author: FLETCHER, Judge.

text:
    David Manuel SOTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2129.
    District Court of Appeal of Florida, Third District.
    May 19, 2004.

      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   ON MOTION FOR REHEARING GRANTED

FLETCHER, Judge.

The opinion filed February 18, 2004 is withdrawn, and the following is substituted in its place.

David Manuel Soto appeals his conviction and sentence for attempted first degree murder,' killing of a police dog, armed carjacking, and attempted second degree murder of a law enforcement officer. For the reasons which follow, we affirm the convictions, with a correction, but reverse for resentencing.

According to the testimony at trial, Soto pointed a gun at the head of the victim, who was putting gas into his car, and took the car. The victim gave police a description of clothes Soto was wearing and informed them that his car had a device that would shut it down in approximately four blocks.

Officer Wayne Cooper, with his police dog Atlas, responded to a BOLO which described the stolen vehicle. He first noticed the car rolling to a halt, saw Soto exiting the vehicle, and ordered him to stop. Soto continued walking around the vehicle, then started running across the athletic field of a nearby high school. Officer Cooper let Atlas out and pursued Soto, who turned and shot at Atlas and Officer Cooper. Atlas was hit and later died from gunshot wounds.

Soto threw his gun over a fence, then was taken into custody by other officers. Soto’s palm print was found on the interior of the stolen vehicle and bullet fragments retrieved from the dog were found to be consistent with the gun found on the scene.

The jury returned a verdict finding Soto guilty of attempted first degree murder of Officer Cooper, killing of the police dog, armed carjacking, and attempted second degree murder of a law enforcement officer. After determining that the attempted second degree murder charge in count IV was a variant of the count I attempted first degree murder, the trial court orally set aside the attempted second degree murder conviction.

At the sentencing hearing, the state asked the court to sentence Soto to life in prison with a thirty-year mandatory minimum term. Soto then addressed the trial court, complaining of a cover up and that his trial had been unfair. In response the state called Officer Cooper who asked the court to sentence Soto to the maximum sentence allowable, pointing out Soto’s lack of remorse and failure to accept responsibility for his actions. Before pronouncing sentence, the trial court stated:

“Sentencing is probably the most difficult point that any Judge has to do, especially when you are dealing with a twenty-three-year old who for practical purposes does not have a bad record, whose only prior record being a theft of a moped. But when I am faced with the situation of whether or not I give the number of years which means will Mr. Soto eventually get out of jail or give the maximum allowed under the statute, which is life, while Judges do not have crystal balls, I try as much as I can with intuition to look into the heart and sole [sic] of someone.
I do not expect Mr. Soto to have fallen on the floor today and to accept any responsibility. But when I hear him say that this is just a giant cover and that he was unfairly judged, it lets me know in my own gut and intuition that the act that was not just an admiration [sic] and that the attitude expressed by him is such that I would be afraid to let him back in society, realistically.”

(R. 338-39).

The trial court sentenced Soto to life in prison, with a twenty-year mandatory minimum, on count I; five years consecutively on count II; and life imprisonment consecutively, with a ten-year mandatory minimum, on count III.

On appeal, Soto contends his due process rights were violated because in sentencing him the trial judge took into consideration his protestations of innocence. We agree that continued protestations of innocence, and unwillingness to admit guilt should not be factors taken into consideration by a court in sentencing a defendant. See e.g. Aliyev v. State, 835 So.2d 1232 (Fla. 4th DCA 2003); K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001); Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999); and A.S. v. State, 667 So.2d 994 (Fla. 3d DCA 1996). Although Soto’s apparent unwillingness to admit his guilt, as evidenced by his continued protestations of unfairness, may not have been the only or even the principal reason for the sentence imposed by the trial court, we are compelled by the judge’s own statements to conclude that it may have been one of the factors considered. Therefore, we must reverse the case for resentencing by another judge. In addition, we direct that the judgment of conviction be corrected to reflect the trial court’s ruling setting aside the conviction for attempted second degree murder on count IV. Finally, the state correctly concedes that the trial court erred in enhancing the degree of Soto’s conviction on count I to a life felony under Traylor v. State, 785 So.2d 1179 (Fla.2000). We therefore also direct the trial court to reduce the degree of the felony at conviction and to resentence accordingly.

Affirmed in part; reversed in part and remanded.


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    THE HERTZ CORPORATION, Appellant, v. Matthew GLEASON, Appellee.
    No. 4D03-105.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.

      John S. Trimper of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellant.
    John R. Young of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals a new trial order entered after a jury found the plaintiff had not sustained injury as the result of an accident in which the defendant stipulated to liability. The defendant seeks reversal of the order and reinstatement of the jury verdict. Alternatively, the defendant requests that the new trial be limited to damages for orthopedic and soft tissue injuries. We grant the alternative relief requested and reverse and remand the case for entry of an order limiting the new trial to damages related to the plaintiffs orthopedic and soft tissue injuries.

The plaintiff was a back seat passenger in an automobile driven by his sister’s boyfriend and owned by Hertz. The driver lost control of the vehicle, crossing the median and rolling over several times at a high rate of speed. The plaintiff, who was fourteen years old at the time of the accident, did not seek medical treatment for approximately eight hours. He complained of pain in his head, neck, arm, shoulder, and hip at the scene of the accident. At the hospital, however, the plaintiff complained only of left shoulder pain, a bruised left hip, and tenderness of the spine. The doctor diagnosed him with a cervical sprain and contusions of the hip and shoulder.

The plaintiff saw a chiropractor three days after the accident. He chiefly complained of neck, low back and chest pain. At the suggestion of the chiropractor, the plaintiff received a neurological evaluation nineteen days following the accident. He continued to see the chiropractor for several months.

The neurologist noted some reduction in the defendant’s range of motion. The CT scan was unremarkable and an EEG was normal. The neurologist believed there may have been an orthopedic impairment as a result of the accident.

The plaintiff moved with his parents to Virginia. His mother noticed changes in his personality and a decline in his academics. She had him examined by another neurologist. The neurologist opined that the changes in the plaintiffs personality and academic performance were likely attributable to the family’s relocation to Virginia.

The family then relocated to Orlando the next year where a doctor concluded that there was evidence of brain damage in the frontal lobe area and significant executive dysfunction. Two years later, the plaintiff and his parents moved to Utah where he worked at a number of jobs for brief time periods. He was evicted from an apartment for creating disturbances, and arrested for DUI, marijuana and drug paraphernalia possession, and providing false identification.

After his second DUI arrest, his mother consulted a neurophysiologist. That doctor diagnosed traumatic brain injury and opined that the plaintiffs disruptive behavior resulted from that injury.

The plaintiff and his parents moved back to Orlando in 2001, seven years after the accident. During that time, the plaintiff had one job for approximately one week, often slept late or was up early to play baseball, ride a bike or engage in other recreation.

After yet another move in 2002 to Mount Dora, the plaintiff continued to drink and sleep excessively. At the time of trial, the plaintiff lived in Utah with a friend, was unemployed and spent his time playing basketball and working out. He was awaiting the ski season to obtain employment because it would allow him to snowboard for free.

The defense stipulated that the driver of the vehicle was negligent in causing the accident. According to the independent medical exam [IME], the plaintiff had no brain damage or neurological impairment.

