author: ORFINGER, J.

text:
    Corine CHEVES and Vincent Cheves, Appellant, v. EQUICREDIT CORPORATION, Appellee.
    Nos. 5D02-2138, 5D02-2296.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Vincent Cheves and Corine Cheves, Apopka, Pro Se.
    Alan Rosenthal and Stephanie G. Kol-man of Adorno & Yoss, P. A., Miami, for Appellee.
   ORFINGER, J.

Corine and Vincent Cheves appeal an order granting Equicredit Corporation’s motion to enforce its writs of possession following foreclosure of its mortgage encumbering the Cheves’ residence. Having carefully considered the record, we find no evidence that the trial court abused its discretion in enforcing the writs of possession. See Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, 816 So.2d 658, 660 (Fla. 5th DCA 2002). It was the trial court’s duty, not this court’s, to determine whether or not the Cheveses were entitled to relief from the judgment of foreclosure. Church v. Strickland, 382 So.2d 419, 420 (Fla. 5th DCA 1980). We find no error in the trial court’s conclusion that the Cheveses were not entitled to be relieved from the foreclosure judgment, and that Equicredit was entitled to possession of the property. Accordingly, the order of the trial court is affirmed.

AFFIRMED.

PETERSON and MONACO, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Willard WEBSTER, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-3287.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Laura L. Whiteside of Advocacy Center for Persons with Disabilities, Tampa, for Appellant.
    Alan Abramowitz and Ralph J. McMur-phy of Department of Children and Families, Wildwood, for Appellee.
   ORFINGER, J.

Willard Webster appeals from a final order of the Department of Children and Families (DCF) Office of Appeal Hearings, upholding DCF’s decision not to purchase certain computer software for him. We affirm.

Mr. Webster, a profoundly developmentally disabled individual, obtains assistance available through Florida’s federally-approved home and community-based services waiver program authorized under the provisions of 42 U.S.C. § 1396n(c)(4)(B) (2002). While the efforts to obtain services for Mr. Webster by his family have largely been successful, DCF refused to provide certain computer software to assist with his language development skills, concluding that it was not “medically necessary” and did not constitute “durable medical equipment” as those terms are defined in the administrative regulations and program manuals.

Admittedly, the applicable statutes and regulations present a quagmire of almost indescribable complexity for both us and Mr. Webster’s family. Nonetheless, based on our examination of the record, it appears that DCF’s order is based on competent, substantial evidence, and that the agency’s construction of the applicable statutes and regulations is not clearly erroneous. See Republic Media, Inc. v. Dep’t of Transp., 714 So.2d 1203, 1205 (Fla. 5th DCA 1998). We find no merit in the other issue raised by Mr. Webster. Accordingly, we affirm the order on appeal.

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.


author: PER CURIAM.

text:
    US INSURANCE AGENCIES CO., et al., Appellants, v. G.H. STORY & COMPANY, INC., and Girard H. Story, Appellees.
    No. 5D02-2542.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Carlos R. Diez-Arguelles of Attorneys Trial Group, Orlando, for Appellant.
    John G. Pierce of John G. Pierce, P. A., Orlando, for Appellee.
   PER CURIAM.

U.S. Insurance Agencies Co. and Paul W. Smith, Jr. appeal an adverse judgment in favor of G.H. Story & Company, Inc., and Girard H. Story. Having carefully reviewed the record, we conclude that the final judgment is supported by competent, substantial evidence. Accordingly, we affirm the judgment.

AFFIRMED.

GRIFFIN, ORFINGER and MONACO, JJ., concur.


author: GRIFFIN, J.

text:
    Wardell M. SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1789.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Wardell M. Sanders, Holly Hill, pro se.
    Charles J. Crist, Jr., Attorney General, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Wardell M. Sanders [“Sanders”] appeals the summary denial of this third Rule 3.800(a) motion to correct an illegal sentence. Sanders pled no contest in 1998 to an August 1996 lewd and lascivious assault upon a child, a second-degree felony under section 800.04(1), Florida Statutes. He was sentenced on April 2, 1998, to 87.3 months, followed by five years of sex-offender probation. No direct appeal was filed.

He subsequently sought a writ of mandamus in this court, asking us to order the trial court to rescind the order entered at sentencing designating him a sexual predator. He explained in his petition that he sought mandamus because caselaw had established that there was no vehicle in Florida for a collateral attack on an illegal sexual predator designation. See generally Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003). He asserted that he did not meet the statutory requirements and lacked the necessary predicate convictions for designation as a sexual predator. His petition was denied without opinion.

Sanders then filed his first Rule 3.800(a) motion, seeking resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). At a hearing, defendant argued he was entitled both to hold to his plea and receive the bottom of the new guidelines. The trial court did not agree, and the State took the opportunity to withdraw the plea offer. The State made a new offer to Sanders of seventy-eight months in prison, followed by five years of probation. Sanders decided to enter another plea and he was sentenced as the State had offered. He appealed and this court per curiam affirmed. Sanders v. State, 796 So.2d 1189 (Fla. 5th DCA 2001).

He next filed his second Rule 3.800(a) motion, alleging only that the court erred in not honoring the decision of Buckingham v. State, 771 So.2d 1206 (Fla. 2nd DCA 2000), and continuing to assert that he should have been sentenced at the bottom of the 1994 guidelines range, as he was originally under the 1995 guidelines. The trial court denied relief, he appealed, and this court affirmed with a cite to Banck v. State, 798 So.2d 814 (Fla. 5th DCA 2001), Sanders v. State, 805 So.2d 1064 (Fla. 5th DCA 2002).

Sanders sought review in the Supreme Court of Florida, asking the court to review this court’s PCA with its cite to Banck. In an opinion addressing our defendant’s case and two others, the court held that its extraordinary writ jurisdiction could not be used to obtain review of per curiam decisions of the district courts of appeal which only affirm lower courts’ rulings with citations to opinions that: (1) are not pending before Supreme Court of Florida; (2) have not been reversed; and (3) do not note a contrary holding. Sanders’ petition was dismissed. Persaud v. State, 838 So.2d 529 (Fla.2003).

Now, in his third Rule 3.800(a) motion, his fourth collateral attack here upon his sentence, defendant asserts:

1. His sentence does not comply with Fla. R.Crim. P. Rule 3.702(d)(19), when read in conjunction with § 921.001(5), Fla. Stat.; and
2. The court did not orally designate him as a sexual predator at sentencing.

Neither of these issues has any merit. In the course of examining this sentence, however, we see reason to doubt whether Sanders does qualify as a sexual predator. We do not have enough in this record to make this determination, however. It does not appear that this issue ever has been considered on the merits, in part for reasons that relate to a quirk of law, see Nicholson, supra, and in part due to Sanders’ failure to appeal after his original sentencing. If the sexual predator designation is not legal, there may be a procedural avenue, such as a belated appeal, that remains available to him, depending on the facts.

AFFIRMED.

PETERSON and PLEUS, JJ., concur.


text:
    UNIFIED ARCHITECTURE & ENGINEERING, INC., Appellant, v. Richard S. WALDROP and Ellen M. Waldrop, Appellees.
    No. 5D03-557.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.

      Frederick R. Hardt and Marc A. Huling, of Roetzel & Andress, L.P.A., Naples, for Appellant.
    Elise A. Singer, Melbourne, for Appel-lees.
   PER CURIAM.

This is the appeal of a default final judgment. Appellee concedes that service of process on appellant was fatally defective. Accordingly, we reverse the judgment and remand for further proceedings.

REVERSED and REMANDED.

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Tracy McCANN, etc., Appellants, v. Randall J. WALKER, Appellee.
    No. 5D02-3257.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.

      Dougald B. Leitch, Mahaffey & Leitch, Oviedo, for Appellants.
    Bert W. Barclay, Barnett ■ & Barclay, P.A., Orlando, for Appellee.
   PER CURIAM.

Tracy McCann, the former wife, appeals a summary judgment in favor of Randall J. Walker, the former husband, that compels her to return to Florida with the parties’ minor children.

The parties agreed to the terms contained in a 1997 final judgment of,dissolution of marriage in which the former wife was awarded primary residential responsibility for the parties’ two minor children, but was required to reside within a twenty (20) mile radius of Clermont, Florida. The judgment also allowed the parties to obtain express written consent from the other or the court’s approval to relocate.

In 1998, the parties agreed to modify the 1997 final judgment to provide for the relocation of the former wife and children. In addition to granting the former wife’s petition to relocate, the modified judgment provided inter alia for a detailed visitation schedule for the former husband; modification when the children were removed from Florida or the state in which they were residing; and revision of visitation provisions if the relocating party returns to Florida.

The former wife remarried shortly after the dissolution of marriage and her new husband, a member of the National Guard, was called to active duty in Texas. The former wife and the children moved to Texas in 1998 as allowed by the modified judgment and thereafter resided in California, Oklahoma and Wyoming while her new husband was on active military duty. He completed his tour of active duty in 2001 and obtained a job in Cody, Wyoming, as an orthopedic physician’s assistant, an occupation for which he trained while in the service.

When the former husband learned that the new husband’s tour of duty was completed and the former wife notified him that the family would be residing in Wyoming, he petitioned the trial court for an order requiring the relocation of the children back to Florida. He alleged that there were substantial changes in circumstances since the modified order was entered including inter alia the new husband’s discharge from active duty. The trial court granted the former husband’s petition finding that the order modifying the .original final judgment of dissolution was ambiguous and that it was necessary to review the former wife’s original petition to relocate in order to resolve the ambiguity.

