author: TORPY, J.

text:
    Ron SCHULTZ, as Property Appraiser of Citrus County, et al., Appellants, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., et al., Appellee.
    No. 5D02-2406.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      Denise A. Lyn of Lyn & Phipps, Inverness, and Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark T. Aliff, Assistant Attorney General, Tallahassee, for Appellants.
    John P. Harllee, III and Kimberly A. Bald, of Harllee & Bald, P.A., Bradenton, for Appellee.
   TORPY, J.

This is an ad valorem taxation dispute between the Citrus County Property Appraiser and other taxing authorities (hereinafter collectively “Appellant”) and Appel-lee, owner of a cable television franchise, involving the propriety of the assessment of portions of Appellee’s cable system. After trial without a jury, the lower court entered judgment resolving the disputed issues in Appellee’s favor. Appellant raises one issue on appeal, whether the court erred when it determined that “exterior cable drops” are not “tangible personal property” and thus not taxable. Because we conclude that the lower court erred on this point, we reverse that portion of the final judgment.

The facts pertaining to this issue are fairly simple and undisputed. Appellee’s cable system originates at the point where the signal is received. The signal traverses public utility easements, either below ground or on utility poles, via coaxial cable or fiber optic tube. It is then connected to the individual subscribers’ residences by “exterior cable drops,” which are either aerial drops from poles or underground connections.

The parties agree that the transmission lines in the public easements are taxable as the tangible personal property of Appel-lee. The parties also agree that the cables installed inside the subscribers’ residences (the interior portion of the drops), which are not owned, and are frequently not installed, by Appellee, are not taxable to Appellee. The point of disagreement between the parties is how to treat the exterior cable drops.

Appellee admits that it owns the exteri- or cable drops even though they traverse subscribers’ properties. Indeed, Appellee maintains the drops, replaces defective components and retains the right to remove them (albeit not exercised) if service is terminated. Furthermore, Appellee depreciates the cost of each drop on its federal income tax returns. Appellee’s expert valued the drops for all tax years in issue at two million eight hundred twenty three thousand dollars ($2,823,000). Because ownership is not an issue, the only issue to be resolved here is whether the drops are tangible or intangible personal property, the latter being exempt from the ad valo-rem taxation in question.

When authorized by general law, the constitution authorizes the county to levy ad valorem taxes on everything except “intangible personal property.” Art. VII, § 9, Fla. Const. General law permits the taxation of all “tangible personal property which is not immune under the state or federal constitutions from ad valorem taxation, in that county and taxing jurisdiction in which it is physically present on January 1 of each year.... ” § 192.032(2), Fla. Stat. (2001). No argument is advanced by Appellee that it or it’s property has an immunity from taxation. Instead, Appel-lee argues that the cable drops are not tangible property; rather, it urges that the drops should be classified as “make ready.” This argument was accepted by the trial judge who found that the cable drops are “similar to ‘make ready,’ ” and therefore not taxable. We think this argument is fallacious.

“Make ready” is not a defined phrase in the constitution, statutes or decisional law of Florida. The phrase, however, seems to have been adopted in this ease from a July 15, 1993, letter drafted by a technical ad-visor for the Department of Revenue, in which the advisor concluded that “make ready costs” are intangible property and not taxable. In the letter, addressed to the property appraiser of another county, the advisor described “make ready costs” as the costs incurred in moving power lines on utility poles to make room for a cable company’s lines. Because cable companies are required under franchise agreements with local governments to utilize existing utility poles and underground conduits, they must reimburse the utility companies for the utilities’ costs in moving their wires and equipment to make room for the cable lines. The Department’s ad-visor further explained that these make ready costs are:

analogous to transplanting a tree to clear the way for an underground cable line or pipeline, as a part of the cost of the easement. The transplanting of a tree would be part of the cost of the easement. If, later, the old cable or pipe were dug up and new cable or pipe installed, the cost of transplanting the tree would not be incurred a second time.

Using this analogy, the advisor concluded that “make ready costs” are costs incurred in acquiring the license to use the utility easement, and therefore “part of the value of the license agreements.” As such, “make ready costs” are not properly included in the valuation of the cable company’s tangible personal property.

Unlike the trial court, we fail to see the “similarity” between cable drops and “make ready costs,” except that both are expenses incurred by the cable company, a fact common to acquisitions and expenditures of every kind. The points of dissimilarity, however, are numerous. The cable company does not acquire an easement from its individual subscribers. Nor do the individual subscribers have to take any steps in preparation for the cable drop. The drop is nothing more than a physical connection between the cable system and the subscribers’ residences by way of coaxial cable. This connection is no less tangible and no less vital to signal transmission than any other physical part of the system. Without the drops, the system is unable to get the signals to the subscribers. Furthermore, unlike “make ready costs,” if the drop is removed due to deterioration, the cost must be incurred again. “Make ready,” conversely, involves nothing tangible and is not an integral part of a cable company’s signal transmission system. It is simply a one-time cost in “making ready” an easement. We conclude, therefore, that the trial judge erred in determining that cable drops are similar to “make ready” and therefore intangible.

Our conclusion that cable drops are not intangible personalty is supported by the statutory definitions of intangible and tangible personal property:

“Intangible personal property” means money, all evidences of debt owed to the taxpayer, all evidences of ownership in a corporation or other business organization having multiple owners, and all other forms of property where value is based upon that which the property represents rather than its own intrinsic value.

§ 192.001(11)0»), Fla. Stat. (2001).

“Tangible personal property” means all goods, chattels, and other articles of value ... capable of manual possession and whose chief value is intrinsic to the article itself.

§ 192.001(ll)(d), Fla. Stat. (2001).

These definitions clearly distinguish intangible property, such as stock certificates, where the item represents something of value, from tangible property, which represents nothing, but which has intrinsic value. Cable drops are clearly tangible. They are a good. Their only value is their intrinsic value. They are capable of manual possession. Conversely, they are not intangible by definition because they are not evidences of debt or ownership, and they do not represent some other property.

In concluding that the exterior cable drops are taxable, we align our court with courts of other jurisdictions that have reached the same conclusion on this issue. See, e.g., Chillicothe Cablevision v. Tax Commissioner of Ohio, 1987 WL 12460 (Ohio Ct.App.1987) (provider liable for taxes on the drops because insufficient evidence presented that provider intended to relinquish ownership of drops to subscriber); Cox Cable of Cedar Rapids, Inc. v. Board of Review of City of Cedar Rapids, 521 N.W.2d 743 (Iowa 1994) (drops were taxable because owned by service provider); Continental Cablevision of Michigan v. City of Roseville, 430 Mich. 727, 425 N.W.2d 53 (1988) (drops taxable because owned by cable company). Although contrary authority exists, even those jurisdictions that have sided with cable companies on this issue have not found the drops to be intangible. Rather, they have based their decisions on factual findings by trial courts that ownership of the drops had been transferred to the customers. See, e.g., Comcast Cablevision of Sterling Heights v. City of Sterling Heights, 218 Mich.App. 8, 553 N.W.2d 627, 629 (1996) (drop not taxable to provider because contract between cable company and owner transferred ownership of drop to customer upon installation). Bylund v. Dept. of Revenue, 9 Or. Tax 76 (Or. T.C.1981) (drops, both aerial and underground, and both exterior and interior, should be treated by the tax assessor as fixtures which belong to the homeowner and which should be taxed as realty rather than personal property); T-V Transmission, Inc. v. County Bd. of Equalization of Pawnee County, 215 Neb. 363, 338 N.W.2d 752 (1983) (cable company upon installation abandoned any claim on the property in question in favor of homeowner). Here, if the trial judge had made a factual finding that Appellee did not own the drops, a different case would have been presented. Given that there was no question here that the cable provider continued to own the exterior portion of the drop, however, we see no basis to conclude that this tangible property is not subject to ad valorem taxation.

We hold, therefore, that the lower court’s conclusion that “exterior cable drops” are not taxable is erroneous and is, therefore, reversed. In all other respects, the decision of the trial court is affirmed. This cause is remanded for further proceedings consistent herewith.

AFFIRMED in part; REVERSED in part and remanded.

PETERSON and THOMPSON, JJ., concur.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Rosa Elena TORREALBA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1881.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Rosa Elena Torrealba appeals her judgment of conviction and sentence for sexual battery with great force and kidnapping, and the trial court’s denial of her motion for judgment of acquittal. We affirm because there is sufficient evidence to support the jury’s verdict when the evidence is viewed in the light most favorable to the appellee State of Florida.

The evidence at trial established that soon after they first met Torrealba developed a sexual relationship with an individual hereinafter referred to as “J.L.,” the victim in this case. Torrealba later told J.L. that she had an ex-boyfriend, Franz Rigg, with whom she had a current sexual relationship and that Rigg knew of her newly developed sexual activities with J.L.

