text:
    Manuel CASTRO, Appellant, v. Roger BRAZEAU, Doe Towing, Inc., et al., Appellees.
    No. 4D03-2073.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Roy D. Wasson and Jesus O. Cervantes of Law Offices of Jesus O. Cervantes, Miami, for appellant.
    Kerry C. McGuinn, Jr. and Burke Lopez of Rywant, Alvarez, Jones, Russo & Guy-ton, P.A., Tampa, for appellee Roger Bra-zeau.
   WARNER, J.

In challenging a final summary judgment entered in a personal injury action arising from an automobile accident, Manuel Castro (“Castro”) contends that material issues of fact remained because of eyewitness testimony to the accident. Castro also argues that the trial court erred in failing to grant a continuance of the summary judgment hearing when he did not produce an expert affidavit to counter the evidence of non-negligence presented by the defendant. We hold that the eyewitness testimony was not competent, admissible evidence to counter the evidence of non-negligence, and the court did not abuse its discretion in denying the motion for continuance. We therefore affirm.

Castro was driving with two passengers on 1-95 in Broward County when his vehicle hit a metal object in the road, causing a tire blowout. He pulled to the side of the highway and exited the vehicle with his passengers. Shortly thereafter, defendant Jackson hit the same object, causing her to lose control of her car, and sending it spinning into defendant Brazeau’s vehicle. Brazeau immediately hit the brakes, his air bag deployed, and his car veered into the guardrail. While he maintains that he hit the guardrail and not Castro’s vehicle, other witnesses testified that he hit Castro’s vehicle and Castro himself, causing injuries. Castro filed suit for damages against Jackson, Brazeau, and an unknown “Doe” towing company which he alleged was responsible for dropping the metal object hit by Jackson onto the highway.

Brazeau moved for summary judgment contending that the material facts were not in dispute, and he was not negligent. He presented his deposition, Castro’s deposition, and the deposition of Castro’s passengers. No evidence suggested any negligence, other than the passengers’ testimony regarding Brazeau’s speed. However, neither Castro nor his passengers saw the Brazeau vehicle before the accident. One of the passengers testified that Brazeau must have been traveling very fast because of the damage caused to Castro’s vehicle’s chassis in the crash. Because there was no expert evidence offered to show that the crash damage would indicate that Brazeau was speeding or that he was negligent, the trial court granted summary judgment.

On appeal, Castro claims that the passengers’ testimony created a disputed issue of fact as to Brazeau’s speed and, therefore, his negligence. It is clear that neither witness saw the vehicle prior to Jackson’s vehicle impacting Brazeau’s vehicle. The conclusion of one passenger that Brazeau had to be speeding based upon the crash damage caused to Castro’s vehicle was not competent evidence because the passenger was not qualified as an expert. See § 90.701(2), Fla. Stat. (permitting opinion testimony from lay witnesses only when such opinions do not require specialized knowledge, training or skill). “It is fundamental that supporting or opposing affidavits filed in connection with a motion for summary decree shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Harrison v. Consumers Mortgage Co., 154 So.2d 194, 195 (Fla. 1st DCA 1963) (footnote omitted). Castro offered no evidence that the witness was qualified to give an expert opinion, and thus the witness’s testimony did not create a disputed issue of material fact as to the non-negligence of Brazeau.

Castro cites Trouette v. Reynolds, 593 So.2d 1203 (Fla. 5th DCA 1992), in support of his argument that there was a material issue of fact. There, appellant’s car pulled in front of, and was struck by, a tractor trailer truck. Appellant saw the truck and believed she had enough room to cross in front of it. The truck driver testified that he tried to miss appellant’s vehicle by pulling onto the shoulder of the road. He could not recall when he first saw appellant in front of him, he just “looked up and she was there.” 593 So.2d at 1203. An expert witness testified that if the truck driver had been able to see appellant four and a half seconds before the impact, and was able to brake within a second and a half, he could have avoided hitting appellant’s vehicle, instead hitting only the trailer she was pulling. See id. at 1204. The district court found that the truck driver’s testimony that he did not remember when he saw appellant, coupled with the expert testimony, created an issue of fact for the jury “as to whether the damages that were sustained could have been reduced by a driver using the ordinary care of a reasonable, prudent driver in similar circumstances [and] whether and when a reasonable, prudent driver should have first noticed [appellant’s] negligent operation and when and what evasive action should have been taken.” Id. Thus, it reversed the trial court’s order granting appellee’s motion for a directed verdict.

Unlike Trouette, Castro did not present any evidence or expert testimony that Bra-zeau may have acted negligently in failing to avoid the collision with Jackson. After Brazeau presented evidence showing there was no genuine issue of material fact, it was Castro’s burden to “come forward with counter-evidence sufficient to reveal a genuine issue.” Corbitt v. Kuruvilla, 745 So.2d 545, 548 (Fla. 4th DCA 1999) (quoting Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996)). “It is not enough for the opposing party merely to assert that an issue does exist.” Id. (citation omitted). Given that Castro failed to present any evidence that Brazeau’s negligence caused him to hit Castro’s vehicle, the trial court properly entered summary judgment in favor of Brazeau.

Recognizing the deficiency of the witness testimony to provide competent evidence of negligence, the trial judge asked Castro’s attorney whether he had an affidavit from an accident reconstruction expert. The attorney responded that he had thought the witness testimony was sufficient. He said that he did have an expert but had not as yet taken the expert’s deposition. (This itself is curious, because usually parties do not take their own expert witness’s deposition unless required to preserve the witness’s testimony for trial.) The lawyer then asked for a continuance to obtain such evidence. The judge admonished Castro’s attorney, telling him that the motion had been set for hearing for months, giving the attorney plenty of time to obtain the necessary proof. Explaining that the affidavits were required to be filed at least two days prior to the hearing, see Florida Rule of Civil Procedure 1.510(c), the judge refused to continue the case. Because there was no evidence to dispute the facts, the judge granted summary judgment, saying he had no choice under the circumstances.

On appeal, Castro argues that the judge erred because he did not believe he had the discretion to grant a continuance. We have read the transcript. This experienced trial judge was not working under a misapprehension of law. Instead, he noted that the lawyer had months to file an affidavit or ask for a continuance, and neither was done. He told the lawyer that he could have moved for a continuance if he had good and sufficient ground for it, but the lawyer offered no good reason for a continuance of the summary judgment proceeding after the entire matter had already been argued. The judge concluded that based upon the affidavits and depositions filed, a summary judgment was compelled. The judge understood that he had discretion regarding the request for continuance. He simply denied the request where no good cause was shown why one should be granted.

Affirmed.

KLEIN and GROSS, JJ., concur.


source: Caselaw Access Project

author: TAYLOR, J. STONE, J.,

license: Public Domain

text:
    BANK ONE, N.A., as Trustee f/k/a First National Bank of Chicago, as Trustee, Appellant, v. James M. HARROD, Jr., Diane J. Harrod, John Doe and Jane Doe, as unknown tenant(s) in possession of the subject property, Appellees.
    No. 4D03-2459.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Robert Garven, Coral Springs, and Law Offices of Marshall C. Watson, P.A., Fort Lauderdale, for appellant.
    Fredric C. Buresh, Fort Lauderdale, for appellees James M. Harrod, Jr. and Diane J. Harrod.
   TAYLOR, J.

Appellant, Bank One, N.A., challenges the dismissal of its complaint with prejudice. The dismissal was based on the bank’s failure to comply with a court order compelling discovery. We reverse.

Appellant filed a mortgage foreclosure complaint on November 15, 2001, seeking to enforce a promissory note in the amount of $220,000. On December 21, 2001, appel-lees, James M. Harrod, Jr. and Diane J. Harrod, answered and counterclaimed under the Real Estate Settlement Procedure Act (RESPA), 12 U.S.C. § 2605®. At the same time, appellees filed and served a request to produce bank documents. On March 8, 2002, the trial court entered an order compelling appellant to produce the requested documents within ten days.

One year passed, and then on March 20, 2003, the trial court sua sponte issued a “Motion, Notice and Hearing of Dismissal.” The order directed that the parties show good cause in writing by April 4, 2003 why the case should not be dismissed for lack of prosecution. It further set a hearing date of April 9, 2003, and provided that failure to make a timely showing of good cause would result in dismissal for lack of prosecution.

Even though the show cause order was directed at appellant, the appellees filed a response, “Defendant’s Showing of Good Cause,” on April 2, 2003. In their response, appellees asked the court to dismiss appellant’s case with prejudice, because, in addition to there being no record activity for over a year, the bank had ignored the court’s earlier order compelling discovery. Appellant failed to attend the April 9, 2003 hearing and to file any response until April 14, 2003. According to a later filed affidavit of appellant’s legal assistant, appellant did not receive the court’s show cause order.

On April 10, 2003, the trial court entered a final judgment of dismissal with prejudice. Although the judgment noted that there had been no activity of record for over a year, the court based the dismissal with prejudice on appellant’s failure to comply with the order compelling discovery entered on March 8, 2002. The court summarily found that the failure to comply with the order was “willful and deliberate.”

Appellant’s counsel moved for rehearing, explaining that he failed to attend the hearing because he did not receive notice. His successor counsel later supplemented the motion with an affidavit of the law firm’s legal assistant, detailing the circumstances of the non-attendance at the April 9 hearing. The trial court denied the motion for rehearing. This appeal followed.

Dismissal of a complaint for noncompliance with a court order is subject to an abuse of discretion standard of review. See Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 915 (Fla. 1st DCA 2002).

In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the Florida Supreme Court set forth six factors which must be considered by a trial court before dismissing a complaint with prejudice for non-compliance with a court order:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance;- and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appear to be a viable alternative, the trial court should employ such an alternative.

