text:
    Anthony D. BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4332.
    District Court of Appeal of Florida, First District.
    Sept. 1, 2004.
    Pro Se, for Appellant.
    Charlie Crist, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED

ERVIN, ALLEN and HAWKES, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roland HIERING, Appellant, v. Dale ROSS, Chief Judge of the 17th Judicial Circuit, and Kenneth C. Jenne, II, Sheriff of Broward County, Appellees.
    No. 4D03-3266.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Ronald Hiering, Aventura, pro se.
    Charles J. Crist, Jr., Attorney General, and George Waas, Senior Assistant Attorney General, Tallahassee, for appellee Chief Judge Dale Ross.
   PER CURIAM.

Affirmed. The court correctly dismissed the complaint for declaratory judgment which challenged. an administrative order entered by the chief judge. The proper method for challenging such an order is by petition for writ of certiorari to the appellate court. See 1-888-Traffic Schools v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So.2d 413 (Fla.1999).

WARNER, KLEIN and TAYLOR, JJ., concur.


text:
    Antonio MOSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1883.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Antonio Moss, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse in part the trial court’s order denying the petition for writ of habeas corpus filed by Antonio Moss. Moss alleged a legally sufficient claim requesting permission to file a belated motion for postconviction relief. On remand, the trial court shall conduct an evidentiary hearing to determine whether Moss retained counsel to timely file a rule 3.850 motion, and whether counsel failed to timely file such a motion. See Medrano v. State, 748 So.2d 986 (Fla.1999); Steele v. Kehoe, 747 So.2d 931 (Fla.1999); Krasnick, v. State, 780 So.2d 1045 (Fla. 4th DCA 2001).

KLEIN, STEVENSON and GROSS, JJ., concur.


text:
    Kelsey SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5038.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for the trial court to strike the probationary term from the appellant’s written sentence. See Ashley v. State, 850 So.2d 1265, 1267-68 (Fla.2003); Greene v. State, 853 So.2d 1114 (Fla. 1st DCA 2003).

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    David S. KAHN, Appellant, v. STATE of Florida, OFFICE OF INSURANCE REGULATION, Appellee.
    No. 1D03-5062.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    D. Stephen Kahn, Tallahassee, for Appellant.
    S. Marc Herskovitz, Division of Legal Services, Office of Insurance Regulation, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, David S. Kahn, appeals an order of the Office of Insurance Regulation (“OIR”) dismissing his petition for declaratory statement because OIR does not have substantive jurisdiction and the petition seeks approval or disapproval of conduct that already occurred. Because the appellant’s petition essentially challenges the correctness of OIR’s approved rate increase to his single-life, small group HMO plan, we agree with OIR that the petition for declaratory statement should be dismissed. See B.J.L. v. Department of Health and Rehabilitative Services, 558 So.2d 1078 (Fla. 1st DCA 1990)(ruling that a “petition for declaratory statement under Section 120.565 is not the appropriate means to challenge agency decisions”). Therefore, we affirm, without prejudice to the appellant’s right to file a petition pursuant to sections 120.569 and/or 120.57, Florida Statutes.

AFFIRMED.

DAVIS, PADOVANO and POLSTON, JJ., concur.

      . We do not comment on the legality of such a petition or any of the related issues.


text:
    Arnold CASTRO, Sr., Personal Representative of the Estate of Mildred L. Castro, Appellant, v. EAST PASS ENTERPRISES, INC., Appellee.
    No. 1D03-3562.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.

      Robert R. McDaniel, Pensacola, for Appellant.
    H. Bart Fleet, Shalimar, for Appellee.
   PER CURIAM.

Appellant seeks review of an order deeming Appellee’s claim against an estate timely. We agree with Appellant that the trial court erred in granting an extension to file the claim, and reverse.

Claims against estates must be filed within a certain time frame unless an extension is granted; extensions may be granted “only upon grounds of fraud, es-toppel, or insufficient notice of the claims period.” § 733.702(1) & (3), Fla. Stat. (2000). Appellee’s claim would have been untimely but for an extension of time. The trial court granted the extension on the grounds of waiver and estoppel. Waiver is not a permissible ground for extension of time under section 733.702(3). Although estoppel is a permissible ground, estoppel was not demonstrated in the instant case.

The finding of equitable estoppel stemmed from the fact that the parties were already involved in civil litigation over the subject of the claim against the estate. Appellee had brought an independent civil action against the decedent (coincidentally filed on the date of her death), the style of which was subsequently amended to reflect Appellant as defendant. Appellant participated in the independent action by filing an answer and counterclaims, but neglected to raise Appellee’s failure to file a claim as an affirmative defense. Appellee argued that Appellant’s participation had misled it into believing the independent action was all that was necessary to secure its claims against the estate. However, Appellee failed to demonstrate two elements of estoppel.

The basic elements of estoppel include a false representation or concealment of material facts. Rinker Materials Corp. v. Palmer First Nat’l Bank, 361 So.2d 156,157 (Fla.1978) (citation omitted). In the probate context, estoppel also requires a showing of affirmative deception. American & Foreign Ins. Co. v. Dimson, 645 So.2d 45, 48 (Fla. 4th DCA 1994) (citing Rinker, 361 So.2d at 159). These and other elements of estoppel must be proven by clear and convincing evidence. See, e.g., Watson Clinic, LLP v. Venosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002). They were not so proven here.

The “material fact” allegedly concealed was the legal requirement to file a statement of claim in the probate division. This requirement is found in the probate code and case law and, as such, was not entirely in Appellant’s control. Because both parties had the same means of ascertaining the truth as to whether a claim must be filed in probate court, there can be no estoppel. See Lennar Homes, Inc. v. Gabb Constr. Servs., 654 So.2d 649, 652 (Fla. 3d DCA 1995). This is true even though the alleged estoppel was based on omission. See Pelican Is. Prop. Owners Ass’n., Inc. v. Murphy, 554 So.2d 1179, 1181 (Fla. 2d DCA 1989). No party can claim ignorance of the law. See, e.g., Reason v. Motorola, Inc., 432 So.2d 644, 645 (Fla. 1st DCA 1983).

Neither is there any record evidence of affirmative deception on Appellant’s part. There is no evidence of intent to mislead Appellee into believing it did not need to file a statement of claim in probate court. Appellant’s participation in the independent action misrepresented nothing about the viability or propriety of that independent action. A judgment in that action would not guarantee recovery because there can be no execution against an estate unless approved by the probate court in the estate administration proceeding. See § 733.706, Fla. Stat. (2000); May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, 1154 (Fla.2000). Even so, the lack of enforceability does not render such a judgment legally improper.

For the above reasons, we REVERSE the trial court’s order granting the extension of time and REMAND to the probate court for further proceedings consistent with this opinion.

WOLF, C.J.; BROWNING and HAWKES, JJ., CONCUR.


text:
    Lorenzo HEARNS and Treneace Hearns, Appellants, v. THE SCHOOL BOARD OF BAY COUNTY, FLORIDA, Appellee.
    No. 1D04-3208.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Reginald Luster, Luster & Davis, P.A., Jacksonville, for Appellants.
    Ross McCloy, Harrison, Sale, McCloy & Thompson, Panama City, for Appellee.
   PER CURIAM.

The appellant brought this appeal seeking review of an order granting a motion for summary judgment. However, this order did not enter judgment on the motion and is not an appealable final order. McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). Therefore, this appeal is premature. Furthermore, because no final order has been rendered subsequent to the order on appeal, the Court lacks jurisdiction to review the instant order at this time. See Fla. R.App. P. 9.110(Z). See generally Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995).

DISMISSED.

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    T.F., n/k/a T.G., mother of et al., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D03-5439.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2004.
    Barry W. McCleary, Pensacola, for Appellant.
    Katie George, District Legal Counsel and Richard D. Cserep, Assistant District Legal Counsel, Department of Children and Family Services, Pensacola, for Appel-lee.
   PER CURIAM.

T.F., n/k/a T.G., the mother, appeals from the trial court’s order terminating the protective services of the Department of Children and Families and the placing her four children in long-term relative care with the paternal grandparents. Because the order is not supported by competent substantial evidence, we reverse.

Where, as here, a parent seeks reunification with a child, the child must be returned to his or her parent if the parent has substantially complied with the case plan and “if the court is satisfied that reunification will not be detrimental to the child’s, safety, well-being, and physical, mental, and emotional health.” B.D.E. v. Dep’t of Children & Family Servs., 829 So.2d 359, 360 (Fla. 1st DCA 2002) (quoting section 39.701(8)(b), Florida Statutes); see also In the Interest of H.H., 865 So.2d 634, 635 (Fla. 2d DCA 2004). An order that determines that.these requirements have not been met and places a child in long-term relative care, and thus determines permanency, will not be reversed unless it is not supported by competent substantial evidence. See B.D.E., 829 So.2d at 360; In the Interest of H.H., 865 So.2d at 635.