At the conclusion of the nine-day trial, the jury was presented with the following question: Was the subject motor vehicle accident a legal cause of damage to the plaintiff Matthew Gleason? The jury answered “no.” The trial court entered a final judgment pursuant to the verdict. The plaintiff filed a motion for a new trial, which the court granted.

An order granting a motion for new trial is reviewed under an abuse of discretion standard. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). The defendant argues that the court improperly sat as a “seventh juror” when it granted the motion for new trial based on its finding that the jury disregarded “undisputed” testimony to the effect that the motor vehicle accident legally caused orthopedic and soft tissue injuries. The plaintiff responds that the undisputed evidence established that he sustained orthopedic and soft tissue injuries as a result of the accident. Thus, the jury’s finding of no injury was contrary to the manifest weight of the evidence, and required a new trial.

The most significantly disputed issue in this case was whether the plaintiff had suffered any neurological damage as a result of the accident. The evidence in this ease sharply conflicted on this issue. However, both plaintiff’s and defendant’s experts agreed that the plaintiff sustained some injury (orthopedic and soft tissue) as a result of the accident.

Section 59.3Í, Florida Statutes (2003) provides:

An appellate court may, in reversing a judgment of a lower court brought before it for review by appeal, by the order of reversal, if the error for which reversal is sought is such as to require a new trial, direct that a new trial be had on all the issues shown by the record or upon a part of such issues only. When a reversal is had, with direction for new trial on a part of the issues, all other issues shall be deemed settled conclusively in favor of the appellee.

The Third District had occasion to rely on this statutory provision to limit an order authorizing a new trial in North Dade Golf, Inc. v. Clarke, 439 So.2d 296 (Fla. 3d DCA 1983). In Clarke, the court affirmed an order granting a new trial, but found an abuse of discretion in allowing a new trial on all issues where the evidence on whether a golf cart accident caused the plaintiffs subsequent heart' attack was in dispute. “A trial court’s discretion in this area is clearly not unbridled, and a trial judge is not authorized to act as a ‘seventh juror’, or to substitute his judgment for that of the jury on disputed questions of fact.” Id. at 298.

Here, the plaintiffs request for damages for closed-head injuries was directly contradicted by the evidence. In short, there was a disputed question of fact, which lies within the province of the jury. However, there was no dispute that the plaintiff had sustained some injury. Therefore, the trial court correctly determined that the verdict was against the manifest weight of the evidence, but should have limited the new trial to damages for orthopedic and soft tissue injuries.

We reverse and remand the case to the trial court for entry of an order limiting the new trial consistent with this opinion.

POLEN, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: MONACO, J.

text:
    COURTESY AUTO GROUP, INC., etc., Appellant, v. Wilma GARCIA, etc., Appellee.
    No. 5D03-3588.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2004.
    Rehearing Denied June 24, 2004.

      George A. Borden and Edward C. Bar-nidge of Williams & Connolly LLP, Washington, DC, and Tracey L. Ellerson of Akerman Senterfitt, Orlando, for Appellant.
    Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee, and J. Gordon Blau of Law Offices of J. Gordon Blau, Altamonte Springs, for Appellee.
   MONACO, J.

This is an appeal from a non-final order certifying one class of plaintiffs in a class action suit under the Florida Motor Vehicle Lease Disclosure Act, in which the appellant, Courtesy Auto Group, Inc., seeks review of the trial court’s order allowing the appellee, Wilma Garcia, to act as the class representative. While there are a number of arguments advanced by Courtesy in support of its position, the only one that requires comment concerns its assertion that the trial court erred in its threshold finding that Ms. Garcia has standing to pursue her claim for the alleged failure of Courtesy to provide her with copies of. the credit application and consumer option plan that she signed in connection with the lease of her automobile. Courtesy posits that neither of these documents implicates the provision of the statute requiring it to provide copies of all documents signed by , a lessee. We disagree, and affirm the order of the trial court.

Section 521.004(2), Florida Statutes (2000), requires that a retail lessor must:

Provide the retail lessee with a copy of each document signed by the retail lessee during the course of the lease transaction.

(emphasis added).

The trial court addressed Courtesy Auto’s arguments and found that section 521.004 encompassed all of the documents that Ms. Garcia signed leading up to the actual execution of the lease, and thus included both the credit application and the consumer option spreadsheet. The court further found that Ms. Garcia had standing to assert the failure of Courtesy Auto to provide her with copies of those documents. Courtesy argues that these documents either contain information provided by the consumer, not to the consumer, or are solely for internal purposes. It may be that Courtesy is correct. That, however, is not the point.

When interpreting a statute and attempting to discern legislative intent, courts must first look at the actual language used in the statute. See Joshua v. City of Gainesville, 768 So.2d 432 (Fla.2000). When the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation and construction. That is to say, a statute must be given its plain and obvious meaning. See Florida Dept. of Children & Family Servs. v. McKim, 869 So.2d 760 (Fla. 1st DCA 2004); Florida Convalescent Ctrs. v. Somberg, 840 So.2d 998 (Fla.2003); McLaughlin v. State, 721 So.2d 1170 (Fla.1998). Therefore, when the statute says “each document signed,” it means “each document signed.” As unambiguous language is not subject to judicial construction, a determination respecting whether to allow the omission of certain documents from the requirement to provide all documents is purely within the discretion of the legislature. See State v. Jett, 626 So.2d 691 (Fla.1993).

Accordingly, we find no error and affirm.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

      . Chapter 521, Florida Statutes (2000).

      . We have jurisdiction pursuant to Rule 9.130(a)(3)(C)(vi), Florida Rules of Appellate Procedure.


author: PER CURIAM.

text:
    Samuel RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1035.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Vasser v. State, 807 So.2d 760 (Fla. 5th DCA 2002); State v. Anton, 700 So.2d 743 (Fla. 2d DCA 1997); Newman v. State, 676 So.2d 40 (Fla. 3d DCA 1996).

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


text:
    Rollie O. LOVETTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2553.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.

      James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Sylvester v. State, 766 So.2d 1223 (Fla. 5th DCA 2000); R.P. v. State, 478 So.2d 1106 (Fla. 3d DCA 1985), rev. denied, 491 So.2d 281 (Fla.1986).

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


text:
    Charles Howard CARR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2705.
    District Court of Appeal of Florida, Fifth District.
    May 25, 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 Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See K.S. v. State, 814 So.2d 1190 (Fla. 5th DCA 2002); Walker v. State, 656 So.2d 950 (Fla. 5th DCA 1995).

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


text:
    Angela DOSAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2715.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

PETERSON, PLEUS and MONACO, JJ., concur.


text:
    Lakesha WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4170.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Ladislao SALAZAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-374.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    Ladislao Salazar, Avon Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bostic v. State, 768 So.2d 534 (Fla. 4th DCA 2000).

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


text:
    Steven FAISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1387.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    Steven Faison, Bushnell, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 643 So.2d 1150 (Fla. 3d DCA 1994).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


author: TAYLOR, J.

text:
    Gorman ROBERTS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4490.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Rehearing Denied July 2, 2004.
    Ellis S. Rubin of the Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Gorman Roberts appeals his conviction for manslaughter in the tragic drowning death of five-year old Jordan Payne in a local canal. He contends that his post-arrest videotaped statement should have been suppressed, because the Miranda warning he received failed to inform him that he had a right to have an attorney present during questioning. As a result, he argues, he did not knowingly and intelligently waive his constitutional rights under Miranda. We agree and reverse.

