text:
    Valerie Ames HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2456.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Valerie Holland, challenges her sentence on welfare fraud, entered into pursuant' to a negotiated plea. As a condition of the plea, she stipulated to her ability to pay restitution and agreed to give up the defense of inability to pay if a violation for nonpayment was filed. We hold that the condition was illegal, and the sentence must be reversed.

Pursuant to the negotiated plea, the trial court withheld adjudication of Holland’s guilt, placed her on probation, and set the amount and terms of restitution. After the notice of appeal was filed, Holland filed a Florida Rule of Criminal Procedure 3.800(b) motion to correct an illegal sentence. That motion is deemed denied as a result of the trial court’s failure to rule on it within sixty days of filing. See Fla. R.Crim. P. 3.800(b)(2). The filing of the motion preserved the issue of sentence illegality for consideration on appeal.

This case is controlled by Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994), in which the court deemed illegal a provision in a sentence whereby the defendant waived his right to contest his ability to pay restitution, disapproving of our decision in Stephens v. State, 614 So.2d 19 (Fla. 4th DCA 1993). Stephens had been charged with grand theft. As part of the plea agreement leading to his sentence, he agreed to make restitution to the victini on a schedule of payments. When he failed to make the payments, his probation officer filed a violation. At the hearing on the violation, the state offered a plea that included county jail time and probation. See Stephens, 614 So.2d at 20. The trial court conditioned its acceptance of the plea on Stephens’s specific agreement to waive his right to contest his inability to pay restitution upon any violation. Stephens waived that right, the court sentenced him accordingly, and Stephens then appealed. We held, consistent with our prior opinion in Brushingham v. State, 460 So.2d 523 (Fla. 4th DCA 1984), that an agreement whereby the defendant knowingly waives his right to contest his ability to pay as part of a negotiated plea agreement was not void against public policy. Id. The supreme court took jurisdiction of the case and disagreed, holding that

before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so. We understand the instant trial court’s frustration at having Stephens abuse the lenient treatment given him at his original sentencing. The scheme Stephens agreed to at his second sentencing, however, was illegal and he must be resen-tenced.

Stephens, 630 So.2d at 1091 (emphasis added).

Although the state contends that. this appeal of Holland’s sentence is premature, either because no violation has occurred to trigger the waiver of her defense to restitution or that she must first seek to withdraw her plea, Stephens holds to the contrary. There, the court considered the illegality of the condition on direct appeal of the sentence in which the waiver condition was imposed. See Stephens, 630 So.2d at 1091. It did not require that before the issue was ripe for review the defendant would have to actually violate probation based upon failure to pay restitution, be denied his right to contest his inability to pay, and then be sentenced for the violation. According to the supreme court, the condition itself was illegal, requiring resentencing.

We have subsequently applied Stephens in Dirico v. State, 728 So.2d 763 (Fla. 4th DCA 1999), where a defendant contested a similar condition of probation, not on direct appeal, but after her probation was revoked for failure to make restitution payments. Although in Dirico we erroneously recited the facts of Stephens and attempted to make a distinction not present in Stephens between a plea where the defendant suggested the condition as opposed to a plea where the trial court suggested it, we nevertheless correctly concluded that the' condition waiving the defendant’s right to present evidence of her present inability to pay was illegal and reversed. Id. at 766-67. The same result applies here.

Consistent with Stephens, we reverse and remand for further proceedings. The sentencing scheme was illegal. On remand, because of the illegality of the condition upon which both parties and the trial court accepted the plea, and the lenient sentence imposed, the state and the trial court each should have the opportunity to determine whether to accept or agree to the plea without the waiver condition. See Barrett v. State, 622 So.2d 1371, 1372 (Fla. 4th DCA 1993).

KLEIN and GROSS, JJ., concur.

      . We stated that the trial court sentenced Stephens according to the agreement containing the waiver and then Stephens violated his probation, causing it to be revoked. Dirico, 728 So.2d at 765. In fact, Stephens appealed the sentence imposing the condition, not a revocation. See Stephens, 614 So.2d at 20.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arthur KRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4803.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Whey, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

During jury deliberations, the jury requested a magnifying glass. Through the bailiff, the judge informed the jury that one was not available. However, neither the state nor the defendant were informed of the jury’s request. Because this was a communication outside the express notice requirements of Florida Rule of Criminal Procedure 3.410, we analyze it under the harmless error standard. Williams v. State, 488 So.2d 62, 64 (Fla.1986); Key v. State, 760 So.2d 278, 278-79 (Fla. 4th DCA 2000). Using that standard, we affirm.

WARNER, SHAHOOD and GROSS, JJ., concur.


author: SHAHOOD, J.

text:
    L & L DOC’S, L.L.C., a Florida Limited Liability Company, Heidi Leuders and Mario Latte, Appellants, v. FLORIDA DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, a political subdivision of the State of Florida, and Florida Department of Revenue, a political subdivision of the State of Florida, and Carlbob, Inc., a Florida corporation, Appellees.
    No. 4D03-296.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Keith T. Grumer and Paul J. Milberg of Grumer & Levin, P.A., Fort Lauderdale, for appellants.
    Glennys Ortega Rubin and Maria E. Abate of Colodny, Fass, Talenfeld, Karlin-sky & Abate, P.A., Fort Lauderdale, for appellee Carlbob, Inc., a Florida corporation.
   SHAHOOD, J.

This case involves the purchase of a restaurant and bar business. After the buyers defaulted on the mortgage, the seller. filed a foreclosure action. The trial court entered summary judgment in favor of the seller. ,We affirm. .

Buyers, Heidi Leuders (“Leuders”) and Mario Latte (“Latte”) (collectively “buyers”) formed L & L corporation and purchased a restaurant/bar business from Carlbob, Inc. (“Carlbob” or “seller”). They executed a promissory note in favor of seller, as well as a security agreement, UCC-1, and Liquor- License Lien. An Inventory/- Equipment List, approved and signed by buyers and seller, was incorporated into the Security Agreement and the Bill of Sale. The list did not include certain slot machines which were in the restaurant at the time of the sale and are the basis of this appeal.

A few months after purchasing the restaurant, Latte was arrested and charged by the City of Fort Lauderdale with engaging in gambling. The buyers subsequently defaulted" on the note by failing to make the required payments, and did not cure the default. - As a result, "seller filed suit. Buyers answered the complaint, raising the affirmative defenses of setoff, unclean hands/estoppel," and fraud in the inducement. The thrust of their defenses was that seller fraudulently misrepresented material facts relating to the conditions of the business and premises. Specifically, buyers asserted that (1) seller had represented that the slot machines on the premises were a valid source of revenue when he knew that .gambling was illegal; (2) seller had misrepresented the condition of the premises and had failed to maintain the roof, air conditioning, oven and- kitchen; (3) seller.had concealed the fact that he had- obtained wine and liquor from other sources and illegally refilled wine and liquor bottles in order to avoid sales and liquor taxes; and (4) seller had misrepresented to buyers that the business had been inspected and that there was a valid certificate of inspection. Buyers also counterclaimed for fraud in the inducement, indemnification, setoff, and recision.

Seller moved for summary judgment. Carl Dressel (“Dressel”), president of Carlbob, submitted an affidavit stating that he sold the assets of Doc’s Saloon to buyers in exchange for a promissory note in the amount of $125,000. The note was secured by a security agreement and liquor license lien.

In support of the motion, seller also submitted the depositions of Leuders, Latte, Dressel, and George Ivan (“Ivan”), the real estate broker. In her deposition, Leuders stated that on the day she and Latte went to the bar to take inventory, the broker informed them .that the slot machines, along with the cigarette machine and vending machines, did not belong to the bar but were placed there with the agreement that the owner would receive a commission on sales from the machines. Leuders, a recent immigrant from Germany, claimed that she did not understand what she was signing at closing and did not have an interpreter. She trusted the broker and felt that Dressel was an honest man.

In his deposition, Latte testified to having been in the bar on prior occasions and having seen people openly playing the video slot machines. He observed that, when the patrons won, they would receive a ticket from the machine and give it to the bartender in exchange for money. Latte knew 'that the slot machines had stickers bearing the name of a third party, but claimed he did not know that they were owned by this third party and were not property of the bar. Nevertheless, he understood that the bar would get 75% of the earnings and the- third party would get 25%. According to Latte, the seller had told Latte not to disburse the cash at' the same time the ticket was received, but to put the money in an envelope and disburse it the following day. Despite this instruction, Latte claimed he did not know that what he was doing was illegal. Latte stated that he paid more for the bar than what he thought it was worth because of the money to be gained from the slot machines.

Latte stated that he was induced to make an offer by the broker, who told the buyers that it was a good business and the machines make a lot of money. Latte was under the impression that the broker was representing Dressel. Latte stated that he was never allowed to examine the books of the business and he and Leuders never forced the issue because Dressel seemed like an honest person. He also stated that he did not understand what he was signing at the closing, and signed on the advice of his attorney.

Ivan acknowledged that his agreement was with the seller, who paid him a commission on the sale. He denied that the seller ever represented that the. slot machines were an integral part of the business. According to Ivan, he wrote the inventory list and explained to Latte and Leuders that some of the machines, i.e., the jukebox, the cigarette machine, the slot machines, were owned by other companies and the buyers could elect to renew the contracts or not, but they were not part of the inventory. Ivan admitted that he never suggested that the buyers review the financial records of the business.

