author: DAVIS, J. ERVIN, J.,

text:
    Juanita FILLMORE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and La Petite Academy Inc., Appellees.
    No. 1D03-2142.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Juanita Fillmore, pro se, appellant.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for appellees.
   DAVIS, J.

Appellant seeks review of an order of the Unemployment Appeals Commission (UAC) which affirmed an appeals referee’s determination that appellant was disqualified from receiving unemployment benefits. We affirm.

The appeals referee determined that appellant left her employment voluntarily without good cause attributable to the employer. See Brown v. Unemployment Appeals Comm’n, 820 So.2d 457 (Fla. 5th DCA 2002)(stating that whether an employee left employment voluntarily and whether the leaving was without good cause are questions of fact). The issue on appeal is whether the referee’s findings of fact are supported by competent, substantial evidence. If there is competent, substantial evidence in the record, although there may be evidence to support a contrary finding, this court must affirm. Id. at 458.

Appellant was employed as a morning pre-school teacher and had additional duties as an afternoon van driver and after-school teacher. On the day in question, appellant was dealing with an unruly child in her pre-school class. Instead of taking the child to the school director’s office as required by the employer’s procedures, appellant marched all the children in her class to the director’s office and announced that she was going home. Appellant then made comments about the unruly child in front of the other children and, when told that the comments were inappropriate, appellant stated that she was leaving. Appellant left the children in the director’s office and returned to her classroom. The director sent an employee to ask appellant if she was coming back and appellant stated that she did not know. She then left the school premises. Appellant was never given permission to leave by the director. The director had to arrange for another teacher to take over appellant’s pre-school class, for another driver to take her afternoon van route and for another teacher to take her after-school class.

Because there was competent, substantial evidence for the determination that appellant left her employment voluntarily without good cause attributable to the employer, appellant was properly disqualified from receiving unemployment benefits. See § 443.101(l)(a), Fla. Stat. (2002); Smith v. Unemployment Appeals Comm’n, 823 So.2d 873, 874 (Fla. 5th DCA 2002). Accordingly, the ruling of the UAC is AFFIRMED.

BROWNING, J., concurs; ERVIN, J., dissents with written opinion.

ERVIN, J.,

dissenting.

Omitted from the majority’s, the Commission’s, and the appeal referee’s recital of facts are certain additional facts, also supported by the record, which were outlined in Commission Chairman Forst’s dissenting opinion. In Chairman Forst’s review of the evidence, with which I agree, he considered that the case involved a miscommunication between the claimant and the employer’s director. Chairman Forst noted that when confronted with problems controlling one of her pre-school students, claimant acted appropriately by reporting the situation to the director and informing the director that she would rather go home than continue to deal with the difficult child in her classroom. Chairman Forst then set out the following critical facts:

The employer did not respond to this situation by informing the claimant that she could not leave for that day, and that by doing so she was surrendering her job. Instead, the employer’s director merely informed the claimant that she had to “do what’s best.” The claimant then left her students with the director, straightened up her room in a manner consistent with one leaving for the day, rather than one quitting a job, and went home, returning to work the following day. As such, the employer did not convey the message that a reasonable person would understand to be that leaving work early that day would constitute a quit; nor did the claimant convey the message that her leaving early that day was a resignation from her job.

In reaching its decision to affirm, the Commission ignored a large body of case law recognizing if an employer fails to inform an employee that absence from employment is not acceptable, and such failure leads the employee to believe that the absence is excusable, the worker’s absence cannot support a finding that he or she voluntarily left employment without good cause attributable to the employer so as to preclude the payment of unemployment compensation (UC) benefits. See Rodriguez v. Arby’s, Inc., 709 So.2d 632 (Fla. 2d DCA 1998); Goodman v. Engle Homes, Inc., 621 So.2d 523 (Fla. 4th DCA 1993); Meyers v. Quality Extruded Prods., Inc., 611 So.2d 54 (Fla. 3d DCA 1992); Keays v. State Unemployment Appeals Comm’n, 592 So.2d 1255 (Fla. 2d DCA 1992). The above rule is no doubt derived from the statutory canon of construction instructing that the UC Law, being remedial legislation, is to be liberally construed in favor of the claimant, and its disqualification provisions, narrowly interpreted. See Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla.2000); Langley v. Unemployment Appeals Comm’n, 444 So.2d 518 (Fla. 1st DCA 1984).

The determination of whether an employee’s absence from work constitutes a voluntary separation from employment, thereby disqualifying him or her from UC benefits, turns as much on the de novo review standard as it does on that of competent, substantial evidence; it is a mixed question of both law and fact. For example, in Goodman, 621 So.2d at 524, the court made the following pertinent observation: “We disagree with the UAC’s conclusion that a bona fide leave of absence for purposes of unemployment compensation law requires that the employer and employee agree upon a specific term for the leave.” (Emphasis added.) In Arby’s, the court applied the rule adopted in Keays, stating that a duty is initially placed on the employer to inform the employee of acceptable terms of leave, and if no such communication is conveyed, the worker’s absence cannot support a finding that the employee voluntarily left work. Arby’s, 709 So.2d at 633.

In the present case, because the employer failed in its duty to convey to claimant a communication that any reasonable person would understand to mean that leaving work early would be considered a resignation from employment, competent, substantial evidence cannot as a matter of law support the determination that claimant was disqualified from receiving UC benefits. I would therefore REVERSE the order of denial and REMAND the case with directions that the requested benefits be awarded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Teresa M. Keiffer CURRY a/k/a Teresa M. Keiffer, Appellant, v. FLORIDA BOARD OF PROFESSIONAL ENGINEERS, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D03-3023.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Bruce Culpepper, Esquire and Robert J. Telfer, III, Esquire of Ackerman Senter-fitt, Tallahassee, for Appellant.
    Charles Crist, Attorney General; Paul J. Martin, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Teresa M. Keiffer Curry appeals a final administrative order from the Department of Business and Professional Regulation, Board of Professional Engineers, denying her request for a formal hearing before the Division of Administrative Hearings as provided by section 120.57(1), Florida Statutes (2003). Her petition and amended petition for a formal hearing identify a disputed issue of material fact, thus entitling her to a formal hearing. See Iazzo v. Dep’t of Prof'l Reg., Bd. of Psychological Exam’rs, 638 So.2d 583, 586 (Fla. 1st DCA 1994); Village Saloon, Inc. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Reg., 463 So.2d 278, 283 (Fla. 1st DCA 1984).

Accordingly, we reverse the order and remand to the Board of Professional Engineers with directions that it refer the case to. the Division of Administrative Hearings for a formal evidentiary hearing.. :

REVERSED and REMANDED.

BARFIELD, BENTON, and PADOVANO, JJ., concur.


text:
    Yolanda K. ALLEN, Petitioner, v. Joseph P. ALLEN, Respondent.
    No. 1D04-0794.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Rhonda S. Clyatt and Jean M. Downing, Panama City, for petitioner.
    Carroll McCauley, Panama City, for respondent.
   PER CURIAM.

We conclude that the facts alleged in petitioner’s third motion for disqualification, taken as true, were sufficient to establish a well-grounded fear on the part of petitioner that she would not receive a fair -and impartial hearing before the trial judge. Accordingly, the petition for writ of prohibition is granted, and on remand, a new judge shall be assigned to hear further proceedings in this matter. '

KAHN, WEBSTER and BROWNING, JJ., concur. '


author: BROWNING, J.

text:
    Thomas BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1788.
    District Court of Appeal of Florida, First District.
    May 28, 2004.

      Nancy A. Daniels, Public Defender and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant seeks review of his convictions and sentences for leaving the scene of an accident involving personal injury, a felony, and driving with a suspended or revoked license, a misdemeanor. We affirm the convictions and sentences, but reverse the order of restitution. We remand for the trial court to vacate the order of restitution, and instruct the trial court to award jail credit and to correct one typographical error in the sentencing documents.

Appellant pled nolo to the misdemeanor and was found guilty of the felony at trial; the trial court sentenced Appellant to incarceration and ordered restitution on the misdemeanor. The judgment erroneously indicates that Appellant pled to both offenses and incorrectly designates the misdemeanor as driving under the influence of alcohol. Appellant appealed, and also filed a motion to correct sentencing error, as authorized by Florida Rule of Criminal Procedure 3.800(b)(2), alleging that he was entitled to jail credit and that the sentencing documents incorrectly designate his misdemeanor offense.

Appellant argues that his felony conviction should be reversed because the state amended the information after the close of evidence. Because the amendment added no new allegations to the information, Appellant was not prejudiced and is not entitled to relief. See State v. Erickson, 852 So.2d 289, 291 (Fla. 5th DCA 2003), citing State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989).

Appellant also argues that no restitution should have been awarded on his misdemeanor. We agree because the state did not sufficiently demonstrate a connection between Appellant’s driving without a license and the accident that caused the damages. See Schuette v. State, 822 So.2d 1275 (Fla.2002).

The state correctly concedes that Appellant is entitled to remand for a determination of jail credit, and that Appellant is entitled to correction of the judgment to reflect Appellant’s correct misdemeanor offense. These claims clearly have merit, as the record shows that Appellant pled to driving with a suspended or revoked license and that an order on jail credit would be issued by the trial court.

We deny Appellant’s request to correct the sentencing documents that incorrectly state he pled to both the misdemeanor and felony charges, because the error does not affect the sentence, it is not fundamental, and Appellant is not entitled to relief. See generally Thomas v. State, 763 So.2d 316 (Fla.2000).

