author: NORTHCUTT, Judge.

text:
    Tieu Quoc TRAN, Appellant, v. Joan G. FRAGNOLI, Appellee.
    No. 2D01-4159.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.
    Jacob J. Munch and Kim W. Munch of Munch and Munch, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

This appeal arises from a dispute between Tieu Quoc Tran and the Hills-borough County Board of County Commissioners, Health and Social Services Department, concerning medical bills the County paid on Tran’s behalf after he was injured on Joan Fragnoli’s property. Tran sued Fragnoli in Pinel-las County. Although his damages were substantial, there were significant liability issues. As a result, the parties settled on the morning of trial. When Tran’s counsel notified the County of the settlement, the County demanded that Tran reimburse the entire amount of his medical bills. Tran attempted to compromise the amount, claiming it should be reduced by his attorney’s fees and costs, and by factors such as comparative negligence or the difficult liability issue. When he and the County could not reach an agreement, he filed a motion in his Pinellas County suit, seeking equitable distribution pursuant to section 768.76, Florida Statutes (1999). The court denied Tran’s motion, finding that it had no jurisdiction over the County. In its order, the court also declared that Tran’s contract with the County obligated him to repay the full amount of the medical expenses paid on his behalf.

We affirm the order insofar as the court found it lacked jurisdiction to adjudicate the rights of a non-party. See Rustom v. Sparling, 685 So.2d 90 (Fla. 4th DCA 1997). But without jurisdiction, the court had no authority to decide the merits of Tran’s motion. We therefore reverse the court’s ruling concerning Tran’s obligation under the contract. That ruling shall have no effect on any other suit that the County may file against Tran, or he against it.

Affirmed in part, reversed in part.

WHATLEY, J., and DANAHY, PAUL W., Senior Judge, Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Anthony P. RAWLS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D02-836.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.
    James Marion Moorman, Public Defender, and Sean K. Ahmed, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Anthony P. Rawls appeals his conviction and sentence for lewd molestation. He argues that the trial court should have granted his motion for mistrial and that he is entitled to a new trial due to the ineffective assistance of his trial counsel. The State cross-appeals the trial court’s order granting Rawls’ motion in limine to exclude Williams rule evidence. We affirm as to all issues without comment except to note that our decision is without prejudice to Rawls’ filing a timely, legally sufficient motion pursuant to Florida Rule of Civil Procedure 3.850 on the basis of ineffective assistance of counsel.

Affirmed.

NORTHCUTT and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Williams v. State, 110 So.2d 654, 660-62 (Fla.1959).


author: GROSS, J.

text:
    Earl STOTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-814.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.

      Carey Haughwout, Public Defender, Nan Ellen Foley, and Paula Parisi, Assistant Public Defenders, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Earl Stotler appeals his convictions for burglary of a structure and contributing to the delinquency of a child. The theory of the state’s case was that Stotler was a principal to the criminal acts of his girlfriend, Julie Napier. We reverse, holding that the trial court erroneously restricted Stotler’s cross-examination of Napier.

The crimes occurred at 4:00 a.m. at a closed gas station. The entire incident was captured on a surveillance videotape positioned inside the station and facing the cashier’s window. The tape was published to the jury through the testimony of Officer Brian Avila, who retrieved the tape from the gas station at 7:00 a.m. on the morning of the crimes.

The tape depicts Napier approaching the cashier’s window and inserting her arm into the round opening in the middle of the window. She grabbed some items and walked away. Napier returned with a walking cane and stuck it into the opening. Next, Stotler appeared with his son. He took the cane away from Napier, stood by a few moments, looked around, and walked away. Napier continued to steal merchandise without the cane while Stotler’s son stood nearby. The tape next depicts Napier walking past the window followed by Stotler, who briefly peered inside. Napier took the cane from Stotler, who looked around, and took the cane back. The two of them then disappeared from view. Napier returned without the cane, took some more merchandise and left. She then returned with the cane and appellant’s son. Appellant’s son also tried to reach into the opening to take merchandise. Napier returned one final time with the cane but was unsuccessful. Stotler is last shown looking briefly inside the window and walking away. The tape then shows them driving away.

At no time does the tape depict Stotler reaching into the window opening. All of the conversation on the tape was inaudible; the trial judge described it as sounding “like the chipmunks, Alvin, Theodore, and Simon.”

The state called Napier as a witness. She viewed the videotape while on the witness stand and testified that it was “a true and accurate representation” of what occurred at the gas station. She identified Stotler as being the man on the tape and six-year-old Shane Stotler as the child. Napier stated that Stotler had picked her up at a friend’s house at 3:30 a.m. and that they stopped at the gas station on their way home. She testified that she took “[s]ome lighters and some phone cards” worth $1,200 from the gas station.

On cross-examination, Napier testified that they stopped at the gas station for Stotler to use the phone; Napier removed the cane from the car while Stotler was using the telephone. They had no conversation at that time. The trial judge granted the state’s motion in limine and prevented the defense from questioning Napier about Stotler’s statements during the burglary. The following colloquy occurred during the cross-examination of Napier:

Q And where was Earl Stotler when you went to look in the window of the door?
A He’s following right behind me.
Q And was he saying anything to you? A He was wanting to leave.
[STATE]: Objection — objection, Your Honor.
THE COURT: Sustain the objection.
Q And was there any discussion between you and Earl Stotler before you got out of the car?
AI told him I was going—
[STATE]: Objection, Your Honor.
THE COURT: Sustain the objection. Ma’am, you can—
THE WITNESS: Yes sir.
THE COURT: You cannot testify as to the contents of the conversations, just was there conversation.
Q Okay. Did Mr. Stotler sug — suggest that you burglarize the gas station?
A No.
[STATE]: Objection, goes to the—
THE COURT: I’ll sustain—
[STATE]: Previous ruling of this Court.
THE COURT: I’ll sustain the objection.
Q Did Mr. Stotler suggest that he burglarize the gas station?
[STATE]: Objection, Your Honor, and move for a curative instruction.
THE COURT: I’ll sus — I’ll sustain the objection consistent with the Court’s previous ruling. Members of the jury, I’ll ask you all to disregard that question.

(Emphasis added).

In closing, the state argued that Stotler aided the burglary by acting as the getaway driver and allowing Napier to use the cane. The state further contended that the video showed Stotler acting as a lookout.

We agree with appellant that the trial court erred in ruling that the proposed cross-examination went beyond the scope of direct examination.

Section 90.612(2), Florida Statutes (2001) provides that “[c]ross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” To determine the proper scope of a defendant’s cross-examination in a criminal case, a court must keep in mind “the expansive perimeters of subject matter relevance which the constitutional guarantee of cross-examination must accommodate to retain vitality.” Coxwell v. State, 361 So.2d 148, 152 (Fla.1978). The supreme court has defined the scope of cross-examination:

[W]hen the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief.

Zerquera v. State, 549 So.2d 189, 192 (Fla.1989) (quoting Coxwell, 361 So.2d at 151 (quoting Coco v. State, 62 So.2d 892, 895 (Fla.1953))).

This case falls within the rule of Coco. “[I]f a portion of a transaction ... or event is brought out on direct examination, the remainder- can be brought out on cross-examination.” Charles W. Eh-RHARDT, FLORIDA EVIDENCE § 612.2 at 54 (2002 ed.). The subject matter of Napier’s direct examination was the commission of the burglary depicted on the videotape. Stotler was charged as a principal to Napier’s crimes. Section 777.011, Florida Statutes (2001) “treats those who aid, abet, or counsel another to commit a crime the same as if they had committed the crime themselves.” State v. Marks, 833 So.2d 249, at 251 (Fla. 4th DCA 2002). The videotape, which Napier authenticated, showed Stotler’s physical conduct during the burglary. The voices on the tape were inaudible. What Stotler said immediately before and during the burglary is relevant to his participation in the crime as a principal. The questions quoted above were thus within the subject matter of the state’s direct examination since they fell into the gap that had been left in the criminal transaction after the state’s direct examination.

The state relies on Steinhorst v. State, 412 So.2d 332 (Fla.1982), but it is not controlling. Unlike this case, the proposed cross-examination in Steinhorst did not involve the circumstances of the crime charged, but rather the marijuana importation conspiracy that provided the background for the homicides there at issue. Also, the defendant in Steinhorst failed to preserve his theory of cross-examination for appeal. This case is similar to the line of cases holding that it is error to preclude cross-examination concerning the details of the criminal conduct that was the subject of direct examination. See Pace v. State, 596 So.2d 1034, 1035 (Fla.1992); Zerquera, 549 So.2d at 192; Coxwell, 361 So.2d at 152.