Thereafter Torrealba invited J.L. over to her apartment and, prior to their scheduled meeting, she told J.L. that “Steve,” her homosexual roommate, would be there. “Steve,” however, was actually Rigg, whom J.L. had never met. At the apartment, she encouraged J.L. to drink a total of three alcoholic drinks. The drinks made J.L. a little lightheaded, hyper and weird, and caused him to become very talkative. He noticed that everything looked more intense and he experienced a totally different feeling.

Torrealba told J.L. that “Steve” was in the apartment getting ready for a party. She went into “Steve’s” room where she remained for about ten minutes. She then introduced Rigg to J.L. as Steve. When Rigg said that he was leaving, J.L. approached him to say goodbye and shake his hand. At that point, Rigg attacked him, smashing J.L.’s head onto the floor and walls, and telling J.L. that “this is what you get for having sex with girls on the first date” and “what kind of a man are you having sex with girls on the first date?” Rigg also told J.L. that he was going to “lose control of [his] body in about 15 minutes” and that, if J.L. resisted, he would break J.L.’s neck. Rigg also told J.L. that he had a “large dildo” and that “we are going to put it in you, and we are going to put it on the internet.”

J.L. immediately felt a prick on his neck and then became paralyzed and dropped to the floor. He also felt like he was being dragged, then felt a painful pushing, thrusting sensation in his rectum. When he awoke, he found himself leaning against a bed with his pants down to his ankles. J.L. was in pain and bleeding from the rectum. He recalled that Rigg and Torre-alba were in front of him and they were talking to each other. During her conversation with Rigg, Torrealba asked whether J.L. could still get into law school.

Once outside of the apartment, J.L. asked Torrealba why she had set him up. She then appeared really nervous and scared, and she told J.L. that he was just having a bad trip and returned to her apartment.

J.L. was later treated at a rape treatment center and reported the incident to the police. Torrealba thereafter called J.L. and told him that she had retained a lawyer and she wanted to know what his intentions were. Torrealba later asked Rigg where she could locate a steam cleaner.

In addition to J.L., the State presented several witnesses, including H. Chip Walls, the Technical Director of the Forensic Toxicology Laboratory at the University of Miami School of Medicine, who conducted a blood and urine exam upon J.L. two days after J.L.’s attack. Walls testified that J.L’s urine toxicology exam revealed the presence of Ketamine, as well as its metabolites. Walls further testified that Keta-mine is an anesthetic drug used for its ability to produce a sedated state by decreasing brain activity and blocking the body’s pain mechanism. Metabolites are the breakdown products of a particular drug or chemical. At the close of the State’s case, the defense moved for a judgment of acquittal, and the trial court denied the motion. Torrealba did not testify at her trial nor did any witnesses testify on her behalf. The jury subsequently found Torrealba guilty.

On review of the denial of a motion for judgment of acquittal, an appellate court must view any evidentiary conflicts in the light most favorable to the State. See Woods v. State, 733 So.2d 980, 985 (Fla.1999). If there is competent, substantial evidence to support a jury’s verdict, the verdict will not be overturned on appeal. Id.

Torrealba argues that there is no direct evidence that she participated in the sexual battery or kidnaping; knew that Rigg intended to commit a sexual battery and a kidnaping; or that she intended to assist Rigg in the commission of any such crimes. We find, however, that the evidence adduced at trial in this case is sufficient to support the conviction when the evidence is viewed in the light most favorable to the State.

The jury could have reasonably concluded that Torrealba knowingly and intentionally participated in the charged crimes based upon J.L.’s testimony about her behavior before and after the incident, all of which reflected a consciousness of guilt on her part. See A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991) (evidence concerning the juvenile’s actions both before and after his companions stole condoms from store, was sufficient to support the order adjudicating the juvenile delinquent for offense of petit theft as an aider and abettor).

Torrealba invited J.L. to her apartment and twice confirmed telephonically their scheduled meeting. She offered J.L. alcoholic drinks that helped impair him, and actually encouraged him to drink. She lied to J.L. about Rigg’s true identity, and more'significantly, she withheld telling him that Rigg would be at the apartment on his visit while knowing that Rigg was well aware of her relationship with J.L.' and that Rigg did not approve of that relationship. During her conversation with Rigg following the incident, she asked about J.L.’s ability to get into law school. When J.L. later confronted her and asked her why she had set him up, she appeared anxious and restless, and did not deny that she had set him up. At no time did Torre-alba appear at all to be concerned with J.L.’s well-being nor did she contact the authorities during or following the attack on J.L., despite her presence at the apartment at the time of the attack and when J.L. awoke; despite the nature of the crimes; and despite the extent of J.L.’s injuries which included blood loss: J.L.’s urine exam also revealed traces of the Ketamine illegal substance'to which use J.L. did not consent.

All of these facts, when viewed in the aggregate, demonstrate a consciousness of guilt on Torrealba’s part. They provided the jury with a reasonable basis to conclude that Torrealba knew of Rigg’s intentions with regards to J.L. and intended to participate in the charged crimes, and thus support the jury’s finding of guilt. The trial court therefore properly denied Tor-realba’s motion for judgment of acquittal. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974) (holding that motions for judgment of acquittal should only be granted when it is apparent that no legally sufficient evidence has been submitted from which a jury could find a verdict of guilty).

Affirmed.


author: SHARP, W., J.

text:
    Mark J. WEILER, Appellant, v. Alexandria G. WEILER, Appellee.
    No. 5D03-541.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Rehearing Denied Dec. 30, 2003.

      Gregory E. Tucci, Ocala, for Appellant.
    Edwin A. Green III, of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   SHARP, W., J.

Mark Weiler, the husband in a dissolution case filed by Alexandria Weiler, his wife, appeals from the trial court’s denial of his motion to dismiss the petition for lack of personal jurisdiction over him under the long arm statute. An evidentiary hearing was held on this motion, after which the lower court ruled that Mark’s contacts with Florida satisfied the requisites for personal jurisdiction. Our review of this order is de novo. We reverse because we find that the evidence does not support the allegations of the petition seeking to establish personal jurisdiction over Mark.

The facts in this case are not in dispute. The parties were residents of Illinois and were married in that state. They first lived in Illinois, in a home owned by the husband. Later they moved to another Illinois residence. Thereafter, Mark’s Illinois corporation, MW Asset Management, purchased investment farm property in Reddick, Florida. He formed an Illinois corporation, Color Me Farm, Inc., to conduct business on the Reddick property as a horse farm. Alexandria is the president of Color Me Farm, and she supervises its day to day operations. The farm’s vehicles are registered in Florida.

Alexandria established she is a Florida resident. She is registered to vote in Florida, and she has a Florida driver’s license. The wife testified that the parties lived together on the Florida farm from November of 1997 until May of 2001, when Mark went to Colorado. Currently, Alexandria continues to live on the farm. Currently, Mark resides in Colorado, occupying corporately-owned property, which was purchased as an investment in a 1031 exchange. He testified that all of the furnishings in the Colorado residence are owned by the corporation.

During their marriage, the parties established a mobile lifestyle. Mark traveled extensively for business reasons. Alexandria also traveled frequently, but not to the same extent. The husband testified that he travels three weeks out of every month and that in 2001, the year preceding this action, he had been in Florida, Colorado, Illinois, Wisconsin, Michigan, Indiana, Tennessee, Ohio, France and England. Alexandria’s testimony indicates that for the six-month period prior to filing the petition for dissolution, she spent three to four months in Colorado and Texas.

Mark continues to own the home in Illinois, in which he allows family members to reside Alexandria’s mother and grandmother). He is registered to vote in Illinois, and he has an Illinois driver’s license. Mark’s businesses are run by Illinois corporations. Mark testified he has always considered himself a resident of Illinois and that he never had an intent to become a Florida resident.

After the parties began living in Florida in November of 1997 on the Florida farm, they continued to file state and federal income tax returns using Illinois as their residence for the tax years 1998, 1999, 2000 and 2001. This resulted in their making large state tax payments to Illinois. Alexandria testified she executed all of these tax returns and that her signature was not forged on any of them.

In September of 2002, Alexandria filed this petition for dissolution of marriage in Florida. In her petition, she alleged:

3. Residency — Long Arm Jurisdiction. The wife has been a resident of Florida for more than six months next before the filing of this Petition. Husband and wife maintained a matrimonial domicile in the state; and the cause of action has arisen from the acts or omissions occurring in the State of Florida, (emphasis added)

At the conclusion of the evidentiary hearing on Mark’s motions, the trial judge found that Alexandria was a legal resident of Florida, but it made no determination as to the husband’s domicile. In denying the husband’s motion to quash long-arm service of process, the trial court merely found:

[T]his Court finds by clear and convincing evidence, Marion County, Florida, is the last place these parties lived together as husband and wife with the common intent to stay married, and that Florida has jurisdiction over the divorce and over Mr. Weiler.