Accordingly, we affirm Appellant’s convictions, reverse the restitution order, and remand with instructions for entry of an order pertaining to jail credit ahd correcting Appellant’s misdemeanor designation to that of driving with a suspended or revoked license.

KAHN and WEBSTER, JJ., concur.


text:
    Melanie B. COLLINS, Appellant, v. Charles Wayne COLLINS, Jr., Appellee.
    No. 1D03-4323.
    District Court of Appeal of Florida, First District.
    May 28, 2004.

      David M. Robertson of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellant.
    Ernest A. Sellers, Jr., Gainesville, for Appellee.
   PER CURIAM.

This is an appeal by Melanie B. Collins (mother) from a final judgment of dissolution in which the trial court determined that the primary residential custody (PRC) of the parties’ five-year-old child should be with appellee, Charles Wayne Collins, Jr. (father). Because we agree with the mother that the lower court abused its discretion (1) by allowing an expert witness to offer an opinion on which of the two parents should serve as the child’s residential custodian, contrary to the dictates of Florida Family Law Rule of Procedure 12.363, and (2) by not addressing in the judgment a factor listed in section 61.13(3), Florida Statutes (2002), pertaining to domestic violence or child abuse, which issues, if properly taken into consideration, could affect the court’s decision, we reverse and remand the ease with directions for the court to revisit the custody determination by entering specific findings pertaining to the above issues. We affirm the remaining points.

Initially, we reject appellant’s contention the court erred in ignoring this court’s ruling in Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996), holding that in deciding which parent is more morally fit to be the primary custodian, it is improper for a court to base a decision of prospective harm to the child over whom custody is sought by reason of acts of abuse in the past directed toward another child. Maradie requires that a connection between past and potential future harm must be supported by an evidentiary foundation, not assumed. Appellant asserts that the court’s resolution of the moral fitness factor hinged solely on an assumption of future injury to the child resulting from what the court perceived was the mother’s inappropriate conduct — taking showers with an older child whom the mother had brought to the parties’ union from an earlier marriage.

On the contrary, the final judgment recited that the lower court had considered Maradie, but apparently found it inapplicable, in that the court did not explicitly rule the mother was morally unfit to remain the child’s residential custodian, but simply referred to such conduct as raising questions concerning the mother’s judgment and veracity. We fail to see how the court abused its discretion in such regard. Section 61.13(3) specifically states that the factors outlined therein are not exclusive; indeed, subsection (m) permits the court to consider “[a]ny other fact” deemed relevant by it. In assessing the PRC issue of the younger child, the court obviously called into question the mother’s judgment in continuing to shower with the older son at a time the court apparently deemed was age-inappropriate. Under the circumstances, we cannot conclude the court’s decision in such regard constituted an abuse of discretion.

We do agree that the court abused its discretion in permitting a licensed mental health professional, who had not treated, evaluated, or examined the child, to testify regarding matters outside the file prepared by the court-appointed mental health expert, and to offer an opinion concerning which of the two parents should be awarded PRC. After the trial court had appointed, with the parties’ consent, Dr. Mary Horn, Ph.D., to evaluate the father, the mother, and the parties’ minor son, and then render an opinion concerning PRC and visitation, as permitted by Florida Family Law Rule of Procedure 12.363(a)(1), Dr. Horn issued her report, recommending that PRC of the child remain with the mother. The father responded by moving to have the mother evaluated by his expert, Ms. Betty Stray-er, which the court denied, conditioned upon the right of the father to offer the testimony of Ms. Strayer, pursuant to rule 12.363(b)(2), which allows a professional to review an appointed expert’s complete file and testify thereon. Notwithstanding the above limitations, the court, over objection, allowed Ms. Strayer to testify about matters besides those in Dr. Horn’s file, including her review of depositions taken by the parties, as well as collateral contacts Ms. Strayer made with persons Dr. Horn had not interviewed, particularly the father’s sister and the child’s paternal grandfather, and to offer an opinion on the critical issue of custody.

An abuse of discretion standard applies to a trial court’s decision concerning the qualifications of expert witnesses and the scope of their testimony. See Ramirez v. State, 542 So.2d 352, 355 (Fla.1989); County of Volusia v. Kemp, 764 So.2d 770, 773 (Fla. 5th DCA 2000). We are of the firm opinion that the court abused its discretion in permitting Ms. Strayer, who had neither evaluated nor treated the child, to present testimony outside of her review of the appointed expert’s file. The Committee Note to Rule 12.363 states in pertinent part:

This rule should be interpreted to discourage subjecting children to multiple interviews, testing, and evaluations, without good cause shown. The court should consider the best interests of the child in permitting- evaluations, testing, or interviews of the child. The parties should cooperate in' choosing a mental health professional or individual to perform this function to lessen the need for multiple evaluations.
This rule is not intended to prevent additional mental health professionals who have not treated, interviewed, or evaluated the child from testifying concerning review of the data produced pursuant to this rule.

It is obvious from the above, comments that the rule was intended to limit the participation of a professional, such as Ms. Strayer, to an examination only of the court-designated expert’s file for the purpose of critiquing it. Nothing reasonably appears in the rule that would authorize such professionals to offer an opinion on the ultimate fact at issue. It is unclear from the judgment of dissolution whether the court’s PRC determination may have been influenced by Ms. Strayer’s testimony extraneous to thát authorized in the rule. In order to clarify the issue, we remand the cáse for the trial court to revise its judgment by limiting its review of Ms. Strayer’s testimony solely to that permitted by rule 12.363(b)(2).

Finally, we are troubled by the absence of any finding whatsoever in the judgment relating, to the factor of alleged domestic violence or child abuse by the father, as provided in section 61.13(3)(£)-Evidence of same was clearly before the court, and it appears to have been the determinative cause of the parties’ separation, yet the court either overlooked or ignored such evidence in making its decision. We are not unaware that a trial court is generally not required to rule on a custody issue by making findings on all statutory factors. See Murphy v. Murphy, 621 So.2d 455, 456 (Fla. 4th DCA 1993). Nevertheless, as occurred in Ford v. Ford, 700 So.2d 191 (Fla. 4th DCA 1997), this court is unable to conduct meaningful appellate review of the PRC issue without the lower court explicitly addressing what appears to be a very serious incident, culminating in the mother’s distraught 911 call to the local police. The court should address as well the mother’s charges of numerous acts of abuse the father directed toward her older son, and whether such conduct might affect the father’s right to be awarded PRC of the parties’ biological child.

AFFIRMED in part, REVERSED in part, .and REMANDED.

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

      . Appellant also assails the trial court's finding that the mother continued to shower with the older child, which was denied by the mother, as lacking any foundation in competent, substantial evidence, and refers to the father’s "unsupported testimony.” The trial court, however, resolved the evidentiary conflict in favor of the father, and we clearly cannot re-weigh that factual determination.

      . Contrast the provisions of rule 12.363(b)(2) with those of 12.363(c), allowing an expert who has treated, tested, etc., the child to testify if good cause exists to permit the testimony. See Bridges v. Bridges, 734 So.2d 551 (Fla. 4th DCA 1999).


author: VAN NORTWICK, J.

text:
    Danny ATKINS and Jan Walker, Appellants, v. Grace ERIS and Kaye C. Howerton, Appellees.
    No. 1D03-0306.
    District Court of Appeal of Florida, First District.
    May 28, 2004.

      Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellants.
    R. John Westberry of Holt & Westber-ry, P.L., Pensacola, for Appellees.
   VAN NORTWICK, J.

Danny Atkins and Jan Walker seek reversal of a supplemental final judgment in favor of appellees, Grace Eris and Kaye C. Howerton, assessing attorney’s fees against Walker and assessing costs against Atkins and Walker. For the reasons that follow, we reverse.

On December 10, 2001, the trial court entered a final judgment following a bench trial in August 2001 in an action brought by Eris against Walker and Atkins seeking to rescind a warranty deed and to set aside a mortgage, among other relief.- On September 7, 2001, Eris filed one of the motions which was a subject of the order on appeal. Eris does not contest the claim of Atkins and Walker that this motion was not filed within 30 days of the rendition of the final judgment. Instead, Eris argues that the September 7 motion was a motion seeking costs and that this motion was served within ten days of the trial court’s oral pronouncement of its decision at the conclusion of the bench trial. On its face, however, the September 7 motion does not seek taxable costs. Rather, the motion seeks only to have an award of attorney’s fees assessed. Because the motion of September 7 did not expressly seek costs, it cannot serve as a basis for an award of costs. Gulf Landings Ass’n v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003). Accordingly, we reverse the award of costs based upon the September 7 motion. We do not address the timeliness issue with respect to the September 7 motion.

Eris’ motion of January 23, 2002, which does expressly seek an award of costs, was not served within 30 days of the filing of the final judgment on December 10, 2001. A motion which is not served “within 30 days after filing of the judgment” does not satisfy the explicit requirements of rule 1.525, Florida Rules of Civil Procedure. Rule 1.525 is mandatory. Ulico Gas. Co. v. Roger Kennedy Constr., Inc., 821 So.2d 452, 453 (Fla. 1st DCA 2002). Thus, we reverse the award of costs based upon the January 23 motion.