When the police picked up Roberts and told him that he was being charged with Jordan’s murder, he was taken to the police station for questioning. At the time Roberts was seventeen years old with an IQ of 67. After an unsuccessful attempt to reach Roberts’s guardian by phone, the detective read Roberts his rights from the Broward Sheriffs Office (BSO) rights form. That form reads in pertinent part:

MIRANDA WARNING
BEFORE I ASK YOU ANY QUESTIONS, I WANT TO ADVISE YOU OF YOUR CONSTITUTIONAL RIGHTS.
1. You have the right to remain silent.
2. Anything you say can be used against you in a court of law.
3. You have the right to talk with a lawyer and have a lawyer present before any questioning.
4. If you cannot afford a lawyer, one will be appointed to represent you before any questioning if you wish.

Nowhere does the form advise Roberts of his right to have a lawyer present during questioning.

In the videotaped statement that followed, Roberts said that he, Jordan, and two other young boys were playing wrestling near the canal. Roberts acknowledged touching Jordan on the forehead when he tried to separate him and another boy while they were wrestling, but he denied pushing Jordan into the water. He said that as he was walking back up the canal edge, he heard something hit the water, then saw the little boy moving up and down in the water. Afraid to jump in the lake, he started crying and then fled the scene in a panic.

The defense moved unsuccessfully both before and during the trial to suppress this videotape, arguing, inter alia, that the Miranda warning given prior to the statement was constitutionally defective. Through the testimony of lay and expert witnesses, the state attempted to prove that the defendant, despite his youth and mild retardation, understood his Miranda right to have a lawyer with him during interrogation. However, none of the court-appointed psychologists could render a definitive opinion that the defendant understood this particular right. The only expert who actually interviewed the defendant concerning his understanding of this right testified that the defendant did not understand that he could have an attorney present during questioning. Dr. Shari Bourg-Carter testified that when she met with the defendant, she questioned him about his understanding of the right to counsel. She asked him “when the police have to give you an attorney and whether you have to get one when you are being questioned.” His response was:

[N]o. Only in the courtroom. You can’t have one when you’re questioned because the cops wouldn’t want one. Why not? Because you might not say what they want you to say.

Another psychologist, Dr. Ceros-Living-ston, described the defendant’s low IQ test results over the years, and, though unable to reach any conclusions concerning the defendant’s understanding of his rights, found it plausible that he did not fully understand his right to have an attorney present during questioning by the police.

At the suppression hearing, the trial court took judicial notice of eighty-nine different Miranda rights forms used by other Florida law enforcement agencies. They all contained the warning that the accused is entitled to an attorney during questioning, or words to that effect. Although the court acknowledged that this element was missing in the BSO form, it denied the motion to suppress, finding that the defendant was competent and gave his statement freely and voluntarily without any police coercion.

After the jury returned a guilty verdict on the manslaughter charge, the defendant moved for judgment of acquittal notwithstanding the verdict. The court denied the motion, but noted troubling inconsistencies in the testimony of the two ten-year old state witnesses and commented that its decision was “a very close call.”

The defendant contends that the Miranda warning recited by the police from the BSO rights form was defective in that it failed to advise him that he was entitled to have an attorney present during questioning as well as before questioning. For this reason, he argues, the motion to suppress his post-arrest videotaped statement was improperly denied.

We review de novo the adequacy of Miranda warnings, as a question of law. See C.A.M. v. State, 819 So.2d 802, 804 (Fla. 4th DCA 2001).

In Miranda, the Supreme Court said that the right to have counsel present during an interrogation is indispensable to the protection of the Fifth Amendment privilege against self-incrimination. The Court described the right-to-counsel warning which must be given:

[Wje hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.... As with the [other] warnings ... this warning is an absolute prerequisite to interrogation.

384 U.S. at 471-72, 86 S.Ct. 1602.

The Court, however, pointed out that Miranda warnings need not be given in the exact form described in Miranda. Id. at 490, 86 S.Ct. 1602; see also California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981)(“Quite to the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures.”). In Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989), the Court reiterated that reviewing courts “need not examine Miranda warnings as if construing a will or defining the terms of an easement.” Rather, the inquiry is whether the warning uses equivalent and adequate language that fulfills the substantive requirements of Miranda. Id.

Florida courts have consistently interpreted Miranda as requiring notification that a person in custody has a right to have counsel present not only before interrogation but during interrogation as well. See Ramirez v. State, 739 So.2d 568 (Fla.1999); Sapp v. State, 690 So.2d 581, 583-84 (Fla.1997); Holland v. State, 813 So.2d 1007, 1009 (Fla. 4th DCA 2002); T.S.D. v. State, 741 So.2d 1142 (Fla. 3d DCA 1999); Statewright v. State, 278 So.2d 652 (Fla. 4th DCA 1973); James v. State, 223 So.2d 52 (Fla. 4th DCA 1969).

Similarly, federal courts have recognized that advisement of the right to counsel during questioning is a vital part of the Miranda procedural safeguards. See United States v. Noti, 731 F.2d 610, 614 (9th Cir.1984); United States v. Anthon, 648 F.2d 669 (10th Cir.1981); Atwell v. United States, 398 F.2d 507 (5th Cir.1968); Groshart v. United States, 392 F.2d 172, 175 (9th Cir.1968); Windsor v. United States, 389 F.2d 530 (5th Cir.1968).

Federal courts, however, have reached different conclusions as to the adequacy of the Miranda warnings where, as here, a suspect was advised of the right to consult with counsel before questioning, but not advised of the right to have an attorney present during interrogation. Some courts have held that further express warnings of the right to an attorney during interrogation must be given. See United States v. Bland, 908 F.2d 471 (9th Cir.1990); United States v. Oliver, 505 F.2d 301 (7th Cir.1974); Chambers v. United States, 391 F.2d 455 (5th Cir.1969); United States v. Fox, 403 F.2d 97 (2d Cir.1968); United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969); Pemberton v. Peyton, 288 F.Supp. 920 (E.D.Va.1968); see also Brown v. Crosby, 249 F.Supp.2d 1285, 1302 (S.D.Fla.2003)(noting that advising the suspect of the right to have an attorney present before being asked any questions is not the same as advising him of the undeniable right to have an attorney present during questioning).

Other federal courts have found that additional warnings, expressly referring to the right to an attorney during interrogation, were unnecessary. See Evans v. Swenson, 455 F.2d 291 (8th Cir.1972); United States v. Vanterpool, 394 F.2d 697 (2d Cir.1968); Coyote v. United States, 380 F.2d 305 (10th Cir.1967). These courts have deemed the omission of the warning insignificant, reasoning that the right to counsel during interrogation can be inferred from warnings given as to the right to counsel before interrogation.

In eases where the suspect was informed generally of the right to an attorney, without being told when the attorney could assist, there is a split of authority among the federal courts as to whether this “timeless” warning is constitutionally sufficient. Our court is among those which have ruled that such an ambiguous statement is not constitutionally sufficient. See James v. State, 223 So.2d 52 (Fla. 4th DCA 1969); see also Atwell, 398 F.2d at 510; Groshart, 392 F.2d at 175; Chambers v. United States, 391 F.2d 455, 456 (5th Cir.1968); but see United States v. Frankson, 83 F.3d 79, 82 (4th Cir.1996); United States v. Caldwell, 954 F.2d 496, 502 (8th Cir.1992); United States v. Dizdar, 581 F.2d 1031 (2d Cir.1978); United States v. Adams, 484 F.2d 357, 361-62 (7th Cir.1973); Evans v. Swenson, 455 F.2d at 295-96 (8th Cir.1972); United States v. Lamia, 429 F.2d 373, 376-77 (2d Cir.1970).