Finally, we agree with appellant that statements he made during the burglary depicted on the videotape are not hearsay under section 90.801(l)(c), Florida Statutes (2001). They are “statements describing ambiguous acts” or “verbal parts of acts.” EhRháRdt, § 801.6 at 688; McCormiok’s Handbook of the Law of Evidence § 249 (Edward W. Cleary ed., 3d ed.1984). Stotler’s conduct on the tape is open to interpretation. Words that he said at the time of the burglary would “give significance to an otherwise ambiguous act.” Ehrhardt, § 801.6 at 689. As McCormick explains:

The legal significance of acts taken alone and isolated from surrounding circumstances may be unclear. Thus the bare physical act of handing over money to another person is susceptible of many interpretations. The possibilities include loan, payment of a debt, bribe, bet, gift, and no doubt many other kinds of transactions. Explanatory words which accompany and give character to the transaction are not hearsay.

Id. § 249 at 733; see also Zeigler v. State, 402 So.2d 365, 374 (Fla.1981); Stevens v. State, 642 So.2d 828, 829 (Fla. 2d DCA 1994).

We do not find the limitations on cross-examination to be harmless. The burden is on the state to prove beyond a reasonable doubt that “the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” Goodwin v. State, 751 So.2d 537, 541 (Fla.1999) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). We cannot say beyond a reasonable doubt that the error did not affect the verdict.

REVERSED.

SHAHOOD, J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . The Chipmunks were the creation of Ross Bagdasarian, a songwriter who released records under the name David Seville. He was "fascinated by the art of recording” and released singles where voices were "sped-up through studio trickery.” See The Chipmunks, at http//:www. yesterday-land.com/popopedia/shows/mu-sic/mull56.php (last visited Jan. 13, 2003). Bagdasarian’s hits included "Witch Doctor” and "The Chipmunk Song (Christmas Don’t Be Late).” Id.


author: PER CURIAM.

text:
    NET FIRST NATIONAL BANK, Craig Connors, Laura K. Pugliese, Randall R. Rossilli, Richard Pasley, William A. High and Glenn E. Gromann, Appellants, v. FIRST TELEBANC CORP., a/k/a Net First Financial Corporation, Keith F. Duffy and Bradley B. Groves, Appellees.
    No. 4D02-519.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.

      James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellants Craig Connors, Laura K. Pugliese, Randall R. Rossilli, Richard Pasley, William A. High and Glenn E. Gromann.
    Thompkins W. White and Edward W. Dougherty, Jr. of Igler & Dougherty, P.A., Tallahassee, for appellees.
   PER CURIAM.

This is an appeal from a non-final order granting a temporary injunction that prevents Appellants from acting in their former roles as directors of Net First National Bank. Jurisdiction is under Florida Rule of Appellate Procedure 9.130(a)(3)(B).

I. Background

This complex case involves two groups of investors battling for control of Net First National Bank (“the Bank”) and the Bank’s sole shareholder, First Telebanc Corporation (“the holding company”). The events leading to the present rift in leadership began in January 1999, when the directors of the Bank appointed Keith Duffy to fill a vacant director position. Sometime prior to May 2000, the Bank was designated a “troubled institution” under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIR-REA”).

In June 2000, Duffy began acting as president and chief executive officer of the Bank. Throughout this time, the Bank experienced increasing financial difficulties, resulting in a Consent Order and Stipulation between the Office of the Comptroller of Currency (“OCC”) and the Bank. The order gave the OCC increased oversight of the Bank’s business dealings, most importantly a veto power over any proposed senior executive officer.

Pursuant to FIRREA requirements, Duffy submitted a form 914 Notice to the OCC detailing his qualifications for his senior executive and director positions with the Bank. Duffy was later interviewed, and the OCC declined to grant him authority to act as a senior executive of the Bank, stating that he did not have sufficient experience to hold a leadership position in a “problem bank.” The OCC did not object at that time to Duffy’s continuing as a director.

In February 2001, however, the OCC nullified its non-objection to Duffy serving as director. In a five-page letter, the OCC detailed material misrepresentations and omissions Duffy made in the biographical portion of his 914 application and his interview. The OCC found that Duffy gave a false answer and omitted material information regarding his past involvement with a state-chartered bank, then continued to misrepresent facts and give inconsistent explanations in subsequent documents and his interview.

At the center of Duffy’s misrepresentations to the OCC was his past involvement with a state-chartered bank. Duffy failed to disclose that his application to serve as president of the state bank was disapproved by Florida’s Department of Banking and Finance. Duffy also failed to disclose that after disapproval, he continued to serve as president of the state bank, in violation of the Department’s numerous demands that he step down. The state bank was in poor financial condition and under a cease and desist order from the State Comptroller when Duffy arrived, and it deteriorated further during his tenure, with criticism of his performance including “inappropriate insider transactions involving Duffy-related companies, a number of violations of laws, and continued noncompliance with the cease and desist order.” As a result, the OCC withdrew its approval for Duffy to have any connection with Bank leadership.

In September 2000, the Federal Reserve Bank notified the board of the holding company that the OCC decision not only precluded Duffy from serving as a director of the Bank, but governed his actions as a director of the holding company as well. The Federal Reserve warned that “Molding company board of directors’ minutes should clearly note Mr. Duffy’s abstention from all policymaking decisions regarding the bank.” Several months later, in May 2001, the holding company elected six directors of the Bank. They included Duffy, Randall Rossilli, and Laura Pugliese, with Duffy’s directorship subject to the outcome of a pending appeal of the OCC nullification. The OCC responded by advising the Bank’s directors that “Mr. Duffy may not participate in the affairs of the bank or otherwise act as an ‘institution affiliated party in board meetings or under any other circumstances,” and that such participation subjected other directors to civil penalties. Duffy’s appeal of the OCC nullification was resolved against him.

II. The Current Controversy

As of September 2001, the holding company’s board consisted solely of Duffy, Rossilli, and Director Bradley Groves. At that time, the Board resolved unanimously that “Laura Pugliese is approved as Director for 914 approval.” By letter date-stamped October 25, 2001, the Federal Reserve notified the holding company that it did not intend to disapprove Pugliese’s appointment to the Board of the holding company, and the appointment should be consummated no less than three months from the date of the letter.

The situation came to a head on November 9, 2001, at a meeting of the Bank’s directors chaired by Rossilli and attended by Groves. The directors voted to withdraw the Bank as a party to Duffy’s appeal of the OCC nullification and find new corporate counsel. On the same date, an excess of 20% of holding company shareholders called for a special meeting of shareholders to be held on December 18, 2001, at which they would vote on whether to remove Duffy and Groves as directors of the holding company.

On November 20, 2001, Duffy, in his capacity as chairman of the holding company, called a special meeting of the holding company’s board. The meeting included corporate counsel George A. Igler, Duffy, Groves, Rossilli attending by phone, and a man named Armen Markarian. Markari-an had recently invested $600,000.00 in the holding company. The Federal Reserve Bank of Atlanta later notified corporate counsel that Markarian could not serve as a director of the holding company until he filed a 914 application and received approval.

The minutes of the meeting indicate that Rossilli objected to Markarian’s presence and asked why Pugliese was not present. Groves responded that Markarian had been elected a director of the holding company in August and Pugliese had not. Duffy and Groves complained that they were denied access to the holding company’s corporate offices by the corporate Secretary, Glen Gromann, whom they claim acted at Rossilli’s direction. Duffy and Groves then began discussing Gro-mann’s removal.

Rossilli objected and then left the meeting by hanging up. Afterward, Duffy, Groves, and Markarian voted to remove Gromann and replace him with Groves, to authorize Groves to vote all of the holding company’s shares, and to add Sean K. Olhan to the holding company’s board. The meeting was adjourned, to reconvene after a meeting of the Bank’s shareholders.

Duffy, Groves, and Markarian then immediately convened a meeting of the shareholders of the Bank, on the ground that they represented the holding company, which was the sole shareholder. The stated purpose of the meeting “was to consider the removal of certain Bank directors and replace them with competent directors who are not necessarily associated with one another.” They waived notice requirements, then voted to remove Bank directors Rossilli, Pugliese, Craig Connors, and Richard Paisley, replacing them with Markarian, Olhan, and two others.