At the relevant hearings, the mother presented unrebutted evidence that showed that the mother had substantially complied with the case plan and that reunification with the mother would not be detrimental to the children. Thus, reunification is required. See 39.701(8)(b), Fla. Stat. (2003). Rather than basing its determinations upon this evidence, it appears that the trial court’s decision to place the children in long-term relative care was based upon unsworn assertions, hearsay, and the court’s personal knowledge concerning the mother’s new husband. Thus, there was a total lack of competent substantial evidence to support the trial court’s order. See A.M.T. v. State, No. 03-2830, 883 So.2d 302, 2004 WL 1881750 (Fla. 1st DCA Aug. 25, 2004) (reversing a shelter determination where there was no sworn testimony that established a basis upon which to shelter the children).

Therefore, the trial court’s order is REVERSED and REMANDED for reunification of the children with the mother and reinstatement of the Department’s supervision, see Fla. R. Juv. P. 8.415(f)(5).

DAVIS, LEWIS and POLSTON, JJ., CONCUR.


author: SCHWARTZ, Chief Judge.

text:
    Marjorie WILLIS and Ray Willis, her husband, Appellants, v. GAMI GOLDEN GLADES, LLC, a Florida corporation, d/b/a Holiday Inn and American Knights Security, Inc., a Florida corporation, Appellees.
    No. 3D03-2657.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Sams, Martin, Lipsky, Lister Kaufman and David P. Lister, Miami Lakes; Barbara Green, for appellants.

      Conroy, Simberg, Ganon, Krevans Abel and Hinda Klein, Hollywood; Thomas J. Morgan, Miami, and Justin Ziegler, for appellees.
    Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

This is an appeal from a summary judgment for the defendants rendered on the ground that the plaintiff did not satisfy the Florida impact rule so as to permit recovery for the severe psychological damage she had allegedly sustained as a result of the negligence of the defendants in failing to provide her protection from foreseeable criminal action. We affirm but certify to the Supreme Court that the case involves questions of great public importance.

Because the summary judgment was entered against the plaintiff below, we take our statement of the facts from the appellant’s brief, which we believe fairly describes the record evidence in the required light most favorable to her position:
Marjorie Willis was a guest at a Holiday Inn hotel owned by Defendant Garni Golden Glades, LLC. Garni contracted for security services with Defendant American Knights Security, Inc.
When Mrs. Willis arrived at the Holiday Inn, there was no room in the parking lot to park her car. A security guard instructed her to park in the lot across the street. Mrs. Willis expressed concern because the lot was dark and the neighborhood unfamiliar, but the guard assured her that it was “safe to park next door,” arid instructed her to park there. The guard refused to park her car for her, or to go with her while she parked. Instead,
He said, no, it’s safe. He emphasize[d] it is safe. And then he [told] me to move my car, I got to move it.
Ms. Willis parked her car across the street, because the guard told her to.
As soon as Ms. Willis parked and opened the door and put her foot out, “there was a gun to my head.”
The gun actually touched her head. The gunman instructed her to empty her pockets, but she froze. She stepped out of the car as the gunman continued to order her to empty her pockets.
He said — he said it again, “empty your pockets.” And I had my pocketbook on my arm. And I step out of the car because I didn’t know what he meant and then he said, “I said empty your pockets.” And I heard the gun say click. So then, I take my pocketbook and I stepped out and then I start to move and I couldn’t. It happened so fast.
Then when I started to walk away, he take the gun and he wave me back. He wave me back to the car. He did this, and “I say empty your pockets.” And then I thought he was really going to kill me....
And he told me to lift my clothes and he made me lift my clothes up and he take his hand and patting me on the back because I had pants on.
He patted me. I was so scared....
The robber
“made me lift my clothes and he patfted] me and all my body was exposed”.
The robber then took her rental car and drove off.
The security guard refused to help Mrs. Willis. He acted “like he never saw me.” Mrs. Willis found no help from the hotel personnel, either. She spent a sleepless night in the room she shared with her friend, Debby, walking the floor in “agony”, “scared”.
The next day, Ms. Willis went to the emergency room. Since then, she has been under the treatment by a psychiatrist and a psychologist, as well as her general practitioner, for anxiety, depression, panic attacks and posttraumatic stress disorder. She has been on medication, including Paxil, Buspar, Wellbut-rin and Zoloft. She is afraid everywhere she goes; her relationship with her husband has deteriorated. She is “not like before.”
Ms. Willis offered the uncontradicted affidavit of her psychologist, who stated that her injuries:
include, but are not necessarily limited to, the following physical manifestations of injuries resulting from the attack:
a) sexual dysfunction;
b) peripheral temperature changes;
c) muscle tightening; and
d) increased sweat gland activity. Nevertheless, the Defendants contended that Mrs. Willis’ injuries do not satisfy the “impact rule”.
* * *
Over the Plaintiffs’ objection that the Defendants had the burden of proof, and had not satisfied that burden, the trial court accepted the Defendants’ argument, and granted the Defendants’ motion for summary judgment. Ms. Willis and her husband bring this appeal from that order.

The trial court based its decision on what it believed, and we agree, is the controlling effect of Ruttger Hotel Corporation v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997), which is almost uncanny in its resemblance to the controlling facts of this case. While we acknowledge our discomfiture with doing so, because we are unable meaningfully to distinguish what we think are the batteries committed by the malefactor upon the victim in that case from those in this one, the panel is at this stage bound to follow that decision. Accordingly, on the authority of Ruttger Hotel Corporation v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997), we hold that the trial judge properly found that the plaintiffs cause of action, is, notwithstanding evidence of the unwelcome touching of her person, barred by the Florida impact rule. Cf. Ruttger, 691 So.2d at 1179 (Shevin, J., specially concurring).

In the light of the continuing uncertainty as to the content, scope, and wisdom of the Florida impact rule, we certify that this case involves the following questions of great public importance:

1. Is the evidence that the plaintiff was touched against her will by the pistol placed to her head and in “patting down” her body sufficient to satisfy the Florida impact rule? See and compare, e.g., Gracey v. Eaker, 837 So.2d 348, 355 (Fla.2002); Zell v. Meek, 665 So.2d 1048 (Fla.1995); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985), review denied, 492 So.2d 1331 (Fla.1986).
2. Is the evidence that the plaintiff was apparently the object of an assault and multiple batteries sufficient to satisfy a “free standing tort” exception to the impact rule which may exist in Florida? See Kush v. Lloyd, 616 So.2d 415 (Fla.1992).
3. Is the innkeeper-guest relationship involved in this case a “special relationship” under an exception to the impact rule which may exist in Florida? Rowell v. Holt, 850 So.2d 474 (Fla.2003); Gracey v. Eaker, 837 So.2d 348 (Fla.2002).
4. Should the impact rule be abolished?

Affirmed, questions certified.

      . She may also have been the victim of an intentional infliction of severe mental distress. See Johnson v. Thigpen, 788 So.2d 410 (Fla. 1st DCA 2001). However, this tort was not alleged in the complaint or presented on appeal.


text:
    Eugene JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2747.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and SHEVIN, J., and DAUKSCH, JAMES C., Jr., Senior Judge.
   PER CURIAM.

Eugene Johnson appeals from eighty-three month sentences which were imposed after the trial court vacated his original sentences of forty-eight months, which Johnson had already begun to serve. Because, under these circumstances, the eighty-three month sentences violated Johnson’s constitutional guarantee against double jeopardy, we reverse.

In circuit court case number 03-9433, Eugene Johnson was charged with burglary, grand theft, and criminal mischief. In circuit court case number 03-9992, he was charged with burglary and criminal mischief. On August 21, 2003, Johnson pled guilty to the charges in both cases. Before the pleas were entered, the state announced in court that: 1) the sentencing guidelines provided for sentences between eighty-three months and thirty-five years in state prison; 2) Johnson qualified for sentencing as a habitual offender; and 8) the state’s plea offer was for fourteen years. Over the state’s objection, the trial court allowed Johnson to plead guilty in exchange for concurrent sentences of forty-eight months in state prison. The court then accepted Johnson’s guilty pleas, entered adjudications of guilt, and imposed concurrent sentences of forty-eight months.

Written sentencing orders imposing concurrent forty-eight month sentences as a habitual offender were filed on August 28, 2003. Also on August 28, 2003, the state filed a Motion for Rehearing, seeking to have the forty-eight month sentences vacated on the grounds that the sentences were downward departures from the sentencing guidelines. Over defense counsel’s objection, that motion was granted. The original sentences were vacated by written order on September 9, 2003. At a subsequent hearing on September 11, 2003, Johnson was resentenced to concurrent eighty-three month terms of imprisonment as a habitual offender. Johnson appeals, arguing that his constitutional right against double jeopardy was violated when the trial court resentenced him to concurrent eighty-three month terms after the forty-eight month sentences were already underway. We agree.