The trial court did not state the basis for its conclusion that it had personal jurisdiction over the husband.

In determining if personal jurisdiction is proper under the long-arm statute, the trial court must first determine whether the complaint alleges sufficient jurisdictional facts to bring it under the statute. Northwestern Aircraft Capital Corp. v. Stewart, 842 So.2d 190 (Fla. 5th DCA 2003). If the allegations are disputed, the court must hold, as it did in this case, an evidentiary hearing. See, OSI Industries, Inc. v. Carter, 834 So.2d 362 (Fla. 5th DCA 2003); Law Offices of Sybil Shainwald v. Ban-o, 817 So.2d 873 (Fla. 5th DCA 2002). A comparison of the allegations in the petition and the facts adduced at the hearing reveals that the petition is not supported by the facts.

The long-arm section 48.193(l)(e), Florida Statutes (2002) provides:

48.193 Acts subjecting person to jurisdiction of courts of state—
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of commencement of this action or, if the defendant is a resident of this state preceding the commencement of this action, whether cohabiting during that time or not.

The statute sets forth two ways in which a plaintiff may obtain personal jurisdiction over someone who is absent from the state in a family law context: (1) if the individual maintained a “matrimonial domicile ” at the time the action was commenced, or, (2) if the defendant was a resident of this state preceding the commencement of the action whether cohabiting or not.

There is a difference between the terms “domicile” (sometimes referred to as legal, permanent or primary residence) and “residence.” McCarthy v. Alexander, 786 So.2d 1284 (Fla. 2d DCA 2001). Domicile involves the intent of an individual to make Florida his or her legal residence. McCarthy. It is the place where an individual has a true, fixed and permanent home, to which he intends to return whenever he is absent. See Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694 (1929); Keveloh v. Carter, 699 So.2d 285 (Fla. 5th DCA 1997); Latta v. Latta, 654 So.2d 1043 (Fla. 1st DCA 1995). A person can have only one legal residence or domicile. Kev-eloh.

On the other hand, a person may have several “residences.” Keveloh; Walker v. Harris, 398 So.2d 955 (Fla. 4th DCA 1981). See also Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927). The difference between domicile and residence is a matter of objective fact. McCarthy.

Domicile is established when there is a good faith intention to establish a particular residence as a permanent home, coupled with the physical move to the new residence, as evidenced by positive overt acts. Keveloh. The best proof of domicile is where the individual says it is, because intent is highly significant. Keveloh. Removal from one’s domiciliary jurisdiction without the intent to change one’s domicile is insufficient. Keveloh. Once established domicile continues until it is superceded by a new domicile. Wade (if party is a bona fide resident of state, mere absence intending to return will not divest courts of jurisdiction); Keveloh.

The requirement in section 48.193(l)(e) that the parties maintain a “matrimonial domicile” at the time of the commencement of the action means, by definition, that their permanent place of matrimonial abode is in Florida. The record in this case establishes that the parties’ considered their permanent place of matrimonial abode to be Illinois through 2001, as evidenced by their state and federal income tax returns, during the period of time the wife claims Florida was their matrimonial domicile. Further, the Florida farm was just one of several corporate residences the parties used, and it was the wife’s place of business as well. As noted in Farrell v. Farrell, 710 So.2d 151, 152 (Fla. 3d DCA 1998), matrimonial domicile is a place where the parties live together as husband and wife either actually or constructively. See also Forrest v. Forrest, 839 So.2d 839 (Fla. 4th DCA 2003), citing Farrell.

At some point, Alexandria registered to vote in Florida and obtained a Florida driver’s license. However, Mark never did so and Florida was never his domicile. He continued his driver’s license and voter’s registration in Illinois, and continued to own the Illinois home in which family members resided.

We reject the idea that one spouse may unilaterally change the parties’ matrimonial domicile simply by changing his or her driver’s license and voter registration, without evidence of a corresponding mutual intent on the part of the other spouse to do so. Were we to decide otherwise, it would encourage a limited type of “forum shopping” on the part of a spouse seeking to sever his or her marriage.

Additionally, even if the Florida farm could have been considered the parties’ marital domicile at one time, Mark was not staying or living at the Florida farm at the time of the commencement of this action, as required by section 48.193(l)(e). Alexandria testified that Mark began living in Colorado in May of 2001. Her petition was not filed until September of 2002, some sixteen months later. In the interim, the parties stayed together as husband and wife for brief periods of time in Colorado in May and the summer of 2002. Under these undisputed facts, the wife has failed to establish that the parties maintained a marital domicile in Florida at the time of the commencement of this action pursuant to section 48.193(l)(e).

Nor can personal jurisdiction over the husband be established by the alternative clause in section 48.193(l)(e), which provides for personal jurisdiction over a person who is a “resident” of this state preceding the commencement of this action, because the wife’s petition failed to allege this alternative means of jurisdiction. Where a party seeks to obtain personal jurisdiction over another under the long arm statute in a dissolution of marriage action, the party must allege the requisite jurisdictional facts. McMahan v. McMahan, 826 So.2d 1024, 1025 (Fla. 3d DCA 2001). To effect service of process under the long arm statute, specific allegations demonstrating the jurisdictional facts must be alleged. McMahan.

Failure to adequately allege the relevant jurisdictional basis voids any attempted service under the long-arm statute. Id. See also Feder v. Feder, 526 So.2d 780, 781 (Fla. 3d DCA 1988); Plummer v. Hoover, 519 So.2d 1158 (Fla. 5th DCA 1988); Mouzon v. Mouzon, 458 So.2d 381, 383 (Fla. 5th DCA 1984). In this case, the wife only alleged that the parties “maintained a matrimonial domicile in the state”; there was no allegation that the husband was a resident of Florida, preceding the commencement of the action.

In any event, the facts in this case refute any possible finding of residency in Florida on Mark’s part at any time close to the filing of the petition. The phrase in the statute “preceding commencement of the action” has been deemed to mean “proximately preceding the commencement of the action” (ie., the proximity requirement). Garrett v. Garrett, 652 So.2d 378 (Fla. 1st DCA 1994), approved, 668 So.2d 991 (Fla.1996); Shammay v. Shammay, 491 So.2d 284 (Fla. 3d DCA 1986). The proximity requirement is determined in light of the totality of the circumstances. Shammay. The fact that a defendant resided in Florida at some point in time is insufficient to support jurisdiction under this clause. Garrett; Shammay. See also Squitieri v. Squitieri, 196 N.J.Super. 76, 481 A.2d 585 (1984); Bofonchik v. Smith, 622 So.2d 1355 (Fla. 1st DCA 1993)(living in Florida from 1984 to 1986 insufficient to confer personal jurisdiction).

We therefore must reverse the order and quash the service of process on the husband.

REVERSED and SERVICE QUASHED.

PETERSON and PLEUS, JJ., concur.

      . § 48.193(l)(e), Fla. Stat. (2002).

      . See OSI Industries, Inc. v. Carter, 834 So.2d 362 (Fla. 5th DCA 2003).

      .Mark owns, in his individual capacity, a vacant piece of property next to the farm.

      . This property is a homestead under Illinois law.

      . The wife’s petition alleges that a “marital home was acquired during the marriage.” She also requests exclusive use and occupancy of the marital home pendente lite and permanently, plus a special equity. These requests do not square with the record, which indicates that the only place in which the parties lived in Florida was on the farm, and that it was a business owned by an Illinois corporation.

      . At the hearing, the trial judge stated that he was trying to separate domicile from residence, because "our statute in Florida doesn't require domicile, it requires residence.” The judge also asked the attorneys to think about the possibility that Florida was not the husband's home. He observed that the lawyers were focusing on whether the husband had made Florida his domicile or primary residence. He said that Florida was clearly the wife's residence, but questioned whether there were sufficient (minimum) contacts to subject the husband to jurisdiction in Florida. Minimum contacts are not built into the long-arm statute. Venetian Salami v. J.S. Parthenais, 554 So.2d 499 (Fla.1989).

      . Section 48.193(1) requires that the cause of action must arise from one of the enumerated statutory acts or omissions. See also, Morgan v. Morgan, 679 So.2d 342 (Fla. 2d DCA 1996); Garrett v. Garrett, 652 So.2d 378 (Fla. 1st DCA 1994), approved, 668 So.2d 991 (Fla.1996); Soule v. Rosasco-Soule, 386 So.2d 862 (Fla. 1st DCA 1980).

      . The Legislature is presumed to know the meaning of words and rules of grammar. Florida State Racing Commission v. Bourquardez, 42 So.2d 87, 88 (Fla.1949); Campus Crusade for Christ v. Unemployment Appeals Commission, 702 So.2d 572 (Fla. 5th DCA 1997).

      . Apparently, in 1998.