This court in BJ of Leesburg, Inc. v. Coffman, 642 So.2d 83, 84 (Fla. 5th DCA 1994), citing Boynton v. Canal Authority, 311 So.2d 412, 415 (Fla. 1st DCA 1975), held that “[i]f the language employed in a judgment is plain and unambiguous, there is no room for construction or interpretation and the language must be given its literal meaning.” Only where the language is ambiguous, where more than one literal interpretation is reasonable, is construction and interpretation permissible. Boynton, 311 So.2d at 415. “In construing a judgment ... the adjudication should not extend beyond that which the language used fairly warrants, since the purpose and function of construction is to give effect to that which is already latent in the judgment, and the Court may not by construction add new provisions to a judgment which were omitted or withheld in the first instance.” Id. “[T]he legal operation and effect of a judgment must be ascertained by construction and interpretation of its terms, and this presents a question of law.” Id. Questions of law are subject to de novo review. See, e.g., Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999).

Our review of the 1998 modified final judgment does not support the trial court’s finding that the language allowing relocation was ambiguous. There is also no support for the notion that the modification could reasonably be interpreted to have effect only while the former wife’s new husband was on active military duty. To the contrary, review of the entire modified judgment supports the former wife’s assertion that the language was unambiguous. We note the modified judgment includes: a visitation schedule for the former husband and children, provisions for sharing the cost of transportation associated with the visitation schedule, as well as a notification requirement for future moves by the former wife. We further note that the modified judgment specifically provides that “[t]he visitation provisions set forth herein shall be revised if the party who has relocated outside of the state of Florida returns to the state of Florida.” (emphasis added).

Absent from the modified judgment are any restrictions placed on the former wife which would require her to return to Florida at some future point or at the occurrence of some event (such as her new husband’s discharge from active military duty). In addition, there is no language in the modified judgment which would trigger the expiration of the modified judgment and cause the parties to revert to the mandates of the original final judgment. The modified judgment contemplates only that should a party, not necessarily the former wife, elect to later return to Florida, the contact schedule outlined in the modified judgment would be revisited by the trial court.

We disagree with the trial court’s conclusion that an ambiguity exists in the modified judgment and that it was necessary to revisit pleadings leading to the same for the purpose of resolution. We also disagree with the conclusion that the effect of the modified judgment was only to temporarily lift the geographical restrictions set forth in the original final judgment. Finally, we have found nothing in the record that would authorize the reim-position of the original final judgment of dissolution of marriage.

Having found no ambiguity in the modified judgment, we vacate the Order Granting Petitioner/ Former Husband’s Motion for Summary Judgment and Order Denying Respondent/ Former Wife’s Motion for Summary Judgment and the Order Denying Respondent/ Former Wife’s Counter-Petition to Modify Final Judgment of Dissolution of Marriage and Order Denying Respondent/ Former Wife’s Request to Relocated Primary Residence of the Minor Children to Wyoming.

ORDER VACATED.

PETERSON, THOMPSON and TORPY, JJ., concur.


author: ORFINGER,J. . .

text:
    Terry L. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1233.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.

      Terry L. Young, Raiford, Pro Se.
    No Appearance for Appellee.
   ORFINGER,J. . .

Terry L. Young was convicted in 1985 of sexual battery on a person less than twelve years of age, in violation of section 794.011(2), Florida Statutes (1983). The State appealed his sentence, and Young cross-appealed his conviction. The State obtained relief; Young did not. State v. Young, 579 So.2d 380 (Fla. 5th DCA 1991). After his resentencing, Young did not appeal.

Young now appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Counting both his state and federal cases, this is his thirteenth collateral action in the courts regarding his 1985 conviction. Young’s argument this time is either the same argument he has made before in our case nos. 5D92-1110, 5D95-2285, and 5D00-333, or a slight variation thereof. As a result, this court issued a Spencer show cause order, asking why Young should not be denied further pro se access to this court for any proceedings to further attack his 1985 conviction and sentence. Young marshaled many arguments in response, none of which changes our initial conclusion that this appeal is frivolous and an abuse of process. As it has for others, the number thirteen has proven to be unlucky for Young. See Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003); Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995) (“The number thirteen proves unlucky for petitioner.”); see also Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); O’Brien v. State, 689 So.2d 336, 337 (Fla. 5th DCA 1997) (Criminal Appeal Reform Act of 1996 establishes intent of Legislature that the terms and conditions of collateral review and procedural bars to collateral review be strictly enforced).

Because his appeals are dissipating limited judicial resources, and we expect they will continue, Terry L. Young is prohibited from fifing with this court any further pro se pleadings or papers concerning Circuit Court Case No. CR85-2897. Any further pleadings or papers regarding that case will be summarily returned by the Clerk of this Court, unless that pleading or paper is filed by a member in good standing of The Florida Bar.

AFFIRMED.

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

      . State v. Spencer, 751 So.2d 47 (Fla.1999) (court can restrict future pro se pleadings for good cause if it first provides a pro se litigant notice and an opportunity to respond).


text:
    Cecilia DAVIS, etc., Appellant, v. ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS, etc., et al., Appellees.
    No. 5D02-817.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Madison B. McClellan, Linda L. Weiks-nar, of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, Stuart, and Russell S. Bohn, and Dirán V. Seropian, of Caruso & Burlington, P.A., West Palm Beach, for Appellant.
    Jeanelle G. Bronson and Stephen P. Matzuk, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellee, Orange County Board of County Commissioners.
    No Appearance For Appellees, Dollar Rent A Car Systems, Inc., Walden Auto Leasing, III, Inc., JSK Trucking, Inc., Jose Das Gracia Guimaraes and Diamond Transportation Services, Inc.
   GRIFFIN, J.

Cecilia Davis [“Davis”], as personal representative of the estate of her deceased daughter, appeals a summary final judgment rendered in favor of the Orange County Board of Commissioners [“Orange County”] in a wrongful death action she filed against Orange County and others arising out of a motor vehicle accident. Davis alleged that Orange County had undertaken by contract to trim certain bushes and overgrowth on a parcel of privately owned property adjacent to the intersection where the accident occurred and that Orange County’s failure to properly maintain the bushes had created a visual obstruction that caused the accident.

We reverse because Orange County has not made the required showing that there are no material facts in dispute and that Orange County was entitled to judgment as a matter of law. Orange County contends that there is no contract but has made no such record showing. The record reflects that the trial court was led into erroneously granting the summary judgment based on the plaintiffs failure to timely answer certain requests for admission filed by another party. Commendably, Orange County does not rely on the admission on appeal. This admission was not applicable to the plaintiffs claim against Orange County because its requests for admission were timely answered and its request that Davis admit a lack of duty on the part of Orange County was denied.

We reverse the summary final judgment and remand for further proceedings.

REVERSED and REMANDED.

PALMER, J., and BARLOW, T.M., Associate Judge, concur.


author: MONACO, J.

text:
    Dionne TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-314.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    James Sweeting, III, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Dionne Taylor appeals the order of the trial court denying her motion to withdraw her negotiated plea of guilty to neglect of a child causing great bodily harm, permanent disability, or permanent disfigurement. The withdrawal of a guilty plea is a question addressed to the sound discretion of the trial court. Unless an abuse of that discretion is shown, the determination not to allow the plea to be withdrawn must be affirmed. See Davis v. State, 783 So.2d 288 (Fla. 5th DCA 2001).

We have thoroughly reviewed the transcript of the plea dialogue, as well as the transcript of the evidentiary hearing on the motion to withdraw the plea. As we find no abuse of discretion, we affirm.

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.


text:
    Brandon C. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1560.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    Brandon Johnson, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The order denying the defendant’s Rule 3.800(a) motion to correct an illegal sentence is reversed and remanded for the attachment of portions of the record to support the denial. The defendant alleged a prima facie claim that he was improperly placed on drug offender probation. The trial court denied the motion on the merits but failed to attach portions of the record to support the denial order. Portions of the record supporting the denial of a Rule 3.800(a) motion must be attached to the denial order if a prima facie case is made. See Wright v. State, 830 So.2d 263 (Fla. 5th DCA 2002); Bunch v. State, 622 So.2d 525 (Fla. 5th DCA 1993).

REVERSED and REMANDED.

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


author: THOMPSON, J.

text:
    S.L., Father of M.L. and S.P.L., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-2593.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Jodi Abramowitz, Orlando, for Appellee.
   THOMPSON, J.

S.L. (“father”) appeals the trial court’s placement of his children, M.L. and S.P.L., in the joint custody of the mother and the maternal grandparents. We affirm.

The children were removed from the parents because of severe violence between the mother and the father in the presence of the children. In August 2001, the children were adjudicated dependent and placed with the maternal uncle. Both parents are mentally challenged, and each parent was provided a case plan. The mother completed her case plan and moved for reunification. At that time, the father lacked eight weeks to complete his case plan. The trial court denied reunification with the mother and decided that placement would be determined at a review hearing on 28 May 2002. At the 28 May hearing, the trial court denied the mother’s motion for reunification because the court found that she could not effectively parent. The trial court stated that it would make a placement determination after the father completed his case plan. At the guardian ad litem’s recommendation, the trial court placed the children with the maternal grandparents and the mother.