“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles .... To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003) (citations omitted). See also Troupe v. Rowe, 283 So.2d 857 (Fla. 1973) (finding that a sentence which had been imposed could not thereafter be increased without violating a defendant’s constitutional protection against double jeopardy). That the sentences would have been reversed if the state appealed rather than file a motion for rehearing is of no consequence. See Gartrell v. State, 626 So.2d 1364, 1365 (Fla.1993) (holding that the filing of a motion to correct an illegal sentence “will not serve as a substitute for a notice of appeal, even though the motion was filed within the time allowed for appeal”). The trial court lacked jurisdiction to correct sentences that could only be corrected on appeal. Id. at 1366.

Accordingly, we reverse the eighty-three month sentences imposed at the resentenc-ing hearing and remand with directions to reinstate the original forty-eight month sentences.

Reversed and remanded with directions.


author: COPE, J.

text:
    Camilo VERA, Appellant, v. Chamberland ADELAND, Appellee.
    No. 3D02-3349.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.

      Jason S. Remer and J.H. Zidell, for appellant.
    Adams & Adams, P.A., and Derek B. Barba, Miami, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   COPE, J.

Plaintiff-appellant Camilo Vera appeals the dismissal of his complaint against defendant-appellee Chamberland Adeland for failure to substitute an appropriate party upon the death of the defendant. We reverse.

The plaintiff sued the defendant for negligence in an automobile accident case. The defendant, a Canadian citizen, was represented by counsel provided through his automobile insurance policy.

The defendant’s counsel filed a suggestion of death, stating that the defendant had passed away. Under Florida Rule of Civil Procedure 1.260(a)(1), this filing triggered a ninety-day period for substitution of a new party defendant.

On the ninety-sixth day, successor defense counsel served a motion to dismiss the action because the plaintiff had not moved to substitute a proper party defendant in place of the decedent. The plaintiff then requested an extension of time and soon thereafter filed a motion for substitution of parties. The court dismissed the action because the plaintiff had not moved to substitute parties, or filed a motion for extension of time, within ninety days. This appeal follows.

II.

The plaintiff first argues that the suggestion of death filed by defense counsel was legally insufficient because it contained no information about the date and location of the defendant’s death, and did not state whether an estate had been opened. The plaintiff maintains that if a suggestion of death does not reveal such information, it should be deemed legally insufficient to start the ninety-day time period for substitution of parties. We reject this argument.

Rule 1.260 states, in part:
Rule 1.260. Survivor; Substitution of Parties
(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Fla. R. Civ. P. 1.260(a)(1) (emphasis added).

The purpose of the rule is to provide an orderly procedure and timetable for substitution where a party has died during the course of the litigation. The rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule.

In this case, the suggestion of death stated in its entirety, “Comes now, the undersigned counsel for the Defendant, Adeland Chamberland, [and] state[s] that he has been notified that the Defendant, Adeland Chamberland, died approximately one year ago.” The rule does not require anymore specificity than this, although the better practice is to include the details relevant for substitution purposes. See Bruce J. Berman, Florida Civil Procedure ¶ 260.4, at 281 (2004 ed.) (“Although not expressly required by the language of the rule, the suggestion should include information necessary for any other party to move for substitution, such as ‘the status of the estate, identity of the personal representative, or ... the identity of next of kin or successors in interest.’ ”) (footnote omitted).

If we were to accept the plaintiffs argument, there would never be any certainty about how to calculate the time period after the suggestion of death is filed. Under the plaintiffs analysis, the ninety-day deadline can always be avoided if the suggestion of death omits any detail regarding the decedent’s demise and the existence of an estate. The plaintiffs theory is unworkable. The rules regarding calculation of time limits need to operate in a clear and predictable way.

Here, the defense filed a document entitled suggestion of death, which advised the parties that the decedent had died. Unil-luminating though it is, the document started the ninety-day time period.

Where, as here, defense counsel files an abbreviated suggestion of death, plaintiffs counsel should (a) contact opposing counsel for information regarding the date and place of death, and such information as defense counsel may have regarding whether an estate has been opened, see Scutieri v. Miller, 584 So.2d 15 (Fla. 3d DCA 1991); or (b) propound discovery directed at obtaining the same information, or (c) both. If the ninety-day period proves to be insufficient, a request for extension of time may be made.

The parties are in agreement that as a general rule, if an estate has been opened, then the decedent’s personal representative should be substituted. If no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.

III.

The plaintiff alternatively argues that under Florida Rule of Civil Procedure 1.090 he was entitled to an extension of time to substitute parties. Under the circumstances here, we agree. We note that Florida has a long-standing policy to determine civil disputes on the merits. See North Shore Hospital Inc. v. Barber, 143 So.2d 849 (Fla.1962); Thomas v. Feinberg, 745 So.2d 500 (Fla. 3d DCA 1999).

The record indicates confusion and inconsistency over the question whether an estate had been opened for the decedent. It was the court’s recollection that this issue had been discussed at some point after the suggestion of death was filed, and that defense counsel had advised plaintiffs counsel in the hearing that there was no estate. However, defense counsel clarified (at the hearing on the motion to dismiss) that he was referring to the fact that an estate had not been opened for the decedent in the United States. In June 2002, after the defense filed the motion to dismiss, successor defense counsel advised plaintiff that while no estate had been established in Florida for the decedent, an estate was established in Canada. In view of the confusion on this issue, we conclude that excusable neglect was shown by the plaintiff and an extension of time for substitution should have been granted. See Tucker v. Firestone Tire and Rubber Co., 552 So.2d 1178, 1179 (Fla. 2d DCA 1989); Pearl v. Kelly, 442 So.2d 1012, 1013 (Fla. 3d DCA 1983).

Reversed and remanded for further proceedings consistent herewith.


text:
    Robert JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3043.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.

      Marshall G. Geisser, Fort Lauderdale and Matthew D. Bavaro, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   COPE, J.

Robert Jackson appeals his convictions and sentences. We reverse for a new trial.

I.

Defendant-appellant Robert Jackson was convicted of armed robbery. Thereafter he entered into a plea bargain whereby he pled no contest to possession of a firearm by a convicted felon and giving a false name after arrest, reserving an issue for appeal.

The victim of the armed robbery was Cornell Young, who was robbed in the parking lot of a convenience store while his friend, Charlie Green, went inside. The robber came up from behind, placed a gun at Young’s back, and ordered him to get on the ground. The robber took his watch, wallet, cell phone, and bracelet. The victim did not get a good look at the robber’s face, but was able to see the perpetrator’s clothing.

As soon as the robber left, Young and Green flagged down a passing police officer, who happened to be a canine officer traveling with his dog. The victim pointed out two males who were walking away from the store. The canine officer gave chase.

The police dog located defendant hiding in shrubbery at a nearby house. It was between 12:30 and 1:30 in the morning. The victim’s property was recovered, except for the bracelet. The police also recovered a handgun from the roof of the house where the defendant was hiding in the shrubbery.

After the defendant' was apprehended, the police brought Young and Green to the scene. Green recognized the defendant, who he knew by the nickname of “E.” The defendant said, “Green, I didn’t know it was you all, man.” TR. 157. The defendant then said, “[Tjell him I didn’t do it. Tell the officer I didn’t do it.” TR. 158. The defendant told the police officers that he was out for a walk, but the defendant lives many miles away.

The defendant’s first trial ended in a hung jury. At the second trial, the jury found the defendant guilty of armed robbery and, as stated, the defendant entered a no contest plea to the remaining charges, reserving an issue for appeal. This appeal follows.

II.

We reverse on account of an erroneous restriction on the defense cross-ex-animation of witness Green. At trial, the defendant was represented by an assistant public defender, who was assisted by a certified legal intern. The intern conducted the cross-examination of witness Green.

As may be expected of a novice, the intern conducted the cross-examination somewhat more slowly and repetitiously than an experienced attorney would have done. Several State objections were properly sustained.

The intern then attempted to cross-examine Mr. Green with his pretrial deposition testimony regarding the statement the defendant made to Mr. Green immediately after the robbery. The court sustained State objections that in asking the question, the intern had miseharacterized Mr. Green’s deposition testimony. At this point the intern had cited the specific page and line of the deposition that he was referring to.

The intern then rephrased the question. Without a State objection, the court called counsel and the intern to sidebar. The court said that the intern was misstating the witness’ prior testimony, that the defendant’s statement at the scene of the crime was self serving, and that the question was repetitious. The court directed the intern to terminate the cross-examination entirely and refused to accept a defense proffer. Having no other alternative, the defense terminated the cross-examination as instructed.