Rossilli and Pugliese then called a meeting of the directors of the holding company on December 6, 2001, at which they voted to remove Duffy and Groves as directors. According to the minutes, the holding company’s by-laws allow a vote of 60% of disinterested directors to carry a vote, and Rossilli and Pugliese claimed to represent 100% of the disinterested directors. On the same day, Duffy and Groves held a meeting at which they voted to remove Rossilli from the holding company’s board. The shareholders went forward with the special meeting on December 18, and an excess of 60% of the holding company’s shares voted to ratify Rossilli’s and Pug-liese’s actions at the December 6 meeting, voted directly to remove Duffy and Groves from the holding company board, and elected a new slate of directors for the holding company’s board.

Plaintiffs, led by Duffy, filed two separate lawsuits, one naming the Bank and its individual directors as defendants, and the other naming the shareholders of the holding company as defendants. Plaintiffs twice sought emergency hearing on their motion for temporary injunction in the holding company case, but were unsuccessful. Plaintiffs’ motion for injunctive relief in the Bank case was set for hearing when they filed a motion to consolidate the two cases. Prior to the injunction hearing, Plaintiffs voluntarily dismissed the Bank as a party defendant due to a conflict of interest stemming from their attorneys’ role as the Bank’s general counsel.

At the injunction hearing, the judge granted Plaintiffs’ motion to consolidate the two cases. The judge later entered the injunction order, which was drafted and submitted to the trial court by Plaintiffs’ counsel, and states:

Plaintiffs have a likelihood of success on the merits, have suffered irreparable harm and have an inadequate remedy of law with respect to the continuing deprivation of their rights to control the corporate governance, operations and assets of First Telebanc, in that damages are likely to be speculative, non-quantifiable, and inadequate with respect to such deprivation. Further, such tor-tious interference and continuing harm excuses actual proof of irreparable harm and inadequate remedy of law.

In its findings of fact, the court stated that Pugliese was never properly elected to the board of the holding company and that the directors of the holding company as of November 2001 were Duffy, Groves, and Rossilli. The court further found that the removals of Gromann as secretary of the holding company and Defendants as directors of the Bank were valid, but the removals of Duffy and Groves as directors of the holding company were not.

For these reasons, the trial court ordered the following:

1. Defendants, and anyone acting in concert with Defendants, are enjoined in any way from acting in any official capacity on behalf of [the holding company], as director or otherwise.
2. Defendants, and anyone acting in concert with Defendants, are enjoined from interfering with Duffy and Groves’ performing their duties as the lawful Board of Directors of [the holding company],
3. Defendants, and anyone acting in concert with Defendants, are enjoined from interfering in any way with the access of Duffy or Groves to the corporate funds, records, or offices of [the holding company].
4. [The holding company], Duffy and Groves shall, within 60 days, call an annual meeting, at which meeting the shareholders of [the holding company] shall elect directors as required by the Articles of Incorporation and Bylaws of [the holding company],
5. L. Pugliese, Rossilli, Connors, and Pasley are hereby enjoined from acting as directors of Net First National Bank.
6. Plaintiffs shall file an injunction bond in the amount of $250,000.00 within 72 hours of the entry of this Order or the injunction set forth herein shall be immediately dissolved.

Less than one month after the trial court issued the injunction, the OCC closed the Bank and named the Federal Deposit Insurance Corporation (“FDIC”) receiver.

III. Analysis

We review the order granting injunction under the abuse of discretion standard. Weinstein v. Aisenberg, 758 So.2d 705, 706 (Fla. 4th DCA 2000). “In order to obtain a temporary injunction, a party must prove the following: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the pubüc interest.” Yachting Promotions, Inc. v. Broward Yachts, Inc., 792 So.2d 660, 663 (Fla. 4th DCA 2001) (citing Infinity Radio, Inc. v. Whitby, 780 So.2d 248, 250 (Fla. 4th DCA 2001)). The moving party also must have a clear legal right. Id. (citing In re Estate of Barsanti, 773 So.2d 1206, 1208 (Fla. 3d DCA 2000)); Weinstein, 758 So.2d at 706 (substituting demonstration of clear legal right for third prong of injunction test requiring substantial hkelihood of success on the merits). “ ‘Clear, definite, and unequivocally sufficient factual findings must support each of these four criteria before the court may enter the injunction.’ ” Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So.2d at 226 (Fla. 4th DCA 2002) (quoting City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 754 (Fla. 1st DCA 1994)); Yachting Promotions, 792 So.2d at 663.

Defendants argue that the trial court erred in granting the injunction because Plaintiffs did not establish a substantial likelihood of success on the merits or a clear legal right. We agree. The ultimate effect of the injunction was to wrest physical control of the Bank and its assets from Defendants and hand it to Duffy, when Duffy was precluded by federal authority from participating in running the Bank, at the Bank level and the holding company level. Thus, Duffy had no clear legal right to such relief.

It is anything but clear whether Pug-liese was a director prior to the November meeting. If she was, as she and Rossilli claim, then the meeting was not properly noticed because she was never notified. Without notice, Duffy and Groves’s actions are nullified, meaning Groves did not have proper authority to vote the holding company’s shares and remove the bank directors.

Pugliese was not notified of the November meeting, but a September resolution of the board of the holding company states that she was “approved as Director for 914 approval.” That language is ambiguous; it could mean that she is simply approved to submit her application, or that she is approved as Director. The Federal Reserve notified the holding company in October that her appointment as director would be approved. Rossilfi and Pugüese claim she was a director, while Duffy and Groves deny it. Duffy and Groves claimed that Markarian was a director, and Marka-rian actually voted at the November meeting, but it is clear that the Federal Reserve never approved him. Duffy was precluded from any leadership role in the Bank because of material misrepresentations and omissions made to the OCC, but at the injunction hearing he described himself as the Bank president. The picture that emerges from these facts is not that the Plaintiffs had a substantial likelihood of success on the merits or a clear legal right to injunctive relief.

The controversy over whether Pugliese was appointed director prior to the November meeting aside, Duffy was not authorized to participate in policy decisions affecting the Bank, per the OCC and the Federal Reserve. Even though Groves actually voted the holding company’s shares at the Bank board meeting, it is clear from the record that everything that occurred at the holding company board meeting was related to governance of the Bank. Duffy chaired that meeting and voted on all of the business before the Board, including authorizing Groves’s proxy vote, in violation of the OCC’s and Federal Reserve’s directives. Because Duffy voted illegally at the holding company board meeting and Markarian was not authorized to vote, only Groves’s vote remains, and cannot carry the motions because it is not a majority. Thus, the trial court’s conclusion that the Defendants were lawfully removed from the board of the Bank is incorrect.

Although a trial court has broad discretion in granting injunctive relief, it is an extraordinary remedy that “requires a clear legal right, free from reasonable doubt.” Dania Jai Alai Int’l, Inc. v. Murua, 375 So.2d 57, 58 (Fla. 4th DCA 1979) (citing F.E.C. Railway Co. v. Taylor, 56 Fla. 788, 47 So. 345 (1908)). Not only does Pugliese’s potential status as a director of the holding company cast doubt on Duffy and Groves’s actions at the November 20 meeting, Duffy acted beyond his legal capacity in voting on policy decisions affecting the Bank. Because, the Plaintiffs did not establish that they had a clear legal right to the specific injunctive relief sought, the trial court abused its discretion in granting the injunction.

It is undisputed that the parties did not address the issue of the bond amount at the injunction hearing. Plaintiffs concede this point, but claim that any error is waived because Defendants did not raise the issue at the hearing. “[B]oth parties must be provided with the opportunity to present evidence regarding the appropriate amount of the injunction bond.” Offshore Marine Towing, Inc. v. Sea Tow Servs. Int’l, Inc., 778 So.2d 510, 511 (Fla. 4th DCA 2001) (citing Flickenger v. R.J. Fitzgerald & Co., 732 So.2d 33, 35 (Fla. 2d DCA 1999); Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997)).

Offshore Marine is factually similar to the instant case, in that the trial court concluded a hearing on injunctive relief without ruling, then later issued an injunction requiring a $5,000.00 bond. Id. No evidence was presented at the hearing as to the bond amount. Id. This court affirmed the injunction, but remanded for an evidentiary hearing on the bond amount. Id.

Plaintiffs rely on Bansal v. Bansal, 748 So.2d 335 (Fla. 5th DCA 2000), for their argument that the bond issue is waived. In Bansal, however, Appellee’s counsel had prepared the injunction with a blank space for the amount of bond, and when he offered it to the court opposing counsel had an opportunity to object but did not. 748 So.2d at 337. In Offshore Marine, the parties concluded the hearing without any reference to the bond and later submitted proposed injunctions. 778 So.2d at 511. Thus, waiver was not an issue because there was nothing to which the parties could object at the hearing. This is precisely what happened at the injunction hearing below.