Another review hearing was held on 5 August 2002. At the hearing, the guardian ad litem recommended that the children remain with the mother and the maternal grandparents. The guardian ad litem stated that there was safety in numbers and that the mother wohld have the help of the maternal grandparents and the mother’s aunt and uncle. The guardian ad litem stated that the father did not have as many people to assist him. The trial court stated that based on the parents’ psychological reports, it was not sure the children should be reunited with either parent and it did not think the mother was capable of full-time parenting.

After testimony, the trial court ruled that it was inclined to follow the recommendations of the guardian ad litem and the department that the children be placed jointly with the mother and the maternal grandparents, with uhsupervised visitation for the father. When asked whether this was a long-term placement, the trial court replied that it was not long-term, but would last for six months until the next scheduled hearing.

On appeal, the father contends that he was entitled to custody of the children because the parent is preferred in the law over more distant relatives. The father cites Hammond v. Howard, 828 So.2d 476 (Fla. 5th DCA 2002), in which we held that “where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showing that the parents are unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child’s welfare.” Hammond has no bearing on the instant case because these children had been adjudicated dependent as to both parents. In dependency cases where the issue is whether a child should be reunited with a parent, the court must determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home. § 39.522(2), Fla. Stat. Further, even if the stated rule in Hammond applied in this ease, the trial court had the discretion to place the children with the grandparents “if there was a showing that the parents were unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child’s welfare.” Hammond, 828 So.2d at 478.

Additionally, the trial court has many options for placing a dependent child, and placement can include the protective supervision of the department in the home of one or both of the parents or with a relative. L.F. v. Department of Children and Family Services, 837 So.2d 1098, 1101-1102 (Fla. 4th DCA 2003); § 39.521(l)(b)3, Fla. Stat. “Grandparent” is included in the definition of “relative.” § 39.01(48), Fla. Stat. In the instant case, the department had stated, at a previous hearing, that placing the children with the father would require only weekly visits from the department to ensure the safety of the children. However, the trial court had valid concerns regarding the children’s safety if placed with the father, and it acted within its discretion by denying placement of the children with the father at that time. See B.D.E. v. Department of Children and Family Services, 829 So.2d 359 (Fla. 1st DCA 2002) (affirmance is required where trial court, is on objectively reasonable grounds, less than satisfied that reunification will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health).

AFFIRMED.

PALMER and TORPY, JJ., concur.


text:
    CARNEGIE GARDENS NURSING CENTER, Appellant, v. Melissa BANYAI, Appellee.
    No. 5D02-2070.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.

      Jeremy K. Markman of Grower, Ketch-am, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellant.
    W. Clay Mitchell, Jr. of Morgan, Colling, & Gilbert, P.A., Orlando, for Appellee.
   THOMPSON, J.

Carnegie Gardens Nursing Center (“Carnegie Gardens”) appeals an order summarily denying it’s claim to worker’s compensation immunity for an incident in which Melissa Banyai, a subcontractor employee, was injured on Carnegie Gardens’ premises. We reverse.

Melissa Banyai was an occupational therapist working at Carnegie Gardens pursuant to a contract between Carnegie Gardens and Banyai’s employer, Novacare. At her deposition, Banyai testified that on 14 May 1998, when she finished working with a resident at Carnegie Gardens, she was walking down the main hallway of the facility and fell on a sticky spot. Banyai hurt her wrist and neck and subsequently needed surgery. At her deposition, Ban-yai testified that she had filed a suit for worker’s compensation benefits and that her medical bills were being paid through worker’s compensation. Banyai testified that it had been determined that she was permanently disabled and would receive disability benefits for the rest of her life.

Banyai sued Carnegie Gardens for damages arising out of the fall, and Carnegie Gardens unsuccessfully moved for summary judgment arguing that it was an employer entitled to worker’s compensation immunity. On appeal, Carnegie Gardens argues that it is entitled to worker’s compensation immunity because Banyai was, in essence, its employee. Carnegie Gardens reasons that because Banyai received worker’s compensation benefits from the staffing agency, Novacare, she is barred from pursuing a negligence suit against Carnegie Gardens. We agree.

A contractor may be immune from suit where worker’s compensation has been paid on behalf of the subcontractor. See Yero v. Miami-Dade County, 838 So.2d 686, 687 (Fla. 3d DCA 2003) (holding the subcontract relationship made the main contractor a statutory employer of subcontractor’s employees, and where subcontractor had secured worker’s compensation for its employees and paid benefits to injured employee, contractor was immune to wrongful death suit); see also § 440.10(l)(b), Fla. Stat. In the instant case, Banyai was employed by Novacare, who provided her worker’s compensation coverage. As in Yero, because of this contractual relationship between Carnegie Gardens and Novacare, Carnegie Gardens was the statutory employer of Banyai. And, because Banyai was provided worker’s compensation benefits under Nova-care’s coverage, Carnegie Gardens is immune from suit. See Delta Air Lines, Inc. v. Cunningham, 658 So.2d 556 (Fla. 3d DCA 1995).

Banyai also argues that because she was not actually performing a job duty when she was injured and because she was walking down a hallway available for public use, Carnegie Gardens is not immune from liability. We also disagree with this contention.

This issue was addressed in Vigliotti v. K-Mart Corp., 680 So.2d 466 (Fla. 1st DCA 1996). In Vigliotti, after her shift, but before leaving the store, the employee fell on something on the floor on a path designated for K-Mart employees entering and exiting the store. In addressing whether an employee had to be literally performing work at the time of injury, the district court stated:

We have considered carefully K-Mart’s contention that the phrase “work performed” must be construed to include only actual performance of primary job duties by an employee ... Indeed, K-Mart’s construction would lead to expensive and time consuming judicial inquiry in a broad range of cases that are now undoubtedly handled administratively without the intervention of attorneys. Scenarios discussed in the briefs and at oral argument included a roofer injured while climbing down a ladder at the end of his shift and a clerical worker injured while taking a restroom break. Under K-Mart’s view, employers would be completely free to argue in such cases that work performed did not contribute to the injury, and hearings would then be required on this issue. Such a procedure would be neither efficient nor self-executing.

Id. at 467. The district court held that the employee suffered an injury while in the course of employment and defined the “premises rule:”

[ A]n injury is deemed to have occurred in the course and scope of employment if it is sustained by a worker, on the employer’s premises, while preparing to begin a day’s work or while doing other acts which are preparatory or incidental to performance of his or her duties, and which are reasonably necessary for such purpose.

Id. at 468-469. In this instance, Banyai’s walking down a hallway while still on shift after working with a patient was incidental to the performance of duties.

The order ruling that Carnegie Gardens was not entitled to worker’s compensation immunity is reversed.

REVERSED.

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

      . Section 440.10(l)(b), Florida Statutes, provides:
      In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.


author: PETERSON, J.

text:
    Dallas PINKARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3543.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Dallas Pinkard appeals his judgment and sentence following the return of a jury verdict finding him guilty of one count of misdemeanor battery, the sole charge against him. We find Pinkard’s argument that the circuit court lacked subject matter jurisdiction to enter judgment on the misdemeanor battery dispositive of this appeal and quash the judgment.

Pinkard was first charged in the Osceola County Court with one count of battery under case number DM 02-000423 pursuant to section 784.03, Florida Statutes (2002). The State then filed an amended information in the circuit court under case number 02-DF 246 charging Pinkard with one count of battery with one previous conviction for battery, a third-degree felony. A notation appears on the amended information as follows:

This information encompasses the transaction and all charges listed on Complaint Number DM02-000423 and the bond thereon is hereby superseded. The Osceola County Sheriffs Office and the Osceola County Dept, of Corrections shall substitute the charge(s) and bond indicated on the information for those on the above cited complaint.

The record contains the jury instructions and the jury verdict, both of which bear the caption of the circuit court and the circuit court case number.

When the parties appeared for trial, it is clear that the circuit court was in session with a county court judge assigned as an acting circuit court judge. The State announced that it was ready to proceed only on the misdemeanor count of battery and explained that because that offense is a lesser included offense of the third-degree felony, it had not filed an amended information. The trial court explored the reason for the State’s announcement and learned that the State could not prove the previous battery required to enhance the instant offense to a third-degree felony.

The trial court then announced that it was proceeding with the original information but said that it would “still have to read the actual D.F. [circuit court] case number. I don’t think it’s going to make any difference, but I’ve got to read it.”

We disagree with the trial court. The original information filed in the county court had been superseded by the amended information filed in the circuit court charging Pinkard with a third-degree felony. The State’s decision to dispense with filing a second amended information in the county court because a simple battery is a lesser included offense of a third-degree felony battery did not breathe life into the original information, nor did this transfer the action back to the county court.

In Short v. State, 767 So.2d 575 (Fla. 5th DCA 2000), both felony and misdemeanor charges had been filed in the circuit court. The state announced at the beginning of trial that it was proceeding only on the misdemeanor charges. Defense counsel objected on the grounds that the circuit court had no jurisdiction over a case solely involving misdemeanors. The circuit court determined that it had jurisdiction and allowed the trial to proceed. The jury found the defendant guilty of the one misdemeanor charge actually tried and judgment was entered. This court reversed the conviction:

Because the Circuit Court has no jurisdiction to try misdemeanors in the absence of a felony, the judgment itself is a nullity.
The discussion between the court and counsel ... indicates that the judge may have been proceeding in his capacity as a temporarily assigned county judge. But while a cross-assigned circuit judge may sit as a county court and try issues properly before the county court, he may not try those issues in the capacity of a circuit court regardless of the cross-assignment. The jurisdiction of the various courts cannot be changed by the assignment of judges.
Perhaps the Judgment reflecting that it was entered by the Circuit Court was merely a clerical error and the Clerk of Court should have reflected the County Court instead. If so, this appeal should have been taken to the Circuit Court and not here.

