author: WOLF, C.J.

text:
    Rebecca L. CAMUS, Appellant, v. Alan C. PROKOSCH, Appellee.
    No. 1D04-1620.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Rehearing Denied Sept. 28, 2004.
    Keith A. Mclver, of Chase, Quinnell, Mclver & Jackson, P.A., Pensacola, for appellant.
    Michael T. Webster, Shalimar, for appel-lee.
   WOLF, C.J.

In this paternity action Rebecca L. Camus appeals an order establishing child support obligations for her child with Alan C. Prokosch (father). We find the trial court erred under the facts of this case in calculating the net income of the father, and we reverse.

The father/appellee resides with and continues to be married to Robin Pro-kosch, his wife of over seventeen years. The appellee drafted and entered, into an agreement with his wife requiring him to make “spousal support” payments and to transfer half of his monthly military retirement, income to his wife. In the proceedings below, the appellee asserted that these payments and transfers ' either should not be included in his gross income or, alternatively, should be deducted from his gross income for the purposes of determining the guideline support obligations to his child. The trial court found that these payments between the appellee and his wife were a “shameful artifice intended to avoid paying’ guideline child support.” However, the trial court concluded that the “father’s actions (whatever his intentions) are within statutory bounds.” Thus; the trial court concluded that the father was allowed to deduct the spousal support payments from his gross income pursuant to section 61.30(3)(g), Florida Statutes (2003), as payments for support for a “previous marriage.” We disagree.

Chapter 742,, involving paternity determination, directs the trial court to establish child support obligations pursuant to section 61.30. See § 742.031(1), Fla. Stat. (2003). The determinative factor in calculating the guidelines amount of child support is the net income of the parents. See § 61.30, Fla. Stat. (2003). Net income is calculated using both parents’ recurring gross income minus certain deductions. See § 61.30(2)-(5), Fla. Stat. (2003). After calculating net income, the trial court uses the guidelines table in section 61.30(6) to determine the minimum guidelines amount of support. Once the trial court has established each parent’s percentage share of the -guidelines child support, this percentage is applied to the minimum guidelines amount of child support to arrive at each parent’s actual dollar share of child support. See § 61.30(10), Fla. Stat. (2003).

Section 61.30(3)(g) allows a deduction for alimony:

(3) Allowable deductions from gross income shall include:
(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.

§ 61.30, Fla. Stat. (2003). The issue before the trial court was whether it must subtract appellee’s “shameful” transfers of money for “spousal support” and his military retirement from his gross income despite the finding that these payments were a fraud.

The record supports the trial court’s finding that the father’s support payments to his current wife were a sham to lower his child support obligation. The trial court, however, erred as a matter of law in interpreting section 61.30(3)(g) as applying to the father’s payments to his wife. The father’s chicanery cannot constitute “spousal support from a previous marriage” as contemplated by this section.

■ It is also well established that proceedings under chapter 61, and by reference to chapter 742, are equitable in nature and, therefore, governed by basic rules of fairness. See Sumlar v. Sumlar, 827 So.2d 1079 (Fla. 1st DCA 2002). Allowing the father to reduce his support obligations based on his duplicitous transactions does not comport with the basic rules of fairness. Because we find that the trial court erred as a matter of law in finding that these payments were deductible under section 61.30(3)(g), and no other deduction applies, the payments to appellee’s wife cannot be deducted for the purposes of calculating the father’s net income and support obligations. See Copeland v. Copeland, 667 So.2d 487 (Fla. 1st DCA 1996) (reversing in part, finding reduction of gross income for 10% of income which was regularly tithed to church during the marriage was inappropriate where guidelines did not include tithing as deduction and did not grant discretion to allow deduction of items not listed in section 61.30(3)).

Regarding the military retirement income, the agreement categorizes this as a transfer of property from appel-lee to his wife. The record does not establish that appellee only owns half of this property. Regardless, it was error for the trial court either to not include in or to deduct from the father’s gross income the amount of military retirement benefits transferred to his wife. Whereas retirement income must be included in calculating gross income pursuant to section 61.30(2)(a)(7), distributions of property are not listed as an allowable deduction under section 61.30(g). Moreover, where a parent transfers property or voluntarily decreases his income to circumvent child support obligations, the amount of the decrease can be included for determining child support obligations. See Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994) (reversing reduction in child support obligation of father who essentially transferred portion of his military severance to his new wife). We would not allow such transfers to defraud creditors; therefore, the trial court should not have allowed these transfers to reduce the father’s obligations to his child. See generally, Valdivia v. Valdivia, 593 So.2d 1190, 1192 (Fla. 3d DCA 1992) (“The law is clear that a debtor may not transfer property owned by himself, individually, to himself and his wife as tenants by the entireties, if such a transfer will defraud creditors by putting that property beyond the creditors’ reach.”). See also Sheets v. Sheets, 83 P.3d 901 (Okla.Ct.App.2003) (finding father could not claim deduction from his income for current wife’s services to his veterinary practice for purposes of child support obligations); Stroud v. Stroud, 758 So.2d 502 (Miss.Ct.App.2000) (affirming child support award based on father’s dental practice profits rather than salary where father diverted income to his current wife, the dental office manager, to decrease the net profits by 60%); Evjen v. Evjen, 171 Wis.2d 677, 492 N.W.2d 361 (Ct.App.1992) (affirming inclusion of money paid by father’s closely held corporation to his current wife in father’s gross income where father was attempting to dodge his child support obligations by transferring corporate income to his current wife). As such, we find the father’s full military retirement amount should have been included in calculating his income.

Appellee argues that even without the reduction in the net income for payments to his wife, the child’s needs only warrant $500.00 worth of support, citing Finley v. Scott, 707 So.2d 1112 (Fla.1998). Neither the law, nor the facts in Finley support appellee’s argument. In Finley, the supreme court was addressing the issue of whether a trial court had the right to deviate from the support guidelines. In this case there was no deviation of guidelines, but rather an error in calculating the presumptive minimum guideline amount. Factually, whereas the paternity action in Finley involved a father who was a professional athlete making $266,926 a month and a child whose living expenses were much lower than the $10,000 guideline amount, this case involves a child whose existence is teetering on the poverty level. Appellee’s argument — .that even without the reduction in net income the child support obligation was sufficient because the child was getting by with $500.00 a month in support — is without merit.

In conclusion, we reiterate that a parent’s financial position cannot be voluntarily decreased to lessen his or her child support obligations. We find that under the circumstances in this case, the trial court erred in calculating appellee’s net income by deducting the amounts transferred to his wife. We remand with directions to recalculate child support guidelines pursuant to the formula prescribed by section 61.30, consistent with this opinion.

KAHN and LEWIS, JJ., concur.

      . The trial court also allowed the father to deduct child support to his wife for' their minor child who lives with him and his wife. Appellant does not challenge the validity of this deduction.

      . The record reflects that on September 12, 2003, appellee entered into a contract with his wife in which he agreed to pay over half of his monthly income to her. The agreement makes no reference to a separation between appellee and his wife. This agreement between appellee and his wife was drafted by appellee’s attorney, Michael T. Webster, the same attorney representing appellee in the current matter. Appellee’s wife was unrepresented when she signed the agreement. On the same day appellee signed the agreement with his wife, he initiated this action by filing a "Petition to Determine Paternity and for Related Relief” against appellant. At the hearing, appellee testified that he and his wife were never separated and they continued to live in the same home. Although appellee repeatedly mentioned that he resided in a back bedroom "most of the time,” there was no testimony as to where his wife resided in the home.


source: Caselaw Access Project

author: HAWKES, J.

license: Public Domain

text:
    Harold P. JACOBSEN, as personal representative of Betty Jean Jacobsen, Appellant, v. ROSS STORES and Sedgwick Claims, etc., Appellees.
    No. 1D03-2868.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.

      Kevin G. Bennett; Grossman & Goldman, P.A., Boca Raton, for Appellant.
    Valentina M. Tejera, Miami, for Appel-lee.
   HAWKES, J.

The issue before us is whether the amendments to section 440.20(ll)(c), Florida Statutes (2001), adopted by the 2000 legislature, eliminated the previously existing jurisdiction of the Judge of Compensation Claims (JCC) to construe or enforce settlement agreements, or to determine whether a settlement was reached. We conclude the amendments did not alter the JCC’s jurisdiction and reverse.

Betty Jean Jacobsen (Claimant) and Ap-pellees, Ross Stores and Sedgwick Claims Management Services (E/C), through mediation, entered a written, signed washout settlement agreement pursuant to section 440.20(1l)(c),(d), and (e), Florida Statutes (2001). The mediation report indicated the settlement agreement completely resolved all issues.