Because we resolve this appeal on the basis of the lack of clear legal right, the only remaining issue we need address is the bond amount. The “conundrum” presented in this case is like that in Lotenfoe, M.D. v. Pahk, M.D., 747 So.2d 422, 426 (Fla. 2d DCA 1999), in which the appellate court held both that the appellant was wrongfully enjoined, and that the bond amount was improperly set without an evi-dentiary hearing. Dissolving the injunction left “no functional need to set a new injunction bond;” however, damages for wrongful injunction are generally limited to the amount of the bond. Id. at 425-26.

Noting that, logically, the evidence presented at a new bond hearing would be that of the actual damages suffered by the enjoined party while the injunction was in effect, Lotenfoe adopted the holding of the Third District in SeaEscape, Ltd. v. Maximum Marketing Exposure, Inc., 568 So.2d 952 (Fla. 3d DCA 1990):

[W]hen the circuit court did not conduct an evidentiary hearing on the bond amount, and when the enjoined party proceeded expeditiously to exhaust available remedies, the damages for the wrongful injunction would not be limited by the erroneously-set bond.

Id. at 426 (citing Provident Mgmt. Corp. v. City of Treasure Island, 718 So.2d 738, 739 (Fla.1998) (explaining that “damages for a wrongfully issued injunction are not always limited by the bond amount”); Leibowitz v. City of Miami Beach, 683 So.2d 204 (Fla. 3d DCA 1996)). We agree.

Accordingly, we reverse the order granting injunction, and remand for imposition of costs and damages for the wrongful injunction not limited to the amount of the bond.

REVERSED AND REMANDED.

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


text:
    Jerry DUCKSWORTH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2791.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    John H. Lipinski, Hollywood, for appellant.
    Charlie Crist, Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.

      Before SCHWARTZ, C.J., and COPE and LEVY, JJ.
   PER CURIAM.

Jerry Ducksworth, Defendant below, appeals from a conviction and sentence for the offense of robbery with a weapon. We affirm in part, and reverse in part.

In the instant case, the trial court sentenced the Defendant to life in prison as a Habitual Violent Felony Offender, and concurrent 30-year minimum mandatory sentences as a Prison Release Reoffender and as a three-time violent felony offender. According to the Florida Supreme Court in Grant v. State, 770 So.2d 655, 659 (Fla.2000), because Section 775.082, Florida Statutes, the Prison Release Reoffender Act (“the Act”), only authorizes the trial court to deviate from the Act’s sentencing scheme to impose a greater sentence of incarceration, the trial court lacks the authority to impose an equal sentence under the habitual felony offender statute. See Grant, 770 So.2d at 659; see also Barge v. State, 789 So.2d 972 (Fla.2001); Bloodworth v. State, 790 So.2d 1032 (Fla.2001). Here, while the life sentence imposed as a Habitual Violent Felony Offender is clearly appropriate under the Act and Grant, we conclude that the trial court erred in imposing both a 30-year sentence under the Prison Release Reoffender Act and a concurrent 30-year sentence as a three-time violent felony offender.

Accordingly, we reverse the sentencing order in part and strike the 30-year mandatory minimum sentence as a three-time violent felony offender. The remaining issues raised by the Defendant on appeal are without merit.

Affirmed in part, reversed in part.


author: FLETCHER, Judge.

text:
    Joseph BEELER, P.A., Appellant, v. BANCO INDUSTRIAL DE VENEZUELA, etc., et al., Appellees.
    No. 3D02-502.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    William L. Richey, Miami, and H. Eugene Lindsey, for appellant.

      Ruden, MeClosky, Smith, Schuster & Russell and Brian T. James and Lawrence A. Gordich, for appellees.
    Before JORGENSON, FLETCHER and RAMIREZ, JJ.
   FLETCHER, Judge.

Joseph Beeler, PA. [Beeler] appeals the denial of its motion to intervene in the instant action. For the reasons which follow, we reverse.

Beeler successfully defended Ezperanza de Saad on money laundering charges brought by the federal government. As a result, under their fee agreement, Ms. De Saad owes the firm over one million dollars in attorney’s fees and expenses. As part of the fee agreement, Ms. De Saad assigned to Beeler any rights she may have to sue her former employer, Banco Industrial de Venezuela [BIV]. Subsequent to the federal litigation, Ms. De Saad filed the instant action against BIV for breach of her employment contract and for indemnification. Approximately eight months into the proceedings, Beeler moved to intervene in the action and to stay proceedings for 30 days. BIV opposed the motion. After a hearing, the trial court denied Beeler’s motion after concluding that intervention “would only serve to impede the orderly progression and resolution” of the case.

Florida Rule of Civil Procedure 1.230 provides:

“Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.”

The Florida Supreme Court has stated the test to determine an interest which entitles a party to intervene as

“ ‘[T]he interest which will entitle a person to intervene ... must be in the matter in litigation, and of such a direct and immediate character that the inter-venor will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or hen upon, the property or some part thereof, which is the subject of litigation.’ ”

Union Central Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992)(citing Morgareidge v. Howey, 75 Fla. 234, 238-39, 78 So. 14, 15 (1918)). In accordance with this test, appellate courts have approved intervention by a health insurer entitled to repayment of medical expenses in a lawsuit against a tortfeasor, Union Central, 593 So.2d at 505; by the successful bidder in an action by another bidder challenging the bidding process against the county, John G. Grubbs, Inc. v. Suncoast Excavating, Inc., 594 So.2d 346 (Fla. 5th DCA 1992); by a pledgee entitled to sums paid to pledgor of stock in an action against purchaser of stock, Citibank, N.A. v. Blackhawk Heating & Plumbing Co., 398 So.2d 984 (Fla. 4th DCA 1981); and by a complaining property owner in an action to determine a school’s rights under a special use zoning ordinance. We conclude that Beeler’s interests herein are similar in nature, and that Beeler therefore is entitled to intervene in the action. We further respectfully disagree with the trial court’s conclusion that such intervention will impede the orderly progression of the litigation, which at the time of Beeler’s motion was in the early stages of discovery.

Accordingly, the order denying appellant’s motion to intervene is reversed, and the cause is remanded for further proceedings consistent with this opinion.


text:
    Michael WHITAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4692.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Carey Haughwout, Public Defender, and Sophia Letts, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Jones v. State, 570 So.2d 433 (Fla. 5th DCA 1990).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Austin EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2870.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   FLETCHER, Judge.

Austin Evans seeks reversal of his conviction and, if unsuccessful in so doing, a remand to the trial court on a sentencing issue. We affirm the conviction, but reverse the sentence and remand for a determination of whether Evans qualifies for sentencing as a prison releasee reoffender.

Evans contends that the trial court erred by allowing into evidence hearsay from a tape of the victim’s 911 telephone call. The State argues that the victim’s hearsay statement was properly admitted into evidence as an excited utterance as defined by section 90.803(2), Florida Statutes (2001). In this regard the trial court noted:

“I remember her [victim’s] testimony very well. I remember her as being in a controlled] panic. And she tried to check the gun to relieve herself of the anxiety that built up about this whole episode. It didn’t give her any relief to find that the thing was loaded. She was going to calm down — she was going to talk herself down, she found a way to calm down if only that gun was unloaded. She checkfed] the gun, found out it was loaded, and then she could not find much in the way of calm time to reflect in my opinion.”

T. 26.

We agree with the trial judge that the hearsay statement qualified for admission as an excited utterance.

Evans also contends that the prosecutor’s hypothetical questions during jury selection were an improper “pre-trying” of the case, thus the panel should have been set aside. We conclude, however, as did the trial judge, that the prosecutor approached the line of pre-trying the case, but did not cross it. The denial of Evan’s motion to strike the panel was not an abuse of the trial judge’s discretion. See Peri v. State, 426 So.2d 1021 (Fla. 3d DCA)(latitude which is given parties in examining prospective jurors is subject to judge’s sound discretion), rev. denied, 436 So.2d 100 (Fla.1983).

Evans also argues that the prosecutor’s closing argument was so improper as to deprive him of a fair trial. Our review indicates to the contrary.

We affirm Evans’ conviction. We do, however, set aside the sentence and remand the case to the trial court in light of the State’s concession that there remains a question as to Evans’ status, i.e., whether he qualifies for sentencing as a prison releasee reoffender.

Affirmed in part; reversed in part; and remanded for resentencing.

      . Section 90.803(2), Florida Statutes (2001) reads:
      "(2) EXCITED UTTERANCE. — A statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.”


text:
    Joel W. ROBBINS, etc., Appellants, v. Clifford KORNFIELD, et al., Appellees.
    No. 3D02-2118.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.