Id. at 575-76. This court held in Short that the judgment was a nullity and quashed it. The same result obtains here.

We find nothing in the record that would serve as a re-transfer of the charges against Pinkard from the circuit court back to the county court. More specifically, the jury received instructions as though it was in the circuit court, the jury verdict form indicates that it was rendered in the circuit court and the judgment and sentence bears the circuit court case number. Notwithstanding, we note the judgment and sentence is captioned “In The County Court....” We conclude that the action was a circuit court proceeding that bears a flavor of the county court only by confusion of the caption in the judgment and sentence, which caption was either a misnomer or an attempt to resolve the confusion after the fact.

The judgment and sentence are quashed.

Judgment and Sentence QUASHED.

SHARP, W. and TORPY, JJ„ concur.

      . § 784.03(2), Fla. Stat. (2002).


author: RAMIREZ, J.

text:
    Andras POTA, etc., et al., Appellants, v. Kenneth HOLTZ, M.D., Appellee.
    No. 3D02-1095.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.

      Ginsberg & Schwartz, Arnold R. Ginsberg, Miami, and John W. Fowler, for appellants.
    Houck, Hamilton & Anderson, and Gregory A. Reed, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Andras Pota, as personal representative for the estate of his infant son Barnabas Pota, appeals a non-final order granting Kenneth Holtz, M.D.’s motion to dismiss for lack of personal jurisdiction. We reverse because we conclude that Dr. Holtz was personally served with process in Miami-Dade County when the suit papers were delivered to his attorney on board a vessel docked at the Port of Miami.

Andras Pota and his wife Marianne are residents of Hungary, who purchased and sailed on a cruise from Miami aboard Royal Caribbean’s “Voyager of the Seas.” Marianne was then twenty-six weeks pregnant. Four days into the cruise, Marianne began complaining of stomach cramps. The ship’s doctor, Dr. Holtz, took blood and urine samples. He diagnosed a bladder infection and prescribed an antibiotic. That evening, Marianne began having contractions and started to bleed. Dr. Holtz performed a gynecological examination and determined that the cervix was closed. Royal Caribbean denied the Potas’ request to be airlifted to Grand Cayman Island, the nearest hospital. Dr. Holtz told them that everything would be all right and that Marianne could go to a medical facility in Cozumel when the ship docked there.

In the early morning hours of the next day, Marianne’s water broke and she began giving birth. During the birthing process, the ship docked in Cozumel and Marianne was taken by ambulance to a clinic. Barnabas Pota was born alive, but died a few hours later.

The Potas, individually and as personal representative of Barnabas’ estate, filed suit against Royal Caribbean and Dr. Holtz for wrongful death, medical malpractice, personal injury, negligent and intentional infliction of emotional distress. Several attempts to serve Dr. Holtz were unsuccessful. Royal Caribbean’s counsel agreed to facilitate service on Dr. Holtz so that personal service could be had.

On an agreed date, the process server met Royal Caribbean’s counsel at the gangway to the “Explorer of the Seas,” the ship on which Dr. Holtz was then working, while it was docked at the Port of Miami. Attorney Hamilton was also present and stated that he was now Dr. Holtz’s attorney and authorized to accept service on Dr. Holtz’s behalf, but would only accept service on board the ship. Attorney Hamilton acknowledged that he was authorized to accept service of process on behalf of Dr. Holtz and he was served pursuant to that authority. Counsel, however, noted on the summons that Dr. Holtz did not waive objections to service of process, sufficiency of service, or personal jurisdiction.

Concerned that service would later be challenged, Pota requested a ruling from the trial court. The trial court held that proper service had been effectuated and ordered that no challenge to service would be entertained. The trial court vacated its order a month later, pending a ruling on Dr. Holtz’s motion to dismiss for lack of personal jurisdiction.

After hearing Dr. Holtz’s motion to dismiss, the trial court expressed its displeasure with defense counsel, stating that they had acted in bad faith by previously assuring the court that there would be no problem with service. Dr. Holtz’s counsel stated that his client had been personally served, but that no personal jurisdiction existed because the Potas had not fulfilled Florida’s long-arm statute requirements. Defense counsel withdrew its motion to dismiss for lack of personal service and to quash service of process. The trial court reluctantly granted Dr. Holtz’s motion to dismiss, basing its order on Elmlund v. Mottershead, 750 So.2d 736 (Fla. 3d DCA 2000). We cannot agree that the Elmlund case controls because that case involved substituted service and we conclude that Dr. Holtz was personally served. We thus reverse the order dismissing this case.

Personal service is sufficient to confer personal jurisdiction. See Campo v. Tafur, 704 So.2d 730 (Fla. 4th DCA 1998). As stated in Keveloh v. Carter, 699 So.2d 285, 288 (Fla. 5th DCA 1997), the general rule is that “Florida courts have personal jurisdiction over nonresidents when that nonresident is properly served with service of process while voluntarily present in the state,” citing to Burnham v. Superior Court of California, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990); and Garrett v. Garrett, 668 So.2d 991, 994 (Fla.1996) (Wells, J. concurring). Dr. Holtz authorized his attorney to accept personal service and his attorney acknowledged that Dr. Holtz had been personally served. Counsel could not accept personal service and in the same breath challenge that very service. The failure to comply with Florida’s long-arm statute requirements for substituted service is therefore irrelevant.

Dr. Holtz withdrew his motion to quash service of process in the trial court without discussion and thereby waived any argument on that issue. Regardless, Dr. Holtz now argues that because the ship where service was had is registered in Liberia, process must be effectuated according to Liberian law and cites to Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) for the proposition that the law of the flag supersedes territorial jurisdiction. Lauritzen dealt with a Danish seaman suing his ship’s Danish owner for a tort committed in Cuban waters. The Supreme Court held that a state was not debarred from governing the conduct of its own citizens, even in foreign countries, when the rights of other nations and their nationals are not thereby infringed. Id. at 587, 73 S.Ct. 921. In this case, Liberia could impose Liberian law on its citizens aboard a Liberian vessel, even if the vessel is within the jurisdiction of another country. However, that does not preclude Florida from asserting jurisdiction over persons on board a foreign vessel; vessels subject themselves to the law which governs the ports they visit. United States v. Marino-Garcia, 679 F.2d 1373, 1380 n. 11 (11th Cir.1982). The motion to quash service of process for failure to follow Liberian law would have been properly dismissed.

Dr. Holtz argues on this appeal that he was not served within the trial court’s jurisdiction, i.e., Florida, because service took place aboard a foreign-flagged vessel. Dr. Holtz would have us impart the sovereignty of a foreign embassy to a foreign vessel docked in Miami. We reject this argument. A Liberian vessel moored at a dock in the City of Miami is within the State of Florida, not Liberia. In Benson v. Norwegian Cruise Line Ltd., 834 So.2d 915 (Fla. 3d DCA 2003), we held that medical malpractice aboard a cruise ship registered in a foreign country, but 11.7 nautical miles east of the Florida shore when the malpractice occurred, was within Florida’s territorial waters. If a ship eleven miles off shore is within Florida, one docked at the Port of Miami surely is. Thus, because “Explorer of the Seas” was in Florida, the process server could have boarded that ship and served Dr. Holtz personally. Instead, by agreement of counsel, service was effected on Dr. Holtz’s attorney.

We therefore hold that personal jurisdiction over Dr. Holtz was attained through personal service and that the service was proper.

Reversed.

      . The suit was filed in Miami-Dade County according to the forum selection clause on the passenger ticket.

      . Royal Caribbean was obligated to defend Dr. Holtz pursuant to the terms of his employment contract.


author: SHAHOOD, J.

text:
    HTS INDUSTRIES, INC., d/b/a Hal’s Towing and T.W.O.B.C., Inc., d/b/a All Points Towing, Appellants, v. BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 4D02-4588.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.

      Scott W. Rothstein and Michael A. Pander of Rothstein, Rosenfeldt, Dolin & Pander, P.A., Fort Lauderdale, for appellants.
    Edward A. Dion, County Attorney for Broward County, Andrew J. Meyers, Chief Appellate Counsel, Tamara M. Scrudders, and James D. Rowlee, Assistant County Attorneys, Fort Lauderdale, for appellee.
   SHAHOOD, J.

The issue presented in this appeal is whether appellee, Broward County, a political subdivision of the State of Florida can, by ordinance, regulate amounts charged by tow truck operators for storage after non-consensual towing or is it preempted by federal law from enacting and enforcing such an ordinance. The trial court held in granting appellee’s motion for temporary injunction and in denying appellant’s motion to dissolve temporary injunction, that the applicable federal statute did not preempt the enactment and enforcement of the Broward County ordinance. We agree and affirm the trial court’s rulings.