Before payout of the settlement, Claimant died and Harold Jacobsen (Appellant), personal representative of Claimant’s estate, filed a notice of substitution of parties and a motion to compel enforcement of the settlement agreement. Following a hearing on Appellant’s motion to compel, the JCC entered an Order concluding that, pursuant to section 440.20(ll)(c), Florida Statutes (2001), she lacked jurisdiction to either determine whether a washout settlement agreement was reached, or to enforce such an agreement. This appeal followed.

Whether a court has subject matter jurisdiction is a question of law reviewed de novo. See Seven Hills, Inc. v. Bentley, 848 So.2d 345 (Fla. 1st DCA 2003); see generally Klonis v. Dep’t of Revenue, 766 So.2d 1186, 1189 (Fla. 1st DCA 2000).

A claimant represented by counsel may enter a lump sum settlement agreement. See § 440.20(ll)(c), Fla. Stat. However, pursuant to the year 2000 amendments to section 440.20(ll)(c), such “settlement agreement requires approval by the [JCC] only as to the attorney’s fees paid to the claimant’s attorney by the claimant. The parties need not submit any information or documentation in support of the settlement, except as needed to justify the amount of the attorney’s fees.... ” Id. (emphasis added). The plain language of this statute does not extinguish the JCC’s previously existing jurisdiction to determine whether a settlement agreement was entered, or to construe, or give effect to settlement agreements. Rather, except for the amount of attorney’s fees, it simply permits parties represented by counsel to enter lump sum settlement agreements without obtaining the JCC’s approval of the settlement actually reached.

A JCC’s jurisdiction relating to settlement agreements is well-settled. Construction of a settlement agreement is “a matter clearly within the province of the JCC.” Czopek v. Great Chemicals & GAB, 778 So.2d 996, 997 (Fla. 1st DCA 2000). The JCC has authority to determine whether a valid, binding settlement agreement was reached, and if so, to give effect to the settlement agreement. See id. (noting that, after a hearing, the JCC entered an order finding claimant had voluntarily entered into a valid and binding settlement agreement which was within JCC’s jurisdiction to construe); see also Frix v. All State Ins. & ITT, 854 So.2d 258 (Fla. 1st DCA 2003) (holding JCC has authority and jurisdiction to impose sanctions for late payment of a settlement between the parties); Dominguez v. Cruise Holdings, 814 So.2d 505 (Fla. 1st DCA 2002) (holding JCC erred by failing to give effect to parties’ settlement agreement; on remand, JCC directed to assess parties’ contrary interpretations of settlement provision). Where terms of a washout settlement conflict with other terms in the settlement, a patent ambiguity is created, the resolution of which is a question of fact requiring the JCC to determine the intended scope of the settlement. See Barefoot v. Sears Roebuck & Co., 650 So.2d 1036 (Fla. 1st DCA 1995).

The JCC erred by concluding the amendments to section 440.11(c), Florida Statutes, divested her of the subject matter jurisdiction long held by JCCs to determine whether the parties entered a binding settlement agreement, or to enter an order giving effect to that agreement. Accordingly, the JCC’s order is REVERSED.

ERVIN and ALLEN, JJ., concur.


author: PER CURIAM.

text:
    Donnavan ROLLISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-694.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., MONACO and TORPY, JJ., concur.


text:
    Shelley Pearl PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-424.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 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 Lamya Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    James Earl JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-27.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See State v. Causey, 503 So.2d 321 (Fla.1987).

AFFIRMED.

SHARP, W., PALMER and MONACO, JJ., concur.


text:
    Daryl J. DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3276.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

PETERSON, ORFINGER and TORPY, JJ., concur.


text:
    Dianne FISCHER, etc., Appellant, v. Kenneth C. FISCHER, Appellee.
    No. 3D04-427.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 2004.
    Simon Schindler & Sandberg, and Steven J. Silverman, for Appellant.
    Leinoff & Lemos, and Andrew Leinoff, and Ansana D. Singh, for Appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Cole v. Cole, 723 So.2d 925, 927 (Fla. 3d DCA 1999); Marrone v. Miami Nat’l Bank, 507 So.2d 652, 653 (Fla. 3d DCA 1987).

Appellee Kenneth C. Fischer’s motion for attorney’s fees and costs on appeal is remanded to the trial court. If the movant establishes his entitlement pursuant to section 61.16, Florida Statutes, and Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the trial court is authorized to award the movant all or a portion of the reasonable appellate attorney’s fees. This court concludes that the appeal by the wife lacked merit, and therefore the trial court should give great weight to the factors set forth in Rosen. See Rados v. Rados, 791 So.2d 1130 (Fla. 2d DCA 2001).

We therefore affirm the order on appeal and remand the cause to the trial court to determine Kenneth C. Fischer’s motion for attorney’s fees and costs.


text:
    Angelo REIGH, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-1071, 4D03-1074, 4D03-1072, 4D03-1158, 4D03-1073.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Kevin J. Kulik, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s revocation of appellant’s probation. The condition of probation that appellant “attend and complete” an anger management program specified neither a program nor the time when the program had to be completed. See Markel v. State, 855 So.2d 719 (Fla. 4th DCA 2003); O’Neal v. State, 801 So.2d 280 (Fla. 4th DCA 2001); Willis v. State, 727 So.2d 952 (Fla. 4th DCA 1998); Archer v. State, 604 So.2d 561 (Fla. 1st DCA 1992). We note the record contains a letter which indicates that appellant completed an anger management program while he was incarcerated for the violation of probation.

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


text:
    Lola ALSTON, Appellant, v. CITY OF RIVIERA BEACH, a municipal corporation, Appellee.
    No. 4D03-3725.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Andrew DeGraffenreidt, III of Powers, McNalis & Torres, West Palm Beach, for appellant.
    Leonard G. Rubin of Boose Casey Ciklin Lubitz Martens McBane & O’Connell, West Palm Beach, for appellee.
   PER CURIAM.

We affirm a judgment denying Alston’s claim for attorney’s fees for the city’s failure to disclose a public record sought pursuant to section 119.12, Florida Statutes. The record supports the trial court’s conclusion that the city had a good faith and reasonable belief that Alston’s request applied only to documents under the control of the parks and recreation department and that Alston failed to establish that the city unlawfully withheld police department records.

STONE, POLEN and HAZOURI, JJ., concur.


author: VAN NORTWICK, J.

text:
    Gary LANE, Appellant, v. Kathleen Holbrook COLD, Esquire, et al., Appellee.
    No. 1D03-4540.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Rehearing Denied Sept. 24, 2004.

      Michael J. Davie, Jacksonville, for Appellant.
    Francis J. Milon of Harris Brown, P.A., Jacksonville, for Appellee.
   VAN NORTWICK, J.

Gary Lane appeals a final summary judgment entered in favor of Kathleen Holbrook Cold, appellee, in Lane’s legal malpractice action against Cold based upon her alleged failure to prepare a buy-sell agreement. Because no genuine issue of material fact exists as to whether Cold was retained to prepare such an agreement, we affirm.

Cold prepared the necessary documents for the incorporation of Bobcat of North Florida, Inc., with Lane and his now deceased brother, Bobby Lane, as sole shareholders. Lane argues that genuine issues of material fact are in dispute as to whether Cold was negligent in failing to prepare a buy-sell agreement when she incorporated Bobcat to assure a plan of succession for the corporation in the event of the death of one of the brothers. The facts are undisputed that Cold had prepared a buy-sell agreement at the time of the incorporation of another corporation wholly-owned by the Lanes; that, at the time of the incorporation of Bobcat, Cold inquired of the Lanes as to whether.they wished her to prepare a buy-sell agreement; and that no one requested Cold to prepare a buy-sell agreement relating to Bobcat. Although Gary Lane and the Lanes’ accountant stated that the Lanes wanted a buy-sell agreement, Lane produced no evidence that either the Lanes, their accountant or anyone acting on their behalf had requested Cold to prepare, the agreement or expressed to Cold an interest in having a buy-sell agreement in connection with Bobcat.

To recover in a legal malpractice action, the plaintiff must show (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) such negligence was the proximate cause of loss to the plaintiff. Maillard v. Dowdell, 528 So.2d 512, 514 (Fla. 3d DCA 1988). With respect to establishing the first element, it is not sufficient merely to show that an attorney-client relationship ■ existed between the parties, it is essential that the plaintiff show that the relationship existed with respect to the acts or omissions upon which the malpractice claim is based. Id. Here, Lane has presented no evidence that Cold was retained to prepare a buy-sell agreement or that she otherwise • agreed, expressly or implicitly, to undertake that responsibility.

