retired to consider its verdict, the jury sent a written request for a YCR in order to view the confessions during deliberations. Over the objection of Mr. Thomas, the trial judge allowed a VCR to be brought into the jury deliberation room.

As support for his argument that the trial court erred, Mr. Thomas cites Young v. State, 645 So.2d 965 (Fla.1994). In Young the Florida Supreme Court held that videotaped depositions should not be allowed in the jury room because of the danger of the jury placing undue emphasis on the deposition over the oral testimony presented at trial. Id. at 966-967. The depositions had not been admitted into evidence. Likewise, the court concluded that videotapes of out-of-court interviews of children suspected of having been sexually abused should also not be allowed in the jury room during deliberations because there is a “real danger that the child’s statements will be unfairly given more emphasis than other testimony.” Id. at 967. In addition, the court expressed concern because such interviews are conducted ex parte, and without being subjected to cross-examination.

The high court drew a careful distinction with respect to taped confessions, however. It noted, first, that because written confessions have traditionally been permitted in the jury room, courts generally have held that the trial judge has the discretion to allow jurors to listen to audiotapes of confessions during their deliberations. Confessions are statements against the declar-ant’s interest, and are admitted only after the trial court has determined that they were freely and voluntarily given. The court then said, more specifically, “Presumably, the same rule would be applicable to videotaped confessions.” Young, 645 So.2d at 967.

We conclude, therefore, that whether to allow a jury to have access to a videotaped confession in the jury room is within the sound discretion of the trial judge. Here, we find no abuse of that discretion.

AFFIRMED.

SAWAYA, C.J., and SHARP, W., J., concur.


author: SHEVIN, Judge.

text:
    Ozzie ATKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-192.
    District Court of Appeal of Florida, Third District.
    July 28, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., SHEVIN, J. and DAUKSCH, JR., JAMES C„ Senior Judge.
   SHEVIN, Judge.

Ozzie Atkins appeals convictions and sentences for burglary and petit theft. We reverse and remand for a new trial.

The sole evidence against defendant was the victim’s identification. Immediately after the incident, the victim told police that the burglar was six feet tall, weighed 230 pounds and wore a blue shirt. The victim arrived home to find the burglar in his living room and spoke with the burglar in the yard after the burglar left through a-window. A few minutes later, the victim identified the man detained by the police at a nearby market as the burglar. The arrest report describes the defendant as five feet nine inches tall, weighing 160 pounds and wearing a beige shirt.

The sole defense at trial was misidentifi-cation. During closing, defense counsel argued to the jury that defendant was not claiming that the victim was lying, but that the victim was mistaken, reiterating the discrepancy between the victim’s description and the defendant’s physical appearance. In response, the prosecutor argued at closing:

Their ... argument is that the person arrested is. not the same person that is here today because [the victim] is not a liar.
We’re not saying that [what the victim] said is not true, he must be mistaken and he said he’s not a liar. He would have to be a liar, he would absolutely have to be a liar.

Thereupon, the court denied defendant’s mistrial motion. However, in so doing, we hold that the court abused its discretion. See Santiago v. State, 870 So.2d 198 (Fla. 3d DCA 2004).

The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.

Gore v. State 719 So.2d 1197, 1200 (Fla.1998). The prosecutor’s comment improperly shifted the burden of proof to the defendant. This comment implied that the jury could ignore defendant’s argument that acquittal was proper if it believed the victim’s identification was a mistake because defendant did not prove the victim was lying. This implication is particularly clear when viewed in the context of the entire defense closing argument that stressed that the victim was not being called a liar, but rather that the victim was merely mistaken. Cf. Rivera v. State, 840 So.2d 284 (Fla. 5th DCA 2003)(prosecutor’s comment that jury had to believe victim was a liar to acquit defendant considered fair argument when viewed in context), Cause dismissed, SC03-2074, 875 So.2d 1240, 2003 WL 23105233 (Fla. Dec. 4, 2003). The prosecutor’s comment here was an impermissible argument. Gore; Clewis v. State, 605 So.2d 974 (Fla. 3d DCA 1992). See Covington v. State, 842 So.2d 170 (Fla. 3d DCA 2003)(improper to argue to jury that defendant must show defense witnesses are.more believable; error harmless where prosecutor clarified statement to remove doubt as to burden of proof).

Moreover, the court’s denial of the mistrial motion is not harmless. The sole evidence against the defendant was the victim’s questionable identification. The state cannot show beyond a reasonable doubt that the improper comment did not contribute to the verdict.

Based on the foregoing, we reverse the convictions and remand for a new trial.

Reversed and remanded.


text:
    NEW VISTA DEVELOPMENT CORP., Appellant, v. DORAL TERRACE ASSOCIATES, LTD., and Peninsula Developers, Inc., Appellees.
    No. 3D03-849.
    District Court of Appeal of Florida, Third District.
    July 28, 2004.

      Arnaldo Velez, Coral Gables, for appellant.
    Tew Cardenas and Lawrence A. Kellog and Peter F. Valori and William T. McCauley, Miami, for appellees.
    Before COPE, GODERICH and SHEVIN, JJ.
   PER CURIAM.