In Dressel’s deposition, he acknowledged having the “video game machines” in his bar. He initially denied that he gave cash in exchange for the tickets generated by the machines when customers won, but ultimately, on the advice of his attorney, declined to answer questions about whether the bar ever gave out cash to customers. Dressel stated that he received a percentage of the money that went into the machines, but declined, on Fifth Amendment grounds, to state whether the money was reported as income. Dressel recalled telling the buyers that the video game machines were a source of revenue for the business, but could not recall stating an exact amount of monthly revenue. In addition, Dressel denied telling the buyers that he did not have daily financial records for the company; he explained that what he told them was that this was an asset sale, not a sale of records, and thus did not involve the business’ good will and profitability. Dressel claimed that after the closing he discarded all of his records from the business.

In support of his memorandum opposing the motion for summary judgment, Latte filed an affidavit stating that during the negotiations for the sale of the business, Dressel represented that the annual revenue from the slot machines was between $80,000 and $100,000. It was Latte’s understanding that the slot machines were part of the business that was being.purr chased. Although he acknowledged that the slot machines were not listed on the inventory list, he claimed that he had an oral agreement with the lessor of the machines that the machines would be left in the business. Latte asserted that, because he is a recent immigrant to this country from Italy, he was unaware that gambling is illegal in the state of Florida or that the operation being run by Dressel was illegal. Moreover, because the slot machines were being operated out in the open, Latte never questioned the legality. He first learned that the machines were illegal when the police raided the bar and confiscated the machines.

The record indicates that Dressel signed a Business Owner’s No Lien Affidavit as well as a post-closing agreement in which he affirmatively represented to the buyers that he knew “of no violations of municipal, county or state laws and ordinances pertaining to the above-described property, or in the use and occupancy thereof, or in the leased premises” and had “complied with all laws, rules and regulations imposed by government or otherwise relating to the assets transferred to Buyer under that certain. Sales Contract.”

The issue in this appeal is whether or not, as a matter of law, there was a fraudulent misrepresentation with regard to whether the- transaction included the transfer of the slot machines. The buyers acknowledge that the sales contract clearly did not include the slot machines, but assert that they are nevertheless entitled to recovery because Dressel made them believe they could continue to use the slot machines and generate revenue from them. They argue that their status as “recent, unsophisticated immigrants” supports their position that Dressel exploited their “lack of sophistication” and ignorance of the fact that slot machines are illegal.

Without admitting that there was a misrepresentation, seller argues that, in any event, the buyers were not justified in relying upon a misrepresentation which they knew or should have known, with the exercise of some diligence, was false. We agree. Buyers’ ignorance of the law is not excused .simply because they are not from this country. See generally State v. Beasley, 580 So.2d 139, 142 (Fla.1991) (“As to notice, publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions”); see also Davis v. Strople, 158 Fla. 614, 29 So.2d 364 (1947) (ignorance of the law is no excuse). The fact that gambling may be legal in the buyers’ respective countries is irrelevant.' Moreover, even if the slot machines and the revenues gained from them had been a subject of the contract, buyers would still have no action on the. contract because such activity is illegal. See Katz v. Woltin, 765 So.2d 279, 280-81 (Fla. 4th DCA 2000) (recognizing that agreements in violation of public policy are void and unenforceable).

Consequently, with respect to all issues raised, we affirm the trial court’s entry of summary judgment and final judgment in favor of Dressel.

AFFIRMED.

STEVENSON, J, and GEIGER, DWIGHT L., Associate Judge, concur.

      . In this appeal, the buyers focus only on alleged misrepresentations concerning the slot machines. Therefore, any disputed issues concerning the buyers' other affirmative defenses, which might otherwise have precluded summary judgment, are waived, and will not be addressed in this opinion.


text:
    Watsson Herbert TORREJON, etc., Appellant, v. Enrique MARTIN, et al., Appellees.
    No. 3D03-963.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Wilson - Suarez Lopez and Manuel R. Lopez, for appellant.
    Bailey Dawes, L.C., and Guy B. Bailey, Jr., Miami, for appellees.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

The plaintiff, Watsson Herbert Torre-jon, appeals from an order dismissing the action for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse.

Within the one year period established by Rule 1.420(e), the defendants, Enrique Martin, et al., filed a motion arguing that the action should be dismissed for failure to substitute parties within the 90-day time period established by Florida Rule of Civil Procedure 1.260(a)(1) [Rule 1.260(a)(1) motion to dismiss]. Although the Rule 1.260(a)(1) motion to dismiss was properly filed, it was never docketed.

The filing of the defendants’ Rule 1.260(a)(1) motion to dismiss constitutes record activity directed toward the disposition of the case. Turcio v. Carnival Cruise Lines, Inc., 727 So.2d 1138 (Fla. 3d DCA 1999); Simmons v. Dakal Dev. Corp., 632 So.2d 717 (Fla. 2d DCA 1994). Further, “[a] plaintiff can rely upon a defendant’s activities to constitute record activity.” DeVane v. P.J. Constructors, Inc., 710 So.2d 1375, 1377 (Fla. 5th DCA 1998). Accordingly, we reverse the trial court’s order dismissing the action for lack of prosecution.

Reversed.


text:
    Carmelo PALOMINO, Appellant, v. Lana K. PALOMINO, Appellee.
    No. 3D03-833.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.

      Greene, Smith & Associates and Cynthia L. Greene, Miami, for appellant.
    Greenman & Manz and David L. Manz, Marathon, for appellee.
    Before SCHWARTZ, Chief Judge, LEVY and SHEVIN, JJ.
   PER CURIAM.

Based on the appellee’s proper confession of error, we reverse the Judgment for Attorney’s Fees. and remand for a new evidentiary hearing before another judge to determine the amount of fees.

Reversed and remanded.


author: STEVENSON, J.

text:
    Mauricio GUGELMIN, as Personal Representative of the Estate of Giuliano Gugelmin, a deceased minor, and Mauricio Gugelmin and Stella Gugelmin, individually, Appellants, v. FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION; Eric N. Freling, M.D.; Eric N. Freling, M.D., P.A.; Weinger, Zelnick & Freling, P.A.; and South Broward Hospital District, a special Tax District created by the Florida Legislature d/b/a Memorial Hospital West, Appellees.
    No. 4D02-4831.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Ben J. Weaver and Paul J. Cappiello of Harrell & Johnson, P.A., Jacksonville, for appellants..; ¡

      David W. Black and Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, and Wilbur E. Brewton of Roetzel & Andress, L.P.A.; Tallahassee, for appellee Florida Birth Related Neurological Injury Compensation Association.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellees Eric N. Freling, M.D., Eric N. Freling, M.D., P.A., and Weinger, Zelnick & Freling, P.A.
    No brief filed for appellee South Bro-ward Hospital District.
   ON MOTIONS FOR REHEARING AND FOR CLARIFICATION

STEVENSON, J.

Following the issuance of this court’s opinion, appellants filed both a motion for rehearing and a motion for clarification. We deny both motions in their entirety. Nonetheless, we withdraw our prior opinion and issue the following in its place to correct a typographical error.

In July of 1994, Stella Gugelmin gave birth to twin sons — Bernardo and Giuliano. Unfortunately, there were complications during the birth of the second child, Giuli-ano, and he sustained brain or spinal cord injuries due to oxygen deprivation. It was eventually determined that Giuliano had sustained a birth-relatéd neurological injury, as defined by section 766.302(2), Florida Statutes. The issue in this appeal is whether the Gugelmins may accept a settlement in their medical malpractice suit and still recover the benefits provided under Florida’s Birth-Related Neurological Injury Compensation Plan (“NICA”). The trial court determined that, under the circumstances of this case, the parents could not recover both the civil settlement and NICA benefits, requiring them to elect a remedy. We affirm this decision.

Florida’s Birth-Related Neurological Injury Compensation Plan

In 1988, the Florida Legislature created the Florida Birth-Related Neurological Injury Compensation Plan. See § 766.301(1), Fla. Stat. (Supp.1988). The statute authorized no-fault compensation for birth-related neurological injuries, but “exclude[d] all other rights and remedies ... arising out of or related to a medical malpractice claim with respect to such injury....” § 766.303(2), Fla. Stat. (Supp. 1988).

At the time of Giuliano’s July 1994 birth, NICA’s exclusive remedy provision provided as follows:

The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies ... against any person or entity directly involved with the labor, delivery, or immediate postde-livery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury....

§ 766.303(2), Fla. Stat. (1993).

In 1998, the legislature substantially amended NICA’s exclusive remedy provisions. While the above-cited language of section 766.303(2) remained the same, the legislature amended section 766.304, vesting the administrative law judge with exclusive jurisdiction to determine whether the child had suffered a birth-related neurological injury. See § 766.304, Fla. Stat. (Supp.1998). If the administrative law judge finds that the child has sustained a birth-related neurological injury, then a civil action may not be “brought or continued.” Id. Further, the 1998 amendments specifically bar a claim for NICA benefits in the event that “the claimant recovers or final judgment is entered.”

The Procedural History in the Instant Case

In February 1997, as a consequence of their son’s injuries, the Gugelmins filed a medical malpractice suit against Dr. Eric Freling, the physician who delivered the twins, and his professional association, Weinger, Zelnick and Freling, P.A. (hereinafter “the Freling defendants”). In the spring of 1999, the Freling defendants tendered a $250,000 check to settle the malpractice claim. The Gugelmins conditioned acceptance of the settlement upon their ability to also recover NICA benefits.

Thus, in June 1999, the Gugelmins filed a petition for benefits with the Division of Administrative Hearings. NICA agreed the child had sustained a birth-related neurological injury, but, in light of the exclusive remedy provision, contended that the settlement tendered by the Freling defendants precluded payment of benefits. In September 2000, an administrative law judge (ALJ) found that the child had sustained a birth-related neurological-injury and, applying the 1998 amendments to the NICA statutes, determined that; ordinarily, this would preclude a .civil suit. The ALJ went on to find that there are two exceptions to the statute’s exclusive remedy provisions; bad faith and the physician’s failure to give notice. Here, the physician had not provided notice. Consequently, the ALJ determined that the Gu-gelmins could either proceed in the civil suit and accept the Freling defendants’ settlement or they could accept NICA benefits — they could not, however, do both.