Where, as here, there is no indication that the trial court considered these factors, because it failed to make the “required findings” in its order, reversal has been required. See Fla. Nat’l Org. for Women, 832 So.2d at 914; see also Carr v. Reese, 788 So.2d 1067, 1072 (Fla. 2d DCA 2001) (holding that trial court’s failure to consider all of the factors as shown by-final order requires reversal). Even though this lack of findings is alone a sufficient ground for reversal, we consider the six Kozel factors as applied to the record in this case.

With respect to the first factor, the trial court did make a finding of willfulness. However, there is nothing in the record to support this finding; the facts are equally consistent with mere neglect. See Townsend v. Feinberg, 659 So.2d 1218, 1219 (Fla. 4th DCA 1995) (explaining that the mere inclusion of “magic words” in the order of dismissal would not have cured the failure to make requisite findings of willful or contumacious noncompliance with a court order, as nothing in record indicated willfulness).

With respect to the second factor, it is apparent from the record that the attorney for appellant had not been previously sanctioned.

The third factor, that the client is at least partially at fault, has been interpreted by our court as a “super factor” which must be present in every case before a dismissal with prejudice can occur. See Rose v. Fiedler, 855 So.2d 122, 128 (Fla. 4th DCA 2003) (Warner, J., concurring specially); see also Schlitt v. Currier, 763 So.2d 491 (Fla. 4th DCA 2000). Here, there is no suggestion in the record that appellant (as opposed to its counsel) was at fault. The absence of this factor is then a second independent ground for reversal. See Rose, 855 So.2d at 127; see also Carr, 788 So.2d at 1071; Walicki v. Waste Mgmt., Inc., 703 So.2d 1095, 1096 (Fla. 2d DCA 1997) (seven years of dilatory conduct on part of counsel insufficient where no showing that client personally contributed to delayed filings or protracted course of litigation).

As to the fourth factor, there is no indication in the record that appellees suffered any undue prejudice from the delay in the document production, certainly none that would justify such a severe sanction. See Town of Manalapan v. Fla. Power & Light Co., 815 So.2d 670, 672 (Fla. 4th DCA 2002); see also Carr, 788 So.2d at 1071 (trial court had no evidence of undue expense or loss of evidence before it from which to conclude that prejudice existed).

The fifth factor, whether there is a reasonable justification for the attorney’s misconduct, is difficult to evaluate here, inasmuch as appellant’s attorney did not present any evidence at the show cause hearing, due to his alleged failure to receive notice and an opportunity to be heard before the dismissal.

With respect to the sixth factor, the record does not indicate that the delay in document production caused significant problems of judicial administration. In any event, there does not appear to have been problems which warranted the severe sanction of dismissal. See Town of Manalapan, 815 So.2d at 672.

Finally, the court was required to consider whether, in light of these six factors, a lesser sanction might have been sufficient. Again, the order is deficient in failing to consider this question. See Russell v. A.G. Edwards & Sons, Inc., 779 So.2d 452, 456 (Fla. 2d DCA 2000).

We observe that dismissal of this case cannot be upheld on the alternative ground of the one year delay in prosecution, since failure to prosecute permits only a dismissal without prejudice. See Cummings v. Dawson, 444 So.2d 565 (Fla. 1st DCA 1984).

Accordingly, we reverse the final judgment dismissing appellant’s case with prejudice and remand for further proceedings. On remand, the trial court may consider the imposition of other, lesser sanctions.

REVERSED and REMANDED.

KLEIN, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

Although I concur in the opinion, I would not interpret Schlitt, as we did in Rose, to compel this result. The “super” factor of lack of a client’s knowledge need not preclude a dismissal, or striking of pleadings, where there is support for a trial court’s conclusion of client awareness; rather, where there are extensive discovery violations that appear willful, a trial court should not have to assume client innocence. In my judgment, where a client’s knowledge is disputed, a hearing should be conducted in order to resolve this as a fact issue. See Schlitt, 763 So.2d at 493.


author: PER CURIAM.

text:
    David TOMKINS, Appellant, v. Laura TOMKINS, Appellee.
    No. 4D03-2209.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Michael A. Gottlieb of Michael A. Gott-lieb, P.A., Fort Lauderdale, for appellant.
    Tracy Belinda Newmark of Fixel & La Rocco, Hollywood, for appellee.
   PER CURIAM.

David Tomkins, the former husband/father, appeals an order allowing the former wife/mother to relocate to Ohio with the couple’s son. A primary residential parent’s request to relocate with a minor child is governed by section 61.13(2)(d), Florida Statutes (2003). Here, the trial court considered the evidence and the statutory criteria, finding that relocation was in the best interests of the mother and the minor child.

An appellate court’s standard of review of a trial court’s order regarding relocation is whether the trial court abused its discretion. We look to see if there is substantial competent evidence to support the trial court’s findings concerning the statutory factors.... We do not engage in “reweighing the evidence and making the value judgments that are appropriate for the trial judge.”

Botterbusch v. Botterbusch, 851 So.2d 903, 904-05 (Fla. 4th DCA 2003) (quoting Flint v. Fortson, 744 So.2d 1217, 1218 (Fla. 4th DCA 1999)) (other citations omitted). We have reviewed the order appealed and find no abuse of discretion in the trial court’s decision.

AFFIRMED.

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Janis ALTMAN, Appellant, v. Andrew ALTMAN, Appellee.
    No. 4D03-2611.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Stephen Rakusin of Rakusin & Plotka, P.A., Fort Lauderdale, for appellant.
    Carin M. Porras of Gordon C. Brydger, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We reverse the final judgment denying all attorney’s fees to the former wife. According to the trial judge, the “main” reason for its ruling was that the former wife’s attorney was her second husband, from whom she was divorced in 2002. The trial court was concerned that the obligation for fees was not a “legitimate debt” and that the former wife would “not be ultimately responsible” for the fees. This was not a valid basis to deny all fees. See Love v. Love, 370 So.2d 1231 (Fla. 4th DCA 1979) (stating, in a divorce case, that “[a]s to an award of attorney’s fees, we see no reasonable basis on which to distinguish a client of a Legal Aid Society from one who retains private counsel”).

The case is remanded to the trial court for reconsideration of the request for attorney’s fees under the principles of Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

WARNER, KLEIN and GROSS, JJ, concur.


author: GROSS, J.

text:
    J.A.-W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1025.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Appellant is a fourteen-year-old who was placed on juvenile probation for misdemeanor battery. He pled no contest to violating his probation and was sentenced to attend and complete a level six program. The sentencing order stated: “The placement is for an indeterminate period, but no longer than one year or the child’s 19th birthday, or as expected [sic] in section 985.201(4)(b)l and 2.” Appellant’s timely motion to correct the sentencing order was denied.

The sentencing order fails to reflect that appellant cannot be placed in the care of the Department of Juvenile Justice (“DJJ”) beyond the one-year maximum sentence that applies to misdemeanor battery.

Section 985.231(l)(a) l.a., Florida Statutes (2001), provides that when the circuit court commits an adjudicated delinquent child to the DJJ for placement, “the duration of such supervision or program ... may not exceed the term for which sentence could be imposed if the child were committed for the offense.... ” The statute further states that “[a]ny commitment of a child to a program or facility ... must be for an indeterminate period of time, but the time may not exceed the maximum term of imprisonment that an adult may serve for the same offense.” § 985.231(l)(a) 8. The disposition order must clearly articulate the maximum length of commitment. See J.B. v. State, 829 So.2d 376, 377-78 (Fla. 4th DCA 2002).

The problem with the sentencing order in this case is that it could be interpreted as permitting commitment until the child reached the age of nineteen, well past the one-year maximum length of commitment for a first-degree misdemeanor. Id. at 378; see also L.W.G. v. State, 785 So.2d 696 (Fla. 4th DCA 2001) (“[Language committing a juvenile for an indeterminate period of time no longer than a specific birthday or the maximum term of imprisonment is error because such language could allow the sentence to be construed as running longer than the statutory maximum provided for the particular offense.”).

The state contends that E.J.R. v. State, 722 So.2d 970 (Fla. 4th DCA 1999) is on point. There, we remanded a disposition order for correction. We wrote that an amended order “should be corrected to reflect that the maximum term of community control that can be imposed on [the child] is one year, which is the maximum term an adult could serve for the same offense, or the date of [the child’s] nineteenth birthday, whichever occurs first.” Id. (emphasis added).

The state argues that the disposition order here “is virtually identical” to the one required in E.J.R. However, neither the disposition order nor the order denying the motion to correct sentence specified that the maximum term of commitment was no greater than one year. The limiting phrase in E.J.R., “whichever occurs first,” does not appear in the orders involved in this case.

We reverse the disposition order to correct the sentence so that it is clear that the sentence shall not exceed one year, with appropriate credits. The new disposition order shall be entered nunc pro tunc to the date of the original order.

REVERSED.

WARNER and KLEIN, JJ., concur.


text:
    M.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1381.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

M.D. appeals his conviction of carrying a concealed weapon pursuant to section 790.01, Florida Statutes (2001). We reverse because we find that the small wooden bat found in his car was not a “weapon” within the meaning of section 790.01(1).

Officer Francisco Ortiz stopped M.D.’s car for speeding. Believing that M.D. might have been driving under the influence, the officer asked him to step out of the car. The officer then observed a 1.5 foot long “small wooden bat” wedged into the floor crevice between the driver’s door and the driver’s seat. At no time during the traffic stop did M.D. hold or wield the bat.