New Vista Development Corporation appeals an order granting a motion for judgment on the pleadings and dismissing its action with prejudice. We reverse.

I.

For present purposes we treat the allegations of the amended complaint as being true. In 1996, plaintiff-appellant New Vista and defendant-appellee Peninsula Developers, Inc. formed a joint venture to develop a low-income housing project known as Walden Ponds Villas (which we will refer to as “Joint Venture 1”). In 1997, Joint Venture 1 applied to Miami-Dade County for a surtax subsidy. The County Commission approved the application and provided Joint Venture 1 a $400,000 allocation toward the construction and development of the Walden Ponds Villas.

The plaintiff alleges that thereafter Peninsula and defendant-appellee Doral Terrace Associates, Ltd. formed another joint venture to develop a different property (which we will refer to as “Joint Venture 2”). According to the amended complaint, the defendant members of Joint Venture 2 misrepresented to the County that the members of Joint Venture 2 were the same as the members of Joint Venture 1. According to the amended complaint, the defendants told the County that the Walden Pond project was not feasible and requested that the $400,000 allocation be transferred to Joint Venture 2. The County did so.

The plaintiff alleges that the defendants’ representations to the County that the Walden Pond Development was not feasible were untrue. The plaintiff maintains that those representations to the County were made in order to shift the $400,000 subsidy from Joint Venture 1 (where plaintiff was a joint venture partner) to Joint Venture 2 (where plaintiff was not a joint venture partner).

After Joint Venture 1 lost the allocation to Joint Venture 2, plaintiff filed suit against defendants Peninsula and Doral. The plaintiff alleged that Peninsula breached its fiduciary duty to the plaintiff by shifting a valuable asset, the $400,000 subsidy, from Joint Venture 1 to Joint Venture 2. The plaintiff alleged that Doral joined with Peninsula in making the above false representation to the County, thus interfering with plaintiffs advantageous business relationship.

The plaintiff also sued the County. The plaintiff sought a declaratory judgment stating that the surtax allocation rightly belonged to Joint Venture 1 and the County should not have transferred it to Joint Venture 2.

The County moved to dismiss the claim for declaratory relief against it arguing in part that appellant lacked standing to bring the suit against the County because only Joint Venture 1 (and not plaintiff alone) could seek redress against the County. The trial court granted the motion. The dismissal was affirmed by this court in New Vista Dev. Co. v. Miami-Dade County, 814 So.2d 1052 (Fla. 3d DCA 2002).

Thereafter, Peninsula and Doral moved for a judgment on the pleadings arguing that appellant also lacked standing to sue them because any suit would have to be brought by Joint Venture 1 and not by appellant alone. The trial court granted the motion and entered a final order dismissing the action for lack of standing. This appeal followed.

II.

On appeal, the plaintiff argues that the trial court improperly dismissed its claims for lack of standing. We agree.

First, joint venturers owe each other a duty of loyalty and a claim for breach of fiduciary duty will lie where a joint-venturer breaches that duty of loyalty. See De Ribeaux v. Del Valle, 531 So.2d 992 (Fla. 3d DCA 1988). The plaintiff alleges that defendant Peninsula breached a duty owed by defendant Peninsula to plaintiff. The plaintiff has standing to proceed directly against its co-venturer, Peninsula, on such a claim for breach of fiduciary duty. The dismissal of the plaintiffs claim against Peninsula was error.

Second, the claims for interference and conspiracy should not have been dismissed for lack of standing. The amended complaint alleges that Doral “through its agents ... held itself out as [being] Plaintiff [New Vista] and represented to Miami-Dade County that plaintiff and defendant Peninsula Developers, Inc. had determined that the Walden Pond Villas project was not feasible for development.” The amended complaint goes on to allege Doral and Peninsula requested that the $400,000 surtax subsidy be allocated to Joint Venture 2 (in which plaintiff had no interest) instead of Joint Venture 1 (in which plaintiff was a joint venture partner). The plaintiff alleges, in other words, that defendant Peninsula and defendant Doral colluded to procure the transfer of a valuable asset, the $400,000 subsidy, from Joint Venture 1 to Joint Venture 2 without the plaintiffs knowledge or consent. The plaintiff has standing to bring such a claim. See Phillips Chemical Co. v. Morgan, 440 So.2d 1292, 1294 (Fla. 3d DCA 1983). Judgment on the pleadings was improperly granted.

The defendants argue that the issue of appellant’s standing to sue them was adjudicated in appellant’s earlier appeal of the trial court’s dismissal of appellant’s claims against the County. We disagree. As the application for the subsidy was submitted by, and the funds were granted to, Joint Venture 1, any claims against the County regarding the reallocation of those funds had to be brought by the joint venture. The claims against the present defendants, by contrast, are claims that defendants Peninsula and Doral conspired to shift the tax subsidy from a venture in which the plaintiff participated to a venture in which the plaintiff did not. The claims are for wrongs allegedly directed against the plaintiff specifically.