Further, although an. attorney’s negligent act or -omission in connection with a client’s business planning may be the basis for a malpractice action, see, e.g., Conley v. Shutts & Bowen, 616 So.2d 523 (Fla. 3d DCA 1993); Viner v. Sweet, 30 Cal.4th 1232, 135 Cal.Rptr.2d 629, 70 P.3d 1046 (2003); Lane does not allege that Cold gave him negligent advice. It is undisputed that Cold counseled with her clients with respect to the buy-sell agreement and asked her clients whether they wished one to be prepared. Cold’s professional inquiry concerning the desire for a buy-sell agreement, without more, did not create a duty on her part to prepare the agreement. See Boyd v. Brett-Major, 449 So.2d 952, 954 (Fla. 3d DCA 1984)(“It is not the role of an attorney acting as counsel to independently determine what is best for his client and then act accordingly. Rather, such an attorney is to allow the client to determine what is in the client’s best interests and then act according to the wishes of that client within the limits of the law.”) (quoting Orr v. Knowles, 215 Neb. 49, 337 N.W.2d 699, 702 (1983)).

Where a movant for summary judgment (here, Cold) offers sufficient evidence to support her claim of the nonexistence of a genuine issue of material fact, the opposing party (in this case, Lane) must, demonstrate the existence of an issue or issues either by countervailing facts or justifiable inferences from the facts presented. Fleming v. Peoples First Financial Savings and Loan Association, 667 So.2d 273, 274 (Fla. 1st DCA 1995). Here, Lane failed to present to the trial court any evidence showing that Cold was employed to prepare or otherwise had a professional obligation to prepare a buy-sell agreement for the Lanes and Bobcat. Accordingly, we find that there is no genuine issue of material fact as to one of the essential elements of Lane’s cause of action and we affirm the final summary judgment.

AFFIRMED.

BARFIELD and PADOVANO, JJ., concur.


text:
    Albert WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2016.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Rehearing Denied Sept. 30, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Sanders v. State, 847 So.2d 504, 506-08 (Fla. 1st DCA 2003) (en banc), review pending, No. SC03-0640 (Fla. Apr. 8, 2003).

WOLF, C.J., and BENTON and VAN NORTWICK, JJ., concur.


text:
    Derrick L. CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2990.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Derrick L. Cummings, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is dismissed for lack of jurisdiction. See Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992)(holding that there is no authority for a motion for rehearing of an order disposing of a rule 3.800 motion to correct illegal sentence and, therefore, the motion for rehearing did not postpone rendition of the order so as to make the notice of appeal timely).

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


text:
    George CROMARTIE, Appellant, v. CITY OF ST. PETERSBURG, Appellees.
    No. 1D03-2484.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Joey Quist, St. Petersburg; Bill McCabe, Longwood, for Appellant.

      Nancy L. Cavey, St. Petersburg, for Ap-pellees.
   PER CURIAM.

In this workers’ compensation case, the claimant seeks review of an order denying his petition requesting psychological and/or psychiatric care. Because we agree with the claimant that the record does not contain competent and substantial evidence to support the determination of the judge of compensation claims that clear and convincing evidence existed sufficient to reject the appointed expert medical ad-visor’s opinion that the claimant had sustained a psychiatric injury as a result of the compensable workplace accident, we reverse.

We have held that “an expert medical advisor’s opinion has ‘nearly conclusive effect,’ ” and that it “is presumed to be correct and may only be rejected on the basis of clear and convincing evidence.” Walgreen Co. v. Carver, 770 So.2d 172, 174 (Fla. 1st DCA 2000). As was the case in Walgreen, so here, our review of the record reveals no competent and substantial evidence to support the judge’s determination that clear and convincing evidence existed sufficient to reject the expert medical advisor’s opinion that the claimant had sustained a psychiatric injury as a result of the compensable workplace accident. The principal basis for the judge’s determination was her conclusion that the expert medical advisor based his opinion on a faulty assumption — that the claimant had sustained a closed head injury as a result of the accident. However, as the record clearly reveals, this was merely one of many areas in which the opinions of the numerous medical experts disagreed. Resolution of such disagreements is precisely why the opinions of expert medical advisors are to be accorded “ ‘nearly conclusive effect.’ ” Id.

The order is reversed. On remand, the judge shall enter an order granting the claimant’s petition requesting psychological and/or psychiatric care. Because we reverse the denial of psychological and/or psychiatric care, we must also reverse the denial of attorneys’ fees and costs, and direct the judge to revisit that issue.

REVERSED and REMANDED, with directions.

BOOTH, WEBSTER and DAVIS, JJ., CONCUR.


text:
    Wilton Amos ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2885.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Wilton Amos Ross, pro se, appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Wilton Amos Ross appeals an order of the circuit court which denied his motion for postconviction relief. This court previously dismissed Ross’ appeal for lack of jurisdiction because his motion for rehearing in the lower tribunal appeared to be untimely and therefore did not postpone rendition of the order. Ross v. State, 856 So.2d 1042 (Fla. 1st DCA 2003). Ross filed a petition for writ of mandamus in the Supreme Court of Florida which argued that his motion for rehearing, given to prison officials for mailing eighteen days after entry of the trial court’s order, was timely. This court responded to the mandamus petition and acknowledged that the notice of appeal was timely and that dismissal of Ross’ appeal was error. See Fla. R.Crim. P. 3.850(g); King v. State, 504 So.2d 405 (Fla. 1st DCA 1987); Fla. R.App. P. 9.420(a)(2). The Supreme Court issued its order in case number SC03-2406 which directed that this appeal be reinstated, which is hereby ordered.

We therefore turn to the merits of Ross’ appeal. In the trial court, he argued that recent test results exonerate him. Those tests showed that hair and blood samples taken from the victim of the murder for which Ross was convicted were solely those of the victim and no DNA of Ross himself was found. The trial court correctly concluded that this evidence does not exclude the appellant from having been present at the scene of the murder, is consistent with appellant’s guilt, does not exonerate him, and would not likely produce an acquittal at retrial. Jones v. State, 709 So.2d 512, 521 (Fla.1998); Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001). Denial of the motion for postconviction relief is therefore affirmed.

APPEAL REINSTATED; AFFIRMED.

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


text:
    DIXIE GROWERS, INC. and Florida Preferred Risk, Appellants, v. Eriberto MENDEZ, Appellee.
    No. 1D03-3294.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Ben Cristal of Sponsler, Bennett, Jacobs & Cristal, P.A., Tampa, for appellants.
    Deborah L. Slowik-Eldridge, St. Peters-burg, for appellee.
   PER CURIAM.

Eriberto Mendez, a Florida workers’ compensation claimant, filed a petition for benefits which sought authorization of a Spanish-speaking psychiatrist for his evaluation and treatment. Later, Mendez moved for an independent medical examination with a particular psychiatrist. The motion was called up for hearing and claimant’s counsel made an ore tenus request at the hearing for authorization of a Spanish-speaking psychiatrist to treat Mendez. The request was granted and employer/carrier appeal, contending that they were not given notice that this issue would be decided at the hearing, and that they did not have the opportunity to present evidence in opposition.

Appellee has filed an answer brief where he concedes that the arguments of appellants are well-taken. We agree and accordingly reverse and remand to the Judge of Compensation Claims for further proceedings on the petition for benefits.

REVERSED AND REMANDED.

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


text:
    Alberique THOMAS, Appellant, v. YODER BROTHERS, INC. and Florists’ Mutual Insurance, Appellees.
    No. 1D03-3661.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    James Jean-Francois, Esquire, Fort Lauderdale, for Appellant.
    Randal H. Thomas, Esquire, Fort Myers and Paula F. Kelley, Esquire, Kelley Stif-fler Thomas, PLLC, Bonita Springs, for Appellees.
   PER CURIAM.

Claimant Alberique Thomas appeals the Judge of Compensation Claim’s order denying him compensation for certain medical treatments and temporary total and temporary partial disability benefits arising from two separate work accidents in which claimant injured his back. The JCC denied compensation, at least in part, because claimant failed to establish medical causation. While claimant’s testimony below indicates that his treatments and disability were causally related to his employment, claimant’s counsel failed to present the requisite medical evidence that his work accidents were the major contributing cause of his need for treatment and his current disability. See Vadala v. Polk County Sch. Bd., 822 So.2d 582, 583-84 (Fla. 1st DCA 2002) (stating that lay testimony alone is “insufficient to establish a causal connection as to conditions and symptoms not readily observable”).