      . Evidence of domicile includes, inter alia: income and other tax returns; homestead exemptions; voting registration; driver’s license; place of business affairs; use of “residence”; and number of days in the state. Tiso, Long-Arm Jurisdiction in Support and Divorce Actions — The Unwary Beware, 76 Fla. B.J. 91.

        .See generally, Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86, 88 (Fla.1996), where the supreme court observed that, "[n]othing in our Constitution compels the taxpayers to spend their money ... [for] forum shopping.”


author: THOMPSON, J.

text:
    Robert Derek LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2221.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Rehearing Denied Dec. 24, 2003.
    Harley I. Gutin, Cocoa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Robert Derek Lewis appeals an order denying his motion for post conviction relief. Lewis was convicted of capital sexual battery and contends that he had ineffective assistance of counsel. We affirm.

After his conviction was affirmed, see Lewis v. State, 719 So.2d 333 (Fla. 5th DCA 1998), Lewis filed a motion for post conviction relief alleging twelve instances of ineffective assistance of counsel. In Spencer v. State, 842 So.2d 52 (Fla.2003), the supreme court wrote:

In order to prevail on a claim of ineffective assistance of trial counsel, a defendant must demonstrate that (1) counsel’s performance was deficient and (2) there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In reviewing counsel’s performance, the court must be highly deferential to counsel, and in assessing the performance, every effort must “be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; see also Rivera v. Dugger, 629 So.2d 105, 107 (Fla.1993). As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; see also Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). For the prejudice prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052, 80 L.Ed.2d 674; see also Valle v. State, 705 So.2d 1331, 1333 (Fla. 1997).

Id. at 61.

After reviewing the record and considering the criteria of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we find no error.

AFFIRMED.

SHARP, W., and ORFINGER, JJ., concur.

      . Lewis was charged with one count of sexual battery on a person less than twelve years old after he confessed to a detective during a taped statement that he performed these acts on the victim. See § 794.01 l(8)(c), Fla. Stat.


author: PLEUS, J.

text:
    Jonel OCER, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D03-2, 5D03-2472.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Rehearing Denied Dec. 30, 2003.
    Jonel Ocer, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

The November 6, 2002 and December 5, 2002 orders denying the defendant’s motion for post-conviction relief as to the five prosecutions resolved by nolo pleas are affirmed. See Cella v. State, 831 So.2d 716 (Fla. 5th DCA 2002).

The trial court, however, erred in summarily denying post-conviction relief in Circuit Court Case No.l999-CF-1254-0/A. The December 5, 2002 order does not recite why relief was being denied in that case and rather inexplicably lumps that case in with the plea cases even though Case No.l999-CF-1254-0/A did not involve a nolo plea, but rather involved a conviction obtained pursuant to a jury trial. The December 5, 2002 order as it relates to Case No.l999-CF-1254-0/A is reversed and the cause remanded for consideration of the defendant’s September 7, 2001 motion for post-conviction relief.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

SAWAYA, C.J., and ORFINGER, J., concur.

      . By order of this court, the defendant was granted a belated appeal in connection with the denial of post-conviction relief in Case NO.1999-CF-1254-0/A.

      . The motion for post-conviction relief relating to Case No.l999-CF-1254-0/A asserted two ineffective assistance of counsel claims. Through inadvertence or confusion, these issues were never addressed by the trial court.


author: PER CURIAM.

text:
    GOLD COAST EAGLE DISTRIBUTING, INC., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Scott P. Sawin, Appellees.
    No. 1D03-992.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.

      Brian Koji of Allen, Norton & Blue, P.A., Tampa, for Appellant.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission Tallahassee, for Appellees.
   PER CURIAM.

Appellant, Gold Coast Eagle Distributing, Inc. (Gold Coast), seeks review of an order of Appellee, the Unemployment Appeals Commission (UAC), which affirmed the appeals referee’s dismissal of Gold Coast’s appeal as untimely filed. We reverse and remand for further proceedings consistent with this opinion.

The claimant, Appellee Scott Sawin, was granted unemployment benefits by notice mailed August 12, 2002, after he was discharged from employment with Gold Coast. At a hearing on the determination, the appeals referee stated that although Gold Coast’s notice of appéal was dated August 14, 2002, the appeals office did not receive the faxed notice of appeal within the time limitations set forth in Florida Administrative Code Rule 60BB-5.005(1). Gold Coast presented as evidence of a timely appeal a fax confirmation which reflected that its notice of appeal was successfully transmitted by fax to the appeals office on August 14, 2002. The appeals referee, however, found that it did not have jurisdiction to hear the case because the notice of appeal was not timely filed. The UAC affirmed the decision of the appeals referee.

We find that a fax confirmation is sufficient to create a question of fact as to whether a faxed notice of appeal was timely filed. Upon a party’s submission of such evidence, the burden shifts to the appeals office to demonstrate that the appeal was not timely filed. See Langworthy v. Unemployment Appeals Comm’n and Communication Installation & Cisco, 858 So.2d 1187 (Fla. 2d DCA 2003). Accordingly, we reverse and remand with directions for the appeals referee to conduct a hearing on the timeliness of the appeal consistent with this opinion. See also Nickolanr-Barron v. Florida Unemployment Appeals Comm’n, 859 So.2d 594 (Fla. 1st DCA 2003).

BARFIELD, ALLEN and DAVIS, JJ., concur.


text:
    Wallace J. WRIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2335.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 2003.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Glover v. State, 815 So.2d 698 (Fla. 5th DCA 2002), approved, 863 So.2d 236, 2003 WL 22250405 (Fla. October 2, 2003).

PETERSON, THOMPSON and TORPY, JJ., concur.


text:
    ORKIN EXTERMINATING COMPANY, INC., Appellant, v. A.C. CONDOMINIUM ASSOCIATION, INC., et al., Appellee.
    No. 5D02-3890.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 2003.
    Mario Orlin Leach of Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia; Daniel J. Gerber and Richard S. Geller of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
    J. Timothy Schulte and Carlos M. Colombo of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellee Ashley Court Condominium.
    Julie Hions O’Kane of DeBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellees Central Property Management and Edith Hernquist.
   PER CURIAM.

AFFIRMED. See Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001).

SAWAYA, C.J., PLEUS and MONACO, JJ., concur.


text:
    Robert A. OLAWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1525.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 2003.
    James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. Olawski, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA1982).

PETERSON, PLEUS and MONACO, JJ., concur.


author: COPE, J.

text:
    Jack SHARPE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3474.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Abe Bailey, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GODERICH, JJ.
   COPE, J.

Jack Sharpe appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which was entered after an evidentiary hearing. We affirm.

Defendant-appellant Sharpe was convicted of burglary of an unoccupied dwelling. He was adjudicated a habitual offender and sentenced to five years incarceration.

On his postconviction motion, the evidence showed that prior to trial the defendant was offered a plea bargain of twenty-seven months. He testified that defense counsel told him the prosecution had a weak case, that the defense could win the case at trial, that his maximum exposure was a misdemeanor sentence for trespass, and that he should reject the plea bargain.

Defense counsel was an experienced trial attorney who had represented defendants in approximately seventy-five to eighty previous trials. He testified that in this case the defendant maintained his innocence of the charges. Defense counsel told the defendant that the plea offer was reasonable; that trial would expose the defendant to a risk of habitualization and a maximum sentence of thirty years; that the defense had a strong position; and that under the facts of the case, the outcome could go either way. Counsel said he did not make a specific recommendation whether the defendant should accept or reject the plea bargain. Instead, he outlined the defendant’s options and left the decision up to the defendant.

The trial judge who conducted the evi-dentiary hearing was the same trial judge who had presided at the defendant’s criminal trial, and remembered the ease. In the trial court’s oral pronouncements, the court agreed with defense counsel’s assessment that the verdict in the case could have gone either way. The court resolved the material disputes in the testimony in favor of defense counsel. The court rejected the defendant’s claim that defense counsel recommended that the defendant go to trial. The court accepted defense counsel’s testimony that he advised the defendant of his options, and left the decision to the defendant. R. 104-05.

The trial court concluded that the defendant “has not demonstrated that his attorney fell below an objective standard of reasonableness.” R. 63. Thus, the defendant failed to satisfy the test for making a claim for ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court’s findings are supported by the record and we affirm on that basis.

Because the trial court’s factual findings are dispositive, we need not reach the trial court’s alternative rejection of the defendant’s claim on authority of Gonzales v. State, 691 So.2d 602 (Fla. 4th DCA 1997). Gonzales takes the position that there can be no such thing as ineffective assistance of counsel where counsel recommends that a defendant reject a favorable plea offer and proceed to trial, so long as counsel has informed the defendant of the maximum sentence the defendant faces. Id. at 603-04. The court reasoned that since juries are unpredictable, it follows that an attorney’s advice to a client to reject a plea offer and proceed to trial is not “capable of being evaluated by any ‘objective’ standard of reasonableness as contemplated by Strickland.” Id. at 604.