The Gugelmins ' appealed, arguing that the ALJ’s determination that they had to elect between the civil settlement and NICA benefits was in excess of his jurisdiction. This court agreed that any determination regarding election of remedies must be made by a circuit court, reversing that portion of the ALJ’s order. See Gugelmin v. Div. of Admin. Hearings, 815 So.2d 764 (Fla. 4th DCA 2002).

In- March of 2000, during the pendency of the administrative proceedings, the Gu-gelmins were granted leave to amend their complaint and to add NICA as a defendant in the civil suit. By the time the Second Amended Complaint was filed in January-2001, the Gugelmins had added a claim for declaratory relief, regarding their right to recover both the civil settlement and NICA benefits, and a new negligence theory. . Originally, the Gugelmins had alleged that both Dr. Freling and his professional association were responsible for Dr. Frel-ing’s negligence in delivering the twins. In the new version, the Gugelmins added a claim that Dr. Freling’s professional association was responsible for1 the actions of Dr. Waldman, the employee' physician who initially agreed to deliver the twins and then “abandoned” them.

NICA filed a motion to strike the claim pertaining to Dr. Waldman, alleging that (1) this was an improper attempt to state a new cause of action, (2) Dr. Waldman was not a party, (8) the statute of limitations had run on any claim against Dr. Wald-man, and (4) the plaintiffs had failed to comply with the pre-suit requirements that are a condition precedent to any claim against Waldman. NICA also argued that those counts wherein the plaintiffs sought a declaration that NICA’s proposed construction of the statute failed to account for the negligence allegations pertaining to Dr. Waldman and denied the plaintiffs access to the courts should be stricken as ah improper collateral attack on the ALJ’s September 2000 order. Finally, NICA asserted that the Gugelmins should be forced to elect a remedy.

In November 2002, the trial court granted NICA’s motions to strike and to dismiss and ruled that the Gugelmins could either accept NICA benefits or proceed in the civil suit, but they could not do both. Thereafter, under protest, the Gugelmins elected to accept NICA benefits. This appeal followed. The Gugelmins have raised a number of challenges to the trial court’s order. We affirm the judgment in all respects and write to address a single issue — the Gugelmins’ contention that, under the NICA statutes in effect at the time of their son’s 1994 birth, they were entitled to both the civil settlement and NICA benefits and, thus, that the trial court erred in forcing them to elect a remedy.

The Gugelmins’ Entitlement to Recover Both Civil Damages and NICA Benefits under the 1991 NICA Statutes

Following the 1998 amendments to NICA, it is clear that a plaintiffs aecep-tance of a civil settlement bars a claim for NICA benefits. In Gilbert v. Florida Birth-Related Neurological Injury Compensation Ass’n, 724 So.2d 688 (Fla. 2d DCA 1999), however, the Second District concluded that there was a loophole of sorts in the pre-1998 NICA statutes; this loophole allowed a plaintiff to recover NICA benefits where the plaintiff first settled and disposed of the malpractice claim without there having been a determination as to whether the child had sustained a birth-related neurological injury. The Gugelmins assert that since their son was born prior to the 1998 amendments, they, too, fit within this loophole and, thus, they should have been permitted to both retain the civil settlement and recover NICA benefits.

The procedural posture of the Gilbert decision is rather protracted. Michael McKaughan was born on May 19, 1989; the child was a quadriplegic and suffered substantial mental impairment. In January 1992, Michael’s parents filed a medical malpractice suit. The defendants countered that the suit was barred by NICA, which provides the exclusive remedy for birth-related neurological injuries. The malpractice suit was stayed and Michael’s parents were directed to file an administrative petition for NICA benefits.

Michael’s parents did file the NICA petition as directed; however, they alleged that their son had not suffered a birth-related neurological injury as defined by NICA. As a consequence, the administrative law judge dismissed the petition. The Second District affirmed the dismissal, holding that it was for the circuit court, in the malpractice suit, to determine whether the child had sustained a birth-related neurological injury and whether NICA provided the exclusive remedy. See Humana of Fla., Inc. v. McKaughan ex rel. McKaughan, 652 So.2d 852 (Fla. 2d DCA 1995).

The malpractice suit resumed and a guardian ad litem was appointed to represent the interests of the child. In May 1996, the guardian ad litem filed a second petition for NICA benefits. The administrative proceedings were stayed, however, pending a Florida Supreme Court decision addressing pre-delivery notice of NICA participation. . The civil proceedings, though, continued. Prior to trial, Michael’s parents reached a settlement and the civil suit was dismissed with prejudice. There was no judicial determination regarding whether the child had sustained a birth-related neurological injury.

After the settlement was reached, the stay was lifted in the administrative proceedings. Among other things, the parties stipulated that the parents had settled and dismissed the malpractice suit without any judicial determination as to whether the child had sustained a birth-related neurological injury and that the guardian ad litem had participated in the settlement. The administrative law judge dismissed the petition for NICA benefits, finding that the claim was barred by the doctrine of election of remedies and that to permit the NICA petition to proceed following the civil settlement would thwart the purposes of the statute. The guardian ad litem appealed. , . ■ ■

' When the’case once again returned to the Second District, the court rejected the administrative law judge’s conclusion that the NICA claim was barred. In so doing, the court reasoned as follows:

The sole issue is whether the obtaining of benefits as a product of a civil action forecloses access to Plan benefits. The answer is yes if that.action resulted in- a factual determination that the infant was not a NICA baby. Conversely, if an administrative petition results in a determination that the infant- is a NICA baby, a civil action is foreclosed. The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition.

724 So.2d at 690.

The instant case is factually distinguishable from Gilbert. In Gilbert, the court held that the earlier civil settlement did not bar the petition for NICA benefits because the suit was dismissed without there ever having been a determination as to whether the child had sustained a birth-related neurological .injury. That is not the case here where the settlement was never approved by the court and the medical malpractice suit remained pending. It is true that the Freling defendants tendered a $250,000 check in settlement of the civil suit. The Gugelmins themselves, however, took the position that the settlement was conditional. Further, Giuliano’s guardian ad litem objected to the court’s approval of any settlement until it was determined whether the child’s injuries were compensable under NICA.

During the pendency of the civil suit, the ALJ determined that Giuliano Gugelmin had suffered a birth-related neurological injury as defined by NICA. The ALJ’s determination in this regard brings the instant case under that portion of the Gilbert opinion wherein the Second District held that “if an administrative petition results in a determination that the infant is a NICA baby, a civil action is foreclosed.” 724 So.2d at 690. Thus; even under the statutes in effect at the time of Giuliano’s birth and the Gilbert decision, were it not for the Freling defendants’ failure to comply with NICA’s notice provisions — a condition precedent to application of NICA and its exclusive remedy provisions,' the Gugelmins would be limited to only NICA benefits.

The holding in this case is consistent with the outcome in Romine v. Florida Birth Related Neurological Injury Compensation Ass’n, 842 So.2d 148 (Fla. 5th DCA), review denied, 857 So.2d 195 (Fla.2003). There, the court held that under the statute in effect prior to the 1998 amendments, the Romines were not precluded from receiving NICA benefits simply because they had already received a settlement in their medical malpractice case. The Romine court noted that in construing the pre-1998 version of NICA, Gilbert held that a NICA eligible claimant was not barred from receiving a recovery in a malpractice case (with no judicial determination that the child was not a NICA baby) and then seeking- benefits under NICA. Nevertheless, the court in Romine, citing Gilbert, recognized that a claimant could not obtain an administrative determination of NICA eligibility and then still be entitled to maintain a civil lawsuit. See 842 So.2d at 151. That is what the Gugel-mins attempt to do.

Accordingly, the order on appeal is AFFIRMED.

STONE and WARNER, JJ., concur.

      . The current version of the statute provides that "[a]n award may not be made or paid under ss. 766.301-766.316 if the claimant recovers under a settlement or a final judgment is entered in a civil action.” § 766.304, Fla. Stat. (2003).

      . From its inception through the June 1999 NICA petition filed in this case, there have been two conditions precedent to the application of NICA and its exclusive remedy provision: (1) the child must have sustained a birth-related neurological injury as defined by section 733.302(2) and (2) the defendant health care provider must have provided the patient with notice = of the provider's participation in NICA. See §§ 766.302(2), 766.303(2), 766.316, Fla. Stat. (1988); §§ 766.302(2), 766.303(2), 766.316, Fla. Stat. (1997 & Supp.1998); Galen of Fla., Inc. v. Braniff, 696 So.2d 308 (Fla.1997).

      . In enacting the 1998 amendments, the legislature expressly stated that the amendments should apply to any NICA claim filed on or after July 1, 1998, regardless of the date of birth of the child. See Ch. 98-113, § 6, at 525, Laws of Fla. We note that in Romine v. Florida Birth Related Neurological Injury Compensation Ass’n, 842 So.2d 148 (Fla. 5th DCA), review denied, 857 So.2d 195 (Fla.2003), the Fifth District held that these 1998 amendments could not be retroactively applied to a child bom prior to the passage of the amendments. As we have concluded that the Gugelmins were not entitled to both the civil settlement and NICA benefits under either the statutes in effect at the time of their son's 1994 birth or the 1998 amendments, we need not reach this issue.