The issue in this case is whether the small bat was a weapon within the meaning of section 790.01(1). As it is used in Chapter 790, the term “weapon”

means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

§ 790.001(13), Fla. Stat. (2001). This definition is “based on the description of ‘weapon’ found in the precursor statute, section 790.01, which was enacted in 1901.” Bunkley v. State, 833 So.2d 739, 743 (Fla. 2002), judgment vacated on other grounds by, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003). As the second district has written, the list of weapons in section 790.001(13)

has evolved from its first appearance at the turn of the century in the Laws of Florida as a list of prohibited concealed weapons. The original catch-all phrase was “other weapon.” Ch. 4929, Laws of Fla. (1901). When the legislature revised chapter 790 in 1969, it added the requirement that the “other weapon” be a “deadly” weapon. Ch. 69-306, § 1 at 1104, Laws of Fla.

Mitchell v. State, 698 So.2d 555, 559 n. 3 (Fla. 2d DCA 1997).

The small bat does not qualify as a “deadly weapon” under the statute “because there was no evidence that it was ‘normally dangerous or deadly when used in its ordinary and usual manner.’ ” Hutchinson v. State, 816 So.2d 1186, 1187 (Fla. 2d DCA 2002) (quoting Mitchell, 698 So.2d at 557). In Garcia v. State, 789 So.2d 1059, 1061 (Fla. 4th DCA 2001), we held that whether a kitchen knife was a “deadly weapon” within the meaning of section 790.001(13) was a question of fact depending upon the particular knife involved and the circumstances surrounding the accused’s carrying of it. See Nystrom v. State, 777 So.2d 1013, 1014-15 (Fla. 2d DCA 2000); Mitchell, 698 So.2d at 560 (observing that under the definition of “dangerous weapon,” “a weapon may be deadly based on the threat of its use in a way likely to cause great bodily harm”) (emphasis in original). Here, there was no evidence that M.D. used, carried, or wielded the bat in any way.

Only if the small bat could be characterized as a “billie” would it fall within the statutory definition.

Chapter 790 does not define “bil-lie.” When a statute fails to define a term, a court may resort to a dictionary definition to ascertain the term’s plain and ordinary meaning. See Francis v. State, 808 So.2d 110, 138 (Fla.2001). A “billy” is defined by the American Heritage Dictio nary as “[a] billy club.” American Heritage College Dictionary 137 (3d ed. 1993). A “billy club” is “[a] short wooden club, esp. a police officer’s club.” Id. Similarly, Webster’s Third New International Dictionary defines “billy” as “a heavy usu. wooden weapon for delivering blows: club; esp.: a policeman’s club.” People v. Fink, 91 Ill.2d 237, 62 Ill.Dec. 935, 437 N.E.2d 623, 625 (1982) (quoting WebsteR’s Third New WoRld Int’l Dictionary 216 (1971)).

These definitions are consistent with the “almost universal ]” definition of a “billy” as a “policeman’s club” or “truncheon.” In the Interest of Doe, 10 HawApp. 404, 876 P.2d 1348, 1350 (1994). The Florida Supreme Court intended this meaning of the word “billy” when it wrote that the town marshal of Graceville “struck the deceased over the head with his ‘billy’ before shooting him with a pistol.” Teal v. State, 119 Fla. 394, 161 So. 422, 422 (1935). While finding that a “policeman’s nightstick or billy club” was clearly a “billy” within the meaning of the New York Penal Law, one court “strictly interpreted” the term “to mean a heavy wooden stick with a handle grip which, from its appearance, is designed to be used to strike an individual and not for other lawful purposes.” People v. Talbert, 107 A.D.2d 842, 484 N.Y.S.2d 680, 682 (N.Y.App.Div.1985).

The statutory rule of lenity supports such a narrow interpretation of the term “billy.” The legislature has stated that criminal statutes “shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (2001). The plain and ordinary meaning of “billie” does not include a small baseball bat, which could also be a souvenir from a professional baseball game or a children’s toy. The bat is not designed to be used only to strike a person.

REVERSED.

WARNER and KLEIN, JJ., concur.

      . At trial, the two officers who testified characterized the bat as a "small wooden bat,” "small little bat,” "billy stick,” "billy bat,” and a "billy club.”

      . The small bat is not a "dirk,” which is a type of dagger. See Miller v. State, 421 So.2d 746, 747 n. 1 (Fla. 4th DCA 1982) (stating that " 'dirk' and 'dagger,' are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc.”); Evans v. State, 703 So.2d 1201, 1202 (Fla. 1st DCA 1997) (holding that a claw-type artificial hand did not qualify as a "dirk”).


text:
    HOLLYWOOD COMMUNITY SYNAGOGUE, Petitioner, v. THE CITY OF HOLLYWOOD and Edward O’Sheehan, Respondents.
    No. 4D03-3116.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.

      Franklin L. Zemel of Franklin L. Zemel, P.A., and Broad and Cassel, Fort Lauder-dale, for petitioner.
    Daniel L. Abbott, City Attorney and Tracy A. Lyons, Assistant City Attorney, Hollywood, for respondent City of Hollywood.
    Edward J. O’Sheehan, Hollywood, pro se.
   PER CURIAM.

On certiorari review of the City of Hollywood Development Review Board’s decision to grant a special exception to permit Hollywood Community Synagogue to operate a house of worship on property zoned for single family use, the circuit court determined that the matter was moot because the limited special exception had expired. While this ruling was correct, the court made an additional determination that the Board erred in granting the special exception based upon administrative res judicata. The Synagogue has petitioned for certiorari review to this court. We dismiss the petition as moot because the special exception has expired, and a new special exception applied for by the Synagogue was denied by the City Commission, not on the ground of administrative res judicata, but because it failed to satisfy the requirements for granting a special exception. Thus, any determination of this court would have no practical effect, rendering the petition moot. See Du Bose v. Meister, 92 Fla. 995, 110 So. 546, 546-47 (1926) (refusing to review writ of prohibition entered in case where plaintiff sought cancellation of real estate license that had already expired, because “no practical result could be attained by reviewing the questions” presented); Gulf Life Ins. Co. v. Newell’s Inc., 226 So.2d 858, 859 (Fla. 4th DCA 1969) (dismissing appeal as moot because no practical results could be obtained by reviewing questions presented).

Dismissed as moot.

STONE, WARNER and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    Jude CAZEAU, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1667.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Laura Fisher Zibura and Heidi L. Bettendorf, Assistant Attorneys General, West Palm Beach, for appellee.
   STEVENSON, J.

Jude Cazeau appeals his conviction for aggravated stalking, arguing that the trial court erred in denying his motion for judgment of acquittal or, alternatively, that fundamental error in the jury instructions entitles him to reversal and a new trial. We reject Cazeau’s contention that he was entitled to a judgment of acquittal. We agree, though, that the jury instructions given were inadequate, requiring reversal, and we write to address this issue.

Cazeau was charged with aggravated stalking in violation of section 784.048(4), Florida Statutes (2002), which provides as follows:

Any person who, after an injunction for protection against ... domestic violence ... knowingly, willfully, maliciously, and repeatedly follows or harasses another person commits the offense of aggravated stalking, a felony of the third degree.

In order to convict a defendant of aggravated stalking under this statute, as an element of the crime, the State must prove that the defendant had knowledge of the injunction. See State v. Johnson, 676 So.2d 408, 411 (Fla.1996).

In the instant case, though, the jury was never told that to convict Cazeau of aggravated stalking, it must first find that the defendant had knowledge of the injunction. Cazeau acknowledges that he never requested such an instruction below nor objected to the instructions that were given and, therefore, is entitled to relief on appeal only if the error is fundamental. “[T]he failure to instruct on a particular element of a crime is fundamental error when that element is disputed at trial.” Jones v. State, 857 So.2d 969, 970 (Fla. 2d DCA 2003) (citing State v. Delva, 575 So.2d 643, 645 (Fla.1991)); see also Guitterrez v. State, 837 So.2d 1095, 1096-97 (Fla. 4th DCA 2003) (citing Reed v. State, 837 So.2d 366, 369 (Fla.2002)).

Through cross examination and arguments advanced both in support of the motion for judgment of acquittal and in closing, defense counsel made Cazeau’s knowledge of the injunction a disputed issue at trial. Thus, we are compelled to reverse his conviction and remand for a new trial. See Gaspard v. State, 848 So.2d 1161 (Fla. 1st DCA) (reversing aggravated stalking conviction where jury was not instructed that defendant’s knowledge of injunction was an element of the crime and this issue was disputed at trial), supplemented on reh’g, 845 So.2d 986 (Fla. 1st DCA 2003).

AFFIRMED in part; REVERSED in part; and REMANDED.

STONE and HAZOURI, JJ., concur.

      . We acknowledge that there is language in this court’s opinion in Livingston v. State, 847 So.2d 1131 (Fla. 4th DCA 2003), which could be construed in a manner contrary to the supreme court's holding in Johnson. The issue in Livingston was whether reversal of the aggravated stalking conviction was required as a consequence of the failure to serve the injunction on the defendant. We take this opportunity to clarify that the case does not stand for the proposition that the State need not prove that the defendant had knowledge of the injunction in order to sustain a conviction under section 784.048(4).

      . Our holding that the failure to instruct on the knowledge element requires reversal renders moot Cazeau’s additional claim regarding the propriety of the jury instruction concerning the term "maliciously.”


text:
    Anthony DELOPA, Appellant, v. David B. COHEN, Appellee.
    No. 4D03-3658.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Jonathan R. Kaplan of Law Offices of Kaplan & Hutchinson, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   GROSS, J.

Anthony Delopa appeals a final judgment of injunction for protection against repeat violence entered under section 784.046, Florida Statutes (2002). We reverse because neither the testimony at the extension hearing nor the sworn petition for injunction for protection demonstrated two incidents of violence that are necessary to constitute “repeat violence” under the statute.