Here, the BSO warning does not fail to state altogether when an attorney can be present. Rather, it explicitly states that an attorney can be present before questioning. This use of the “before questioning” warning alone, however, has suggested to at least one court that the suspect was affirmatively misled into believing that the attorney could not be present during questioning itself. See Caldwell, 954 F.2d at 504 (distinguishing United States v. Fox, 403 F.2d 97 (2d Cir.1968)). Perhaps for this reason, courts confronting warnings with just the “before questioning” advice have deemed them constitutionally infirm. See United States v. Bland, 908 F.2d 471 (9th Cir.1990); Noti, 731 F.2d at 615; Fox, 403 F.2d at 100 (2d Cir.1968); Windsor, 389 F.2d at 533 (5th Cir.1968); see also Brown v. Crosby, 249 F. Supp 2d at 1302.

We agree with the defendant that the Miranda warnings given to him were inadequate in failing to inform him that he had a right to have counsel present during interrogation. This inadequacy militated against a finding that the defendant knowingly and intelligently waived his Miranda rights. See Brown, 249 F.Supp.2d at 1291 (discussing that a waiver of Miranda rights is “knowingly and intelligently” made only if the defendant has a full awareness of the nature of the right being abandoned and the consequences of his decision to abandon it).

We reject the state’s argument that there was sufficient evidence upon which the trial court could rely in finding that the defendant understood his Miranda right to have an attorney present during questioning. The state contends that testimony of the state’s psychologists that the defendant was “barely” mentally retarded and familiar with the juvenile justice system, as well as testimony of the defendant’s high school coach and assistant principal that the defendant was “street smart” and appeared to be normal, supported the trial court’s finding that the defendant understood his right to a lawyer. However, as the Supreme Court said in stressing the importance of Miranda warnings:

No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda, 384 U.S. at 471-72, 86 S.Ct. 1602.

The state suggests that another indicator of the defendant’s understanding of his right to have a lawyer present during questioning is the separate “waiver of rights” section of the Miranda form he signed. This form states:

I, Gorman Roberts, have read this statement of my rights or have had it read to me and I understand what my rights are. With these rights in mind I am willing to answer questions without a lawyer present. This waiver of rights is signed of my own free will without any threats or promises having been made to me.

In the state’s view, this acknowledgment was sufficient to clarify any possible confusion as to whether or not an attorney could be present during questioning. We disagree, however, that the signed form, in conjunction with the warnings given, sufficiently conveyed the substance of the Miranda requirements or served to corroborate the defendant’s knowing and intelligent waiver of his rights. The right to appointed counsel during questioning cannot readily be inferred from the waiver form. This form is not the “effective and express explanation” of the right to counsel required by Miranda. Miranda requires a clear, understandable warning from law enforcement officers that conveys all of a defendant’s rights. “Only through such a warning is there ascertainable assurance that the accused was aware of this right.” Miranda, 384 U.S. at 471-72, 86 S.Ct. 1602.

Because the Miranda warnings the defendant received while in custody were inadequate to fully inform him of his constitutional rights, we conclude that the trial court erred in admitting the defendant’s videotaped statement into evidence. Further, we are unable to conclude that this error was harmless beyond a reasonable doubt, given that the bulk of the evidence against defendant was provided by two young witnesses whose credibility was sharply contested at trial. Accordingly, we reverse defendant’s conviction and sentence and remand this cause for a new trial. We affirm as to all other issues raised by the defendant.

REVERSED in part, AFFIRMED in part and REMANDED.

STONE and KLEIN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . One of the issues raised by the defendant in this appeal is the trial court’s denial of his motion to strike the testimony of one the state's main witnesses after the court acknowledged that the witness was "unworthy of belief" and did not appear "to know the difference between truth or fiction."


text:
    Maria Cruz HARBUS, Appellant, v. Randy Barry HARBUS, Appellee.
    No. 4D03-241.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Rehearing Denied July 2, 2004.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Steven L. Winig of Brody, Cohen & Winig, P.A., West Palm Beach, for appellant.
    Michael Dubiner of Dubiner & Wilen-sky, L.L.C, West Palm Beach, for appellee.
   MAY, J.

The former wife appeals a final order of dissolution. She raises four issues. We reverse solely on the issue of the trial court’s imputation of income to the former wife. We affirm in all other respects.

A court’s imputation of income must be supported by competent substantial evidence. Artuso v. Dick, 843 So.2d 942 (Fla. 4th DCA 2003). Pursuant to section 61.30(2)(b), Florida Statutes (2003),

[i]ncome on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community ...

The court is required to set forth the amount and source of the imputed income. Viscito v. Menditto, 644 So.2d 135 (Fla. 4th DCA 1994). If the court fads to do so, the case must be reversed and remanded for specific findings of fact. Artuso, 843 So.2d at 945.

In this case, the wife testified at the temporary relief hearing that she was currently earning a couple of hundred dollars a month selling cosmetics. Previously, she had earned approximately $33,000 annually working for Minolta in Boca Ra-ton and before that $60,000 to $70,000 annually working for Minolta in New Jersey. She had been offered two positions in Boston making approximately $60,000— $70,000, but had no job offers locally.

The trial court stated on the record, “I mean she can get a job. All her testimony is the job offers that she has here if she wants to go up there she can. The job she left paid 79, right?” The court then imputed income of $4,000 a month or $48,000 a year to the former wife. Subsequently, the court awarded child support arrearag-es based upon the income imputation in the temporary relief order.

While the court clearly articulated the amount of income to be imputed, it was an amount unsupported by competent substantial evidence. Based on the testimony, the only local job the former wife ever had paid $33,000 per year. There is no evidence of her occupational qualifications or earnings level in the prevailing job market in the community. The court therefore erred when it imputed income in excess of the amount supported by the record.

We therefore reverse the final judgment and remand the case to the trial court to recalculate the child support arrearage, if any, based upon an imputation of income supported by the record evidence. The judgment is affirmed in all other respects.

REVERSED and REMANDED.

STONE and POLEN, JJ., concur.


author: SAWAYA, C.J.

text:
    GOLDEN PALM HOSPITALITY, INC., Appellant, v. STEARNS BANK NATIONAL ASSOCIATION, et al., Appellees.
    No. 5D02-4018.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      James J. Kearn of James J. Kearn, P.A., Daytona Beach, for Appellant.
    Scott W. Cichon and Robert Taylor Bowling of Cobb & Cole, Daytona Beach, for Appellees.
   SAWAYA, C.J.

Golden Palm Hospitality, Inc. [Golden Palm] appeals the non-final order dismissing its cause of action against Stearns Bank National Association [Stearns]. The trial court held that dismissal was proper because venue necessarily lies within the confines of the state of Minnesota. We reverse.