The defendants also claim that this Court cannot reverse because the plaintiff failed to attend the hearing. We reject this argument as well. A motion for judgment on the pleadings must be “decided on the pleadings only.” Shay v. First Federal of Miami, Inc., 429 So.2d 64 (Fla. 3d DCA 1983). While the plaintiff should have appeared at the hearing, the error here plainly appears from the face of the pleadings. We conclude that the issue is properly before -us and that the judgment must be reversed.

Reversed and remanded for further proceedings consistent herewith.


text:
    Tony Daniel BRUCE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1312.
    District Court of Appeal of Florida, Third District.
    July 28, 2004.
    Bennett EL Brummer, Public Defender and Ivy R. Ginsberg, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and SHEPHERD, JJ.
   PER CURIAM.

The conviction and sentence under review are affirmed. The only claim of trial error concerns the admission of certain testimony as to which no objection was preserved below and which ■ does not amount to fundamental error. Likewise, no error has been demonstrated in the sentence, as properly corrected by the trial judge.

Affirmed.


author: POLEN, J.

text:
    Gena DELICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4155.
    District Court of Appeal of Florida, Fourth District.
    July 28, 2004.

      Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

We grant appellee’s motion for rehearing in part, withdraw our previously issued opinion of May 19, 2004, and substitute the following in its place.

This appeal arises out of a conviction for trafficking and conspiracy to traffic cocaine. The Appellant, Gena Delice, was charged by information for the events that culminated on May 19, 2000. Delice challenges the trial court’s jury instruction for trafficking in cocaine, the exclusion of testimony by her expert witness, and the denial of her motion for judgment of acquittal based on objective and subjective entrapment. We reverse and remand for the reasons that follow.

Deliee and her son-in-law, Patrick Joseph, were involved in an undercover sting operation involving two detectives and a confidential informant (C.I.). The C.I. received information that Delice had people interested in purchasing a large quantity of cocaine. Over the course of several recorded telephone conversations, Delice set up the transaction. Delice discussed price and revealed her incentive to complete the deal to show the C.I. that she could move the cocaine. When Delice indicated that she was ready to proceed with the transaction and that her buyer was interested in two kilos but would take one and try it out first, a location for the exchange was set. When the actual transaction finally took place, Deliee approached a vehicle in which one of the detectives and the C.I. occupied. Upon entering the vehicle, Delice asked to see the package and proceeded to sample it to test its purity or quality. Delice then exited the vehicle to retrieve the money and returned to complete the deal. After the exchange was made, Delice mentioned something about setting up another transaction at a later date. After the deal was completed, the arrests were effectuated.

At trial, the State introduced the recorded telephone conversations between Delice and the police as well as a videotape of the actual transaction. Additionally, the State introduced the testimony of the two detectives. The C.I., however, did not testify due to his unknown whereabouts. After the State rested, Delice moved for judgment of acquittal on the basis that the State failed to prove the charges beyond every reasonable doubt, and specifically that the State failed to prove that Delice knew that the substance was cocaine. This motion was denied.

Thereafter, Delice presented her defense. Delice testified in her own defense that when she met the C.I. she explained to him that she suffered from depression and was unhappily married, for which she was seeing a psychiatrist. Delice claimed that the C.I. promised to take care of her and her family if she could help him sell the cocaine. At some point, Delice and the C.I. were allegedly in a hotel room whereupon Delice claimed she was raped. Delice’s defense at trial was that she feared the C.I. as a result of the rape and further that she was particularly susceptible to inducement as a result of her depression. Delice also wished to have her psychiatrist testify in support of her entrapment defense. The trial court, however, was concerned that the proffered testimony actually addressed diminished capacity and ultimately ruled the testimony was irrelevant and inadmissible.

Delice rested and renewed her motion for judgment of acquittal on the basis that the State did not prove that Delice knew that the package’s contents contained cocaine. The trial court again denied this motion. The jury instructions specified that the State had to prove four elements beyond a reasonable doubt: (1) Delice knowingly purchased a substance; (2) the substance was cocaine; (3) the quantity of cocaine was twenty-eight grams or more; and (4) Delice knew the substance was cocaine. The trial court also instructed the jury on the defense of entrapment. The jury ultimately found Delice guilty as charged on both counts and she was sentenced to fifteen years on each count to . run concurrently.

We first address the trial court’s jury instructions. “The offense of possession of a controlled substance include[s] not only knowledge that the substance was in the defendant’s possession, but also knowledge of the illicit nature of the substance.” Blunt v. State, 831 So.2d 770, 771 (Fla. 4th DCA 2002). Even when an instruction regarding guilty knowledge of the illicit nature of the substance is not requested, it is error if the trial court fails to give such an instruction. Id.; see Scott v. State, 808 So.2d 166 (Fla.2002); Chicone v. State, 684 So.2d 736 (Fla.1996). The trial court instructed the jury, in relevant part, that the State must prove that Delice “knew the substance was cocaine or a mixture containing cocaine.” The State contends that the above instruction was inclusive of the guilty knowledge of the illicit nature element. We agree. In Garcia v. State, 704 So.2d 1133, 1134 (Fla. 4th DCA 1998), this court held:

Unlike the standard jury instruction for possession, the standard instruction for trafficking in cocaine sufficiently charges the jury with the element of scienter. It instructs the jury that the defendant must have knowingly possessed a certain quantity of cocaine and intended to possess cocaine or a mixture containing cocaine. Therefore, it was not error to -deny the requested additional instruction. See Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 86, 87 (Fla.1997) (amending the standard instruction for possession to conform to Chicone, but not amending the trafficking instruction); see also Soirelus v. State, 698 So.2d 573 (Fla. 5th DCA 1997).