We have taken the opposite position in this district. See Gomez v. State, 832 So.2d 793 (Fla. 3d DCA 2002). There a defendant turned down a favorable plea offer because of allegedly ineffective advice that the defense would win a pending motion to suppress evidence. We held the defendant was entitled to an evidentiary hearing on the claim of ineffective assistance.

As we view the matter, the decision in Strickland v. Washington supplies the framework for analysis of claims of ineffective assistance of counsel. While the Strickland decision is highly deferential to decisions made by counsel, they are subject to review if they fall outside Strickland’s expansive boundaries. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We do not understand Strickland and its progeny to contain a “take it to trial” exemption. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

While we doubt that Gonzales is correctly decided, that is immaterial in this case, given that under the trial court’s factual findings, the defendant is not entitled to relief.

Affirmed.

       This court has previously cited Gonzales, but not for the proposition we address here. See

        Varela v. State, 711 So.2d 1343 (Fla. 3d DCA 1998).


author: GROSS, J.

text:
    Arnold GOODMAN, an individual, and Maurice Goodman, an individual, Appellants, v. TECTONICS UNLIMITED, INC., a Florida corporation, Appellee.
    No. 4D03-3121.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Bruce A. Goodman of Moore & Goodman, P.A., Fort Lauderdale, for appellants.
    Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellee.
   GROSS, J.

Pursuant to Florida Rule of Appellate Procedure 9.400(c), appellants seek review of an award of appellate attorney’s fees under section 713.29, Florida Statutes (2002).

Appellee’s fee agreement with its attorney was a partial contingency-fee arrangement, where “an attorney is guaranteed a fee that is less than his or her customary reasonable fee if the client loses, but the opportunity for an enhanced fee if the client prevails.” Lane v. Head, 566 So.2d 508, 509 n. 1 (Fla.1990). Appellee agreed to pay its appellate attorney $1,500.00 as a “partial, flat fee.” The fee agreement contemplated that if appellee prevailed in the appeal, the attorney would seek a court awarded fee; if the attorney collected the awarded fee from appellants, the attorney would refund up to $1,500.00 to appellee.

After an evidentiary hearing, the trial court awarded an appellate attorney’s fee of $13,905.02.

Appellants’ main argument is that “a party cannot recover attorney’s fees in an amount greater than the amount for which the party is legally obligated to pay its attorney.” For that proposition, they rely primarily on Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998 (Fla. 4th DCA 1996). There, an attorney billed a client $36,377.50, based on an hourly rate. The trial court awarded attorney’s fees of $52,010. We reversed because the fee award exceeded “the actual fee agreement or the amount for which the client [was] in fact responsible.” Id. at 1000.

Unlike Nelson, this was not a case where the attorney-client contract made the client responsible for an hourly rate, and nothing more. The award of fees did not exceed the fee agreement between ap-pellee and its attorney; that partial contingency-fee arrangement contemplated that the attorney could seek an amount greater than $1,500.00 from the court. See Kaufman v. MacDonald, 557 So.2d 572, 573 (Fla.1990).

The motion for review is denied.

KLEIN and TAYLOR, JJ., concur.


text:
    Jeffrey Newton MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1977.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Troy T. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1714.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

SAWAYA, C.J., PLEUS and MONACO, JJ., concur.


text:
    James Robert NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1095.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2003.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


text:
    Mark MCGEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-117.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Woods v. State, 733 So.2d 980 (Fla.1999); Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003).

THOMPSON, PALMER, and MONACO, JJ., concur.


text:
    Jeffrey Allen KAHM, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3485.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2003.
    James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003).

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


author: WARNER, J.

text:
    Gregory LAVIN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-2579.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Rehearing Denied Jan. 14, 2004.
    Gregory Lavin, Sanderson, pro se.
    No response required for respondent.
   WARNER, J.

We deny the petition seeking a new appeal on the ground that petitioner received ineffective assistance of appellate counsel. We write to address petitioner’s contention that counsel was ineffective for failing to obtain a full appellate record. Petitioner has also filed a motion to supplement this petition with copies of the transcripts of the missing hearings. We hold that appellate counsel was not ineffective for failing to order transcripts of the hearings when petitioner has not alleged a specific error which occurred during the untranscribed portions of the record.

Petitioner was convicted and sentenced for burglary and robbery. He timely appealed his conviction. Appellate counsel raised as issues the insufficiency of the evidence on both charges and fundamental error in the burglary instruction. This court per curiam affirmed. See Lavin v. State, 842 So.2d 126 (Fla. 4th DCA 2003).

In his petition seeking a new appeal, petitioner alleges that his appellate counsel was ineffective because he failed to obtain a full appellate record. Counsel requested transcripts of the trial and sentencing hearing. He did not obtain transcripts of preliminary hearings.

Petitioner argues that he was prejudiced by counsel’s failure to obtain the transcripts because without them, neither appellate counsel nor he could determine whether there was reversible error during these proceedings, as appellate counsel did not represent petitioner at trial. Petitioner represented himself during the trial proceedings and was appointed' stand-by counsel. Petitioner’s stand-by trial counsel, who was then appointed to represent him fully at sentencing, filed the designations to reporter and did not request transcription of any prior proceedings. See Fla. R.App. P. 9.140(f)(2)(A) (requiring trial counsel to file designation to court reporter requiring preparation of transcript of proceedings necessary to support the issues raised on appeal).

In Thompson v. State, 759 So.2d 650 (Fla.2000), the Florida Supreme Court rejected the same argument that petitioner makes here. The court stated:

We have previously rejected a similar claim that appellate .counsel was ineffective for failing to have transcribed portions of the record, including parts of voir dire, the charge conference, and a discussion of whether the defendant would testify. See Ferguson v. Singletary, 682 So.2d 53, 58 (Fla.1993). .We reasoned that “[h]ad appellate counsel asserted error which went uncorrected because of the missing record, or had [the defendant] pointed to errors in this petition, this claim may have had merit.” Id. However, because the defendant “point[ed] to no specific error which occurred” during the portions of the record that remained untranscribed, we concluded that appellate counsel was not ineffective. Id.; see also Turner v. Dugger, 614 So.2d 1075, 1079-80. (Fla.1992) (finding defendant had not been prejudiced by failure of counsel to have charge conference transcribed). As with the defendant in Ferguson, Thompson has not pointed to any errors that occurred during the untranscribed portions of the proceedings. Therefore, these habeas- claims are without merit.

Id. at 660.

Petitioner alleges that counsel should have ordered transcripts of his first appearance hearing and the Faretta inquiry hearings at which the court found him able to represent himself and appointed stand-by counsel. (Although he states that a transcript should have been ordered on his motion for speedy trial, it does not appear that -there was a hearing; petitioner filed a demand for speedy trial, not a notice of expiration of speedy trial time.) He does not, however, allege any specific errors which might have been committed at these hearings. In fact, he knows of none- and merely is unable to determine “the presence or absence of reversible error.” While he alleges that he was unrepresented for eighty days from the time of his first appearance to his Faretta hearing when stand-by counsel was appointed, he points to no prejudicial rulings which occurred during that time. In fact, it appears that no rulings were made. Moreover, from the appendix petitioner supplies, it appears that the public defender- had been appointed to represent him, and petitioner strenuously objected in writing to being represented by counsel.

Appellate ■ counsel is not ineffective for failing to secure a transcript of each and every hearing or proceeding from arrest through sentencing. While Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), announced the constitutional- principle that a state could not refuse to provide a transcript to an indigent defendant in a situation in which a wealthy defendant could secure one, it did not compel the production of a transcript of all proceedings if counsel deemed one unnecessary. See Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (explaining that state is not required to expend funds unnecessarily for stenographic transcripts of criminal trial proceedings where part or all of transcript is not germane to consideration of appeal).

Appellate counsel must use his or her professional judgment in determining what errors to raise on appeal and, accordingly what portions of the record to produce for review. Counsel may determine that nothing of significance to an appeal occurred at a hearing and, therefore, determine not to order a transcript of the hearing. For instance, appellate counsel could confer with trial counsel to determine whether any reversible error might have occurred. Or, in circuits where the criminal proceedings are recorded, appellate counsel could request copies of the recordings to determine whether pre-trial proceedings need to be transcribed in order to raise an issue on appeal.

In these times of budgetary constraints, effective use of resources is essential. Where a less expensive but effective substitute is available for purposes of appeal, there is no constitutional prohibition against saving money. Even wealthy defendants would not want their attorneys to needlessly spend their money.

Here, the appellate attorney could have requested transcripts of preliminary hearings but did not. The state has not denied the petitioner a transcript. His own attorney failed to order them. Therefore, the state has not deprived petitioner of any constitutional right to which he is entitled. Moreover, petitioner has not pointed out errors which occurred at the untranseribed proceedings. See Thompson, 759 So.2d at 660.