      Robert A. Ginsburg, County Attorney, and Scott Fabricius, Assistant County Attorney, for appellants.
    Kluger, Peretz & Kaplan, and Alan Klu-ger; and Clifford Kornfield, in proper person.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Appellants, Miami-Dade County Property Appraiser Joel W. Robbins and the Florida Department of Revenue (hereafter referred to as “Property Appraiser”), seek reversal of a trial court judgment in favor of appellees Clifford and Wendy Kornfield (“taxpayers”).

The taxpayers are the owners of a homestead residence located in Miami-Dade County, Florida. In 1991, the taxpayers built an addition to their 2,306 adjusted square foot homestead residence. This addition increased their home’s square footage by 1,610 square feet. However, due to an error on the part of the property appraiser, the addition escaped taxation for almost nine years.

In 1999, the property appraiser determined that the additional square footage was excluded in the calculation of the home’s just value. As a result, from 1991 until 2000, the taxpayers only paid taxes on the pre-improvement 2,306 square foot portion of the residence. To correct the error, the property appraiser placed a back assessment on the taxpayers’ homestead residence for the tax years 1998-2000.

The taxpayers sued the property appraiser seeking to set aside the back assessment placed on their residence. The trial court granted summary judgment in favor of the taxpayers and held that both the Florida Constitution and the Florida Supreme Court decision in Smith v. Welton, 729 So.2d 371 (Fla.1999), prohibited the property appraiser from reassessing the property’s just value. This appeal followed.

Section 193.155, Florida Statutes (2001), permits a property appraiser to correct erroneous assessments of homestead property. However, in Welton, the Florida Supreme Court held that property appraisers lacked authority under Section 193.155(8)(a), Florida Statutes (1995), to retroactively change the base year “just value” assessment of a homestead property. See Smith v. Welton, 729 So.2d at 373.

In response to Welton, the Florida Legislature amended Section 193.155 in 2001. See Ch. 01-137, § 5, at 788, Laws of Fla. (amending § 193.155, Fla. Stat. (2000)). Prior to the amendment, § 193.155(8)(a) read, “(a) If errors are made in arriving at any annual assessment under this section due to a material mistake of fact concerning an essential characteristic of the property, the assessment must be recalculated for every such year.” § 193.155(8)(a), Florida Statutes, (2000). The 2001 version of Section 193.155(8)(a) deletes the word, “annual” and adds the words, “just value.”

Clearly, the Legislature amended the section to allow for adjustments to be made to correct errors in the calculation of a property’s just value. Therefore, Welton is superceded by the 2001 amendment to Section 193.155. See Nicoll v. Baker, 668 So.2d 989 (Fla.1996).

In accordance with the legislative intent, as evinced by the specific amendments made to Section 193.155(8)(a), we hold that the property appraiser has the authority to place a back assessment on the portion of the taxpayers’ property which has escaped taxation. See Ch. 01-137, Laws of Fla. This back assessment is limited to three years’ arrears, as directed by Section 193.092.

Reversed and remanded for calculation of the back assessment.

      . Although the improvements escaped taxation for nine years, back assessments could only be made for three years, pursuant to Section 193.092, Florida Statutes (2001).

      . Section 193.155(8)(a) now reads:
      (a) If errors are made in arriving at any assessment under this section due to a material mistake of fact concerning an essential characteristic of the property, the just value and assessed value must be recalculated for every such year, including the year in which the mistake occurred.


text:
    Trisha L. FREDERICK, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, Compensation, et al., Appellees.
    No. 3D02-1813.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.

      Trisha L. Frederick, in proper person.
    John D. Maher (Tallahassee), for appel-lee Florida Unemployment Appeals Commission.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The claimant, Trisha L. Frederick, appeals from an order of the Florida Unemployment Appeals Commission [UAC] dismissing her appeal as untimely. We reverse and remand.

The claimant applied for and was awarded unemployment compensation benefits. The employer appealed the determination and requested a hearing. A telephone hearing was scheduled for February 26, 2002. The notice provided a New York phone number for the claimant; however, during the hearing, only the employer made an appearance.

Following the hearing, the appeals referee reversed the initial determination and found that the claimant was disqualified from receiving benefits because she voluntarily left employment without good cause attributable to the employer. This decision was mailed to the claimant on February 27, 2002.

The UAC received the claimant’s appeal on April 17, 2002. The claimant’s letter stated that she was not aware of the February 26th hearing and that she was no longer in New York when the hearing took place. Thereafter, the UAC gave the claimant an opportunity to show cause why her appeal should not be dismissed as untimely. The claimant responded by stating that she was given the wrong fax number, and therefore, she was faxing information to the wrong number. She further explained that she had called the UAC almost every day for a month, and that she was told to resubmit her fax. After resubmitting her fax several times, she spoke with a deputy clerk who told her that she had been faxing the information to the wrong fax number. After receiving the claimant’s response, the UAC dismissed the appeal as untimely. This appeal followed.

Pursuant to section 443.151(4)(b)(3), Florida Statutes (2001), the claimant had twenty days after the mailing of the appeal referee’s decision to initiate an appeal with the UAC. If not filed within twenty days, the appeal is subject to dismissal by the UAC for lack of jurisdiction. Fla. Admin. Code R. 60BB-7.006. As the UAC correctly points out, there are no good cause exceptions provided either in the statute or rule. See Espinosa v. Cableoptics, 807 So.2d 195 (Fla. 3d DCA 2002); Creech v. Orlando Leasing Sys., 765 So.2d 223 (Fla. 2d DCA 2000). However, “in certain individual cases based on considerations of fairness and due process,” appellate courts have carved out exceptions to the dismissal rule. Applegate v. National Health Care Affiliates, Inc., 667 So.2d 332, 333 (Fla. 1st DCA 1995); see also Espinosa, 807 So.2d at 196; Landrum v. James Rummer Timber Harvesting, Inc., 645 So.2d 577 (Fla. 2d DCA 1994). We believe these cases apply. Therefore, we reverse the order under review and remand for an evidentiary hearing. On remand, if it is determined that the claimant was given an incorrect fax number or somehow misled into faxing her notice of appeal to the incorrect fax number and that she actually attempted to fax her notice of appeal to the UAC within twenty days from the mailing of the appeal referee’s decision, she shall be afforded an opportunity to appeal. Landrum, 645 So.2d at 578.

Reversed and remanded.


text:
    Dale CROCKETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4657.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Alan Schreiber, Public Defender, and Jayme Cassidy, Assistant Public Defender, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

AFFIRMED. See Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002).

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


author: CASANUEVA, Judge.

text:
    Margaret Frances SABINE, Appellant, v. Harold SABINE, Jr., Appellee.
    No. 2D02-2589.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.

      Jackson S. Flyte, Lakeland, for Appellant.
    Geraldyne H. Carlton, Lakeland, for Ap-pellee.
   CASANUEVA, Judge.

Margaret F. Sabine appeals a postdisso-lution judgment modifying her award of permanent periodic alimony. Because it was error to modify the final judgment under the circumstances of this case, we reverse.

After a long-term marriage, the parties were divorced in 1996. The marital settlement agreement that was incorporated into the final judgment of dissolution required Mr. Sabine to pay Mrs. Sabine permanent periodic alimony of $850 per month via an income deduction order and through the court depository “so long as the Husband remains employed.” Contending that this language absolved him of further alimony payments following his retirement in early 2002, Mr. Sabine ceased making the court-ordered alimony payments and filed a motion seeking an order terminating his alimony duty. Mrs. Sabine countered by filing a motion seeking enforcement of the final judgment of dissolution. At the hearing on these motions, the court found that Mrs. Sabine was entitled to continue receiving $850 per month. Were that the proceeding’s conclusion, we would affirm. However, the trial court went on to modify the final judgment based upon Mr. Sabine’s lower retirement income. The court reduced the amount that Mr. Sabine had to pay by the amount that Mrs. Sabine had begun receiving from the Social Security Administration as a consequence of Mr. Sabine s retirement, $728 per month. Mrs. Sabine objected to the modification, contending that the issue was beyond the scope of the pleadings and that she had been denied notice and an opportunity to present evidence regarding her current increased financial needs. We agree and reverse.