Delice also challenges the trial court’s exclusion of her expert witness, Dr. Joe Poitia, who proffered testimony that Delice exercised poor judgment and was easily induced. Specifically, Poitia opined that Delice suffered from depression and that her psychotic features would result in an abnormal reaction to being raped leaving her susceptible and easily influenced. Additionally, Poitia believed that Delice was sensitive to environmental and relationship stresses. Delice contends that the purpose of this testimony was not to address diminished capacity but rather to show that she was vulnerable to inducement, thereby supporting her primary defense of entrapment.. We find the exclusion of this testimony to be in error. See Boyer v. State, 825 So.2d 418 (Fla. 1st DCA 2002). Therefore, we reverse and remand for a new trial. Poitia’s testimony should be admitted, but with a limiting instruction that this testimony does not tend to prove diminished capacity but rather is relevant to establish a vulnerability to subjective entrapment, assuming Deliee is not otherwise predisposed.

Delice’s final issue on appeal is that the trial court erred by denying her motion for judgment of acquittal because she was both objectively and subjectively entrapped. With respect to objective entrapment, we find Delice’s allegation of rape to be unsubstantiated and believe this to be a jury question. With respect to subjective entrapment, we see evidence of predisposition, yet hold that this too is a question for the jury. Therefore, we find no error with the trial court’s denial of the motion for judgment of acquittal. However, on remand, Delice is free to again assert these arguments. As to Delice’s remaining issues, we find them to be unpersuasive and decline to address them individually.

REVERSED and REMANDED.

HAZOURI and MAY, JJ., concur.


text:
    AMEC CIVIL, LLC, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D03-4992.
    District Court of Appeal of Florida, First District.
    July 29, 2004.

      F. Alan Cummings and S. Elysha Luken of Smith, Currie & Hancock LLP, Tallahassee, for Appellant.
    Pamela S. Leslie and Gregory G. Costas of Department of Transportation, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order by which its civil complaint was dismissed and judgment entered for the appellee, based on a finding that the appellant was unable to plead the factual requirements for the necessary waiver of sovereign immunity. However, as the appellee now acknowledges, because the complaint sought recovery for alleged breaches of the parties’ written contract, sovereign immunity was thereby waived as indicated in Pan-Am Tobacco v. Department of Corrections, 471 So.2d 4 (Fla.1985). See also White Construction Co. v. Department of Transportation, 860 So.2d 1064 (Fla. 1st DCA 2003); Hypower, Inc. v. Department of Transportation, 839 So.2d 856 (Fla. 1st DCA 2003). The appealed order is therefore reversed, and the case is remanded.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Donald GENTES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5180.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. We find the issues raised by appellant regarding the jury instructions, admission of certain evidence, and the sufficiency of evidence are without merit. We also find the trial court did not err in denying appellant’s motion for new trial and reinstating an order of civil commitment as a sexually violent predator based on appellant’s plea agreement. See State v. Harris, 29 Fla. L. Weekly S230, — So.2d -, 2004 WL 1064790 (Fla. May 13, 2004); Murray v. Regier, 872 So.2d 217 (Fla.2002). However, we certify as a question of great public importance the same question certified by our sister courts in Freeze v. State, 861 So.2d 1234 (Fla. 2d DCA 2003), and Gray v. State, 854 So.2d 287 (Fla. 4th DCA 2003):

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

ERVIN and BOOTH, JJ., SMITH, LARRY G., Senior Judge, concur.


text:
    Raymond C. MOUZON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4827.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s convictions for sexual battery with a deadly weapon and lewd or lascivious battery on a child more than 12 but less than 16 years of age, and the sentences therefor, are affirmed. However, the cause is remanded for entry of a corrected scoresheet in conformity with the corrected scoresheet entered by the trial court during the pendency of this appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

DAVIS, VAN NORTWICK and HAWKES, JJ., concur.


author: THOMPSON, J. SHARP, W., J.,

text:
    Johnny Ray GAFFNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-318.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.

      Johnny Ray Gaffney, Polk City, pro se.
    No appearance for Appellee.
   THOMPSON, J.

In his 19-year-old case, defendant Johnny Ray Gaffney was convicted of committing capital sexual battery upon a 7- or 8-year-old girl. He was sentenced to life in prison with a 25-year minimum mandatory sentence on 22 October 1985. Gaffney appealed. This court affirmed the defendant’s conviction and sentence, except for the imposition of costs. Gaffney v. State, 497 So.2d 1292 (Fla. 5th DCA 1986). He sought review with the Florida Supreme Court, but review was denied. Gaffney v. State, 506 So.2d 1041 (Fla.1987).