We deny the petition on all grounds raised.

POLEN and GROSS, JJ., concur.

      . However, attorneys cannot substitute an audio or video recording for a trial transcript for the appellate court to review. Not only would this be contrary to the appellate rules, but given the very high caseloads of the courts, neither the judges nor their clerks can take the time to listen for two or three days (or more) to a full trial, when the written transcript can be thoroughly digested in a few hours.


author: SHAHOOD, J.

text:
    Jacob A. ROSE, Appellant, v. Inge B. FORD, Appellee.
    No. 4D01-4248.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.

      Jacob A. Rose of The Rose Law Firm, P.A., West Palm Beach, for appellant.
    Philip M. Chopin of Chopin & Chopin, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

SHAHOOD, J.

We grant appellant’s motion for rehearing and/or clarification, withdraw our previous opinion and substitute the following in its place.

We reverse the trial court’s order striking appellant’s pleadings, granting motion for default and final judgment of modification in favor of appellee. By entering such harsh sanctions, appellant was denied the opportunity to be heard on the issue of child custody.

The parties are the biological parents of three minor children. Appellant, an attorney, initially filed an action for adjudication of paternity and primary residential custody over the three children in 1994. In September 1994, the parties entered into an Agreement Regarding Primary Residential Parent with appellant becoming the temporary primary residential parent over the children, with the parties having shared parental responsibility. The parties agreed to a liberal visitation arrangement in keeping with standard visitation guidelines. On December 12, 1994, the parties, pursuant to mediation, agreed to a temporary relief agreement in which appellee would have visitation with the children. On January 3, 1995, the trial court adopted the temporary agreement reached at mediation.

On May 30, 1995, a settlement was reached during mediation, which was incorporated into a Final Judgment on July 17,1995. The parties agreed, among other things, to shared parental responsibility without any. designation of primary residential parent, that the current visitation schedule set forth in the temporary order of January 3, 1995 was to become permanent, and that the mother was to pay $500 per month in child support. As such, the Final Judgment of Paternity and subsequent modifications determined that the parties would essentially enjoy “rotating custody.” Under the agreement, if either party was out of town in excess of 24 hours while the children resided with the parent, the other parent had the first right of refusal to have the children.

Following the sexual abuse upon one of the minor children by a relative while under appellant’s care and in his residence, appellee filed an amended supplemental, petition for modification of final judgment seeking permanent and temporary custody and a motion for temporary relief seeking temporary residential custody. Primary residential custody was given to appellee. Thereafter, appellant counter-petitioned for primary residential custody.

Following a temporary relief hearing held on July 6, 2001, appellant was ordered to remit the sum of $10,000 as temporary attorney’s fees to appellee’s counsel at the rate of $2,500 per month; appellant failed to pay the monies as ordered. Appellant filed a motion for rehearing and an untimely appeal of the Order Awarding Temporary Fees.

In September 2001, appellee filed a motion to establish visitation guidelines and for right of first refusal. Appellee maintained that appellant continued to employ the services of others to care for the children rather than allow appellee to provide said care. Also, appellant refused to tell appellee where the children were residing on the various nights and refused to provide telephone access to the children. On November 8, 2001, the court entered an order awarding first right of refusal and setting visitation guidelines.

At a hearing on an order to show cause held September 21, 2001, appellant certified that the monies would be paid in full by November 2001. When appellant failed to adhere to the new payment schedule, the court entertained a motion to strike his pleadings. After appellant again failed to make any payments on yet another agreed repayment schedule, the court, on December 7, 2001, struck appellant’s responsive pleadings and entered a default in favor of appellee in an Order Striking Pleadings, Granting Motion for Default and Final Judgment of Modification. In its order the court noted in part:

The Petitioner is without the means to litigate this case on even-footing with the Respondent, who continues to set depositions, seek affirmative relief, avoid discovery orders, and the like and the trial of this cause is rapidly approaching. Having no other viable alternative, the Respondent gives this Court no choice but to strike his responsive pleadings in this cause and enter a default in favor of the Petitioner as to all issues properly before the Court.

As to modification of residential custody, the court held that despite the default, a modification of the current custody arrangement, “rotating custody,” was warranted due to the parties inability to work together and appellant’s inability to care for the children. As such, appellee was awarded primary residential custody.

As to child support, the order states that appellee was entitled to an award commensurate with the parties’ actual incomes, the needs of the minor children and the Child Support Guidelines. As to fees and costs, the order went on to state that “[t]his Court has previously awarded $7,500.00 in temporary attorney’s fees and costs which remain unsatisfied by the Respondent. This sum is hereby reduced to final judgment, and the Respondent shall pay the sum of $7,500.00 to the Petitioner, plus statutory interest from the date of this Final Judgment, for which sum let execution issue forthwith.”

On January 28, 2002, an evidentiary hearing was held to establish child support in keeping with the directives of the court’s December 7, 2001 order. Following extensive testimony, the court entered an Order Establishing Child Support. The court ordered that retroactive child support in the amount of $803.20 be established to January 8, 2002 and shall be satisfied by monthly installments of $165.00 commencing February 1, 2002. Further, an income deduction order was to issue contemporaneously with the above order, effective instanter for garnishment of appellant’s wages in the amount of $1,037.47 for regular child support. Subsequent thereto, appellant was held in contempt for failure to pay.

In this case, the trial court abused its discretion in striking appellant’s pleadings thereby denying him the opportunity to be heard on the issue of child custody. In McEwen v. Rodriguez, 766 So.2d 316, 318 (Fla. 4th DCA 2000), this court stated that because it is the child’s best interests which are at stake, a change in custody-should not be granted without a hearing from a parent who has defaulted in some manner, if that parent wishes to put on evidence. In that case, the mother, who initially had custody of the child, was entitled to a rehearing so as to allow her to submit evidence on the best interests of the child, even though she failed to attend a hearing on the father’s petition for modification of child custody which resulted in a default judgment for the father.

In reversing, the McEwen court relied upon Seibert v. Seibert, 436 So.2d 1104, 1105 (Fla. 4th DCA 1983). In Seibert, a default judgment was entered against a mother who failed to respond to the father’s petition to change custody. This court affirmed the entry of the default, but stated the following:

We caution that the issue of child custody is still subject to determination based upon the paramount consideration of the best interest of the children. A petition remains pending on the issue of custody and the appellant’s prior noncompliance with court orders and other defaults are but circumstances to be considered on the court’s further determinations .as to custody. In short, child custody between contesting parents is always subject to reevaluation based upon the interests of the children. Such issues are not to be foreclosed on technical pleading defaults. Here the former husband was entitled to the default but the court must proceed to consider the further petition on custody without foreclosing consideration of all relevant factors bearing on the best interest of the children.

McEwen, 766 So.2d at 317-18 (quoting Seibert, 436 So.2d at 1105).

In Andrews v. Andrews, 624 So.2d 391, 392 (Fla. 2d DCA 1993), a mother failed to comply with court orders, resulting in the striking of her pleadings. As a consequence, she was not permitted to present any witnesses at the hearing resulting in the change of custody. In reversing, the Andrews court held:

Decisions affecting child custody require a careful consideration of the best interests of the child. § 61.13, Fla. Stat. (1991). This court has previously discouraged trial courts from using default as a sanction when dealing with the sensitive issue of child custody. Chase v. Chase, 519 So.2d 637 (Fla. 2d DCA 1987). In such cases, the testimony of a child’s natural mother will almost always aid the court in fairly determining the child’s best interests. See Doane v. Doane, 279 So.2d 46 (Fla. 4th DCA 1973): Although Ms. Andrews is an ineffective and uncooperative litigant, she may still be the better parent for custody of the couplels two young children. Especially in the context of a modification of child custody, it would seem critical for the trial court to hear the full testimony of the parent who was initially granted custody.

624 So.2d at 392; see also McEwen, 766 So.2d at 317.

While it is undisputed that appellant failed to comply with several court orders dealing with the payment of appel-lee’s attorney’s fees, the harsh sanction of striking pleadings, especially when dealing with child custody issues, should not be meted out based upon the failure to pay attorney’s fees. Despite the default entered in the December 7, 2001 order, appellant should have at least been permitted to submit evidence in defense of his request for a change in custody.