      . The Second District certified the issue to the supreme court. The supreme court affirmed, holding that “the NICA plan does not vest exclusive jurisdiction in an administrative hearing officer to determine the nature of an injury suffered by a new-born infant when a medical malpractice action is filed and a defendant health care provider raises the exclusive remedy of the NICA plan as an affirmative defense.” Fla. Birth-Related. Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974, 980 (Fla.1996). It was the supreme court’s decision in McKaughan that prompted the. 1998 amendments to section 766.304, Florida Statutes. See S.B. 1070, Senate Staff Analysis and Economic Impact Statement (Mar. 4, 1998).


author: PER CURIAM. SCHWARTZ, C.J.,

text:
    D.S. and J.B., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    Nos. 3D03-2583, 3D03-1935.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Joseph M. AJbury (Key West), for D.S.; Jason R. Smith (Key West), for J.B.
    Calianne P. Lantz; Bennett H. Brum-mer, Public Defender and Sheryl Lowen-thal, Assistant Public Defender, for appel-lee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, C.J.,

(dissenting).

I would vacate the orders terminating both parents’ parental rights and remand for a “least restrictive means” hearing and determination which were not undertaken below. See E.E.A. v. Department of Children & Family Servs., 846 So.2d 1250 (Fla. 2d DCA 2003); K.O. v. Department of Children & Families, 843 So.2d 353 (Fla. 5th DCA 2003); K.R. v. Department of Children & Family Servs., 843 So.2d 366 (Fla. 2d DCA 2003); L.B. v. Department of Children & Families, 835 So.2d 1189 (Fla. 1st DCA 2002).


author: SCHWARTZ, Chief Judge.

text:
    Mustapha AHARIACHE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2688.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Bennett H. Brummer, Public Defender and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Annette M. Lizardo and Lucretia Pitts, Assistant Attorneys General, for ap-pellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   SCHWARTZ, Chief Judge.

Addressing the appellant’s primary point on appeal, we agree that it may have been “preferable,” Bobb v. State, 647 So.2d 881, 883 (Fla. 4th DCA 1994), review denied, 659 So.2d 270 (Fla.1995), for the trial court, to have- precluded the prosecutor from inquiring — beyond the admitted fact that the testifying defendant had previous, felony convictions, see § 90.610, Fla. Stat. (2003) — “into whether the felon[ies] involved dishonesty or false statement.” Bobb, 647 So.2d at 883. Nonetheless, the convictions and sentence for grand theft and criminal mischief under review are affirmed because we are convinced that any error which may have been involved, but see Tampling v. State, 610 So.2d. 100 (Fla. 1st DCA 1992)(dicta that trial court correctly overruled defendant’s objection to prosecutor’s question of whether prior felony involved truth or dishonesty); Bobb (indicating that contrary practice- was “preferable”), was harmless beyond a reasonable doubt. Goodwin v. State, 751 So.2d.637 (Fla.1999); State v. Lee, 531 So.2d 133. (Fla.1988); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.

      . The other issues present no error and require no discussion.


text:
    Havis FRANCOIS, as Personal Representative of the Estate of Jasmin Francois, deceased, et al., Appellants, v. HARTFORD FINANCIAL CORPORATION, a Florida corporation, et al., Appellees.
    Nos. 3D03-2984, 3D03-1429.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.

      Balsamo Aviation & Trial Firm, P.A. (Ft.Lauderdale), and Richard W. Balsamo; and Ferrell, Schultz, Carter & Fertel, P.A., and H. Eugene Lindsey, and Gregory C. Harrell, Miami, for appellants.
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein, and Roberto A. Torricella, Jr.; Thornton, Davis & Fein, P.A., and Kathleen M. O’Connor, and J. Thompson Thornton, Miami, for appellees.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

We affirm the trial court’s order granting the appellees’ motion to dismiss based upon lack of subject matter jurisdiction. Our affirmance is based upon this Court accepting the appellees’ statement in open court that they will not raise or assert a defense of statute of limitations in the event this case is filed in the nation of Dominica.

Affirmed.


text:
    Guadalupe F. JAVIER, Appellant, v. GOODWILL INDUSTRIES OF SOUTH FLORIDA, INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-3111.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Guadalupe F. Javier, in proper person.
    John D. Maher (Tallahassee) for Florida Unemployment Appeals Commission, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ.
   PER CURIAM.

The claimant was disqualified from unemployment compensation benefits when she did not attend the hearing on the claim. After the Unemployment Appeals Commission remanded the case to determine whether there was good cause for her not having done so, the appeals referee found, in accordance with Florida Administrative Code Rule 60BB-5.017

Good cause for failure to attend a scheduled hearing is any cause which indicates an additional hearing is reasonably necessary in the interest of justice. If good cause is not established, the previous decision shall be reinstated.
The hearing record shows that the claimant did not attend the scheduled hearing because she was confused with all the paperwork she received and her son did not want to be bothered translating the documents for her. The claimant’s testimony shows that she received the Notice of Hearing in a timely manner and the Notice clearly stated the date and time of the hearing. The claimant has failed to show she exercised due diligence to attend the .April 23, 2003, hearing on time as scheduled. Accordingly, the previous Decision of Appeals Referee dated May 22, 2003, is reinstated.

We find no error in the Unemployment Commission’s affirmance of this order. See Reloba v. Westside Sanitation, Inc., 711 So.2d 141 (Fla. 3d DCA 1998).

Affirmed.

      . 60BB-5.017. Nonappearance of Parties.
      (1) Except as provided in Rule 60BB-5.016, F.A.C., the appeals referee may, notwithstanding failure of a party to appear, proceed with the hearing.
      (2) Failure of the appellant to appear at the hearing shall constitute grounds for dismissal of the appeal.
      (3) Upon written request of the appellant or upon the referee’s own motion, the appeals referee shall for good cause rescind a dismissal decision and reopen the appeal. Upon written request of the appellee or upon the referee’s own motion, the appeals referee shall for good cause rescind a decision and reopen the appeal if the appellee did not appear at the last scheduled hearing and the referee has entered a decision adverse to the appellee. The appeals referee shall have the authority to reopen an appeal under this rule provided that the request has been filed or motion entered with 20 days of rendition of the decision.
      (a) A threshold issue to be decided at the hearing held to consider reopening an appeal shall be whether there is a good cause for proceeding with an additional hearing. If good cause is found, the appeals referee shall proceed on the merits. If good cause is not found, the referee shall reinstate the decision. The referee shall have no further authority with respect to a reinstated decision; however, any party or other person entitled by law to do so may file an appeal of the reinstated decision in accordance with Chapters 60BB-6 and 60BB-7, F.A.C. (b) Denial without hearing’-of a request to reopen an appeal shall be in writing. The requesting party may appeal the denial by filing an appeal with the Unemployment Appeals Commission in the manner set forth in Chapters 60BB-6 and 60BB-7, F.A.C.


text:
    ARTISAN PICTURES, INC., Appellant, v. WEST AVENUE FILMS, LLC, Appellee.
    No. 3D04-787.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Deutsch Blumberg and James C. Blecke; Gerald J. Houlihan, Miami, for appellant.
    Goldstein, Tanen Trench and Susan E. Trench and Catherine C. Grieve, Miami, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

After entering the judgment against the appellant which was affirmed in Artisan Pictures, Inc. v. West Avenue Films, 873 So.2d 1278 (Fla. 3d DCA 2004), the trial judge assessed attorney’s fees and costs against it under section 57.105, Florida Statutes (2001). On the authority of Visoly v. Security Pacific Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000), that order is now* likewise affirmed.


text:
    William CAMERON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2238.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm appellant’s convictions of DUI manslaughter and DUI property damage. We reverse, based on double jeopardy, appellant’s conviction of vehicular homicide and remand for the trial court to vacate the conviction and sentence on this count. See State v. Chapman, 625 So.2d 838 (Fla.1993) (recognizing that DUI manslaughter and vehicular homicide are two separate crimes, neither being a lesser included offense of the other, but holding that a single death cannot support convictions for both crimes).

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

KLEIN and STEVENSON, JJ., concur.


author: WARNER, J. MAY, J.,

text:
    Duane VOELKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2340.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Carey Haughwout, Public Defender, Anthony Calvello, Assistant Public Defender, and Elisabeth Porter, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s conviction of grand theft, finding his claim that he’ was entitled to a judgment of acquittal is without merit. Athough the appellant argues that the state failed to show he had the intent to deprive the owner of his property, we conclude that the state presented sufficient evidence for the jury to conclude that he had the requisite intent.

An order on a motion for judgment of acquittal is reviewed under the de novo standard of review. See Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001). The court should not grant a motion for judgment of acquittal unless, when viewed in a light most favorable to the state, the evidence does not establish the prima facie case of guilt. See Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA), dismissed, 725 So.2d 1107 (Fla.1998).

Section 812.014(1), Florida Statutes (2001), provides:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

The state charged appellant with removing the contents of a mobile home after it was purchased by a new owner. Appellant contended that he had permission from the prior owner to remove the property. According to the state’s witnesses, when Ro-zler, the prior owner, and Rogers, the new owner, closed on the sale of the mobile home, all the appliances and fixtures were intact. Rozler gave Rogers the key, and he locked the trailer. That evening Rogers returned to find the property, including both outside doors, gone. He called the police and the property was discovered at appellant’s mobile home down the street. Appellant said he knew of the sale of the property but produced a note from Rozler, dated three weeks before the actual sale, stating that he had permission to remove the contents. Taken in a light most favorable to the state, we conclude that the issue of intent should have been left to the jury as the state presented some evidence that appellant knew at the time he removed the property that the mobile home was owned by someone other than Rozler.

Appellant’s testimony disputed much of the state’s evidence, including the evidence regarding when he removed the property from the mobile home. He claimed he removed the property two weeks prior to the actual sale. This was directly refuted by Rogers who testified that all of the property was present at the closing. The resolution of all of the disputed facts was for the jury, which disbelieved appellant’s version of events.