Based on appellee David Cohen’s sworn petition, the circuit court entered a temporary injunction for protection against repeat violence. The temporary injunction set an extension hearing on August 7, 2003. Both Cohen and Delopa appeared and testified at the extension hearing.

Section 784.046(2) creates a cause of action for an injunction for protection in “cases of repeat violence.” The statute defines “repeat violence” as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b). The two incidents of violence must be supported by competent substantial evidence. See Ravitch v. Whelan, 851 So.2d 271, 273 (Fla. 5th DCA 2003). The definition of “violence” is “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a).

At the injunction hearing, Cohen’s testimony did not establish “repeat violence” within the meaning of the statute. Cohen described one incident which involved no physical violence and, in the light most favorable to him, constituted an assault. Cohen generally mentioned receiving “threatening phone calls” after filing the petition, but he did not specify the caller or their contents. The petition alluded to an incident involving Cohen’s ex-girlfriend; however she is not an “immediate family member” within the meaning of the statute. Similarly, the petition’s vague reference to threats over the phone did not amount to a “course of conduct” sufficient to constitute stalking. See § 784.048(l)(b), Fla. Stat. (2002). No testimony at the extension hearing amplified these nebulous allegations of the petition.

Because the evidence did not establish “repeat violence,” the final judgment of injunction for protection against repeat violence is reversed. See Buerster v. Fermin, 844 So.2d 804, 805 (Fla. 4th DCA 2003) (reversing final judgment for injunction where the petitioner’s own testimony demonstrated that only one act of violence, if any, occurred); Orr v. Koutsogiannis, 829 So.2d 962 (Fla. 4th DCA 2002) (holding that the evidence only supported one instance of violence; subsequent threats which were not taken seriously by petitioner did not amount to violence under section 784.046); Gianni v. Kerrigan, 836 So.2d 1106, 1107 (Fla. 2d DCA 2003) (finding that phone calls did not qualify as acts of violence when the petitioner testified that he was not put in fear by the calls).

REVERSED.

WARNER and KLEIN, JJ., concur.


author: GUNTHER, J.

text:
    Elizabeth GANNON f/k/a Elizabeth Amir, Appellant, v. Ofer AMIR, Appellee.
    No. 4D03-2141.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Thomas R. Eineman of Thomas R. Eine-man, P.A., Spring Hill, for appellant.
    Stephen Rakusin of Rakusin & Plotka, P.A., Fort Lauderdale, for appellee.
   GUNTHER, J.

Elizabeth Gannon and Ofer Amir entered into a Marital Settlement Agreement that was subsequently .incorporated into their final dissolution of marriage. The agreement contained terms addressing visitation of their two children. It is these terms that are at issue in Gannon’s appeal. We reverse the trial court’s interpretation of these terms.

At the time the agreement was negotiated, Gannon was living in Pasco County, having already relocated from Broward County. The agreement established Gan-non as the primary residential parent of the children. Amir was provided with one month of visitation during the summer, alternate holidays from school, and weekends. In practice, Amir exercised visitation with the children every other weekend.

The agreement also contained provision 3(d) allowing Amir “substitute visitation” in the event that Gannon relocated:

Husband agrees not to restrict in any manner where the Wife lives. Wife shall use good faith if she desires to relocate with the children for health reasons, economic reasons, professional reasons or if she remarries. In the event that the Wife relocates then the Husband/Father shall be entitled to substitute visitation with the children as is specified in provision 5.

(Emphasis added). Provision 5 of the agreement provided:

In the event that the Wife relocated] north of Pasco County, Florida or outside the State of Florida, Husband shall be entitled to extended and/or additional visitation time with the children. Husband may opt to have two months during the summer and the entire Christmas/Hanukkah vacation the children will have from school.

A dispute resulted over the interpretation of these provisions when Gannon moved north of Pasco County to Hernando County.

After Gannon’s move to Hernando County, Amir informed Gannon that he would be keeping the children for the entire summer and having visitation with them for the entire Christmas/Hanukkah break. Gannon responded that he was entitled to do so, but that he would not have weekend visitation with the children as a result.

The trial court considered these conflicting interpretations of the agreement at a hearing and concluded that the agreement was ambiguous. The trial court ruled that Amir’s interpretation was correct, and awarded Amir summer and Christmas/Hanukkah visitation, in addition to his weekend visitation.

We conclude that the agreement is unambiguous in that it provides for “substitute visitation” should Gannon relocate. The word “substitute” by definition indicates “a person or thing that takes the place of another.” Webster’s New Collegiate Dictionary 1153 (1980 ed.). Awarding Amir both standard visitation and substitute visitation is at odds with the plain meaning of the term “substitute visitation.” Such visitation is intended to substitute for, or take the place of, standard visitation if Gannon moves north of Pasco County and Amir so chooses. Amir is entitled to one or the other, not both.

This conclusion is not altered by the fact that provision 5 uses the term “extended and/or additional visitation time.” Provision 5 does not include any reference to weekend visitation as a component of substitute visitation. Rather, the visitation provided for functionally extends or results in additional visitation time as to the standard visitation of the summer and Christmas/Hanukkah vacation. Because Gannon relocated, Amir has the option to receive extended summer visitation (two months instead of one month) and additional holiday visitation (all Christmas/Hanukkah holidays instead of alternating holidays). These terms do not alter or make ambiguous our interpretation of the contract, as Amir may opt for “substitute visitation,” accepting extended summer and additional vacation time periods of visitation but relinquishing shorter summer, fewer vacation, and weekend time periods of visitation. As a result, we reverse and remand for entry of a final judgment consistent with this opinion.

As to the issue raised on cross-appeal by Amir, this Court is without jurisdiction. The order appealed in this case reserves ruling on the issue of attorney’s fees, and no subsequent order or hearing transcript is included in the record to indicate that a ruling was made on attorney’s fees. Because there is no evidence that the trial court entered an order or made a ruling on attorney’s fees, this Court has no appealable non-final or final order to consider.

REVERSED AND REMANDED.

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


text:
    BROWARD COUNTY, Appellant, v. ELLER DRIVE LIMITED PARTNERSHIP, a Florida limited partnership, Appellee.
    No. 4D03-3718.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Edward A. Dion, Andrew J. Meyers and James D. Rowlee, Fort Lauderdale, for appellant.
    Clifford M. Stein, Miami Beach, for ap-pellee.
   PER CURIAM.

The trial court signed a final judgment on May 20, 2003, but neither side received a copy of the judgment until after the appeal time had run. On July 18, 2003, after the county became aware of the entry of the judgment, it filed a verified rule 1.540(b) motion to vacate, which the trial court denied. Florida Rule of Civil Procedure 1.080(h)(1) requires that conformed copies of all orders must be mailed to all parties. When a party does not receive a copy of an order in time to appeal it, and it was agreed that the county did not in this case, the trial court must grant a motion to vacate under rule 1.540(b) and enter a new order. Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298 (Fla. 4th DCA 1998) and cases cited. Reversed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Richard S. FISCHER and Robert A. Fischer, Jr., personal representatives of the Estate of Robert A. Fischer, Sr., and the Estate of Robert A. Fischer, Sr., Petitioners, v. Jeanne M. FISCHER, an individual, Respondent.
    No. 4D03-4590.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.

      William R. Ponsoldt, Jr. of Wright, Pon-soldt & Lozeau Trial Attorneys, L.L.P., Stuart, for petitioners.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Noel A. Bobko of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for respondent.
   PER CURIAM.

Plaintiffs challenge an order of the trial court granting in part a motion to dissolve their notice of lis pendens. We grant the petition.

The estate of Robert A. Fischer, Sr. and the personal representatives of the estate (Plaintiffs) filed a declaratory judgment action against the decedent’s surviving spouse, claiming for the estate a fifty-percent interest, as a tenant in common, in a condominium which she and the decedent acquired during the marriage as tenants by the entireties. Their claim is based on the fact that the couple had separated prior to the decedent’s death and that certain language in the couple’s prenuptial agreement provided for an immediate division of the couple’s assets in the event of their separation.

In connection with the pending litigation, Plaintiffs filed a notice of lis pendens as to the condominium. The wife moved to dissolve the lis pendens or, in the alternative, to amend it to allow her to mortgage her clear interest in the property— the fifty-percent interest which Plaintiffs do not claim. At the hearing on the motion, the trial court not only required the showing of a nexus between the ownership of the property and the dispute embodied in the lawsuit in order to prevent dissolution of the lis pendens, but also appeared to require that the lis pendens be founded upon a recorded instrument. Orally, it ordered that the lis pendens be dissolved and the wife be allowed to mortgage the condominium, but only up to half its appraised value; the written order, however, provided that the lis pendens be dissolved only in part, with the specific provision that the wife might encumber the property with any mortgage up to fifty percent of its appraised value.

Section 48.23(3), Florida Statutes (2003), applies when the initial pleading does not show that the claim is based on a recorded instrument or chapter 713 lien; it allows the court to control and discharge notices of lis pendens as it may grant and dissolve injunctions. In the case of a section 48.23(3) lis pendens, the court cannot dissolve the lis pendens if the proponent establishes “a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993). At the hearing, Plaintiffs did so.

Notices of lis pendens are recorded for two purposes: to protect future purchasers or encumbrancers of the property from becoming “embroiled” in the dispute, and to protect the plaintiff from “intervening liens that could impair any property rights claimed and also from possible extinguishment of the plaintiffs unrecorded equitable lien.” Id. If the lis pendens, in part, was not dissolved, third parties should still be protected from taking any action with respect to the property without notice of Plaintiffs’ claim to it; however, allowing the wife to mortgage the entire property, when her right to half of it is in dispute, fails to protect Plaintiffs from the possibility that she may encumber the property in such a way as to alienate their claimed interest, not only her own undisputed interest.