In addition, the court erred in striking appellant’s pleadings where there was no determination that appellant 'willfully-failed to comply with the court’s order. Although appellant clearly did not comply with the court’s order requiring payment of temporary attorney’s fees, the order striking appellant’s pleadings contains no findings or express determination that appellant’s noncompliance was deliberate and in contumacious disregard for the court’s authority. See Baja Village Mkts., Inc. v. Baja Supermarket, Inc., 712 So.2d 465 (Fla. 3d DCA 1998)(the striking of a party’s pleadings is a severe sanction which can be imposed only upon a party’s willful and deliberate disregard of a court’s authority and by the express determination by the court that the party’s actions were willful or deliberate); see also Visoly v. Kluger, Peretz, Kaplan & Berlin, P.A., 707 So.2d 427, 428 (Fla. 3d DCA 1998). While the trial court stated that the appellant did not adhere to payment schedules agreed to by the parties, no finding was made as to his ability to pay. Rather than employ such a harsh sanction as striking appellant’s pleadings, the court, more appropriately at a later date held appellant in contempt for his failure to pay appellee’s temporary attorney’s fees. See Rose v. Ford, 831 So.2d 763 (Fla. 4th DCA 2002).

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

WARNER and TAYLOR, JJ., concur.


text:
    Herman NEUMAN and Seymour Okner, Appellants, v. GRANDVIEW AT EMERALD HILLS, INC., a Florida Corporation, Appellee.
    No. 4D02-1125.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.

      Usher Bryn, Aventura, for appellants.
    Geoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

We deny the motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

The issue presented in this case is whether a condominium association rule banning the holding of religious services in the auditorium of the condominium constitutes a violation of section 718.123, Florida Statutes (2002), which precludes condominium rules from unreasonably restricting a unit owner’s right to peaceably assemble. We hold that the rule does not violate the statute and affirm.

Appellee Grandview is a condominium association with 442 members, appellants being two of the members. Appellants reside at Grandview condominium during the winter months. The common elements of the condominium include an auditorium that members can reserve for social gatherings and meetings. Grandview enacted a rule governing the use of the auditorium in. 1982, .which provided that the auditorium could be used for meetings or functions of groups, including religious groups, when at least eighty percent of the members were residents of Grandview condominium. Generally,- the only reservations made for the auditorium on Saturdays were by individual members for birthday or anniversary celebrations.

In January 2001, several unit owners reserved the auditorium between 8:30 and noon on Saturday mornings. While they indicated they were reserving it for a party, they actually conducted religious services. Approximately forty condominium members gathered for the services.

Upon discovering that religious services were being conducted on Saturdays in. the auditorium, several other members complained to the Board of Directors (“Board”). The Board met in February to discuss restrictions on the use of the auditorium and common elements for religious services and activities. The meeting became very confrontational between those members supporting the use of the auditorium for religious services and those opposing such use. Based upon the controversial nature of the issue, the Board’s desire not to have a common element tied up for the exclusive use of a minority of the members on a regular basis, and to avoid conflicts between different religious groups competing for the space, the Board first submitted the issue to a vote of the owners. Seventy percent of the owners voted in favor of prohibiting the holding of religious services in the auditorium. The Board then voted unanimously to amend the rule governing the use of the auditorium. The new rule provided that “[n]o religious services or activities of any kind are allowed in the auditorium or any other common elements.”

Appellants filed suit against Grandview seeking injunctive and declaratory relief to determine whether the rule violated their constitutional rights or was in violation of section 718.128, and whether the rule was arbitrarily and capriciously enacted by the Board. Grandview answered, denying that the rule was arbitrary or violated appellants’ statutory or constitutional rights. Appellants moved for a temporary injunction alleging that Grandview was not only preventing the owners from holding religious services, it was also prohibiting the use of the auditorium for holiday parties, including Christmas and Chanukah, based upon its prohibition against using the common elements “for religious activities of any kind.” The court granted the motion as to the use of the auditorium for religious activities of any kind but denied it as it applied to the holding of religious services. Based upon the temporary injunction as to religious activities, Grand-view amended its rule to limit the prohibition to the holding of religious services in the auditorium.

At a hearing on appellants’ motion for a permanent injunction against the rule, the appellants relied primarily on section 718.123, which prohibits condominium associations from unreasonably restricting the unit owners’ rights to peaceable assembly. They argued that religious services fell into the category of a “peaceable assembly,” and a categorical ban on the holding of religious services was per se unreasonable. Grandview maintained that it had the right to restrict the use of its common elements. Because the right of peaceable assembly did not mandate a right to conduct religious services, it had the right to poll its members and restrict the use based upon the majority’s desires. As such, Grandviéw maintained the exercise of this right was reasonable.

In its final order denying the injunction, the court determined that because no state action was involved, the unit owners’ constitutional rights of freedom of speech and religion were not implicated by Grand-view’s rule. The court determined that the rule did not violate section 718.123, as the condominium association had the authority to enact this reasonable restriction on the use of the auditorium. Appellants challenge that ruling.

Chapter' 718, Florida’s “Condominium Act,” recognizes the condominium form of property ownership and “establishes a detailed scheme for the creation, sale, and operation of condominiums.” Woodside Vill. Condo. Ass’n v. Jahren, 806 So.2d 452, 455 (Fla.2002). Thus, condominiums are strictly creatures of statute. See id. The declaration of condominium, which is the condominium’s “constitution,” creates the condominium and “strictly governs the relationships among the condominium units owners and the condominium association.” Id. at 456. Under the declaration, the Board of the condominium association has broad authority to enact rules for the benefit of the community. See id.

In Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla. 4th DCA 1975), this court explained the unique character of condominium living which, for the good of the majority, restricts rights residents would otherwise have were they living in a private separate residence:

It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.

Section 718.123(1) recognizes the right of the condominium association to regulate the use of the common elements of the condominium:

All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities, subject to the provisions of s. 718.106(4). The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner’s right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.

(Emphasis added).

The statutory test for rules regarding the operation of the common elements of the condominium is reasonableness. The trial court found the rule preventing use of the auditorium for religious services was reasonable in light of the Board’s concern for a serious potential for conflict of use which could arise among competing religious groups. Having polled the members and determined that a majority of the members approved the ban, the Board’s rule assured that the auditorium was “available to unit owners in the condominium ór condominiums served thereby and their invited guests for the use intended” in accordance with the statute. § 718.123(1).

The appellants’ main argument both at trial and on appeal suggests that because the statute mandates that the Board may not “unreasonably restrict any unit owner’s right to peaceably assemble,” § 718.123(1), a categorical prohibition of all religious services exceeds the Board’s powers, as the right to meet in religious worship would constitute the right to peaceably assemble. However, the right to peaceably assemble has traditionally been interpreted to apply to the right of the citizens to meet to discuss public or governmental affairs. See United States v. Cruikshank, 92 U.S. 542, 551-52, 23 L.Ed. 588 (1875). Assuming for purposes of this argument that the right to gather for religious worship is a form of peaceable assembly, the rule in question bans this particular form of assembly, but not all right to assemble. Certainly, a categorical ban on the right of members to use the auditorium for any gathering would be contrary to statute. However, the statute itself permits the reasonable regulation of that right. Prohibiting those types of assembly which will have a particularly divisive effect on the condominium community is a reasonable restriction. See Hidden Harbour, 309 So.2d at 181-82. The Board found that permitting the holding of regular worship services and the competition among various religious groups for use of the auditorium would pose such conflict. Where the condominium association’s regulations regarding common elements are reasonable and not violative of specific statutory limitations, the regulations should be upheld. See Juno By the Sea N. Condo. Ass’n v. Manfredonia, 397 So.2d 297, 302 (Fla. 4th DCA 1980). The trial court found the restriction reasonable under the facts. No abuse of discretion has been shown.

The judgment of the trial court is affirmed.

STONE and STEVENSON, 33., concur.


text:
    Theresa KANU, Appellant, v. POINTE BANK, a Florida banking institution and GMAC Mortgage Corporation, etc., et al., Appellees.
    No. 4D02-2866.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Rehearing Denied Jan. 12, 2004.
    Theresa Kanu, Palm Beach Gardens, pro se.
    Spencer M. Sax and Jo-Jean M. Panton of Sachs, Sax & Klein, P.A., Boca Raton, for appellee Pointe Bank.
   PER CURIAM.

We reverse the final summary judgment of mortgage foreclosure because the affidavits submitted by appellee did not conclusively refute one of the affirmative defenses raised by appellant. See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995). ■ Appellant alleged that she made payments to appellee prior to the notice of default and made other payment plan agreements thereafter, and appellee failed to provide notice of its intent to accelerate the balance due on the mortgage. The affidavit of indebtedness filed by appellee did not include the date of the last payment, nor did it even state that the loan was in default.. All it contained was the amount due as of a date after the filing of the lawsuit. Therefore, there is a disputed issue of material fact as to whether the loan was in default when the bank elected to accelerate.

Appellee conclusively refuted the remaining affirmative defenses, as well as the issues raised in the counterclaim. Our reversal is therefore limited to the establishment of a default and entitlement to acceleration by the appellee.