It is appropriate to dispense with a detailed discussion of the underlying facts because they are not essential to resolution of the issue whether the trial court properly concluded that the forum selection clause mandated dismissal of the Florida case. Suffice it to say that this action emanates from a loan agreement whereby Stearns agreed to finance the construction of a hotel by Golden Palm. When the loan did not materialize in the manner expected, Golden Palm filed a multi-count complaint alleging breach of contract, unjust enrichment, conversion, fraud in the inducement, and civil theft. Stearns moved to dismiss the action based on the following forum selection clause contained within the “Applicable Law” provision of the Construction Loan Agreement executed by Golden Palm:

This Agreement has been delivered to Lender and accepted by Lender in the State of Minnesota. If there is a lawsuit, Borrower agrees upon Lender’s request to submit to the jurisdiction of the courts of STEARNS County, the State of Minnesota. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.

(Emphasis added).

This part of the contract contains both a forum selection provision in the second sentence and a choice of law provision in the third sentence. The promissory note contains a clause with very similar language. Based on this clause and Stearns’ election of Minnesota as the forum state, the trial court entered the order we now review finding that the provisions of the forum selection clause required dismissal of the action.

Our initial determination will be the appropriate standard of review we must apply to resolve the issue before us. Stearns adverts to decisions that apply the abuse of discretion standard, contending that is the standard applicable to the instant case. While that may be the appropriate standard when statutory provisions determine the proper venue, the de novo standard applies when contractual interpretation of a forum selection clause is at issue. Ware Else, Inc. v. Ofstein, 856 So.2d 1079 (Fla. 5th DCA 2003); Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001) (“The interpretation or construction of a contract is a matter of law and an appellate court is not restricted from reaching a construction contrary to that of the trial court.”) (citation omitted), review denied, 828 So.2d 388 (Fla.2002); Dixon v. City of Jacksonville, 774 So.2d 763 (Fla. 1st DCA 2000); Kerr Constr., Inc. v. Peters Contracting, Inc., 767 So.2d 610, 612 n. 2 (Fla. 5th DCA 2000) (“Whether venue is proper in a particular forum is not a matter of judicial discretion, but is a matter determined by law. Thus, the standard of review is de novo.”); Management Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999) (“Florida courts have held that a decision interpreting a contract presents an issue of law that is reviewable by the de novo standard of review.”) (citations omitted). Hence we review the forum selection clause in the instant case de novo. Having determined the appropriate standard of review, the focus of our analysis will be: 1) to decide whether the Florida courts initially determine the validity of the forum selection clause; and 2) if the clause is valid, whether it is enforceable and binding on the parties.

The Florida courts agree that contracting parties have the right to select and agree on a forum in which to resolve future disputes. Intercapital Funding Corp. v. Gisclair, 683 So.2d 530 (Fla. 4th DCA 1996); Derrick & Assocs. Pathology, P.A. v. Kuehl, 617 So.2d 866 (Fla. 5th DCA 1993); see also Maritime Ltd. P’ship v. Greenman Adver. Assocs., Inc., 455 So.2d 1121 (Fla. 4th DCA 1984) (holding that parties may agree to forum selection clauses as long as there is no overreaching, contravention of public policy, and the forum is not too remote). This right is premised on the generally accepted notion that “ ‘forum selection clauses provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation.’ ” Manrique v. Fabbri, 493 So.2d 437, 439 (Fla.1986) (footnote omitted) (quoting Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W.2d 886, 889 (Minn.1982)). Hence, as a general rule, whether the forum selection clause is valid and enforceable is a procedural issue that must be determined in accordance with the law of the forum state rather than the law of the state designated in the agreement. Kerr, 767 So.2d at 612 (“The plurality of cases resolving issues of venue and the validity of forum selection clauses have regarded such issues as procedural and have applied the law of the forum rather than the law selected by the parties.”) (citation omitted); see also Shoppes Ltd. P’ship v. Conn, 829 So.2d 356 (Fla. 5th DCA 2002).

However, as we have previously indicated, the contract in the instant case contains a choice of law provision that requires the contract to be “governed by and construed in accordance with the laws of the State of Minnesota.” This provision raises the issue whether the choice of law provision forms the basis for an exception to the general rule just discussed. The Florida courts adhere to the view that the general rule prevails despite a choice of law provision in the contract. See Fendi S.r.l. v. Condotti Shops, Inc., 754 So.2d 755 (Fla. 3d DCA 2000); see also Manrique (applying the law of the forum, despite a choice of law provision, in determining the validity of a forum selection clause). Thus, it is generally appropriate for a court in Florida, as a procedural issue, to determine the validity and enforceability of a forum selection clause despite a choice of law provision in the agreement.

The prevailing view is that forum selection clauses are presumptively valid. Decisions from this court, in their outcome and pronouncements, hew closely to this view. See, e.g., Ware Else, Inc.; Prestige Rent-A-Car, Inc. v. Advantage Car Rental & Sales, Inc., 656 So.2d 541, 544 (Fla. 5th DCA 1995). There are exceptions, however, such as: (1) the forum selection clause is tainted by fraud; (2) the clause is a product of overwhelming bargaining power of one party; and (3) the clause is the sole basis upon which to base jurisdiction. Bombardier; see also M.G.J. Indus., Inc. v. Greyhound Fin. Corp., 826 F.Supp. 430 (M.D.Fla.1993) (holding that a clause that is the product of coercion is unenforceable); Friedman v. American Guardian Warranty Servs., Inc., 837 So.2d 1165 (Fla. 4th DCA 2003). More specifically, the clause itself must be the product of fraud. Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); Holder v. Burger King Corp., 576 So.2d 973 (Fla. 2d DCA 1991); First Pac. Corp. v. Sociedade de Empreendimentos e Construcoes, Ltda., 566 So.2d 3 (Fla. 3d DCA 1990) (holding that the fraud, which renders the forum selection clause unenforceable, must relate to the clause’s inclusion in the contract). Of these, Golden Palm claims that fraud in the inducement is the exception that renders the clause in the instant case invalid.

When it claims that a forum selection clause is invalid based on fraud, the party must show that the clause itself is the product of the fraud or that the fraud caused the inclusion of the clause in the agreement. Bombardier; Holder, 576 So.2d at 974; First Pac. Corp., 566 So.2d at 4. Golden Palm alleges that Stearns induced it to sign by representing in the proposal letter that: (1) only monthly interest would be due during the 12-month construction phase; (2) monthly principal and interest based on a 20-year amortization would be paid in the permanent financing phase; (3) payment of a $39,200 guaranty fee implied guaranteed financing; (4) the outline of prepayment premiums implied guaranteed financing longer than the 12-month initial period; and (5) Stearns promised to provide financing should the USDA guaranteed loan fall through. These allegations do not show that the forum selection clause was part of Stearns’ scheme to defraud, that the forum selection clause was itself the product of fraud, or that the fraud related to the inclusion of the clause in the contract. Because Golden Palm failed to plead fraudulent conduct related to the forum selection clause per se, we are unable to accede to its request that we reverse the order of dismissal based on the invalidity of the clause. Golden Palm’s fraud claim will have to be litigated as the cause of action proceeds in the proper forum so that a meaningful evidentiary hearing can be conducted to resolve the issue. See Holder, 576 So.2d at 974.