While we understand that the court had become frustrated because the intern was having some difficulty in properly phrasing his impeachment questioning, a review of Mr. Green’s deposition indicates that in this instance, the intern had asked the question properly. Mr. Green was a state witness who had testified on direct examination regarding the defendant’s statements made immediately after the robbery. The defense was allowed to cross-examine with the witness’ prior testimony at his pretrial deposition. See § 90.608(1), Fla. Stat. (2002).

We conclude that the court erred in prohibiting the particular question from being asked, and directing the defense to terminate the entire cross-examination. While at sidebar, the assistant public defender attempted to make a proffer but the court refused to allow it. See Rozier v. State, 636 So.2d 1386, 1387-88 (Fla. 4th DCA 1994); McGriff v. State, 601 So.2d 1320, 1321 (Fla. 2d DCA 1992); Pender v. State, 432 So.2d 800, 802 (Fla. 1st DCA 1983).

Mr. Green was a material witness in the case. We are unable to say that the error was harmless. We therefore order a new trial.

III.

Since there must be a new trial, we address several issues raised by the defendant which are likely to recur in the new trial proceedings.

The defendant argues that the trial court unreasonably limited defense counsels voir dire examination of the prospective jurors. We disagree. “The scope of voir dire questioning rests in the sound discretion of the court and will not be interfered with unless that discretion is clearly abused.” Vining v. State, 637 So.2d 921, 926 (Fla.1994) (citation omitted).

The defense claims error over the trial court’s sustaining of an objection as follows:

[DEFENSE]: ... And Mrs. Baez, you are an accounting clerk. You have heard about all the accounting scandals lately. And all the numbers have to add up, okay, in order for you to come to a conclusion.
How would you feel, if the numbers didn’t add up, or say evidence didn’t add up, okay, and at the end of the day, there’s no science, DNA, fingerprints?
[STATE]: Objection, Judge.
THE COURT: Sustained.

TR. 59.

The ruling was within the court’s discretion. The concluding part of the question attempted to extract a commitment from the juror in advance on what the juror’s decision would be if there were no scientific evidence, DNA, or fingerprints. The question was especially objectionable because there was no such evidence in this case. As the Florida Supreme Court has said:

Prospective jurors are examined on their voir dire for the purpose of ascertaining if they are qualified to serve, and it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced.

Dicks v. State, 83 Fla. 717, 93 So. 137, 137 (1922).

The defense next argues that the trial court erred by sustaining objections to voir dire questions about a locally notorious case known as the “River Cops Case,” as well as a voir dire question about the O.J. Simpson case. These questions violated a prior order in limine, and the objections were properly sustained.

By way of background, one of the defense contentions in this case was that there had been police misconduct at the time the defendant was arrested. In considering motions in limine, a question arose regarding what voir dire questions would be allowed about the subject of police misconduct. The court ruled that the defense could ask the jurors about whether the police are capable of not telling the truth, and whether the jurors could understand that it could be a defense to the case that it was the police that did something wrong, not the defendant. While inquiry along that line would be allowed, the court ruled that the court would not allow discussion of other specific cases.

Despite the order in limine, the defense asked the potential jurors about the River Cops Case and the O.J. Simpson case. The trial court acted within its discretion in sustaining the State objection to those questions. The court had the discretion to preclude potentially inflammatory questioning about the trial of well-known athlete O.J. Simpson for murder, a case having no similarity or relationship to the instant robbery case. Similarly, the so-called “River Cops” case was a factually dissimilar local murder case, and did not involve any of the officers who testified in the instant case.

As the Fourth District has said in a similar context:

Appellant also contends that the trial court erred in not allowing him to voir dire jurors about their knowledge of news reports involving corruption in the Hollywood police department. Defense counsel alleged that members of the Hollywood police department, including the officer who took appellant’s confession, had been untruthful in the investigation, and that this was therefore a proper subject of voir dire.
Appellant makes no argument as to how general corruption in the police department could possibly have had any relevance in this case. The cases on which he relies, Lavado v. State, 492 So.2d 1322 (Fla.1986); Perry v. State, 675 So.2d 976 (Fla. 4th DCA 1996), rev. denied, 684 So.2d 1352 (Fla.1996), were cases in which the trial courts erred in refusing to allow voir dire about broad legal concepts, not, as was the case here, an attempt to attack the credibility of a witness with information which was clearly inadmissible in evidence. What the first district said about this type of thing in Holiday v. Holbrook, 168 So.2d 752, 753 (Fla. 1st DCA 1964) is worth repeating:
The trial judge has a duty to so direct the course of counsel’s voir dire examination that the minds of the prospective jurors may not be infiltrated with ideas having no proper relation to the issue to be determined by them.

Hooper v. State, 703 So.2d 1143, 1145-46 (Fla. 4th DCA 1997) (citation omitted). The trial court had the discretion to preclude discussion of other notorious cases having no connection to the case being tried by the court. The defendant’s remaining arguments relating to voir dire are disposed of by the authority already cited, or by the principle that the trial court has the discretion to curtail repetitious questioning.

IV.

The defendant argues that it was error to bifurcate the trial in this case. We conclude that bifurcation was within the court’s discretion and follows established procedure for a trial of this type.

The amended information charged the defendant with armed robbery (count one), possession of a firearm by a convicted felon (count two), and giving a false name after arrest (count three). The defense moved for a severance of the armed robbery count from the remaining two counts.

The trial court denied an outright severance, and ruled instead that the trial would be bifurcated. The jury would first try count one (armed robbery) and if the defendant were convicted, the same jury would then’ reconvene to try counts two and three. Thus, severance was denied but bifurcation was granted.

The defendant objected to this procedure, contending that it would be unfair. After he was convicted of armed robbery, the defendant entered into a plea bargain whereby he pled no contest to counts two and three, with a reservation of the right to appeal the bifurcation issue.

Where, as here, a defendant is charged with armed robbery and possession of a firearm by a convicted felon, the charges are customarily severed so that the jury trying the armed robbery offense will not learn of the defendants status as a convicted felon. See State v. Vazquez, 419 So.2d 1088, 1090-92 (Fla.1982).

As the trial court explained, the same goal was achieved here by bifurcation. During the trial of the armed robbery charge, the jury did not learn that the defendant has a prior felony record. The jury’s interrogatory verdict found the defendant guilty of robbery with a firearm.

The jury’s verdict established that the defendant possessed a firearm. On the charge of possession of a firearm by a convicted felon, the only remaining issue was whether the defendant was a convicted felon. The defendant declined to stipulate that the trial judge could determine the existence of the prior convictions, so the defendant was entitled to have a jury determination that he was a convicted felon. See U.S. v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); State v. Harbaugh, 754 So.2d 691, 694 (Fla.2000).

For the second phase of the bifurcated trial, the State was prepared to place its fingerprint expert on the stand. The expert would testify that the defendant’s fingerprints matched the fingerprint cards from the defendant’s prior felony convictions. Based on that testimony, the jury would make the factual determination whether the defendant was a convicted felon. However, the second phase of the bifurcated trial became unnecessary when the defendant entered his plea.

The trial judge explained that he ordered the bifurcated procedure because that is a procedure which has been judicially approved for trials under two analogous statutes: prosecutions for felony driving under the influence (“DUI”) and felony petit theft.

In State v. Harbaugh, 754 So.2d 691 (Fla.2000), the Florida Supreme Court outlined the bifurcated procedure to be followed in felony DUI trials. Under the DUI statute, felony DUI occurs if a person “is convicted of a third violation of this section [316.193] for an offense that occurs within 10 years after a prior conviction for a violation of this section .... ” § 316.193(2)(b)l., Fla. Stat. (2003). In the first stage of the bifurcated trial, the jury decides whether the defendant was driving under the influence at the time of the current arrest. If the jury returns a verdict of guilt in this first stage, then the jury reconvenes for the State to prove the existence of the defendant’s three prior DUI convictions. Id. at 694. Thus bifurcation is the approved procedure in a situation that is analogous to the present case.

In Smith v. State, 771 So.2d 1189 (Fla. 5th DCA 2000), the Fifth District explained that the same procedure applies in prosecutions for felony petit theft. Under the theft statute, “[a] person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony the third degree _” § 812.014(3)(c), Fla. Stat. (2003). Following Harbaugh, the Fifth District held that in such prosecutions, there must be a bifurcated procedure. During the first stage of the trial, the State must prove that the defendant committed the current theft with which the defendant is charged. If the jury finds the defendant guilty, then the jury reconvenes to hear evidence of the defendant’s prior theft convictions. Smith, 771 So.2d at 1191.

The trial court reasoned that the same procedure is equally applicable to the present case, when the defendant was charged with armed robbery and possession of a firearm by a convicted felon. The court thus employed the same bifurcated procedure.

The defendant argues that the procedure is unfair because the defendant is unable to ask the jury in voir dire whether they will hold it against the defendant that he has prior felony convictions. The defense contends that the defendant should be able to ask such questions, but in a bifurcated procedure, cannot do so without disclosing the existence of the prior convictions to the jury.