Accordingly, we conclude that the trial court departed from the essential requirements of law in dissolving the lis pendens and allowing the wife to place a mortgage on the entire property, albeit limited to half its appraised value. We quash the order on review, and direct the trial court to reinstate the lis pendens in full, subject to the posting of a reasonable bond.

GUNTHER, POLEN and MAY, JJ., concur.

      . We note that, if she can find a willing lender, the wife certainly may mortgage her interest in the property, which at minimum appears to be an undivided one-half interest as tenant in common. However, the interest of a prospective mortgagee would be subject to whatever interest, if any, Plaintiffs may be determined in the pending litigation to have in the property, due to their previously recorded notice of lis pendens.


text:
    John DELLICARPINI, Appellant, v. Thomas and Viola KERR, Diane St. Hubert, Construction Industries Recovery Fund, Irvin Nathaniel Cone, d/b/a Oceanview Industries, and Department of Business and Professional Regulation, Appellees.
    No. 4D03-5029.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.
    Gail Scott Hill, Assistant General Counsel, Tallahassee, for appellee Department of Business and Professional Regulation.
   PER CURIAM.

In this appeal, the appellee, Department of Business and Professional Regulation, concedes error and acknowledges that the final order suspending John Dellicarpini’s contracting license, and ordering him to repay the Construction Industries Recovery Fund in the amount of $24,900.00, should be reversed. Likewise, the Department concedes that Dellicarpini is entitled to attorney’s fees and costs, pursuant to section 57.111, Florida Statutes (2002). Both parties have indicated they have reached a stipulation regarding the appropriate amount of fees and costs due, and the Department shall award this amount upon remand. In the event the parties are unable to agree to this amount, the matter shall be referred to the Division of Administrative Hearings for resolution.

REVERSED AND REMANDED.

FARMER, C.J., WARNER and GROSS, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Petitioner, v. Jorge M. MARTINEZ a/k/a Shauquie Rossman, Respondent.
    No. 4D04-1146.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Carolyn J. Mosley, Tallahassee, for petitioner.
    No response required for respondent.
   PER CURIAM.

The Department of Corrections seeks certiorari review of a circuit court order directing it to award respondent gain time for time served in Broward County Jail waiting to testify. It is well settled that the sentencing court lacks authority to award gain time to state prisoners, as this is a matter within the exclusive province of the Department of Corrections. See Crosby v. Harvey, 861 So.2d 102, 102 (Fla. 4th DCA 2003).

Therefore, we grant the petition for writ of certiorari and quash the circuit court’s order.

PETITION GRANTED.

WARNER, POLEN and GROSS, JJ., concur.


text:
    William B. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3758.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot. See Rosales v. Moore, 775 So.2d 971 (Fla. 1st DCA 2000); Edwards v. State, 765 So.2d 222 (Fla. 2d DCA 2000); Lee v. State, 230 So.2d 478 (Fla. 4th DCA 1970).

ERVIN, BENTON and LEWIS, JJ„ concur.


author: BROWNING, J.

text:
    Michele T. PORTER, Appellant/Cross-Appellee, v. Todd A. PORTER, Appellee/Cross-Appellant.
    No. 1D03-2124.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Cindy L. Lasky, of the Law Offices of Ned I. Price, P.A., Jacksonville, for Appellant/Cross-Appellee.
    Nancy N. Nowlis, Jacksonville, for Ap-pellee/Cross-Appellant.
   BROWNING, J.

The former wife appeals, and the former husband cross-appeals, a final judgment of dissolution of marriage. The former wife contends that the trial court abused its discretion in denying permanent periodic alimony and rehabilitative alimony. The former husband asserts that the court abused its discretion by including the following reservation in Paragraph 4 of the final judgment:

The Court retains jurisdiction to award permanent periodic alimony in the future in a modification action upon the showing of a permanent, material, significant, and involuntary change of circumstances.

Concluding that the trial court decided the issue of alimony based partly on the erroneous imputation of income to the former wife without supporting factual findings and partly on a miscalculation of the amount of equity in the marital residence, we reverse the final judgment in part and remand for reconsideration of the claim for alimony. On remand, the court is instructed to strike the objectionable sentence from Paragraph 4. See Llopis v. Llopis, 731 So.2d 719, 720 n. 2 (Fla. 3d DCA 1999); Roy v. Roy, 522 So.2d 75 (Fla. 4th DCA 1988).

The parties were married in January 1989, had two children, and separated for the final time after 12-1/2 years of marriage. In her counter-petition for dissolution, the former wife sought alimony (temporary, lump-sum, permanent periodic, and/or rehabilitative), inter alia. She requested sole interest and exclusive ownership and possession of the marital residence as lump-sum alimony. The fair market value of the marital home was $212,000.00.

The parties enjoyed a comfortable standard of living during the marriage. The former husband was a program manager in the United States Navy. The trial court accepted the figures in his amended financial affidavit listing his respective gross and net monthly incomes as $7,354.87 and $5,286.59. During the marriage, the former husband was promoted from an ensign earning $18,000.00-$20,000.00 a year to a Senior 0-4 lieutenant commander earning more than $93,000.00 a year. He was slated for a promotion to 0-5, including an increase in base pay, but that was on administrative hold. The testimony indicated that, more likely than not, he would be promoted to commander once the divorce was finalized.

The former wife has a B.S. degree in aerospace engineering, earned in 1987 from the University of Southern California. She worked for McDonnell Douglas as an aerospace engineer until her marriage in 1989 and then as a systems engineer for Lockheed Missiles & Space until the birth of the parties’ first child. She also was a reserve officer in the United States Air Force for eight years after college graduation. The former wife testified that her last annual salary amount at Lockheed was in the $33,000.00-$37,000.00 range, whereas the former husband testified that, to his knowledge, the former wife’s last annual salary was in the $40,-000.00-$45,000.00 range. When the children were born, the former wife became a full-time homemaker and assumed primary responsibility for caring for the children and maintaining the family home. The former husband was the primary wage-earner in the family. The parties mutually agreed that the former wife would not work outside the home until the children (born in February 1992 and August 1997) started school. The former wife’s financial affidavit stated that as of November 2002, she was unemployed, earned zero income, and had no pension. Her sole source of financial support during the pendency of the dissolution proceedings was the former husband’s temporary support payments.

The former wife testified at the final hearing that having been out of the aerospace engineering field for 10-11 years, she could not return there because she would have to be paid more than a recent graduate in this field, yet she lacked recent experience, technological training, and computer expertise. She believed that her career in aerospace engineering would be over even if she were to earn a master’s degree, for she would be overqualified but would not have enough experience. She testified that Boeing had just laid off 30,-000 employees and that other employers in the field were cutting back their workforces. She had looked at newspaper and Internet listings for jobs in her field in North Florida and Maryland (where the former husband was transferred after the parties’ final separation) and had found none for someone with her particular experience and circumstances. Although Jacksonville had a re-work facility, the former wife testified that the naval base did not have engineers. She was unaware of any available aerospace engineering positions in Jacksonville. She testified that aerospace engineering jobs are located predominantly in California, with a few in the Washington, D.C., area and one small facility in Orlando. When asked whether the average annual pay for engineers is in the $40,000.00-$50,000.00 range or higher, the former wife testified that the salary depends on one’s level of experience. She stated that the starting annual salary range is $28,000.00-$30,000.00. On the other hand, the former husband testified that he was fairly familiar with the available jobs due to the aerospace Navy contract work done at his base. He stated that his Internet job search had shown about 144 “hits” for persons with engineering experience, e.g., field space engineering and system integration in Baltimore, Maryland. He said that an Internet “hit” disclosed fewer (about 60) available jobs in the field in Jacksonville, but he had found some general engineering positions available with annual salary ranges of $40,000.00-$80,000.00 for persons with engineering experience.

The former wife testified that she wanted to leave her major field and earn a master’s degree either in education or in teaching, with the goal of teaching mathematics and science at the middle-school level. She testified that she would need 70-75 credit hours at a total cost of $9,375.00 to obtain a master’s degree in education at the University of North Florida (U.N.F.); or 51-53 credit hours at a total cost of $15,300.00 for a master’s degree in teaching at Jacksonville University (J.U.). To enroll in such a program, she would have to obtain a college transcript, take the G.R.E., and apply to and be accepted at a school, none of which she had done as of the date of final hearing. The former wife testified that she would need 2-/é to 3 years’ education at J.U. or close to 4 years’ education at U.N.F. because she lacks an undergraduate background in education. She testified that the starting salary for a middle-school teacher in the area was $29,000.00 and was slightly less for an elementary-school teacher. Neither party presented a vocational expert. Assuming three semesters per calendar year, the court found that the former wife could complete, the J.U. requirements in four semesters.

• The trial court found that the former wife did not have a sincere desire to obtain a master’s degree in teaching or education or to become a teacher. The court found that her rehabilitation plan would not provide the former wife with an earning capacity superior to what she already has with her bachelor’s degree and significant work experience in aerospace engineering. Given these findings, the court denied rehabilitative alimony.