Since Golden Palm has failed to show that the forum selection clause is invalid, we must next decide whether the clause is enforceable and binding on the parties to make Minnesota the proper forum for the underlying cause of action. This necessarily depends on whether the clause is permissive or mandatory. See Shoppes Ltd.; Aqua Sun Mgmt, Inc. v. Divi Time Ltd., 797 So.2d 24, 24-25 (Fla. 5th DCA 2001) (“As a general principle, a trial court must honor a mandatory forum selection clause in a contract in the absence of a showing that the clause is unreasonable or unjust.”) (citing Management Computer Controls); see also Greenstreet Mgmt., Inc. v. Barker, 833 So.2d 183 (Fla. 5th DCA 2002); Operadora Seryna, S.A. de C.V. v. Banco Bilbao Vizcaya-Mexico, S.A., 762 So.2d 595 (Fla. 5th DCA 2000). “Mandatory jurisdiction clauses in contracts ... require that a particular forum be the exclusive jurisdiction for litigation concerning the contract. ...” Shoppes Ltd., 829 So.2d at 357-58. “As a general principle, a trial court must honor a mandatory forum selection clause in a contract in the absence of a showing that the clause is unreasonable or unjust.” Aqua Sun, 797 So.2d at 24-25 (citation omitted); Management Computer Controls, 743 So.2d at 631 (citing Manrique; Haws & Garrett Gen. Contractors, Inc. of Fort Worth v. Panhandle Custom Decorators & Supply, Inc., 500 So.2d 204 (Fla. 1st DCA 1986)). “[P]ermissive forum clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in other forums.” Shoppes Ltd., 829 So.2d at 358. Hence, “[a] permissive forum selection clause may provide an alternative to the statutory choices of venue but it does not require the plaintiff to file the suit in the forum referred to in the agreement.” Management Computer Controls, 743 So.2d at 631; see also Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273 (Fla.1987); Shoppes Ltd.

Recognizing the clear distinctions between mandatory and permissive forum selection clauses, this court delineated a general test to determine which type of clause is contained in a written instrument. Under this test, the court must examine the language of the clause for words of exclusivity. Absent such language, the clause will be considered permissive. Shoppes Ltd., 829 So.2d at 358 (holding that “a classic permissive forum selection clause doing nothing more than consenting to jurisdiction ... but not excluding jurisdiction in another forum” is not mandatory); see also World Vacation Travel, S.A., de C.V. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (“[A]ny clause which submits parties to the laws in force and the competent courts of a specific forum and simultaneously waives any other territorial jurisdiction can only be deemed mandatory.”) (citation omitted), review denied, 821 So.2d 292 (Fla.2002); Copacabana Records, Inc. v. WEA Latina, Inc., 791 So.2d 1179 (Fla. 3d DCA 2001); Management Computer Controls; Sanwa Bank, Ltd. v. Kato, 734 So.2d 557 (Fla. 5th DCA 1999).

The essential provision of the forum selection clause in the instant case states that “Borrower agrees upon Lender’s request to submit to the jurisdiction of the courts of STEARNS County, the State of Minnesota.” Precedent from the Florida courts and our analysis of this clause lead us to the conclusion that it is permissive. In Granados Quinones, a Panamanian banking institution brought action concerning certain loans against Guatemalan citizens living in Florida. The Florida Supreme Court held that the forum selection clause in the agreement that designated Panama and Guatemala as the proper venue was permissive rather than mandatory. The clause provided in relevant part that

[i]n any of the cases wherein the contract may be terminated or at the end of the term, the Creditor [Paris Bank] may choose to take legal proceedings to the competent Courts of the City of Guatemala, Department of Guatemala, Republic of Guatemala, or to the competent Courts of Panama City, Republic of Panama. If legal proceedings are entered in the City of Guatemala, the legal action shall be carried out as established by the Codigo Procesal Civil y Mercan-til of Guatemala.

Id. at 274 (emphases added). We contrast the permissive clause in Granados Quinones with the mandatory clause analyzed by the court in Brooker, wherein timeshare purchasers sued the seller for breach of their timeshare agreement. The seller moved to dismiss for improper venue because of a forum selection clause in the agreement, which provided:

In case of any controversy or dispute in the interpretation of this agreement, both parties agree and accept to be subjected to the jurisdiction and competence of the Administrative Authorities and Courts of the city of Cancún, Municipality of Benito Juarez, in the State of Quintana Roo, Mexico, and the Federal Consumer Office, forsaking any other jurisdiction which either party may claim by virtue of its residency.

Brooker, 799 So.2d at 411 (emphases added).

The difference between the clauses at issue in Granados Quinones and Brooker is illuminating. In Granados Quinones, the agreement allowed for a one-sided choice in favor of the lender. The clause made no mention of the citizens’ right to choose a forum in the event legal proceedings were initiated. The clause in Brook-er, on the other hand, is palpably distinguishable. One immediately detectable difference lies in the wording: “both parties agree ... forsaking any other jurisdiction which either party may claim by virtue of its residency.” The clause in Brooker is clearly mandatory because, unlike the clause in Quinones, it contains the “words of exclusivity” required by this court in Shoppes, Ltd.

The clause in the instant case is similar to the permissive clause in Granados Quinones in that it too lacks the requisite words of exclusivity. Moreover, noticeably absent from both clauses is the terminology “shall,” which is indicative of a mandatory provision rather than one that is permissive. See Granados Quinones; Shoppes, Ltd. Finally, like the clause in Granados Quinones, the clause in the instant case states that the venue selection occurs at “Lender’s request,” the implication being that should the lender not so request, the case may be heard in another appropriate venue.

We conclude that the forum selection clause in the instant case is permissive and, therefore, allows but does not require that the cause of action be brought in Minnesota. Accordingly, the trial court erred in citing the forum selection provision as a reason for dismissing for improper venue. In this circumstance, it is proper for us to reverse and remand this case to the trial court for further proceedings. See Shoppes, Ltd.; see also Sanwa Bank.

REVERSED AND REMANDED.

PALMER and MONACO, JJ„ concur.

      . See Carr v. Stetson, 741 So.2d 567 (Fla. 4th DCA 1999); Intercapital Funding Corp. v. Gisclair, 683 So.2d 530, 532 (Fla. 4th DCA 1996) ("A plaintiff has 'the option of venue selection, and as long as that selection is one of the statutory alternatives, it should not be disturbed.’ ”) (quoting Oliver v. Severance, 542 So.2d 408, 409 (Fla. 1st DCA 1989)).

        . See Friedman v. American Guardian Warranty Servs., Inc., 837 So.2d 1165 (Fla. 4th DCA 2003); Thompson v. Keysway Inv., Inc., 818 So.2d 603 (Fla. 4th DCA 2002); Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001), review denied, 828 So.2d 388 (Fla.2002); America Online, Inc. v. Booker, 781 So.2d 423, 424 (Fla. 3d DCA 2001) ("Contractual forum selection provisions are presumptively valid and generally enforceable.”) (citations omitted); see also Benefit Ass'n Int’l, Inc. v. Mount Sinai Comprehensive Cancer Ctr., 816 So.2d 164, 168 (Fla. 3d DCA 2002) ("Forum selection clauses, such as the one here, are presumptively valid and should be enforced, 'unless [the resisting party] could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.’ ") (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)); Tuttle’s Design-Build, Inc. v. Florida Fancy, Inc., 604 So.2d 873, 874 (Fla. 2d DCA 1992) (holding that forum selection clauses are "prima facie valid”).


text:
    John Wesley THADEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3341.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Therrien v. State, 859 So.2d 585, 587 (Fla. 1st DCA) (rejecting appellant’s argument that section 775.21, Florida Statutes (2000), violated his right to procedural due process, because it did not require a hearing to determine whether he posed a danger to the public), review ‘pending, No. SC03-2219 (Fla. Dec. 18, 2003). Accord Glenn v. State, 861 So.2d 1289 (Fla. 5th DCA 2004); Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003). We certify conflict with Espindola v. State, 855 So.2d 1281, 1290 (Fla. 3d DCA 2003).