Claimant’s counsel also failed to submit the medical bills for which claimant sought compensation into evidence. Without these bills, even had claimant proven com-pensability, the JCC properly declined to award payment for the medical treatment. See Town & Country Farms v. Peck, 611 So.2d 63, 64 (Fla. 1st DCA 1992) (stating that “an order directing payment of medical bills is improper unless medical bills are placed in evidence or there is clear and unequivocal testimony as to the amount of bills”).

Therefore, we must affirm the JCC’s order denying compensation.

BENTON, BROWNING and POLSTON, JJ., CONCUR.


text:
    Kimberly Rosetta LEVINGSTON a/k/a Kimberly Rosetta Williams, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5295.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal challenges her conviction of introducing contraband into a correctional facility following her plea of nolo contendere to that offense. Because the plea, judgment, and sentence were entered before the information charging the offense was prepared or filed, we vacate the conviction and sentence and remand this case to the trial court. Chapman v. Stubbs, 109 Fla. 192, 147 So. 227 (1933) (“Undoubtedly a judgment of conviction, prior to the finding of any indictment against the accused, would be, as contended by the petitioner, absolutely void, because such judgment would be the attempted jurisdiction of a court without any jurisdiction on its part to enter a judgment of any kind against the accused.”); see also L.L.H. v. State, 873 So.2d 1252 (Fla. 5th DCA 2004). On remand, the state must be given the opportunity to withdraw from the balance of the plea agreement that led to the appellant’s plea. See, e.g., Williams v. State, 650 So.2d 1054 (Fla. 1st DCA 1995).

ALLEN, VAN NORTWICK and BROWNING, JJ„ concur.


text:
    Kurt Aaron DICKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0443.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Kurt Aaron Dickson, pro se, petitioner.
    Charles Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Kurt Aaron Dickson seeks a belated appeal from his judgment and sentence imposed by the Circuit Court for Duval County. Dickson had a timely appeal in this court’s case number 1D02-0325 and he was represented therein by court-appointed counsel. The appeal was dismissed due to counsel’s failure to timely ensure the filing of a record and an initial brief.

The state has responded to the petition and concedes petitioner is entitled to relief because Dickson’s counsel has admitted that he was at fault in the matter. Accordingly, we grant the petition and find that the proper remedy is reinstatement of the original appeal.

Case number 1D02-0325 is hereby reinstated. The Public Defender for the Fourth Judicial Circuit is appointed to represent Dickson in that appeal and shall secure the filing of the record on appeal in case number 1D02-0325 within 50 days of date of this opinion. Briefing shall thereafter proceed in accordance with Florida Rule of Appellate Procedure 9.140(g).

PETITION GRANTED and APPEAL REINSTATED.

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


text:
    Robert HERRINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2423.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Robert Herrington, pro se, petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Robert Her-rington is hereby afforded a belated appeal from judgment and sentence in ease number 2003-CF-14950-A in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


text:
    Arron STRONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0996.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Arron Strong, pro se, petitioner.
    Charlie Crist, Attorney General; Trisha Meggs Pate and Linda Horton Dodson, Assistant Attorneys General, Tallahassee, for respondent.
   PER CURIAM.

This petition for writ of mandamus is denied as moot. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


author: MAY, J.

text:
    OKEECHOBEE UTILITY AUTHORITY, an independent special district, Appellant, v. KAMPGROUNDS OF AMERICA, INC., d/b/a Okeechobee KOA, et al., Appellees.
    No. 4D03-3648.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Harold G. Melville of Melville & Sower-by, P.L., Fort Pierce, for appellant.
    J. Stephen Tierney, III of Neill, Griffin, Fowler, Tierney, Neill & Marquis, Chartered, Fort Pierce, for appellees.
   MAY, J.

The Okeechobee Utility Authority (OUA) appeals a final summary judgment and partial summary judgment that required it to assess a “Base Facility Charge” on campgrounds for water and wastewater “in the same manner as [it assesses the charge against] hotels, motels or other similar facilities,” and ordered the OUA to refund overages. The trial court found the OUA improperly assessed the charges against a number of campground facilities, in violation of section 189.420, Florida Statutes (2003). We disagree and reverse.

The OUA is an independent special district. The plaintiffs are either mobile home parks or recreational vehicle parks [facilities] regulated by chapter 513, Florida Statutes (2003). The OUA provides water and wastewater utility services for these facilities and charges for them. A Water and Wastewater Rate Schedule sets the applicable charges, which include a monthly charge for connection to the OUA utility lines regardless of the amount of water consumed, the “Base Facility Charge.” The schedule also provides for a “Gallonage Rate,” based upon the amount of water consumed. Capital connection costs, meter installation fees, and backflow prevention fees are charged at the time of connection to the OUA utility lines. These charges do not apply to property owners who do not connect to the OUA lines.

The facilities filed a complaint challenging the manner in which the OUA calculated the “Base Facility Charge.” They alleged the “Base Facility Charge” constitutes an “assessment” levied monthly on each of the facilities within the meaning of section 189.420, Florida Statutes (2003). As such, the OUA was required to calculate the “assessment” as if the facilities were hotels or motels. In contrast, the OUA considers the facilities as “multi-fam-ily residential.” Because of this characterization, the OUA argued the “Base Facility Charge” is a “user fee” and not subject to section 189.420.

The facilities filed a motion for partial summary, judgment. The OUA filed a counter motion for summary final judgment. The trial court found the “Base Facility Charge” constituted.the levy, of an “assessment” within the meaning of section 189.420 and entered an order declaring the charges null and void. It also required the OUA to assess the “Base Facility Charge” in the same manner as it assesses the charge against hotels, motels, or other similar facilities, pursuant to the statute. The court reserved jurisdiction on the remaining issues.

Subsequently, the trial court entered an order denying the OUA’s motion for summary final judgment. The parties agreed to the amount to be refunded the overages; the OUA reserved its right to appeal. The trial court then entered the final judgment.

In 2000, the Florida Legislature enacted section 189.420 of the Florida Statutes. It reads:

When an independent or dependent special district levies an assessment on a facility regulated únder chapter 513, the assessment shall not be based on the assertion that the facility is comprised of residential units. Instead, facilities regulated under chapter 513 shall be assessed in the same manner as a hotel, motel, or other similar facility.

§ 189.420, Fla. Stat. (2003). This case necessarily turns on the understanding of section 189.420 and the appropriate label to be given the “Base Facility Charge.”

“The Florida Constitution grants municipalities ‘governmental, corporate and proprietary powers to enable them to ... render municipal services’ and the right to ‘exercise any power for municipal purposes except as otherwise provided by law.’ ” City of Gainesville v. Dep’t of Transp., 778 So.2d 519, 523 (Fla. 1st DCA 2001). Determining whether a charge is a “special assessment” or a “user fee” is not always easy. The line of demarcation is blurry. Nevertheless, guidelines have been established for making that determination.

“[G]enerally, a “fee” is exchanged for a service rendered or a benefit conferred, and some reasonable relationship exists between the amount of-'the fee and the value of the service or benefit, while a “special assessment” is a specific levy designed to recover the costs of improvements that confer local and peculiar benefits upon property with a defined area. “User fees” are those which are charged only to the person actually using the service, and the amount of the charge generally is related to the actual goods or services provided and is a monthly charge rather than a one-time charge. ,

Id. at 526 (quoting 70C Am.Jur.2d Special or Local Assessments § 2 (2000)).

Our supreme court identified factors for determining if a charge is a “user fee” or a “special assessment” in City of Gainesville v. State, 863 So.2d 138, 145 (Fla.2003). They include:

(1) the name given to the charge;
(2) the relationship between the amount of the fee and the value of the service or benefit;
(3) whether the fee is charged only to users of the service or is charged to all residents of a given area;
(4) whether the fee is voluntary — that is, whether a property owner may avoid the fee by refusing the service;
(5) whether the fee is a monthly charge or a one-time charge;
(6) whether the fee is charged to recover the costs of improvements to a defined area or infrastructure or for the routine provision of a service;
(7) whether the fee is for a traditional utility service; and
(8) whether the fee is statutorily authorized as a fee.

Id. (Enumeration added.) These factors must be considered in light of the circumstances. No single factor is controlling. Id.

Application of these factors to the facts of this case lead us to conclude the “Base Facility Charge” is a “user fee.” First, the charge is imposed only on those opting to connect to the OUA utility lines. Second, the property owner may avoid the charge by refusing .the service. Third, the charge is imposed monthly. Fourth, the charge is not imposed to recover costs of improvements, but for a routine provision of service. Fifth, the OUA is authorized under chapter 367, Florida Statutes (2003), to regulate water and wastewater systems, which includes the ability to impose “user fees.” We recognize the charge- is for a traditional utility service and may not be considered voluntary, but those factors alone do not transform the charge into a “special assessment.”