As for the award of attorney’s fees, Walker does not argue that the motions for an award of attorney’s fees were untimely, but asserts that the motions state no permissible basis for an award of attorney’s fees. We agree. In her motions, Eris sought attorney’s fees pursuant to the terms of a shareholders’ agreement to which Eris and Walker were parties. The agreement provides in pertinent part that: “[i]n the event a suit or proceeding is brought by a party to this Agreement to enforce or defend its provisions, or seek remedy for any breach thereof, the prevailing party or parties shall be entitled to receive its reasonable attorney’s fees.... ” The relief granted to Eris by the final judgment, however, was not based upon a finding that Walker breached a provision of the shareholders’ agreement and did not enforce or defend any provision of the shareholders’ agreement. Thus, the shareholders’ agreement, by its terms, does not provide a basis for an award of attorney’s fees in this action. No other basis for an award has been alleged by Eris. Accordingly, we are constrained to reverse the award of attorney’s fees.

The supplemental final judgment is reversed in its entirety.

KAHN and WEBSTER, JJ., concur.

      . Eris states that this motion was filed on September 2, 2001. There is no motion of record dated September 2, 2001, however. There is a motion in the record on appeal which is dated September 7, 2001, and which bears a filing stamp of September 7, 2001.

      . In the motion dated September 2, 2001, and filed September 7, 2001, Eris sought an assessment of attorney’s fees against "both the Defendants.” However, by an amended motion dated September 13, 2001, Eris sought attorney’s fees only against defendant Walker.


author: SHARP, W., J.

text:
    Thomas Francis JONES, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, etc., Appellee.
    No. 5D03-2534.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      Steven W. Johnson, Orlando, for Appellant.
    James Harwood, Orlando, for Appellee.
   SHARP, W., J.

Jones appeals from a final order of the Florida Real Estate Commission, which revoked his real estate license after finding he was guilty of “failure to account of [sic] delivery to any person, including a licensee under this chapter at the time which had been agreed upon or is required by law,” in violation of section 475.25(l)(d)(l) and “dishonest dealing by trick, scheme or device,” in violation of section 475.25(l)(b). Because we find insufficient evidence to support the Commission’s findings that Jones was guilty of dishonest dealing by trick, scheme or device, we set aside the order with respect to section 475.25(l)(b), affirm as to its findings on section 475.25(l)(d)(l) and remand for reconsideration of the penalty imposed on Jones— permanent revocation of his real estate license.

This cause grew out of a dispute between Premier Place, Inc. (for whom Jones was the qualifying broker) and The Landings Realty, Inc. (for whom James E. Co-race was the broker/owner) about which entity should receive a real estate commission of $15,120.00. A sales person for The Landings, Joycelyne Smithers, procured the contract between buyer and seller three days before she resigned to work for Premier. The closing agent disbursed the commission to Premier and The Landings demanded arbitration. Premier dissolved and went out of business, and the dispute continued against Jones, individually.

The arbitration determined The Landings was entitled to the commission. Jones appealed to the circuit court as well as the Board of Realtors, and lost both appeals. Jones failed to satisfy the arbitration award entered May 30, 2000, as well as a final summary judgment rendered against him by the circuit court for $18,217.12. When Jones failed to satisfy the judgment, the Department of Business and Professional Regulation, Division of Real Estate, filed the administrative complaint against him.

An informal hearing was set to deal with the complaint. Jones presented evidence in mitigation: that he was under a financial hardship and unable to pay the judgment and that he had received none of the commission funds personally. These arguments in mitigation were rejected by the Commission. It found, and Jones does not dispute, that he violated section 475.25(l)(d)(l).

However, the Commission’s findings that Jones engaged in dishonest dealing by trick, scheme or device, pursuant to section 475.25(l)(b) is not supported by the record. It appears the Commissioners believed Jones’ attorney tried to trick them by his statement at the hearing that Jones had attempted to satisfy the judgment. The Commissioners assumed Jones had tried to satisfy the whole judgment, but upon further questioning it became clear that Jones had offered The Landings $3,025.00 as a 20% referral fee, if it would execute a satisfaction of the judgment. This may constitute some other violation, but not the one with which Jones was charged in this administrative hearing.

Revocation of a license is within the recommended range of penalties set out in Florida Administrative Code Rule 61J2-24.001 for a violation of section 475.25(l)(b). The recommended penalty for a violation of section 475.25(l)(d)(l) is an administrative fine of $1,000.00 to a five year license suspension. Because the finding of guilt as to section 475.25(l)(b) must be reversed, we remand this cause to the Commission for further proceedings to determine the appropriate penalty to impose in this case, based on a violation of section 475.25(l)(d)(l).

REVERSED in part; AFFIRMED in part; REMANDED for further proceedings.

SAWAYA, C.J., and TORPY, J., concur.


author: GROSS, J.

text:
    Marlo WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-174.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Karen J. Tufte, Fort Pierce, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Mario Washington appeals his conviction and life sentence for first degree murder rendered by the circuit court after a jury trial. His sole point on appeal is that the trial court erred in failing to give the independent act jury instruction. Finding no error in the trial court’s refusal to give the instruction, we affirm.

The victim in this case was shot during a robbery by two gunmen. State witness Frederick Gregory, Jr. testified that Washington and Avery Rahming were the two gunmen. According to Gregory, Washington said that Rahming and he “went and shot the [victim]” because the [victim] tried to “buck on [Rahming],” or run away. Gregory said Washington elaborated that both Rahming and he shot the victim to keep him from running.

The state also introduced Washington’s videotaped statement to the police. In the statement, Washington claimed that he waited in the car as a lookout while Gregory and Rahming went to rob some Jamaicans. While in the car, Washington heard gunshots and saw Gregory and Rahming running to the car. Washington claimed that Rahming admitted shooting a man in the house because the man would not give him money. Washington said that because the group that had planned the robbery still had no money, they went to a gambling house in Fort Pierce.

The victim’s injuries included a gunshot wound in the lower middle left area of his back, a gunshot wound in the arm, and another above the right ankle. The gunshot to the victim’s back perforated his liver, which resulted in hemorrhaging and his subsequent death. A projectile located at the scene of the shooting belonged to a nine millimeter gun.

A nine millimeter gun, loose rounds, and a magazine were found outside Washington’s residence in an empty cereal box located in his garbage can. The gun, as test fired, was matched to the projectile found at the crime scene. A partial fingerprint found on the gun was consistent with Washington’s fingerprint, but could not be identified as a conclusive match.

Where any evidence which would support the theory of independent act has been presented, the defendant is entitled to the jury instruction. See Ray v. State, 755 So.2d 604, 608 (Fla.2000); Shaw v. State, 824 So.2d 265 (Fla. 4th DCA 2002); McGee v. State, 792 So.2d 624, 626 (Fla. 4th DCA 2001).

The independent act doctrine provides that a defendant whose co-felon “exceeds the scope of, and acts independently of, the original common plan is exonerated from any punishment imposed as a result of the co-felon’s independent act.” Beachy v. State, 837 So.2d 1152 (Fla. 1st DCA 2003); see also Fla. Std. Jury Instr. (Crim.) 3.6(l). As the supreme court explained in Ray:

The “independent act” doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, “which fall outside of, and are foreign to, the common design of the original collaboration.” Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act. Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate.

755 So.2d at 609 (citations omitted).

Even assuming that Washington was not one of the two gunmen, he is nonetheless liable for the homicide under the felony murder rule. According to his statement, he waited in the car as a lookout while the two gunmen went to commit a robbery. “The felony murder rule and the law of principals combine to make a felon liable for the acts of a co-felon.” Beachy, 837 So.2d at 1152. For a felony murder conviction, the defendant’s presence during the killing is unnecessary; the critical fact is his or her participation in the underlying felony. See Goodwin v. State, 405 So.2d 170, 172 (Fla.1981). “One who participates with another in a common criminal scheme is guilty of all crimes committed in furtherance of that scheme regardless of whether he or she physically participates in that crime.” Jacobs v. State, 396 So.2d 713, 716 (Fla.1981).

The trial court correctly denied the independent act instruction because there was no evidence at trial which supported the theory that the killing of the victim was independent, and not in furtherance of the robbery. Whether Washington was one of the two gunmen, or only the lookout, he was a participant in the robbery scheme from the beginning. The murder of the victim was committed in furtherance of the robbery.

A shooting that occurs during an armed robbery with a firearm does not exceed the scope of the armed robbery so that an independent act instruction is required. See Perez v. State, 711 So.2d 1215 (Fla. 3d DCA 1998); Dell v. State, 661 So.2d 1305 (Fla. 3d DCA 1995). For example, in Perez,

Perez and his co-defendants agreed to rob [a] store. Perez was a willing participant in the armed robbery. The bystander was fatally shot when [Perez’s co-defendants] shot at the store owner as they fled the scene. The murder of the bystander was committed in furtherance of the robbery: it enabled Perez and the co-defendants to flee the scene successfully. Thus, there is a causal connection between the robbery and the homicide and the co-defendants are guilty of felony murder. As this court held in Diaz v. State, 600 So.2d 529, 529-30 (Fla. 3d DCA), review denied, 613 So.2d 3 (Fla.1992), “[b]ecause ... the mere intent to participate in the underlying felony-here, robbery-is sufficient in this respect to support a [first] degree murder conviction, and ... [Perez] was thus clearly liable for any acts, whether he knew of them ahead of time or not, committed by an accomplice in furtherance of that offense ....,” the shooting of the bystander was not an intervening act. Accordingly, the trial court did not err in denying Perez’s request for an independent act instruction.