AFFIRMED.

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


author: STONE, J.

text:
    Michael A. GLICK, Appellant, v. Vivian M. GLICK, Appellee.
    No. 4D03-2961.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Michael A. Glick, Aventura, pro se.
    No appearance for appellee.
   STONE, J.

We reverse the July 1, 2003 written order holding Michael Glick, the former husband, in contempt of court. Although the written order is based on a May 30, 2003 hearing, it fails to reflect the court’s oral pronouncements at that hearing.

During the Glicks’ divorce, the trial court entered an agreed order awarding the former husband exclusive use of the parties’ condominium and ordering the former husband to pay certain expenses including the electric bill. Subsequently, the trial court ordered the condominium sold, and the former husband vacated the condominium. The anticipated sale, however, was not completed.

Thereafter, the former wife filed an emergency motion for contempt. At a May 15, 2003 hearing, the trial court found as follows:

I’ll find Mr. Glick in contempt of court. I find that he had received disbursements, some of which was for the sole purpose of keeping the condominium operational for the purpose of selling it.
I find that keeping the electricity on in an empty condominium is an absolute minimal expense, and in light of the disbursements he’s received, he’s willfully refused to maintain the electric.
I’ll impose a period of incarceration of 30 days. I’ll suspend the imposition of that incarceration until May 30th at 8:00 a.m. I’ll set this matter for the defendant to surrender himself to the custody of the Palm Beach County Sheriffs Office here in this courtroom May 30th 8:00 a.m. And at that time, I’ll verify if the electricity and the condo has otherwise been put into a salable condition.

Thereafter, the judge asked whether the former wife’s attorney could draft a proposed order, and the following exchange took place:

MS. MYATT [FORMER WIFE’S COUNSEL]: Yes, I will, Judge. Can I just ask for one clarification?
THE COURT: Yes.
MS. MYATT: Just so that there’s no dispute about “salable condition”, I understand you are keeping the electricity on. What about insurance on the place? I’m concerned that someone will get hurt on the premises and sue these folks and they will lose the condo for that.
THE COURT: The reason for my imposition of contempt is the only credible evidence is with regard to the electricity.... [Everything else was hearsay with regard to the other matters. So at that time, I’m going to look specifically toward the insurance. But if the place is not other ways [sic] in salable condition, I’ll leave that to another motion for contempt.

A written order was entered on May 23, 2003, which recited the court’s ruling finding the former husband in contempt for failing to keep the electricity on in the vacant condominium.

At a subsequent hearing held on May 30, 2003, the former wife offered testimony that, because there was no insurance on the marital condo, the realtor could not show the property. After the trial court confirmed that the electricity had been restored in the condo, the following took place:

COURT:.... The order with regard to contempt says that the property shall be — that Mr. Glick is in contempt for failing to maintain the property in a salable condition, to wit, specifically the electricity had been turned off. Is the electricity on?
MR. GLICK: Yes, sir, and notice was filed with the Court on the 16th.
MR. MYATT: It is, Your Honor.
THE COURT: Okay. I also find that having the thing — having the condo insured is an essential component of getting it sold. However, based upon what I’ve heard, I don’t think it affects in technical sense with the necessary specificity of my order — it’s still salable but not really. And so before I stick you in jail, Mr. Glick, the rules require me to give you specific notice as to what you have to do. I think that you have complied with the letter of the order but not exactly the spirit of the order, so I’m going to — I’m going to find that you satisfied the letter of this order, so there’s no contempt and I’ll set aside that matter. However, I’m not going to let you off the hook. I’m going to order that the parties now insure the property, specifically Mr. Glick pay for the cost of insuring the property and complete anything else required of Coldwell Banker or the realtor, whoever it might be right now its Coldwell, so that the property can be shown and the property could be marketed and properly could be marketed and the property could be sold.
* * *
THE COURT:.... I’m going to reset this matter for one week from today. I’m ordering you to insure the property to Coldwell’s satisfaction. [The Coldwell realtor] said minimal amount of insurance, I don’t know what that means, but I’m giving you a week to get it taken care of. If it’s not taken care of....

Toward the end of the hearing, the following exchange took place:

THE COURT:....[W]hat I’m doing today is on the strength of the ... May 23rd order, I don’t think that — I don’t think that there’s enough specificity [in] this order to have adequately put you on notice to hold you in contempt. So I am not holding you — I am not — I am setting aside the requirement that you go to jail, as I previously indicated on that order. I will be entering an order shortly with regard to requiring you to come into compliance with the insurance requirement of Coldwell Banker and to do what else is necessary to make the property — to get it on the market and for them, Coldwell, to be able to comply with the contract that you’ve entered into with them. Miss Myatt, if you’ll prepare an order for me?
MS. MYATT: Can we just specify that the way it will be taken care of is that Mr. Glick provides me proof of insurance?
THE COURT: Correct.

The written order on the May 30th hearing was entered on July 1, 2003. That order, contrary to the court’s oral ruling, found the former husband in contempt for failing to keep the condo insured.

The written order also stated:

4. Husband is hereby sentenced to incarceration in the Palm Beach County jail for a period of thirty (30) days. This is suspended until June 6, 2003 at 8 a.m. Husband shall appear at that time to surrender to the Palm Beach Sheriffs Office.

As a purge, the former husband could pay for and secure insurance for the condo.

Although it appears that there may have been an intervening hearing on June 6, 2003, no transcript or order arising out of that hearing appears in the record.

A trial court’s oral pronouncement must control over a later written order. E.g. Byrd v. State, 853 So.2d 1103, 1105 (Fla. 4th DCA 2003). The written July 1st order does not accurately reflect the May 30th record.

At the May 30th hearing, the trial court made several oral pronouncements which are not reflected in the July 1, 2003 order, including: (1) vacating its threat of incarceration in the May 23, 2003 order, and (2) finding no contempt concerning the need for the condo to be insured, where there was no specific underlying order to do so.

In order for the trial court to find the former husband in contempt, the former wife was required to show that a prior court order directed the former husband to perform and that he failed to comply with the order. See generally Bowen v. Bowen, 471 So.2d 1274, 1280 (Fla.1985)(holding the movant must show that a prior court order directed the party to pay the support or alimony and that the party in default has failed to make the ordered payments).

Additionally, Florida Rule of Family Law Rule of Procedure 12.615(d)(1) requires the court to enter an order containing a recital of facts finding the alleged contemnor to be in contempt, that a prior order was entered, that the contemnor failed to comply with the order, that the contemnor had the present ability to comply, and that the contemnor willfully failed to comply with the prior court order. See generally Cleveland v. Cleveland, 841 So.2d 648, 650 (Fla. 4th DCA 2003).

Therefore, we reverse the July 1, 2003 contempt order and remand for further proceedings.

The former husband also seeks relief as to a May 23, 2003 order. As to that order, we vacate our earlier order of dismissal and affirm the trial court order denying rehearing.

STEVENSON and HAZOURI, JJ., concur.