Affirmed.

POLEN, J., concurs.

MAY, J., dissents. .

MAY, J.,

dissenting.

I respectfully dissent. Despite the conflict in the testimony on certain facts, there simply is NO evidence the defendant knew that he removed the items without consent. First, he provided a note from the owner giving him permission to take the items, which no one questioned. Second, while he admitted to knowing the mobile home was sold, there is no evidence to suggest when he acquired that information or that the sale vitiated the permission given to' him by the owner to take the items.

I am fully cognizant of the high standard needed to warrant the entry of a judgment of acquittal. Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA), dismissed, 725 So.2d 1107 (Fla.1998). However, after having read the entire transcript, I find that standard to have been met in this case. I would reverse the conviction.


text:
    A.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2654.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Carey Haughwout, Public Defender, Gary Caldwell and Frank J. Ingrassia, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State filed a Petition for Delinquency charging A.W., a juvenile, with two counts of aggravated battery. A.W. was found guilty of a lesser charge of battery on Count I and found guilty of aggravated battery on Count II. The trial court entered a Disposition Order adjudicating A.W. delinquent and committing him to a high-risk, level 8 residential program. A.W. appeals the Disposition Order and argues that the trial court erred in failing to enter separate disposition orders for the two offenses. The State concedes and agrees that the matter should be remanded with instructions to enter separate disposition orders for the two,offenses. See L.W.G. v. State, 785 So.2d 696 (Fla. 4th DCA 2001) (holding that when a trial court adjudicates a juvenile delinquent for more than one offense, separate disposition orders must be entered for each adjudicated offense).

..REMANDED.

STONE, TAYLOR and HAZOURI, JJ„ concur.


text:
    Scot R. PETERSON, Appellant, v. Rosemarie PETERSON, Appellee.
    No. 4D03-1180.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Catherine L. Roselli of Law Office of Catherine L. Roselli, P.A., Fort Lauder-dale, for appellant.
    No brief filed for appellee.
   SHAHOOD, J.

This is the second appeal in this dissolution action. In the former husband’s appeal of the first final judgment of dissolution, this court affirmed the order assessing attorney’s fees and.costs against the former husband, but reversed the alimony award to the former wife, and remanded for the trial court to make the findings required by section 61.08, Florida Statutes (2001). See Peterson v. Peterson, 818 So.2d 683 (Fla. 4th DCA 2002).

On remand, the trial court entered an Amended Final Judgment of Dissolution of Marriage, nunc pro tunc to April 4, 2001. The court’s original order regarding the alimony award remained unchanged, with the exception that the following paragraph was added:

C. The standard of living of the parties during the marriage was a normal middle class lifestyle; they lived in a three bedroom two bath house in Coral Springs Florida (a normal middle class neighborhood); the family bills were current as of the date of the parties’ separation; the parties took annual vacations with the children. The parties had four children and by agreement the Wife did not work after the birth of the fourth child as the finances and the in- • come of the Husband were sufficient to meet the needs of the parties.

Also on remand, the court added the following underlined language to the paragraph addressing a dependency tax exemption:

16. The Husband will be entitled to the dependency exemption and child care credit for each of the minor children under the applicable provisions of the Internal Revenue Code if current with alimony and child support obligations as provided herein.

(Emphasis added). The former husband filed a motion to correct the Amended Final Judgment seeking to excise the added language on the basis that there had been no argument, discussion or evidence concerning this language presented at the hearing on remand. The court denied the motion.

With regard to the trial court's findings 'to support the alimony award, we agree with the former husband that they are still inadequate. Section 61.08(2)(a)-(g), Florida Statutes (2003), requires that the trial court consider seven specific factors. The failure to do so is reversible error. See Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003); see also Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998) (reversing permanent alimony award where, in the absence of sufficient factual, findings concerning the statutory factors, it was impossible for the court to assess the reasonableness of the permanent periodic alimony award); Kennedy v. Kennedy, 622 So.2d 1033 (Fla. 5th DCA 1993) (holding that the trial court erred in its application of the law when it failed to consider all of the statutory factors). While the trial court in this case considered some of the statutory factors, there were a number that were not considered.

The trial court did not make findings, despite evidence in the record, concerning the health of the parties, their relative financial positions after equitable dissolution, other sources of income available to them, if any, the contribution of each party to the marriage, and the possibility that the former wife could obtain sufficient education to maintain employment. See § 61.08, Fla. Stat. (2003). Issues regarding the former wife’s employment history, child care, and' private school tuition for the children certainly must have impacted the decision to award alimony, but were not specifically addressed in the amended final judgment. Thus, meaningful review of the trial court’s award of alimony to the wife is not possible due to the= lack of specific findings.

In addition, the trial court erred in denying the former husband’s motion to correct the amended final judgment to redact certain language which was added on remand. This court’s mandate was to “make sufficient findings of fact for this Court to review the appropriateness of the alimony award.” Peterson, 818 So.2d at 684. In amending the judgment, however, the trial court went beyond the directives of the mandate and amended a portion of the judgment which was not at issue. The trial court did not have the discretion to do so. See generally Akins v. Akins, 839 So.2d 910 (Fla. 5th DCA 2003) (holding that a trial court may not deviate from the terms of an appellate court’s instructions). “[O]nce the ... case was decided on appeal, the circuit court was bound by the decree as the law of the case and was required to perform the purely ministerial act of implementing the mandate.” Id.; see also Hill v. Palm Beach Polo, Inc., 805 So.2d 1014, 1016 (Fla. 4th DCA 2001) (holding that the trial court is not authorized to give any further relief in addition to settling the issue on remand).

Accordingly, we reverse the amended final judgment of dissolution and remand for the trial court to make the requisite statutory findings with regard to the alimony award. On remand, the court should also redact the additional language concerning the dependency tax exemption, which was added in violation of the mandate.

REVERSED AND REMANDED.

FARMER, C.J., and TAYLOR, J., concur.


text:
    Betty Jean JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1643.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Betty Jean Jenkins, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Betty Jean Jenkins appeals an order summarily denying her motion to accredit jail time. We reverse.

The trial court’s order of denial explained that Jenkins was entitled to 106 days of credit based on the amount of days she has served from the time of her arrest on January 6, 2003 until her sentencing on April 21, 2003. It ordered that the credit be applied to both her charges which included one count of possession of cocaine and one count of use or possession of drug paraphernalia. It maintained that the sentencing documents refuted Jenkins’s claim that she was entitled to credit for additional days as time served, and that she was sentenced on count I to five years, with 106 days credit for time served, and to 106 days incarceration on count II, with 106 days credit for time served. However, while the sentencing documents attached to the order reflected that in count I Jenkins was sentenced to five years, there was no indication of an award of credit for time served.

In response to this court’s order to show cause, the state maintains there was no error; the 106 days of credit applied not per count, but to Jenkins’s entire concurrent sentence. If so, this should be clearly reflected by the sentencing documents. See Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (“[W]hen, pursuant to section 921.161(1), a defendant receives presentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.”); Vasquez v. State, 478 So.2d 76, 77 (Fla. 1st DCA 1985).

Reversed and remanded for further proceedings.

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


text:
    Robert GADSON, Petitioner, v. Ken JENNE, Sheriff of Broward County, Florida, Respondent.
    No. 4D04-1851.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Lorena Grana of Miranda & Grana, P.A., Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, for respondent.
   PER CURIAM.

The defendant filed a petition for writ of habeas corpus, arguing the trial court improperly revoked his bond. We granted the petition and ordered the defendant released on the bond posted on January 10, 2004. This opinion follows.

■On July 1, 2003, the defendant was arrested for possession of cocaine and drug paraphernalia. The defendant posted the one-thousand dollar bond and was released.

On November 17, 2003, the defendant was arrested again for possession of cocaine and drug paraphernalia. Bond was set at one-thousánd dollars. The State filed the new charges and moved to revoke the defendant’s bond based upon the new arrest.

The court conducted a hearing, during which the prosecutor presented the court with the probable cause affidavit from the new arrest, the defendant’s prior criminal history, and the sentencing guidelines. The court denied the State’s motion. The defendant posted the new bond and was released.

The case was transferred to another criminal division. The defendant appeared before the new judge on March 29th and April 15th without incident. However, at the second hearing, the prosecutor asked the new judge to revoke the new bond based upon the second arrest. Defense counsel argued the issue had previously been decided by another judge and no new circumstances had been presented to warrant revocation of the new bond. The new judge revoked the bond and remanded the defendant.

The defendant is entitled to a reasonable bond.

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable -conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judi-rial process, the accused may be detained.

Fla. R.Crim. P. 3.131. There is no doubt the court has the authority to revoke a defendant’s pretrial release “if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.” See § 903.0471, Fla. Stat. (2000). However, the original judge considered the request to revoke the defendant’s bond ánd denied the request. One circuit court judge does not have the authority to reverse the prior order of another circuit court judge. See Hewlett v. State, 661 So.2d 112 (Fla. 4th DCA 1995). In this case, the State failed to present any new evidence to warrant a second consideration of its request to revoke the defendant’s bond.

We grant the petition for writ of habeas corpus and remand for further proceedings.

TAYLOR, HAZOURI and MAY, JJ., concur.


author: FARMER, C.J,

text:
    Stephen WATSON, Appellant, v. INTERNET BILLING COMPANY, LTD., a Florida Limited partnership, Appellee.
    No. 4D03-3925.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Gary D. Weinfeld of Gary D. Weinfeld, P.Á., Miami, for appellant. -
    Craig J. Trigoboff of Waldman, Felúren, Hildebrandt & Trigoboff, P.A., Weston, for appellee.
   FARMER, C.J,

A defendant appeals from a trial court’s denial of his motion to vacate a clerk’s default and his companion motion for relief from the consequent final judgment. We affirm the denial as to the clerk’s default but reverse as to the final judgment, upon a holding that .the claim in question , did not involve liquidated damages and therefore the defaulted defendant was éntitled to notice of any trial on damages..