Where, as here, a judgment is not based on an issue that had been framed by the pleadings, noticed for hearing, or litigated by the parties, it may not stand. Collins v. Bannon, 774 So.2d 66, 67 (Fla. 2d DCA 2000); Gordon v. Gordon, 548 So.2d 428, 429 (Fla. 2d DCA 1989) (holding that the trial court erred in ordering that parties in the dissolution action list the marital home for sale, where the motion before the court was for change in temporary support and where the motion and notice for hearing did not give notice that court would consider the final disposition of the marital home). The failure to follow these basic procedural requirements implicates due process concerns as well as fails to properly invoke the trial court’s jurisdiction. LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131, 1133 (Fla. 2d DCA 1999). The record clearly established that Mrs. Sabine’s counsel had vehemently objected to the trial court’s procedure and consideration of a reduction in the amount that Mr. Sabine should pay, and thus, the issue was not tried by consent. For these reasons, we reverse the judgment insofar as it purported to modify the alimony amount to be paid by Mr. Sabine. This decision is without prejudice to either party to seek a subsequent modification by proper petition.

Reversed.

STRINGER and KELLY, JJ., Concur.


text:
    M.M., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-3301.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    M.M., the mother, West Palm Beach, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Florida Rules of Appellate Procedure 9.315(a).

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


text:
    Johnny B. CROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3098.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Johnny B. Cross, Jasper, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Johnny B. Cross (Appellant) appeals an order summarily denying as untimely the first ground and striking for lack of jurisdiction the second ground of his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and the order denying his motion for rehearing. At the time the motion was filed and the trial court ruled, the trial court did in fact lack jurisdiction, as the trial court’s order summarily denying a prior motion filed pursuant to both rule 3.800(a) and rule 3.850 was then on appeal in this court.

As Appellant pointed out in his motion for rehearing below, his motion was not untimely filed; his judgment and sentence became final in August 2000, and the instant motion was filed within two years thereafter, on June 3, 2002. However, due to its lack of jurisdiction, see Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978); Hulick v. State, 644 So.2d 117 (Fla. 2d DCA 1994); Lee v. State, 392 So.2d 913 (Fla. 1st DCA 1980), the trial court should not have ruled on either ground. It should have either dismissed the motion, or stayed it until this court issued its mandate in the prior appeal. See Washington v. State, 823 So.2d 248, 249 (Fla. 4th DCA 2002). In Washington, this court recently commented that, because of the two-year time limit for rule 3.850, imposed after Wells and Lee were decided, while dismissal is not error, the better practice in such cases is to stay the subsequent motion, in case the two-year period expires while the appeal of the prior motion is pending. This in fact is what happened in the instant case.

Accordingly, as to the first ground, we vacate the orders on appeal and direct the trial court on remand to reconsider Appellant’s timely filed motion. As the trial court did not err in striking the second ground, but the time for refiling has since expired, Appellant may have thirty days from the date of issuance of the mandate in this appeal in which to refile that ground.

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

      . This court affirmed without opinion on October 30, 2002, and the mandate issued on November 15, 2002. See Cross v. State, 831 So.2d 196 (Fla. 4th DCA 2002).

      . Appellant's certificate of service was dated May 13, 2002. See Fla. R.App. P. 9.420(a)(2) (providing that a document filed by a pro se inmate is timely if placed in the hands of an institution official on or before the last day for filing, and is presumed timely if it contains a certificate of service to that effect). However, Appellant's motion was timely filed even without regard to this rule. See Fla. R.Crim. P. 3.850(b); Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988) (when there is no direct appeal, the judgment becomes final when the thirty-day time period for filing an appeal expires).


text:
    Marino DIAZ, Appellant, v. GOLDEN CAB CORPORATION, a Florida corporation, Jose Julio Hernandez, and Francia Rosario, Appellees.
    No. 4D02-1711.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    John M. Jorgensen and S. Brian Bull of Scott, Harris, Bryan, Barra & Jorgensen, Palm Beach Gardens, for appellant.
    Manuel Farach of Nason, Yeager, Ger-son, White & Lioce, P.A., West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. See Abbott & Purdy Group Inc. v. Bell, 738 So.2d 1024 (Fla. 4th DCA 1999).

FARMER, STEVENSON and HAZOURI, JJ., concur.


text:
    Saint Thomas NONOMME, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2707.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    Saint Thomas Nonomme, in proper person.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Contrary to appellant’s assertion, the plea colloquy reveals that the appellant was advised of the immigration consequences of his plea. The order denying the motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 is affirmed.


text:
    M.A.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2398.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2003.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., JORGENSON and SHEVIN, JJ.
   PER CURIAM.

Based on the state’s proper confession of error we vacate the withheld adjudication for second degree aggravated assault with a deadly weapon because the evidence presented was legally insufficient. However, the evidence is sufficient to support a judgment of guilt for the lesser included offense of improper exhibition of a weapon under section 790.10, Florida Statutes (2001). On remand, we direct the court to enter a judgment of guilt on the lesser offense and to re-sentence M.A.A. See Turner v. State, 771 So.2d 1286 (Fla. 4th DCA 2000).


text:
    S.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3721.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

S.B., a juvenile, appeals the disposition orders entered by the trial court. We reverse.

While on community control in three cases for offenses committed in 2000, S.B. committed two additional offenses in 2001 and the court adjudicated him delinquent for them. The new convictions also served to violate the terms of the previously imposed community control. The five offenses represented three felonies and two misdemeanors. After adjudicating him delinquent, the court placed Appellant in a high risk residential program operated under the auspices of the Department of Juvenile Justice to be followed, upon completion, by conditional release.

None of the original orders specified the maximum allowable«time that Appellant must spend under the control of the department. On July 16, 2002, the court amended its orders addressing this problem but, as Appellant had already filed his notice of appeal, it was entered at a time when the court was without jurisdiction and is, therefore, invalid.

A disposition order must specify the period of commitment imposed by the court. M.N. v. State, 798 So.2d 889 (Fla. 4th DCA 2001). This requirement is particularly important where, as here, the offenses range from second degree felonies down to second degree misdemeanors. We, therefore, vacate each of the disposition orders entered and remand with instructions to specify the period of commitment for each offense, not to exceed either the maximum adult sentence for the individual charge or the date when Appellant attains his majority, at which time the department will lose jurisdiction over him.

On remand, we point out that the trial court should enter a separate disposition order for each offense. A.B. v. State, 805 So.2d 924 (Fla. 2d DCA 2001); P.J.C. v. State, 730 So.2d 791 (Fla. 2d DCA 1999).

Reversed and remanded with instructions.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    In the Interest of CJ. and D.J., Children. J.C., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-2020.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

J.C., the mother of C.J. and D.J., challenges the trial court’s order terminating her parental rights after she failed to personally appear at an advisory hearing. As the Department of Children and Family Services properly concedes, J.C. did not receive proper written notice of the advisory hearing as required by section 39.801(3)(a), Florida Statutes (2000). Therefore, we reverse the termination of J.C.’s parental rights and remand for further proceedings.

Reversed and remanded.

ALTENBERND, CASANUEVA, and SALCINES, JJ., Concur.


author: DAVIS, Judge.

text:
    Philip PIGNATARO, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3072.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.

      James Marion Moorman, Public Defender, Bartow, and Donna S. Koch, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Philip Pignataro challenges his conviction for attempted second-degree murder. We reverse because the trial court committed fundamental error by failing to read the jury instructions for justifiable and excusable homicide.

Pignataro was originally charged with attempted first-degree murder for stabbing Robert Clark, his ex-wife’s boyfriend. Although he admitted being involved in the altercation, Pignataro argued self-defense.

During the jury instruction conference, Pignataro’s counsel specifically requested, at Pignataro’s insistence, that the court give only the attempted first-degree murder instruction and give no instructions on lesser included offenses. Pignataro wanted the jury to be faced with an “all or nothing” option. Following a lengthy bench conference, the trial court ruled that it would instruct only on category one lessers (necessarily included lessers), not category two lessers (permissive lessers). There was no discussion regarding the reading of the definitions included in the homicide instruction, and when instructing the jury, the trial court failed to read the definitions on justifiable and excusable homicide. The jury returned a verdict of guilty to attempted second-degree murder.

The court’s failure to read the instructions on justifiable and excusable homicide is fundamental, reversible error. Pursuant to Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999), review denied, 791 So.2d 1103 (Fla.2001), the general rule is that failure to read the definitions of excusable and justifiable homicide in all murder and manslaughter cases is fundamental error. See also Damoulakis v. State, 814 So.2d 1204 (Fla. 2d DCA 2002); Philippe v. State, 795 So.2d 173 (Fla. 3d DCA 2001). But see Pena v. State, 829 So.2d 289, 295 (Fla. 2d DCA 2002) (certifying the following question as a matter of great public importance: “Is it fundamental error for a trial court to omit instructions on excusable and justifiable homicide when a defendant is charged and convicted of drug-distribution, first-degree murder under section 782.04(l)(a)(3), Florida Statutes (1999), and the factual circumstances do not support any jury argument relying upon the excusable or justifiable homicide instructions?” (Capitalized in original.)).