711 So.2d at 1217 (additional citations omitted).

Like the defendant in Perez, Washington was a willing participant in the armed robbery, either as a lookout or gunman. Washington never “expressly declined to participate” in the planned robbery. Shaw, 824 So.2d at 269. His own statement indicated that he acted as a lookout and once the gunmen returned to the car, he joined them in their escape from the scene. The shooting was in furtherance of the robbery, not independent of it. The trial court did not err in denying Washington’s request for the independent act instruction.

AFFIRMED.

WARNER and KLEIN, JJ., concur.


text:
    Daniel E. GIBBS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D04-525.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Daniel E. Gibbs, Sr., Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Daniel E. Gibbs, Sr. appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Gibbs challenged his consecutive habitual offender prison terms for possession and trafficking in cocaine. See Hale v. State, 630 So.2d 521 (Fla.1993).

We reverse as Gibbs’s claim was not considered on the merits. The facts as detailed in Gibbs v. State, 698 So.2d 1206 (Fla.1997), quashing Gibbs v. State, 676 So.2d 1001 (Fla. 4th DCA 1996), along with the trial excerpts provided by Gibbs to this court permit such review. The inquiry on remand is whether Gibbs’s claim for relief in light of Hale is apparent from the face of the record. See Nelson v. State, 855 So.2d 132 (Fla. 4th DCA 2003); Burgess v. State, 831 So.2d 137 (Fla.2002); Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000).

FARMER, C.J., TAYLOR and HAZOURI, JJ., concur.


author:
COPE, J.
      GREEN, J.

text:
    Stephen P. ROLAND, Appellant, v. FLORIDA EAST COAST RAILWAY, LLC f/k/a Florida East Coast Railway Company, a Florida corporation, Appellee.
    No. 3D02-1405.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Rehearing Denied June 2, 2004.

      Tilghman & Vieth, P.A.; Lauri Wald-man Ross, Miami, for appellant.
    Clarke, Silvergate, Campbell, Williams & Montgomery, and Spencer H. Silver-gate, and Hannesson I. Murphy, Miami, and J. Michael M. Marshall, Ft. Lauder-dale, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   On Rehearing Denied

COPE, J.

On consideration of the appellee’s motion for rehearing we withdraw the court’s previous opinion and substitute the following opinion.

Stephen P. Roland appeals an order dismissing his Florida whistleblower lawsuit on grounds of federal preemption. We conclude that federal law authorizes a railroad employee to invoke the protection of a state whistleblowér statute. That being so, there is no federal preemption.

I.

Plaintiff-appellant Roland was employed as a railroad policeman by defendant-ap-pellee Florida East Coast Railway (“FEC”). His amended complaint alleges:

6. During his employment with the FEC, Plaintiff repeatedly reported, objected to, and refused to participate in violations of federal and state laws to other commissioned officers of the State of Florida, which violations created a substantial and specific danger to the public's safety, health, and welfare, including the following:
a) Refusing to notify the [Environmental Protection Agency], [Department of Environmental Resources Management], and local departments about hazardous material leaks in the FEC’s Miami Springs yard and of the contamination of air and ground water in the surrounding area, which includes homes within 200 feet and well fields for Miami-Dade County;
b) Burglary upon a warehouse leased to an FEC tenant; and
c) Warrantless, illegal wiretaps on FEC employees.
7. As a result of his report of violations of laws, Plaintiff was terminated by the Defendant FEC.

R. 38. Plaintiff alleged that his termination was in violation of Florida’s whistle-blower statutes. See § 448.101-448.105, Fla. Stat. (2000).

The FEC successfully moved for dismissal, arguing that there is a federal whistleblower statute which protects railroad employees, 49 U.S.C. § 20109, and that the federal statute necessarily preempts any state whistleblower act.

We respectfully disagree with the trial court on the preemption issue. We do so because the federal whistleblower statute states, in relevant part:

(d) Election of remedies. — An employee of a railroad carrier may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the carrier.

49 U.S.C. § 20109(d). Florida’s whistle-blower statute is “another provision of law.” The federal whistleblower statute thus allows a railroad employee to proceed (1) under the federal whistleblower statute, or (2) under any other whistleblower statute (such as the Florida statute at issue in this case), but not both.

For its argument that the Florida whis-tleblower statute has been preempted, the FEC relies on Rayner v. Smirl, 873 F.2d 60 (4th Cir.1989). We conclude that Ray-ner’s preemption and statutory analyses do not survive applicable decisions of the United States Supreme Court.

Rayner was a railroad employee who alleged that he had been demoted and transferred because he had reported safety violations against the wishes of his superiors. He filed a common-law suit for wrongful discharge in Maryland state court, which was removed to federal court. 873 F.2d at 62-63. Construing the predecessor version of the statute now before us, the Fourth Circuit held that the statute preempted the plaintiffs common-law cause of action for wrongful discharge. 873 F.2d at 67. •'

The FEC argues that if the federal whistleblower statute preempts a state common-law cause of action for wrongful discharge, it follows that the federal statute also preempts a cause of action for violation of a state whistleblower statute. We do not agree.

First, the only point actually decided in Rayner was that the federal statute preempted a state common-law claim for wrongful discharge. The Rayner court did not consider, or decide, whether the federal statute would preempt a state-law whistleblower statute such as the Florida statute at issue in the present case. To the extent that Rayner can be read as precluding a state whistleblower statutory claim, those pronouncements arguably are dicta.

Second, several years after Rayner, the United States Supreme Court announced Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). There the Court found there was no preemption of the Hawaii Whistleblower Protection Act by the federal Railway Labor Act. Id. at 266, 114 S.Ct. 2239. In the statute now before us, federal whistle-blower claims are decided under the federal Railway Labor Act. See 49 U.S.C. § 20109(c). Under the logic of Hawaiian Airlines, the Florida whistleblower statute is not preempted. See also CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); English v. General Electric Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1263-64 (11th Cir.2003); Maher v. New Jersey Transit Rail Operations, Inc., 125 N.J. 455, 593 A.2d 750 (1991).

Third, and as already stated, the text of the federal whistleblower statute allows a railroad whistleblower to elect to proceed under either the federal statute or “another provision of law for the same allegedly unlawful act of the carrier.” 49 U.S.C. § 20109(d). The FEC points out that according to Rayner, the election of remedies “section refers to federal statutes or regulations, not the common-law remedies of the fifty states.” 837 F.2d at 66 n. 1. But the Rayner court did not consider or address whether the wording of the federal statute permits election of the remedy of a state law whistleblower action — and we conclude that the federal statute by its terms does allow the state statutory claim.

Fourth, we reject the FEC’s argument that the express terms of the federal statute are overridden by a congressional committee report contained in the 1980 congressional history. In saying that a railroad employee is only allowed to make an election among federal remedies, the Rayner court cited a statement in the congressional history that there was a desire to allow railroad employees the option to invoke the federal whistleblower statute, or any rights the employee may have under an existing collective bargaining agreement, but not both. See Rayner, 873 F.2d at 66 (citing H.R.Rep. No. 96-1025, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong. & Admin. News 3830, 3840).

It does not follow, however, that Congress intended to confine railroad employees solely to those two remedies, or solely to federal remedies—because if that had been the congressional intent, Congress knew very well how to draft such a statute. “Ordinarily, the mere existence of a federal regulatory or enforcement scheme ... does not by itself imply pre-emption of state remedies.” English v. General Electric Co., 496 U.S. at 87, 110 S.Ct. 2270 (citation omitted).

Furthermore, the United States Supreme Court has made clear that in interpreting a statute, there is no occasion to resort to legislative history where the text of the statute is clear. Writing about another federal statutory scheme, the Court explained:

[Respondent] says that legislative history points to a different result. But we think that judicial inquiry into the applicability of § 1292 begins and ends with what § 1292 does say and with what § 158(d) does not ... “It would be dangerous in the extreme to infer ... that a case for which the words of an instrument expressly provide, shall be exempted from its operation.”

Connecticut National Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations omitted). It was impermissible for the Rayner court to decide that the statute restricts a railroad employee to a choice between federal remedies only, when the text of the statute contains no such “federal” limitation.

In conclusion, we emphasize that in adjudicating the Florida whistleblower case, any applicable federal law and regulations regarding the operations and safety standards of railroads are, of course, controlling. As we view the matter, Congress has allowed an aggrieved plaintiff to elect to proceed in state court on a whistleblower claim. However, wherever federal law and regulations govern railroad operations and safety standards, federal law will be applied by the state court.

For the stated reasons, we reverse the dismissal order and remand for further proceedings consistent herewith.

RAMIREZ, J., concurs.

GREEN, J.

(concurring).

I write separately because I believe this case should be reversed on procedural grounds.

Roland instituted this action for wrongful discharge under Florida’s Whistle Blower Statute, for retaliatory discharge due to his reporting of alleged illegal activities by FEC. FEC answered asserting various affirmative defenses. Preemption was not one of these. Months later, FEC filed a motion to dismiss the complaint, claiming that the trial court lacked subject matter jurisdiction because Roland’s state law claims were completely preempted by the Federal Railway Safety Act. Roland opposed the motion, arguing that there was no preemption of his claims.