Our determination that the “Base Facility Charge” is a “user fee,” renders section 189.420, Florida Statutes (2003), inapplicable. The court erred, therefore, in mandating compliance with section 189.420. We reverse the partial final summary judgment and the final judgment and remand the case for entry of a final summary judgment in favor of the OUA.

REVERSED and REMANDED.

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


author: GROSS, J.

text:
    S.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3021.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm appellant’s conviction for domestic battery in violation of section 741.28(2), Florida Statutes (2002).

We reject appellant’s contention that the trial judge should have granted her motion for judgment of acquittal because the state failed to prove that she intended to commit domestic battery.

In Pagan v. State, 830 So.2d 792 (Fla.2002), the Florida Supreme Court summarized the standard of review of a denial of a motion for judgment of acquittal:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (citations omitted).

The elements of battery are met when a person: “1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.” § 784.03(l)(a), Fla. Stat. (2002). Intent to commit a battery must be determined by the circumstances surrounding the touching or striking of the victim. See Mohansingh v. State, 824 So.2d 1053, 1054 (Fla. 5th DCA 2002) (holding that there was competent substantial evidence to support a conviction of battery for spitting on an officer when testimony indicated that the defendant was angry and screaming, he admitted to giving the officer a “raspberry,” and spittle was found on the officer’s uniform); C.C. v. State, 576 So.2d 951 (Fla. 3d DCA 1991) (finding that defendant’s actions of cursing and threatening the victim before the battery occurred and the amount of force used was sufficient for the trier of fact to conclude that he possessed the requisite intent for the crime).

In this case, in the light most favorable to the state, the evidence was that appellant was angry and flailing her arms about.- She had just finished fighting with her brother and had slapped her sister before she hit her mother in the mouth. The mother testified that appellant saw her coming near and continued swinging her arms. From the description of the manner in which appellant was swinging her arms, a substantial certainty existed that the mother would be hit as a result of appellant’s actions.

It is this substantial certainty of a touching or striking that satisfies the intent element of battery and distinguishes this case from C.B. v. State, 810 So.2d 1072 (Fla. 4th DCA 2002). In that case there was not a substantial certainty that a lighter, which the defendant threw to the floor, would bounce and hit a teacher.

AFFIRMED.

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


author: FARMER, C.J.

text:
    Katherine SWARTSEL, Appellant, Appellee, v. PUBLIX SUPER MARKETS, INC., Appellee, Appellant.
    Nos. 4D03-1003, 4D03-1524.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.

      Jack Searola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellant.
    Robert T. Kofman and Annette Torres of Stearns, Weaver, Miller, Weissler, Alha-deff & Sitterson, P.A., Miami, for appellee.
   FARMER, C.J.

We have an appeal in a malicious prosecution action from a summary judgment entered against plaintiff on the grounds that she failed to show that the underlying criminal case resulted in a bona fide termination in her favor. Defendant, in turn, appeals the denial of its claim for attorneys fees and costs. We affirm on both appeals and write briefly to explain our reasoning.

The underlying criminal charges against plaintiff were dismissed following her participation in a pretrial intervention program. A pharmacist, she had been charged with possession- of hydrocodone and petit theft. She insisted that her participation in the pretrial program include a declaration that she did not thereby admit guilt of the charges. She successfully completed the program and, as a result, the prosecutor agreed to nol pros the charges without prejudice.

Her malicious prosecution claim required that she plead and prove that the criminal case ended in a “bona fide termination in her favor” — i.e., one indicating her innocence. Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994). The Alamo Renh-A-Car decision also stated:

“when a plaintiff establishes that an underlying criminal case was nol prossed and presents evidence that the nol pros was not the result of a negotiated plea or bargain, the burden then shifts to the defendant to present evidence to the contrary and the issue becomes one for a jury to decide.” [e.s.]

632 So.2d at 1356. Although the highlighted sentence seems to hold that a negotiated dismissal is not a bona fide termination in plaintiffs favor, the court further noted:

“that bargaining or negotiating, in and of itself, does not always negate the bona fide nature of the termination. For instance, as the district court found in Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (1978), if the bargaining constitutes nothing more than a promise to pay what was offered before the charges were brought, and the negotiations reflect the accused’s innocence, then the termination would still be bona fide.
“The question in this case then becomes whether the nol pros was based on a bargained-for promise of payment to Alamo.... However, the record reflects that the facts surrounding the issuance of the nol pros are in dispute.... As stated by the district court, only after considering the.circumstances surrounding the nol pros could the trier of fact determine whether the nol pros Mancusi received was bona fide. Consequently, we find that, on this record, the district court appropriately held that this issue was a question for the jury as the finder of fact.”

632 So.2d at 1356.

In this case, plaintiff argues that her insistence on innocence throughout the pretrial intervention program places her within the exception allowed in Alamo Rent-A-Car. We disagree. There is nothing about the pretrial intervention agreement suggesting that the nol pros would indicate innocence. To the contrary, it is equally capable of suggesting her guilt, at least for purposes of deciding in her later malicious prosecution action whether the termination of. the criminal case was based on innocence. The later nol pros is capable of being read both for and against guilt. Indeed its primary purpose is to allow first offenders who, by definition, are subject to being found guilty of the crime charged, to avoid a conviction on their record by successfully completing the program and having a nol pros entered. As the statute plainly indicates, the resulting dismissal after successful completion of the pretrial intervention program is without prejudice, so that if the defendant later commits another offense the prosecutor is authorized to resurrect the charge dismissed. A charge thus hanging in suspense hardly seems to us a bona fide termination indicating innocence.

Unlike the kind of nol pros discussed in Alamo Rent-A-Car and Shidlowsky, where the prosecutor may have dismissed because the evidence was lacking, and any agreement to pay costs was really unrelated to guilt, here the nol pros resulted only because of a program designed (as the statute makes unmistakably clear) for “first offenders.” To be a “first offender” one must arguably be an offender. Plaintiffs insistence on a provision proclaiming her innocence in the pretrial intervention agreement is not the same thing as the prosecutor concluding that the evidence is lacking and that the charges are not provable. We therefore find no error in the trial court’s summary judgment in favor of the defendant.

Turning to the defendant’s appeal of the motion for attorneys fees, we begin by rejecting defendant’s contention that fees may properly be awarded under section 57.105. We agree with the trial judge that plaintiff made a good faith argument to apply the exception, or otherwise extend it, of Alamo Rent-A-Car. We thus turn to the argument under the offer of judgment.

Rule 1.442(c)(2)(C)-(D) requires that proposals for settlement state with particularity any relevant conditions and all nonmonetary terms. Zalis v. M.E.J. Rich Corp., 797 So.2d 1289, 1290 (Fla. 4th DCA 2001). As one court has explained:

“The rule intends for a proposal for judgment to be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.”

Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002); see also Jamieson v. Kurland, 819 So.2d 267, 268-69 (Fla. 2d DCA 2002); Connell v. Floyd, 866 So.2d 90, 92 (Fla. 1st DCA 2004). Further, because the offer of judgment statute and its companion rule of civil procedure are in derogation of the common law rule that each party shall pay its own fees, the language of an offer must be construed in favor of the offeree when it does not make clear precisely what is being proposed. See MGR Equip. Corp. v. Wilson Ice Enters., Inc., 731 So.2d 1262, 1263-64 n. 2 (Fla.1999) (noting that rule 1.442 “mandates greater detail in settlement proposals, which will hopefully enable parties to focus with greater specificity in their negotiations and thereby facilitate more settlements and less litigation”).

Rule 1.442(c)(2)(C)-(D) requires that a qualifying offer “shall ... state with particularity any relevant conditions” and shall also “state with particularity all non-monetary terms of the proposal.” In this case, defendant’s offer of settlement included the following conditions or nonmon-etary terms:

“Publix’s Proposal for Settlement is conditioned upon Plaintiffs acceptance of same pursuant to Rule 1.442, a stipulation for an order dismissing this action with prejudice, and Plaintiffs execution of a confidential settlement agreement and general release.” [e.s.]

No other details of the proposed “confidential settlement agreement” and “general release” were stated in the offer. No copy of the actual “confidential settlement agreement” and “general release” being proposed were attached as separate documents to the offer. Thus, plaintiff was left to guess at what these terms and conditions might require of her.

The unstated conditions of any “settlement agreement” or other terms not involving money are usually critical to an acceptance. For example, with regard to the confidential settlement agreement being proposed, it would be crucial to know what is being made confidential, who is covered by the confidentiality, whether there is any period to the confidentiality, and what the remedies are in the event of a breach. As for the proposed general release, there are no “standard” general releases; all are unique. The fact that a proposed release is described as “general” is virtually meaningless. Again, it would be essential to know what is being released, who is being released, and any conditions or terms of the release.