In addition to his activities in other state and federal courts, Gaffney is appearing in this court for the eleventh time. Because we found his arguments and numerous filings to be without merit, we issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond).

In response, Gaffney maintains that his Rule 3.853 appeal cannot be an abuse of process because, in adding Rule 3.853, “The Florida Legislature and Florida Supreme Court has allowed the Appellant an opportunity (right) to file these proceedings .... ” However, we conclude that Gaff-ney is continuing to abuse the process by taking advantage of a new rule and using it as an excuse to again contest his 1985 conviction and sentence. Even if this new rule were a “right” bestowed upon Gaff-ney, he has now exercised that right, and it is time for him to go. In fact, this court attempted to bar Gaffney’s frivolous actions back in 2000, but the wrong lower court case number was inadvertently cited, allowing Gaffney to continue to file his meritless claims. Gaffney v. State, 775 So.2d 1000 (Fla. 5th DCA 2000).

Gaffney admits that identity is not an issue in his case, and it is clear that he has absolutely no grounds for relief under Rule 3.853. See Ch. 01-97, Laws of Florida; Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d 633 (Fla.2001); Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001) (relevance is not the test under Rule 3.853; rule requires that defendant explain how a DNA test will exonerate him or mitigate his sentence); Hartline v. State, 806 So.2d 595 (Fla. 5th DCA 2002) (no reasonable probability that defendant would be acquitted if the DNA evidence was reexamined); see also King v. State, 808 So.2d 1237 (Fla.2002) (DNA testing not known when crimes occurred; state could not have known that specimens destroyed after other analysis might someday have been scru-tinizable for DNA; and defendant showed no bad faith on the state’s part); Guzman v. State, 868 So.2d 498 (Fla.2003) (defendant failed to establish any bad faith on state’s part re: the destruction of evidence).

As we have stated before, we do not take the action of barring a defendant from further pro se pleadings lightly. A great deal of research into a defendant’s prior history is performed by this court every time such an action is contemplated. However, finding no merit in Gaffney’s numerous filings, we must hold that his successive challenges to his judgments and sentence constitute an abuse of the judicial system. See, e.g., Baker v. State, 2004 WL 439879, 878 So.2d 1236 (Fla. Mar. 11, 2004) (limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice); United States v. Robinson, 251 F.3d 594 (7th Cir.2001) (“having to file, read, and return a frivolous motion is almost as great a burden on the court’s staff as the preparation of a ruling”).

As we pointed out in Proctor v. State, 869 So.2d 752, 753-54 (Fla. 5th DCA 2004), “The burden on our staff from such ‘frequent filers’ is also great. This court’s post-conviction caseload has increased by 90% in the last 10 years without any accompanying increase in the central staff.” See also Donovan v. State, 868 So.2d 667, 667 (Fla. 5th DCA 2004) (defendant “attempts to achieve by volume filing that which cannot be done by meritorious argument”).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve our strained judicial resources, we prohibit Gaffney from filing any additional pro se appeals, pleadings, motions and petitions relating to his convictions and sentence in the underlying case. Any further pleadings filed in this court relating to his convictions and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Johnny Ray Gaffney regarding Putnam County, Seventh Judicial Circuit Court No. 85-1064-CF53.

AFFIRMED.

THOMPSON and MONACO, JJ., concur.

SHARP, W., J., concurs in part and dissents in part with opinion.

SHARP, W., J.,

concurring in part and dissenting in part.

In light of his numerous collateral attacks, it is clearly tempting to bar Gaffney from filing any further pro se pleadings concerning his 19 year-old-conviction. Nonetheless, this most recent proceeding involves the relatively new remedy under Florida Rule of Criminal Procedure 3.853 for postconviction DNA testing. Gaffney, like any other defendant, is entitled to try to use this remedy despite all of his prior filings.

Rule 3.853(d)(1) provides that a motion for postconviction DNA testing must be filed:

(A) Within 2 years following the date that the judgment and sentence in the case became final if no direct appeal was taken; within 2 years following the date the conviction was affirmed on direct appeal if an appeal was taken; within 2 years following the date collateral counsel was appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case in which the death penalty was imposed; or by October 1, 2008, whichever occurs later; or
(B) At any time, if the facts on which the petition is predicated were unknown to the petitioner or the movant’s attorney and could not have been ascertained by the exercise of due diligence, (emphasis added)

Here Gaffney filed his motion for post-conviction DNA testing on July 28, 2003, well before the October 1, 2003 deadline. I conclude that Gaffney simply failed to establish that DNA testing of the bed sheets could have possibly established his innocence in any way. At trial, he admitted he committed the sex acts on the child and the child so testified. Thus Gaffney’s identity was not an issue. The lack of semen on the bed sheets would have only established that Gaffney failed to ejaculate — which is consistent with his testimony at trial — and not that he did not commit the sexual battery.

I would simply affirm the trial court’s order denying Gaffney’s motion for post-conviction DNA testing. However, I would not bar Gaffney from filing any further pro se pleadings based on this request. Perhaps the next time we heard from Gaffney, a Spencer order would have been appropriate.