WARNER, STEVENSON and GROSS, JJ., concur.


author: ORFINGER, J.

text:
    Jorge SUAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-723.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Jorge Suarez, Perry, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

In this Anders appeal, our examination of the record and the briefs filed by Jorge Suarez and his counsel, demonstrate no preserved reversible error apparent on the face of the record. See State v. Causey, 503 So.2d 321 (Fla.1987). However, it appears that an unpreserved double jeopardy violation may exist.

Suarez was sentenced to a three-year minimum mandatory term on November 21, 2002, pursuant to a plea agreement with the State. Apparently, it was agreed that he would not have to report to begin serving his sentence until November 27, 2002. Suarez failed to report as required, and, following his arrest several days later, the trial court set aside his sentence and resentenced him to thirty-eight months in prison, with a three-year minimum mandatory term. This may or may not be a double jeopardy violation, depending on the terms of the plea agreement. See, e.g., Ingraham v. State, 842 So.2d 954 (Fla. 4th DCA 2003) (holding that jeopardy attached when the court imposed defendant’s sentence orally at the plea hearing and a double jeopardy violation occurred when the court increased the sentence after the defendant violated a furlough agreement by failing to report to begin sentence); cf. Metellus v. State, 817 So.2d 1009 (Fla. 5th DCA 2002) (holding that no double jeopardy violation occurred after defendant was resentenced on motion of the State pursuant to Florida Rule of Criminal Procedure 3.170 after defendant failed to comply with plea agreement). Nonetheless, this issue was not preserved for appeal. Accordingly, we affirm the conviction and sentence without prejudice to raise the matter in a timely motion for postconviction relief.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

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


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. TITUSVILLE TOTAL HEALTHCARE, etc., Appellee.
    No. 5D03-1014.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Jack R. Reiter and Gregory A. Victor of Adorno & Yoss, P.A., Miami, for Appellants.
    Kimberly Simoes of Susan W. Tolbert, P.L., Daytona Beach and Shannon McLin Carlyle, Christopher V. Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   PER CURIAM.

The opinion in Allstate Insurance Company v. Titusville Total Healthcare, 848 So.2d 1166 (Fla. 5th DCA 2003), is adopted. The order permitting attorney’s fees is hereby quashed and the resulting award of attorney’s fees is set aside.

ORDER QUASHED.

SAWAYA, C.J., PETERSON and PLEUS, JJ., concur.


text:
    Nancy LANGAN, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-801.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Nancy Langan, Orlando, pro se.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Nancy Langan appeals a final order issued by the Florida Department of Agriculture and Consumer Services, advising her that her citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agrie. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    Cheryl W. AYERS, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-811.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Cheryl W. Ayers, Orlando, pro se.

      Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Cheryl W. Ayers appeals a final order issued by the Florida Department of Agriculture and Consumer Services, advising her that her citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agrie. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


author: VAN NORTWICK, J.

text:
    Urs KOECHLI, Appellant, v. BIP INTERNATIONAL, INC., a New York corporation d/b/a Global Interior Group, individually and for the use and benefit of BIP Industries, Appellee.
    No. 1D03-1009.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.

      Mark G. Alexander, Gregory Williamson and Katherine N. Lewis of Holland & Knight LLP, Jacksonville, for Appellant.
    Gregory A. Anderson, John J. Glenn and Brian W. Davey of Anderson St. Denis & Glenn, P.A., Jacksonville, for Appellee.
   VAN NORTWICK, J.

Urs Koechli appeals an order denying his motion to quash service of process and motion to dismiss for lack of personal jurisdiction. Koechli argues that process was not properly served in accordance with the requirements of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163, reprinted in 28 U.S.C.A. (Appendix following rule 4, Fed.R.Civ.P.). We find the record supports that service was made in compliance with the Convention and we affirm.

BIP International, Inc. (BIP), appellee, filed a second amended complaint against Koechli and others alleging fraud in the inducement, negligent misrepresentation, conversion, and conspiracy to defraud in connection with a contract between BIP and Alpha GMBH & Co. Schiffsbesitz KG (Alpha) for the refurbishment of the vessel M/Y Giant I owned by Alpha. Koechli is a citizen of Switzerland who lives on a sailboat. BIP sought to serve Koechli pursuant to the Hague Convention while his sailboat was docked in the Bahamas. Section 48.194(1), Florida Statutes (2002), authorizes that service of process on persons outside the United States may be made in conformity with the Hague Convention. See MacIvor v. Volvo Penta of America, Inc., 471 So.2d 187, 188 (Fla. 3d DCA 1985).

Those portions of the Convention applicable here are in force in the United States, Switzerland and the Bahamas. The Hague Convention creates “appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” Hague Convention, preamble. The Convention applies in civil and commercial matters. Id., art. 1. Under the Hague Convention, process is sent to the designated “central authority” of the state in which process is to be served. Id., art. 3. The central authority must arrange to have process served on the defendants by a method prescribed by the receiving state or by a method designated by the requester and compatible with the law of the receiving state. Id. art. 5. Then, the central authority, or an authority designated by it, must complete a certificate setting forth how, where, and when service was made, or explaining why service was prevented. Id. art. 6. Finally, the central authority must provide a completed certificate of service to the original applicant. Id.; Sheets v. Yamaha Motors Corp., USA, 891 F.2d 533, 536 (5th Cir.1990); see generally Gary A. Magnarini, Service of Process Under the Hague Convention, 71 Marq. L.Rev. 649 (1988).

BIP forwarded to the Bahamian Attorney General’s Office, the Bahamian central authority, the following documents to perfect service on Koechli: (1) Form USM-94, the request for service abroad under the Hague Convention; (2) the pluries summons for Koechli; (3) the second amended complaint with all attachments; and (4) a translation into German of the second amended complaint with all attachments. The request and pluries summons indicated that Koechli’s current address was “Freeport Harbor, Berth 3, Queen Highway, Freeport, Grand Bahamas.” James Cooper, a police constable of the Royal Bahamas Police Force, personally served Koechli on dock No.l in the Freeport Harbor. Koechli signed and dated the certificate attached to the request for service in Cooper’s presence. The Bahamian Attorney General’s Office provided to BIP’s counsel an affidavit of service from the Office of Attorney General for the Bahamas; the affidavit of service of Officer Cooper; and the certificate of service of foreign process signed by Tabatha Cum-berbatch, assistant registrar of the Bahamian Supreme Court.

Koechli argues that the service was defective in various respects. He complains that Officer Cooper did not have Koechli’s address because in Cooper’s affidavit he stated that he drove to dock 1 of Freeport Harbor and made inquiries concerning the whereabouts for Koechli. Koechli further complains that the proof of service did not specify the method of service and that there is no evidence that he voluntarily accepted service of the document.

While the burden of establishing service of process is on BIP, Carter v. Lil' Joe Records, Inc., 829 So.2d 953, 954 (Fla. 4th DCA 2002), the trial court has discretion in determining whether a party was served in accordance with the Hague Convention. Fox v. Regie Nationale des Usines Renault, 103 F.R.D. 453, 455 (W.D.Tenn.1984). Where a plaintiff has attempted in good faith to comply with the Hague Convention, and where a defendant receives sufficient notice despite a technical defect, it is within a court’s discretion to declare service properly perfected. Id. In addition, the return of the central authority’s completed certificate of service is prima facie evidence of service by the central authority. Northrup King Co. v. Companía Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1389 (8th Cir.1995).

Although the service documents may contain technical defects, the record here establishes that the appropriate Bahamian central authority determined there were no deficiencies in the documents provided to them and the certificates of the central authority together with the other documents in the record support proper service on Koechli under the Hague Convention. Accordingly, the trial court did not err in denying the appellant’s motions.

AFFIRMED.

PADOVANO and HAWKES, JJ„ concur.


text:
    Carl Michael EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3755.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    Carl Michael Edwards, Lowell, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hartline v. State, 806 So.2d 595 (Fla. 5th DCA 2002).

THOMPSON, ORFINGE.R and TORPY, JJ., concur.


text:
    Peter Mark DePALMA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1752.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

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

PETERSON, PLEUS and TORPY, JJ., concur.


text:
    Virgil DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1685.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Virgil Davis, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Patricia HARP, Personal Representative, Etc. Appellant, v. IHS OF FLORIDA, INC., NO. 7, Etc. Appellee.
    No. 5D03-449.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    James D. Pacitti of Morgan, Colling & Gilbert, P.A., Orlando for Appellant.
    Steve E. Baker and Rodger D. Moss, Jr. of Spicer, Romaguera, Baker, Dawson & Bringardener, P.A., Orlando for Appellee.
   PER CURIAM.

AFFIRMED. See Gainesville Health Care Center, Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    Joel P. GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3451.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001).

THOMPSON, PLEUS and TORPY, JJ., concur.


text:
    Gabriel ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2158.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

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

PETERSON, THOMPSON and TORPY, JJ., concur.