• Plaintiff alleged that it had' been retained under an oral contract to deVélop and place certain advertising for a firm with which defendant was a principal. It further claimed that all the defendants fraudulently induced plaintiff to “entrust” unspecified funds to the advertising firm for that purpose. It'claimed that defendant, among others, converted such funds or unjustly enriched himself by failing to pay media in which such advertising was published, .or unlawfully retained such funds. In an affidavit after the clerk’s default was entered, the advertising firm “quantified” the total amount by stating the damages sustained “as a result of Defendant’s misconduct” at $465,702.60 and that it had incurred attorneys fees of $10,194.95. The trial court entered a default judgment in that total sum.

The issue whether defendant was entitled to notice and a trial on damages' depends on whether the damages were liquidated. Liquidated damages are specific and'precise sums of money immediately apparent from the express terms of the contract itself, or determinable therefrom by mathematical calculation, or fixed by a specific rule of law. Hill v. Murphy, 872 So.2d 919, 922 (Fla. 2d DCA 2003) (“Damages are liquidated when they can be determined by mathematical calculation or the application of definite rules of law.”); Bowman v. Kingsland Dev. Inc., 432 So.2d 660, 662 (Fla. 5th . DCA 1983) (“Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.”); Hartford Fire Ins. Co. v. Controltec Inc., 561 So.2d 1334, 1335 (Fla. 5th DCA 1990) (“In a contractual setting, liquidated damages exist when a specific sum of money has been expressly stipulated or agreed to by the parties for recovery by either party.following a breach of the contract by the other.”). When the complaint alleges only general damages without demanding a specific amount, damages are deemed unliquidated when a default admitting liability is entered. Hill, 872 So.2d at 922; Dunkley Stucco Inc. v. Progressive Amer. Ins. Co., 751 So.2d 723 (Fla. 5th DCA 2000) (when no specific amount is set forth in complaint damages remain unliquidated).

Moreover, attorneys fees are not liquidated where only a “reasonable” sum may be recovered. See Bowman, 432 So.2d at 663 (“Since the ‘reasonableness’ of an attorneys fee or other charge for services cannot be ascertained without the presentation of facts relating to the factors that must be considered in determining the reasonableness of a fee, every claim of damages for the reasonable value of services is- a claim for unliquidated damages.”); Roggemann v. Boston Safe Dep. & Trust Co., 670 So.2d 1073 (Fla. 4th DCA 1996) (same).

Even though a default was entered against defendant, he was entitled to an evidentiary hearing on the amount of damages, because they were unliquidated. See Fla. R. Civ. P. 1.440(c) (“In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).”); Hill, 872 So.2d at 921-22; Medcom USA, Inc. v. Ryder Homes & Groves Co., 847 So.2d 594, 596 (Fla. 2d DCA 2003). In this case, evidence would be required to ascertain what sums if any the firm had retained by improperly withholding payment to a media client that had published the advertising. Expert and other testimony would also be necessary for any award of attorneys fees.

DEFAULT AFFIRMED; DEFAULT JUDGMENT REVERSED.

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


author: MAY, J.

text:
    Walter Thomas NORWICH, Appellant, v. GLOBAL FINANCIAL ASSOCIATES, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D03-4689.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    John N. Buso, West Palm Beach, for appellant.

      Jane Kreusler-Walsh of Jane .Kreusler-Walsh, P.A., West Palm Beach, and Melinda Penney Gamot of. The Gamot Law Firm, P.L., West Palm Beach, for appellee.
   MAY, J.

The plaintiff appeals an order dismissing his complaint for negligence and breach of fiduciary relationship against the defendant, Global Financial Services. ■ He argues the trial court erred in taking judicial notice of a final judgment in a dissolution proceeding and dismissing his complaint on the grounds of res judicata and collateral estoppel. We agree and reverse.

The plaintiff and Grace Norwich, the sole owner and manager of Global, were husband and wife. The complaint alleged that Global served as plaintiffs “agent” concerning management and operation of certain properties, invéstment accounts, and preparation and filing -of tax returns. He claimed a fiduciary relationship between himself and Global, and that Global breached its fiduciary duty with regard to certain properties, accounts; and tax returns.

Global moved to dismiss the complaint and argued that both res .judicata and collateral estoppel barred the action. Global argued that the judge in the prior dissolution of marriage proceeding had determined that Global was solely owned and operated by the plaintiffs former wife. Thus, the parties in the dissolution and in this case.were really the same. Further, Global asserted that the judge in the dissolution found there was no professional relationship between the plaintiff and his wife or her companies, including Global. There could, therefore, be no breach of a fiduciary duty. Global attached a copy of the final judgment of dissolution of marriage to its motion to dismiss.

By separate motion, the defendant asked the court to take judicial notice of the final judgment of dissolution of marriage, and attached another copy of the judgment of dissolution. The trial court took judicial notice of the dissolution proceedings, and found the judge had addressed the issues “at length in the divorce action between Walter and Grace Norwich .... ” The court then granted the defendant’s motion to dismiss the complaint with prejudice.

We review a final order dismissing a complaint with prejudice de novo. Siegle v. Progressive Consumers Ins., 819 So.2d 732 (Fla.2002). The purpose of a motion to dismiss is to test the legal sufficiency of the complaint. Ramos v. Mast, 789 So.2d 1226 (Fla. 4th DCA 2001). The trial court may not look beyond the four corners of a complaint when ruling on a motion to dismiss. Id. at 1227.

[Generally, collateral estoppel is an affirmative defense which must be raised in an answer. See Palmer v. McCallion, 645 So.2d 181, 133 (Fla. 4th DCA 1994)(“Res judicata and collateral estop-pel are affirmative defenses that ordinarily must be pled in an answer or similar pleading.”). An exception is made, however, where the face of the complaint is sufficient to demonstrate the existence of the defense. See Duncan v. Prudential Ins. Co., 690 So.2d 687, 688 (Fla. 1st DCA 1997) (affirming dismissal on grounds of res judicata and estoppel by judgment where appellant had specifically incorporated into her complaint the previous proceedings)....

Bess v. Eagle Capital, Inc., 704 So.2d 621, 622 (Fla. 4th DCA 1997).

The plaintiff did not mention or incorporate the prior dissolution action in his complaint against Global for breach of fiduciary duty. Cf. Duncan v. Prudential Ins. Co., 690 So.2d 687 (Fla. 1st DCA 1997)(dismissal on res judicata and estoppel by judgment affirmed where the plaintiff had specifically incorporated the previous proceedings into her complaint). While the defenses of res judicata and collateral estoppel may be resolved through a motion for summary judgment, the trial court erred when it ventured outside the four corners of the complaint, took judicial notice of the final judgment of dissolution of marriage, and dismissed the complaint with prejudice. See Rest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1969).

We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The appeal from the final judgment of disso- ■ lútion of marriage is currently pending in this court.


author: COPE, J.

text:
    Felix PEREZ, Appellant, v. Sharon L. PEREZ, Appellee.
    Nos. 3D03-1886, 3D03-1293.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.

      Henry R. Zippay, for appellant.
    J. James Donellan, III, for appellee.
    Before COPE, GREEN and FLETCHER, JJ.
   COPE, J.

Felix Perez appeals a final judgment of dissolution of marriage. We affirm in part and reverse in part.

This was a seventeen-year marriage in which the parties had two children, ages ten and twelve at the time of the 2003 hearing. The former husband is a certified public accountant (“CPA”). The wife is a homemaker who has recently returned to the workforce and needs additional training to improve her work skills.

The trial court awarded $700 per month in permanent periodic alimony, $300 per month in rehabilitative alimony for four years, and $1,263 per month in child-support. These awards reach approximately 50% of the former husband’s net pay.

The parties’ major asset is the marital home, having an equity of $100,000. The husband’s retirement accounts are worth $40,000. The remaining assets are minimal.

The former husband claims error in the court’s allocation of the assets. As lump sum alimony, the trial court awarded the former wife the, husband’s $50,000 share of the equity in the marital home. The court divided the remaining assets approximately equally. This resulted in an asset distribution to the former wife of $128,500 and to the former husband, $29,000. Thus, the wife received 82% of the assets and the husband, 18%.

The former husband argues that instead of granting the marital home to the former wife outright, the court should have granted the former wife exclusive use and occupancy of the marital home until the youngest child reaches the age of majority. At that time the home would be sold and the proceeds divided. Under the circumstances present here, we agree.

Distribution of the marital assets is presumptively to be on an equal basis, although deviation from equal division is permitted where there is a sound reason to do so. See § 61.075(1), Fla. Stat. (2003); Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003); Longo v. Longo, 533 So.2d 791, 793 (Fla. 4th DCA 1988) (en banc).

In this case the equity in the marital home is the major asset of the parties. The principle of presumptively equal distribution of assets applies here. See Feger, 850 So.2d at 613; Castillo v. Castillo, 626 So.2d 1035, 1037 (Fla. 3d DCA 1993); Satanonchai v. Satanonchai, 522 So.2d 1030, 1031 (Fla. 3d DCA 1988).

In making the lump sum alimony award the trial court reasoned that the award allowed the former wife to remain in the home, as opposed to thrusting the family into the housing market by requiring an immediate sale of the home. However, “this objective is properly accomplished by allowing the wife to maintain exclusive possession of the residence during the minority of the children.” Castillo, 626 So.2d at 1037.