      . See Gaffney v. State, 527 So.2d 205 (Fla. 5th DCA 1988); Gaffney v. State, No. 88-418 (Fla. 5th DCA Apr.4, 1989); Gaffney v. State, No. 90-1264 (Fla. 5th DCA Sept. 5, 1990); Gaffney v. State, 681 So.2d 1211 (Fla. 5th DCA 1996); Gaffney v. State, No. 97-1370 (Fla. 5th DCA June 11, 1997); Gaffney v. Brooks, 712 So.2d 1291 (Fla. 5th DCA 1998); Gaffney v. State, 722 So.2d 205 (Fla. 5th DCA 1998); Gaffney v. State, 775 So.2d 1000 (Fla. 5th DCA 2000); Gaffney v. State, No. 03-617, 848 So.2d 338 (Fla. 5th DCA Apr. 22, 2003); Gaffney v. State, 854 So.2d 207 (Fla. 5th DCA 2003); see also Gaffney v. Singletary, No. 83,-098, 634 So.2d 624 (Fla. Mar.16, 1994); Gaffney v. State, 700 So.2d 685 (Fla.1997); Gaffney v. State, 857 So.2d 195 (Fla. 5th DCA 2003).

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Kimberly D. RASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3897.
    District Court of Appeal of Florida, First District.
    July 30, 2004.

      Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from appellant’s conviction for the offense of second-degree murder. Appellant, Kimberly D. Rasley, raises the following three issues for review: (1) the lower court erred in denying appellant’s motion for judgment of acquittal (JOA) in that the state’s evidence failed to rebut beyond a reasonable doubt appellant’s defense of self-defense, and, as such, the case was insufficient to go to the jury or support a conviction; (2) the lower court erred in denying appellant’s motion for JOA because the state’s evidence was insufficient to establish that appellant acted with a depraved mind, and at most proved only the commission of manslaughter; (3) the lower court erred in imposing a 25-year minimum mandatory sentence for use of a firearm in the commission of the offense, in addition to reclassifying appellant’s conviction from a first-degree felony to a life felony for use of the firearm; as a result, the minimum mandatory sentence constituted an improper double enhancement. We affirm as to all issues.

Appellant’s husband was the victim. The two had experienced a turbulent marriage involving several incidents of spousal abuse inflicted on appellant. Following the last dispute and a 911 call, officers arrived at the marital home to find the husband dead from a gunshot wound to the head, lying next to the open side door of the house. Appellant admitted firing the fatal shot. After informing officers of the husband’s prior acts of violence, she stated she had recently discovered that her husband was seeing another woman, and, upon intercepting mail at home from the girlfriend, which she described as the “last straw,” she took suitcases from the attic, deciding then to leave the home with the parties’ three children. While she was so engaged, her husband returned home; an argument ensued between the two, and he pushed her violently against the bedroom wall. Following a shouting match, the husband left the house, only to return shortly thereafter, unlocking the door which appellant had double locked when the husband left. At that point, appellant obtained a Colt .357 magnum revolver, a firearm which she claimed she had never before discharged. Despite her entreaties for him to stop, the husband continued his advance toward her; whereupon, in an act, she claimed, of self-defense, she fired the weapon once at a distance of 24 to 42 inches from the husband’s head. In a statement given that night, appellant said she believed the weapon had the safety attached and that she had accidently discharged it. She said she believed that if she had not obtained the weapon, the victim would have beaten her to death.

Appellant’s account of the event was generally corroborated by two of her children and her daughter’s friend. Investigators at the scene found some evidence of what could have been the result of a domestic dispute: officers observed a crack on the frame of the bedroom door, and a broken ceramic fish on the bedroom floor. They also noted empty suitcases and a telephone book opened to a page which, among other items, listed private investigators. The officers, however, saw no physical signs of injury on appellant, nor did they find any weapon on the victim. A forensic firearms examiner testified the pull on the Colt revolver is four pounds in single-action mode, ie., when the hammer is cocked, whereas the pull is 11.5 pounds in double-action mode, ie., when not cocked.

Appellant first urges the trial court erred in denying her motion for JOA to the charge of second-degree murder, in that the state’s evidence was insufficient to rebut her defense of self-defense. She points out that she retrieved the weapon only after her husband was attempting to reenter the house following an altercation between them, and asserts she used the weapon solely to defend herself, because she reasonably believed that without resort to it, her life would have been placed in great danger. We cannot agree that the state’s evidence was legally insufficient to submit the case to the jury.