Broward County (“the County”) enacted an ordinance in 2002 which for pertinent purposes of this appeal, established the maximum fee a tow truck company which performs non-consensual tows may legally charge for storage. See § 20-176.29, Bro-ward County Code. The ordinance states that:

(a) The Broward County Commission shall establish maximum rates for providing recovery, nonconsensual towing, immobilization, removal and storage services at the request of a property owner or such property owner’s authorized representative, without the prior consent of the vehicle owner or other authorized person in control of the vehicle. The rates established shall be uniform throughout unincorporated and incorporated Broward County, except where municipalities have established differing maximum rates for their jurisdictions. From time to time, the rates established by the Commission may be altered, revised, increased or decreased.
(b) Persons who provide services pursuant to this section shall not charge in excess of the maximum allowable rates established by the Commission. No person providing services pursuant to this section shall charge any type of fee other than the fees for which the Commission has established specific rates, (c) Storage charges shall be permissible according to the applicable provisions of the Broward County Administrative Code. The rate of storage charges shall be stated at the time the vehicle arrives at the storage facility. The time of arrival shall be accurately noted on the appropriate storage log.

Broward County, Fla., Code § 20-176.29 (Jan. 22, 2002).

Sections 125.0108(c) and 166.043(c), Florida Statutes (2002), enable the county to enact such an ordinance.

The Broward County Consumer Protection Board (the Board) is the agency charged under the Broward County Code with the enforcement of the ordinance.

Subsequent to the enactment of the ordinance, the Board charged the appellants with charging excessive storage fees in the performance of twenty non-consensual tows by one appellant, and four non-consensual tows by the other appellant, and issued cease and desist orders to both appellants. Both appellants acknowledged charging in excess of and in addition to the fees established by the county. However, they asserted that the ordinance was invalid, arguing that the County lacked the authority to regulate local non-consensual storage fees.

The County then filed the instant actions for permanent injunctive relief and for civil penalties against the appellants for violating the ordinance. Thereafter, the County filed an emergency motion for temporary injunction to enjoin the appellants from charging storage fees in excess of those allowable under the County ordinance, alleging that Broward County residents are facing irreparable injury through the continued violations by the appellants of the ordinance; that Broward County residents are without an adequate remedy of law; and that the County demonstrated a substantial likelihood of success on the merits based on the plain wording of the applicable federal statutes indicating that local governmental bodies had the authority to enact legislation establishing the maximum costs tow companies could charge for both the non-consensual tows, and the storage of these vehicles.

An evidentiary hearing was held at which time the appellants conceded that they were repeatedly violating the towing ordinance, admitting that in non-consensual tows, they charged amounts in excess of that allowed under the ordinance.

The sole argument raised by the appellants at the hearing and on appeal was that the County did not have the authority to regulate any costs for towing non-consensual vehicles, other than the actual cost for towing. The appellants argued that the applicable federal statute, 49 U.S.C.A. § 14501(c), preempted any state or local governmental bodies from enacting any legislation affecting any of these additional towing costs, and therefore the appellants stated they would continue to charge the additional fees in the absence of an order or injunction to the contrary.

The trial court orally announced at the hearing that it was granting the County’s temporary injunction, believing that it would be “inconceivable” that the County could establish the maximum fees for the towing costs of non-consensual vehicles, but not all other costs that could be charged before an owner or operator could retrieve his or her vehicle from storage.

Thereafter, the trial court entered its order granting the motion for temporary injunction and ordered the appellants to fully comply with the storage rates set forth in the ordinance. The appellants then filed a motion to dissolve the temporary injunction which the trial court denied.

The Supremacy Clause of the United States Constitution declares that “the laws of the United States ... shall be the supreme law of the Land ... any thing in the Constitution or Laws of any State to the contrary notwithstanding.” U.S. Const, art. VI, cl. 2. As a consequence, any and all state and local laws that conflict with the dictates of federal law must yield to this doctrine and are preempted. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) (1824).

State and local regulations established under the traditional police powers of states are not superseded by federal law unless preemption is the clear and manifest purpose of the federal statute. See City of Columbus v. Ours Garage and Wrecker Serv., Inc., 536 U.S. 424, 432, 438, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002); Lewis v. Brunswick Corp., 107 F.3d 1494, 1500 (11th Cir.1997), abrogated on other grounds, Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). In areas historically regulated by the states through their police powers, the Court must apply a presumption in favor of a narrow interpretation of any express preemption clause. See Lewis, 107 F.3d at 1500 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). Any doubts must be resolved in favor of non-preemption. See Lewis, 107 F.3d at 1501.

Congress enacted the Federal Aviation Administration Authorization Act of 1994 (“FAAA Act”), which became codified as part of the Interstate Commerce Act (“ICA”) effective January 1, 1995. See P.L. No. 103-305, 108 Stat. 1569, 1607 (1994). Section 601 created a “general rule” that:

[ A] State, [or] a political subdivision of a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property.

49 U.S.C.A. § 11501(h)(1995). Although the Act created some exceptions to this general rule authorizing state regulation, none of these exceptions concerned towing services. See 49 U.S.C.A. § 11501(h)(2)-(3). Thereafter, Congress passed the Interstate Commerce Commission Termination Act (“ICCTA”), which took effect on January 1, 1996. See P.L. No. 104-88. Section 103 of the ITTCA recodified former § 11501(h) as 49 ' U.S.C.A. § 14501(c)(1), with no alteration of the “general rule” preempting the state and local regulation of prices, routes, and services provided by motor carriers that transport property.

However, the ICCTA added three new exceptions to the general rule created by section 14501(c)(1):

(2) Matters not covered. [14501(c)(1) ]—
(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum, amounts of financial responsibility relating to insurance requirements and self-insurance authorization;
(B) does not apply to the transportation of household goods; and
(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.

The parties agree that section 14501(c)(1) generally preempts state and local regulation of the towing industry. However, the parties disagree over whether the fees charged at storage facilities may be established by the Broward County ordinance. It is clear that neither of the first two exceptions would permit the County to enact an ordinance imposing a ceiling on storage fees and other costs, other than the towing cost which the appellants do not question. Regarding the third exception, the appellants argue that it is “blatantly clear that a storage fee is not a fee for ‘transportation by a tow truck.’ ”

The County, to the contrary, argues that 49 U.S.C.A. § 14501 does not evince a clear manifest intent to preempt local regulation of storage or other fees incident to non-consensual towing. We agree.

Section 49 U.S.C.A. § 13102(21), addressing Interstate Transportation, defines “transportation” to include:

(A) a motor vehicle ... related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including ... storage ...

49 U.S.C.A. § 13102(21)(A)-(B)(2002) (emphasis added).

It is clear therefore that the transportation of a vehicle, including the storage of a vehicle, has been left by Congress to the State and local governing bodies to regulate. See Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 771 (2d Cir.1999) (noting that the common definition of transportation “ignores the broader statutory definition that Congress intended to apply to § 14501” as expressed by § 13101[21] ... “the statutory definition explicitly broadens ‘transportation’ to include storage .... ”)(emphasis added).

We accordingly hold that the applicable federal statutes, the FAAA Act and the ICA, together with the subsequently enacted ICCTA, do not preempt the enactment and enforcement of the Broward County ordinance regulating the amounts charged by tow truck operators for storage after non-consensual towing.

AFFIRMED.

KLEIN and HAZOURI, JJ., concur.

      . " 'Non Consensual' towing services occur when law enforcement or other local authorities determine that a vehicle must be towed and the owner of the vehicle is not afforded the opportunity to request towing services from a specific company.” R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 541 n. 2 (11th Cir.1998).


author: WELLS, Judge.

text:
    Oscar Sebastian BENITEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2461.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   WELLS, Judge.

Oscar Benitez was convicted of one count of practicing architecture without a license and one. count of grand theft. He appeals solely from his conviction for grand theft. We reverse.

Benitez’ grand theft conviction arises from a contractual relationship between Benitez and Juan and Lourdes Piloto. Shortly after their marriage, the - Photos contacted Benitez, one of Mr. Piloto’s friends, about doing some renovations to their bedroom and bathroom and for construction of a pool, deck and fence. Beni-tez, a licensed contractor and architect whose architect’s license, unbeknownst to the Pilotos, had lapsed, met with the Pilo-tos and prepared a proposal for the requested renovations and new construction. Benitez estimated the cost of the requested renovations and new construction as approximately $51,000.

The Pilotos advised Benitez that they intended to pay for the project by -refinancing their home and that the most that they could obtain was approximately $37,000. Based on these representations, Benitez reworked the proposal to bring it within the Pilotos’ $37,000 budget.- On May 12, 1998, the parties executed an agreement pursuant to which Benitez was to perform the work described in his revised proposal for approximately $37,000.

In addition to the $37,000 proposed cost of the project, Benitez charged the Pilotos $3,000 to prepare the necessary blue-prints for the project, blueprints which he signed and sealed as a licensed architect. These plans ultimately were approved by the City of Hialeah which then issued the necessary permits.

In late July of 1998, the Pilotos insisted that demolition work begin even though building permits had not yet been issued. Benitez opened the rear wall of the Pilotos’ home and began digging the pool. Thereafter little progress was made on the interior renovations; the pool initially failed inspection; and it soon became apparent that the project could not be completed within the $87,000 budget. Construction stopped. By that time, Benitez had collected approximately $27,000 of the $87,000 contract price.

The Pilotos filed a complaint with the City of Hialeah and brought a civil suit against Benitez which they subsequently dismissed. In June 1999, Benitez was charged with practicing architecture without a license in violation of section 481.223 of the Florida Statutes and with two counts of grand theft. Benitez was found guilty of practicing architecture without a license (which he does not contest here) and of one count of grand theft. He received five years probation with a special condition that he serve four months in county jail and was ordered to pay $15,000 in restitution. .

Benitez appeals from his grand theft conviction arguing that the State failed to prove intent. We agree.