      . We note that we do not address any question as to whether contempt is an available remedy to enforce the former husband’s failures to act to facilitate the sale, as this issue has not been raised on appeal. See Register v. Register, 617 So.2d 820, 821 (Fla. 1st DCA 1993)(holding that former husband could not be jailed for contempt for the failure to make timely payments, pursuant to a stipulation and property settlement agreement); Rnorr v. Knorr, 751 So.2d 64, 66 (Fla. 2d DCA 1999)(holding that former husband could not be threatened with incarceration for contempt of court for failure to pay nursing home and housekeeping bills). See also Schminkey v. Schminkey, 400 So.2d 121, 122 (Fla. 4th DCA 1981)(holding that requirement to repay loan was not alimony and may not be enforced through contempt since our constitution prohibits imprisonment for debt.)


text:
    Leaurenza EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0154.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Leaurenza Edwards, pro se, petitioner.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner’s response to this court’s order to show cause why the appeal should not be dismissed because the notice of appeal appeared not to be timely filed is treated as a petition for belated appeal, and this court’s records shall so reflect. The petition for belated appeal is denied. Petitioner’s pending motions for appointment of counsel and for oral argument are also denied.

PETITION DENIED.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Ungelo STEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1546.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Ungelo Steen, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

DISMISSED.

BOOTH, POLSTON and HAWKES, JJ., concur.


author: FULMER, Judge.

text:
    Phillip DUFFY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4136.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.
   FULMER, Judge.

Phillip Duffy appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 8.800(a). We reverse and remand for resentencing.

Duffy was charged by information with one count of capital sexual battery, occurring between October 2, 1998, and October 1, 1995. He was found guilty as charged by a jury on April 24, 2001. In his motion, Duffy claimed that his sentence for capital sexual battery was illegal because the court imposed a life sentence without imposing the mandatory minimum twenty-five years with eligibility for parole, as required by section 775.082(1), Florida Statutes (1991). Duffy cites to the 1991 statutes and erroneously states that the time frame alleged in the information commenced in 1992 instead of 1993. This error is of no significance because section 775.082(1) remained unchanged in 1993. In 1995, section 775.082 was amended to eliminate the possibility of parole for capital crimes that do not result in punishment by death. Ch. 95-294, § 4, Laws of Fla. Under the rule of lenity, Duffy was entitled to be sentenced under the 1993 version of the statute because it was the more lenient. See Cairl v. State, 833 So.2d 312 (Fla. 2d DCA 2003); Gilbert v. State, 680 So.2d 1132 (Fla. 3d DCA 1996).

In its order, the trial court denied Duffy’s motion “based upon the contents of the State’s Response.” In its response, the State acknowledged that Duffy correctly quoted the provisions of section 775.082(1), but asserted that the “second part of the statute which reads, ‘shall be required to serve no less than 25 years before becoming eligible for parole,’ does not set a cap on the amount of time a defendant may serve under a life sentence, rather it simply establishes a floor.”

The trial court erred by adopting the State’s interpretation of section 775.082(1). The trial court was required to impose the life sentence mandated by section 775.082(1), Florida Statutes (1993), as well as the provision for parole eligibility after serving no less than twenty-five years. See Buford v. State, 403 So.2d 943, 954 (Fla.1981) (holding that punishment of life imprisonment with a requirement that defendant serve no less than twenty-five years before becoming eligible for parole is an automatic sentence for capital sexual battery and the court has no discretion); Johnson v. State, 679 So.2d 9 (Fla. 4th DCA 1996) (reversing a life sentence without the possibility of parole for capital sexual battery as in excess of that authorized by the legislature).

We therefore reverse and remand for Duffy’s sentence to be corrected to reflect his eligibility for parole after completion of the twenty-five year minimum mandatory term.

Reversed and remanded for resentenc-ing.

CASANUEVA and WALLACE, JJ., Concur.


text:
    E.I. DUPONT DE NEMOURS & CO., INC., etc., et al., Appellants, v. SUPER HELECHOS, S.A., etc., et al., Appellees.
    Nos. 3D02-1640, 3D02-1642, 3D02-1648, 3D03-1815, 3D03-1830, 3D03-1832.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Shook, Hardy & Bacon and Kathleen M. O’Connor and Sergio E. Pagliery and Daniel B. Rogers and Thomas M. Sherouse and Todd L. Wallen and Briana M. Lundy, Miami, and Jane Kreusler-Walsh (West Palm Beach), for appellants.
    Holland & Hart and Craig M.J. Allely; Elizabeth K. Russo, Miami, for appellees.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

E.I. DuPont de Nemours & Company, Inc. and Leon J. DeLeon seek reversal of the trial court’s order denying their Motions to Dismiss on the Ground of Forum Non Conveniens. Finding that the trial court did not abuse its discretion in denying the motion, we affirm the order. Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111 (Fla. 3d DCA)(decision to grant or deny a forum non conveniens motion for dismissal rests in the sound discretion of the trial court), rev. denied, 828 So.2d 386 (Fla.2002).

Affirmed.


author: WARNER, J.

text:
    Felicia VAN ASTEN f/k/a Felicia Costa, Appellant, v. Stephen COSTA, Appellee.
    No. 4D03-4141.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for appellant.
    Kevin D. Wilkinson of Kevin D. Wilkinson, P.A., Wellington, for appellee.
   WARNER, J.

The former wife appeals an order denying her petition for modification for relocation of the parties’ children from their residence in Palm Beach County to Seminole County, Florida, where the former wife’s new husband obtained employment after his Palm Beach County employer went out of business. The court found that the relocation would not benefit the children or be in their best interest and denied the petition. We affirm, concluding that the court did not abuse its discretion.

Although the former wife had a compelling reason to relocate because her new husband had lost his job and had found one in a different area of the state, the evidence also showed that the substitute visitation would be inadequate to foster the same sort of continuing relationship between the former husband and the children that he enjoyed. Moreover, the children would lose contact with their paternal relatives who provided care, which the court found was extremely important in the children’s lives.

The trial court considered each factor under section 61.13(2)(d), Florida Statutes (2002), and there is sufficient competent evidence to support the findings. See Harris v. Migliore, 789 So.2d 477 (Fla. 4th DCA 2001) (denying relocation despite increased salary and benefits to former wife’s new husband where those benefits did not outweigh detriment to father/child relationship); Flint v. Fortson, 744 So.2d 1217 (Fla. 4th DCA 1999) (denying relocation where it would so drastically curtail the father’s active, ongoing participation in his daughters’ lives that, in conjunction with other factors, the move was not in the best interest of the children); Flannery v. Crowe, 720 So.2d 308 (Fla. 4th DCA 1998) (denying former wife’s relocation where new husband was transferred to Sebring and substitute visitation was inadequate to foster continuing meaningful relationship between child and father, and child’s best interests were not served by moving).

Relocation cases always involve a considerable exercise of discretion in the weighing and evaluation of the statutory factors. Here, the court ruling was within the bounds of that discretion, despite the hardship that this may pose to the former wife.

The former wife also complains that the court ruled without hearing all of the evidence. However, the court ruled after hearing all of the former wife’s evidence. Unlike Haskin v. Haskin, 677 So.2d 376 (Fla. 4th DCA 1996), the court here did not reject the wife’s evidence or rule on issues of credibility. Instead, it found that with all of the evidence taken in the light most favorable to the wife, the court still would not permit relocation given the effect on the children and the husband. The former wife was not denied a full and fair opportunity to present her case.

Affirmed.

KLEIN and GROSS, JJ., concur.