The court also suggested that in granting the home outright to the former wife, this would stabilize housing costs in the long term and eventually diminish them when the house is paid off. The court said that as a long-term matter, the former husband might wind up paying less in permanent periodic alimony than if the former wife must obtain substitute housing when the youngest child reaches eighteen. The court likened the lump sum award as a prepayment on alimony to be paid over the remainder of the former husband’s life expectancy. We think this consideration is outweighed, however, by the fact that if the former wife remarries, then there is no way for the former husband to recapture the lump sum alimony award. Further, the residence was purchased in 1997 for a family of four, but as the children reach majority and move away, maintaining a residence of that size is likely to be unnecessary.

In support of the idea that she should receive the home outright the former wife relies on Cruz v. Cruz, 574 So.2d 1117 (Fla. 3d DCA 1990), but that case actually supports the position of the former husband. In Cruz, the former wife did not receive the home outright but was only granted exclusive use and occupancy until the youngest child reached eighteen.

The former wife relies on Henning v. Henning, 507 So.2d 164 (Fla. 3d DCA 1987), but that case is not on point. There the former husband received offsetting assets so that there was “a roughly equal division.” Id. at 165 (citations omitted).

In the present case the court’s awards contemplated that with a combination of alimony and the wife’s own earnings, she would be able to pay the mortgage and maintain the residence. It would thus appear that an order for exclusive use and occupancy is financially feasible. Cf. Bonilla v. Bonilla, 739 So.2d 108, 109 (Fla. 3d DCA 1999) (immediate sale ordered where order for exclusive use and occupancy was not financially feasible).

For the stated reasons, we remand for entry of an order providing for exclusive use and occupancy until the youngest child reaches the age of majority, at which time the house is to be sold and the proceeds divided. The court may make such other modifications in the judgment as may be appropriate in light of this ruling. The judgment should address how credits will be calculated at the time the home is sold. See Castillo, 626 So.2d at 1037.

The former husband next argues that the trial court should not have provided for an automatic increase in his child support obligation when he ceases paying rehabilitative alimony in four years. Under the circumstances present here, we agree.

In the present case, the trial court reasoned that when the payment of rehabilitative alimony ceases at the end of four years, this will alter the child support calculation. See § 61.30(3)(g), Fla. Stat. (2003). Under the facts of this case, this would result in a child support increase in excess of the 10% threshold contained in the statute. See id. § 61.30(l)(c). It was the trial court’s view that it would be a benefit to the parties to provide for an automatic adjustment rather than leaving the matter for recalculation in four years.

The Fourth District has said that a prospective modification may be permissible where it is based “upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party.” Spenceley v. Spenceley, 746 So.2d 505, 506 (Fla. 4th DCA 1999) (citation and internal quotation marks omitted). In that case the court approved an automatic child support adjustment which would occur upon the wife’s receiving of an anticipated employment certification within six months.

The difficulty in the present case is that the adjustment , is not scheduled to occur for four years, and the calculation assumes that both parties will have the same incomes in four years that they do today. However, the theory of the wife’s rehabilitative program is that she will gain enr hanced earning capacity over the four years and in that time, presumably the former husband’s income will also increase. Consequently we reverse that part of the final judgment which provides for an automatic child support adjustment at the end of the rehabilitative period. Instead recalculation should be performed at the end of the rehabilitative period based on actual income figures at that time.

Regarding the remaining issues, we decline to . disturb the trial court’s valuation of the parties’ automobiles, or the award of attorney’s fees to the former wife. The former husband argues alternatively that the final judgment of dissolution of marriage awards him a credit of $3,500 to be applied against the attorney’s fees awarded to the wife, but the separate attorney’s fee judgment does not reflect that credit. That is apparently an oversight and should be addressed on remand.

. The former husband argues that the permanent period alimony of $700 per month is not supported by the evidence. We disagree. We conclude that the amount is within the evidence. Further, since the $700 amount is taxable to the wife, the after-tax amount available to her is lower than the $700 figure.

In conclusion, we reverse the final judgment with regard to the issues of exclusive use and occupancy of the marital home, and the prospective modification of child support. We reverse the' attorney’s fee judgment in part and remand for entry of the $3,500 credit. We affirm the dissolution of the parties’ marriage and affirm both judgments on all other issues.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . The former husband complains that the trial court did not put findings in the final judgment which explain its rationale for this award. However, the trial court stated its’ rationale in the transcript. There is no indication, in the record that the former husband complained to the trial judge about the fact that this orally-stated rationale was not included in the judgment.

      . The fact that the 10% threshold would be met distinguishes the present case from Argento v. Argento, 842 So.2d 182 (Fla. 2d DCA 2003).


text:
    Russell F. TAPTICH, Appellant, v. William DICKSON, Chairman, Escambia County Value Adjustment Board; Chris Jones, Escambia County Property Appraiser; Janet Holley, Escambia County Tax Collector; and David Beggs, Property Tax Administration Program Director, Florida Department of Revenue, Appellees.
    No. 1D04-1813.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2004.
    Appellant, pro se.
    Stephen G. West, Escambia County Attorney’s' Office, - Pensacola; Thomas F. Condon, Pensacola; and Robert A. Emmanuel, Pensacola, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 20, 2004, the Court has determined that the order on appeal is not a final order. Specifically, although the order grants a motion to dismiss with regard to defendants William Dickson and the Escambia County Value Adjustment Board, the order does not actually dismiss the claims pending against them. It is well-settled that an order that merely grants a motion to dismiss without actually dismissing the case is not final. See Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Louis F. SELL, Appellant, v. Marilyn Rae SELL, Appellee.
    No. 3D04-142.
    District Court of Appeal of Florida, Third District.
    Rehearing Denied Sept. 24, 2004.
    June 30, 2004.
    Frigola, DeVane Dorl, and William N. DeVane, Jr., Marathon, and Edna L. Caruso, West Palm Beach, for appellant.
    Rudolph Leacock, LLP, and Howard Rudolph, and David Leacock, West Palm Beach; and Sheri Smallwood, Chartered, Sheri Smallwood, Key West, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

ON MOTION TO DISMISS GRANTED

We grant appellee Marilyn Rae Sell’s Motion to Dismiss this appeal. Rodriguez v. Rodriguez, 640 So.2d 133 (Fla. 3d DCA 1994); Gazil v. Gazil, 343 So.2d 595, 597 (Fla.1977) (“Where the appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal.”); McLemore v. McLemore, 567 So.2d 23, 24 (Fla. 1st DCA 1990); Segall v. Downtown Assocs., 546 So.2d 11, 12 (Fla. 3d DCA 1989); Keidaish v. Smith, 400 So.2d 90, 91 (Fla. 2d DCA 1981). An appellate court, however, should ordinarily provide a grace period prior to dismissing the appeal, within which time the appellant may comply with the violated trial court order and thereby prevent dismissal. See Davidson v. District Court of Appeal, Fourth Dist., 501 So.2d 603, 604 (Fla.1987); Pasin v. Pasin, 517 So.2d 742 (Fla. 4th DCA 1987). We therefore stay this dismissal for a period of ten (10) days to comply with the trial court’s order, or post the previously ordered bond.


text:
    Aldric D. MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2863.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 2004.

      Aldric D. Mad'dox,'Cross City, pro se. •
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), Maddox is prohibited from filing any additional pro se appeals, pleadings, motion and petitions relating to his prior convictions and sentences. Any pleadings or papers filed in this Court regarding Maddox’s convictions and sentences must be reviewed and signed by an attorney licensed to practice law in the. State of Florida. The Clerk of the Fifth District Court of Appeal is directed not to accept any further pro se pleadings or 'filings from the appellant.

PLEUS, MONACO and TORPY, 33., ‘ concur.


text:
    Clarence W. DOWNS, Petitioner, v. James CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 2D03-4364.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.
    Clarence W. Downs, pro se:
    Wendy Benner-Leon, Assistant General Counsel, Department of Corrections, Tallahassee; for Respondent.
   ON MOTION TO VACATE AS MOOT

PER CURIAM.

On August 13, 2004, this court treated Clarence Downs’ petition for writ of prohibition as a motion to enforce mandate and ordered the trial court to rule on Downs’ original petition for writ of mandamus/ha-beas corpus in accordance with our earlier decision in Downs v. Crosby, 874 So.2d 648 (Fla. 2d DCA 2004). However, it appears that the trial court ruled on Downs’ original petition while his petition for writ of prohibition was pending in this court. The trial court granted the petition and ordered the Department of Corrections to release Downs. A review of the Department’s records confirms that Downs was released from custody on August 16, 2004. Accordingly, we vacate the order of August 13, 2004, as moot.

NORTHCUTT, STRINGER, and KELLY, JJ., Concur.


author: KNOLL, J., | ¶ CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Pascal MARULLO
    No. 2004-O-1972.
    Supreme Court of Louisiana.
    Aug. 5, 2004.
   In Re Marullo, Pascal; — Defendant; Applying'for Motion to Reconsider Ad Hoc Appointment, Parish of Orleans.

Motion for reconsideration of judge ad hoc denied. The defendant may file a motion to recuse if he believes he has valid grounds therefore.

KNOLL, J.,

concurs. In the interest of judicial economy, I would remand defendant’s motion to reconsider to the trial court to treat as a motion to recuse, allowing defendant to supplement as appropriate.

CALOGERO, C.J., dissents and assigns reasons.

| ¶ CALOGERO, Chief Justice,

dissents and assigns reasons.

Retired Judge Walter Kollin was appointed ad hoc in this case following recu-sal of the judges of Criminal District Court for the Parish of Orleans. The appointment by the Court was at the recommendation of Justice Johnson and the undersigned Chief Justice, each of us last elected from the judicial district that includes all or part of Orleans and Jefferson Parishes.