The Florida Supreme Court has rejected this exact claim in the context of the capital punishment statute. In capital cases, there is a two stage bifurcated trial. The first phase is the guilt phase. If the defendant is convicted, this is followed by the penalty phase. The same jury is used for both. Melton v. State, 638 So.2d 927, 929 & n. 3 (Fla.1994). The Florida Supreme Court said:

Melton argues that he was entitled to ■ separate guilt and penalty phase juries so he could conduct an effective voir dire about prospective jurors’ opinions on imposing the death penalty if a defendant has a prior murder conviction. The trial judge denied Melton’s motion to empanel separate juries, and defense counsel chose not to question jurors about the possible effect of a prior murder conviction.
This Court has rejected the argument that separate juries should be empaneled for the guilt and penalty phases of all capital trials. Riley v. State, 366 So.2d 19, 21 (Fla.1978). Jurors must be able to follow the law as given by the trial judge, which includes following the judge’s instructions to weigh aggravating and mitigating factors. Melton’s prior convictions constitute an aggravating factor that the jurors were instructed to weigh. The record before us shows that the jurors empaneled in Melton’s case said during voir dire that they could follow the law. Melton is not entitled to relief on this issue.

Melton, 638 So.2d at 929 (citation and footnotes omitted); see also Head v. State, 253 Ga. 429, 322 S.E.2d 228, 231-32 (1984). We reject the defendant’s argument on authority of Melton.

V.

Because we are reversing for a new trial, it is not necessary for us to reach the defendant’s claim that it was fundamental error for a certified legal intern to participate in defendant’s trial without there being a signed consent form in the court file. See Duval v. State, 744 So.2d 523 (Fla. 2d DCA 1999), review dismissed, 753 So.2d 564 (Fla.2000), and cases cited therein; cf. Smith v. State, 866 So.2d 51 (Fla.2004) (no fundamental error where record is silent on whether venire was sworn).

The remaining points on appeal need not be addressed.

Affirmed in part, reversed in part, and remanded for a new trial.

      . The court said, in part, "what the defendant said at the scene or at any time, is a self serving statement, it’s hearsay." TR. 177. The court was making the point that the defendant's own statement to Mr. Green is admissible hearsay when offered by the State against the defendant, see id. § 90.803(18), but inadmissible hearsay if offered by the defendant. However, once the State elicited Mr. Green’s testimony, the defendant was entitled to a fair opportunity to cross-examine it.

      . The judge did allow the defense to rephrase the question as follows:
      [DEFENSE]: If the numbers don't add up, you have no problem with rendering a not guilty verdict. If the numbers don’t add up, and you saw, okay, you are an accountant, and the balance sheets didn't come up.
      MS. BAEZ: Right, I understand that. No, it has to be accurate. It has to add up.
      TR. 59-60.


author: BENTON, J.

text:
    Kylie C. DOYLE, Appellant, v. Jason Leigh OWENS, Appellee.
    No. 1D03-5266.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.

      E. Jane Brehany, Pensacola, for Appellant.
    Caryn A. Van Matre, Pensacola, for Ap-pellee.
   BENTON, J.

Kylie C. Doyle appeals an order granting Jason Leigh Owens unsupervised visitation with the parties’ daughter, now four years old. At issue is the effect, under section 61.13(2)(b)2, Florida Statutes (2002), of the father’s third degree felony conviction involving domestic violence. We reverse and remand.

Although the order on appeal is non-final, it is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) (allowing appeal of non-final orders determining “child custody in family law matters”). See § 61.503(4), Fla. Stat. (2002) (“ ‘Child custody proceeding’ means a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue.”); see also McGlamry v. McGlamry, 608 So.2d 553, 554 (Fla. 4th DCA 1992) (applying Rule 9.130(a)(3)(C)(iii) to temporary order terminating visitation); Johnson v. Henck, 482 So.2d 588, 589 (Fla. 1st DCA 1986) (reviewing non-final order terminating visitation); cf. In the Interest of Temp. Custody of L.M. & T.M., 788 So.2d 1114, 1117-18 (Fla. 2d DCA 2001) (treating appeal of non-final visitation order as a petition for writ of certiorari rather than pursuant to Rule 9.130(a)(3)(C)(iii), “[ajlthough it is arguable that either approach would provide us with appellate jurisdiction”).

After Mr. Owens was released from prison, an order was entered authorizing him to visit the parties’ daughter once a month under supervision at family visitation centers, principally in Tallahassee, where Ms. Doyle and the child reside. A superseding order allowed two such two-hour visits monthly, one in Tallahassee and one in Pensacola, and was in place when the current phase of the present paternity proceedings began.

The matter was heard below in a series of hearings. Assessing the issue before it, the trial court described the question early on not as

whether or not [Mr. Owens’s] visitation should remain supervised, which it certainly should at this point in time, but whether it should be supervised in the present environment or whether there should be greater latitude that is supervised at the [pjaternal grandparents’ house

in Pensacola, where Mr. Owens also lives. When proceedings resumed at a subsequent hearing, however, Mr. Owens’s counsel announced that he was seeking not only supervised visitation overnight — with his mother acting as supervisor — but also unsupervised, daytime visitation. Eventually, the trial court ruled, as follows:

It is clear from the evidence that the benefit of supervised visitation has been maximized and that Mr. Owens has made considerable progress in moving toward shared parental responsibility and liberal unsupervised visitation. Considering the age of the child, however, together with the limited contact which has been available to Mr. Owens as a consequence of his own behavior as well as other circumstances existing between the parties the Court finds that it is not in the best interest of [the] child at this time to advance to either shared parental responsibility or frequent unsupervised visitation.
It is therefore,
ORDERED AND ADJUDGED that:
1. For a period of eight consecutive months commencing December 1, 2003 Mr. Owens shall be entitled to unsupervised visitation with the child in Tallahassee (at such times as the child is residing there). Unless otherwise agreed to by the parties unsupervised visitation shall occur between 10:00 a.m. and 4:00 p.m. on the second and fourth Saturdays of each month....
2. Mr. Owens shall additionally be entitled to one full day and night of unsupervised visitation in Pensacola.... Unless otherwise agreed to by the parties alternating unsupervised visitation as provided for herein shall occur on the third Saturday of each alternating month commencing Saturday, December 20, 2003 and continuing on alternating months thereafter. Visitation shall commence at 10:00 a.m. Saturday morning and continue through 4:00 p.m. Sunday afternoon.
4. The Court finds that the presumption created by Florida Statute § 61.13(2)(b)2 is rebutted by the evidence to such extent as to allow the expanded visitation provided for herein.

The trial court thus awarded overnight, unsupervised visitation for which Mr. Owens had not asked at any of the hearings at which visitation was discussed.

Ms. Doyle’s contention on appeal is that no evidence tended to rebut the statutory presumption against unsupervised visitation and that, in any event, the trial court’s award of unsupervised visitation failed to “make such arrangements ... as will best protect the child.” § 61.13(2)(b)2, Fla. Stat. (2002). Because, she contends, section 61.13(2)(b)2 requires that the court treat Mr. Owens’s prior domestic violence conviction as presumptively detrimental to the child and consider his history of abuse as evidence of detriment to the child, and because the evidence did not rebut the presumption that unsupervised visitation would be detrimental to the child, the trial court erred in ordering unsupervised visitation. In any event, she also contends, no evidence supports the inherently problematic view that unsupervised visitation “will best protect the child.” § 61.13(2)(b)2, Fla. Stat. (2002).

Because Mr. Owens was previously “convicted of a felony of the third degree or higher involving domestic violence, ... a rebuttable presumption of detriment to the child” arises, broadly precluding shared parental responsibilities of many kinds, and rendering him ineligible for unsupervised visitation, if the presumption is not rebutted. § 61.13(2)(b)2, Fla. Stat. (2002). Section 61.13(2)(b)2 provides:

Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(l)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.

In an effort to rebut this presumption, Mr. Owens testified that he had taken anger management, parenting and CPR courses, had worked full-time, and had complied with court orders (since violating the domestic violence injunction). His testimony, like that of the family visitation center monitors he called as witnesses, also showed that supervised visitation had gone off without incident.

Even if this evidence was enough to overcome the statutory presumption that visitation would be detrimental to the child, however, it did not prove that unsupervised visitation would “best protect the child.” § 61.13(2)(b)2, Fla. Stat. (2002). Section 61.13(2)(b)2 provides:

If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child ... from further harm.

Because the order under review necessarily determined that shared parental responsibility was detrimental to the child, the trial court’s authority to order visitation was limited: The trial court was required to “make such arrangements for visitation as will best protect the child.” § 61.13(2)(b)2, Fla. Stat. (2002).