Although there is an exception to this rule when defense counsel “affirmatively agrees to the omission or the alteration of a jury instruction, ... counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it.” Van Loan, 736 So.2d at 804. Here, as in Van Loan, the record contains no indication that trial counsel had prior knowledge of the omission and agreed to it. “The trial court shoulders the responsibility to properly instruct the jury on the definitions of excusable and justifiable homicide.” Id.

While counsel here affirmatively requested that the court not instruct the jury on lesser included offenses, counsel did not affirmatively request the court not to instruct on what is or is not lawful homicide. Van Loan distinguishes between the court’s failure to instruct on lessers and its failure to instruct on excusable and justifiable homicide. Id. at 805. The transcript in the instant case reveals that the issues of excusable and justifiable homicide were not discussed at any time during the jury instruction conference. Although the court did instruct on the justifiable use of deadly and nondeadly force, it did not read the definitions of justifiable and excusable homicide, as it is required to do.

Given the court’s failure to properly instruct the jury on this matter of fundamental importance, we reverse. Pignata-ro’s remaining issues are therefore moot, and we decline to address them.

Reversed and remanded for a new trial.

ALTENBERND and NORTHCUTT, JJ., concur.


text:
    Barney BURKS v. CAMBECK & PARTNERS.
    No. 2002-C-0324.
    Supreme Court of Louisiana.
    Oct. 15, 2002.
    John B. Fox, Robert W. Booksh, Jr., for Applicant.
    Owen W. Joyner, for Respondent.
   PER CURIAM.

We granted certiorari in this case to consider whether the court of appeal erred in reversing the finding of the workers’ compensation hearing officer that the defendant insurer provided workers’ compensation insurance. For the reasons assigned, we conclude that the workers’ compensation hearing officer did not err in so finding, and therefore reverse the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this ' case are undisputed. Barney Burks was employed as a carpenter by Cambeck and Partners, Inc. (“Cambeck”), which acted as a subcontractor on a construction project on the grounds of Nineveh Baptist Church (“Nineveh”). On May 9, 1990, the wood framing of the building under construction collapsed, causing injury to Mr. Burks.

After the accident, Mr. Burks filed a disputed claim for workers’ compensation benefits against Cambeck. Shortly thereafter, Mr. Burks added Nineveh as a 12defendant. In turn, Nineveh filed a third-party demand against CNA Insurance Company (“CNA”).

CNA subsequently filed a motion for summary judgment, seeking the dismissal of all claims against it. In its motion for summary judgment, CNA did not deny the existence of a workers’ compensation policy, but argued the policy was canceled prior to Mr. Burks’ accident. In support, CNA offered the affidavit of William T. Burney, the executive vice president of the Lewis-Burney and Associates insurance agency. Mr. Burney attested that he was the agent on a workers’ compensation policy issued by CNA to Cambeck, but that to the best of his recollection, the policy was canceled for non-payment of premiums pri- or to Mr. Burks’ 1990 accident.

Nineveh opposed the motion for summary judgment, asserting that Mr. Burney admitted during a subsequent deposition that he did not have personal knowledge as to whether the workers’ compensation policy issued to Cambeck had been canceled.

After considering the motion and opposition, the workers’ compensation hearing officer denied the motion for summary judgment. The case then proceeded to trial on the merits.

At trial, CNA argued, for the first time, that it had never issued a workers’ compensation insurance policy to Cambeck. It produced a deposition from Netta Kline, a CNA customer service representative, who testified she did a computer search and a manual search of CNA’s records by names and numbers and that she could not find any record of a workers’ compensation policy issued by CNA to Cambeck.

Mr. Burks introduced Mr. Burney’s testimony in support of his contention that CNA issued a workers’ compensation policy to Cambeck. While Mr. Burney could not produce a copy of the policy, he testified that Cambeck dealt with the Lewis-[¡Burney insurance agency to secure the necessary insurance prior to commencing the construction work at the church. The insurance agency’s billing records indicate that a new “COMP” policy bearing the number C573089 was issued on the account of “Cameback [sic] & Partners, Inc.,” for which a premium of $2,883 was paid. Based on these records, Mr. Burney indicated that he believed CNA did issue a workers’ compensation policy to Cambeck. Mr. Burney also pointed out that CNA issued the general liability policy covering the Nineveh construction project, and he testified that he typically placed the workers’ compensation policy with the same company that issued the liability policy. Mr. Burks also disputed the accuracy of Ms. Kline’s testimony. He questioned the completeness of her search, noting she admitted that another CNA employee was able to find the builder’s risk policy issued on the Nineveh construction project which did not turn up in her search. He further pointed out she conceded it was possible a policy number was issued and just not entered into the computer; that the policy may have existed under the names of additional insureds, for which she did not search; that she may not have all of the predecessor companies’ policy numbers; and that she did not attempt to search accounting records to determine who received the premium paid.

Following trial, the workers’ compensation hearing officer rendered judgment awarding Mr. Burks workers’ compensation benefits. The hearing officer also found that Mr. Burks met the requisite burden of proof to establish that CNA was the insurer of Cambeck on the date of the accident, and that CNA was liable to Mr. Burks for these benefits. Finally, the hearing officer found that CNA was arbitrary and capricious in |4its refusal to pay workers’ compensation benefits, and therefore assessed penalties and attorney’s fees.

CNA appealed. The court of appeal reversed, concluding that neither Mr. Bur-ney’s testimony nor the insurance agency’s billing records constituted sufficient proof that CNA issued a workers’ compensation insurance policy to Cambeck. Burks v. Cambeck & Partners, 01-948 (La.App. 5th Cir.12/26/01), 803 So.2d 438.

Upon Mr. Burks’ application, we granted certiorari to review the correctness of that ruling. Burks v. Cambeck & Partners, 02-0324 (La.5/10/02), 815 So.2d 830.

DISCUSSION

The narrow issue presented is whether the hearing officer erred in finding an insurance policy was in effect and provided coverage to Mr. Burks at the time of his accident. In resolving this question, we find it significant that in its motion for summary judgment in this case, CNA admitted that the policy had been issued. Because CNA admitted the policy had been issued (although it contended the policy was later canceled), it is now precluded from denying its existence. See La. Civ.Code art. 1853.

Having found the policy was issued, we must now determine whether CNA proved that the policy provided no coverage for the claim at issue. Based on our review of the record, we find CNA failed to meet this burden. Other than Mr. Bur-ney’s affidavit (which was later called into question by his deposition testimony), CNA 1 .^introduced no evidence to show that the policy was canceled for non-payment of premiums. Likewise, it produced no evidence that the policy, by its terms, did not provide coverage for Mr. Burks’ accident. Under these circumstances, we cannot say the workers’ compensation hearing officer erred in finding that the policy was not canceled on the date of the accident and that it provided coverage for the accident.

In its appeal, CNA raised other issues, such as the correctness of the hearing officer’s award of penalties and attorney’s fees. Because the court of appeal found no policy existed, it did not reach these other issues. Accordingly, we will remand this case to the court of appeal for consideration of the remaining issues presented in CNA’s appeal.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the Office of Workers’ Compensation is hereby reinstated. This case is remanded to the court of appeal for consideration of CNA Insurance Company’s remaining assignments of error. All costs in this court are assessed against CNA.

VICTORY, J., concurs.

      . The demand was actually filed against Continental Insurance Company, whose subsidiary, the Fidelity and Casualty Company of New York, allegedly issued the policy. Continental has since been acquired by CNA. For simplicity, we will refer to these entities collectively as CNA.

      . The hearing officer concluded that Mr. Burks is entitled to the payment of temporary total disability benefits from May 9, 1990, the date of the accident, through December 22, 1997, and for any period of disability thereafter, and to the payment of all medical expenses, medication expenses, and transportation expenses for his injury.

      . In its motion for summary judgment, CNA stated:
      Attached hereto is a copy of the Affidavit of William T. Burney filed herein on May 8, 1998, wherein Mr. Burney attested to the fact that, as executive vice-president of Lewis Burney & Associates, Inc., he was the agent on a workers’ compensation policy issued by Fidelity & Casualty Company of New York, formerly one of the Continental Insurance Companies, now one of the CNA Companies, to Cambeck & Partners, Inc .... [emphasis added]


author: CALOGERO, Chief Justice,

text:
    Gene ALONZO, et al. v. STATE of Louisiana, Through the DEPARTMENT OF NATURAL RESOURCES.
    No. 2002-CC-2506.
    Supreme Court of Louisiana.
    Oct. 25, 2002.
   In re Alonzo, Gene et al; —Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. B, Nos. 79-080; to the Court of Appeal, Fourth Circuit, No(s). 2002-C-1977, 2002-C-1978.