Following the majority’s rationale that § 20109 provides for concurrent jurisdiction, this then becomes a case of “defensive preemption.” Defensive preemption arises when a state court has concurrent jurisdiction to consider claims under a federal statute. See Worth v. Universal Pictures, Inc., 5 F.Supp.2d 816, 820 (C.D.Cal.1997). In a “defensive preemption” ease, preemption must be raised as an affirmative defense or it is waived. See, id. See also Martin v. Eastern Airlines, Inc., 630 So.2d 1206, 1208 (Fla. 4th DCA 1994) (finding that preemption, an affirmative defense within the scope of both the Florida and Federal Rules of Civil procedure, is waived if not set forth in the answer). Here, given the plain language of 49 USC § 20109, that a railway employee may seek protection under FRSA or “another provision of law,” both the federal and state courts have jurisdiction over this matter. Thus, the preemption argument was “defensive.”

FEC did, however, acknowledge in the court below that preemption is ordinarily an affirmative defense but urged that the preemption here was “complete” and therefore went to subject matter jurisdiction. The trial court erroneously agreed and granted FEC’s motion dismiss.

Since FEC did not raise preemption in its pleadings, this argument was waived, and the motion to dismiss was improperly considered. Accordingly, I would reverse on this ground.

      . Section 448.102, Florida Statutes, provides:
      448.102 Prohibitions. — An employer may not take any retaliatory personnel action against an employee because the employee has:
      (1)Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.
      (2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.
      (3) Objected to, or refused to participate in, any activity, policy, or practice of the employer, which is in violation of a law, rule, or regulation.
      Plaintiff also alleged a violation of section 112.3187, Florida Statutes (2000). It is not clear to us that Section 112.3187 applies to the plaintiff, but that question is not before us.

      . The claim was wrongful discharge because the plaintiff had been discharged from his position as foreman and demoted to a lower position.

      . The federal Railroad Safety Act contains an express preemption provision providing for national uniformity of laws, regulations, and orders related to railroad safety. 49 U.S.C. § 20106. Under the analysis of the just-cited cases, allowing enforcement of employee rights through a state whistleblower statute is consistent with the federal regulatory scheme.

      .The Rayner court is correct that the election of remedies provision prohibits a railroad employee from electing a state common-law remedy, such as a state wrongful discharge claim. That is so because the election of remedies provision refers to "another provision of law,” 49 U.S.C. § 20109(d), and the most common interpretation of "provision of law” would be "statute.” See Black’s Law Dictionary 1240 (7th ed.1999). Thus, the ■ election of remedies provision allows a state statutory whistleblower claim but prohibits a state common-law claim.

      . The FEC argues that this court is required to follow Rayner as precedent binding on this court. Leaving aside the fact that the Rayner court did not pass on the exact question now before us, and the fact that the Rayner decision has been undercut by decisions of the United States Court, the FEC’s argument is incorrect. This court is bound by decisions of the United States Supreme Court and the Florida Supreme Court. See State v. Dwyer, 332 So.2d 333 (Fla.1976); Kidwell v. State, 696 So.2d 399, 405 (Fla. 4th DCA 1997); Board of County Commissioners v. Dexterhouse, 348 So.2d 916, 918 (Fla. 2d DCA 1977). Decisions of the federal courts of appeals are persuasive but not binding. See Board of County Commissioners v. Dexterhouse, 348 So.2d at 918.

      . We respectfully disagree with the position of the concurring qpinion. That is because in the trial court, the plaintiff waived the pleading deficiency and proceeded to address the issue on the merits. Memorandum of Law in Opposition to Motion to Dismiss for Lack of Subject Matter Jurisdiction, at 2. The plaintiff stated:
      Initially, it should be noted that the FEC has answered the Amended Complaint and has not raised the affirmative defense of preemption. Neither has the FEC sought leave to amend it[s] Answer to allege this new theory of defense. While ... the procedural deficiencies of the FEC's Motion to Dismiss could eventually be cured, meeting the issue head on reveals that even if properly before the Court, the [Federal Railroad Safety Act] does not preempt this action or serve as a basis for subject matter dismissal.

        Id.

      As the plaintiff bypassed any reliance on the FEC’s failure to plead the affirmative defense, that is not a proper basis for reversal here.

      . See §§ 112.3187 and 448.102, Fla. Stat. (1999).

      . Complete preemption arises where a federal statute vests exclusive jurisdiction in the federal courts. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Smith v. GTE Corp., 236 F.3d 1292 (11th Cir.2001).


text:
    Jose A. DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1190.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Jose A. Diaz, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. The motion for post-conviction relief was properly denied as it only states that appellant Jose A. Diaz was given a life sentence, therefore, counsel was ineffective. This does not meet either prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    S.Z. and S.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, etc., Appellee.
    Nos. 3D03-1915, 3D03-1742.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Joseph M. Albury (Key West), for appellants.
    Calianne P. Lantz, for appellee.
    Before SCHWARTZ, C.J., and LEVY, J., and COBB, Warren H., Senior Judge.
   PER CURIAM.

Appellants S.Z. and S.M., the mother and father of D.M., appeal from an Order of Adjudication and Judgment of Involuntary Termination of Parental Rights. An adjudicatory hearing was held on Monday, June 9, 2003. Appellants’ trial counsel was not provided with a discovery packet until late in the day on the Friday before the hearing. That packet did not contain a witness list, many of the filings from the dependency case, or the list of exhibits to be presented and relied upon at the hearing. We agree with appellants that this turned the hearing into a trial by ambush that violated their due process rights. Accordingly, the termination order is reversed and the case remanded for a new hearing.

Reversed and remanded for a new hearing.


text:
    Rooney Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1855.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney Zack, Assistant Attorney General, for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Floyd v. State, 569 So.2d 1225, 1231-32 (Fla.1990).


text:
    ARTISAN PICTURES, INC., Appellant, v. WEST AVENUE FILMS, LLC., Appellee.
    No. 3D03-3237.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Deutsch & Blumberg, and James C. Blecke, Miami; and Gerald J. Houlihan, Miami, for appellant.
    Goldstein, Tanen & Trench, and Susan S. Trench, and Catherine C. Grieve, Miami, for appellee.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Cox v. Grose, 97 Fla. 848, 122 So. 513 (1929).


author: KLEIN, J.

text:
    Neil ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4513.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant, convicted of robbery and aggravated assault, argues that we should grant a new trial because the trial court erred in allowing the state to exercise a peremptory challenge to a black juror where no race-neutral reason was given. We reverse. ' :

During voir dire the prosecutor questioned a black juror, attempting to ascertain whether she could convict based on the testimony of one witness whom she believed, if there was contradictory testimony from three witnesses, and she indicated she would “go with who [she] believed.” She gave the same response when the prosecutor changed the hypothetical to one witness whom she believed compared to ten who told a different story. The prosecutor then went on as follows:

[State]: I’m not expecting you to have to do that. But if you believe that one person — let’s say you only hear from one person and you believe that A happened, and that A constitutes a crime. Would you have a problem finding the person guilty?
[Juror]: I don’t know. It depends on the situation. It’s very difficult. You’re not giving me any facts so I can’t tell you whether I would find the person guilty.
[State]: You believe the person, so regardless of what the facts are, you believe them to be true. And the Judge would instruct you if you find those facts, plug them into the wall, it would constitute a crime.
We’re going beyond what the facts are based on just one person’s word. " If you believe that one person, would you be able to find the person guilty?
[Juror]: Yes.
[State]: Is there any difference between the first scenario of one and three and the second scenario in your mind of just one person testifying?
[Juror]: Well,- there is a difference because three people saying this is what happened, people are stating it and there’s one person that states that this happened—
[State]: Again, you already believe the 1/10 scenario. There’s no difference ■to you then?
[Juror]: No
[State]: Does anybody disagree. There’s obviously a difference. I’ve heard from four people and I can make a decision. Anybody feel that way?

The state then exercised a peremptory strike on this juror and, following the defendant’s objection that it was racially based, the state explained:

I’ll be happy to answer. Ms. Campbell is the individual I specifically questioned as far as whether or not she would believe one person versus four people, one versus ten people, or one person alone. She could not tell me why she could make a difference based upon she would believe one person over ten but not one person’s testimony alone. She said it would be hard for her to do that and she would be uncomfortable.

Appellant responded that that was not a proper reason because the juror hadn’t heard any evidence. The court announced it was of the opinion that the explanation was race neutral and permitted the strike without further explanation.

It was the state’s obligation, when the defendant objected to the peremptory strike, to provide a facially race-neutral reason which is supported in the record. Rimmer v. State, 825 So.2d 304, 320 (Fla.2002). We acknowledge that some of the answers given by the juror are not entirely clear; however, we attribute that to the awkward manner in which some of the questions were phrased. Considering the answers in light of the questions, this record does not support the state’s explanation that this prospective juror could believe “one person over ten but not one person’s testimony alone.” Nor did she say it would be “hard for her to do that and she would be uncomfortable.” We must accordingly reverse. White v. State, 754 So.2d 78 (Fla. 3d DCA 2000). We find the remaining issues to be without merit. Reversed for a new trial.

WARNER and GROSS, JJ., concur.


text:
    Katie SHREFFLER, Appellant, v. Marc J. PHILIPPON, M.D., Holy Cross Hospital, Inc., d/b/a Holy Cross Medical Group, Holy Cross Hospital, Inc., d/b/a Holy Cross Hospital, Holy Health Corporation, d/b/a Holy Cross Hospital, Inc., and Smith & Nephew, Inc., Appellees.
    Nos. 4D03-150, 4D03-1573.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, Edna L. Caruso and Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Gary L. Sanders and Susan J. Cole of Bice Cole Law Firm, P.L., Ocala, for ap-pellee Smith & Nephew, Inc.
   GROSS, J.