Grand theft requires proof of intent to deprive the owner of property of its use or benefit. See § 812.014(1), Fla. Stat. (2002)(“[a] person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently” deprive the other person of the benefit from the property or appropriate the property to his or her own use); Adams v. State, 650 So.2d 1039 (Fla. 3d DCA 1995). “Intent, being a state of mind, is often not subject to direct proof and can only be inferred from circumstances.” Jones v. State, 192 So.2d 285, 286 (Fla. 3d DCA 1966). At the same time, “in a circumstantial evidence case, the State’s evidence must be not only consistent with guilt but inconsistent with any reasonable hypothesis of innocence.” Jeffries v. State, 797 So.2d 573, 580 (Fla.2001); see Benedith v. State, 717 So.2d 472 (Fla.1998); McArthur v. State, 351 So.2d 972, 976 (Fla.1977).

Here the defendant’s reasonable hypothesis of innocence was that he never intended to deprive the Pilotos of their money but that he was a legitimate businessman who ran into numerous unforeseen problems with a construction project.

The State points to the defendant’s lapsed architect’s license as evidence of felonious intent and supports that argument by relying on this court’s decisions in Iglesias v. State, 676 So.2d 75, 76 (Fla. 3d DCA 1996), and State v. Summerlot, 711 So.2d 589(Fla. 3d DCA 1998). This reliance is misplaced. In Iglesias, this court concluded that a finding of felonious intent essential to the crime of grand theft was supported by evidence that the defendant secured a contract to perform construction work by falsely informing the victims that he was a licensed and insured contractor when in fact he was not. In Summerlot, we reversed dismissal of a grand theft charge that was predicated on an allegation that the defendant had misrepresented the status of his contractor’s license.

In the instant case, the theft alleged was not the result of the defendant’s lapsed architect’s license. Correctly, Benitez does not question his conviction for practicing architecture without a license. However, there were no problems with the plans that he executed. The plans were approved, and the construction defects that followed had nothing to do with the submission or quality of the plans. Thus, the lapsed architect’s license could not demonstrate an intent to deprive the homeowners of their property. And significantly, Benitez had a current general contractor’s license. He did not, therefore, misrepresent his qualifications to perform the agreed upon construction work which formed the basis of the theft charge. While the evidence appears quite strong that Benitez performed poorly as a contractor, as to the grand theft charge, there was no evidence of felonious intent as found in Iglesias and Summerlot.

The State also claims that felonious intent was demonstrated by Benitez’ agreement to perform the work requested by the Pilotos for $37,000 rather than $51,000 thereby “inducing] the victims into a contract and tak[ing] money for a job that could not ... be completed for [the] price.” But the State presented no evidence contrary to Benitez’ theory that he mistakenly concluded that he could take advantage of his expertise and connections and do the $51,000 job for $37,000. Thus, as the Fourth District concluded in Everett v. State, 831 So.2d 738, 740 (Fla. 4th DCA 2002), “we agree with appellant that the State failed to present competent, substantial evidence of [the crime charged] ... from which the jury could exclude every reasonable hypothesis except that of guilt.” See also Stramaglia v. State, 603 So.2d 536, 537-38 (Fla. 4th DCA 1992)(“[e]ven though a promise to perform in the future may serve as the basis of a theft, a necessary element of theft under Florida law is that the defendant must have the specific intent to commit the theft at the time of, or prior to, the commission of the act of taking”). While serious questions exist regarding the adequacy of Benitez’ performance, that is, whether his work was worth what he had been paid to perform it, there is no question that he performed work mandated by the contract (demolition work was performed and an in-ground swimming pool was installed), behavior that further demonstrates lack of criminal intent. See Crawford v. State, 453 So.2d 1139, 1142 (Fla. 2d DCA 1984)(reasoning that “[defendant’s] showing up with a helper the day after he received a down payment negates the criminal intent of theft by larceny or false pretenses” and concluding that defendant’s allegedly poor performance did “not equate with any criminal intent for theft by stealing”).

In sum, we do not believe that the evidence was legally sufficient to show an intent to steal or that the evidence was inconsistent with Benitez’ reasonable hypothesis of innocence. The motion for judgment of acquittal on the theft count should, therefore, have been granted. See De La Cosa v. State, 733 So.2d 592 (Fla. 3 DCA 1999).

Accordingly, we reverse the grand theft conviction and remand to the trial court for re-sentencing.

      . Before contracting with Benitez, the Pilotos contacted Florida International University, which confirmed Benitez had performed work for the university. Mrs. Piloto testified that this fact helped her decide to hire Beni-tez, concluding "I know I felt comfortable, if he worked for the State everything had to be done.”

      . The Pilotos claim that Benitez abandoned the job; Benitez claims that he was fired.

      . An expert testified that the value of the work performed by Benitez was approximately $9,000.

      . A judgment of acquittal was entered by the trial court on one grand theft count.


author: OWEN, WILLIAM C., JR., Senior Judge.

text:
    STATE of Florida, Appellant, v. Robert SILLS, Appellee.
    No. 4D02-2796.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Brian I. Simon of Brian I. Simon, P.A., Fort Lauderdale, for appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

The issue on the state’s appeal of an order granting a motion to suppress evidence is the legality of a warrantless consensual search of defendant’s residence by municipal officers outside the territorial limits of their jurisdiction. We affirm on the authority of Phoenix v. State, 455 So.2d 1024 (Fla.1984).

Detective Sergeant John Leonard of the Coconut Creek Police Department lawfully arrested defendant, Robert Sills, for certain traffic offenses committed within the municipal limits of Coconut Creek. After being placed under arrest and advised as to his rights, Sills volunteered that although the vehicle contained no narcotics, he had some at his house and would be willing to accompany the officers to his house in the City of Lauderdale Lakes to recover them. Detective Leonard again advised Sills of his constitutional rights. Sills, after responding that he understood his rights and' waived them, told Leonard that he had a large number of oxycodone pills at his house, that he intended selling them for a profit and that he had been on the way to retrieve the pills when he was stopped. Sills also indicated he was capable of obtaining large amounts of oxyco-done and heroin from Miami and was interested in becoming a police informant.

Detective Scott of the Coconut Creek department was on the scene by that time. Although neither he nor Detective Leonard considered that any exigent circumstances existed or that the contraband described by Sills was in immediate danger of being destroyed, they nonetheless immediately transported Sills directly from the scene to his apartment located in an adjoining municipality. There, in the parking lot, the officers advised Sills of his right to require them to obtain a search warrant before making a search of his apartment. Sills signed a City of Coconut Creek waiver of search warrant form and the officers obtained his oral consent to enter and search the apartment. The officers, conscious of the potential use of Sills as a police informant and aware they might be observed by neighbors, sought to disguise the fact that Sills was then under arrest by covering his handcuffs with clothing and hiding their badges and guns. Inside, Sills directed the officers to a hidden pill bottle full of oxycodone pills which the officers seized. Then, while they were still on the premises, the officers discussed with Sills the possibility of his becoming a police informant or performing substantial assistance. Sills was charged with trafficking in oxycodone based on the contraband the officers seized from his apartment.

Sills filed a motion to suppress the physical evidence seized from his home and the statements he made to police. Two or more hearings were held from which the above facts have been gleaned. The court’s finding can be summarized as follows: the Coconut Creek officers had lawfully arrested Sills in Coconut Creek for the traffic offenses and the investigation for those offenses had been completed at the scene; after Sills had been given his rights, he voluntarily stated to the officers that he had a quantity of a controlled substance at his home located outside the jurisdiction of Coconut Creek; the officers had no knowledge that, in fact, a felony had been committed but decided they would investigate; the officers were not acting as private citizens when Sills was already under arrest, in handcuffs, and transported to the premises; and, at all times after-Sills had been arrested for the traffic offenses, he was in the officers’ custody, including when the officers took Sills outside their jurisdiction, when they discussed with him substantial assistance and when they obtained a waiver of a search warrant. The court concluded, on the authority of Phoenix, that in obtaining consent to conduct the warrantless search of Sills’ home outside their jurisdiction, the officers were acting under color of office to obtain evidence not available to private citizens and, therefore, the evidence must be suppressed.

Appellate courts should accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but should independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the State Constitution and Fourth and Fifth Amendments to the Federal Constitution. Blue v. State, 837 So.2d 541 (Fla. 4th DCA 2003).

Although this case is directly concerned with the validity of evidence gathering rather than the validity of Sills’ arrest, its resolution is found in the case cited by the trial court, Phoenix, a case dealing with the issue of validity of arrest made by officers outside their territorial jurisdiction. In that case the court held that law enforcement officers, when they are outside their territorial jurisdictions, have the same power to make a felony arrest as that of private citizens. The court then discussed the parameters of a citizen’s arrest:

At common law, a private citizen could make an arrest without a warrant in certain specific circumstances:
A private citizen does have the common law right to arrest a person who commits a felony in his presence, or to arrest a person where a felony has been committed, and where the arresting citizen has probable cause to believe, and does believe, the person arrested to be guilty. Even though there was time to obtain a warrant, a private citizen may make such an arrest and justify his failure to obtain a warrant by proving the person arrested was actually guilty of a felony.

Phoenix, 455 So.2d at 1024 (citing Collins v. State, 143 So.2d 700, 703 (Fla. 2d DCA), cert. denied, 148 So.2d 280 (Fla.1962)).