Stay denied. Writ denied.

CALOGERO, C.J., concurs with reasons.

CALOGERO, Chief Justice,

concurs with the following reasons:

This court’s denial of plaintiffs’ writ application should not be construed by the parties as inferring that, if after an eviden-tiary hearing Judge Fernandez is recused, any prior court action, including a judgment, appealable or not (if one exists), should be retroactively invalidated. Recu-sation after the evidentiary hearing, if that comes to pass, should be given prospective effect only, and thus preclude Judge Fernandez from taking any further action in this case, including signing a further judgment or judgments.

Additionally, the court of appeal’s reserving the right of the state to appeal a monetary judgment rendered by Judge Fernandez surely is not meant by this court’s majority to authorize the appeal of any outstanding signed judgment that was appealable, and as to which the suspensive and devolutive appeal times have elapsed. I concur in this respect only because it is not evident by the application or opposition before this court whether an appealable final judgment has been rendered in this case.

      . The state in its brief says that no appealable judgment exists in this case regarding the Flight I plaintiffs. The state attributes to Judge Fernandez a statement that he would not, and accordingly did not, certify this judgment as appealable. The plaintiffs, on the other hand, assert that Judge Fernandez's damages award constitutes a final, appealable judgment because it determines the merits of all claims of Flight I plaintiffs. We cannot resolve this issue by a simple writ denial at this time.


text:
    In re Gregory J. AVERY.
    No. 2002-OB-2683.
    Supreme Court of Louisiana.
    Nov. 20, 2002.
   IN RE: Avery, Gregory J.; — Plaintiff for Petition to Transfer to Disability Inactive Status.

ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by Gregory J. Avery,

IT IS ORDERED that respondent be and he hereby is transferred to interim disability inactive status pending a hearing to determine the validity of his claim of inability to assist in his defense due to mental incapacity, pursuant to Supreme Court Rule XIX, § 22(C). All disciplinary proceedings shall be stayed pending this determination.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.


author: | t CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Bradley Keith PHILLIPS. State of Louisiana v. Lawrence P. Clemons.
    Nos. 2002-K-0866, 2002-K-0918.
    Supreme Court of Louisiana.
    Nov. 22, 2002.
   In re Clemons, Lawrence P.;-Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court, Div. H, No. 00-6115; to the Court of Appeal, Fifth Circuit, No. 01-KA-1032.

In re Phillips, Bradley Keith;-Defendant; Applying for Writ of Certiorari and/or Review, Parish of Quachita, 4th Judicial District Court, Div. G, No. 99-F1196; to the Court of Appeal, Second Circuit, No. 35,554-KA.

Prior report: La.App., 811 So.2d 1047.

Writ Denied.

CALOGERO, C.J., dissents from denial of the writ, votes to grant, and assigns reasons.

JOHNSON and WEIMER, JJ., would grant the writ.

| t CALOGERO, Chief Justice,

dissenting from the denial of the writ, voting to grant the writ, and assigning these reasons:

For many years the law in this state was that an appellate court could not amend or set aside an illegally lenient sentence on its own motion, when the defendant alone had appealed and the state had not sought review of the sentence. State v. Jackson, 452 So.2d 682 (La.1984); State v. Napoli, 437 So.2d 868 (La.1983). We reasoned that an unsought modification of a sentence by an appellate court “either is or appears to be retaliatory in nature,” and may have an unconstitutional “chilling effect” on the exercise of a defendant’s right to appeal, a right that is favored under our law. Jackson, 452 So.2d at 683.

In 1999, the legislature passed La.Rev. Stat. 15:301.1, entitled “Sentences without benefit of probation, parole, or suspension of sentence; correction,” which provides that when a criminal statute requires that all or a portion of a sentence | ¡¡imposed for a violation of a statute be served without benefit of probation, parole, or suspension of sentence, each sentence imposed under the provisions of that statute shall be deemed to contain these provisions, regardless of whether the district court has inadvertently or purposefully omitted this language. This court held in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, that § 301.1 authorized an appellate court to correct an illegally lenient sentence absent any complaint by the state and where a defendant is the only party bringing an appeal. The Williams decision was not unanimous, however, for I dissented (and Justice Pro Tempore Lo-brano concurred). I pointed out in my dissent that the majority’s result creates a chilling effect on a defendant’s exercise of his constitutional right to appeal and offends La. Const, art. I, § 19, which guarantees Louisiana citizens a right to judicial review.

The title and language of § 301.1 make clear that it applies only to situations where a criminal statute requires a defendant to serve his sentence without the benefit of probation, parole, or suspension of sentence. These consolidated writ applications, which a majority of this court has declined to grant, present the situation where the appellate court, in the absence of an appeal by the state, has amended a sentence to include a fíne mandated by the relevant criminal statute. The majority of this court believes that these writ applications are governed by Williams. The Williams court, however, based its holding on § 301.1, which does not address sentencing restrictions other than parole, probation, or suspension of sentence. Consequently, mandatory fines continue to be governed by La. Code Cr. Proc. art. 882, which states that “an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review,” and that “a sentence may be reviewed as to its legality on the application of the defendant or of the state....” Unlike § 301.1, which |3is self-activating, this court held in State v. Fraser, 484 So.2d 122 (La.1986), that article 882 requires the state to apply for appellate review of an illegally lenient sentence.

The Williams decision does not sweep broadly enough to overrule Fraser and hold that the state need not appeal the district court’s failure to impose a statutorily mandated fine. The law in Louisiana regarding an appellate court’s imposition of mandatory fines on its own motion continues to be governed by the Fraser court’s interpretation of article 882: the state must seek appellate review of the district court’s failure to impose a statutorily mandated fine. The courts of appeal in these consolidated cases therefore erred in amending the defendants’ sentences to include a fine in the absence of complaint by the state. The failure of this court to grant these writ applications and correct the courts of appeal’s erroneous application of Williams to the distinguishable cases here represents an unsupported erosion of governing statutes and jurisprudential rules. Accordingly, I would grant the defendant/relators’ writ applications to consider the defendants’ contentions that an appellate court may not tamper with a district court’s failure to impose a mandatory fine unless the state is seeking relief by appeal or writ application.

      . In the Clemons writ, the criminal statute at issue is La.Rev.Stat. 14:95(E), which provides that "the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for no less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.” (Emphasis added). Whether this statute mandates a fine in some minimum amount is a question not entirely free from doubt. After all, a fine of zero qualifies as "not more than ten thousand dollars.” '


author: | VICTORY, J., | VICTORY, J.,

text:
    James HUNTER, Individually and on Behalf of his Deceased Wife, Hattie Hunter v. Dr. Elma LEDOUX, et al.
    No. 2002-C-2193.
    Supreme Court of Louisiana.
    Nov. 22, 2002.
   | VICTORY, J.,

dissenting.

Granted. Any discrepancy by the jury polling was, under the facts of this case, harmless error. Because the general verdict and the answers to the jury interrogatories were harmonious, the trial court was required to direct entry of an appropriate judgment based upon the verdict and interrogatory answers. See La. C.C.P. art. 1813(C). Accordingly, the judgments of the trial court and the Court of Appeal are reversed. This case is remanded to the district court for the entry of judgment in accordance with the jury verdict as reflected on the jury verdict form, reserving to the parties all post judgment proceedings.

VICTORY, J., dissents and assigns reasons.

| VICTORY, J.,

dissenting.

Although I agree with the majority that the jury polling issue is not important, I dissent from the Court’s action. The trial judge, Judge Tobias, at the request of the parties, did not order a new trial, but acted on the motion for JNOV filed by the defendants. Citing Anderson v. New Orleans Public Serv., Inc., 583 So.2d 829 (La.1991), the trial judge granted the JNOV by written reasons on May 26, 2000, holding that the jury erred in finding that the defendants’ negligence caused Ms. Hunter’s death. The trial court’s judgment dismissing the plaintiffs case was signed on the same day. Yet, the court of appeal held there was no judgment granting a JNOV for the court to review, and remanded the case for a new trial.

Since Judge Tobias is no longer on the district bench and has already ruled on the JNOV, I see no reason to have the defendants’ JNOV decided again by a new judge who did not preside at the trial and who will have to decide the issue from reviewing the record. Under these circumstances, I would grant the writ and remand the case to the court of appeal for full review of the trial court’s ruling on the defendants’ JNOV.