The particularity required by rule 1.442(c)(2)(C)-(D) is indispensable and not a mere formality.. The term particularity as used in rule 1.442 means that the offeror must supply in haec verba the “specific details” of any condition or non-monetary term. See American HeRitage DiCtionary 1320 (3d. ed.) (defining particular and particularity to mean “of, relating to, or providing details,” “exactitude of detail,” “attention to or concern with detail,” “an individual characteristic”). We therefore read the rule to require that an offeror state all the terms of any “confidential settlement agreement” and any “general release” or, instead, attach a copy of the actual documents themselves to the offer. Defendant’s proposal failed in this essential (and, we might say, particular) detail and was therefore insufficient to authorize attorneys fees on account of its rejection by plaintiff.

Finally, we think plaintiff properly concedes error in the refusal to tax costs in the trial court against plaintiff. Defendant was the prevailing party on the merits and is- therefore entitled to its costs. ' On remand, the trial court shall do so. In all other respects, however, we affirm.

KLEIN, J., and BERGER, WILLIAM J., Associate Judge, concur.

      . (2) Any first offender ... is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender. However, the defendant may not be released to the pretrial intervention program unless ... she has voluntarily agreed to such program and has knowingly and intelligently waived ... her right to a speedy trial for the period of .. her diversion.

      (5) At the end of the intervention period, the administrator shall recommend ... [tjhat dismissal of charges without prejudice shall be entered in instances in which prosecution is not deemed necessary.

        The state attorney shall make the final determination as to whether -the prosecution shall continue, [e.s.]
      § 948.08(2)-(5), Fla. Stat. (2003).

      . See Fla. R. Civ. P. 1.442(c)(2)(C)-(D) ("A proposal shall ... state with particularity any relevant conditions ... the total amount of the proposal and state with particularity all nonmonetary terms.


text:
    Andrew F. GONGAWARE, Appellant, v. STATE OF FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Affirmed Corporation, Appellees.
    No. 4D03-862.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.

      Andrew F. Gongaware, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for appellee State of Florida Unemployment Appeals Commission.
   GROSS, J.

Andrew F. Gongaware challenges a final order rendered by the Unemployment Appeals Commission which affirmed a referee’s determination that he was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with work.

We affirm, because competent substantial evidence supported the referee’s determination that Gongaware’s actions amounted to misconduct.

On appeal to this court, the Commission’s order is entitled to a presumption of correctness and the burden is on the appellant to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Rosier v. Unemployment Appeals Comm’n, 873 So.2d 614, 616 (Fla.2d 2004). Also, as this court stated in Maynard v. Florida Unemployment Appeals Commission, 609 So.2d 143, 145 (Fla. 4th DCA 1992):

While an agency may reject conclusions of law without limitation, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record.

Id. at 145 (citations omitted).

Generally, misconduct sufficient for the forfeiture of unemployment benefits involves repeated violations of the employer’s policies after several warnings. See Jennings v. Unemployment Appeals Comm’n, 689 So.2d 1193, 1194 (Fla. 4th DCA 1997) (finding disqualification of benefits warranted where employee acted willfully and had been alerted to the significance of the employer’s concerns); Hines v. Dep’t of Labor & Employment Sec., 455 So.2d 1104, 1107 (Fla. 3d DCA 1984) (finding misconduct where employee had been previously warned and subsequently disregarded those warnings).

“An employee’s outright refusal to perform an employer’s valid and reasonable work order amounts to misconduct.” Torres v. Unemployment Appeals Comm’n, 862 So.2d 26, 27 (Fla. 2d DCA 2003); see also Finish Line Feed, Inc. v. Acosta, 748 So.2d 1089, 1090 (Fla. 4th DCA 2000) (finding that deliberate or intentional disregard of an employer’s policy amounts to misconduct); Nat’l Ins. Servs., Inc. v. Fla. Unemployment Appeals Comm’n, 495 So.2d 244, 246 (Fla. 2d DCA 1986) (holding that denial of unemployment benefits was warranted where employees refused to participate in clean-up duties; employer’s policy was found to be reasonable and applied to all employees equally).

In this case, Gongaware signed an employment agreement which provided that he would relinquish 2%'"of the tips charged by customers on their credit cards to his employer, Topanga Pizza Grill. He complied with Topanga’s policy for approximately four years. The first time Gonga-ware refused to remit 2% of his charge tips, his employer issued him a written warning informing him that a second warning could result in suspension or termination. The next day appellant again refused. Topanga gave him a second warning and a one-week suspension. The second warning also indicated that a third warning would result in termination. When appellant returned to work after his suspension, he still refused to comply with the policy regarding tips. In response, Topanga issued a third warning and terminated appellant’s employment.

Under these facts, competent substantial evidence supported the referee’s determination that appellant was discharged for misconduct connected with work, such that he was not entitled to receive unemployment benefits.

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


text:
    William T. JOYNER, M.D., William T. Joyner, M.D., P.A., a Florida professional Corporation, and Joyner & Lichtinger, M.D., P.A., a Florida Professional Corporation, Appellants, v. Maria CASCO and Luis Casco, individually and as parents and legal guardians of Baby Jackeline Casco, a minor, Appellees.
    No. 4D03-2689.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Rehearing Denied Oct. 11, 2004.
    Nancy W. Gregoire and Elizabeth E. Daugherty of Bunnell, Woulfe, Kirschb-aum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellants.
    Diane H. Tutt of Diane H. Tutt, P.A., and Bradley Winston of Winston & Clark, P.A., Plantation, for appellee.
   PER CURIAM.

Appellant, Dr. William Joyner, and his corporation were defaulted for failure to answer a complaint for medical malpractice. They claim that the defaults were the result of excusable neglect. The trial court took testimony as well as read the depositions submitted for review. The main issue to resolve was whether Joyner was advised by plaintiffs attorney that he did not have to answer the complaint. Reviewing the conflicting evidence presented, the court denied the motion to vacate the default. The trial court did not abuse its discretion in denying the motion to vacate when disputed issues of fact were present. See Trupin v. Wallquist, 605 So.2d 1295, 1296 (Fla. 4th DCA 1992). We affirm as to the remaining issues raised.

WARNER, KLEIN and TAYLOR, JJ„ concur.


author: WARNER, J.

text:
    John LEINHART and Bradley University, Appellants, v. Jayme JURKOVICH, Appellee.
    No. 4D03-1572.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Rehearing Denied Oct. 11, 2004.

      Michael A. Mullen, Joel V. Lumer and David A. Neblett of Gaebe, Mullen, Anto-nelli, Esco & DiMatteo, Coral Gables, for appellants.
    Kelly B. Gelb of Krupnick, Campbell, Malone, Buser, Slama, Hancock, McNelis, Liberman & McKee, P.A., Fort Lauder-dale, for appellee.
   WARNER, J.

Plaintiff, Jayme Jurkovich, a college student at Bradley University in Illinois, sued the University and the driver of its van, for injuries sustained in an automobile accident that occurred while plaintiff was in Fort Lauderdale with the University swim team. She recovered a substantial judgment, and the University appeals. We address two claims. First, the University contends that the court erred in refusing to give a permanency instruction pursuant to Florida’s no-fault law. As to this' issue, we hold that the court correctly denied the request because, under choice of laws principles, the law of Illinois, which does not have a permanency threshold to recover non-economic damages, would apply. The University also complains that the trial court abused its discretion in refusing to allow an independent medical examination of plaintiff. Under the circumstances- pre- ’ sented in this case, we conclude that the trial court did not abuse its discretion. We therefore affirm.

I. Choice of Law

Plaintiff alleged she was injured in a motor vehicle accident while riding as a passenger in a van owned by Bradley University. Plaintiff was on the ' University swim team, which had traveled from Illinois to Florida. The van was hit by two cars. The University was insured through a policy issued in Illinois. Plaintiff sued the University and its driver in Broward County Circuit Court for her injuries.’ As an affirmative defense, the University alleged that plaintiffs injuries were subject to the Florida no-fault law. At trial, it requested that the court instruct the jury on the permanency of plaintiffs injuries in compliance with the no-fault law. The trial court rejected- the instruction, finding that Illinois law, not Florida law, applied. Under Illinois law and the Illinois policy, permanency was not a threshold issue for the recovery of non-economic damages.