To prevent law enforcement officials from misusing the powers of then-office in making a citizen’s arrest, the courts of this state have held that law enforcement officials may not make a citizen’s arrest under the color of their office. Id. The “under color of office” doctrine applies only to prevent law enforcement officials from using the powers of their office to observe unlawful activity or gain access to evidence not available to a private citizen. Id. Thus, the restrictions on arrest authority of law enforcement officers, while outside their jurisdictions, clearly encompassed restrictions on evidence gathering as well.

The immediate issue here, then, is whether the officers of Coconut Creek, while outside their territorial jurisdiction, used the powers of their office to gain access to evidence not available to a private citizen. In this case the evidence was obtained through a search of the defendant’s residence made with his consent. Thus, the inquiry is whether the officers obtained the consent through the powers of their office, that is, under color of office.

The state contends that the court erred in concluding that the officers were acting under the color of their office when they obtained the defendant’s consent to search his apartment because his admission provided them with probable cause to believe that a felony had been committed and that the defendant was guilty; ergo, they could have made a citizen’s arrest of defendant. That argument seems to miss the point. The issue here is not whether Sills could have been subjected to a citizen’s arrest on the basis of probable cause; rather, the issue is whether there is evidence supporting the trial court’s conclusion that defendant’s consent to search his apartment was obtained “under color of office,” that is, did the officers use the powers of their office to gain access to evidence not available to a private citizen. The trial court concluded that the officers did.

A trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness and in testing the accuracy of the trial court’s conclusion, we should interpret the evidence and all reasonable inferences and deductions capable therefrom in a light most favorable to sustain these conclusions. Brenner v. State, 337 So.2d 1007 (Fla. 3d DCA 1976). Employing this presumption and drawing reasonable inferences from the evidence in favor of correctness, the trial court’s ruling was not in error. The color of office, if not explicitly, then certainly implicitly, contributed to the officers being able to obtain the evidence that was suppressed by the trial court.

The officers took Sills outside their jurisdiction and had him execute a waiver bearing the crest of the Coconut Creek police department. In using the waiver, as well as the act of transporting him in handcuffs, they were acting under color of their office. It is certainly reasonable to believe Sills’ cooperation with the officers, his volunteered information and consent to search, would not have been provided had the officers been mere private citizens; it was only in their capacity as police officers, not as private citizens, that they could hold out the prospect of performing substantial assistance or becoming a police informant whereby he could reasonably expect some leniency. The possibility of more lenient treatment for cooperating with police was the carrot that enticed Sills’ actions. The trial court’s conclusion that Sills’ consent was given to the officers due to the color of their office is amply supported by the evidence.

The state also contends the seizure was proper and, thus, the trial court erred in granting the motion to suppress, because the subject matter of the investigation originated within the officer’s jurisdiction. For this proposition the state cites State v. Price, 589 So.2d 1009 (Fla. 4th DCA 1991), rev. denied, 599 So.2d 657 (Fla.1992); Goodman v. State, 399 So.2d 1120 (Fla. 4th DCA 1981); State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979); and Brenner v. State, 337 So.2d 1007 (Fla. 3d DCA 1976). This line of cases does, indeed, hold that municipal police officers may conduct a lawful investigation outside their territorial jurisdiction if the subject matter of the investigation originated in their own jurisdiction. However, these cases do not support the state’s argument in the instant case.

The state argues, in an effort to enlarge upon the holding of these eases, that they only require the investigation to originate within the officer’s jurisdiction, whereas the cases hold that it is the subject matter of the investigation which must originate within the officer’s jurisdiction. The subject matter of the investigation, as the state’s brief recognizes, was the defendant’s unlawful possession of oxycodone at his residence which he intended to sell for profit. While the conceptual idea to investigate came to the officers within their own jurisdiction, the subject matter — the defendant’s possession of the substance- — was never in their jurisdiction.

That aside, and even if it could be said that in this case the subject matter of the investigation did originate within the officers’ jurisdiction, the line of cases relied upon by the state is expressly noted in State v. Phoenix, 428 So.2d 262 (Fla. 4th. DCA 1982), with the following caveat:

Nonetheless, the principle espoused in these cases is subject to the proviso set forth in the text of our opinion, viz., that officers who act outside their jurisdiction, but not in fresh pursuit, may investigate and gather evidence only through the use of their own senses and through the voluntary cooperation of citizens; they may not employ the power or color of their office either expressly or by implication in order to gather evidence or ferret out criminal activity not otherwise observable.

Phoenix, 428 So.2d at 266, n. 2. Thus, these cases are not, as argued by the state both below and here, a separate and distinct issue from the “under color of office” doctrine; rather, they are subject to that doctrine, not immune from it.

AFFIRMED.

POLEN and HAZOURI, JJ., concur.


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    Curtis D. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2094.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.
    Curtis D. Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

Affirmed. Robinson v. State, 793 So.2d 891 (Fla.2001); McGregor v. State, 789 So.2d 976 (Fla.2001); Saldo v. State, 789 So.2d 1150 (Fla. 3d DCA 2001); Merson v. State, 786 So.2d 1267 (Fla. 3d DCA 2001).


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    Gregory D. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1890.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Robert L. Bogen of Law Offices of Robert L. Bogen, Boca Raton, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, Fort Lauderdale, for appel-lee.
   PER CURIAM.

Appellant challenges the denial of his motion to dismiss the information charging him with vehicular homicide. In his motion, filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), appellant claimed that there were no material disputed issues of fact. His view of the evidence was that the state could only prove that he was driving approximately 95-105 miles per hour down 1-75 in Broward County when the accident occurred, which was insufficient to constitute reckless driving to support the charge of vehicular homicide. While a witness had seen appellant weaving through traffic, that witness observed this conduct over three miles from the accident scene, thus failing to establish that the weaving was a proximate cause of the accident. The state filed a traverse, stating that appellant’s speed exceeded 110 miles per hour, and denying that the witness who observed appellant weaving was several miles away from the accident, as that estimate by appellant’s counsel was based in part on appellant’s speed. Because the state traversed the motion with specificity and presented additional facts in the motion that created a material issue of fact, the motion was properly denied. See Fla. R.Crim. P. 3.190(d); Boler v. State, 678 So.2d 319, 323 (Fla.1996).

Affirmed.

WARNER, POLEN and GROSS, JJ., concur.


text:
    Elmer WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4499.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the trial court’s denial of his motion for post-conviction relief following an evidentiary hearing. We affirm.

The defendant filed a motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, raising ten separate claims of ineffective assistance of trial counsel. The trial court summarily denied claims two through eight on July 16, 2001. The defendant has not raised any error concerning the court’s ruling on these claims. Concerning claim one, the trial court reserved ruling and granted an evidentiary hearing.

At the evidentiary hearing, the defendant argued that his trial counsel had been ineffective by failing to strike an allegedly biased juror for cause. When the hearing concluded, the trial court denied the defendant’s motion. The trial court has yet to rule on claims nine and ten.

We have reviewed the record and find no error in the trial court’s ruling on claim one, concerning the allegedly biased juror. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the trial court has not ruled on claims nine and ten, the matter is not properly before us.

AFFIRMED.

STONE, SHAHOOD and MAY, JJ„ concur.


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    DEPARTMENT OF CHILDREN & FAMILIES, Petitioner, v. Jeffrey KLINE, Respondent.
    No. 4D03-171.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    John J. Copelan, Jr., Deborah Guller and Douglas Greenbaum, Fort Lauderdale, for petitioner.
    Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for respondent.
   PER CURIAM.

The Department of Children and Family Services’s petition for writ of certiorari is granted and the commitment order under review is quashed. See Dep’t of Children & Families v. Harrison, 848 So.2d 460 (Fla. 4th DCA 2003).

WARNER, KLEIN and HAZOURI, JJ., concur.


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    Albert DYON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-1494, 4D02-4012.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s judgment and sentence entered pursuant to its order revoking appellant’s probation. However, the written order revoking probation does not appear to conform to the trial court’s oral findings that Dyon was in violation of his probation as alleged in paragraphs 2-4 of the affidavit of probation violation. Accordingly, we remand with instructions to enter an amended revocation order correcting this apparent clerical error.

STONE, SHAHOOD and GROSS, JJ., concur.


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    Kenneth R. GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1105.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2003.
    Kenneth R. Gilbert, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth R. Gilbert appeals an order summarily denying his rule 3.850 motion for postconviction relief and the order denying his motion for rehearing. We affirm without discussion as to appellant’s first three grounds for postconviction relief, but reverse the summary denial as to the fourth ground.

Following a jury trial, appellant was found guilty of burglary of an occupied structure. At trial, Eugene Gallina testified that he arrived for work at Tropical Shipping at 5:00 a.m. and saw a man walking around the back of the warehouse with a set of bolt cutters and a Snap-on toolbox. He looked suspicious, so Gallina walked over and asked who he was. When Gallina approached, the man ran out of the building, and Gallina could not catch up to him. On returning to the building, Gallina found a wallet on the floor. It contained appellant’s photo identification, which appeared to Gallina to be the same person he had just seen. At trial, however, Gallina was not certain that appellant was the man he had seen.