“In determining whether to award permanent periodic alimony, the court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Krafchuk v. Krafchuk, 804 So.2d 376, 381 (Fla. 4th DCA 2001). After discussing the required factors enumerated in section 61.08(2), Florida Statutes, the trial court determined that the former wife is not entitled to permanent periodic alimony either. The court found that the former wife is young (37 years old during the dissolution trial), intelligent, and well-educated, with meaningful work experience. The court found that with the aid of child support, the former wife will be able to maintain the marital standard of living. The court concluded, however, that because her work experience ended years ago, the former wife will require some time to secure employment reasonably commensurate with her education, abilities, and earnings history. The court found that during this transitional period, the former wife will need support separate from, and additional to, child support. The court found that these facts and needs constitute “unusual circumstances” requiring a non-modifiable award of lump-sum alimony, which the court deemed “bridge-the-gap alimony.” See Porzio v. Porzio, 812 So.2d 485, 486 n. 1 (Fla. 5th DCA 2002); Bryan v. Bryan, 765 So.2d 829, 831 (Fla. 1st DCA 2000) (acknowledging the purpose of “bridge-the-gap” alimony is to assist the payee spouse’s transition from married to single life); Vanbrussel v. Vanbrussel, 710 So.2d 170, 172 (Fla. 1st DCA 1998). The court determined that the former wife needs, and the former husband is able to pay, lump-sum alimony in the amount of $12,000.00, which is to be paid in 12 periodic monthly installments of $1,000.00. Any balance owed in the event of the former husband’s death would survive and become an obligation of the estate. See Borchard v. Borchard, 730 So.2d 748 (Fla. 2d DCA 1999). The former wife challenges the denial of permanent periodic alimony and rehabilitative alimony.

In denying permanent periodic alimony, the trial court essentially imputed a current income-earning capacity to her based on 1992 figures and also found that the marital residence had actual, substantial equity in the amount of $79,333.00. As to the former wife’s income, the court accepted the former husband’s testimony that when the former wife left aerospace engineering work in 1992 to become a full-time homemaker, her annual salary range was $40,000.00-$45,000.00. The court rejected the former wife’s testimony that she had earned substantially less in 1992. In so doing, the trial court exercised its authority to resolve conflicting facts. See Hyotlaine v. Hyotlaine, 356 So.2d 1319, 1320 (Fla. 4th DCA 1978). However, by imputing current income-earning capacity to the former wife in the 2003 final judgment based on her 1992 salary earned in California, without conducting a full and proper inquiry about her current employment prospects and making particularized findings, the trial court erred as a matter of law. See LaFlam v. LaFlam, 854 So.2d 809 (Fla. 2d DCA 2003) (concluding that trial court’s imputation of income to former wife in amount she had earned when she left work force 13 years earlier was unsupported by competent substantial evidence); Wendel v. Wendel, 805 So.2d 913 (Fla. 2d DCA 2001); Robinson v. Robinson, 713 So.2d 437 (Fla. 2d DCA 1998); Vick v. Vick, 675 So.2d 714, 717 (Fla. 5th DCA 1996) (on mot. for clarif. and/or reh’g) (remanding for trial court to identify with particularity the respective sources of both parties’ imputed incomes); Cushman v. Cushman, 585 So.2d 485 (Fla. 2d DCA 1991). Among the “relevant economic factors” to be considered in determining entitlement to alimony are “[a]ll sources of income available to either party.” § 61.08(2)(g), Fla. Stat. (2001). In Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999), we stated:

In determining actual income for purposes of awarding alimony, the trial court must set forth factual findings regarding a spouse’s probable and potential level of earnings, the source of actual and imputed income, and any adjustments to income.

Id. at 643.

Another factor considered by the trial court in determining the former wife’s financial situation was the marital residence. Competent substantial evidence supports the findings that the home had a fair market value of $212,000.00 and a mortgage owed in the amount of $132,667.00. The court construed these figures as yielding an equity in the residence in the amount of $79,333.00. The former wife correctly notes that the analysis should not end there. The court found “there was no testimony regarding whether one or both parties will experience a capital gains taxable event as a result of the sale of the marital home.” In fact, the former wife testified without objection that the marital home had been used as rental property when the parties did not reside there, and that because the parties had depreciated the property as a rental one, the penalty for recapturing the depreciation would reduce the equity to around $35,000.00. To the extent that the trial court apparently overlooked this testimony and based the denial of permanent periodic alimony partly on the erroneous assumption that the former wife could obtain a one-half share of the total equity (in the significantly higher amount) if she elected to sell the home, the issue must be reconsidered on remand.

The trial court is instructed 1) to conduct a full and proper inquiry regarding the former wife’s current employment prospects before current income is imputed, in accordance with LaFlam and Smith; and 2) to reconsider the matter of equity in the marital residence in light of the former wife’s unrefuted testimony, before making a final determination as to whether she is entitled to alimony. The court may receive additional evidence if it chooses. See Askegard v. Askegard, 524 So.2d 736, 738 (Fla. 1st DCA 1988).

We REVERSE the final judgment of dissolution of marriage in part, REMAND the case for reconsideration of the issue of alimony consistent with this opinion, and INSTRUCT the trial court to strike the single objectionable sentence in Paragraph 4 concerning the retention of jurisdiction to award permanent periodic alimony in the future in a modification action. The final judgment of dissolution of marriage is AFFIRMED in all other respects.

ERVIN and DAVIS, JJ. CONCUR.


text:
    Gladys E. HULSE, Appellant, v. Reynold N. HULSE, Appellee.
    No. 1D03-2653.
    District Court of Appeal of Florida, First District.
    May 21, 2004.

      Rebecca Bowen Creed, of Mills & Carlin, P.A., Jacksonville, for appellant.
    Robert W. Elrod, Jr., of Robert W. El-rod, P.A., Jacksonville, for appellee.
   PER CURIAM.

The former wife, Gladys E. Hulse, appeals an order denying her Supplemental Petition for Modification of Final Judgment, and granting the Motion to Dismiss filed by the former husband, Reynold N. Hulse. Specifically, the former Wife sought to increase the monthly payments from the Husband’s military retirement benefits awarded to her in the final judgment of dissolution of their marriage entered some eleven years earlier. We reject appellant’s contention that based upon the decisions in Petty v. Petty, 548 So.2d 793 (Fla. 1st DCA 1989), and Robinson v. Robinson, 647 So.2d 160 (Fla. 1st DCA 1994), the trial court was compelled to treat the periodic payments as alimony rather than as an equitable distribution. Unlike the judgments in those and similar cases, the Final Judgment in the case before us explicitly provided, in pertinent part:

2. Neither party shall be entitled to receive alimony....
16. The Wife ... shall receive as equitable distribution from Husband’s [ ] retirement or retainer pay from the United States Navy, the sum of $700 per month, payable monthly....

(Emphasis added.)

The trial court adequately addressed the factors considered in Petty and Robinson, in light of the explicit language of the Final Judgment, and found that the former Wife’s periodic payments from the former Husband’s military retirement benefits were non-modifiable property distributions, and not alimony. Finding no reversible error in the trial court’s ruling, we affirm the trial court’s denial of the petition for modification. See, McIntyre v. McIntyre, 824 So.2d 206 (Fla. 2d DCA 2002); Hughes v. Hughes, 553 So.2d 197 (Fla. 2d DCA 1989).

AFFIRMED.

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


text:
    Christopher BENTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1133.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Christopher Benton, petitioner, pro se.

      Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

KAHN, WEBSTER and BROWNING, JJ., concur.


author: DAVIS, Judge.

text:
    Edward Lee LIVAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1191.
    District Court of Appeal of Florida, Second District.
    May 21, 2004.
    Elizabeth Greer of Dodds & Farrell, P.A., Lakeland, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Edward Lee Livar challenges his conviction and sentence for petit theft, raising three issues on appeal. Because the trial court improperly instructed the jury, we reverse.

The State charged Livar with grand theft of an' automobile and petit theft of a check. At trial, after the State rested, the trial court granted Livar’s motion to dismiss the petit theft charge. However, during the charge conference, the State requested that the trial court instruct the jury on petit theft as a lesser included offense of grand theft of an automobile. Counsel for Livar objected, arguing that there were no logical lesser included offenses for grand theft of an automobile. The trial court disagreed and gave the instruction. Following deliberations, the jury returned a verdict of guilty as to the lesser included offense of petit theft.

Section 812.014(3)(a), Florida Statutes (2002), provides: “Theft of any property not specified in subsection (2) is petit theft of the second degree.... ” In Lewellen v. State, 682 So.2d 186, 187 (Fla. 2d DCA 1996), this court noted that “[tjheft of a motor vehicle is specified in subsection (2) and classified as grand theft of the third degree, a third[-]degree felony. Thus, pet-it theft is not a proper lesser included offense of grand theft of a motor vehicle.” (Citing Johnson v. State, 380 So.2d 1024, 1026 (Fla.1979).) Accordingly, the trial court here erred in giving the petit theft instruction. Because the error was preserved by objection below, see id. at 188, we must reverse Livar’s conviction. As such, we need not address the other two issues raised by Livar on appeal.

Reversed.

SILBERMAN and COVINGTON, JJ., concur.


author: COVINGTON, Judge.

text:
    Billy Ray McABEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-69.
    District Court of Appeal of Florida, Second District.
    May 21, 2004.
    Billy Ray McAbee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Billy Ray McAbee appeals the denial of his posteonviction motion pursuant to Florida Rule of Criminal Procedure 3.850. McAbee filed his original postconviction motion on March 31, 2000, raising eight claims of ineffective assistance of counsel. The trial court issued an order denying three of McAbee’s claims and ordering the State to respond to the remaining five.

Before the State responded to the court’s order, McAbee filed a pro se motion to amend in order to add two new claims of ineffective assistance of counsel. Neither the State’s response nor the trial court order granting an evidentiary hearing addressed McAbee’s two new claims. Following the May 2, 2002, evidentiary hearing, the trial court entered its order denying the postconviction relief on the original claims. Apparently, the trial court never ruled on McAbee’s motion to amend.