The University challenges this finding, citing to Hoffman v. Ouellette, 798 So.2d 42 (Fla. 4th DCA 2001), as standing for the proposition that where non-residents sue each other over an automobile accident occurring in Florida, Florida law applies. However, Hoffman analyzed the choice of law as it applied to the facts of that case, where both parties involved were winter residents of Florida and neighbors, and the accident appears to have happened at their place of residence. . The facts of this case are different.

Florida has adopted the significant relationships test for determining the choice of law applicable in personal injury claims. Bishop v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980). That test requires the court to analyze various factors in determining which forum has the most significant relationship with the parties. Those factors are set forth in Restatement (Second) of Conflict of Laws § 145 (1971), which provides:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

The next section specifies,

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

Restatement (Second) of Conflict of Laws § 146 (1971). The principles stated in § 6 of the Restatement include:

(a)the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2) (1971). In this case, both parties reside in Illinois where their relationship is centered. Plaintiff is a college student at defendant University and was in the University van when injured. While the accident occurred in Florida, that was only fortuitous. An accident could have occurred in any state between here and Illinois. Thus, Illinois has the most significant relationship to the occurrence and the parties.

None of the other principles in the Restatement require the application of Florida law. While Florida law provides for no-fault protection to injured persons, personal injury protection coverage is not required of out-of-state motor vehicles. See § 627.733(2), Fla. Stat. (1994). Therefore, Florida has no policy interest in imposing the tort exemptions permitted when an out-of-state motor vehicle policy does not provide such coverage. The University has not argued that any of the other principles or factors compel the choice of Florida law. The trial court correctly determined that Florida law did not apply and the University was not entitled to the permanency jury instruction.

II. Independent Medical Examination

In preparation for the original trial set for May 22, 2000, plaintiff traveled to Fort Lauderdale for a deposition. While there, she experienced a flare-up of back pain, and she saw Dr. Martin Silverstein. In her unilateral pretrial statement, she listed Dr. Silverstein as a witness. His opinions were not disclosed, and at the deposition plaintiff testified that she had never seen Dr. Silverstein.

Mediation was held on May 9, 2000. At the mediation, plaintiff produced an April 13, 2000, letter from Dr. Silverstein to her counsel for the first time. In the letter, Dr. Silverstein indicated that he had performed an orthopedic consultation and gave a second evaluation of plaintiff. The letter contained all of the records reviewed, examinations performed, opinions rendered, and recommendations for further treatment.

After receiving Dr. Silverstein’s report, the University requested plaintiff appear at an independent medical examination and filed a motion to compel. Plaintiff objected to the examination as untimely because the trial was less than two weeks away. The court held a hearing and denied the motion to compel the examination. The court also struck Dr. Silverstein as a witness.

In the following two years, the case was reset for trial on eight different trial dockets. During that time the University made at least two requests for an independent medical examination of plaintiff. However, these requests were made within days of the dates the trial was scheduled to begin and were denied as untimely.

After the case was set for trial in November 2002, plaintiff filed a motion requesting that Dr. Silverstein be allowed to testify at trial. The court entered an order granting the motion and vacating that part of the May 2000 order that had prevented plaintiff from calling the doctor. Approximately one month prior to trial, the University again noticed plaintiff for an independent medical examination, and she filed a motion for protective order. The court entered an ex parte order granting her motion. The University requested a hearing, which the court denied. The University was able to take Dr. Silver-stein’s deposition on October 30, 2002, and the trial commenced November 12, 2002.

At trial, plaintiff presented the testimony of Dr. Francis Lagatutta, her treating orthopedic physician in Illinois, who testified as to her treatment and opined that plaintiff had suffered a disc herniation of the loy/er back as a result of the accident. He also testified as to plaintiffs need for future treatment and the permanency of her condition. Dr. Silverstein testified as to his examination, of plaintiff in 2000. From his examination and review of her medical reports, he determined that plaintiff had a herniated disc in the lumbar portion of the back that was caused by the accident. He also observed, atrophy of plaintiffs lower extremities, which he opined would result in weakness, something not diagnosed by other physicians. Dr. Silverstein determined that plaintiffs injury is pérmanent, will" require future treatment, and will cause plaintiff pain for the remainder of her life.

Prior to the accident, plaintiff had received treatment for lower back pain. Plaintiffs medical records, admitted at trial, suggested that she had prior back problems at one time, causing her pain for several weeks. One line of the University’s defense was that plaintiffs present complaints were the result of a pre-exist-ing condition, not the accident.

The University presented the testimony of Dr. Robert Kagan,' who had reviewed the x-rays and MRI films of plaintiff but had never physically examined her. Plaintiff emphasized this lack of a physical examination by Dr. Kagan during cross-examination. Based on the x-ray and MRI films, Dr. Kagan agreed that plaintiff had a herniated disc, but he determined that the accident was not the cause of her disc problem.

The jury returned a verdict in favor of plaintiff for both past and future medical expenses, future lost earning ability, and past and future pain and suffering. The total amount of the judgment was $348,000.

The University maintains that the court abused its discretion in refusing to allow an independent medical examination of plaintiff once it permitted her to use Dr. Silverstein as a second expert examining witness. The issue of whether to permit a defendant’s requested examination under Florida Rule of Civil Procedure 1.360 is a matter of discretion. State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111, 111 (Fla. 2d DCA 1994). We cannot say that the trial court abused its discretion in refusing to permit these late noticed requests for physical examination.

Florida Rule of Civil Procedure 1.360(a)(1) provides that “[a] party may request any other party to submit to ... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” When a plaintiff in a negligence action asserts that she has sustained a mental or physical injury, she places her condition in controversy, and good cause for the examination is shown. See Broward County Sch. Bd. v. Cruz, 761 So.2d 388, 393 (Fla. 4th DCA 2000), abrogated on other grounds by Grenitz v. Tomlian, 858 So.2d 999 (Fla.2003). The issues for determination at trial were whether plaintiffs injuries were caused by the accident or were pre-exist-ing, and what was her future prognosis. By placing her physical condition in controversy, good cause was shown for an examination.

When a notice of examination is served without leave of court, the opposing party shall respond within thirty days of the request. Fla. R. Civ. P. 1.360(a)(1)(A). The court may require a shorter time for response. Id. Here, the University filed notice on October 7, 2002, for a physical examination scheduled October 17, 2002. Leave of court to shorten the response time period was not obtained. Plaintiff filed a motion for protective order on the ground that the scheduled examination was untimely and would entail her making an additional trip to Florida when trial was already set for November 12, 2002. She noted that the case had been pending for four years, and had the University needed a physical examination, one could have been secured much earlier. The court apparently agreed and granted her motion.

The University complains that an abuse of discretion occurred in allowing Dr. Sil-verstein to testify without also allowing it to have testimony from an expert who had conducted an independent medical examination of plaintiff. Because it did not have its own orthopedic physician examine plaintiff and testify regarding the results, it likens this case to the striking of an expert when the expert is the party’s only, or most important, witness on a critical issue. See Dos Santos v. Carlson, 806 So.2d 539 (Fla. 3d DCA 2002) (reversing exclusion of defendant’s most important witness who refuted the causal connection between the accident and the injury); Keller Indus. v. Volk, 657 So.2d 1200 (Fla. 4th DCA 1995). We cannot agree with this characterization.

This case had been pending for four years at the time of trial. At its first trial setting in 2000, the court excluded Dr. Silverstein whose opinions had not been timely furnished to the University. The University claimed that it needed an independent medical examination in order to properly defend against the opinions of Dr. Silverstein. Before the University knew of Dr. Silverstein’s examination of plaintiff, it was content to rely on the testimony of Dr. Kagan without the necessity of an independent examination. Thus, plaintiff would have called Dr. Lagatutta, an orthopedic physician, and the University woüld have called Dr. Kagan, a radiologist. After the case was not reached on the first trial docket, plaintiff included Dr. Silver-stein’s name in her list of witnesses for each ensuing trial period. The University did not request an independent examination for two years, except to try and schedule one a week before one trial setting, again untimely. However, in the meantime, it had received Dr. Silverstein’s report, thus curing the timeliness problem for the use of his testimony by plaintiff.

Dr. Silverstein’s testimony at trial was cumulative of the testimony of Dr. Laga-tutta. Both testified that plaintiff sustained a herniated disc as a result of the accident, and both testified that she would need future medical treatment. If the University needed an orthopedic expert to examine plaintiff and testify as to the results of the examination, it would havé needed it to defend against Dr. Lagatutta’s testimony as well. Yet it did not ask for an examination until Dr. Silverstein was allowed as a witness. That Dr. Kagan could be impeached on cross-examination because he had not examined plaintiff would have been true regardless of the use of Dr. Silverstein’s testimony. Thus, the jury would have been faced with a choice between Dr. Lagatutta’s testimony, as an orthopedic physician who treated plaintiff and determined from his physical examination that the injury was caused by the accident, and Dr. Kagan’s testimony as a radiologist who simply read plaintiffs MRI films.