Katie Shreffler appeals a final summary judgment in favor of appellee, Smith & Nephew, Inc., on a products liability claim.

We reverse, because when viewed in the light most favorable to Shreffler, the record reflects a genuine issue o,f material fact as to whether the shavers at issue caused injury to her.

On July 28, 1999, Shreffler filed a complaint against Marc J. Philippon, M.D., and his employer, Holy Cross Hospital, Inc., alleging that the orthopedic surgeon had negligently injured her. On November 14, 2000, Shreffler filed an amended complaint adding Smith & Nephew, Inc. as a defendant, because it had manufactured the motorized shavers that Dr. Philippon used during Shreffler’s hip arthroscopy.

Count V of the amended complaint asserted a cause of action against Smith & Nephew for the negligent design, manufacture, and distribution of the motorized shavers, which had allegedly broken during the hip surgery. Count VI of the amended complaint asserted a strict liability cause of action, alleging that the motorized shavers used during the hip arthros-copy were unreasonably dangerous and/or defective.

A contested issue was whether the two motorized shavers were inside of Shref-fler’s hip joint at the time they broke apart. This is the issue that the trial judge identified at the summary judgment hearing as being the “big question” in ruling on the motion.

“A trial court may enter summary judgment only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002) (citation omitted). The standard of review of an order granting summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Dr. Philippon’s post-surgical operative report, when read in the light most favorable to Shreffler, suggests that the shavers broke inside of the hip joint. A jury could view the doctor’s later contradictory testimony as a self-serving attempt to deflect liability' away from himself. We conclude that summary judgment was inappropriate without considering orthopedic surgeon Dr. Goodman’s affidavit filed by Shreffler in opposition to summary judgment. We leave it to the trial court to consider and rule on the sufficiency of Dr. Goodman’s qualifications to give the opinion expressed.

In light of our ruling on the final summary judgment, we also reverse the award of fees and taxable costs entered pursuant to an offer of judgment.

REVERSED AND REMANDED.

WARNER and HAZOURI, JJ., concur.


text:
    Jeffrey FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1346.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of burglary of a conveyance and raises the issue of whether the court should have dismissed the information because the state failed to preserve evidence favorable to him. We affirm.

Appellant was discovered in a fenced area, walking out of a maintenance van carrying tools and tool boxes. Appellant’s explanation was that his bicycle, which was at the scene, had a flat tire, and he was looking for something to inflate it.

After arresting appellant, the police took his bicycle as evidence to the station. Neither the tools nor the tool boxes were preserved as evidence or photographed. The bicycle, after being placed in the evidence room, could not be found.

Appellant moved to dismiss the information on the ground that the officers lost, destroyed, or failed to preserve evidence, arguing he was denied due process. He asserted that the bicycle had a flat tire, which would have corroborated his explanation that he was merely seeking something to inflate it. He also argued that the tool boxes he was accused of taking were too large and heavy for him to have transported on his bicycle, and the officers should have retained or photographed them.

The loss of the bicycle was not a problem for the appellant because the state, in order to cure the problem created by its inability to locate it, stipulated that it had a flat tire. The issue, accordingly, is limited to whether the court erred in denying dismissal because the state failed to preserve the tools or. the tool boxes. The officer who arrested defendant testified that the tools were large, but the defendant did not cross-examine him as to their size or weight.

There is no evidence that the loss or failure to preserve evidence in this case was due to bad faith on the part of the police. In order for there to be a denial of due process, where there is no bad faith, the lost evidence must be more than merely potentially useful to the defense. As the court explained in State v. Thomas, 826 So.2d 1048, 1049 (Fla. 2d DCA 2002):

The dismissal of a charge is the most severe sanction a court can impose for the destruction of evidence; it is to be used with the greatest caution and deliberation. State v. Westerman, 688 So.2d 979 (Fla. 2d DCA 1997). The suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But the loss or destruction of evidence that is only potentially useful to the defense violates due process only if the .defendant can show bad faith on the part of the police or prosecution. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); King v. State, 808 So.2d 1237, 1242 (Fla.), cert. denied, 536 U.S. 962, 122 S.Ct. 2670, 153 L.Ed.2d 843 (2002).

At best, the tools and tool boxes would only have been potentially useful. Appellant’s argument that it would have been obvious that they were too heavy for him to take away on his bicycle is undermined by the fact that appellant .did not attempt to establish, through cross-examination of the officer, the size or weight of the items. The materiality of the tools and tool boxes is also highly questionable because of appellant’s insistence that his bicycle had a flat tire, making it of little use for transporting anything. The trial court did not accordingly err in denying the motion to dismiss. Affirmed.

WARNER ánd GROSS, JJ., concur.


text:
    Christopher WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2323.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Peart v. State, 754 So.2d 723 (Fla. 4th DCA1999).

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


author: PER CURIAM. STONE, J.,

text:
    James BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2337.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      James Brooks, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Brooks entered a plea of nolo contendere to a charge of attempted robbery. A Judgment was entered and he was sentenced as a habitual violent felony offender to ten years in prison with an enhancement of five years minimum mandatory imprisonment. On appeal, this court determined that the sentence was improper because carjacking, the offense used to qualify Brooks as a habitual felony offender, is not an enumerated offense under section 775.084(l)(b), Florida Statutes (2000). This court reversed and remanded for a proper sentence to be entered. See Brooks v. State, 837 So.2d 1125 (Fla. 4th DCA 2003).

On May 23, 2003, in response to this court’s opinion, the trial court entered an order vacating the previous Judgment and Sentence and- scheduled a re-sentencing hearing. Immediately prior to the re-sentencing hearing, the state filed an Amended Information charging Brooks with robbery. At the hearing, Brooks submitted a plea of guilty to the charge of robbery pursuant to a plea agreement with the state that he would be sentenced to ten years in prison, to run concurrently with the sentences he received on separate violation of probation charges. The trial court accepted the plea and entered a Judgment convicting Brooks of robbery.

Brooks argues that the Judgment entered on May 23, 2003, violated his right to be free from double jeopardy. We agree. Jeopardy attached when the trial court accepted Brooks’s plea of nolo con-tendere to the charge of attempted robbery and entered a Judgment based on that plea. See State v. Johnson, 483 So.2d 420 (Fla.1986). Pursuant to this, court’s mandate, the trial court should have simply re-sentence.d Brooks based on his plea of nolo contendere to .the charge of attempted robbery. The trial court should not have allowed -the State to file an Amended Information charging Brooks with robbery and should not have permitted Brooks to enter'a plea to the increased charge of robbery during what should have simply been a re-sentencing hearing. Double jeopardy prohibits Brooks from being charged .and convicted .with robbery after the trial court accepted his plea of nolo contendere to attempted robbery. See Smith v. State, 559 So.2d 1281 (Fla. 5th DCA 1990).

The state argues that Brooks’s plea to the charge of robbery was completely voluntary and therefore not error. However, the right not to. be placed twice in jeopardy is fundamental and the failure to object at the trial level does not waive the issue for appeal. See Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999).

The Judgment convicting Brooks of robbery is void and the sentence arising from that conviction is invalid. Therefore, Brooks’s conviction for robbery is reversed and the matter is remanded for re-sentencing on the charge of attempted robbery.

REVERSED AND REMANDED.

STEVENSON and HAZOURI, JJ., concur.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I concur in the opinion but write separately to comment that, in my judgment, the negotiated plea of guilty would, generally, preclude the defendant from pursuing this double jeopardy attack on the agreed judgment and sentence; a double jeopardy claim should be deemed waived by the negotiated plea. Waiver, however, is not a factor in this appeal because our earlier opinion in this case affirmed the initial adjudication and remanded solely for the limited purpose of re-sentencing.


text:
    Howard McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5431.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Howard McGee, pro se, appellant.
    Rosa Carson, Acting General Counsel, and Judy Bone, Assistant General Counsel, Department of Corrections, 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 further proceedings.

REVERSED and REMANDED.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    ROBERTS CHIROPRACTIC CENTER P.A., a/a/o Guo-Fu Li, Petitioner, v. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Respondent.
    No. 03-4718.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Donald A. Myers, Jr.; Bailey & Myers, P.A., Maitland, and Lefferts L. Mabie, III, Tampa, for Petitioner.

      Valeria Hendricks, Lakeland; Davis & Harmon, P.A., Tampa, for Respondent.
   PER CURIAM.

Petitioner, Roberts Chiropractic Center, P.A., seeks certiorari review of a circuit court, appellate division per curiam affir-mance of a county court order granting Progressive Consumers Insurance Company’s motion for summary judgment. The case involved the payment of personal injury protection benefits at reduced preferred provider organization rates, and a claim for statutory cost, interest and attorney’s fees. Certiorari review of a decision rendered by a circuit court acting in its appellate capacity is appropriate only if the circuit court did not afford procedural due process or departed from the essential requirements of law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2008). The petitioner has not met this standard of review. Accordingly, we deny petition for writ of certiorari.

Petition for Writ of Certiorari DENIED.

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


text:
    Barry BUCHANAN, Petitioner, v. HEARTLAND EXPRESS, INC., OF IOWA, Respondent.
    No. 1D04-1839.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    William J. Spradley, III, and Diane G. Cassaro of O’Hara Spradley, P.A., Jacksonville, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. Petitioner’s motion for attorney’s fees, filed April 28, 2004, is hereby denied.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Michael A. FULLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1191.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Michael A. Fuller, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks a belated appeal, stating that he requested an appeal during sentencing but no appeal was ever filed. Florida Rule of Appellate Procedure 9.141(c)(3)(F) requires the specific facts providing a basis for a belated appeal to be sworn to by the petitioner. The instant petition for belated appeal does not contain an oath that the statements are true. Therefore, the petition is dismissed without prejudice to refiling with a proper oath.