In a pro se brief, McAbee argues on appeal that the trial court erred in failing to consider the two issues in his amended motion. McAbee filed his motion to amend before the final order on his original motion issued and before the statutory time limit of two years from the June 7, 1999, appellate mandate expired. See McAbee v. State, 736 So.2d 1190 (Fla. 2d DCA 1999) (table decision). Consequently, the trial court erred in failing to consider the two additional issues. See Gaskin v. State, 737 So.2d 509, 517-18 (Fla.1999); Ramirez v. State, 854 So.2d 805, 806-07 (Fla. 2d DCA 2003) (holding trial court erred in not considering merits of new allegations in rule 3.850 amendment, even though order denying original motion in part had been entered, where court had not entered final order disposing of original motion); Beard v. State, 827 So.2d 1021, 1021 (Fla. 2d DCA 2002); Lang v. State, 826 So.2d 433, 435 (Fla. 2d DCA 2002); Harris v. State, 826 So.2d 340, 341 (Fla. 2d DCA 2002) (holding failure to rule on merits of supplement was error). Accordingly, we affirm without further discussion the denial of the original motion for postconviction relief but remand for the trial court to consider the two additional issues McAbee raised in his amendment.

Affirmed in part, reversed in part, and remanded.

STRINGER and VILLANTI, JJ„ concur.


author: NORTHCUTT, Judge.

text:
    Christopher L. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1775.
    District Court of Appeal of Florida, Second District.
    May 21, 2004.
    James Marion Moorman, Public Defender, and Jean-Jacques A. Darius, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Christopher Jones appeals convictions for sexual battery and aggravated battery. We affirm the convictions without discussion but remand for correction of a scrivener’s error. As Jones argues, and the State concedes, the judgment reflects a conviction for sexual battery under section 794.011(3), Florida Statutes (2001), when Jones was actually convicted under section 794.011(4). On remand, the judgment must be corrected; Jones does not need to be present. We also affirm Jones’s designation as a sexual predator, see Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003); and we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

Affirmed; remanded; conflict certified.

STRINGER and DAVIS, JJ., concur.


text:
    James William McCLELLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-710.
    District Court of Appeal of Florida, Second District.
    May 21, 2004.
   PER CURIAM.

Affirmed. See McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003); Sigafoos v. State, 825 So.2d 529 (Fla. 2d DCA 2002); Wright v. State, 834 So.2d 879 (Fla. 3d DCA 2002). As this court did in McCall, we certify direct conflict with Richardson v. State, 28 Fla. L. Weekly D1716, — So.2d -, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

WHATLEY, NORTHCUTT, and CASANUEVA, JJ., Concur.


author: PER CURIAM. TORPY, J.,

text:
    James JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3238.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2004.
    James B. Gibson, Public Defender, and A.S. Rogers, 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.
   PER CURIAM.

AFFIRMED.

THOMPSON and ORFINGER, JJ., concur.

TORPY, J., concurs specially, with opinion.

TORPY, J.,

concurring specially.

I concur based upon Woods v. State, 542 So.2d 443 (Fla. 5th DCA 1989). See also Fla. R.Crim. P. 3.702(d)(19).


author: PLEUS, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gary PARRISH and Joellen Parrish, etc., Appellees.
    No. 5D03-2504.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2004.

      F. Bradley Hassell and Thomas C. Smith, Daytona Beach, for Appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Robert M. Moletteire of Graham, Moletteire & Torpy, P.A., Melbourne, for Appellees.
   PLEUS, J.

State Farm appeals a final declaratory judgment in favor of Gary and Joellen Parrish as Personal Representatives of the Estate of Bradley Parrish. State Farm claims the trial court erred in finding that stacking uninsured motorist coverage was available to the Parrishes under their State Farm policy. The issue is whether the Parrishes knowingly selected non-stacking uninsured motorist insurance coverage, or, more specifically, whether State Farm met its burden of proving a non-stacking election.

Bradley Parrish was killed by an under-insured motorist in an automobile accident in 1999. Eight years before, in 1991, his parents, Gary Parrish and Joellen Parrish, had purchased an initial automobile policy from State Farm containing $100,000/$300, 000 in bodily injury limits. The policy did not provide for stacking and limited uninsured bodily injury to $25,000/$50,000. The policy was renewed annually until the accident. While the Parrishes’ policy also provided for $25,000/$50,000 underinsured motorist coverage, the lower court found it was impossible to tell definitively from the uninsured motorist (UM) form Mr. Parrish executed in 1991, whether or not he chose to reject “stacking” UM coverage.

The evidence at trial revealed that the Parrishes went to Eric Ponce’s State Farm agency to procure insurance coverage after they moved from Broward County to Bre-vard County in 1991. When Mr. Parrish explored his insurance options, he learned that his move would entitle him to a 40 percent savings on his annual insurance costs. The Parrishes both testified that their primary concern was to procure the same kind of “full coverage” they had possessed in Broward County, and that cost was not an issue. Eric Ponce’s employee, Pearl Wentz, met with Mr. Parrish. Unfortunately, long before Bradley Parrish’s death, Ms. Wentz herself passed away. However, Mr. Ponce testified that he had overheard her meeting with clients, and that he believed she likely would have discussed UM coverage with Mr. Parrish. Mr. Ponce’s knowledge of the transaction was based on the office policy and his belief that Ms. Wentz obtained a knowing waiver from/with the plaintiff; Mr. Ponce never spoke to the Parrishes directly about their insurance needs. “Stacking” UM coverage, as Mr. Ponce conceded, was not tremendously more expensive than “non-stacking” coverage.

The real issue in this case boils down to the way in which the application form, filled out in 1991, is checked and whether the check mark creates an ambiguity. The trial court says it does. We disagree.

Standard of Review

When the interpretation of an insurance contract is in question, the applicable standard of review is de novo. Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1029 (Fla. 4th DCA 2000).

Several rules for insurance policy interpretation were stated in Roberts v. Florida Lawyers Mutual Insurance Co., 839 So.2d 843 (Fla. 4th DCA 2003):
The scope and intent of insurance coverage is defined by the language and terms of the policy. In construing an insurance policy, the court should read the policy as a whole, giving every provision its full meaning and operative effect. Any ambiguities in an insurance policy are to be interpreted liberally and in favor of the insured and strictly against the insurer. A policy is ambiguous when the language is subject to “more than one reasonable interpretation, one providing coverage and another limiting coverage.”
Id. at 845 (citations omitted).

Larusso v. Garner, 29 Fla. L. Weekly D388, D389, — So.2d -, -, 2004 WL 396604 (Fla. 4th DCA Feb. 11, 2004).

Admittedly, this case is unique because the alleged ambiguity is not in the language of the form, but in the manner in which the form is filled out.

Analysis

Section 627.727, Florida Statutes (1991), requires that all motor vehicle liability insurance policies that provide bodily liability coverage include uninsured motorist coverage. Under section 627.727(1), the amount of UM coverage is equal to the amount of bodily injury liability purchased by an insured, unless the insured rejects UM coverage or selects lower limits of UM coverage. See Chmieloski v. Nat’l Union Fire Ins. Co., 563 So.2d 164, 166 (Fla. 2d DCA 1990). An insured may reject such coverage in writing, and the insured’s written rejection constitutes a prima facie showing that uninsured motorist coverage does not apply. Long v. Prudential Prop. & Cas. Ins., 707 So.2d 390, 391 (Fla. 5th DCA 1998) (citing Jackson v. State Farm Fire & Cas. Co., 469 So.2d 191, 193 (Fla. 2d DCA 1985)). With regard to the rejection or selection of UM coverage, section 627.727(1) specifically provides:

The rejection or selection of lower limits shall be made on a form approved by the Insurance Commissioner. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12 point bold type and shall state: “You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully.” If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.

Absent exigent circumstances such as forgery, fraud, or trickery, the insured is deemed to be bound by his signature on an informed rejection form. Long, 707 So.2d at 391; Nationwide Mut. Fire Ins. Co. v. Kauffman, 495 So.2d 1184, 1187 (Fla. 4th DCA 1986).

Here, the insured, Mr. Parrish, signed an approved uninsured motorist coverage rejection/selection form. However, when the trial court determined that the manner in which the form was completed created a patent ambiguity on its face, State Farm was unable to take advantage of the conclusive presumption of waiver in the statute.

The uninsured motorists rejection/selection form provides:

SELECTION/REJECTION OF COVERAGE
Florida Law requires that motor vehicle liability policies include “stacking” Uninsured Motorist coverage, unless you select “non-stacking” coverage. The selected coverage must be at limits equal to the Bodily Injury coverage limits in your policy unless you select lower limits of coverage. You also have the right to reject Uninsured Motorist coverage.
□ 1. I hereby reject Uninsured Motor Vehicle Coverage.
□ 2. I hereby select Uninsured Motor Vehicle Coverage with one or more of the following reductions:
□ a. I reject the stacking form of coverage and select the non-stacking form of coverage.
□ b. I select limits of $_/_which
are lower than my Bodily Injury Liability limits.

Our review of the form, attached as an exhibit to this opinion, shows the check mark was in box 2a., and not in between boxes 2a. and 2b., with part of the X lying in both boxes. Box 2b. is not checked but the numbers 25,000 and 50,000 are selected as the lower limits of bodily injury protection. The trial court found that the form, as filled out by the parties, had a patent ambiguity on its face because both boxes 2a. and 2b. would have to have been checked for the coverages listed in the policy ($25,000/50,000 uninsured bodily injury limits). This is not the case.

Apparently, this misunderstanding resulted in an incorrect interpretation of the form and caused the trial court to conclude that an ambiguity existed. The trial court said:

I notice that Plaintiffs’ Exhibit One has Block 2 checked, which says, I hereby select uninsured motorist, uninsured motor vehicle coverage with one or both of the following rejections. Then there follows two boxes, A and B. One which rejects stacking, the other selects lower limits. Only one of those two boxes is checked.
That’s patent ambiguity on the face of the form, because in order to issue this policy that State Farm issued, both of those blocks would have had to have applied. There is no indication in this form, as a matter of fact, that both blocks were selected.
So, I do find that there is an ambiguity in the election form, because both boxes are not checked. And indeed, it is unclear as to whether Box A or Box B or both are indicated. I, therefore, find that because there is an ambiguity in the form, it is not a valid election form.