The evidence that supervised, not unsupervised, visitation will best protect the child was clear. Both experts testified to that effect. There was no competent, substantial evidence to the contrary. Dr. Larson, the court-appointed psychiatric evaluator, recommended supervised visitation because, while he believed Mr. Owens had learned tools to control his anger if he wanted to, he believed Mr. Owens was more likely to choose to do so when he was under “watchful eyes.” Angelyn Richards, the child’s mental health counselor, testified that it was not in the child’s best interests for Mr. Owens to have unsupervised visitation with her because, among other things, some of the child’s reactive behaviors after visitation appeared to be symptomatic and traumatic. Ms. Richards recommended more visitation supervised by someone who could offer professional or unbiased monitoring.

The trial court erred in ordering unsupervised visitation with Mr. Owens. The evidence presented below failed to prove even that the unsupervised visitation that was ordered was safe and appropriate, much less that it would best protect the child from harm. No competent evidence of any substance suggested that visitation that was unsupervised would bést protect the child.

Reversed and remanded.

PADOVANO and HAWKES, JJ., concur.

      . In the order under review, the trial court discussed this earlier order:
      By order entered January 24, 2003 the Court found that the evidence presented at that time failed to rebut the statutory presumption of detriment created by F.S. § 61.13(2)(b)2 as it related to shared parental responsibility, unsupervised visitation and decisions made regarding the child’s welfare and benefit. The Court further found, however, that as it related to the issue of visitation the evidence successfully rebutted the presumption of detriment to the limited extent of supervised third party visitation.

      . Ms. Doyle has not argued on appeal that supervised visitation runs afoul of section 61.13(2)(b)2, which provides that "[i]f the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.” See F.M.W. Props., Inc. v. Peoples First Fin. Sav. & Loan Ass’n, 606 So.2d 372, 377 (Fla. 1st DCA 1992) (" ‘It is well settled that, in order to obtain appellate review, alleged errors relied upon for reversal must be raised clearly, concisely, and separately as points on appeal.’ ") (quoting Singer v. Borbua, 497 So.2d 279, 281 (Fla. 3d DCA 1986)); see also Fla. R.App. P. 9.210(b)(5).

      . While there was no allegation that the child was abused by Mr. Owens, section 61.13(2)(b)2, Florida Statutes (2002), provides:
      Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.

        See generally Fla. S. Judiciary Comm., CS for SB 1006 (1997) Staff Analysis 14 (Apr. 16, 1997) (on file with Florida State Archives) (“The bill provides that ... the court must consider evidence of domestic violence or child abuse as evidence of detriment to the child.") (codified at section 61.13(2)(b)(2.), Fla. Stat. (1997), and section 61.13(2)(b)(2.), Fla. Stat. (2002), remains substantially unchanged).

      . In addition to finding that Mr. Owens had failed to rebut the statutory presumption against shared custody, the trial court also expressly determined in the order on appeal that shared parental responsibility was not in the best interests of the child. Section 61.13(2)(b)2 mandates: "The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” § 61.13(2)(b)2, Fla. Stat. (2002) (emphasis supplied).


author: KAHN, J.

text:
    Michael Ray CLINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4823.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Trish Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Does section 775.084, Florida Statutes (2002), authorize the trial court to sentence a criminal defendant as both a violent career criminal and a habitual felony offender on one count of resisting arrest with violence? We find that such a sentence violates neither double jeopardy protections nor legislative intent. We certify conflict to the Florida Supreme Court.

In the judgment and sentence entered below, the circuit court designated appellant Michael Ray Clines as a habitual felony offender and a violent career criminal. Accordingly, appellant received a ten-year habitual offender term with a violent career criminal minimum mandatory of ten years. On appeal, Clines argues that his sentence is illegal as contrary to legislative intent. He relies upon the reasoning of the Fourth District Court of Appeal in Oberst v. State, 796 So.2d 1263 (Fla. 4th DCA 2001). The Second District followed Oberst in Works v. State, 814 So.2d 1198 (Fla. 2d DCA 2002).

In response, the State relies upon our decision in Iman v. State, 784 So.2d 1265 (Fla. 1st DCA 2001), holding in a similar situation that no double jeopardy violation is shown because the resulting sentence is only one sentence with a minimum mandatory term. Appellant counters that Iman does not control because Iman only looked at double jeopardy and not legislative intent.

The Oberst court, relying upon its view of legislative intent, concluded that a dual designation as a habitual offender and violent career criminal “is not proper.” 796 So.2d at 1264. The court did not, however, completely eschew the language of double jeopardy. In fact, the court considered Grant v. State, 770 So.2d 655 (Fla.2000), which in turn borrowed from Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), to observe, “one function of the double jeopardy clause is to protect against multiple punishments for the same offense, so as ‘to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.’ ” 796 So.2d at 1264 (quoting Johnson, 467 U.S. at 499,104 S.Ct. 2536).

Oberst then examined section 775.084(4)(f), which directs: “At any time when it appears to the court that the defendant is eligible for sentencing under this section, the court shall make that determination as provided in paragraph (3)(a)[habitual felony offender], paragraph (3)(b)[three-time violent felony offender], or (3)(c)[violent career criminal].” According to the Oberst court, the Legislature’s use of the disjunctive “or” “reflects a legislative intent to require the court to designate a defendant as either a HFO or a three-time violent felony offender or a VCC, but not any combination.” Id. at 1265; cf. Rivera v. State, 837 So.2d 569 (Fla. 4th DCA 2003) (following Oberst and holding a defendant could not be designated both as a habitual felony offender and as a three-time violent felony offender). We respectfully disagree with this analysis.

We have previously held in Iman that a sentence identical to appellant’s shows no double jeopardy violation. Appellant’s argument in the present case implies that Iman is not controlling because Oberst relied strictly upon statutory interpretation, while Iman only considered double jeopardy. The plain language of Oberst does not support this argument because the Oberst court acknowledged that its exercise in statutory interpretation was a function of the double jeopardy clause. Moreover, and going a step beyond the straight double jeopardy holding of Iman, we conclude that the statute itself does not support the result reached in Oberst and followed in Works.

We would readily note that, in Florida law, use of the word “or” generally connotes “a disjunctive particle that marks an alternative.... ” Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 805 (1927). Nevertheless, the question of legislative intent must be plumbed in order for a court to make an appropriate determination of whether use of the word “or” connotes only the disjunctive. As the Florida Supreme Court has observed:

There are, of course, familiar instances in which the conjunction ‘or’ is held equivalent in meaning to the copulative conjunction ‘and,’ and such meaning is often given the word ‘or’ in order to effectuate the intention ... of the Legislature in enacting a statute, when it is clear that the word ‘or’ is used in a copulative, and not in a disjunctive, sense.

Id. Accordingly, a connecting “or” should be read in the conjunctive sense if such is called for to insure that “the act is given its clear and obvious meaning.” Pinellas County v. Woolley, 189 So.2d 217, 219 (Fla. 2d DCA 1966). This court has acknowledged that the term ‘or’ would generally be construed as being disjunctive and thereby indicating alternatives, but recognizes that “the case law also indicates that there are instances in which the conjunctive “or” is held equivalent to the copulative conjunction ‘and,’ and such meaning is often given in order to effectuate the legislative intent in enacting a statute.” Suddath Van Lines, Inc. v. State, Dep’t of Envtl. Prot., 668 So.2d 209, 212 (Fla. 1st DCA 1996). We must, therefore, properly determine legislative intent by analyzing the entire statute and not focus entirely upon the Legislature’s choice of a particular conjunction in one subsection.

Here the Legislature had little choice but to use the disjunctive. Had the Legislature used the conjunctive “and,” the statute would have been hopelessly confusing and would have suggested that the trial court must make all three sentencing determinations, a situation that would be impossible on the facts of many cases. Looking at section 775.084(4)(f), we read the word “or” in light of the Legislature’s previous directive to the trial court to “make that determination.” The phrase “make that determination” refers to a sentence under section 775.084 (“this section”) — a sentence that may be affected by any of the enhancement provisions referenced in section 775.084(4)®. Of course, in the present case, the trial court did as the statute directs and made the sentencing determination as provided in paragraph (3)(a) (habitual felony offender) and paragraph (3)(c) (violent career criminal).

Notably, section 775.084(3), in mandatory language, directs that the trial court “shall determine” whether a defendant fits into any of the special sentencing categories provided by the statute. Under subsection (3)(a), the trial court “shall determine if the defendant is a habitual felony offender or a habitual violent felony offender;” Under subsection (3)(b), the trial court “shall determine if the defendant is a three-time violent career criminal; and under subsection (e)(c), the trial court “shall determine whether the defendant is a violent career criminal.... ” Thus, in three places, section 775.084(3) directs the trial court to conduct a separate proceeding, but does not limit the trial court to only one determination. Subsection (4)(f) of the statute, construed in Oberst, merely reiterates the requirements of subsections (3)(a), (b), and (c), each of which directs the court to conduct separate proceedings and to make “findings required as the basis for such sentence.” § 775.084(3)(a)4., (b)4., (c)3., Fla. Stat. (2002).