We find facially sufficient appellant’s fourth ground for relief, alleging that his trial counsel was ineffective for failing to investigate and call an alibi witness, Ce-phus Russel. According to the motion, appellant timely gave his counsel Russel’s name and where he could be located. Russel was willing and able to testify. Russel’s testimony could have exonerated him, or at least could have cast doubt on his guilt. He alleges that Russel would have testified that appellant was with him at another location from 10:00 p.m. to 6:00 a.m., when the offense occurred. See Eubanks v. State, 819 So.2d 880 (Fla. 4th DCA 2002); Stringer v. State, 757 So.2d 1226 (Fla. 4th DCA 2000).

The order of summary denial is reversed as to the fourth ground for relief and remanded for either an evidentiary hearing or the trial court’s attachment of record portions conclusively refuting appellant’s fourth ground for relief.

AFFIRMED in part, REVERSED in part, and REMANDED.

POLEN, TAYLOR and MAY, JJ., concur.


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    Konduko T. BUFFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-551.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.
    Konduko T. Bufford, in proper person.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

We affirm the order denying defendant’s motion to correct illegal sentence as to the conviction for count two. However, on remand, the sentence for count two shall be corrected to reflect the trial court’s oral prison releasee reoffender adjudication on this count. As to count three, based on the state’s proper concession, we vacate the prison releasee reoffender adjudication on this count, as that conviction is not for an enumerated offense.


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    Michael P. DAVIDSON, Appellant, v. AAA COOPER TRANSPORTATION and Florida Unemployment Appeals Commission, Appellee.
    No. 3D03-880.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2003.

      Michael P. Davidson, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Commission.
    Before COPE, FLETCHER and WELLS, JJ.
   WELLS, Judge.

Michael P. Davidson appeals from a final order of the Unemployment Appeals Commission denying unemployment benefits. We reverse.

Davidson was hired as a freight handler in September 1995 by AAA Cooper Transportation, a Southeast regional trucking carrier, to work on the loading dock where he was responsible for loading and unloading tractor trailers and for occasionally driving to the nearby Florida East Coast Railway terminal to transport trailers to AAA Cooper’s facility. Davidson also was occasionally asked to make, and made, out of town “runs” to nearby locations. With the exception of one five day period approximately five years before his termination, Davidson had worked exclusively “at night,” that is, during the early morning hours from 1:00 a.m. to 9:30 or 10:00 a.m., while traffic was light. During that single work week five years before his termination when he had agreed to help out by making local daytime deliveries, Davidson had almost been involved in two accidents and had been so aggravated by daytime traffic that he had almost “got[ten] out of the truck and had a fight with another motorist.” Realizing that he did not have the temperament to cope with the stresses of daytime driving, Davidson turned down AAA Cooper’s subsequent offer to work days doing deliveries.

During Davidson’s seven year tenure with AAA Cooper, Davidson, according to the terminal manager who ultimately fired him, had been “an excellent employee” who was “more than helpful to go the extra mile,” an employee who had “never refused any assignment that ... [had been] given him.”

Approximately five weeks before his employment was terminated, Davidson was asked, during his regular graveyard shift, to make a six hour line-haul run to Pompano and Ft. Pierce and back. Although this was not dock work, Davidson agreed, as he usually did, to make the run. But after hooking a trailer to the tractor that he was supposed to use, Davidson found that the tractor was not serviceable. He was told by his supervisor to find another. When Davidson finally found another tractor, the keys could not be located; he was told to wait for another suitable tractor to arrive. However, when a suitable tractor arrived, he was not permitted to use it because the oil light indicator was on. At this juncture, Davidson was assigned a truck without air conditioning or a radio.

Davidson, who viewed air conditioning as a matter of comfort, had driven off the road on previous nighttime runs and feared that he would not be able to stay awake without the distraction of a radio and refused to make the run in a tractor with no radio. Consequently, he was suspended for one week and advised that further refusal to accept assignments would result in termination.

Approximately one month later, following a ten hour shift that had commenced at approximately 1:00 a.m., Davidson was asked to make three daytime in-town deliveries. He refused, advising his supervisor that driving in heavy daytime traffic “totally aggravated” him and made him “mad.” He also advised his supervisor that because his wife was at work, he had to pick up his children from school. Since it was then 11:00 a.m., he did not believe that he could make even one of the three requested deliveries in time to be at his children’s school by 2:00 p.m. Davidson’s employment was terminated for insubordination.

On November 27, 2002, a UAC claims examiner denied Davidson’s claim for benefits concluding that he had engaged in misconduct connected with the work. That decision was affirmed by a UAC appeals referee, who concluded that Davidson’s refusal to drive “during regular hours,” combined with his earlier refusal to drive without air conditioning and a radio, constituted an unjustified and “intentional refusal to follow a superior’s valid work order” amounting to disqualifying misconduct connected with his work. This decision was affirmed by UAC, and Davidson was disqualified from receiving benefits.

An individual discharged from employment for conduct deliberately, or culpably negligently, antithetical to an employer’s interests is not entitled to unemployment benefits. See Glenn v. Unemployment Appeals Comm’n, 731 So.2d 868, 869 (Fla. 1st DCA 1999); see also § 443.101(l)(a), Fla. Stat. (2003) (disqualifying those from benefits who have been discharged for misconduct connected with work); § 443.036(29), Fla. Stat. (2003) (defining misconduct). The unemployment compensation statute is, however, to be liberally construed in favor of the claimant; by contrast, its disqualification provisions, being remedial in nature, are to be narrowly construed. See, e.g., Philemy v. Florida Dep’t of Health & Rehabilitative Servs., 731 So.2d 64, 66 (Fla. 3d DCA 1999); Baptiste v. Waste Management, Inc., 701 So.2d 386, 387 (Fla. 3d DCA 1997); Maynard v. Florida Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992); Panama City Hous. Auth. v. Sowby, 587 So.2d 494, 497 (Fla. 1st DCA 1991). As this court has repeatedly stated, misconduct serious enough to warrant dismissal is not necessarily sufficiently serious to warrant forfeiture of unemployment compensation benefits. See, e.g., Espanioly v. Facs Group, Inc., 755 So.2d 183, 184 (Fla. 3d DCA 2000) citing Benitez v. Girlfriday, Inc., 609 So.2d 665, 666 (Fla. 3d DCA 1992); Baptiste, 701 So.2d 386; Webb v. Rice, 693 So.2d 1109 (Fla. 3d DCA 1997); Miller v. Barnett Bank of Broward County, 650 So.2d 1089 (Fla. 3d DCA 1995).

Terminated employees are not, for example, necessarily disqualified from receiving benefits for refusing to perform tasks outside the scope of employment. See Maynard, 609 So.2d at 145. And employees who reasonably refuse to perform tasks within the scope of employment are also not necessarily disqualified from receiving benefits:

Opinions in previous cases assume that the supervisor’s order must be reasonable in order for the employee to be held accountable for the refusal. They also state or assume that, although the employer’s order may be reasonable, if the employee reasonably refuses to perform the required act, the employee is still eligible for unemployment compensation.

Chery v. Flagship Airlines, Inc., 692 So.2d 213, 214 (Fla. 3d DCA 1997) (emphasis added) quoting Pascarelli v. Unemployment Appeals Comm’n, 664 So.2d 1089, 1093 (Fla. 5th DCA 1995); see Jorge v. Florida Unemployment Appeals Comm’n, 765 So.2d 889, 890 (Fla. 3d DCA 2000) (applying “reasonableness standard” to find that claimant’s refusal to obey a manager’s order did not constitute misconduct); Crosby v. Unemployment Appeals Comm’n, 711 So.2d 260, 263 (Fla. 5th DCA 1998) (finding a reasonable refusal to perform a directive insufficient to support a denial of benefits).

In this case, Davidson refused, following completion of his regular ten hour graveyard shift, to make a number of local daytime deliveries. Local daytime deliveries fell outside the scope of the regular nighttime work that he had performed exclusively for the past five years. While his refusal to perform these tasks may have constituted sufficient justification for termination, it did not constitute misconduct under the unemployment compensation law that would justify denial of benefits. See Maynard, 609 So.2d at 145; see also Vazquez v. GFC Builders Corp., 431 So.2d 739, 741 (Fla. 4th DCA 1983) (stating that where “there is a positive understanding at the outset ... that an employee will not be required to perform a certain task ... the employer cannot renege on the understanding and, based thereon, charge the employee with misconduct”). Moreover, Davidson’s refusal to make the requested daytime deliveries, based as it was on his past experiences which confirmed that he could not cope with the stresses of daytime driving, was reasonable under the circumstances and certainly not antithetical to his employer’s interests. See Rodriguez v. Svinga Bros. Corp., 802 So.2d 455, 456 (Fla. 3d DCA 2001) (concluding that trucker’s refusal to transport twelve as opposed to eight containers for safety reasons was not unreasonable and did not constitute misconduct connected with work); Polgar v. Unemployment Appeals Comm’n, 664 So.2d 350, 351 (Fla. 5th DCA 1995) (holding that bus driver’s refusal to drive because he was too tired to make a trip was reasonable and did not deprive him of the right to receive unemployment compensation benefits); see also Jorge, 765 So.2d at 890-891 (applying a reasonableness standard to conclude that claimant’s refusal to continue to work after having worked for over twelve hours at what would amount to a reduced rate of pay did not constitute disqualifying misconduct). Davidson should not, therefore, have been disqualified from receiving benefits.

Accordingly, we reverse and remand.

      . Although the terminal manager testified that Davidson did not tell him that he had to pick up his children, the UAC appeals referee's findings of fact, while rejecting the explanation as good cause to refuse the assignment, accepted Davidson’s testimony that he had advised his supervisor that he had to pick up his children.