We therefore reverse the trial court’s entry of declaratory judgment in favor of the Parrishes, which found stacking uninsured motorist coverage available under their insurance policy with State Farm. The trial court erred in finding a patent ambiguity on the face of the Florida Uninsured Motor Vehicle Coverage-Selection/Rejection Form. State Farm was entitled to rely upon Mr. Parrish s signature on the form as a conclusive presumption of the Parrishes’ knowing and voluntary waiver of stacking UM coverage.

REVERSED.

PETERSON and GRIFFIN, JJ., concur.


author: MONACO, J.

text:
    David H. KINSLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2190.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2004.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The sole issue presented to us for consideration in this appeal is whether the taking of property after a premeditated murder can support a conviction of robbery with a firearm, where the alleged motive for the murder was not the taking of the property. Because we conclude that the primary motive for the murder was for a reason not associated with the taking of property, we reverse the conviction of the appellant for robbery, but otherwise affirm.

The appellant, David Kinsler, was accused by indictment of committing three crimes. He was charged in Count I with the first-degree murder of his cousin. In this connection the State proceeded under both a premeditation and a felony-murder theory, the underlying felony being robbery. In Count II Mr. Kinsler was charged with robbery with a firearm, the specific items taken being described as a chameleon colored Chevrolet and cash. Finally, the State charged Mr. Kinsler in Count III with dealing in stolen property.

The evidence presented by the State established convincingly that the motive of Mr. Kinsler for killing his cousin, Roderick Kinsler (the “Victim”), was that he was angry with the Victim’s father because the appellant’s former girlfriend, Yolanda Smith, as well as the appellant’s and Ms. Smith’s child, were living with the Victim’s father. According to a number of witnesses presented by the State, the appellant frequently stated that because he was unhappy with the relationship between Ms. Smith and his uncle, he wanted to kill someone; either the Victim, the Victim’s brother, the Victim’s father, or Ms. Smith. Evidence was also presented that the appellant took the Victim’s automobile and $80.00 from his pocket, and later sold some of the parts of the Chevrolet to acquire money for the purchase of illegal drugs.

The appellant’s position at trial was that he accidentally shot the Victim with his .22 caliber rifle when he and the Victim stumbled through a remote section of woods looking to steal car parts from a nearby trailer park. He testified that he then took the keys to the Chevrolet from the Victim’s pocket, and left the scene in the vehicle. He denied taking the money from the Victim’s clothing, and said that the car parts that he sold came from a different vehicle. At the close of the State’s case, and again at the close of all of the evidence, the defense moved for a judgment of acquittal (albeit in a pro forma manner). The motion was denied in each instance.

During closing arguments the State argued that Mr. Kinsler was guilty of premeditated murder, and that the motive behind that crime was to “get even with somebody, to get back at somebody, to act out of revenge.” While acknowledging that motive is not an element of premeditated murder, the prosecutor argued that, “In this case, I submit to you that there was a motive that was clear and it was proved to you.”

Defense counsel discussed the armed robbery in his closing argument, as follows:

And let’s take a look at robbery for a minute in the jury instructions. Because I’ll tell you, and I would submit to you simply this, he’s not guilty of robbery because here the element of robbery is that David Kinsler took money and/or a 1983 Chevrolet from the person or persons or custody of Roderick Kin-sler. ...
You know, it says — that’s the first thing. There’s four elements. They have to prove all four of them beyond a reasonable doubt. The second one is force, violence or assault or putting in fear was used in the course of the taking. Well that undermines their own case. Because if you’re believing what they’re trying to tell you, they’re telling you that he killed him for revenge. This had nothing to do with a robbery. For money or for the car. And that’s from the State’s own evidence. So, what does that mean? Where does that put you? Where does that put you in terms of jury verdict. And this is interesting thing (sic) and this is how this works because you got a jury verdict here on robbery.

Defense counsel went further and discussed the matter of motive as presented by the State.

One thing that you can consider in this case is the defendant is not guilty of robbery. Because he didn’t do that. They’re talking about motive. They’re the ones that said that motive doesn’t have to be proven. It doesn’t have to— but they got up here. They said the motive was revenge. The taking of it was without the permission of the victim. In this case it would be a grand theft that would be proven beyond and to the exclusion of every single reasonable doubt under that set of circumstances in this case. So you don’t have to go in there and say look he shot him for that car and money. And I’ve got to take it or leave it.

The jury found Mr. Kinsler guilty of premeditated murder as charged in the indictment, but not of felony-murder. It also found Mr. Kinsler guilty of robbery with a firearm, and of dealing in stolen property. The trial court sentenced Mr. Kinsler to a life term of imprisonment in Count I, and a concurrent life term in Count II. He was sentenced to 15 years imprisonment on Count III, to be served consecutive to Counts I and II.

The statutory definition of robbery is the “taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Florida Statutes (2002). The issue before us boils down to whether the State proved beyond a reasonable doubt that the force and violence used by Mr. Kinsler was associated sufficiently with the taking element of this crime. Mr. Kinsler argues that the taking was an “afterthought,” and that the crime was, therefore, not proved. We agree.

There are two lines of cases emanating from the Florida Supreme Court that fairly well define when the “afterthought” defense to robbery can be successfully raised. The first line is headed by Mahn v. State, 714 So.2d 391 (Fla.1998). In that case the court concluded that the homicides committed by the defendant were not caused by the defendant’s desire to take certain money and a car from the victims. Instead, the evidence was that the homicides were committed out of jealousy, and that the taking of the money and car was an “afterthought.” Accordingly, the court held that robbery was not proved beyond a reasonable doubt.

The foundation for this conclusion was the high court’s decision in Jones v. State, 652 So.2d 346 (Fla.1995). In that case the court held that the threat or force element of robbery must be part of a continuous series of events associated with the taking element of the crime. The Jones court explained:

“An act is considered “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” 812.13(3)(b), Fla. Stat. (1989). Thus, a taking of property that otherwise would be considered a theft constitutes robbery when in the course of the taking either force, violence, assault, or putting in fear is used. We have long recognized that it is the element of threat or force that distinguishes the offense of robbery from the offense of theft. Royal v. State, 490 So.2d 44, 46 (Fla.1986), receded from on other grounds, Taylor v. State, 608 So.2d 804 (Fla.1992); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922). Under section 812.13, the violence or intimidation may occur prior to, contemporaneous with, or subsequent to the taking of the property so long as both the act of violence or intimidation and the taking constitute a continuous series of acts or events.

652 So.2d at 349. The Supreme Court thus concluded that where the motive for the murder was not the taking of property, robbery is not made out. See also, Knowles v. State, 632 So.2d 62 (Fla.1993); Parker v. State, 458 So.2d 750 (Fla.1984).

The second line of cases includes Beasley v. State, 774 So.2d 649 (Fla.2000). In Beasley, the victim of the homicide was the manager of an apartment complex at which the defendant was a handyman. The only motive for the murder appeared to be to rob the victim of eight $100 bills that she had recently received. Because there was competent, substantial evidence to uphold a robbery conviction, and no other motive for the murder appeared from the record, the robbery conviction was allowed to stand, despite the claim of robbery as an afterthought. See also Woodel v. State, 804 So.2d 316 (Fla.2001); Perry v. State, 801 So.2d 78 (Fla.2001); Zack v. State, 753 So.2d 9 (Fla.2000).

The rule that emerges was expressed by the Supreme Court in Beasley as follows:

Where an “afterthought” argument is raised, the defendant’s theory is carefully analyzed in light of the entire circumstances of the incident. If there is competent, substantial evidence to uphold the robbery conviction, and no other motive for the murder appears of record, the robbery conviction will be upheld. Conversely, in those cases where the record discloses that, in committing the murder, the defendant was apparently motivated by some reason other than a desire to obtain the stolen valuable, a conviction for robbery (or the robbery aggravator) will not be upheld.

Beasley, 774 So.2d at 662. When the facts of the present case are compared with this template, the impropriety of the robbery conviction becomes clear.

The entire theory of the State’s case was that Mr. Kinsler killed his cousin for revenge, and the evidence adduced at trial thoroughly supported this theory. The tenor of the State’s closing argument was that Mr. Kinsler was guilty of premeditated murder based on this motive; felony-murder was not even argued. The defense, in response, specifically asserted “robbery as an afterthought” in closing argument. Finally, the jury returned with a verdict of guilty of premeditated first-degree murder, and not of felony-murder.

It hardly needs repeating that a motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis, except that of guilt. See State v. Law, 559 So.2d 187, 188 (Fla.1989). The robbery conviction was based on circumstantial evidence with respect to the force and violence element of the crime, and there was a reasonable hypothesis concerning this element not excluded by the State’s proof. The motion of the appellant for judgment of acquittal with respect to the robbery charge should, therefore, have been granted. We note, however, that the taking or theft element was founded on direct evidence, and would support a conviction of grand theft of the motor vehicle in violation of section 812.014(1), Florida Statutes (2002). See Malm, 714 So.2d at 397.

Accordingly, we affirm the judgments and sentences for first-degree premeditated murder and dealing in stolen property. We reverse the conviction for robbery with a firearm, and remand to the trial court with directions to reduce this conviction to grand theft of the motor vehicle, and for Mr. Kinsler to be resentenced on this charge.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON and TORPY, JJ., concur.

      . We are not certain exactly what color "chameleon” is.