Finally, election of only one of the sentencing alternatives contravenes the actual provisions of section 775.084(4). In the case of a habitual offender, including a habitual violent offender, the court retains discretion as to whether to impose the sentences called for in the subsection. See § 775.084(4)(a), Fla. Stat. (2002) (“The court ... may sentence the habitual felony offender as follows .... ”); § 775.084(4)(b), Fla. Stat. (2002) (“The court ... may sentence the habitual violent felony offender as follows-”). As to sentencing for three-time violent felony offenders and violent career criminals, however, the statute speaks in mandatory terms. See § 775.084(4)(c)l., Fla. Stat. (2002) (“The court ... must sentence the three-time violent felony offender to a mandatory minimum term of imprisonment as follows ....”); § 775.084(4)(d), Fla. Stat. (2002) (“The court ... shall sentence the violent career criminal as follows.... ”). Thus, at least two prongs of the statutory sentencing scheme are mandatory provided a defendant qualifies under one or both of these prongs. This further militates against a construction that would require the trial court to elect no more than one sentencing designation under the statute.

In our view, the entire statutory scheme of section 775.084 readily contemplates, in the case of a single criminal charge, a sentence under the habitual felony offender provision, with the mandatory minimum term provisions provided for by the violent career criminal designation. Accordingly, we AFFIRM the judgment and sentence on appeal and CERTIFY direct conflict with Oberst and Works.

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


author: WOLF, C.J. HAWKES, J.,

text:
    William CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2083.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.

      Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Clark appeals from a judgment and sentence for robbery, a second degree felony, pursuant to section 812.13(2)(e), Florida Statutes. Appellant asserts that the trial court erred by not granting his motion for mistrial when a State witness accused defense counsel of obstructing justice and lying to her. We agree and reverse.

Appellant, William Clark, worked as a night auditor and desk clerk at Days Inn. Anil Gadhia who managed the Days Inn testified there was a shortage of $190 on Clark’s shift and deducted the amount from Clark’s last paycheck. According to Gadhia, when Clark came to get his paycheck, Clark got upset and demanded his $190. Clark left Gadhia’s office, and Gad-hia then heard his wife screaming at the front desk that Clark had taken the'money. When Gadhia came out of his office, Clark hit him and left. Mrs. Gadhia testified to essentially the same facts, adding that Clark pushed her in order to get to the cash register. Mr. and Mrs. Gadhia later found $100 missing from the cash drawer.

The defense called Jackie Pompey who lived with Clark and his two children. He testified that he parked in the driveway and could see what happened at the front desk. According to Pompey, Clark went into the lobby and spoke with Mrs. Gadhia at the front desk. Pompey could tell from Clark’s facial expressions that things were not going well, so Pompey went in. Clark was arguing with Mr. Gadhia about his check being short. When Pompey went in Mrs. Gadhia was already calling the police. Pompey did not see Clark hit or push either of the Gadhias, or go behind the counter to take anything.out of the register.

The State called Denise Johnson, the Days Inn manager who took over from Mr. Gadhia. She brought the records of the audit for the day of the incident. The prosecutor asked Johnson if she had spoken to anyone about those records before trial, and she replied, “[Defense counsel] had called me at the hotel four or five times yesterday and specifically instructed me if I had these records not to bring them.” Defense counsel objected and stated, “That’s not true.” On cross-examination defense counsel asked Johnson to explain some of the records she brought to trial. Once again Johnson said defense counsel told her not to bring the records. Then Johnson said, “This man has lied to me so many times,” referring to defense counsel.

Several minutes later (less than two pages later in the transcript) at the end of the testimony from the same witness, counsel moved for a mistrial based on the prejudicial remarks, clearly satisfying the contemporaneous objection rule. See Cole v. State, 866 So.2d 761, 763 (Fla. 1st DCA 2004) (citing Nixon v. State, 572 So.2d 1336, 1340-1341 (Fla.1990) (“a motion for mistrial need not be made in the next breath following the objection to the offensive remark.”)). Twice during this discussion concerning a mistrial the court stated, “I’m not going to grant a mistrial.” Several minutes later during the testimony of another witness (less than ten pages later in the transcript), defense counsel specifically asked for a curative instruction. At the close of the evidence counsel again renewed his motion for a mistrial.

Attacks by the prosecutor on defense counsel are highly improper and impermissible. Lewis v. State, 780 So.2d 125 (Fla. 3d DCA 2001). Such improper comments include inferences of manipulation of the evidence. Id. at 130; see also Redish v. State, 525 So.2d 928 (Fla. 1st DCA 1988) (disapproving prosecutor’s reference to defense’s “cheap tricks”). Such remarks imply that defense counsel must resort to inappropriate tactics because of the guilt of the defendant or that defendant should be found guilty by association. In the instant case Ms. Johnson’s testimony alleges a specific attempt at manipulation of evidence. The testimony further implies that defense counsel cannot be believed because of his numerous lies. Such testimony is clearly prejudicial to the defense.

The State argues that because the improper comments came from a witness rather than the prosecutor, reversal is not mandated. Improper comments of a witness which result in prejudice to a defendant, however, may result in reversal of a conviction. Ward v. State, 559 So.2d 450 (Fla. 1st DCA 1990); Elliott v. State, 590 So.2d 538 (Fla. 2d DCA 1991). Not every inadvertent comment of a witness will result in a reversal. Nevertheless, the circumstances in this case do mandate reversal. The statements by the witness were highly inflammatory; the statements were made under oath on two separate occasions, one involving a heated exchange between defense counsel and the witness; the trial judge failed to give a curative instruction; and there was conflicting testimony concerning appellant’s guilt. Therefore, we are unable to say appellant received a fair trial, and we are constrained to find that the trial court abused its discretion by not granting a mistrial or at the very least giving an appropriate curative instruction.

Reverse and remand for a new trial.

BROWNING, J., concurs; HAWKES, J., dissents with opinion.

HAWKES, J.,

dissenting.

I respectfully dissent. In my opinion, the trial court did not abuse its discretion by denying the motion for mistrial or by denying a curative instruction.

A ruling on a motion for mistrial rests within the sound discretion of the trial court, and should be granted only when necessary to ensure the defendant receives a fair trial. See Israel v. State, 837 So.2d 381, 388 (Fla.2002).

In Israel, a witness referred to a conversation in which the defendant talked about committing crimes in addition to the one for which he was being tried. The trial court denied the defendant’s motion for mistrial and refused the defense’s request for a curative instruction to avoid bringing attention to the matter. See id. The Florida Supreme Court concluded the statement was not highlighted to the jury, and that the trial court was within its discretion to determine the statement did not prevent the defendant from receiving a fair trial. See id. at 389.

In the case at bar, the witness testified on direct: “[Defense counsel] had called me at the hotel four or five times yesterday and specifically instructed me if I had these records not to bring them.” Defense counsel’s response to this comment was “I object. That’s not true.” Clearly, this was not a proper objection. A proper objection would have been to state, “I object, non-responsive, move to strike.” Instead, defense counsel chose to argue the witness’s veracity in front of the jury. Defense counsel’s improper speaking objection assuredly drew more attention to the comment than a proper objection would have, and caused an argumentative exchange to take place between the witness and himself.

Two additional comments occurred when defense counsel was cross-examining the witness. The first occurred when the witness responded to a question by stating: “I brought the entire thing with me, although you advised me not to.” Defense counsel again argued with the witness, in front of the jury, that he did not advise her not to bring the documents. The last comment the witness made was: “This man has lied to me so many times.” Neither of these comments drew an objection from defense counsel, nor did he ask to approach or move for mistrial at that time. Instead, defense counsel highlighted the witness’ testimony by arguing with her in front of the jury. Thus, a large part of any harm that may have resulted was invited by defense counsel.

Defense counsel moved for mistrial or a curative instruction twice: first, at the conclusion of the witness’ testimony, and second at the close of the State’s case. The trial court denied the motion for mistrial, and concluded a special instruction would highlight the comments and that the standard jury instructions addressed defense counsel’s concern. The trial court instructed the jury as follows: “Remember that the lawyers in this case are not on trial. Your feelings about them should not influence your decision in this case in any way. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom.”

In my opinion, these instructions adequately dealt with the situation. We should presume the jury heeded these instructions and did not convict Appellant based on their perception of defense counsel.

Appellant argues that, because defense counsel was accused of trying to withhold evidence, it implied Appellant was guilty. If reference to the defendant’s commission of additional crimes mandates neither a curative instruction nor mistrial, logic would suggest a witness’ comments about the defense attorney and some documents should not mandate such extraordinary action. I would affirm.