Initially, we note that our review standard of an appeal from a denial of a motion for JOA is de novo, in that such motion presents an issue of law, ie., whether the evidence is sufficient to support the verdict. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). Moreover, in “moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the state that the trier of fact might fairly infer from the evidence.” See Sutton v. State, 834 So.2d 332, 334 (Fla. 5th DCA 2003). The rule is firmly entrenched that “[i]f, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

As applied to the theory of self-defense in particular, the following rules should be taken into consideration regarding the state’s burden: The state is required to prove beyond a reasonable doubt that the defendant did not act in self-defense. See Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984). “If a defendant establishes a prima facie case of self-defense, the state must overcome the defense by rebuttal, or by inference in its case in chief.” See State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998). Rules applicable to the showing required by a defendant include: A demonstration by him or her of “a real necessity for taking a life and a situation causing a reasonably prudent person to believe that danger is imminent.” See Hunter v. State, 687 So.2d 277, 278 (Fla. 5th DCA 1997). See also Pressley v. State, 395 So.2d 1175, 1177 (Fla. 3d DCA 1981). A person may use deadly force in self-defense if he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm. A person may not, however, use deadly force without using every available means to avoid danger, including retreat. See Weiand v. State, 732 So.2d 1044, 1049 (Fla.1999). One has a limited duty to retreat in one’s own home to the extent reasonably possible, but there is no duty to flee the residence. See id. at 1056-57. Finally, an appellate court, in reviewing the record in a case where such defense is interposed, is required to heed the rules that “[t]he question of self defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002) (citing Scholl v. State, 94 Fla. 1138, 115 So. 43, 44 (1927)). “A motion for judgment of acquittal should not be granted unless ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” See Hernandez v. State, 842 So.2d 1049, 1051 (Fla. 4th DCA 2003), quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

In applying the above rules to the conflicting facts at bar, we note that in addition to the evidence appellant presented in support of her self-defense theory, the state submitted evidence from which the jury could reasonably infer that appellant acted out of anger and jealousy because she had discovered that the husband/victim was having an extramarital affair. The evidence, in its entirety, was susceptible of two views, either justifiable self-defense, or an act arising out of jealousy and anger from the fact that the husband was having an affair. See generally Hoffman v. State, 708 So.2d 962, 964 (Fla. 5th DCA 1998). Because the record, in our judgment, contains sufficient evidence from which the jury could conclude that appellant had other reasonable options besides that of deadly force to avoid the danger posed by her husband’s advance, including retreat, we agree that the lower court did not err in denying the motion for JOA, as applied to her theory of self defense.

We similarly reject appellant’s argument that the trial court erred in denying her motion for JOA as to the offense of second-degree murder, on the ground that the state’s evidence at most proved only the lesser offense of manslaughter. The same general rules pertaining to motions for JOA, recited above, are, of course, applicable as well to the issue regarding the sufficiency of the evidence supporting the offense of second-degree murder.

Initially, we consider it helpful to note the distinctions between the elements essential for convictions of second-degree murder and manslaughter. Second degree murder is defined as follows:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and eviricing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual....

See § 782.04(2), Fla. Stat. (2001). The term “imminently dangerous to another and evincing a depraved mind regardless of human life” is defined as an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.

See Fla. Std. Jury Instr. (Crim.) 7.4; Sigler v. State, 805 So.2d 32, 34 (Fla. 4th DCA 2001), review denied, 823 So.2d 126 (Fla.2002); Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996). All three of the above elements must be satisfied. The question, as it specifically relates to the issue before us, similar to that in Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003), is whether the evidence relating to the second element, i.e., that of ill will, et cetera, was legally sufficient. If not, the conviction of second-degree murder should be reduced to the lesser-included offense of manslaughter.

Manslaughter is defined in section 782.07(1), Florida Statutes (2001), as:

(1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree....

Given the extremely deferential standard applicable to the review of denials of motions for JOA, we are unable to say that the evidence is such that there is no view which the jury could take of it favorable to the state that can be lawfully sustained. In other words, once the evidence is viewed in the light most favorable to the state, we are unable to conclude that a rational trier of fact could not lawfully find that the evidence proved the existence of all the elements of the crime of second-degree murder beyond a reasonable doubt.

Appellant next claims the trial court erred in imposing a 40-year sentence, which included a 25-year minimum mandatory term for use of a firearm in the commission of the offense of second-degree murder. In so doing, the court first reclassified the second-degree murder conviction from a first-degree felony to a life felony for use of a firearm in commission of the offense, and thereafter imposed the 25-year minimum mandatory sentence. Appellant contends such sentences constitute an impermissible double enhancement. We cannot agree.

This issue was decided adversely to appellant’s position in Brown v. State, 460 So.2d 546 (Fla. 1st DCA 1984), approved, 475 So.2d 1243 (Fla.1985), and State v. Whitehead, 472 So.2d 730 (Fla.1985). In Whitehead, the supreme court concluded subsections (1) and (2) of section 775.087 are not mutually exclusive. Subsection (1) provides that in cases in which a person is convicted of the commission of a felony with a firearm, and the use of a firearm is not an essential element of the offense, the felony for which the person is convicted shall be reclassified upward one category. Subsection (2) provides that persons who commit certain enumerated felonies with a firearm are required to serve minimum mandatory terms before becoming eligible for parole. See Whitehead, 472 So.2d at 732. There is no double enhancement, because subsection (2) does not increase punishment; rather, it provides for a minimum mandatory term of imprisonment. See Brown, 460 So.2d at 547.

AFFIRMED.

ERVIN, DAVIS and BROWNING, JJ., concur.

      . A distance estimated by the medical examiner.

      . Appellant's youngest child did not testify at the trial.