DISMISSED.

PLEUS, PALMER and TORPY, JJ., concur.


author: THOMPSON, J.

text:
    Timothy Royal ROGERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1210.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Timothy Royal Rogers, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   THOMPSON, J.

Timothy Royal Rogers seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). He alleges under oath that he is incarcerated in the State Department of Corrections and that he timely filed a notice of appeal while in custody. Rogers contends that he placed his notice of appeal in the prison mailbox and that it was mishandled by prison officials and lost in the prison mailing system. When Rogers’s notice of appeal was returned to him with a note stating that it had been found in a library book, he realized that the notice of appeal had not been mailed. Although he filed grievances with the warden, the mail room supervisor, and security, he was not able to obtain any relief.

The state responds that after investigating, they are not able to refute the allegations. The state responds: “Respondent does not have a good faith basis on which to dispute [Rogers’s] claim that he placed his notice of appeal in the prison mailbox and it was mishandled or lost in the system. Therefore, the interests of judicial time and economy would be best served by granting a belated appeal.”

The petition for belated appeal is granted. See State v. Trowell, 739 So.2d 77 (Fla.1999); see also Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998).

GRIFFIN and PALMER, JJ., concur.


text:
    Richard Henry GEFFKEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-185.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Richard Henry Geffken, Bushnell, pro se.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

ON ORDER TO SHOW CAUSE

We have carefully considered appellant’s response to the court’s show cause order entered pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We find that good cause has not been shown and therefore, in order to conserve judicial resources, appellant is prohibited from filing any additional pro se appeals, pleadings, motions or petitions relating to his conviction and sentence in St. Johns Circuit Court case numbers 94-371 and 95-1503. Any pleadings or papers filed in this court relating to those cases must be reviewed and signed by an attorney licensed to practice in this state and the Clerk of the Fifth District Court of Appeal is directed not to accept any further pro se pleadings from appellant relating to said cases.

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


text:
    Robert Leroy SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4416.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Nancy A. Daniels, Public Defender and Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert Leroy Smith appeals his convictions and sentences for robbery with a firearm, aggravated battery with a firearm, burglary of an occupied conveyance committing an assault or battery and armed with a firearm, grand theft auto and felony driving while license suspended or revoked, all relating to a criminal episode that occurred in Gainesville, Florida on February 21, 2002. The State concedes that the trial court erred in reclassifying appellant’s aggravated battery conviction to a first degree felony under section 775.087(l)(b), Florida Statutes (2001), and imposing a thirty-year sentence. Cargle v. State, 829 So.2d 366, 367 (Fla. 1st DCA 2002). Further, we find that the trial court erred by denying appellant’s motion to continue the trial in order to secure the presence of two alibi witnesses. Appellant has shown that he exercised due diligence in attempting to serve these two witnesses; that these witnesses could allegedly supply alibi testimony that he was in Tallahassee the evening the offenses herein were committed; that, although the witnesses were avoiding service of a subpoena at the time of trial, on one occasion the witnesses had appeared in court and were willing to testify; and that, though there was eyewitness testimony against appellant, if these witnesses testified as expected, it would have necessitated the jury weighing whether the state’s witnesses were mistaken in their identification. See Robinson v. State, 561 So.2d 419 (Fla. 1st DCA 1990); Beachum v. State, 547 So.2d 288 (Fla. 1st DCA 1989), see also Geralds v. State, 674 So.2d 96, 99 (Fla.1996)(setting forth four-part test to be employed in judging whether there has been palpable abuse of discretion in denying motion for continuance).

REVERSED and REMANDED for a new trial.

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


text:
    Wanda J. MURRAY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-0744.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Appellant, pro se.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Cuebas v. Unemployment Appeals Comm’n, 765 So.2d 882, 884 (Fla. 2d DCA 2000).

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    Raymond L. ADAMSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0203.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Raymond L. Adamson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of mandamus is hereby denied. See Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA 1981). Petitioner’s motion to suggest certified question of great public importance, filed February 17, 2004, is denied.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Merle D. SLATER, Appellant, v. SUPERAMERICA and Ace American Insurance, Appellees.
    No. 1D03-3580.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Brian O. Sutter, Port Charlotte, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.
    H. George Kagan of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, and Lawrence R. Diamond, Sarasota, for appellees.
   PER CURIAM.

Having considered appellant’s response, appellees’ motion to dismiss the appeal is granted. This appeal is hereby dismissed. Appellant’s request for oral argument is denied as moot. Appellant’s motion for attorney’s fees and costs is denied.

DISMISSED.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Warren MASSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0866.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Warren Massey, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner’s motion to amend his petition for writ of prohibition, filed March 15, 2004, is granted. The amended petition for writ of prohibition is denied on the merits.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    CORPORATE FAMILY SOLUTIONS, INC., d/b/a Bayfront Child Development Center, Appellant, v. PINELLAS COUNTY LICENSING FOR CHILDREN CENTERS AND FAMILY DAY CARE HOMES, Appellee.
    No. 1D04-0975.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    George N. Meros, Jr., and Edwin A. Bayo of Gray Robinson, P.A., Tallahassee, for Appellant.
    Christy Donovan Pemberton, Senior Assistant County Attorney, Clearwater, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 23, 2004, the Court has determined that the order on appeal is not a final order because it does not bring the adjudicative process to a close. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, WEBSTER and BROWNING, JJ., concur.


text:
    John H. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D98-2881.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Karla D. Ellis and Charmaine M. Mill-saps, Assistant Attorneys General, Tallahassee, for Appellee.
   OPINION ON REMAND

PER CURIAM.

This case is before us on remand following the decision of the Florida Supreme Court in this case, State v. Carter, 835 So.2d 259 (Fla.2002), quashing and remanding the decision of this court in this case, Carter v. State, 24 Fla. L. Weekly D1063, — So.2d -, 1999 WL 289215 (Fla. 1st DCA April 30, 1999). We set aside the prior opinion of this court issued herein. Pursuant to the holding in State v. Carter, we find no abuse of discretion in the trial court’s revocation of Carter’s probation, 835 So.2d at 262, and we affirm the order on appeal.

AFFIRMED.

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


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Aaron G. KING, Appellee.
    No. 2D03-1997.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order suppressing all statements made and evidence seized following the arrest of Aaron King for possession and capture of 114 small alligators. Following the analysis we employed in State v. Bell, 873 So.2d 476 (Fla. 2d DCA 2004), we reverse and remand.

Reversed and remanded.

SILBERMAN and WALLACE, JJ., Concur.


text:
    HUNTINGTON ON THE GREEN CONDOMINIUM, etc., Appellant/Cross-Appellee, v. LEMON TREE I-CONDOMINIUM, etc., Appellee/Cross-Appellant.
    No. 5D02-899.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Rehearing Denied June 1, 2004.

      Robyn M. Severs and Robert L. Taylor of Taylor and Carls, P.A., Maitland, for Appellant/Cross-Appellee.
    John A. Leklem of John A. Leklem, P.A., Orlando, for Appellee/Cross-Appel-lant.
   THOMPSON, J.

Huntington on the Green Homeowner’s Association (“Huntington”) appeals a final judgment in favor of Lemon Tree Condominium I Association (“Lemon Tree”). We reverse and remand for entry of judgment in favor of Huntington.

The Huntington property and the Lemon Tree property both abut a development known as Alhambra. When Alhambra’s developer decided to build additional residential units on its property, Huntington and Lemon Tree, along with area civic associations, joined forces to stop the addition to the development. The groups Huntington, Lemon Tree, and the civic associations, were not successful in stopping the addition, but they did extract concessions from Alhambra’s developer. During settlement negotiations, the developer agreed, among other things, to give the county a green space and to build a buffer wall between its property and the Huntington property — obtaining a buffer wall had been Huntington’s main concern. There were other requirements for the developer involving streetscapes and traffic, and the county had various obligations to the developer.

During the mediation, the county refused to accept the open space. This refusal left the groups unexpectedly considering money as part of the settlement. According to one witness, “no one was prepared to have this money coming at us.” The groups and the developer drafted a nonbinding settlement outline providing that the developer would pay the groups a lump sum of $155,000. In addition, the developer agreed to build a “6' non-wood, solid wall with stucco veneer” along Huntington’s boundary. The developer also agreed to pay Lemon Tree $37,700, which was the developer’s estimate of what it would cost Lemon Tree to build a buffer wall. The $37,700 was to be put in escrow and used by Lemon Tree to build a wall on its border with the developer’s property. Two years after a time certain, any portion of the $37,700 not used was to be returned to the developer. Lemon Tree would not accept the escrow requirement and the two-year time limit, so those provisions were deleted from the nonbinding settlement outline. In addition, the $37,700 originally slated for escrow was added to the $155,000 lump sum settlement amount, for a total lump sum amount of $192,700. Among other things, the final agreement required the developer to pay the groups a lump sum of $192,700 and to build a wall for Huntington.