      . During this discussion, the court again, for the third time, stated, "I’m not going to grant a mistrial over it.” Only when faced with this emphatic declaration did counsel state, "Okay I don’t want a mistrial,” but he still specifically asked for a curative instruction. Counsel again moved for a mistrial based on the prejudicial statements at the close of the evidence. Under these circumstances, where counsel was clearly and continuously seeking relief based on the inflammatory statement, it is difficult to say that a voluntary waiver concerning this issue took place.

      . For instance, one isolated comment does not entitle a defendant to a mistrial, especially when an appropriate curative instruction is given by a trial judge. See, e.g., Gudinas v. State, 693 So.2d 953 (Fla.1997); James v. State, 741 So.2d 546 (Fla. 4th DCA 1999). The denial of a mistrial is also not error where the inadvertent remark does not become a focus of the trial or is not directly material to disputed issues. Cole v. State, 701 So.2d 845 (Fla.1997). Such inappropriate comments also may not require a new trial in cases of guilt where the evidence is overwhelming. Lewis v. State, 711 So.2d 205 (Fla. 3d DCA 1998); Cox v. State, 819 So.2d 705 (Fla.2002).

      . The dissent argues that the standard instruction given regarding a juror's feelings toward the lawyers and the lawyers talking to witnesses sufficiently addressed the inflammatory comments. The standard instruction addresses normal lawyer conduct before and during the trial, but it does nothing to address sworn testimony from the witness stand (objections to which were overruled and testimony which was allowed to remain in the record) concerning counsel’s attempt to illegally suppress evidence.


text:
    Robert Edward ROGERS, Dale Faircloth Rogers, Robert Edward Rogers, Jr., and Rogers Logging Company, Appellants, v. SALEM LEASING CORP., d/b/a Salem Carriers, Inc., individually, and f/u/b/o Lowry Claims Services, Inc., as subrogee of Arturo Mendoza and Juan Luna, and Capital City Insurance, Appellees.
    No. 1D04-2794.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.

      Richard B. Collins and Ellen C. Pappas of McFarlain & Cassedy, Tallahassee, for Appellants.
    Allen S. McConnaughhay of McCon-naughhay, Duffy, Coonrod, Pope & Weaver, Tallahassee, Kevin J. Carroll of Ausley & McMullen, Tallahassee, and Dean R. LeBoeuf of Brooks, LeBoeuf, Bennett, Foster & Gwartney, Tallahassee, for Ap-pellees.
   PER CURIAM.

On July 2, 2004, the Court issued an order directing the appellants to show cause why the appeal should not be dismissed as premature. As an initial matter, the appellants’ Motion to File Appellants’ Response to Order to Show Cause (7/2/04) Out of Time is granted and the response, filed on July 16, 2004, is hereby accepted as timely filed.

Upon consideration of the appellant’s response to the Court’s order of July 2, 2004, the Court has determined that because the order on appeal merely grants the parties’ motions to enforce a settlement agreement, the order is not a final order. See generally Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

The appellants’ motion for extension of time within which to file briefs, filed on August 18, 2004, is hereby denied.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    SEARS, ROEBUCK & COMPANY, a foreign corporation, Appellant, v. Maria Acosta KING and Malcolm J. King, husband and wife, Appellees.
    No. 1D04-2627.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, and John Moffitt Howell, Howell & O’Neal, Jacksonville, for Appellant.
    Tracy Considine, Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of June 30, 2004, this appeal is hereby DISMISSED for lack of jurisdiction. Hamilton v. Ryan Foods Co., 867 So.2d 1217 (Fla. 1st DCA 2004).

KAHN, WEBSTER and HAWKES, JJ., CONCUR.


text:
    Dewayne FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0784.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 8.850 motion for post-conviction relief. Because the trial court erred in denying the motion as untimely and the appellant has stated a facially sufficient claim, we reverse and remand the cause for a determination on the merits.

The appellant brought his motion, entitled “Motion to Enforce Plea,” pursuant to Florida Rule of Criminal Procedure 3.850 on November 5, 2003, within two years of the date his conviction and sentence became final, as required by the rule. .See Fla. R.Crim. P. 3.850(b). The trial court therefore erred in finding that the motion was untimely filed. Furthermore, the motion states a facially sufficient claim for relief. See, e.g., McCollun v. State, 586 So.2d 490 (Fla. 1st DCA 1991); Humphries v. State, 563 So.2d 1124 (Fla. 2d DCA 1990).

Accordingly, the trial court’s summary denial of the appellant’s motion is REVERSED and the cause REMANDED for the trial court to address the merits of the appellant’s claim.

KAHN, WEBSTER and POLSTON, JJ., CONCUR.


text:
    W. Dale BORDEN, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Appellee.
    No. 1D04-1843.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    Cynthia S. Tunnicliff of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for appellant.
    Nancy Campiglia, General Counsel, and Gail Scott Hill, Assistant General Counsel, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellee’s confession of error, the order on appeal is reversed and this matter is remanded for further proceedings.

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    John David PAGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2420.
    District Court of Appeal of Florida, First District.
    Sept. 15, 2004.
    John David Page, petitioner, pro se.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the October 7, 2003, order denying petitioner’s motion for postconviction relief in Washington County Circuit Court case number 95-155, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    Miguel LLOREN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1611.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Miguel Lloren, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and SHEPHERD, JJ.
   PER CURIAM.

Because the appellant misinformed the trial court that there was a pending prior appeal from the denial of a 3.800 motion, the trial court did not lack jurisdiction to consider the appellant’s motion. Lloren v. State, 871 So.2d 237 (Fla. 3d DCA 2004). Accordingly, we reverse and remand for reconsideration on the merits.


text:
    Deloris H. PARKS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-3399.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Deloris H. Parks, in proper person.
    John D. Maher and Louis A. Gutierrez, for appellee Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

The claimant, Deloris H. Parks, appeals from a final order of the Unemployment Appeals Commission [UAC] affirming the decision of the appeals referee which denied her claim for unemployment compensation benefits. We affirm.

The appeals referee’s findings of fact are supported by competent substantial evidence, and therefore, the UAC properly adopted the findings of the appeals referee. Fink v. Florida Unemployment Appeals Comm’n, 665 So.2d 373, 374 (Fla. 4th DCA 1996). Based on those findings of facts, the UAC properly concluded that the claimant voluntarily left employment without good cause within the meaning of the unemployment compensation statute. Accordingly, we affirm the order under review.

Affirmed.


text:
    Derrick N. MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3013.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Derrick N. Miller, in proper person.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before GODERICH, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

The trial court’s denial of the defendant’s motion to withdraw guilty plea is affirmed without prejudice to the defendant filing a facially sufficient motion. See McAllister v. State, 840 So.2d 1163 (Fla. 5th DCA 2003).

Affirmed without prejudice.


text:
    Robert COBA, Appellant, v. Clay CRAIG, Esquire, As Curator of the Estate of Antonio R. Coba, Appellee.
    No. 3D03-2353.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Bennett Aiello Henry & McGuinness and Paul Aiello, Miami, for appellant.
    Steel Hector & Davis and Carlos A. Battle and Catherine Whitfield, Miami, for appellee.
    Before GODERICH, SHEVIN and SHEPHERD, JJ.
   PER CURIAM.

Robert Coba appeals an order of the Circuit Court Probate Division determining that he did not file a valid claim against the Estate of Antonio R. Coba. We reverse.

The trial court misapprehended the effect of May v. Illinois Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000), on this case. Here, Robert Coba “is not making a claim or demand against the decedent’s estate that arose before [his] death, and because the action cannot be deemed a liability of the decedent, as it arose well after [his] death, the claim is not subject to the probate code’s statutes of nonclaim.” Thompson v. Hodson, 825 So.2d 941, 948 (Fla. 1st DCA 2002)(citing Swenszkowski v. Compton, 662 So.2d 722, 723 (Fla. 1st DCA 1995)); Langford v. Ferrera, 823 So.2d 795 (Fla. 1st DCA 2001). See Spohr v. Berryman, 589 So.2d 225, 228 (Fla.l991)(interpreting § 73.702, Fla. Stat. (1985))(“reference to claims arising before the death of the decedent is intended to make clear that it is unnecessary to file a statement of claim in order to prosecute an action against the estate that is predicated upon events that take place after the decedent’s death.”). In 1987, at the time of the decedent’s death, the property passed to Robert by operation of a recorded deed; the deed was not cancelled until 1996 by order of the Circuit Court, General Jurisdiction Division. Therefore, Robert preserved any claim on the property by properly asserting same within the time frame in 733.702(1), Florida Statutes (1987), when Richard Coba instituted these probate proceedings in 1992. Section 733.710, Florida Statutes (1987) does not bar Robert Coba’s claim.

Reversed and remanded.

      . That order is not on appeal here.