The University’s line of defense was that the accident did not cause the disc herniation and subsequent damages. It was still able to present that line of defense. While it had good cause to request an independent medical examination, it did not do so in a timely fashion. Although this issue is close, we do not conclude that the trial court abused its discretion in granting the protective order and thus disallowing the physical examination. We also harken back to section 59.041, Florida Statutes (1994), which states that “[n]o judgment shall be set aside or reversed ... unless in the opinion, of the court ..., after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.” We cannot find that a miscarriage of justice has occurred in this case.

As to the University’s claim that the court erred in permitting Dr. Silverstein to testify as to causation, we conclude that no violation of Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), occurred.

Affirmed.

STEVENSON and GROSS, JJ„ concur.


text:
    Virginia T. SCOTT, Appellant, v. James TISCHLER and Shelley Tischler, his wife, Appellees.
    No. 4D03-2010.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.

      Virginia T. Scott, Jupiter, pro se.
    No brief filed for appellee.
   GROSS, J.

Virginia Scott appeals the circuit court’s order denying her motion to vacate the order dismissing her case. We reverse, because the dismissal order was based on a settlement agreement that had not been signed by all the parties to the agreement.

The case was settled in mediation. Among the terms listed in the handwritten summary of the settlement agreement was that mutual releases were to be executed “by all parties including Robert Watkins and Ann Frances Watkins” and that settlement was “contingent upon execution of this agreement by [the Watkins] within 5 days of this agreement.”

The Watkins never signed the settlement agreement. Nonetheless, the trial court dismissed the case on January 15, 2003, retaining jurisdiction to enforce the settlement and giving the parties twenty-five days to “prepare and file a detailed settlement agreement should they elect to do so.”

On January 21, 2003, Scott moved to vacate the dismissal, arguing that it had been prematurely entered because the Watkins neither agreed to the settlement nor signed the agreement. The Watkins also moved to vacate the dismissal of their counterclaim. On April 22, 2003, the trial court denied Scott’s motion to vacate; however, the court granted the Watkins’ motion and allowed them to proceed on their counterclaim.

The trial court abused its discretion by denying the motion to vacate the order of dismissal. On this record, there is no dispute that essential terms of the settlement were not met — two parties to the settlement refused to sign off on the mediated settlement agreement. The signatures were required by the agreement itself, as well as by the Florida Rules of Civil Procedure. In City of Delray Beach v. Reiser, 699 So.2d 855 (Fla. 4th DCA 1997), this court held that the trial court erred in enforcing a settlement agreement that had not been signed by all the parties to the agreement. We wrote that the lack of the parties’ signatures on the agreement was not a mere “technical ‘detail,’ ” but a requirement of Florida Rule of Civil Procedure 1.730. Id. at 856; see also Gordon v. Royal Caribbean Cruises, Ltd., 641 So.2d 515, 517 (Fla. 3d DCA 1994) (holding that party’s failure to sign a settlement agreement rendered it “wholly insufficient” and not in compliance with rule 1.730(b)).

Reversed and remanded.

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


text:
    Rodofo Hernandez TITO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3836.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

FARMER, C.J., KLEIN and SHAHOOD, JJ., concur.


text:
    Robert DAVELLA, Petitioner, v. Vera Ellen PORTELLO, Respondent.
    No. 4D04-1113.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Robert Davella, pro se.
    No appearance for respondent.
   PER CURIAM.

Petitioner seeks a writ of mandamus to compel the trial court to enter a ruling on his pending motions in a post-judgment action to enforce a final judgment of dissolution of marriage. We grant the petition and direct the trial court to set a reasonable time, not to exceed sixty days, in which to rule on the pending motions.

POLEN, KLEIN and HAZOURI, JJ., concur.


text:
    E.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-168.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, 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.
   PER CURIAM.

In this Anders appeal, we affirm the' finding of guilt, the withholding of adjudication of delinquency, and the placement of the child on probation, but remand for the trial court to correct the delinquency disposition order to reflect that the offense, possession of a weapon on school property, is a third degree felony, not a first degree misdemeanor. See § 790.115(2)(b), Fla, Stat. (2003).

KLEIN, TAYLOR and MAY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Antonio CHANG, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4962.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

POLEN, KLEIN and SHAHOOD, JJ., concur.


text:
    Mohamed Ali GHANEM, Petitioner, v. James v. CROSBY, Secretary, Florida Department of Corrections, Respondent.
    No. 4D04-3027.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.

      Michael D. Gelety, Ft. Lauderdale, for petitioner.
    No response required for respondent.
   PER CURIAM.

The petitioner contends this court should grant relief and permit a trial court the discretion to impose bond pending disposition of a rule 3.850 motion for postcon-viction relief. We deny relief and emphatically state no such discretion is available to trial courts in this regard.

Neither the rules of criminal or appellate procedure nor the Florida Statutes permit a trial court to exercise any discretion in admitting to bail a person who has had a conviction and sentence affirmed on appeal.

STONE, WARNER and STEVENSON, JJ., concur.


author: RAMIREZ, J.

text:
    Margarita TOCA, Appellant, v. Sonia OLIVARES, D.D.S., Appellee.
    No. 3D04-350.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.

      Francis R. Deluca, Fort Lauderdale, for appellant..
    Weinberg, 'Wheeler, Hudgins, Gunn & Dial, and Todd R. Ehrenreich,1 Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Margarita Toca appeals the denial of her petition to enforce arbitration. We affirm.

On or about April 4, 2003, Toca initiated pre-suit procedure of her medical malpractice claim against appellee, Sonia Olivares, D.D.S., pursuant to section 766.106, Florida Statutes (2002). On June 24, 2003, Dr. Olivares sent a written rejection of the claim by facsimile. That same day, Toca forwarded an offer to submit her claims to voluntary binding arbitration pursuant to the explicit terms and conditions of section 766.207, Florida Statutes (2003). Dr. 01iT vares’ counsel responded to this offer by letter dated July 1, 2003, stating that “we are presently discussing your offer,” and requesting the details of the arbitration. Toca responded by forwarding the relevant statutory provisions concerning voluntary arbitration pursuant to section 766.207. Toca’s attorney stated in that letter, “[s]o we are clear, this arbitration procedure involves damages only.” On July 24, 2003, Dr. Olivares sent an acceptance of the offer to arbitrate.

Section 766.207, Florida Statutes (2003), provides as follows:

(2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Such election may be initiated by either party by serving ■ a request for voluntary binding arbitration of damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon the defendant. The eviden-tiary standards for voluntary binding arbitration of medical negligence claims shall be as provided in ss. 120.569(2)(g) and 120.57(l)(c).
(3) Upon receipt of a party’s request for such arbitration, the opposing party may accept the offer of voluntary binding arbitration within 30 days. However, in no event shall the defendant be required to respond to the request for arbitration sooner than 90 days after service of the notice of intent to initiate litigation under s. 766.106. Such acceptance within the time period provided by this subsection shall be a binding commitment to comply with the decision of the arbitration panel. The liability of any insurer shall be subject to any applicable insurance policy limits.

It is clear that the statutory scheme of section 766.207(2) envisions a case where liability is not contested and the parties wish to arbitrate the damages. It is equally clear that, by denying the claim, Dr. Olivares was not admitting liability. Toca has cited to us no authority to support the argument that, by agreeing to arbitrate under section 766.207, Dr. Oli-vares was admitting liability, particularly in this context where she had clearly and unequivocally denied liability. Specifically, the trial court properly held that no valid written agreement to arbitrate existed between the parties, due to an ambiguity in Toca’s offer to arbitrate. Toca’s offer to arbitrate under section 766.207 was ambiguous because it was preceded by Dr. Oli-vares’ written rejection that terminated the presuit period, making the section inapplicable. A party may not be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. To determine what the parties agreed to arbitrate, we must look to the intent of the parties. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Consequently, the trial court was correct in its determination that Dr. Olivares never intended to admit liability under the facts of this case.

Affirmed.


text:
    Collie SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-400.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, and Collie Singleton, Raiford, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Maddox v. State, 760 So.2d 89 (Fla.2000).

SHAHOOD, TAYLOR and MAY, JJ., concur.


text:
    Owen Dwight MEDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3155.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 2004.
    Owen Dwight Medley, Chattahoochee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We treat this as an appeal from an order denying a motion to withdraw a plea pursuant to Florida Rule of Criminal Procedure 3.170(7) and affirm.

WARNER, KLEIN and HAZOURI, JJ., concur.