      . Pursuant to agreement of counsel, the trial court instructed the jury on manslaughter by intentional act, and that if the jury concluded appellant did not act intentionally, it could not find her guilty of the lesser included offense of manslaughter.

      . See § 775.087(l)(a), Fla.Stat. (2001). A life felony is punishable by a term of imprisonment for life or a term not exceeding 40 years.

        .See § 775.087(2)(a)(3), Fla.Stat. (2001). This provision authorizes a 25-year minimum mandatory sentence for the use of a firearm in the commission of any of the felonies enumerated in section 775.087(2)(a)(l), which includes murder.


text:
    Ella Weese WALKER, Appellant, v. FLORIDA STATE HOSPITAL and Florida Department of Insurance Risk Management, Appellees.
    No. 1D03-2056.
    District Court of Appeal of Florida, First District.
    July 30, 2004.

      Arthur C. Beal, Tallahassee, for appellant.
    No appearance for appellees.
   PER CURIAM.

In this workers’ compensation appeal, claimant’s attorney appeals the award of attorney’s fees. Appellant moved for remand to vacate the final order and for a hearing de novo, arguing that the transcript indicated that the first tape had been damaged and was not capable of being transcribed. This court denied the motion as facially insufficient as the parties had not attempted to reconstruct the record.

Appellant has filed a renewed motion for remand and for a hearing de novo. Appellant states that neither the JCC nor the trial attorneys could recreate the missing testimony. As appellees have no objection to remand, the final order of the JCC is hereby vacated and this cause is remanded for a hearing de novo. See Arnold Lumber Company v. Harris, 469 So.2d 786 (Fla. 1st DCA 1984).

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Jabari STEPHENS, Appellant, v. James CROSBY, Secretary, Florida Department of Corrections, Appellee.
    No. 1D04-0969.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Jabari Stephens, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order of dismissal is reversed on the authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). The case is remanded to the Circuit Court for Leon County for a decision on the merits.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. COLONIAL CUT-RATE DRUGS, INC., Respondent.
    No. 1D03-4024.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Garnett W. Chisenhall, Assistant General Counsel, Tallahassee, for Petitioner.

      Katherine E. Giddings and William F. Furlow, of Akerman, Senterfitt & Eidson, P.A., Tallahassee, for Respondent Colonial Cut-Rate Drugs, Inc.
    Kenneth W. Sukhia, of Fowler White Boggs Banker, P.A., Tallahassee, Attorney for Compscript, Inc., and Medical Services Consortium, Inc., Tallahassee, Amicus Curiae.
    Ralph Edward Breitfeller, of McGrath & Breitfeller, LLP, Columbus, OH, pro hac vice as co-counsel for Amicus Curiae, Compscript, Inc., and Medical Services Consortium.
   PER CURIAM.

Section 465.188, Florida Statutes (2003), is procedural and remedial. The decision of the Administrative Law Judge is AFFIRMED.

BARFIELD, BROWNING, and LEWIS, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Roger Lee McCLUNG, Respondent.
    No. 1D03-5063.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Enoch J. Whitney, General Counsel; and Michael J. Alderman, Assistant General Counsel, Tallahassee, for Petitioner.
    David M. Robbins and Susan Z. Cohen, of Epstein & Robbins, Jacksonville, for Respondent.
   PER CURIAM.

Given the record demonstrating that the circuit court, sitting in its appellate capacity, afforded procedural due process and applied the correct law, we conclude that the petitioner has failed to satisfy its burden for certiorari relief. See City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982); Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So.2d 1084, 1086-87 (Fla. 1st DCA 2002) (holding that in certiorari proceeding to review driver’s license suspension, circuit court did not impermissibly re-weigh evidence in concluding that competent, substantial evidence did not support hearing officer’s finding, where evidence gave equal support to inconsistent inferences and could not be deemed sufficiently reliable that a reasonable mind would accept it as adequate). The petition for writ of certiorari is DENIED on the merits.

BENTON, BROWNING and POLSTON, JJ., concur.


text:
    Terry WEAVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5258.
    District Court of Appeal of Florida, First District.
    July 30, 2004.

      Terry Weaver, pro se, petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 12, 2003, order denying a motion for postconviction relief in Bay County Circuit Court case number 99-1004-B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Jose O. TORRES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1814.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Jose O. Torres, pro se, petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner’s direct appeal was dismissed in case number 1D03-3764 for failure to file a docketing statement. In response to an order to show cause, the state agrees that this petition for belated appeal should be granted. Therefore, we grant the petition for belated appeal and hereby reinstate the appeal in case number 1D03-3764. Jurisdiction in that proceeding is relinquished to the trial court for a period of 30 days, with directions to appoint the Public Defender for the Second Judicial Circuit to represent petitioner in that cause.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    LAND SPAN INC. and Liberty Mutual Insurance Company, Appellants, v. Raymond MUOIO and Phyllis Muoio, Appellees.
    No. 1D04-2256.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Tara L. Said of the Law Office of Amy Warpinski, Jacksonville, for appellants.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, for appellees.
   PER CURIAM.

As the order being appealed is neither a final nor an appealable nonfinal order, this appeal is dismissed for lack of jurisdiction.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.