This appeal involves the distribution of the $192,700 paid to the groups by the developer. In anticipation of receiving the settlement funds, the groups executed a separate, handwritten agreement to “consummate the settlement agreement” reached with the developer and to distribute the settlement fund. Before it was amended, the distribution agreement stated that the lump sum payment was to be $155,000. From that sum, the groups’ attorney was to be paid $65,000, and the mediator’s fee (about $1,200) was to be paid. Next, two umbrella civic organizations were to receive $7,000 each so that they could repay those who had donated to the cause, and to give the organizations a little extra. The remainder of the $155,000, which was $75,000, was to be divided equally between Huntington and Lemon Tree, except that Huntington’s half share of the $75,000 was to be adjusted downward if Lemon Tree incurred additional costs to build its wall.

An addendum to the distribution agreement took into account the change to the settlement reached with the developer. The ultimate settlement with the developer was for the developer to make a lump sum payment of $192,700 instead of paying a lump sum of $155,000 and putting $37,700 in escrow for Lemon Tree. The addendum stated that the total settlement amount was $192,700, rather than $155,000, and that the additional $37,700 would be deducted from the $192,700 and paid to Lemon Tree. After deducting for the $37,700 and the amounts for the attorney, the mediator, and the two umbrella groups, the balance of the $192,700 would have been approximately $75,000 to be shared equally by Huntington and Lemon Tree, unless it cost Lemon Tree more than $37,700 to build its wall.

The groups had opened a bank account, in the name of Citizens for Compliance, for accepting donations to the cause. Pursuant to the settlement agreement, the developer remitted the settlement money to Citizens for Compliance. The two people in charge of the account disbursed Lemon Tree the $37,700, plus all but a few hundred dollars of the $75,000, apparently based on a bid Lemon Tree obtained and submitted to the persons in charge of the account. One of the two people in charge of the account testified at trial and testified that she remembered that Lemon Tree was supposed to have obtained contractors’ bids for building the wall. The records of Citizens for Compliance contained three bids for the wall, in the amounts of $112,000, $111,000, and $103,000, and its three-page document entitled “Settlement Payment” showed that the disbursement to Lemon Tree was based on the highest of the three bids. The person in charge of the account did not know why the records contained three bids for Lemon Tree’s wall or who decided how much Lemon Tree would be disbursed. The estimates all showed that Lemon Tree’s border was 1,500 feet long, but the trial court found that it was 1,100 feet long. The representatives of Lemon Tree who testified did not know who decided that the border was 1,500 feet long.

A year after the money was disbursed to Lemon Tree, Huntington wrote Lemon Tree stating that it had been made clear during the mediation and the discussions among the groups that Lemon Tree intended to move with dispatch to have the wall built. Huntington pointed out that Lemon Tree had not shown any sign that it intended to build a wall, and said that if Lemon Tree’s plans had changed, Huntington would like its share of the $75,000 balance of the settlement funds. This and another overture Huntington made to Lemon Tree were unavailing, so Huntington sued for a declaration of its rights to half the balance of $75,000.

Huntington’s position was that Lemon Tree was entitled to the first $37,700 of the settlement funds, and that only if Lemon Tree needed more than that for the wall, was it entitled to take the excess from Huntington’s share. Huntington argued that since Lemon Tree never attempted to build a wall, Lemon Tree did not need any additional funds to complete a wall, so it was not entitled to any more than,$37,700, plus-half the $75,000. On the other hand, Lemon Tree contended that the distribution agreement did not require it to build a wall, and that it should be allowed to invade Huntington’s half share for the greater costs’ it would have incurred if it had attempted to build a wall. Lemon Tree also argued that it should be allowed .to invade the $75,000 for the entire cost of its wall. Huntington agreed that Lemon .Tree was not required to build a wall, but contended that Lemon Tree could invade Huntington’s share of the $75,000 only if Lemon Tree actually built a wall and actually incurred actual costs in excess of the first $37,700.

In the main, the trial court agreed with Lemon Tree. It decided that Lemon Tree could invade Huntington’s half share even though it did not build a wall. The court decided that the value of a wall for Lemon Tree should be the average of the three bids found in the records, but reduced in light of the court’s finding that the border was only 1,100 feet long. The court also decided that under the distribution agreement, Lemon Tree was entitled to the $37,700 free and clear, so to speak, and that it was also entitled to so much of the $75,000 as it would have taken for Lemon Tree to build a wall 1,100 feet long. The court found that it would have cost Lemon Tree $81,209.87 to build a wall. Since $81,209.87 is greater, than $75,000, Huntington took nothing.

We agree with Huntington that the court .misinterpreted the distribution agreement. The intent of the parties to the contract should govern the construction of a contract, and to determine the intent of the parties, a court should consider the language in the contract, the subject matter of the contract, and the object and purpose of the contract. American Home Assur. Co. v. Larkin General Hosp., Ltd., 593 So.2d 195 (Fla.1992). In addition, where two contracts are part and parcel of the same general transaction, they may under some circumstances be interpreted together. J.M., Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484, 486 (Fla.1957). Here, where the settlement agreement with the developer and the distribution agreement among the groups were part and parcel of the same agreement, and where the distribution agreement was entered to “consummate” the settlement agreement, we consult the settlement agreement for enlightenment on the distribution agreement.

The following rules of construction also assist a court in determining the intent of the parties:

(1) the contract should be considered as a whole in determining the intention of the parties to the instrument; (2) the conditions and circumstances surrounding the parties to the instrument and the object or objects to be obtained when the contract was executed should be considered; (3) courts should place themselves, as near as possible, in the exact situation of the parties to the instrument, when executed, so as to determine the intention of the parties, objects to be accomplished, obligations created, time of performance, duration, mutuality, and other essential features; (4) if clauses in a contract appear to be repugnant to each other, they must be given such an interpretation and construction as will reconcile them if possible; if one interpretation would lead to an absurd conclusion, then such interpretation should be abandoned and the one adopted which would accord with reason and probability; (5) if the language of a contract is contradictory, obscure or ambiguous or where its meaning is doubtful so that it is susceptible of two constructions, one of which makes it fair, customary, and such as a prudent man would naturally execute, while the other interpretation would make it inequitable, unnatural, or such as a reasonable man would not be likely to enter into, then the courts will approve the reasonable, logical and rationable [sic] interpretation.

Triple E Development Co. v. Floridagold Citrus Corp., 51 So.2d 435, 438-39 (Fla.1951).

First, the court erred in ignoring the $37,700 when computing the amount by which Lemon Tree could invade Huntington’s half share of the $75,000. The agreement with the developer originally provided that $37,700 would go into escrow for Lemon Tree’s use in building a wall. The escrow requirement was deleted and the $37,700 was added to the settlement amount of $155,000, for a total of $192,700. Similarly, the distribution agreement among the groups provided that what was the escrow money of $37,700 would be added to the $155,000, subtracted from the resulting $192,700, and given to Lemon Tree. The balance remaining after deducting the $37,700 and the amounts for the attorney, the mediator, and the umbrella groups would be shared equally by Huntington and Lemon Tree unless there were “additional costs” to Lemon Tree to build a wall. The “additional costs” were any costs over and above the $37,700. The goal was parity between Huntington and Lemon Tree, and since Huntington was getting a wall, Lemon Tree deserved a wall. In computing how much of the $75,000 to which Lemon Tree was entitled, the court should not have ignored the $37,700, because the $37,700 was set aside for Lemon Tree’s use in building a wall. Furthermore, the goal of parity would not be achieved by giving Lemon Tree $37,700 and a wall.

The court further erred in allowing Lemon Tree more than half the $75,000. The focus of the distribution agreement is not on monetary damages, but on a wall for Huntington and a wall for Lemon Tree. It is evident that the “object to be accomplished” was to place Lemon Tree on an equal footing with Huntington; Huntington’s wall would remove the indignity of the new development from its vista, and Lemon Tree deserved as much. That the focus was on an actual wall for Lemon Tree is evinced by the provision that Lemon Tree could invade Huntington’s half share of the $75,000 if its wall cost more than $37,700. To put it another way, under the distribution agreement, the amount to be shared by Lemon Tree and Huntington could not be computed until Lemon Tree met its first objective — obtaining a wall. The agreement does not state what should happen if Lemon Tree did not build a wall, but Lemon Tree cannot have it both ways. It cannot, on the one hand, be entitled to an actual wall even if it means invading Huntington’s share of the $75,000, and, on the other hand, be entitled to invade Huntington’s share based on the cost of a hypothetical wall.

The intent of the parties was to obtain an actual wall for Lemon Tree and to distribute the $75,000 depending on the extent to which, if at all, the actual cost of the wall exceeded $37,700. Under the distribution agreement, half of the $75,000 was to be distributed to Huntington “with the condition that the amount payable to Huntington on the Green is to be adjusted for any additional costs to Lemon Tree I of a wall on the Alhambra Lemon Tree I property line.” Because Lemon Tree elected not to build a wall, it did not incur “any additional costs” to build a wall, and, that being so, it was not entitled to more than half the $75,000. We therefore reverse the final judgment and remand with instructions to enter judgment for Huntington for one half the approximately $75,000, or to be precise, $74,812.92. If, as it appears, Huntington was disbursed a few hundred dollars, that amount will be deducted.

REVERSED and REMANDED, with instructions.

SAWAYA, C.J., and PLEUS, J., concur.

      . The issues on cross appeal are without merit.


text:
    Eric D. DOBSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3443.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2004.
    Rehearing Denied May 10, 2004.
    Eric D. Dobson, Polk City, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Brown v. State, 565 So.2d 369 (Fla. 1st DCA 1990).

PLEUS, PALMER and ORFINGER, JJ., concur.