I would not have made that appointment had I known that the victim has worked as a court reporter for the judges of the 24th Judicial District Court for the Parish of Jefferson, including now-retired Judge Walter Kollin.

I would, therefore, reconsider the appointment, replace Judge Kollin with a judge from outside the Parishes of Orleans and Jefferson, and appoint an ad hoc judge acceptable to the Justices of this Court.

The manner regarding appointment of ad hoc justices and judges is a discretionary matter, fully unrelated to La.Code Civ. Proc. art. 151 and the grounds for recusation of judges!

      . This is the procedure generally followed by this Court in assignments ad hoc, i.e., an initial recommendation from the Justice or Justices elected from the particular district.


author: JjPER CURIAM. |T CALOGERO It KNOLL, J.,

text:
    FORUM FOR EQUALITY PAC, A Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. LeBlanc, and William A. Schultz v. CITY OF NEW ORLEANS and The Honorable W. Fox McKeithen, In His Official Capacity as Secretary of State of Louisiana Only, and Not Individually.
    No. 2004-CA-2104.
    Supreme Court of Louisiana.
    Aug. 17, 2004.
   JjPER CURIAM.

The Honorable W. Fox McKeithen, in his capacity as Secretary of State of the State of Louisiana, invokes the appellate jurisdiction of this court to consider a judgment of the district court enjoining the State from placing a proposed constitutional amendment on the ballot for September 18, 2004.

La. Const, art. V, § 5(D) provides in pertinent part that a case shall be appeal-able to the supreme court if “a law or ordinance has been declared unconstitutional, ...” The judgment at issue does not declare a law or ordinance unconstitutional. Therefore, this court lacks appellate jurisdiction pursuant to La. Const, art. V, § 5(D). Appellate jurisdiction to review this judgment is vested in the court of appeal pursuant to La. Const, art. V, § 10(A).

Accordingly, it is ordered that the appeal be transferred to the Court of Appeal, Fourth Circuit to be scheduled and decided on an expedited basis.

CALOGERO, C.J., concurs and assigns reasons.

KNOLL, J., dissents and assigns reasons.

|T CALOGERO

Concurs and Assigns Reasons.

I concur in the majority’s decision to transfer this appeal to the Louisiana Fourth Circuit Court of Appeal. I would prefer that we construe the appeal lodged here as an alternative application for supervisory writs, then grant such application and set such case for briefing and oral argument in order to expedite the resolution of this important legal issue, time being of the essence.

It KNOLL, J.,

Dissenting.

Because of the time constraints involved in this matter concerning an important issue of statewide concern, I would consider the case under this court’s supervisory jurisdiction. Considering the matter under supervisory jurisdiction, I find the preliminary injunction goes outside the scope of relief requested in the petition and would vacate the preliminary injunction.


text:
    MALLARD BAY DRILLING, INC. v. John Neely KENNEDY, Secretary of Department of Revenue, State of Louisiana
    No. 2004-C-1089.
    Supreme Court of Louisiana.
    Sept. 3, 2004.
   In re Kennedy, John Neely Secretary; Louisiana State of; Revenue Department of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. H, Nos. 94900; to the Court of Appeal, Third Circuit, No. CA 03-1495.

In Re: John Kennedy, etc., applying for Writ of Certiorari and/or Review on the docket of the 16th Judicial District Court for the Parish of Iberia and No. 03-1495 on the docket of the Court of Appeal, Third Circuit, State of Louisiana.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “ It is ordered that the writ of review issue; that the District Court and. the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above, entitled case.


text:
    In re A. Edward HARDIN.
    No. 2004-OB-2259.
    Supreme Court of Louisiana.
    Sept. 7, 2004.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel, and the report of respondent’s treating physician attached thereto,

IT IS ORDERED that A. Edward Hardin, Louisiana Bar Roll, number 6537, be and he hereby is transferred to disability inactive status. Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Paul Henry KIDD.
    No. 2004-OB-2250.
    Supreme Court of Louisiana.
    Sept. 7, 2004.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel, and the report of respondent’s treating physician attached thereto,

IT IS ORDERED that Paul Henry Kidd, Louisiana Bar Roll number 7359, be and he hereby is transferred to disability inactive status. All disciplinary proceedings pending against respondent shall be deferred until such time as respondent resumes active status.

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

FOR THE COURT:

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


text:
    In re Gerald A. BOSWORTH.
    No. 2004-B-0755.
    Supreme Court of Louisiana.
    Sept. 21, 2004.
   ORDER

IT IS ORDERED that this disciplinary proceeding be and hereby is dismissed as moot, in light of our action this day in In re: Bosworth, 04-OB-1041.

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


text:
    In re Darien Dwaynne LESTER.
    No. 2004-B-0396.
    Supreme Court of Louisiana.
    Sept. 22, 2004.
   ORDER

Considering the recommendation of the hearing committee in this matter,

IT IS ORDERED that the hearing committee’s recommendation shall be accepted and the ODC’s motion for interim suspension be and hereby is denied. The ODC has not produced sufficient evidence demonstrating that respondent presently poses a substantial threat of serious harm to the public, as required by Supreme Court Rule XIX, § 19.2.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges, and/or the institution of new formal charges, as appropriate.

/s/ Catherine D. Kimball Justice, Supreme court of Louisiana


text:
    In re Calvin Benjamin LESTER, Jr.
    No. 2004-B-0395.
    Supreme Court of Louisiana.
    Sept. 22, 2004.
   ORDER

Considering the recommendation of the hearing committee in this matter,

IT IS ORDERED that the hearing committee’s recommendation shall be accepted and the ODC’s motion for interim suspension be and hereby is denied. The ODC has not produced sufficient evidence demonstrating that respondent presently poses a substantial threat of serious harm to the public, as required by Supreme Court Rule XIX, § 19.2.

IT IS FURTHER ORDERED that, this matter be remanded for consideration of the previously filed formal charges, and/or the institution of new formal charges, as appropriate.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    In re Edwin Jerome WILSON.
    No. 2004-B-1734.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations of serious attorney misconduct by ■ respondent, Edwin Jerome Wilson. Specifically, the ODC’s investigation revealed that respondent failed to act with reasonable diligence, failed to communicate with clients, failed to timely remit funds owed to clients and third parties, converted substantial amounts of client and third party funds to his own use, failed to properly withdraw from his representation of his clients and failed to protect the interests of his clients. Additionally, the investigation revealed respondent improperly shared fees with a suspended lawyer and facilitated the unauthorized practice of law by that lawyer. The investigation also showed respondent engaged in the unauthorized practice of law following his interim suspension by this court in In re: Wilson, 04-0861 (La.4/21/04), 871 So.2d 1090.

Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. The parties stipulate to respondent’s misconduct and seek his permanent disbarment from the practice of law.

Based on our review of the petition, we conclude respondent has engaged in some of the most serious professional infractions an attorney can commit. At least two of the permanent disbarment guidelines set forth in Rule XIX, Appendix E are applicable: Guideline 1 (“repeated or multiple instances of intentional conversion of client funds with substantial harm”) and Guideline 8 (“following notice, engaging in the | ^unauthorized practice of law ... during the period of time in which the lawyer is suspended from the practice of law or disbarred”).

Accordingly, we find permanent disbarment is an appropriate sanction and we will accept the petition for consent discipline.

DECREE

IT IS ORDERED that the Joint Petition for Consent Discipline be accepted and that the name of Edwin Jerome Wilson, Louisiana Bar Roll number 24253, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Carleen Vincent MARYLAND.
    No. 2003-OB-1173.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   ON APPLICATION FOR ADMISSION TO THE BAR.

PER CURIAM.

In re Maryland, Carleen Vincent;— Plaintiff; Applying for Petition for Review of the Decision of the Committee on Bar Admissions.

Petitioner, Carleen Vincent Maryland, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify her for admission to the Bar based upon character and fitness concerns. On petitioner’s application to this court, we appointed the Office of Disciplinary Counsel to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be denied admission to the practice of law. Neither petitioner nor the Committee objected to that recommendation.

The record of this matter reveals that petitioner, who is not licensed to practice law in any jurisdiction, provided a layman with substantive advice and analysis of legal issues and drafted legal pleadings that were filed by the layman in proper person. Petitioner was compensated for this work, which was not performed under the supervision of a licensed Louisiana attorney. Under these circumstances there can be no doubt that petitioner has engaged in the unauthorized practice of law. We therefore conclude petitioner has failed to meet her burden of proving that she has “good moral character” to be admitted to the Bar of this state. See Supreme Court Rule XVII, § 5(E). Accordingly, it is ordered that the application for admission be and hereby is denied.


text:
    DONNA G. R. v. JAMES B. R.
    No. 2004-C-1987.
    Supreme Court of Louisiana.
    Sept. 3, 2000.
   In re Rials, Donna G.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 469,357; to the Court of Appeal, Second Circuit, No. 39,005-CA.

Denied.


author: CALOGERO, C.J.,

text:
    Stacy Michael MEAUX v. Lucille GALTIER, et al.
    No. 2004-CC-1759.
    Supreme Court of Louisiana.
    Aug. 17, 2004.
   In re Hammond, John; Hammond, Geraldine; Hammond, Job;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. H, No. 2003-1042; to the Court of Appeal, Third Circuit, No(s). CW 04-00358, CW 04-00419.

Denied.

CALOGERO, C.J.,

would grant and remand to trial court for purposes of conducting a hearing to determine the applicability of Act. No. 530 of 2004.

KIMBALL, J., would grant for reasons assigned by Calogero, C.J.

WEIMER, J., would grant for reasons assigned by Calogero, C.J.